Separation of Powers and Federalism in the 104th Congress

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.


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.


2001 The Federalist Society