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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: JGR/Legislative Veto\n(3 of 6)\nBox: 31\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nWITHDRAWAL SHEET\nRonald Reagan Library\nCollection: ROBERTS, JOHN G.: Files\nArchivist: gcc/bcb\nFile Folder: JGR/Legislative Veto [3 of 6]\nOA 12663\nDate: 5/26/98\n12660\nDOCUMENT\nSUBJECT/TITLE\nDATE\nRESTRICTION\nNO. AND TYPE\n1. memo\nJohn G. Roberts ro Fred F. Fielding re :Revised Draft\n5/7/84\nP5\nOMB Statement Concerning Legislative Veto, 6p.2\ndts 12/1400\n(2-p. memo, + 2 copies of A 2-p memo\nfrom Fielding to BRANdeN Blum)\nRESTRICTION CODES\nPresidential Records Act [44 U.S.C. 2204(a)]\nFreedom of Information Act [5 U.S.C. 552(b)]\nP-1 National security classified information [(a)(1) of the PRA].\nF-1 National security classified information [(b)(1) of the FOIA].\nP-2 Relating to appointment to Federal office [(a)(2) of the PRA].\nF-2 Release could disclose internal personnel rules and practices of an agency [(b)(2) of the\nP-3 Release would violate a Federal statute [(a)(3) of the PRA].\nFOIA].\nP-4 Release would disclose trade secrets or confidential commercial or financial information\nF-3 Release would violate a Federal statue ((b)(3) of the FOIA].\n[(a)(4) of the PRA].\nF-4 Release would disclose trade secrets or confidential commercial or financial information\nP-5 Release would disclose confidential advice between the President and his advisors, or\n[(b)(4) of the FOIA].\nbetween such advisors [(a)(5) of the PRA].\nF-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the\nP-6 Release would constitute a clearly unwarranted invasion of personal privacy [(a)(6) of\nFOIA].\nthe PRA).\nF-7 Release would disclose information compiled for law enforcement purposes ((b)(7) of\nthe FOIA].\nC. Closed in accordance with restrictions contained in donor's deed of gift.\nF-6 Release would disclose information concerning the regulation of financial institutions\n[(b)(8) of the FOIA].\nF-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of\nthe FOIA].\n41\n36\nADMINISTRATIVE LAW REVIEW\n41\n(Winter\n1984)\nHOLDING THE INDEPENDENT\nAGENCIES ACCOUNTABLE:\nLEGISLATIVE VETO OF\nAGENCY RULES*\nMichael Saks\nhave occupied a position of independence\nsince the case of Humphrey's Executor1 in the\nmid 1930s. In that case, the Court rejected claims of executive control\nand established the Federal Trade Commission as an independent\nagency.2 A few years previously, Congress had passed the first legisla-\ntive veto statute.³ Since then, Congress has enacted three hundred\npost-enactment review laws.¹ The typical statute requires the president\nor some agency to report its action to Congress and allows Congress to\noverrule the agency action.3 The normal requirement for a congres-\nsional override is action by at least one House, but there are statutes\nwhich require action by both Houses,⁶ by committee of either one or\nboth Houses' and in one case by the action of a single committee\nchairman.⁸ Some statutes require that one or both Houses approve\nexecutive action for that action to become effective.⁹\n*EDITOR'S NOTE: This article was written and submitted for publication prior to the\nUnited States Supreme Court decision in the case of Immigration and Naturalization Service\nv. Chadha. The editor feels, however, that the article still serves a useful purpose in\naddressing the issue of independent agency accountability.\n'295 U.S. 602 (1935).\n21d. at 629. See also STUDY ON FEDERAL REGULATION, SENATE COMM. ON GOVERNMENTAL\nAFFAIRS, 95th Cong., 2d Sess. 32 (1977) (hereinafter cited as 5 SENATE COMM.).\n³Pub. L. No. 72-212, Legislative Appropriations for Fiscal Year 1933, 47 Stat. 382\n(1932).\n\"See S. REP. No. 96-184, 96th Cong. 2d Sess. (1980) reprinted in U.S. CODE CONG. & AD.