No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 05 August 2009
This paper explores the process of constitutional dialogue through the consideration of anarea of case law—separation of powers—where the U. S. Supreme Court issued significant decisions in the 1980s and where there was much discussion among the Court's attentive listeners about the significance of the legal changes represented in the Court's opinions. The implications of the separation of powers cases were not well understood by “the interpretive community.” Many observers believed that the Court was prepared to dismantle the administrative state, abandoning its long-standing precedent supporting independent regulatory agencies. This outcome did not occur. Using internal memoranda, briefs, court opinions, and other public documents, I explore the manner in which this institutional communication took place and the factors that interfered with the ability of the Court to express clearly its intent and its audience to understand that intent.
1 Fisher, Louis, Constitutional Dialogues: Interpretation as a Political Process (Princeton, NJ: University of Princeton Press, 1988)CrossRefGoogle Scholar; Burgess, Susan, Contest for Constitutional Authority: The Abortion and War Powers Debates (Lawrence, KS: University of Kansas Press, 1992).Google Scholar
2 Epstein, Lee and Kobylka, Joseph F., The Supreme Court and Legal Change (Chapel Hill, NC: University of North Carolina Press, 1992).Google Scholar
3 Fiss, Owen, “Objectivity and Interpretation,”Stanford Law Review 34 (1982): 739–63.CrossRefGoogle Scholar
4 See for example Fisher, Constitutional Dialogues; Burgess, Contest; Epstein and Kobylka, Legal Change; Kobylka, Joseph F., The Politics of Obscenity: Group Litigation in a Time of Legal Change (New York: Greenwood Press, 1991)Google Scholar; Caldeira, Gregory A., “The United States Supreme Court and Criminal Cases: Alternative Models of Agenda Building,” British Journal of Political Science 11 (1981): 449–470.CrossRefGoogle Scholar
5 Pacelle, Richard L. Jr., The Transformation of the Supreme Court's Agenda (Boulder, CO: Westview Press, 1991)Google Scholar; Perry, H. W. Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge, MA: Harvard Universiy Press, 1991)Google Scholar; and Provine, Doris Marie, Case Selection in the United States Supreme Court (Chicago: University of Chicago Press,1980).Google Scholar
6 Fisher, , Constitutional Dialogues, p. 6.Google Scholar
7 Epstein, and Kobylka, , Legal Change, p. 302.Google Scholar
8 Kahn, Ronald, The Supreme Court and Constitutional Theory: 1953–1993 (Lawrence, KS: University Press of Kansas, 1994).Google Scholar
9 My use of the papers, housed at the Library of Congress Manuscript Division in Washington, D. C., was facilitated by travel grants from the American Political Science Association and the Research and Creative Activities Fund at Wake Forest University.
10 Caplan, Lincoln, The Tenth Justice: The Solicitor General and the Rule of Law (New York: Knopf, 1987)Google Scholar; Clayton, Cornell W., The Politics of Justice: The Attorney General and the Making of Legal Policy (Armonk, NY: M.E. Sharpe, Inc., 1992).Google Scholar
11 For a discussion of Congress's activities see Sundquist, James, The Decline and Resurgence of Congress, (Washington, DC: Brookings Institution, 1981)Google Scholar. For representative essays of the criticisms of these developments see Crovitz, L. Gordon and Rabkin, Jeremy, eds., The Fettered Presidency (Washington, DC: American Enterprise Institute, 1989).Google Scholar
12 462 U.S. 919 (1983).
13 478 U.S. 714 (1986).
14 487 U.S. 654 (1988).
15 The Court upheld such agencies in the landmark decision Humphrey's Executor v. United States, 295 U.S. 602 (1935).
16 Caplan, , Tenth Justice, p. 119.Google Scholar
17 Legislative vetoes took several forms, but generally involved provisions in legislation that reserved to a committee, one house, or both houses of Congress the power to veto actions taken by federal executive agencies in implementing the law. See for example, Bruff, Harold and Gelhorn, Ernest, “Congressional Control of Administrative Regulation: A Study of Legislative Vetoes,” 90 Harvard Law Review 1369 (1977)Google Scholar; Cooper, Joseph and Cooper, Ann, “The Legislative Veto and the Constitution,” George Washington Law Review 30 (1962): 467Google Scholar; Ginnane, Robert W., “The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harvard Law Review 569 (1953)Google Scholar; Javits, Jacob K. and Klein, Gary J., “Congressional Oversight and the Legislative Veto: A Constitutional Analysis,”New York University Law Review 52 (1977): 455Google Scholar; Scalia, Antonin, “The Legislative Veto: A False Remedy for System Overload,” Regulation 3 (1979): 19Google Scholar. For a comprehensive review of the debate over and use of the legislative veto see Craig, Barbara Hinkson, The Legislative Veto: Congressional Control of Regulation (Boulder, CO: Westview Press, 1983).Google Scholar
18 Korn, Jessica, The Power of Separation: American Constitutionalism and the Myth of the Legislative Veto (Princeton, NJ: Princeton University Press, 1996), pp. 28–30.Google Scholar
19 ibid., p. 30.
