Benedict S. Cohen*
Longstanding conflicts relating to spending authority, war powers,
and executive privilege have dominated the separation of powers
agenda over the past two years. The historical anomaly of a Democratic
White House and a Republican Congress--not seen in Washington in
half a century
--led the Congressional leadership to believe that they had a novel
opportunity to shore up the weakened post-Watergate presidency,
because Democratic opponents of presidential authority might be
more willing to strengthen it with a Democrat in the White House.
In the area of budget authority, a perennial source of conflict
during the Nixon Administration, the leadership was correct: line-item
veto legislation was enacted giving the President authority to veto
any individual item of spending authority, subject to a two-thirds
override vote by Congress. (In a concession to congressional critics
of the Clinton Administration, the effective date of the legislation
was pushed off to January 1997.) Other proposals to revise the provisions
of the 1974 Budget Act weakening presidential control over spending
have been discussed but were not acted on in the 104th Congress,
although a comprehensive budget process reform bill making the federal
budget a joint rather than concurrent resolution (and therefore
subject to presidential veto) garnered 224 House cosponsors -- more
than a majority.
The budget crisis in late 1995 revealed that the debt ceiling provides
Congress with much less leverage than had previously been thought--an
historic shift in the balance of power between Congress and the
President. Many observors believed that the controversial budget
reconciliation package sent to the President in late 1995 would
be virtually veto-proof because it also contained an increase in
the debt ceiling, which was thought to be needed by no later than
November 1995. Instead, the Administration was able to use a variety
of accounting devices and statutory authority to continue incurring
debt for months after the putative November deadline, largely vitiating
Congress' leverage. Although a number of these devices had been
used in prior debt-limit crises, both the scope and the duration
of the Administration's manipulations were unprecedented. No subsequent
effort has been made to amend the statutory authorities used or
abused by the President, in part because the Administration has
made clear that the President would veto any such amendments.
In the field of foreign affairs and war powers, the Republican
leadership failed in its effort to roll back the most significant
Watergate-era encroachment on presidential prerogatives. Repeal
of the War Powers Resolution, a major priority for House Judiciary
Committee Chairman Henry Hyde, Republican Policy Committee Chairman
Christopher Cox, and Speaker Newt Gingrich, came up for a vote amid
rumors of an imminent deployment of U.S. troops to Bosnia, and in
that highly-charged environment was narrowly defeated. (The Administration's
failure to support this effort was a significant factor in its defeat.)
Similarly, the Senate took no action on S. 5, Senator Dole's comprehensive
foreign policy bill, which would remove the Resolution's controversial
triggers and timetables.
By contrast, the leadership has been aggressive in asserting Congress'
prerogatives in specific international contexts, usually through
the power of the purse. For example, in autumn 1995 the House passed
legislation barring the use of Defense Department funding for any
ground deployment of U.S. forces to Bosnia lacking specific legislative
authorization; a subsequent attempt on the eve of deployment to
enact a direct bar on funding the deployment failed to pass the
House. The Senate adopted a different approach, passing a bill expressly
authorizing such a deployment but imposing a series of conditions
on the authorization (including the arming and training of Bosnian
Moslem forces). Neither the House nor the Senate bill became law.
The President and Congress fought a war of attrition over executive
privilege virtually throughout the 104th Congress. In January 1996,
the House Government Reform and Oversight Committee subpoenaed several
thousand pages of White House materials relating to Travelgate.
After months of largely fruitless negotiations and last-minute White
House concessions, the President, relying on a cursory opinion of
Attorney General Reno, claimed executive privilege in May 1996 over
some 2,000 pages of documents. The White House's political position
in the document dispute was severely undercut when the Filegate
scandal erupted in the summer of 1996; the mishandling of FBI files
had been revealed by documents released by the White House in an
earlier, incomplete document production. In August 1996, the President
finally released the bulk of the remaining 2,000 pages of materials
as the House was preparing to vote to hold his White House Counsel
in contempt of Congress. In the waning days of the 104th Congress,
the President asserted executive privilege over 47 documents sought
by the House International Relations Committee bearing on Administration
knowledge of Haitian government death-squad activities, as well
as over a scathing memorandum from FBI Director Louis Freeh to the
President lambasting the lack of "any true leadership"
in the war on drugs.
One bill introduced in the 104th Congress returns to the battlefields
of the New Deal era. Rep. J.D. Hayworth's Congressional Responsibility
Act attempts to revive the non-delegation principle by requiring
legislative approval of regulations prior to their taking effect.
The bill currently has 55 cosponsors, and was the subject of a hearing
in the House Judiciary Committee's administrative law subcommittee
in September 1996.
Major issues from the more recent past that failed to stir significant
activity or interest in the 104th Congress include the False Claims
Act's qui tam provisions, widely viewed by conservative scholars
as an unconstitutional usurpation of the Executive Branch's control
over government litigation; the Ethics in Government Act's independent
counsel provisions, which were reauthorized during the 103rd Congress
after a brief lapse at the beginning of the Clinton Administration;
and efforts to restrict federal courts' subject-matter jurisdiction,
an issue that arose at the outset of the Reagan Administration.
One bill with significant constitutional implications enacted just
before adjournment was an Alternative Dispute Resolution measure
that would permit federal agencies to submit to binding arbitration,
but only up to the amount of the agency's settlement authority.