\nNEWS at 1073, 1091 (hereinafter cited as F.T.C. Report), See also Watson, Congress Steps\nOut: A Look at Congressional Control of the Executive, 63 CAL. L. REV. 983, 1089 (1975).\nSee Watson, supra note 4, at 984-987.\nReorganization Act of 1977, 5 U.S.C. Sec. 901 (1976).\nFutures Trading Act of 1978, 7 U.S.C. Sec. 6c(c) (1981 Suppl. V).\nSupplemental Appropriation Act of 1953, Ch. 758, 66 Stat. 637, gave certain powers\nover military housing regulations to the Chairman of the House Appropriations Com-\nmittee.\n\"Congressional Budget and Impoundment Control Act of 1974, 31 U.S.C. Sec. 1402\n(1976).\n42\nADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE 43\nCongress has turned to the legislative veto device increasingly in\nfactor is not present, at least not in the same way, the cases and critiques\nrecent years. Over half of the legislative veto statutes were enacted in\ninvolving relations between Congress and the president are not fully\nthe past decade. 10 Most of the early statutes dealt with relatively non-\napplicable. The courts and commentators, however, use the same\ncontroversial matters such as immigration,\" reorganization of the\nseparation of powers analysis in both situations. There is also such a\nfederal government,\" disposal of government property15 and govern-\npaucity of cases dealing with the legislative veto that none can afford to\nment construction. More recently, Congress has given itself review\nbe overlooked.\npowers over more substantive areas such as war powers,15 foreign\nShortly after the passage of the first legislative veto provision, Con-\nmilitary sales,¹⁶ federal salaries,¹⁷ energy policy¹⁸ and the Federal Trade\ngress passed the statute allowing the Supreme Court to promulgate the\nCommission's rulemaking. 19 Throughout the period of this expansion,\nFederal Rules of Civil Procedure. The statute contained a lay over\nCongress has asserted a need to review the agencies or the president so\nprovision requiring that the rules be submitted to Congress to allow\nas to retain its power to determine policy.2 Presidents ever since\nCongress the opportunity to review them before they became ef-\nWoodrow Wilson2¹ have opposed the legislative veto both on constitu-\nfective. The Supreme Court, in Sibbach V. Wilson25 upheld this provi-\ntional and policy grounds. Scholarly opinion has also opposed the\nsion as a legitimate means of ensuring that the action under the\nlegislative veto. This paper takes the position that the legislative veto,\ndelegation squares with the result.2 Although a regular law²⁷ would\nin certain forms, is both constitutional and also wise policy. The jus-\nhave been required to overrule a Court promulgated rule, the Court\ntification for this acceptability is a belief that there is a need for the\nnoted with approval the legislative veto provisions applying to territo-\nadministrative agencies to be held politically accountable. Since this\nries and to government reorganization in which full legislative action\nwas not required.28 Thereafter, courts generally dismissed cases involv-\n\"F.T.C. Report, supra note 4, at 1091-1102.\ning legislative vetos29 or refused to reach the issue. Justice White in a\n\"Alien Registration Act of 1940, 8 U.S.C. Sec. 1254(c)(2) (1976).\n\"Reorganization Act of 1939, Pub. L. No. 76-19, 53 Stat. 561 (1939).\nconcurring opinion in Buckley v. Valeoˢᵗ approved the legislative veto\n\"Act of Aug. 7, 1946, Pub. L. No. 79-649, 60 Stat. 897 (1946).\nprovision under which the Senate had disapproved Federal Election\n¹⁴Act of April 4, 1944, Pub. L. No. 78-289, 58 Stat. 189 (1944).\nCommission regulations. He argued that the initial law encompassing\n15War Powers Resolution, 50 U.S.C. Sec. 1541 (1976 and 1981 Suppl. V.).\nthe legislative veto had satisfied the requirement of presentation to the\n1622 U.S.C. Sec. 2755(d) (1976).\n\"Postal Revenue and Federal Salary Act of 1967, 2 U.S.C. Sec. 359(1) (1976).\npresident.