Immigration and Naturalization Service v. Chadha

In 1983, the Supreme Court declared the legislative veto unconstitutional, forever kneecapping Congress’ ability to check the executive branch. Now you have to learn about bicameralism and presentment. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Alli Rodgers. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  We'll hear arguments next in Immigration and Naturalization Service against Chadha under consolidated cases.

• 0:11Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this week's episode of Five to Four, Peter, Rhiannon, and Michael are talking about INS v. Chadha, a 1983 case that revolved around the potential deportation of a man from Kenya who had been in the United States on a student visa. The Immigration and Naturalization Service had decided not to deport Chadha, but the House of Representatives stepped in and used legislative veto to overrule the executive branch. In a 7-2 decision, the Supreme Court ruled in favor of Chadha, who was able to stay in the United States. But the court did not stop there. The majority also ruled that the legislative veto itself was unconstitutional, forever weakening the legislative branch and expanding the power of the executive branch.

• 0:56Speaker 01

  This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:07Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have drained our civil liberties, like Trump's payments to January Sixers are draining the Treasury. I'm Peter. I'm here with Michael.

• 1:19Speaker 03

  Hey, everybody.

• 1:20Peter Shamshiri?

  And Rhiannon.

• 1:21Speaker 03

  Hi, hello.

• 1:24Peter Shamshiri?

  This is my favorite Trump move so far.

• 1:30Speaker 03

  Seems like we say that every week. Yeah. The guy gets more and more creative.

• 1:34Peter Shamshiri?

  No, this one is the best because, as you probably know, Donald Trump sued the IRS and then settled, and as part of the settlement, secured a slush fund that is going to be paid out to January Sixers. Who are unfairly maligned by our justice system, right?

• 1:56Michael Liroff?

  Yeah, it's like a non mutually exclusive set of pedophiles, neo confederate freaks and realtors, as I understand it.

• 2:04Peter Shamshiri?

  Yeah.

• 2:05Speaker 03

  Yeah, realtors from Texas as well.

• 2:07Michael Liroff?

  Yes.

• 2:08Speaker 03

  Which is like a synonym for demon, you know?

• 2:10Michael Liroff?

  Right, I was gonna say, all awful people, top to bottom.

• 2:13Speaker 03

  Yeah.

• 2:13Peter Shamshiri?

  Yeah.

• 2:14Michael Liroff?

  He's letting everybody know, when you do January 6 to in two years, you'll get paid.

• 2:19Peter Shamshiri?

  Yeah, well, and he thinks that quid pro quo is like this very morally just thing. This is like a very consistent thing. He doesn't understand people who view quid pro quo bribes as like immoral or illegal. Like, he doesn't understand what they're talking about, right? He's like, you did me favor, I do you favor. Like, what could be purer than that, right? That's the only thing he understands.

• 2:41Speaker 03

  And what could be a better use of my power, of my position of power, than to

• 2:47Michael Liroff?

  Reward.

• 2:47Speaker 03

  Extract favors from others and give them favors in return.

• 2:52Peter Shamshiri?

  Yeah.

• 2:52Michael Liroff?

  Yeah.

• 2:52Peter Shamshiri?

  And this is extra funny because, as you may well know, a very large number of January Sixers have showed up with like sexual assault on a child or other pedophilia adjacent charges to a degree where like people have run statistical analysis.

• 3:11Michael Liroff?

  Oh, yeah.

• 3:12Peter Shamshiri?

  Being like, here's how many people were at January 6th. Here's how many people have been fully convicted of offenses against the child. And it's like statistically anomalous to a degree that cannot be explained away, right?

• 3:25Michael Liroff?

  Right.

• 3:26Speaker 03

  Not random.

• 3:27Peter Shamshiri?

  Not random, not random, something about Donald Trump, something mysterious attracts these folks. Who knows what it could be?

• 3:37Michael Liroff?

  Maybe it's his cherubic face.

• 3:39Peter Shamshiri?

  Maybe.

• 3:44Peter Shamshiri?

  All right. This week's case, Immigration and Naturalization Service v. Chadha, a case from 1983 about a little thing called the legislative veto. In the past, Congress would often pass laws delegating power to the executive branch, but then giving itself Veto power over the executive branch's decisions. So in this particular case, Congress created a law that granted the Attorney General power over deportation decisions, but then allowed either House of Congress to veto those decisions if they disagreed. This is a way to maintain the balance of power between the branches, as well as sort

• 4:28Peter Shamshiri?

  of keep a dialogue between them. But the Supreme Court, in a seven to two decision, said that this arrangement was unconstitutional. And this might sound like a bunch of nerdy procedural bullshit, and perhaps it is. But the reason we're talking about it is because this decision and the move away from the legislative veto actually created a power vacuum that Donald Trump and the conservative Supreme Court stepped into. And it's very plausible that you do not get the Trump presidency, as we are experiencing it today, without this decision.

• 5:04Michael Liroff?

  That's right.

