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Thursday, April 01, 2021

FDR and the Legislative Veto

I've come across an interesting piece of esoterica. In the Lend-Lease Act of 1941, Congress inserted a legislative veto provision stating that the President's emergency authority could be terminated by a concurrent resolution after two years. The President objected to this clause on constitutional grounds and asked Attorney General Jackson to prepare an opinion saying as much. Jackson declined on the ground that he thought a legislative veto could be understood as a valid reservation of delegated power.

FDR signed the bill, but then wrote his own memo explaining why he thought that the legislative veto was unconstitutional. He gave the memo to Jackson for safe-keeping. Jackson finally disclosed the memo in a 1953 Harvard Law Review article, which you can find here. FDR's memo essentially offered up the reasoning that the Supreme Court gave in INS v. Chahda; namely, that legislative vetos violate the Presentment Clause. Jackson pointed out, though, that FDR signed many other bills with legislative vetoes and never publicly questioned their validity.

Another tidbit. Jackson's drafts of his Youngstown concurrence included some references to this FDR memo, though he later decided not to disclose that then. I want to think more about this point, as I think it may tell us something more about Jackson's view of the non-delegation doctrine.



Posted by Gerard Magliocca on April 1, 2021 at 01:37 PM | Permalink


the best topic

Posted by: the | Apr 6, 2021 3:02:51 PM

Yes. Part of what I'm interested in is the connection between this memo and the Youngstown drafts. I had never actually read the Harvard article until today.

Posted by: Gerard | Apr 1, 2021 8:08:39 PM

See Fn13 of Chadha:

"For example, after President Roosevelt signed the Lend-Lease Act of 1941, Attorney General Jackson released a memorandum explaining the President's view that the provision allowing the Act's authorization to be terminated by concurrent resolution was unconstitutional. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353 (1953)."

Justice White also mentions it in his dissent (citation of article) to show the division on the question.

Posted by: Joe | Apr 1, 2021 8:00:05 PM

Very interesting. He gave the memo to Jackson, not really for safe keeping it seems, but rather, I quote:

" I am desirous of having this done for the further reason that I should not wish my action in approving the bill which includes this invalid clause, to be used as a precedent for any future legislation comprising provisions of a similar nature"

Besides that, the article claims, that:

" It was referred to as an "official" opinion, it neither required nor prohibited any departmental official action, and bound no one officially"

End of quotation:

Yet, one may think of the following:

Judges are required to trace the intent of Congress by tracing back, history of legislation. So, suppose, that such opinion is written by one president. One judge, may rely on it, in order to better understand, the legislative intent of the lawmaker by the way.

Finally, worth mentioning, the dissenting of Justice Rehnquist. He claims that severability is valid, only if intended to be so by Congress. That is very interesting one. I quote:

"A severability clause does not, however, conclusively resolve the issue. The determination , in the end , is reached by asking "what was the intent of the lawmakers"

Here to INS v. Chadha by the way:



Posted by: El roam | Apr 1, 2021 5:12:36 PM

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