\" Justice White also dismissed the argument of legislative\n\"Emergency Petroleum Allocation Act of 1973, 15 U.S.C. Sec. 757 (1976).\nencroachment on the grounds that the regulation ordinarily became\n\"Federal Trade Commission Improvements Act of 1980 Sec. 21(a)(1), 15 U.S.C. Sec.\neffective without presidential approval, so that the president lost\n57(a)-1 (1980).\n20See Abourezk, The Congressional Veto: A Contemporary Response to Executive Encroach-\nnothing.34 He also found a critical distinction between a legislative veto\nment on Legislative Prerogatives, 52 IND. L. J. 323, 330-331 (1977); Javits and Klein,\nprovision in which congressional action was necessary to give the\nCongressional Oversight and the Legislative Veto: A Constitutional Analysis, 52 N.Y.U. L. REV.\nregulation effect35 and a provision in which disapproval by one House\n455, 458-460 (1977). See also-CONG. REC. H 11, 202-206 (daily ed. Nov. 27, 1979) and H\n3, 856-873 (daily ed. May 20, 1980). (Congressional debate on the F.T.C. Improvements\nAct).\n2'59 CONG. REC. 7026-27, 8609 (1920) (remarks of Rep. Wilson); 76 CONG. REC. 2445\n23See Sibbach V. Wilson & Co., 312 U.S. 1, 8 (1941).\n(1933) (Remarks of Rep. Hoover); 83 CONG. REC. 4487 (1938) (remarks of Rep.\n24Id.\nRoosevelt); Jackson, A Presidential Legal Opinion, 66 HARV. L. REV. 1353, 1357-1358\n2⁵Id.\n(publishing an opinion by President Roosevelt) (1953); Truman: PUB. PAPERS 280\n26Id. at 15.\n(1951); Eisenhower: PUB. PAPERS 507 (1954), Public Papers of the President at 688\n\"Id.\n(1955), Public Papers of the President at 648 (1956), Public Papers of the President at 49\n28Id. at 15 n. 17.\n(1960); Kennedy: Public Papers of the President at 6 (1963); Johnson: Public Papers of\n29See, e.g., Pressler V. Simon, 428 F. Supp. 302 (D.D.C. 1976); Pacific Legal Foundation\nthe President at 861, 1249 (1963-1964); Nixon: Public Papers of the President at 893\nV. DOT, 593 F.2d 1338 (D.C. Cir. 1978).\n(1973), Ford: Public Papers of the President at 294 (1974); Carter: Public Papers of the\n30See, e.g., Buckley V. Valeo, 424 U.S. 1, 140 n. 176 (1976) (hereinafter cited as\nPresident at 1146 (1978), 16 WEEKLY COMP. OF PRES. Doc. 4 (1980).\nBuckley). The Court in a footnote reserved the question as unnecessary to decide,\n\"See Watson, supra note 4; McGowan, Congress, Court, and Control of Delegated Power, 77\n³¹d.\nCOLUM. L. REV. 1119 (1977); Cutler and Johnson, Regulation and the Political Process, 84\n³²Id. at 284-286.\nYALE L.J. 1395 (1975); Dixon, The Congressional Veto and Separation of Powers: The Executive\n33Id. at 284.\nOn a Leash?, 56 N.C.L. REV. 423 (1978); Bruff and Gelhorn, Congressional Control of\n34Id.\nAdministrative Regulation: A Study of Legislative Vetos, 90 HARV. L REV. 1369 (1977).\n331d. at 286.\n44\nADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE\n45\nblocked a regulation from becoming effective.36 Although Justice\nAtkins U. United States involved the provisions of the Salary Act.\nWhite's analysis was hardly a thorough one (it consumed barely two\nUnder this Act, the president submitted recommendations for in-\npages in the official reports), since it was (prior to the Supreme Court's\ncreases in judicial salaries.⁵ The Act contained a one House veto\nopinion in INS. U. Chadha)\" the first opinion from a Justice of the\nprovision and the Senate vetoed the increases. 53 The House and Senate\nSupreme Court, subsequent cases and commentary have analyzed it\nsubmitted briefs, since the Justice Department conceded the statute's\nheavily.38\nunconstitutionality. The Court of Claims upheld the statute. It found\nIn Clark v. Valeo³⁹ the D.C. Circuit, in a per curiam opinion, dismissed\nthat while the statute delegated initial authority to the president, Con-\nRamsey Clark's attack on the Federal Election Campaign Act's one\ngress wished to retain ultimate responsibility itself.35 The Court found\nHouse veto as moot⁴⁰ (since Clark had been defeated in his election bid)\nthat the delegation to the president of pay-setting powers was\nand unripe41 (since neither House had vetoed any FEC rules since the\nunobjectionable, and the only potential problem was congressional\nagency had been reconstituted after the Buckley case). The Court took\nreview. Similar to Justice White's analysis, the Court held that the\nnote of the Sibbach case43 and the long history of legislative veto\naction of a single House was \"not making new law\". 