• 5:05Speaker 03

  Yeah, I think that's absolutely right, Peter. You know, before we go into the background here and start talking about this case, want to say up top that we are drawing heavily from a forthcoming article in the Georgetown Law Journal by Josh Chaffetz, who really, really breaks down how this Supreme Court case, Chadha, from the 1980s, completely sets the stage in so many ways for how we're seeing the Trump administration moving, right? So let's talk about the facts of this case, the particular person who took this case to the Supreme Court. And we're actually not going to spend a ton of time there, because the result for that

• 5:47Speaker 03

  person was good, and it's actually everything that came afterwards and what this case implied that is bad. So Chadha, the individual here, is a man who was set for deportation from the United States, an immigrant, was facing deportation, and the INS actually decided not to deport Chadha. But all of the sudden, provisions of the immigration statutes here allowed Congress to veto some of these deportation decisions, and Congress actually vetoed that decision not to deport Chadha, and Chadha was facing deportation again.

• 6:27Speaker 03

  That's how this case comes up to the Supreme Court and the Supreme Court gets rid of legislative vetoes. Chadha gets to stay in the United States. Great for him, but what we're talking about here is the sort of restructuring of checks and balances that the Supreme Court made in this decision. So let's talk a little bit about the history of legislative vetoes. What are legislative vetoes? How did they come to be? And how historically they've been used by Congress in this relationship of checks and balances between Congress and the executive branch? So a legislative veto historically was really like a major tool in the legislative toolbox to check the executive branch's power.

• 7:11Speaker 03

  It's a tool that basically allows Congress a veto to check executive action. If the executive branch takes action or an independent agency takes action, Congress essentially has this veto. And a legislative veto requires that Congress, you know, they could approve, they can give a thumbs up to executive action, or they can disapprove. They can say, no, you're not allowed to do that. A legislative veto is created in statutes. So Congress passes a law and it would include details of the legislative veto within that law with regard to like relevant executive actions or agency actions that Congress could exercise the legislative veto for and the process by which Congress could enact the

• 7:56Speaker 03

  legislative veto. Meaning sometimes in a certain law, the legislative veto would be defined as something that a congressional committee could do, or it could be all the way to requiring that both houses of Congress agree to enact a legislative veto about a different executive action. I'm going to give an example here with the first legislative veto that was ever enacted. So as part of the Legislative Branch Appropriations Act back in 1933, Congress passed a law called the Economy Act. And this law authorized the president at the time, Herbert Hoover, to use executive orders to basically like transfer agency functions to other

• 8:37Speaker 03

  Federal agencies or transfer executive actions or functions to another executive department. Basically, like this was a huge delegation of power to the president in an effort to balance the federal budget, right, squeeze the federal government's spending. And so all of the sudden President Hoover had the power to like consolidate whole agencies, right, like make the decision about like laying people off and shrinking this agency over here, putting agencies together. So Congress knew that that was a huge delegation of power that they had just handed to the executive, but they wanted some kind of check on this. So they basically include a legislative veto provision in the Economy Act.

• 9:19Speaker 03

  And it required, in this case, that Hoover submitted any reorganization plans to Congress. And then Congress would have 60 days to pass a bicameral, both houses resolution to disapprove of that plan if they didn't want that to go forward. Right, so another example is a legislative veto that was enacted in the Reorganization Act during FDR's presidency, right? We know that during the New Deal, there was a ton of reorganization of the federal government happening. And even with a Congress that was like largely in support of FDR during the New Deal, they still had this check, they still retained the legislative veto in a lot of ways to maintain

• 10:02Speaker 03

  that check on massive executive action and massive executive power. And it's not in just like the reorganization context that legislative vetoes exist. That legislative vetoes exist. Legislative vetoes also have been enacted over the course of decades within other statutes that apply to like all sorts of executive action or federal agency action. There was a 1944 law passed that authorized the Navy to take on certain construction projects. That included a legislative veto provision, right? The Naval Affairs Committees of both Houses of Congress could veto the Navy's proposed construction plans. In 1974, the Federal Election Campaign Act gave each chamber of Congress 30 days.

• 10:47Speaker 03

  To veto certain changes to FEC rules about reporting requirements for elected candidates. In 1975, the Energy Policy and Conservation Act had more than a dozen legislative veto provisions. You know, gave Congress the the power to veto a ton of what they just defined broadly as like energy actions taken by the president, taken by the Secretary of Transportation, other federal agencies. So, you know, this is a really important provision and historically sort of not ubiquitous, but like around a lot, right? A sort of known and used and often incorporated check on executive action that Congress was enacting. So really importantly, as we're moving like through

• 11:30Speaker 03

  history and the use of legislative vetoes, legislative vetoes were included in a bunch of post Watergate laws to reform and check the power of the president after the Nixon administration. Right? Cuckoo bananas, chaos, the president really fucking up. And so Congress is passing all of these laws afterwards. The War Powers Act, the Empoundment Control Act, many others that included legislative vetoes to really put again, ensure a structure in which there could be congressional oversight over executive action, even when Congress is delegating authority to the executive branch.

• 12:09Michael Liroff?

  So, you know, if you think about this timeline, what you're looking at is like the legislative veto has been a huge part of the response to both the Great Depression and Watergate, right?

