The Burger Court (1969–86)

First Amendment

What provisions of the Constitution did Chief Justice Burger rely on to find a separation of powers problem?

Chief Justice Warren Burger based his decision in Immigration and Naturalization Service v. Chadha on two provisions in Article I, Section 7, of the Constitution. The first was the so-called Presentment Clause, which provides that all legislation passing Congress be presented to the president for his signature. The second part was the “bicameralism” requirement that both houses of Congress pass legislation before it becomes law. Burger explained: “Disagreement with the Attorney General’s decision on Chadha’s deportation—that is, Congress’ decision to deport Chadha—no less than Congress’ original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the President.” Burger believed that Congress could not unilaterally veto the actions of an executive agency or an executive branch official. Congress can pass laws that go through both houses of Congress and are presented to the president for signature. What Congress could not do was override the determinations of immigration officials through the use of a legislative veto.


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