Comments on: What does “the President (and only the President)” mean? http://www.concurringopinions.com/archives/2009/01/what_does_the_p.html The Law, the Universe, and Everything Tue, 14 Feb 2012 05:18:12 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Brian Kalt http://www.concurringopinions.com/archives/2009/01/what_does_the_p.html/comment-page-1#comment-45103 Brian Kalt Sun, 18 Jan 2009 16:05:42 +0000 http://www.solove.org/archives/2009/01/what-does-the-president-and-only-the-president-mean.html#comment-45103 Sorry about that. I should have just updated instead of overwriting. To those keeping score at home, my question that Jon was answering was whether there are any examples of silent statutes being interpreted as implicitly allowing for delegation. Given the existence of 3 U.S.C. § 301, I'm guessing there are plenty of others too. Sorry about that. I should have just updated instead of overwriting.

To those keeping score at home, my question that Jon was answering was whether there are any examples of silent statutes being interpreted as implicitly allowing for delegation. Given the existence of 3 U.S.C. § 301, I’m guessing there are plenty of others too.

]]> By: Jon Weinberg http://www.concurringopinions.com/archives/2009/01/what_does_the_p.html/comment-page-1#comment-45102 Jon Weinberg Sun, 18 Jan 2009 16:02:19 +0000 http://www.solove.org/archives/2009/01/what-does-the-president-and-only-the-president-mean.html#comment-45102 Oops -- a victim of retro-editing. My last comment was an answer to a question posed in a *previous* version of yours . . . Oops — a victim of retro-editing. My last comment was an answer to a question posed in a *previous* version of yours . . .

]]> By: Jon Weinberg http://www.concurringopinions.com/archives/2009/01/what_does_the_p.html/comment-page-1#comment-45101 Jon Weinberg Sun, 18 Jan 2009 15:49:24 +0000 http://www.solove.org/archives/2009/01/what-does-the-president-and-only-the-president-mean.html#comment-45101 As to your first question, Brian, consider Knauff v. Shaughnessy, 338 US 537 (1950). I mention this case because I teach it (though this aspect isn't why). Congress authorizes the President to make rules under which it will be illegal for "any alien to . . . enter . . . the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe." The President issues an order delegating his rulemaking authority to the Secretary of State, who in turn promulgates rules giving certain authority to exclude to the Attorney General. The AG excludes Knauff. Knauff protests, among other things, that the statute unconstitutionally delegated power to the President, and Congress rejects that, noting in passing that the President could delegate his own authority to lower federal officers. But nobody takes seriously the argument that the President had to personally sign the order excluding Knauff or the regulations pursuant to which he was excluded. As to your first question, Brian, consider Knauff v. Shaughnessy, 338 US 537 (1950). I mention this case because I teach it (though this aspect isn’t why). Congress authorizes the President to make rules under which it will be illegal for “any alien to . . . enter . . . the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe.” The President issues an order delegating his rulemaking authority to the Secretary of State, who in turn promulgates rules giving certain authority to exclude to the Attorney General. The AG excludes Knauff. Knauff protests, among other things, that the statute unconstitutionally delegated power to the President, and Congress rejects that, noting in passing that the President could delegate his own authority to lower federal officers. But nobody takes seriously the argument that the President had to personally sign the order excluding Knauff or the regulations pursuant to which he was excluded.

]]> By: Brian Kalt http://www.concurringopinions.com/archives/2009/01/what_does_the_p.html/comment-page-1#comment-45100 Brian Kalt Sun, 18 Jan 2009 14:47:06 +0000 http://www.solove.org/archives/2009/01/what-does-the-president-and-only-the-president-mean.html#comment-45100 Bruce, the phrase does not appear in any other statute. Jon, I think you're right. It appears to be an effort to negate <a href="http://www4.law.cornell.edu/uscode/html/uscode03/usc_sec_03_00000301----000-.html" rel="nofollow">3 U.S.C. § 301</a>, which gives presidents the power to completely delegate any of their statutory authority. Other statutes (see, e.g., <a href="http://www4.law.cornell.edu/uscode/html/uscode22/usc_sec_22_00007431----000-.html" rel="nofollow">22 U.S.C. § 7431</a>) restrict the president and just use different phrasing. Thanks, Jon. Bruce, the phrase does not appear in any other statute.

Jon, I think you’re right. It appears to be an effort to negate 3 U.S.C. § 301, which gives presidents the power to completely delegate any of their statutory authority. Other statutes (see, e.g., 22 U.S.C. § 7431) restrict the president and just use different phrasing.

Thanks, Jon.

]]> By: Jon Weinberg http://www.concurringopinions.com/archives/2009/01/what_does_the_p.html/comment-page-1#comment-45099 Jon Weinberg Sun, 18 Jan 2009 06:17:40 +0000 http://www.solove.org/archives/2009/01/what-does-the-president-and-only-the-president-mean.html#comment-45099 A wide variety of statutes explicitly authorize the President to delegate to some other officer authority granted to him by the statutes in question; in those circumstances, the President would *not* need to sign off on that other officer's decision. If a statute is silent about delegation, whether the President can delegate authority granted by that statute (say, by executive order) is a matter of legislative intent. The language you quote was designed to make the legislative intent clear. A wide variety of statutes explicitly authorize the President to delegate to some other officer authority granted to him by the statutes in question; in those circumstances, the President would *not* need to sign off on that other officer’s decision. If a statute is silent about delegation, whether the President can delegate authority granted by that statute (say, by executive order) is a matter of legislative intent. The language you quote was designed to make the legislative intent clear.

]]> By: Bruce Boyden http://www.concurringopinions.com/archives/2009/01/what_does_the_p.html/comment-page-1#comment-45098 Bruce Boyden Sun, 18 Jan 2009 05:54:55 +0000 http://www.solove.org/archives/2009/01/what-does-the-president-and-only-the-president-mean.html#comment-45098 Is that phrase used in any other statutes? Legislators love to copy. Is that phrase used in any other statutes? Legislators love to copy.

]]> By: C Smith http://www.concurringopinions.com/archives/2009/01/what_does_the_p.html/comment-page-1#comment-45097 C Smith Sun, 18 Jan 2009 03:52:41 +0000 http://www.solove.org/archives/2009/01/what-does-the-president-and-only-the-president-mean.html#comment-45097 Sounds like one of those "contextual arguments". You probably had to be there. Seems like it's trying to limit usupers. Sounds like one of those “contextual arguments”. You probably had to be there.

Seems like it’s trying to limit usupers.

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