• 12:21Speaker 03

  Yeah.

• 12:22Michael Liroff?

  Both in terms of reorganizing the entire federal government so that it can handle big challenges like, you know, an all-consuming depression or handling big challenges like a terribly corrupt executive, the the sort of bargains that were struck, the balance that was achieved involved delegating some authority to the president, but retaining some authority in the legislative branch via the legislative veto. So this is just a huge part of the 20th century restructuring of the federal government.

• 12:55Speaker 03

  Yeah, exactly.

• 12:56Peter Shamshiri?

  I think that's a good. Jumping off place to expound on like, why we think this is a good thing, right? Because this might seem relatively abstract and procedural. But the idea here broadly is that very often, Congress will pass laws where they delegate power to the executive branch so that the executive branch can enforce the law. So, you know, they passed the Clean Water Act, for example, and then in that law, they granted the EPA, an executive agency, the power to enforce it. They passed the Civil Rights Act, which has anti-discrimination provisions, and they grant the EEOC the power to enforce those. This is critical to a properly functioning government, right? But it also creates a problem, which is that sometimes the executive branch agencies

• 13:41Peter Shamshiri?

  might wield this power in a way that Congress does not like or did not intend. And so Congress builds in this veto power so that if that happens, they can step in and object, right? And say, no, that's not what we meant.

• 13:53Speaker 03

  Yeah.

• 13:54Peter Shamshiri?

  But it's challenged here as unconstitutional. And the majority strikes down this idea of the legislative veto. They say that it's unconstitutional because it violates the presentment clause. That clause says that for a law to be passed, it must be approved by each House of Congress and then signed by the president. So they're saying, look, in this arrangement, in this particular law, you're giving either a House of Congress the ability to veto something, and then the president doesn't sign it, so that violates the rule for passing a law, right? The problem with this argument is that that's the rule for passing a law, but this isn't passing a law, right? They're just vetoing the executive branch's decision.

• 14:39Speaker 03

  And it's like a procedure within a law.

• 14:41Michael Liroff?

  Right.

• 14:42Peter Shamshiri?

  It's a procedure for enforcing the law, right?

• 14:46Michael Liroff?

  Right.

• 14:46Peter Shamshiri?

  But the court is basically saying, no, you're just trying to pass another law, right?

• 14:50Michael Liroff?

  Right.

• 14:51Peter Shamshiri?

  And so you must follow the formal process. You can't just have like, one House vote on a veto. So I think this fundamentally just doesn't make sense, right? Congress has the power to pass and enforce these laws. They delegate some of that power to the executive branch, but they aren't allowed to retain some of the power for themselves?

• 15:13Speaker 03

  Yeah, it's like requiring that like that delegation of authority to the executive branch like be absolute, like you're just saying like,

• 15:20Peter Shamshiri?

  Right.

• 15:20Speaker 03

  whatever we delegate, they can do it and we have no say afterwards.

• 15:24Peter Shamshiri?

  Right. It doesn't make sense to me that here, for example, they delegate to the attorney general this decision about deportation.

• 15:31Michael Liroff?

  Right.

• 15:32Peter Shamshiri?

  And the attorney general can make that decision without it going through Congress. But if Congress disagrees, they need to go through the whole process of passing a law? It it just doesn't make sense.

• 15:42Michael Liroff?

  Right.

• 15:42Peter Shamshiri?

  I don't get it.

• 15:43Michael Liroff?

  Yeah, talk about this a little more in depth when we get to the dissent. But there's something so obviously just wrong about this logic that doesn't scan. When you consider like the legislative veto in most instances is dealing with agencies that have authority delegated to them from Congress, who are passing things with the force of law, like regulations.

• 16:06Speaker 03

  Yeah.

• 16:06Michael Liroff?

  Or deportation decisions, which the people being deported will tell you that shit has the force of law.

• 16:11Speaker 03

  Yeah, this is fully enforceable.

• 16:13Michael Liroff?

  Without satisfying bicameralism and presentment, right? It's it's just the executive is making a call through the rulemaking process, right? And then you have something with the force of law behind it, right? And the bicameralism and presentment is satisfied by the statute that created the agency.

• 16:31Peter Shamshiri?

  Right.

• 16:32Michael Liroff?

  Which is also the statute that creates the legislative veto in many cases.

• 16:36Speaker 03

  Yeah.

• 16:36Michael Liroff?

  So like, what's the problem here? Like, why is this?

• 16:39Speaker 03

  It's already been approved by both houses of Congress.

• 16:42Michael Liroff?

  Right. Yeah, it doesn't make it doesn't make any sense. It just doesn't scan like at all.

• 16:48Peter Shamshiri?

  The majority says that this particular law, this particular type of legislative veto, where only one house needs to oppose it for it to be a veto, right? Both houses maintain their veto power. They see that this violates bicameralism because laws need to go through both houses. But I actually think that gets it back. Because both houses need to approve of how the law is being executed. So if even one disagrees, then the Attorney General can't execute the law like that. Right? I think that that makes sense. I think that's perfectly consistent with the bicameralism principle. And in fact, it comes out of it. And the court also holds that the legislative vetoes violate the presentment part of the presentment clause.