20 ibid., p. 31.
21 INS v. Chadha, 462 U.S. 919 (1983).
22 ibid., at 951.
23 Brief Amicus Curiae of the Council on Administrative Law of the Federal Bar Association in Support of Respondents in Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law (Vol. 140), ed. Kurland, Philip B. and Casper, Gerhard (Frederick, MD: University Publications of America, Inc., 1984), p. 125.Google Scholar
24 Brief of the United States House of Representatives, in Landmark Briefs, p. 260.
25 ibid., p. 264.
26 Transcript of Oral Argument, in Landmark Briefs, pp. 523–66.
27 Memorandum from Justice Powell to Chief Justice Burger, 25 February 1982, Box 311, Folder 1, S. Ct. Case Files, Thurgood Marshall Papers, Library of Congress, Washington, D.C.
28 Memorandum from Justice Brennan to Justice Powell, 25 February 1982, ibid.
29 Memorandum from Justice Powell to Chief Justice Burger, 9 March 1982, ibid.
30 Memorandum from Justice Blackmun to Chief Justice Burger, 10 March 1982, pp. 1–3, ibid.
31 Memorandum from Justice Rehnquist to Chief Justice Burger, 11 March 1982, ibid.
32 Memorandum from Chief Justice Burger to the Conference, 15 March 1982, ibid.
33 This was the emphasis of the arguments made by Alan Morrison, the attorney for Mr. Chadha. In his oral arguments he noted that Mr. Chadha “feels that the separation of powers is an interesting concept as far as the Senate and the House and the president are concerned, but it also affects people. It has affected his life very greatly during this time.” Oral arguments, 22 February 1982, in Landmark Briefs, p. 558. In the reargument he made a similar point: “although the activities here are portrayed as an iiiterbranch struggle, this case illustrates that the lives of individuals are very much at stake in controversies such as this.” Oral arguments, 7 December 1982, in Landmark Briefs, p. 732.
34 INS v. Chadha, 103 S. Ct. 2764, 2788–92 (1983).
35 Craig, Barbara Hinkson, Chadha: The Story of an Epic Constitutional Struggle (Berkeley, CA: University of California Press, 1988), p. 228.Google Scholar
36 Korn, , The Power of Separation, p. 32.Google Scholar
37 “Supreme Court Invalidates Legislative Veto,” Congressional Quarterly Almanac 1983 (Washington, DC: Congressional Quarterly, 1984), pp. 565–66.Google Scholar
38 ibid., p. 570.
39 Mak, Raymond T., “One Fell Swoop: The Chadha Decision and the Need for Supreme Court Clarification,” Seton Hall Legislative Journal 9 (1985): 161.Google Scholar
40 Abel, Arthur H., “INS v. Chadha: The Future Demise of Legislative Delegation and the Need for a Constitutional Amendment,” Journal of Legislation 11 (1984) 317, 318.Google Scholar
41 “High Court Weighs New Legislative Veto Issue,” Congressional Quarterly Almanac 1986 (Washington, D.C.: Congressional Quarterly, 1987), p. 52.Google Scholar
42 Fisher, Louis, “Judicial Misjudgments About the Lawmaking Process: The Legislative Veto Case,” Public Administration Review 45 (11 1985): 705.CrossRefGoogle Scholar
43 Jessica Korn makes a convincing argument that the importance of the legislative veto was exaggerated by both its opponents and proponents. She finds “a striking disjunction between the minimal role actually played by the legislative veto and the great significance attributed to it by students of American politics” (Korn, , The Power of Separation, pp 7–8).Google Scholar
44 “High Court Weighs,” CQ Aim. 1986, p. 52.
