As a Canadian following the US elections, I am curious to learn how the senate and the house work. What powers does each area hold and how does it affect the Bush administration?
You may want to start with the basics —> http://www.usconstitution.net/const.html
In super-short terms…
The House
- Composed of 435 members
- Most legislature starts in the House
- The House initates all revenue bills and appropriations
The Senate - Composed of 100 members
- Is responsible for “advice & consent” regarding presidental appointments. In other words, the Senate votes to approve presidental nominees to various offices including the Chief Justices of the Supreme Court (when one retires or dies)
- Tends to have more influence in foreign affairs
The main advantage to controlling the House is that you control the purse-strings of the government. The main advantage to controlling the Senate is that the president must gain your approval on appointments. Both chambers of Congress are responsible for passing legislation so controlling either allows you some control over what bills get passed into law.
There’s a lot more to it, but those are some of the major points.
Impeachments – although this appears to be off the table – start in the House.
This would be an important power if the Senate was forbidden from amending those bills. As it is, what gets passed in the Senate may or may not resemble what the House passes (which is true of any bill). But the effect is that the Senate has an equal say in how much money gets spent for whatever purposes.
Mainly because they also approve/disapprove any treaties.
In addition to ratifying treaties, the senate also confirms Supreme Court appointments, cabinet appointments and the heads of various administrative bodies.
As for legislation, Bush has tended to use his power as CIC of the armed forces to ignore much of what even a Republican congress did and certainly will not follow what the Dems do.
I think the issue is that the Senate can not start those bills. So if I’m president and I want money spent on puppy cloning, it’ll never happen until I convince the House to start a puppy cloning spending bill or attach it into an existing bill. Sure the Senate can block it and the House can fight them or sneak it into a military spending bill and all that but, without the agreement of the House, my puppy cloning will never get off the ground.
If the soldiers would work for free, that might be true. Spending bills, like the billions Congress approved for use in Iraq and Afghanistan, must pass the legislature.
I suspect that the first time Bush adds a “signing statement” to his signature on an important piece of legislation, the Democratically-controlled House will initiate court proceedings to determine whether such an act is unconstitutional.
The next two years should be entertaining. 
I suspect not, because such a court proceeding would be effectively an advisory opinion, something not permitted by the case-or-controversy requirement for federal courts.
Explain, please. I would think this would be suitably controversial, and it definitely is abuse of power in my eyes. Why wouldn’t a Federal Court be able to issue a binding decision?
Bricker is saying that they, the Congress, could not sue to force the Supremes to determine if it’s unconstitutional, because the result would be the advisory opinion without a true “case or controversy” that the Court has historically refused to hear.
However, IMO it would be the simplest thing in the world to structure a real “case or controversy” – whatever the subject of the “signing statement,” there is someone with standing in a U.S. court who can reasonably expect a law passed by Congress and signed by the President to work to his/her advantage, or, more specifically, who is “injured” in the legal sense by that law not being duly carried out. Presuming that the issue at question is not something the President himelf, in propria persona, must execute, there is someone who by virtue of his office (Secretary of ____) should be carrying out that act. Now, what happens if the laws of the land mandate someone to perform an act, and he fails to do so?
As Bricker said, the Supreme Court is not allowed to issue “advisory opinions.” A signing statement might well be “controversial” but it might not constitute a “controversy” from a legal standpoint if it has no practical effect.
It’s hard to put it too simply, but when it comes to government actions a “case or controversy” essentially requires that a particular person who is harmed by the act of a government official bring a suit for relief.
If the president simply attaches a signing statement to a bill, who is harmed? The president must actually do something in order to create a situation in which someone might have standing to petition for redress.
For example, say Congress passes a law requiring that all persons taken into the custody of U.S. government officials be given constitutional due process rights, that requires that the government make public all such detentions, that bans all use of physical or mental stress in interrogation, and requires court review of all “renditions” of persons in custody to other governments.
Say the president signs the bill, attaching a statement that says something like “I approve this law only to the extent that it does not infringe on or diminish the constitutional executive powers of the president.”
Where is the case? Who is harmed? Who has standing to petition a court for a remedy? What remedy?
However, if the president then goes on to take specific, concrete actions that someone believes violates the law, then a case can be brought challenging the legality of the president’s action. Then, the president might assert the signing statement to support his argument. Only then does the legality or constitutionality of the signing statement become a justiciable matter.