• 17:31Peter Shamshiri?

  Bicameralism is the idea that you have like both houses of Congress and both need to approve. And then presentment is the idea that it needs to be presented to the president for his signature. Right?

• 17:40Speaker 03

  Yeah.

• 17:42Peter Shamshiri?

  So they're like, well, look, this legislative veto wasn't presented to the president for his approval, like laws need to be. Again, that doesn't make sense for all the reasons we've stated, but

• 17:52Speaker 03

  Yeah.

• 17:52Peter Shamshiri?

  it also leads to absurd situations. We're going to talk about where this has led us in the Trump era. But one example is from his first term. He declared a national emergency about the border. Right? To like redirect funds for the border wall. Under the National Emergencies Act, Congress used to have a legislative veto.

• 18:13Speaker 03

  Yep.

• 18:13Peter Shamshiri?

  So the president could declare an emergency, but Congress could just disagree and be like, no, we're ending this emergency. But after Chadha, the only way for Congress to end an emergency is to pass a resolution in both houses and then get the president's signature. So Trump declares an emergency. Congress passes a resolution blocking the emergency and then Trump just vetoes it. Right?

• 18:38Speaker 03

  Right.

• 18:39Peter Shamshiri?

  So, and to override a veto, you need two thirds of Congress. So Congress delegated its own power to the president. But now after Chadha, the president can just veto their decision. And now you need two thirds of Congress to enforce their own power under the Constitution. Right?

• 18:59Speaker 03

  Right.

• 18:59Peter Shamshiri?

  So it's Congress's power, but thanks to this ruling, the executive branch can wield it basically unfettered and Congress can't intervene. Again, just doesn't make sense. Just doesn't click.

• 19:09Speaker 03

  Very, very upside down, very illogical. I don't really understand why the majority lands where it does. And the like scope of the decision too, like the holding, the Supreme Court decision could have just been about the legislative veto in this law, in this

• 19:23Peter Shamshiri?

  Yeah.

• 19:24Speaker 03

  in this delegation of authority to the Attorney General, to the INS. Right? But it didn't. It disapproved of The legislative veto as a mechanism in general.

• 19:34Michael Liroff?

  Yeah, they're just like, we just don't like the vibes of the legislative veto.

• 19:37Speaker 03

  Yeah.

• 19:38Michael Liroff?

  Yeah.

• 19:38Peter Shamshiri?

  And we'll talk about this a little bit later, but a big part of our government dysfunction right now is sort of the inability of these branches to communicate and check each other.

• 19:49Michael Liroff?

  Right.

• 19:50Peter Shamshiri?

  Right. And this was like, one of the main ways in which it happened.

• 19:53Michael Liroff?

  Right.

• 19:53Peter Shamshiri?

  And gave Congress an avenue for delegating power to the executive branch without having to worry about what the executive branch might do with that power one's delegated. But this has sort of created a world where Congress has, okay, we've delegated you power under this law, please don't abuse it. And now you get Donald Trump, right?

• 20:15Speaker 03

  Yeah.

• 20:16Peter Shamshiri?

  And that's, that's the end of it. Now, now we've created a situation where Donald Trump has this power. And if Congress tries to take that power away, he just vetoes them.

• 20:26Michael Liroff?

  Right.

• 20:26Peter Shamshiri?

  It's absurd.

• 20:27Michael Liroff?

  Yeah.

• 20:27Speaker 03

  There's a short concurrence by Justice Powell here. Powell agreeing with the holding as to the legislative veto being unconstitutional in this instance. Powell says, hey, legislative vetoes, they're a serious matter. We shouldn't get rid of all of them. That's not the primary question in this case. But narrowly, I'm looking at this, and I think this legislative veto is unconstitutional. But the reasoning, also illogical, doesn't hit. He's saying that Congress is retaining adjudicative authority by stepping on the authority of the Attorney General in deportation decisions, rather than Congress just having legislative authority. But that also doesn't make sense.

• 21:12Speaker 03

  So he's saying, you know, this is like a violation of separation of powers. Congress can't do a function that is adjudicative. But that's like, the judiciary. He's talking about a different branch of government. But this isn't power that was delegated to the judiciary. Congress isn't making an adjudicative decision because it's power that was delegated to the executive. It's the Attorney General doing this.

• 21:36Peter Shamshiri?

  It's Congress's power that they gave to the Attorney General.

• 21:39Speaker 03

  Exactly.

• 21:39Peter Shamshiri?

  Either they had it, or they don't. I don't.

• 21:41Michael Liroff?

  Right.

• 21:42Peter Shamshiri?

  Whatever.

• 21:42Michael Liroff?

  Doesn't, doesn't.

• 21:44Speaker 03

  Really silly. Really silly.

• 21:46Peter Shamshiri?

  I don't, I just don't get it. I don't understand what's going on with the Supreme Court justices in 1983, but it seems like they don't understand anything about separation of powers.

• 21:54Speaker 03

  They don't understand anything about congressional function, executive function, or judicial function.

• 22:00Peter Shamshiri?

