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Buckley v. Valeo: A Turning Point in Supreme Court Jurisprudence

Between 1935 and 1976, no federal statutes were invalidated on the grounds that they violated the separation of powers, as specified in the Constitution. The Supreme Court decided Buckley v. Valeo in 1976, breaking with 40 years of precedent on this issue. Professor Gary Lawson explains that this was a turning point for how the Supreme Court evaluated cases on Constitutional grounds. https://youtube.com/watch?v=ZA2AK_0BOU0


Congress, near the 1970s, creates the Federal Election Commission designed in the Watergate era to regulate financing and conduct the federal elections. Very important people. The folks who are gonna be running the Federal Election Commission have life or death authority over political candidates. Clearly, the sorts of people that the Constitution contemplates are gonna be appointed under this Appointments Clause. How are these people appointed? Well, some of them are appointed by the President but with the consent of Congress as a whole, not just the Senate. Congress as a whole. A couple of them are appointed by the speaker of the house, couple of them are appointed by the President pro tempore of the Senate. This is like prescribing that it's okay for the President to be 17 years old when the Constitution says 35. Constitution contains an Appointments Clause that says how officers of the United States, people who've exercised lots of power, have to be appointed. Normally, they're appointed by the President with the advice and consent of the Senate. If they're inferior officers, not the big guns, they can be appointed by the President alone, by the courts of law, by heads of departments. Hard to come up with a provision of the Constitution clearer than that. The statute is challenged and the DC Circuit Court of Appeals, second most powerful court of the United States. DC Circuit laughs off the challenge, "Why are you quoting the Constitution at us? Why are you talking about this Appointments Clause? Surely, Congress had good reasons for doing this. Go away." They had half a century of precedence behind them. Between 1935 and 1976 the number of federal statutes invalidated by federal courts on separation of powers grounds, based on the actual text of the Constitution. That would be zero. That's not how you think about the Constitution. You don't look at the Constitution, read the thing and then figure it out. "No. We've gone past that." Supreme Court reversed. 1976. They read the Constitution, "Here's the statute. Can't do it." Huge. Transforming. Enormously important. Since that turning point, there's been something of a rebirth of the idea that maybe it's a good idea, at least sometimes, not always but sometimes, some cases, you might want to decide based on what this crusty old document actually says.

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