57 Since the action of\nprovisions and followed the Supreme Court in avoiding discussion of\na single House only blocked the president's recommendations, it\nthe legislative veto's constitutionality. Judge MacKinnon, in dissent,\nmerely preserved the status quo.⁵⁸ Since one House action did not\nwould have held the legislative veto unconstitutional. Dealing with\nchange anything, the Court held that the action of both Houses was\nJustice White's argument that neither House need approve an F.E.C.\nunnecessary.ᵇ⁹ The presidential veto problem was overcome by the\nrule for it to become effective, Judge MacKinnon said what that \"really\npresident's opportunity to veto the initial legislation authorizing the\nmeans\nis that, for an F.E.C. regulation to become effective both\nlegislative veto.60 Congress' ability to veto presidential recommenda-\nhouses must approve it by voting not to veto it\" (emphasis by\ntions was also defended against an encroachment attack. 61 The presi-\nMacKinnon). Giving Congress any power to review would not be\ndent was acting under powers delegated from Congress, and Congress\n\"nonaction\" according to Judge MacKinnon because there is inher-\ncould retain the power to overrule its \"agent\".\"2 Finally, the congres-\nently an approval somewhere in the congressional action. The action\nsional power was upheld under the necessary and proper clause of\nof any committee or subcommittee somewhere in the legislative pro-\nArticle I Section 8, since it was merely a means of doing what Congress\ncess blocking a veto resolution was viewed as not only affirmative action\ncould do directly.6 The Atkins dissent saw the case turning on separa-\nbut also the action of a potentially small minority.48 The use of the\ntion of powers.64 The Congress was seen as encroaching on an execu-\nSibbach case was criticized as improper since Sibbach dealt only with\ntive matter. 65 The presidential salary adjustment had the force of law\ndelaying the effectiveness of a rule.49 The analogy by Justice White of a\nwithout any action by Congress.66 The action by one House was either\nlegislative veto to merely one House passing and the other rejecting\nlegislative or nonlegislative.6\" If legislative, then both Houses must act\nignored \"the basic rule of the Constitution: laws must first pass both\nHouses of Congress and be signed by the President\" (emphasis by\n556 F.2d 1028 (Ct. Cl. 1977) (hereinafter cited as Atkins).\nMacKinnon).\n52Id. at 1057.\n³³Id.\n361d. at 284-285.\n54Id. at 1058 n. 15. The Court dismissed this as irrelevant since the Justice Department\n\"103 S.Ct. 2764 (1983).\nwould naturally mirror the consistent pattern of presidential disapproval.\n38See Dixon, supra note 22, at 458-469; Watson, supra note 4, at 1046-1057.\n⁵⁵Id. at 1059, 1063-1064.\n9559 F.2d 642 (D.C. Cir. 1977) (hereinafter cited as Clark).\n⁵⁶Id. at 1060-61.\n401d. at 647.\n⁵⁷Id. at 1063.\n\"Id.\n⁵⁸Id.\n42Id.\n59Id. at 1063-1064.\n⁴Id. at 648-649.\n⁶⁰Id. at 1065.\n\"Id.\n61/d. at 1065-1068.\n45Id. at 681.\n62Id. at 1067-1068.\n461d. at 685.\n631d. at 1061.\n\"Id. at 686.\n⁶¹ᵈ. at 1076 (Skelton, J. dissenting).\n48Id. at 688.\n65[d. at 1076-77, 1080.\n\"Id. at 680-681.\n66Id. at 1080.\n507d. at 689.\n⁶⁷Id. at 1080-81.\n46\nADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE 47\nbefore their action becomes law.68 If not legislative, then the action was\ndelegation very broadly and effectively insulated the independent\nimpermissible per se⁶⁹ and an encroachment on the executive.