  A 10th grade civics class would blow their fucking minds here.

• 22:03Michael Liroff?

  Yeah.

• 22:21Michael Liroff?

  So Justice White has a lengthy dissent where it's like, oh, so they weren't all idiots back then, because he like lays it out very well, like.

• 22:29Peter Shamshiri?

  I did feel like I was losing my mind until I read the dissent. I was like, is there something about our government that I don't understand?

• 22:36Speaker 03

  Finally, it's like, OK, somebody, somebody does get it.

• 22:38Peter Shamshiri?

  Yeah.

• 22:39Michael Liroff?

  And he hits a lot of the points that that we have hit already. He talks about like, look, this is nonsense. You know, the agencies wield legislative power without satisfying bicameralism and presentment on an individual basis, like per individual deportation decision in this case, or per individual, you know, promulgation of regulation and other agency actions. He's like, that's making law without satisfying bicameralism and presentment. And he says, but it's satisfied because it's satisfied in the initial statute. And he's like, that's what's happening with the legislative veto, too. This doesn't make any sense. He also, I think, gets into what Peter was talking about earlier, and I think he does

• 23:22Michael Liroff?

  it really well, where he says sort of the spirit of bicameralism and presentment is satisfied. He's like, the whole idea behind that is you can't depart from the status quo without both branches of government and the executive branch in agreement. And so like, in this specific instance here, you know, the executive branch is in agreement because the attorney general makes a determination not to deport someone, right?

• 23:48Speaker 03

  Yeah.

• 23:48Michael Liroff?

  And then the question is, Do both houses agree with them? And if even one doesn't, well, then, you know, it fails, which is like very analogous to a bill, right? Like, a bill needs to be passed both houses. So he's like, look, in this case, if you think of the Attorney General's determination not to deport someone as proposing a bill, you'd need a majority in both houses of Congress for that bill to become law, which means the contra point here is if even one house vetoes that decision, then the law doesn't pass, right? So this is essentially, this is for all intents and purposes, this is functionally bicameralism in presentment, in action.

• 24:30Speaker 03

  Yeah. And to the status quo point where he's saying, like, the status quo can't be changed without bicameralism and presentment. The status quo here is the law that was passed with bicameralism and presentment that included the legislative veto.

• 24:46Michael Liroff?

  Right.

• 24:46Peter Shamshiri?

  Yeah, right.

• 24:47Speaker 03

  That is the status quo.

• 24:49Peter Shamshiri?

  I feel like I'm talking in circles every time I try to explain what's going on in this case.

• 24:53Speaker 03

  We're just repeating ourselves.

• 24:54Peter Shamshiri?

  It's just bizarre to me. I, I just don't get it fundamentally. It doesn't actually click. They're basically just saying at the end of the day that the Attorney General can make a decision without bicameralism and presentment, but if Congress makes a decision, it has to be with bicameralism and presentment, even if it's the same decision. And I just don't get, I just don't get it. It doesn't fucking make sense.

• 25:17Michael Liroff?

  Even if the Attorney General only has that power because Congress delegated it to him from their own powers.

• 25:23Peter Shamshiri?

  And you know what? Fuck this case for making us say bicameralism and presentment over and over again.

• 25:28Michael Liroff?

  It's so fucking annoying.

• 25:29Peter Shamshiri?

  It's melting my brain.

• 25:30Michael Liroff?

  Powell makes the point that like, you know, because of this weird sort of inversion of bicameralism and presentment, the, the one house veto is actually more constitutionally sound. And he's sort of like, we should be taking all these legislative vetoes one at a time. Like, they, they present different challenges. Maybe one that's like a committee.

• 25:49Peter Shamshiri?

  Maybe the committee one is unconstitutional.

• 25:51Michael Liroff?

  Right. And maybe the two-house one is unconstitutional. Maybe it's only one house vetoes, but we should consider that.

• 25:58Peter Shamshiri?

  All wrong, by the way. They're, they're all constitutional.

• 26:01Michael Liroff?

  Yeah. Yeah, no, I actually agree. But but his point, I think, which is right, is like, we should be deciding these on on their own, individually, statute by statute. He also has a nice little like point that like, really, what's going on here is policy analysis. He quotes the Court of Appeals, which had struck down the legislative veto as unconstitutional. He says, "The Court of Appeals said inaction by Congress could equally imply endorsement, acquiescence, passivity, indecision, or indifference." And he's like, "Well, you know, that's more properly directed at the wisdom of the legislative veto than its constitutionality." Like, who cares? Like, that's not...

• 26:41Peter Shamshiri?

  Right.

• 26:42Michael Liroff?

  Like, that only matters if we're like reviewing it. Like, but why would we be reviewing it? Like, you know, like, it...

• 26:48Peter Shamshiri?

  Yeah.

• 26:49Michael Liroff?

  Congress made the decision to do this, to to to give themselves this opportunity. As long as it's constitutional, who cares what it signals? Like, that doesn't it doesn't matter. Right? Like, you're just you just don't like it. And I think final point he makes that that I liked, that gets to the scope of this decision and why, like, even though it sort of feels maybe in the jurisprudential weeds here for us, why this still does, I think, track well as a 5-4 case for us to discuss. He says, "Today's decision strikes down in one fell swoop provisions in more laws enacted by Congress than the court has cumulatively invalidated in its history." Like, this was a massive, massive case.

