Análisis de la fiabilidad

Congress has also gotten involved in the quintessential executive activity of litigating the interests of the United States in court, although it tends to do so in separation of powers disputes when its own powers are at stake. 228 _{Congress has statutorily granted the Senate the right to}

intervene in litigation when the “powers and responsibilities of Congress

223. It is not clear that removal is the only punishment that the Senate may inflict. Joseph Isenbergh’s research on this during the impeachment proceedings against President Clinton revealed that in the early years under the Constitution, the Senate imposed lesser punishments such as fines on persons convicted by the Senate. See

Joseph Isenbergh, Impeachment and Presidential Immunity from Judicial Process, OCCASIONAL PAPERS,Nov. 11, 1998, available at http://www.law.uchicago.edu/academics/ 39.pdf. It has been quite a long time since the Senate has considered a lesser punishment.

224. Morrison v. Olson, 487 U.S. at 702 (Scalia, J., dissenting).

225. See generally Eleanore Bushnell, CRIMES, FOLLIES, AND MISFORTUNES:THE

FEDERAL IMPEACHMENT TRIALS (1992)(telling the story of the fourteen federal officers

who, at the time of the writing, had been impeached by the House and tried by the Senate; the majority of those impeached have been federal judges).

226. See Saikrishna Prakash, Regulating Presidential Powers, 91 CORN.L.REV. 215, 219 (2005) (noting that “the President’s most important means of wielding control arises from his power to appoint and remove executive officials”).

227. Although it is difficult to draw a line between political and nonpolitical uses of the impeachment power against the President, the impeachments of Presidents Johnson and Clinton seem to be on the political side of the line while the threatened impeachment of President Nixon seems to be more directly about criminal conduct.

228. See Note, Executive Discretion and the Congressional Defense of Statutes, 92 YALE L.J. 970, 970 n.1 (1983) [hereinafter Executive Discretion] (detailing cases in which the predecessor to the Senate Counsel had intervened); Note, By “complicated and indirect” Means: Congressional Defense of Statutes and Separation of Powers, 73 GEO.WASH.L.REV. 205, 207 (2004) [hereinafter Complicated and Indirect] (naming Chadha, Bowsher, and Buckley as among the cases in which Congress has defended a challenged statute in court).

under the Constitution of the United States are placed in issue.”229 _The

statute creates the Office of Senate Legal Counsel, and the head of that office is appointed by the President pro tempore of the Senate from candidates recommended by the Senate majority and minority leaders.230

The House employs counsel and participates in litigation on an ad hoc basis.231 _{There is disagreement among commentators over whether it is}

consistent with separation of powers for the Houses of Congress to intervene in litigation. The argument in favor of the power is based on the possibility that without it, the President may exercise an absolute veto over legislation simply by declining to defend it in court.232 _The

response to this is that Congress’s legislative, impeachment and oversight powers are adequate to ensure that the President defends Congress’s constitutional powers in litigation.233

It is perfectly understandable that Congress would be skeptical of a system under which only the executive branch could litigate whether Congress has encroached too much on the executive power.234 _Despite

all of Congress’s formal and informal tools of supervision, the executive branch is not in a position to argue both sides of the case when its own powers are at stake. The Supreme Court recognized this in Chadha, stating, “We have long held that Congress is the proper party to defend

229. 2 U.S.C. § 288e(a) (2000). For a general discussion of the practice of the Senate intervening in cases challenging statutes on separation of powers grounds, see

Complicated and Indirect, supra note 228 and Rebecca Mae Salokar, Representing Congress: Protecting Institutional and Individual Members’ Rights, in COURT IN

CONGRESS AND THE POLITICS OF EMERGING RIGHTS 105 (Colton C. Campbell & John A. Stack, Jr., eds. 2002).

230. 2 U.S.C. § 288(a)(1) (2000).

231. SeeExecutive Discretion, supra note 228, at 971 n.3. 232. Id. at 979-80.

233. SeeComplicated and Indirect, supra note 228, at 233.

234. On related grounds, the False Claims Act, 31 U.S.C. § 3729 (2000), which allows private individuals to assert fraud claims on behalf of the U.S. government, has been attacked as violating separation of powers by taking away the executive branch’s control over litigation on behalf of the United States. In light of the long existence of this type of procedure, the challenges have been unsuccessful. See Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749, 760-69 (5th Cir. 2001) (en banc). For the argument that the False Claims Act violates the Constitution, see id. at 758-69 (Smith, J., dissenting) (arguing that the False Claims Act is unconstitutional because it takes away executive branch control over litigation on behalf of the United States, violating the Take Care Clause and the Appointments Clause). Whether it violates separation of powers or not, the False Claims Act is an effort by Congress to take away some of the executive branch’s control over the choice to litigate claims, and thus can be seen as an element of congressional administration in which the private parties bringing suit are agents of Congress.

the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.”235 _{This is why it is not surprising,}

for example, that Congress granted its members standing to litigate the constitutionality of the Line Item Veto Act236 _{and also specified that}

when and if the Act were challenged, each House of Congress had the right to intervene in the litigation.237