\nagencies from legislative review.8\nIn Chadha U. Immigration and Naturalization Service,⁷⁰ the legislative\nThe Supreme Court recently ruled on the legislative veto in INS U.\nveto mechanism served as a means of reviewing the agency's individual\nChadha.85 The Court focused strongly on the legislative procedure\nadjudications. Chadha's deportation was suspended by the attorney\nnecessary to pass a law. The Court noted the framers' fear of legisla-\ngeneral.⁷¹ The House, acting under a 1940 law, passed a disapproval\ntive tyranny. The Court's strict separation of powers analysis led it to\nresolution overruling the attorney general's action and requiring\nconclude that the legislative veto constituted improper overreaching.\nChadha's deportation. The 9th Circuit Court of Appeals overturned\nthe statute as a legislative intrusion on the executive and judicial\nbranches.\" The Court viewed separation of powers as a means of\nAN EVALUATION OF THE\nTRADITIONAL ARGUMENTS\nlimiting the overreaching of any one branch.⁷⁴ The framers' particular\nintent was to restrict legislative overreaching.⁷⁸ The long history of\nMost of the judicial and scholarly analysis of the legislative veto⁸⁹\ncongressional involvement with immigration was dismissed. The veto\nattacks it as contrary to separation of powers. The defenders of the\ndevice reviewed the executive in a particular action.\" Congress, in\nlegislative veto also concentrate on a textually-oriented defense. Both\ndeciding paticular cases, was also displacing the judiciary.⁷ Since Con-\nof these views are based, in my belief, on a rigid classificatory constitu-\ngress' action and its reasons could not be reviewed, the potential for\ntional analysis. Since this analysis is based on the tripartite structure of\nselective abuse was enhanced.79\nthe federal government, it will be referred to hereafter as structural\nThe D.C. Circuit also struck down the legislative veto in Consumer\nanalysis.\nEnergy Council of America U. Federal Energy Regulatory Commission.80 Pur-\nThe structural attack on the legislative veto is premised on a strictly\nsuant to the 1978 Natural Gas Act, the FERC adopted a set of incre-\ncompartmentalized view of separation of powers. 91 The legislative veto\nmental pricing regulations covering the period until natural gas price\nmust fit into either the legislative category or in a nonlegislative\ndecontrol would become effective. The House of Representatives\ncategory.92 If it is a legislative act, it falls afoul of two constitutional\npassed a disapproval resolution, and the FERC revoked the regula-\nprovisions. First, it (usually) does not require action by both Houses of\ntions. 81 The Court held that the House's action was an attempt to make\nCongress.99 A legislative veto provision which allows action by one\npolicy. The only constitutional means of doing so was via the full\nHouse (or by a committee) grants that House (or committee) power\nlegislative process with presidential opportunity to veto.⁸² The Court\nwhich the Constitution vests in both Houses.⁹⁴ Second, a legislative veto\nstressed the concerns about legislative dominance and the constitu-\ntional checks of bicameralism and presidential veto.⁸⁸ The Court read\n84Id. at 471-479. The D.C. Circuit reaffirmed its decision that the legislative veto is\nunconstitutional in Consumers Union of the United States, Inc. V. FTC, 691 F.2d 575\n(D.C. Cir. 1982). This case involved the two House veto in the FTC Improvements Act of\n1980, Sec. 21(a)(1), 15 U.S.C. Sec. 57a-1(a) (1980). The Court held that its analysis in\n681d.\nCECA was sufficient and stated that it adhered to that analysis. It therefore held the two\n69Id. at 1081.\nHouse veto was also a violation of separation of powers and a violation of the full\n70634 F.2d 408 (9th Cir. 1980) (hereinafter cited as Chadha).