• 27:31Peter Shamshiri?

  Nothing for the Roberts Court, by the way. They...

• 27:34Michael Liroff?

  No, not at all. But it's not just that, like, Congress, that this said, Congress, you know, has to delegate its power all or nothing, essentially. It's that Congress already has, right? It says, "Sorry, too late, no backsies. You gave this authority to the executive, and now if you want it back, you either get to have to get the president's signature on taking that power back or override his veto."

• 27:59Peter Shamshiri?

  Right.

• 27:59Michael Liroff?

  So, good luck. Just a massive second restructuring of the federal government to shift a ton of power into the executive branch all at once.

• 28:09Speaker 03

  And this time by the Supreme Court.

• 28:10Peter Shamshiri?

  Yeah. There's also a reenquist dissent, where he makes a pretty narrow point about what's called severability. We're already talking about bicameralism and presentment over and over again. So I don't really feel like explaining severability right now. So we're just gonna skip past this. It's not that substantively important.

• 28:29Michael Liroff?

  Oh, actually, I want to-

• 28:30Peter Shamshiri?

  You wanna talk about severability?

• 28:31Michael Liroff?

  I do.

• 28:32Peter Shamshiri?

  Unbelievable.

• 28:32Speaker 03

  I was gonna talk about it, too.

• 28:34Peter Shamshiri?

  You guys all wanna talk about severability, you fucking nerds.

• 28:39Michael Liroff?

  Severability is just the idea that like you can strike down or invalidate one provision of a law while leaving the rest of it standing. And Renquist's point is like, look, Congress can delegate the authority to the Attorney General to suspend deportations at his discretion. They haven't. And so by striking this provision down, we are essentially creating a law that Congress has not approved, and we shouldn't. We should just strike the entire thing. Like, the Attorney General should not retain this power at all. And I just, I wanted to highlight that because it actually, it kinda matters for some of the stuff we're gonna talk about in a minute.

• 29:17Peter Shamshiri?

  Okay, now that we've explained severability, let's talk a little bit more about why this stuff matters beyond just this sort of like abstract notion of congressional power vis a vis executive power, et cetera. And I think the simplest way to do this, borrowing again from Josh Chaffetz's work, is to give examples of things that Trump has done that are impacted very directly by the lack of a legislative veto that used to be there.

• 29:46Speaker 03

  Yeah.

• 29:47Michael Liroff?

  Yeah.

• 29:47Peter Shamshiri?

  A very simple one is tariffs. The IEPA gives the President the power to enact tariffs, and originally it contained a legislative veto. So without this case, Congress could have very quickly intervened and shut down the tariffs much more easily, right? Instead, we had to wait a year for the Supreme Court to step in and all this sort of shit, right? Because Congress was sort of powerless, and the President was abusing this power that Congress gave him.

• 30:17Michael Liroff?

  Right.

• 30:17Peter Shamshiri?

  And Congress was sort of forced to just look on helpless.

• 30:21Speaker 03

  Yeah, another major area of executive authority that has massively expanded without this legislative veto function now from Congress is in war powers, the power of the president to make war, sustain war, bomb and invade other countries and kill a bunch of people all over the world. So, you know, take, for example, in Trump's first term, Chaffetz in this piece talks about a couple of sort of war powers actions that Trump took, including the assassination of Soleimani in Iran, the dedication of military resources to support Saudi Arabia's assault on Yemen. And Congress tried to act in a couple of

• 31:02Speaker 03

  different ways, sort of following that executive action in the realm of war powers. But as we know, the War Powers Act, that law mentioned earlier, and we've talked about a bunch of times on the podcast, passed in response to the Nixon administration, particularly the revelation of bombing Cambodia in secret, the widespread disapproval of the handling of the Vietnam War. War Powers Resolution is passed to sort of check the president's war powers. But we all know, the War Powers Resolution, the War Powers Act, is largely ineffective, right? It failed to address a lot of things, like the evolution of what military action even is, the definition of the commitment of armed forces. Is it boots

• 31:47Speaker 03

  on the ground? Is it something else, right? And so we know that that legislation is ineffective and insufficient to actually check the president's powers. But who knows what Congress would be able to do had it had a legislative veto, which did exist in the War Powers Resolution before this case invalidated that, right? And then, of course, in the second Trump administration, we've seen even more expansion, even more use of war powers, military action that Trump is really just largely getting away with without a sufficient and powerful War Powers Resolution and without a legislative veto function inside those statutes.

• 32:31Speaker 03

  So we see, obviously, the bombing of Iran, the invasion and kidnapping of Venezuela's president, the threat to invade Greenland. I mean, on and on and on, right? And so Congress is really left quite hamstrung, not just, right? We don't want to set aside the War Powers Resolution is like some great thing that would be really effective if if Congress were finally able to pass a War Powers Resolution as to Trump right now. But very hamstrung in this relationship of checks and balances with the executive branch, with the president particularly, without a legislative veto anywhere.

