Legislative Veto

Legislative Veto In 1932 Congress and the administration of President Herbert Hoover agreed to a major new departure in the process of crafting legislation. Negotiators for the two branches prepared a statute with language that gave the president the power to reorganize the executive branch, while allowing Congress subsequently to override the chief executive if either the House or the Senate did not approve of the manner in which he accomplished that objective. Over the ensuing half century, Congress placed similar legislative veto provisions in more than two hundred laws.

The Supreme Court, in Immigration and Naturalization Service v. Chadha (1983), declared this practice a violation of the separation of powers doctrine. One house of Congress did not have the constitutional authority to veto a determination by the Immigration and Naturalization Service that a foreign student could remain in the United States after his visa had expired. More broadly, the Court held that while Congress has the power to pass laws, it may not participate in their execution. “Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked” (pp. 954–955). All legislative vetoes, the Court held, violated the Presentment Clause (Art. I, sec. 7), and a one‐house veto also violated the bicameral requirement (Art. I, secs. 1 and 7).71

Despite the Chadha ruling, Congress and successive presidential administrations have continued to craft informal legislative understandings that require written approval of House and Senate appropriations committees before agencies may take specified actions. The executive has been willing to accept this after‐the‐fact congressional control as the price for obtaining a greater discretionary authority than Congress would otherwise have been likely to grant.

See also Separation of Powers.

Richard Allan Baker