\nlegislative procedures necessary for passing a law.\n¹¹d. at 411.\n85103 S. Ct. 2764 (1983). The decision affects legislative review previsions in approx-\n⁷²Id.\nimately 200 laws, id. at 2792 (White, J. dissenting).\n⁷Id. at 435-436.\n86Id. at 2781-2787.\n14Id. at 421-423.\n87Id. at 2783-2784.\n⁷⁵Id. at 433-434, citing, The Federalist Nos. 51 (J. Madison); and 71 (A. Hamilton) (J.\n881d. at 2788.\nCooke ed. 1961).\n\"See Watson, supra note 4; Dixon, supra note 22.\n76Chadha, 634 F.2d at 434.\n⁹See generally Javits and Klein, supra note 20; Abourezk, supra note 20; Cooper and\n\"Id. at 431-433.\nCooper, Legislative Veto and the Constitution, 30 GEO. WASH. L. REV. 467 (1962).\n78Id. at 430-431.\n⁹'See, e.g., Atkins, 556 F.2d at 1080-1081 (Skelton, J. dissenting).\n791d. at 431.\n921d. at 1080-1081.\n80673 F.2d 425 (D.C. Cir. 1982).\n99Id. at 1077, see also Clark, 559 F.2d at 683 (MacKinnon, J. dissenting), Chadha, 634\n811d. at 433-434.\nF.2d at 433-434, Watson, supra note 4, at 1030-1036.\n82Id. at 448-471.\n\"The purported violation is of U.S. CONST. art. I, Sec. I vesting all legislative powers in\n83Id. at 456-471.\na Congress of both Houses, Atkins, 556 F.2d at 1080-1081 (Skelton, J. dissenting).\n48 ADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE\n49\navoids the possibility of a presidential veto.95 This gives Congress\negation of legislative functions by Congress to the executive is routine,\ngreater power in relation to the president than it normally possesses.⁹⁶\neven though it contravenes the Springer doctrine of the branches re-\nEven a two House veto would be inappropriate, since the president has\nmaining distinct.\nno opportunity to check Congress.97 In Chadha, the Supreme Court\nThe structural defense of the legislative veto does not address itself\nadopted this structural view of the legislative veto.⁹⁸\nto the problems of using a rigid separation analysis. Instead, it argues\nThe structuralist criticism against the legislative veto as a nonlegisla-\nthat the solution is found in the initial act encompassing the legislative\ntive act is an analysis based on encroachment. When the resolution is\nveto provision. 110 Subsequent actions by one House are seen as merely\nconsidered nonlegislative, it must be either an executive or judicial act.\nconditions subsequent to the initial act.¹¹¹ This triggering approach\nSince Congress is excluded from those areas, the legislative veto is\nreally avoids the issue, for if it is accepted, Congress could initially\nnecessarily an intrusion into the spheres of the other branches. 100 This\nauthorize anything. The triggering action itself is the controversy,\nanti-encroachment doctrine is considered particularly appropriate to\nsince it is some form of congressional action and not merely the\ncases of legislative overreaching.\" According to this doctrine, separa-\noccurrence of an outside event.¹¹²\ntion of powers exists to limit the natural tendency of each branch,\nSupporters of the legislative veto rely principally on two lines of\nparticularly the legislative branch, to overreach and intrude on the\nanalysis directly contrary to the opponents' structural arguments. First,\nother branches. 102 This structural analysis draws its impetus from the\nthey view the legislative veto as less than a full legislative act.¹¹³ The\nSpringer¹⁰³ opinion. In Springer, the legislature of the Philippines\naction of one House is not considered to be a law, since it does not\nattempted to control the governor's power of appointment.¹⁰⁴ The\nchange anything.¹¹⁴ While it does not change any law, it clearly does\nSupreme Court analogized the Philippines statute to the United States\nhave the effect of preventing a regulation (or some executive action)\nConstitution. 105 It constructed a model of three branches \"forever\nfrom taking effect. 115 The implicit argument must be that altering an\nseparate and distinct from each other\". 