Separation of powers: presentment, the legislative veto, the line-item veto, executive power, war powers, and Speech or Debate

Black-letter propositions

1. 01

   Every bill that has passed the House and the Senate must, before it becomes a law, be presented to the President, who either signs it or returns it with objections to the house in which it originated.

2. 02

   If two thirds of each house pass the bill again after reconsideration, it becomes law over the veto, and the votes must be determined by yeas and nays.

3. 03

   If the President does not return a bill within ten days (Sundays excepted) after it is presented, it becomes law as if signed, unless Congress by adjournment prevents its return, in which case it does not become law.

4. 04

   Every order, resolution or vote to which the concurrence of both houses is necessary, except on a question of adjournment, must also be presented to the President.

5. 05

   A one-house legislative veto of an executive decision is invalid, because it is an exercise of legislative power that does not satisfy the bicameralism and presentment requirements of Article I (INS v. Chadha).

6. 06

   The Line Item Veto Act's cancellation procedure, under which the President canceled parts of statutes after signing them, violates the Presentment Clause, because the Constitution gives the President no power to amend or repeal a law (Clinton v. City of New York).

7. 07

   The President's seizure of private steel mills, ordered without statutory authority, was invalid, because the lawmaking power is vested in Congress alone and could not be implied from the President's Article II powers or from his role as Commander in Chief (Youngstown).

8. 08

   Congress has the power to declare war, raise and support armies, and provide and maintain a navy, while the President is the Commander in Chief of the armed forces.

9. 09

   Under the War Powers Resolution, in the absence of a declaration of war the President must report to Congress within 48 hours when forces are introduced into hostilities or into a foreign nation's territory equipped for combat.

10. 10

    Within sixty calendar days after the report is submitted or required to be submitted, the President must terminate the use of forces unless Congress has declared war or specifically authorized the use, extended the period by law, or is physically unable to meet because of an armed attack.

11. 11

    Senators and Representatives may not be questioned in any other place for any speech or debate in either House, and the clause protects legislative acts and the motivation for them, but not all conduct related to the legislative process.

12. 12

    A member of Congress may be prosecuted for bribery when the prosecution does not require inquiry into legislative acts or their motivation (United States v. Brewster).

Use this attack sequence under time

Common wrong turns

• A one-house veto can be invalid even though the executive agrees with the result, because the defect is in the lawmaking process.
• A President may not cure a lack of statutory authority by pointing to the Commander in Chief power over domestic property.
• The Speech or Debate Clause protects legislative acts, not every act by a legislator, and it does not bar a bribery prosecution that needs no inquiry into legislative acts.

Worked example

A statute lets either house of Congress, by resolution, overturn a decision by an agency to grant a waiver to a company. The agency grants a waiver, and the House passes a resolution rejecting it.

Practice this topic

Presentment and the legislative veto

Article I, section 7 requires that every bill passed by the House and the Senate be presented to the President before it becomes law. If the President does not approve, the bill goes back with objections to the house of origin, and if two thirds of that house and then two thirds of the other house pass it, it becomes law. The President's ten-day period (Sundays excepted) and the rule for adjournment appear in the same clause, and the section also requires that every order, resolution or vote needing the concurrence of both houses, except on adjournment, be presented to the President.

In INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court held that a one-house legislative veto of the Attorney General's decision to suspend a deportation was invalid, because it was an exercise of legislative power subject to the bicameralism and presentment requirements of Article I. In Clinton v. City of New York, 524 U.S. 417 (1998), the Court held that the Line Item Veto Act's cancellation procedures violate the Presentment Clause, because the Act empowered the President to amend or repeal statutes after they became law, and there is no constitutional authorization for the President to do that.

Executive power and war powers

In Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952), the Supreme Court held that the President's Executive Order seizing steel mills was not authorized by the Constitution or by any statute. The Court reasoned that the Order could not be sustained as an exercise of the President's military power as Commander in Chief, that it could not be implied from the aggregate of the Article II powers, and that the power exercised was the lawmaking power which the Constitution vests in Congress alone.

Article I, section 8 gives Congress the power to declare war, raise and support armies, and provide and maintain a navy. Under 50 U.S.C. section 1543(a), when forces are introduced without a declaration of war into hostilities, or into foreign territory equipped for combat, the President must report within 48 hours, and under section 1544(b) the President must terminate the use of forces within sixty calendar days after the report is submitted or required unless Congress has declared war or authorized the use, extended the period by law, or is physically unable to meet because of an armed attack.

The Speech or Debate Clause

Article I, section 6 provides that for any speech or debate in either House, Senators and Representatives shall not be questioned in any other place. In United States v. Brewster, 408 U.S. 501 (1972), the Supreme Court held that the clause protects members from inquiry into legislative acts or the motivation for performance of such acts, but it does not protect all conduct relating to the legislative process.

Because prosecution of the bribery charges in Brewster did not require inquiry into legislative acts or motivation, the Court held that the Speech or Debate Clause did not require dismissal of the indictment.

Frequently asked questions