LEGISLATIVE VETO

The legislative veto emerged in the 1930s as an effort to reconcile two conflicting needs. Executive officials sought greater discretionary authority, while Congress wanted to retain control over delegated authority without having to adopt new legislation for that purpose. The resulting accommodation permitted administrators to submit proposals that would become law unless Congress acted to disapprove by simple resolution (a one-house veto) or concurrent resolution (a two-house veto). Evolving forms of the legislative veto came to include requirements of congressional approval as well as opportunities for disapproval; Congress even vested some of the controls in its committees.

Although the legislative veto acquired a reputation as a congressional usurpation of executive power, initially the device favored the President. In 1932 Congress authorized President herbert c. hoover to reorganize the executive branch. His plans would become law within sixty days unless either house disapproved. The President did not have to secure the support of both houses, as would have been necessary through the regular legislative process. Instead, the burden was placed on Congress to veto his initiatives. Furthermore, to prevent presidential proposals from being buried in committee, filibustered, or changed by Congress, the law limited each opportunity for legislative veto by rules for discharging committees, restricting congressional debate, and prohibiting committee or floor amendments.

The executive branch began to view the legislative veto apprehensively when Congress attached it to statutes governing such important subjects as lend lease, immigration, public works, energy, impoundment, federal salaries, foreign trade, and the war powers. As part of the congressional reassertion after the vietnam war and watergate, legislative vetoes proliferated in the 1970s. By the late 1970s, Congress seemed on the verge of subjecting every federal regulation to some form of legislative veto.

The lower federal courts upheld some legislative vetoes and invalidated others, but carefully restricted their opinions to the particular statutes challenged. In 1982, however, the united states court of appeals for the District of Columbia Circuit struck down three laws on such broad grounds as to cast a shadow of illegality over every type of legislative veto. The Supreme Court adopted this comprehensive approach in immigration and naturalization service v. chadha (1983), invalidating the Immigration and Nationality Act's authorization for either house of Congress to set aside the attorney general's decision to suspend the deportation of an alien.

Chief Justice warren e. burger, joined by five Justices, wrote the opinion of the court. The one-house legislative veto in Chadha was unconstitutional because it violated both the principle of bicameralism and the presentment clause of the Constitution, which requires every bill, resolution, or vote to which the concurrence of the senate and the house of representatives is necessary (except a vote of adjournment) to be presented to the President. Whenever congressional action has the "purpose and effect of altering the legal rights, duties and relations of persons" outside the legislative branch, the Court said, Congress must act through both houses in a bill presented to the President.

justice lewis f. powell concurred in the judgment on a narrower ground. Justice byron r. white delivered a lengthy dissent, generally supporting the constitutionality of the legislative veto. Justice william h. rehnquist also dissented, but only on the question of severability. He said that if the Court declared the legislative veto invalid, it should also strike down the attorney general's authority to suspend deportations.

The majority's opinion raises numerous questions. First, in holding the legislative veto severable from the attorney general's authority, the Court ignored clear evidence of a quid pro quo between Congress and the President. If severability could be discerned in this legislative history, presumably it can be found in nearly every statute establishing a legislative veto. This reasoning gives the executive branch a temporary one-sided advantage from an accommodation meant to balance executive and legislative interests.

Second, the Court asserted that the legislative veto's efficiency or convenience would not save it "if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives—or the hallmarks—of democratic government.…" Although the legislative veto might be a "convenient shortcut" and an "appealing compromise," the Court said, it is "crystal clear from the records of the Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency." Here the Court played loose with history, for efficiency was indeed an important consideration for the Framers. The decade prior to the constitutional convention saw an anxious and persistent search for a form of government that would perform more efficiently than the articles of confederation.

Third, the Court characterized the presentment clause as a means of giving the President the power of self-defense against an encroaching Congress. The President's veto would check "oppressive, improvident, or ill-considered measures." This argument is misleading in suggesting that the legislative veto, by evading the President's veto, threatened the independence of the executive branch. In fact, the legislative veto was directed only against measures submitted by the President. Congress could not amend his proposals, but must vote yes or no. A legislative veto, if exercised, simply reestablished the status quo. For example, if either house defeated a reorganization plan the structure of government would remain as before. The President did not need his veto for purposes of "self-defense."

Fourth, the Court said that the Framers had unmistakably expressed their "determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process." But both houses of Congress regularly use "shortcut" methods that pose no problems under Chadha: suspending the rules, asking for unanimous consent, placing legislative riders on appropriations bills, and even passing bills that have never been sent to committee.

The Court's theory of government contradicts practices developed over a period of decades by the political branches. Neither administrators nor members of Congress want the static model proffered by the Court. The conditions that spawned the legislative veto over a half-century ago have not disappeared. Executive officials still want substantial latitude in administering delegated authority; legislators still want to maintain control without having to pass new legislation. Surely the executive and legislative branches will develop substitutes to serve as the functional equivalent of the legislative veto. Forms will change; the substance will not.

Instead of a one-house veto over executive reorganization, Congress is likely to require a joint resolution of approval. This device, which satisfies the tests of bicameralism and presentment, requires the President to obtain the support of both Houses within a specified number of days. If one house withholds its support, the effect is a one-house veto.

Internal House and Senate rules offer another option. Congress can require that funds be appropriated only after an authorizing committee has passed a resolution of approval. Although this procedure amounts to a committee veto, the Justice Department may acquiesce, accepting Congress's distinction between authorization and appropriation and reasoning that Congress can control its own internal processes.

Congress can also attach a rider to an appropriations bill to prevent an agency from implementing a proposed action. Because a President will rarely veto an appropriations bill (and probably will never do so because of an objectionable rider), the practical effect of this device is that of a two-house veto. Indeed, House-Senate comity will often produce the effect of a one-house veto.

Statutes can require that selected committees be notified before agency implementation of certain programs. Notification raises no constitutional issue, for it falls within the report-and-wait category already sanctioned by court rulings. But "notification" can become a code word for prior committee approval. Only in unusual circumstances would an agency defy the wishes of its oversight committees.

afterChadha, Congress will continue to use informal and nonstatutory methods to control the executive branch. Congress allows agencies to shift funds within an appropriation account provided they obtain committee approval for major changes. Agencies comply because they want to retain this administrative flexibility. Because these "gentlemen's agreements" are not placed in statutes, they are unaffected by Chadha. They are not legal in effect. They are, however, in effect legal.

Last, Congress has continued to authorize legislative vetoes in statutes adopted after Chadha. Although these provisions are unconstitutional under the Court's decision, agencies are likely to abide by them rather than alienate powerful support committees on Capitol Hill. When the practical needs of executive officials and legislators coincide, they nearly always prevail over formalistic notions of separation of powers.

Louis Fisher
(1986)

Bibliography

Bolton, John R. and Abrams, Kevin G. 1984 The Judicial and Congressional Response to the Invalidation of the Legislative Veto. Journal of Law and Politics 1:299–355.

Strauss, Peter L. 1983 Was There a Baby in the Bathwater? A Comment on the Supreme Court's Legislative Veto Decision. Duke Law Journal 1983:789–819.

Sylvester, Kathleen 1984 After Chadha, A Legal Void. National Law Journal, April 23, 1984, pp. 1, 8, 10.