• 33:10Michael Liroff?

  Right. You know, one thing that has been sort of talked about a lot in the Trump presidency has been impoundments. And if you don't know what that is, it's when the executive branch essentially declines to spend money that has been appropriated by Congress, essentially impounding funds. And there is a law about this called the Impoundment Control Act, and it's a nice sort of counterfactual because the original Impoundment Control Act for what I call rescissions, when the executive branch doesn't want to spend money, required essentially by camerism and presentment. The executive branch had to present a rescission proposal, and both houses of Congress had to agree to it. So it wasn't invalidated by Chadha.

• 33:53Michael Liroff?

  There were other parts of the law that weren't severed. And so essentially what happened was very strict substantive limits got put on the executive branch, codified into statute, absent a legislative veto. Congress, rather than giving up a bunch of authority to the executive branch, gave very narrow authority to the executive branch. Because it couldn't veto the executive branch's use of that authority, it gave it very little. And that has played out well in in the Trump administration. He has, at times, not wanted to spend money and followed the law and sent rescission proposals to Congress. And some of those have been modified and passed. Some of them have not passed.

• 34:36Michael Liroff?

  Other times, he's impounded funds, and there have been consequences.

• 34:41Michael Liroff?

  For example, he was impeached for impounding funds. He impounded funds that were meant for Ukraine and he used the withholding of those funds to extort Ukraine into ginning up an investigation into Joe Biden, who was going to be his, his competition in the coming election. And he wanted controversy around Biden. And so he tried to get Ukraine to, to do that for him via impounding funds. And he was impeached for that. Right? He's impounded funds in other instances and it has allowed other actors to say this is illegal, like very clearly, like the Government Accountability Office.

• 35:20Michael Liroff?

  It's created both political and, you know, real world repercussions and constraints on Trump.

• 35:29Speaker 03

  Yeah.

• 35:30Michael Liroff?

  Because Congress had to and was able to strike a better balance in the absence of a legislative veto. Right? A more recent example is there's been a lot of reporting around the allegations, at least, that Trump is impounding or threatening to impound funds allocated for Colorado in order to get the Colorado governor to offer clemency or commutation to Tina Peters, who was convicted of election interference, right? She was an election denier. She allowed people access to voting machines. She's shown no remorse. And Jared Polis did it. He folded. He commuted her sentence.

• 36:13Peter Shamshiri?

  I wouldn't say he folded considering what he's said since then.

• 36:16Michael Liroff?

  Oh, yeah.

• 36:16Peter Shamshiri?

  He, which is like, he's like, what are we, the thought police?

• 36:19Michael Liroff?

  I know. He's such a fucking loser.

• 36:21Peter Shamshiri?

  You can't even believe the wrong thing anymore. It's like, dude, she act, she took material actions.

• 36:27Michael Liroff?

  Right. And the first thing she said is like, yeah, and I'm going to get to the bottom of this election interference and I'm going to make sure we never use those machines again or whatever. Like she, she's, she's just, hmm, it's very upsetting.

• 36:40Speaker 03

  Redacted.

• 36:41Peter Shamshiri?

  Redacted.

• 36:42Michael Liroff?

  It's very upsetting.

• 36:42Peter Shamshiri?

  May Tina Peters reap what she sows.

• 36:47Michael Liroff?

  But again, if you know, if the reporting is accurate and there's threatened impoundment there, that is grounds for impeachment, that is grounds for, you know, saying something he did was illegal, there's the possibility of, you know, possible maybe repercussions for Trump for this action because there was a better balance struck, which I think goes to what we've been saying, what Rehnquist is saying with severability. Like, you can't just redo the bargain between Congress and the executive. You have to let them figure out how this power is shared. Like, it's, you can't just be like, sorry, this one little bit is out. And where that did happen, it has functioned much better. It hasn't fully constrained Trump.

• 37:32Michael Liroff?

  It hasn't prevented him from impounding funds, but there have been repercussions. It's been much easier to describe what he's doing as illegal. And he has at times been materially constrained.

• 37:41Peter Shamshiri?

  I think like the big picture lesson of all of this is that this decision takes away one of the most fundamental checks on executive power that we had, right? And it also creates a power vacuum. Congress would pass a law, delegate some of its authority to the executive, and if the executive branch did something they didn't like, it could act quickly and take that power away. But now it can't. So you have this dispute, this tension between the executive branch and the legislative branch. And who gets to resolve that dispute? The Supreme Court, right? The judicial branch. The Supreme Court very frequently weighs in on these issues. And a big reason for that is that there is no functional legislative veto anymore.

• 38:26Peter Shamshiri?

  So you've lost this dialogue, this form of communication between the executive and legislative branches. So you've heard us cover countless cases about the administrative state, right? The non-delegation doctrine, major questions, all that shit. All of those are about delegations of power by Congress to the executive branch.

• 38:46Peter Shamshiri?

  If the legislative veto were still in place, a lot of those issues probably would have been resolved between Congress and the executive. But instead, what's happened is that the Supreme Court has become the arbiter of that relationship. So just to give like off the dome examples, there's a very real possibility that without this case, you don't have the student loan forgiveness case, right?

