Alan B. Morrison · July 2013
81 GEO. WASH. L. REV. 1211 (2013)
In a number of significant separation of powers decisions, Supreme Court Justices have relied on Congressional silence to support their conclusion that the President had or did not have the power being challenged. Using language such as “implied” grants or denials of authority and “congressional acquiescence” in Presidential actions, the Court has utilized congressional inaction to tilt the outcome for or against Presidential power in cases such as Youngstown Sheet & Tube Co. v. Sawyer, Dames & Moore v. Regan, and Clinton v. City of New York. This Essay argues that reliance on congressional silence in separation of powers litigation is improper for two reasons. First, INS v. Chadha held that positive action by one House of Congress was invalid as an attempt to affect the rights of third parties because it did not comply with the bicameralism and presentment requirements of Article I, Section 7 of the Constitution. Because action by one House alone has no legal effect, inaction cannot have more legal significance. Second, as a normative matter, legislative silence does not logically support the inference that Congress supports the exercise of presidential power. Because no Justice has argued that a single instance of congressional silence would suffice, the courts must struggle with how many instances and how comparable to the present case they must be to support the desired inference. Similarly, there are multiple reasons why Congress did not seek to overrule the President by legislation, or take other action to accomplish that end, that are as consistent with disagreement as with acquiescence in the prior instances on which the Court has relied. Taking silence off the table does not ease the difficulty in deciding separation of powers; rather it forces the Court to return to first principles instead of attempting to divine the meaning of congressional inaction.