Back to the OP’s question, though, while there are some differences between the two houses, things like treaties and judicial nominations don’t happen every day. Most of the business of Congress is passing laws, and for purposes of passing laws, both houses have the same role. Funding bills are an exception, but not a major one: Even in the case of the puppy-cloning bill in Jophiel’s hypothetical, the Senate could just ammend some other general-purpose funding bill started in the House to include a clause like “And $50 million will be allocated to fund research on puppy cloning”. The House would have to agree to that change before the bill would pass, but then, that’s true of all bills. In principle, I suppose the House could refuse to start any funding bill at all, causing the machinery of government to come grinding to a halt, but it’s hard to imagine a situation extreme enough that they would do that.
An interesting footnote is that the Constitution only specifically mentiones revenue bills as being required to originate in the House. The House, however, has always considered this clause to include both revenue and appropriation bills. The Senate has traditionally rejected this claim, and regularly originates appropriation bills. The House refuses to consider any appropriation bill originating in the Senate.
It may be worth noting that US Senators serve six year terms while the term of service in the House is two years. Traditionally this has meant that Senators take a “longer” view of legislation before them than the House does. Whether it really works that way in practice, well, that’s a whole other thread.
Just making the signing statement wouldn’t present a case or controversy (the legal term is a “justiciable” dispute). However, there would be a justiciable controversey if a news organization asked for information regarding detentions and the president (or other agency) refused to make the detention public as provided in the law. In that case, the news organization could sue to obtain the legally required disclosure, and if the president tried to defend based on his claimed Constitutional executive powers, the courts would have to decide the issue.
And how many armies does the court have? The point is that only the executive branch can enforce those court decisions. If Eisenhower had, for example, refused to send soldiers to protect the first blacks to integrate southern schools, what could the court have done.
In addition, recall that in the first case in which the court ruled a law unconstitutional, Marbury vs. Madison, the court ruled that the court could not issue a writ of mandamus (“you must”) against Jefferson’s Secretary of State, Madison. Marbury had been given a patronage appointment as one of Adams’s last acts as president and Madison refused to deliver the appointment. Marbury sued and lost. In practical terms, it is hard to see how those signing statements could be refuted.
One thing that worries me is what the lame duch congress is going to do in the next six weeks. They could pass bills the Democratic congress might try to reverse, but could not overturn a veto of.
And this fact is part of the separation of powers structure of the federal government. Generally it’s considered a good thing. It would be risky for the Bush administration to brazenly defy a Supreme Court’s finding that a particular policy was unconstitutional.
There is a big difference here. A patronage appointment is completely within the discretion of the executive. No one has a right to be appointed to a government job. The court doesn’t have the power to force the executive to execute an appointment to someone. That has little or nothing to do with the situation we’re talking about.
I don’t think a signing statement has to be “refuted.” A signing statement is merely evidence of the intent of Congress and the president in creating legislation. It, indeed, may be considered weaker evidence than other kinds of legislative history. The court won’t rule on the actual signing statement. All it will say is “This act violates the statute.”
The US government is a system of checks and balances, the most significant one of which happened this week–voting on whether to keep the suckers in or throw them out. Yes, it is true that the court system doesn’t really have an effective enforcement system under its control.
What it does have, however, is enormous prestige and respect (despite the recent efforts of some in the political process to denigrate the courts with persistent claims of “judicial activism”). By and large, the vast bulk of Americans believe that when the Supreme Court decides something, that’s what stands (subject to legally proper methods to change things like Constitutional amendments). It is doubtful that a President would defy the Supreme Court too boldly, and if so there might be a large risk of challenge to the defiance in Congress and in future electoral politics.
Perhaps the most recent incident where there was a significant possibility of Presidential defiance of the Supreme Court was when White House tapes were subpoenaed in connection with the Watergate investigation, and the Nixon administration fought the subpoenas, claiming executive privilege. When the Supreme Court was considering the case, President Nixon stated that he would abide by “a definitive order” of the Court, implying that he might find reason not to follow a split or equivocal decision. The Court issued the unanimousU.S. v. Nixon, 418 U.S. 683 (1974), which clearly held that the documents in question were not immunized by executive privilege. It was subsequently reported that Chief Justice Burger strongly urged his colleagues to present a unanimous decision so that the President would not be able to claim that a split decision was insufficently “definitive” for him to obey. By agreeing to unanimity, the Court presented Nixon with a politically insurmountable obsticle and avoided the potential Constitutional crisis that might have occurred if Nixon had defied the court.
As to what the lame duck Congress may do, it is unlikely that anything too politically unpalatable to the Democrats will pass because the Democrats have sufficient votes to filibuster objectionable legislation in the Senate. With the Republicans about to go into the minority, it is unlikely that they will consider the “nuclear option” of eliminating the filibuster. There may, however, be bills passed which the Democrats would be reluctant to have passed on their watch, but are willing to let go by if they can blame them on the Republicans.