• 39:08Michael Liroff?

  Right.

• 39:08Speaker 03

  Yeah.

• 39:09Michael Liroff?

  Congress might veto it.

• 39:10Peter Shamshiri?

  Yeah, because if you build a legislative veto into that into that provision, Congress is either saying, yes, you can do this or no, you can't. Right. But because Congress doesn't have that function, the Supreme Court just sort of steps into the void and they decide what Congress can do, what the executive branch can do, et cetera.

• 39:31Michael Liroff?

  For another example, like during COVID,

• 39:33Speaker 03

  Yeah.

• 39:33Michael Liroff?

  OSHA, which which regulates, you know, health and safety in the workplace, passed a rule saying, you know, employees need to be vaccinated or tested once a week for coronavirus. And the court struck that down and said that was beyond their powers. Right. That was that was not something that was delegated to them by Congress. And again, if there was a legislative veto in place, Congress could have either spoken and and determined that for themselves. Or, you know, the absence of their enacting a legislative veto would at the very least be very persuasive authority that this was not outside the powers of the executive branch.

• 40:18Michael Liroff?

  Right. It makes it much harder for the Supreme Court to justify invalidating a regulation like that.

• 40:25Speaker 03

  Yeah.

• 40:26Peter Shamshiri?

  Yeah, and I think it's worth noting that part of the concern here is not just like, oh, there was this law that had a legislative veto and now they can't use it. It's also every law moving forward no longer can use a legislative veto. Right. So if you're trying to pass a law concerning the environment, right, you're going to end up delegating authority to the executive branch and not retaining much of that authority in Congress, right, which can run into trouble when you have like Republican presidents. Right. So. It basically hampered the ability of Congress to create effective legislation proactively, right?

• 41:09Peter Shamshiri?

  Every time Congress crafts a law now, it has to be willing to dump a bunch of power in the executive branch and basically unable to easily claw it back.

• 41:19Michael Liroff?

  Right. Which, to be clear, is like what we're talking about in like the COVID example. Like, that's based on the law that OSHA said empowered them was passed long after CHADA, right? So it's not like there was a legislative veto invalidated by CHADA there, but there was maybe an opportunity for legislative veto in a different world where Congress doesn't have to choose between all or nothing in its delegations of authority.

• 41:50Peter Shamshiri?

  Right. And, you know, a lot of people are like, big picture, there's all these conversations about like, why isn't Congress doing anything, right? Well, they used to have a mechanism in a lot of cases for stepping in, and you wouldn't need both houses, right? You wouldn't need to like overcome a filibuster, for example, right? A lot of the things that hamper Congress's ability to check the executive branch are not just like constitutional mechanisms, they're the result of the Supreme Court taking away this avenue and taking away this check so that now Trump runs around unfettered.

• 42:28Peter Shamshiri?

  And as long as Republicans hold on to like roughly a majority of either house of Congress, Congress has a really hard time reeling him in.

• 42:38Speaker 03

  Vote.

• 42:40Peter Shamshiri?

  And all of this because in 1983, most of the Supreme Court justices didn't understand how laws work and how our government works. There's really nothing else to be said about it.

• 42:55Michael Liroff?

  Yeah.

• 43:00Peter Shamshiri?

  It's also, also Rehnquist doesn't join the white dissent. So it's really only one Supreme Court Justice who's like, guys, I don't think this is how the government works at all.

• 43:08Michael Liroff?

  Right.

• 43:10Peter Shamshiri?

  He just like nails it and all of the other justices are like, no.

• 43:15Michael Liroff?

  I don't know what you're talking about.

• 43:16Speaker 03

  Yeah.

• 43:17Michael Liroff?

  Fucking, you're way off base.

• 43:20Peter Shamshiri?

  Our, our hero Thurgood Marshall did not see Donald Trump coming.

• 43:25Speaker 03

  Yeah.

• 43:26Peter Shamshiri?

  It's the worst.

• 43:27Speaker 03

  Donald Trump has made me learn so many things against my will.

• 43:30Peter Shamshiri?

  It sucks, dude. Bicameralism and resentment, are you fucking kidding me?

• 43:36Michael Liroff?

  You also have to know about so many more little demons too. And it's like, yeah, like I don't want to know who Stephen Miller is. I fucking hate that guy.

• 43:42Peter Shamshiri?

  Right. Now I have to learn about his wife? Why, why, why, what's happening?

• 43:47Speaker 03

  I want none of it.

• 43:51Peter Shamshiri?

  All right, folks, next week, California v. Greenwood. Case about whether cops can look through your trash.

• 44:01Michael Liroff?

  This is a case that said, if raccoons can do it, cops don't need a warrant to do it. And that is not an exaggeration. Get excited.

• 44:11Peter Shamshiri?

  Follow us on social media at 54pod. Subscribe to our Patreon, patreon.com/54pod, all spelled out for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.

• 44:26Speaker 03

  Bye y'all.

• 44:26Michael Liroff?

  Bye, everybody.