In my last post, I argued that a national referendum on some important issue, such as whether the U.S. should withdraw from NATO or the UN, would probably be constitutional so long as it was nonbinding. That it was technically nonbinding would not prevent the relevant decisionmaker — say the President — from choosing to follow the referendum’s result.
This aspect of the Constitution is not unique. There are various other areas where technically nonbinding acts are allowed (and often followed), even though they would be unconstitutional if they were binding. One involves the legislative veto. A binding legislative veto, where a house of Congress by itself takes action, is unconstitutional (as a violation of bicameralism and presentment).
But each house of Congress expresses its views in various ways that are generally followed by the executive. There are many legislative vetoes written into laws that might be interpreted to be binding. Everyone understands that they cannot be enforced, but they are included anyway and are often (and perhaps consistently) followed “voluntarily.” One might argue that the provisions are unconstitutional if they are interpreted to require compliance with a house’s decision. But nothing would be changed if the state provisions stated that compliance with the decision was voluntary. And then they would be clearly be constitutional. An even clearer example involves earmarks, where the congressional committee lists spending decisions in committee reports, which are clearly nonbinding, but have been regularly followed in the past.
Another example of substantial nonbinding authority involves the White House Staff. The White House Chief of Staff is one of the most powerful people in the government, yet constitutional law does not treat him as an “officer of the United States.” If here were such an officer,, then the Appointments Clause would normally require that an important officer like him be appointed with the advice and consent of the Senate.
But constitutional law treats the Chief of Stafff as a nonofficer on the ground that he only exercises advisory authority. If the Chief of Staff calls the EPA Administrator and tells her to do something, the claim is either that the Administrator is not obligated to follow the instruction or, if she is, that is because the Chief of Staff is merely conveying the President’s orders.