45 “Constitutionality of Automatic Cuts Challenged,” Congressional Quarterly Almanac 1985 (Washington, D.C.: Congressional Quarterly, Inc., 1986), p. 461.Google Scholar
46 “Statement on Signing the Bill Increasing the Public Debt Limit and Enacting the Balanced Budget and Emergency Deficit Control Act of 1985,” Public Papers of the Presidents: Ronald Reagan, Book II (Washington, DC: U.S. Govt. Printing Office, 1988), pp. 1471–72.Google Scholar
47 Brief for the Appellant Comptroller General of the United States, in Landmark Briefs (Vol. 160) (1987), pp. 97,117.Google Scholar
48 Tribe, Laurence H., God Save This Honorable Court: How the Choice of Supreme Court Justices Shapes Our History (New York: Random House, 1985), pp. 118–19.Google Scholar
49 Haltom, William, “Separating Powers: Dialectical Sense and Positive Nonsense,” in Judging the Constitution: Critical Essays on Judicial Lawmaking, ed. McCann, Michael W. and Houseman, Gerald L. (Glenview, IL: Scott, Foresman and Co., 1989), p. 132.Google Scholar
50 First draft of opinion in Bowsher v. Synar, 31 May 1986, Box 396, Folder 2, S. Ct. Case Files, Marshall Papers.
51 Memorandum from Justice O'Connor to Chief Justice Burger, 2 June 1986, ibid.
52 Memorandum from Justice Stevens to Chief Justice Burger, 2 June 1986, ibid.
53 Memorandum from Justice Marshall to Chief Justice Burger, 2 June 1986, ibid.
54 Memorandum from Justice Powell to Chief Justice Burger, 3 June 1986, ibid.
55 Memorandum from Justice Brennan to Chief Justice Burger, 3 June 1986, ibid.
56 Memoranda from Chief Justice Burger to Conference, 3 and 4 June 1986, ibid.
57 Memorandum from Justice Stevens to Chief Justice Burger, 9 June 1986, ibid.
58 Bench Memorandum for Bowsher v. Synar, April 1986, Box 376, Folder 4, Administrative Files, Marshall Papers.
59 U.S. Congress, House Committee on the Judiciary, Amendment of the Special Prosecutor Provisions of Title 28, Hearings before the Subcommittee on Administrative Law and Governmental Relations, 97th Cong., 2d sess., 1982; Senate, Committee on Governmental Affairs, Independent Counsel Reauthorization Act of 1987, Sen. Report 100–123, 100th Cong., 1st sess., 1987.
60 “Statement on Signing the Independent Counsel Reauthorization Act of 1987,” December 15, 1987, Public Papers of the Presidents: Ronald Reagan, Book II (Washington, DC: U.S. Govt. Printing Office, 1989), p. 1524.Google Scholar
61 Harriger, Katy J., Independent Justice: The Federal Special Prosecutor in American Politics (Lawrence, KS: University Press of Kansas, 1992), p. 104.Google Scholar
62 Morrison v. Olson, 487 U. S. 654, 685–93.
63 Case files for Morrison v. Olson, Box 449, Folders 10 and 11, S. Ct. Case Files, Marshall Papers.
64 Cohadas, Nadine, “Court Rules Against Reagan in Power Clash,” Congressional Quarterly Weekly Report, 2 07 1988, p. 1791.Google Scholar
65 ibid., p. 1794. See also Carter, Stephen L., “Comment:The Independent Counsel Mess,” Harvard Law Review 102 (1988): 105Google Scholar; and Eastland, Terry, Ethics, Politics, and the Independent Counsel (Washington, DC: National Legal Center for the Public Interest, 1989).Google Scholar
66 “Court Upholds Independent Counsel Law,” Congressional Quarterly Almanac 1988 (Washington, DC: Congressional Quarterly Inc., 1989), p. 123.Google Scholar
67 ibid., p. 124. “Just how much Congress had won in this ongoing struggle between the branches was unclear…. But the ramifications of the decision would not be fully understood until new conflicts arose that tested its limits.”
68 Goodpaster, Gary, “Rules of the Game: Comments on Three Views of the Independent Prosecutor Case,” American University Law Review 38 (1989): 393.Google Scholar
69 488 U.S. 361 (1989).
70 ibid.
71 The documents on Mistretta v. U.S., 87–7028, are in Box 482, Folder 11, S. Ct. Case Files, Thurgood Marshall Papers.
72 Perry, , Deciding to Decide, pp. 140–197.Google Scholar
73 ibid. See also Pacelle, The Transformation of the Supreme Court's Agenda.
74 Kearney, Richard C. and Sheehan, Reginald S., “Supreme Court Decisionmaking: The Impact of Court Composition on State and Local Government Litigation,” Journal of Politics 54 (1992): 1008–1025.CrossRefGoogle Scholar
75 Harriger, Katy J., “The Federalism Debate in the Transformation of Federal Habeas Corpus Law,” Publius: The Journal of Federalism (Summer 1997).Google Scholar
76 Korn, , The Power of Separation, pp. 28–30.Google Scholar
77 Tribe, , God Save This Honorable Court, pp. 118–19.Google Scholar