Constitutional Law I
Fall 1994
Professor Paul Salamanca
Final Exam: 3 hours
General Instructions
Please read these instructions before you begin. Please answer the following questions in the most organized, thoughtful and coherent manner possible. I strongly rec6mmend that you take time to organize your thoughts and plan your response before you begin writing. If you find that you have to make any assumptions of law or fact in working your way through a problem, please state what those assumptions are. You are allowed to have with you during the exam a clean copy of the Constitution and whatever personal notes you can fit on one side of an 8-1/2" x 11" piece of paper. You are allowed to use as many blue books as you like, but please write on only one side of the paper. Please write legibly. Also, please ignore any issues of standing presented in these questions. Good luck!
I
(40 points)
An appropriations act duly enacted by Congress, Public Law 103-501, contains the following provision:
SECTION 1202. If the President should decide to approve this Act as law, the President is hereby empowered to delete by specification any portion of this Act as he or she deems proper, noting with exactness the deleted text in his or her statement to Congress approving this Act as law.
The President signs the bill into law, deleting a number of appropriations, including provisions for improvements at a military base in Nevada, for expanded services at certain federally-funded day care centers, and for an addition to an art museum in San Antonio, Texas. In his statement accompanying his approval of the bill, the President specifies the provisions he has deleted. He also explains that he decided to do so "because the time has come to end pork barrel legislation." After P.L. 103-501 is returned to Congress, the House and Senate attempt to override the President's vetoes, but fail to muster the necessary two-thirds vote. Sister Mary Ignatius, who runs a series of affected day care centers in California, and Emiho Anastasio, chairman of the board of trustees of the art museum, bring suit in United States District Court for the District of Columbia challenging the constitutionality of the "line-item veto" provision of P.L. 103-501 (Section 1202, excerpted above). Specifically, they argue that the provision is an unconstitutional delegation of legislative power to the President, and that the granting of a line-item veto to the President violates the "spirit" (so say Ignatius and AnaStasio) of LN. S. v. Chadha, that there is only one constitutional way for Congress to make law. In response, the government argues that the issue is a nonjusticiable question that ought to be left to the political process, or, in the alternative, that the law does not violate the Constitution. Disagreeing, the district court strikes down the section in question. The circuit court affirms, and the Supreme Court grants cert. How would the Court likely rule on the issues presented? Please review carefully the relevant provisions of the Constitution before answering.
II
(35 points)
In an effort to restore its sagging infrastructure (e.g., highways and bridges) and lower the unemployment rate of blue collar workers in the state, the legislature of Saint Marie enacts a law pursuant to which a number of long~deferred maintenance and repair projects involving state highways and bridges will be contracted out by the state Department of Public Works to private contractors. The Act provides that all such work is to be performed solely by companies whose employees are 50% or more residents of the state. The foreword to the Act contains the following three legislative findings:
1. That unemployment has become a serious social ill in Saint Marie, particularly with respect to skilled and unskilled blue collar workers;
2. That the presence of non-residents of Saint Marie in the state workforce, who compete with residents for a limited number of jobs, exacerbates this unemployment problem and constitutes a peculiar source of this evil; and
3. That state residents have a greater interest in the proper maintenance and repair of state highways, and can find their way from highway to highway more easily than non-residents.
After the Act is signed into law by the governor, the Commissioner of public Works requests bids from contractors for the various maintenance and repair projects contemplated by the Act. Before any contracts can be awarded, however, Yellow Steel, Inc., a manufacturer and retailer of tractors and other construction equipment, brings an action in United States District Court for the District of Saint Marie challenging the validity of the law. As part of its complaint, Yellow Steel points out that it and the state entered into a ten-year contract only five years before, pursuant to which the state undertook to purchase all the heavy equipment it needed for the construction, repair and maintenance of its highways and bridges, including spare and replacement parts, solely from Yellow Steel, in exchange for which Yellow Steel offered the state a one-third discount. In addition, a construction trades union, United Builders, Local 116, many of whose members reside in Cineplex, a state adjacent to Saint Marie, brings an action against the same law, challenging the provision requiring contractors to employ at least 50% Saint Marie residents. How will the district court likely rule on the merits of the two cases Yellow Steel, Inc., et al. v. Commissioner of Public Works and United Builders, Local 116 v. Commissioner of Public Works?
III
(25 points)
In an article recently published in The Journal of Law & Politics, Steven W. Hawkins notes that:
Justice White's concern about the apparent usefulness of the legislative veto [as expressed in his dissent in L N. S. v. Chadha) is further supported by developments subsequent to the ban on the legislative veto: in part, the process has gone underground, which makes the legislative process less like what the Framers envisioned. The law-making process is no longer being slightly twisted, but rather is being ignored entirely.
Citing Political Dynamics of Constitutional Low, a 1992 treatise by Louis Fisher and Neal E. Devins, Hawkins goes on to note that:
Although Justice White called the decision the death knell for the legislative veto, the procedure, despite its unconstitutionality, has had great enduring power, both in underground procedures, and in explicit legislative vetoes as well...
Hawkins then quotes Fisher and Devins:
The decision forced Congress to rewrite a number of statutes containing the forbidden legislative veto, but this form of congressional control survives as a practical accommodation between executive agencies and congressional committees. Approximately two hundred new legislative vetoes have been enacted since Chadha. Clearly in this area the "last word" in constitutional law has not been a court decision but rather the agreements worked out between Congress and the executive branch.
Hawkins continues:
Perhaps the greatest danger of the official death of the legislative veto is that "a number of committee vetoes were driven underground, relying on informal, nonstatutory understandings" [quoting Fisher and Devins].
What does the state of affairs described by Hawkins, Fisher and Devins suggest about the wisdom of the Supreme Court's decision in LN. S. v. Chadiza? Should that be relevant to the Court's decision-making process? (You will recall that in L N. S. v Chadha the Court struck down a law pursuant to which either House of Congress could veto the decision of the Attorney General to suspend the deportation of certain aliens, on the grounds that it violated the constitutionally established procedure for the enactment of laws.)