Congress vs. the President: Legislative Power

The constitutional limits of each branch of the government are unclear because of the ambiguous roles of the three branches. Power cannot be delegated by the legislative in an unwarranted fashion. Certain powers pertaining to profits, discrimination and public interest can be delegated to administrative or executive bodies if the congress supplies safeguards and guidelines. Agencies have the discretion to make rules under the APA (1976) in order to guarantee fairness [pg97]. Although the vague wording of delegation is criticized because it’s hard to gauge legislative intent, the courts acknowledge that it is unavoidable. Locke argues that power must be delegated because Congress cannot always be in session. In 1810, it was the role of Congress to bring into effect a policy which they did through delegation of the treaty renewal to the president [pg 99]. Commissions are favored: a panel of people will better be able to carry out safeguards than one supervisor. The legislative was stopped twice from delegating duties to minimize competition to the National Industry Recovery Act by the judiciary [pg102]. 

The congress believes in a system of sub-delegation as it helps maintain a system of responsibility. International affairs is an extra-constitutional responsibility of the President. The case involving Curtiss-Wright Corp helps clarify another area of ambiguity of separation of powers [pg107]. Both Clinton and Bush felt that it is difficult to distinguish between domestic and international affairs due to an increase in foreign trade. Delegation and international trade merged when industries and labor unions appealed to congress for protection from foreign competition. They took a ‘fast track’ route and made deals with the executive, finally to be reviewed by the Congress.

Non-statutory helps get guidance through previous meetings, reports or hearings. They offer flexibility yet have regulations. The Department of Defence can allocate their funds however they like but the nonstatutory controls force them to appeal to the Congress when there is an inter-departmental transfer of funds-they need to be reprogrammed into higher priority items [pg113]. Any regulation that doesn’t fit the original goal of delegation, even if it is ‘out of harmony’ it is null.

A president cannot make a proclamation without statuary backing. In 1783, President Washington warned citizens to avoid the war. Gideon Henfield was acquitted because there was no statutory backing to this claim [pg117]. Another area of ambiguity is the difference between a proclamation and an executive order. An executive order is only a source of law when it is derived from the power vested in the president by the constitution-for example, the Steel Seizure Case of 1952 [pg123]. The Iran-Contra hearings exposed several unpublished documents but the National Security Decision Directors argue that policy-making by the executive should be free from congressional, judicial and public scrutiny.

Agency action and judicial review are constantly evolving their controls to suit the ambiguous nature of the operation of powers.

Sources: Constitutional Conflicts Between Congress and the President - Louis Fisher