During the Bush Administration, the Justice Department opined that
the Appointments Clause permitted only Article III judges or executive-branch
officers to bind the federal government. The Clinton Justice Department
has now reversed this determination, arguing that the Appointments
Clause is satisfied so long as a federal officer makes the determination
to submit to binding arbitration.
Federalism
One highly significant change affecting both the courts and state-federal
relations was the landmark amendment to the habeas corpus statute
enacted as part of the 1996 antiterrorism legislation. This reform,
which had been stymied in prior Congresses by some civil libertarians,
was enacted over the Administration's strong opposition (including
personal lobbying by the President) because of the public revulsion
following the Oklahoma City terrorist attack. It limits prisoners
to a single habeas petition unless subsequent petitions are permitted
by the court of appeals, whose decisions on this point were made
unreviewable. The bill also provided for a more deferential standard
of review for state-court decisions. The Supreme Court unanimously
upheld the legislation's denial of any appeal of the determination
either to permit or deny subsequent habeas petitions, but avoided
the constitutional issue by holding that the bill did not alter
the Supreme Court's own original jurisdiction over subsequent habeas
petitions--a reading of the 1996 enactment not contemplated by its
authors, and the practical impact of which remains to be seen.
In addition to restricting federal review of state criminal cases,
the 104th Congress passed or considered a host of bills bearing
on state-federal relations. At the macropolitical level, the states
took center stage in some of the most controversial policy debates
of this Congress, demanding that welfare, Medicaid, and federal
public housing programs be transformed into block grants with very
few federal guidelines. Although the President blocked such a reform
of the huge Medicaid program, the co-payments for which now account
on average for nearly 20% of state budgets, he ultimately signed
welfare reform legislation providing vastly increased state authority
over this former entitlement. In addition, a bill transforming the
federal public housing program into a block grant passed both houses
of Congress, and will likely be enacted next year.
Congress also passed important legislation restricting its ability
to enact "unfunded mandates," federal requirements for
state and local governments unaccompanied by the funding necessary
to implement them. To guard against future mandates, the bill creates
a Budget Act point of order against bills or amendments containing
such provisions. It also commissioned a study of existing unfunded
mandates. In addition, Senator Spencer Abraham, one of the founders
of the Federalist Society, and Rep. John Shadegg have introduced
legislation which, like Rep. Hayworth's non-delegation bill, harkens
back to the constitutional debates of the 1930's: their measures
would require each bill or resolution enacted by Congress to cite
the specific constitutional authority pursuant to which it is being
enacted. Rep. Shadegg's bill, the Enumerated Powers Act, was cosponsored
by 101 House members. Rep. Hayworth, moreover, has organized a Constitutional
Caucus of more than 100 Members dedicated to devolution of federal
authority to the states.
In September, the President signed the Defense of Marriage Act.
This legislation defines marriage for federal-law purposes as the
union of two persons of the opposite sex; in addition, under the
authority of the Full Faith and Credit Clause, Art. IV, sec. 1,
which authorizes Congress to "prescribe the manner in which...Acts,
Records and proceedings [of each State] shall be proved, and the
Effect thereof," it relieves the States of any obligation under
the Clause to recognize same-sex marriages in other States. Although
the measure was attacked as a federal encroachment on traditional
state jurisdiction over domestic law, it actually simply empowers
(but does not require) States to maintain their own public policies
with respect to same-sex marriage; under the same authority, Congress
enacted legislation requiring the enforcement of child custody determinations,
child support orders, and domestic violence protective orders in
1980 and 1994.
Legal reform measures passed by the House and Senate also implicated
the state-federal balance. The House-passed reform bill would have
eliminated joint-and-several liability and capped punitive damages
in almost all state and federal civil cases and implemented a number
of significant reforms in the area of healthcare liability; the
Senate passed narrower legislation limited to product liability.
The Senate's narrower approach largely prevailed in the final legislation
sent to the President, who promptly vetoed it. He, and other opponents
of these reform measures, attacked them as an unprecedented federalization
of state common law and civil procedures; reform proponents such
as Judge Robert Bork argued that they were essential to protect
interstate commerce from local depredations--the core purpose of
the Commerce Clause.
The recent tendency to federalize essentially local crimes, rebuked
by the Supreme Court in United States v. Lopez 115 S.Ct. 1624 (1995),
largely stalled in the 104th Congress: the main criminal justice
bill enacted so far, the 1996 anti-terrorism bill, largely avoided
any new incursions into intrastate crime and, through its habeas
corpus reforms, relieved state criminal justice systems of an enormous
burden of duplicative federal oversight.
Other proposals that may bear fruit in future Congresses include
Governor DuPont's interesting proposals for statutory advancement
of federalism. He has suggested that Congress codify several "clear
statement" rules, including requirements that absent a clear
statement of Congressional intent the courts will not find that
a statute preempts state law, or "infringes in any material
way upon the authority and capacity of state and local governments
to perform their basic and traditional functions"--in essence,
a codification of the standard in National League of Cities v. Usery.,
426 U.S. 833 (1976). Others have suggested codifying (and possibly
making litigable) the requirement in President Reagan's Federalism
Executive Order that federal agencies perform federalism impact
assessments prior to initiating significant federal actions.
The new assertiveness of the states found a receptive audience
in the 104th Congress, and this development is likely to persist
in the next Congress as well.
*Benedict S. Cohen is Executive Director of the House Republican
Policy Committee. The views expressed herein are his own, and do
not necessarily reflect those of the Policy Committee.
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