106 Every power must belong to\nagency regulation (or an executive action under power delegated from\none branch and the other branches could not exercise that power\nCongress) does not require full legal action, since the agency or execu-\nwithout encroachment.107\ntive action is not fully \"law\". 116 This implicit argument runs directly\nThe structural argument is essentially dependent on the watertight\ncounter to both accepted administrative law doctrine and actual prac-\ncategory separation model of Springer. This rigid separation analysis\ntice that agency or executive action under proper delegation does\nhas been generally repudiated by the Supreme Court\" since Springer.\nindeed have the effect of law. 117 The need for approval by both Houses\nCurrent separation analysis allows for more flexible categories. 109 Del-\nand presentation to the president is obviated, since only full legislative\nacts must follow this procedure.\" Support for the belief that not all\n\"Clark, 559 F.2d at 689-690 (MacKinnon, J. dissenting).\naction is constitutionally required to be full legislative action is found in\nSee Watson, supra note 4, at 1051-1053. See also the presidential material cited in note\nthe powers granted to a single House by the Constitution. Since these\n21 infra. The presidential opposition to the legislative veto is a natural response to a\nexceptions to the general requirement of full legislative procedure are\ncongressional attempt to empower itself.\n⁹⁷Clark, 559 F.2d at 689-690 (MacKinnon, J. dissenting).\nexplicitly authorized by the Constitution, any broader reading of them\n98103 S. Ct. 2764, 2784 (1983).\nis inappropriate. The investigatory power¹²⁰ of subunits of Congress\n\"Atkins, 556 F.2d at 1080-1081 (Skelton, J. dissenting).\nsupports the position that subunits of Congress can legitimately act to\n100Id. at 1080.\n101See Chadha, 634 F.2d at 433-434; Watson, supra note 4, at 1030-1043.\n\"Chadha, 103 S. Ct. at 2784.\n\"Abourezk, supra note 20, at 338-339; Atkins, 556 F.2d at 1065.\n¹⁰⁵Springer V. Government of The Philippine Islands, 277 U.S. 189 (1928). Judge\n\"Atkins, 556 F.2d at 1067-1068.\nSkelton cited this case as support for his structuralist argument. Atkins, 556 F.2d at 1081.\n\"Atkins, 556 F.2d at 1077, 1081-1082 (Skelton, J. dissenting).\n104277 U.S. at 199.\n\"\"Abourezk, supra note 20, at 336-338.\n103Id. at 200.\n114Id.; Atkins, 556 F.2d at 1062-1063.\n106Id. at 201.\n\"Clark, 559 F.2d at 685-688 (MacKinnon, J. dissenting).\n¹⁰⁷Id. at 201-202.\n\"Atkins, 556 F.2d at 1062-1063.\nYoungstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579, 634-638 (Jackson,\n\"Id. at 1080 (Skelton, J. dissenting).\nconcurring) (1952); Nixon V. Adm'r. of Gen. Services, 433 U.S. 425 (1977) (hereinafter\nU.S. CONST. art. I, Sec. 7.\ncited as Nixon).\n\"Atkins, 556 F.2d at 1062.\nSee Nixon, 433 U.S. at 441-443, which criticizes the rigid structural separation\n\"See McGrain V. Daugherty, 273 U.S. 135 (1927) (hereinafter cited as McGrain);\nanalysis of Springer and of Humphrey's Executor.\nAtkins, 556 F.2d at 1062; Cooper and Cooper, supra note 90, at 473-474.\n50 ADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE 51\nreview implementation of laws. However, the investigatory power is\nlegislature. No one faction would be able to dominate by itself, and the\ndistinguishable from a legislative veto power. The investigatory power\naccommodations required to gain political power would protect\nmay stimulate action but does not legally require it. The legislative veto\nindividuals. 130 This argument is a strong one against any lessening of\nby itself is legally effective.\nthe requirement for legislative action. It is strongest against the com-\nThe second structural support of the legislative veto is a form of\nmittee veto where the possibility of local interest is greatest. 131 It is far\nconsent doctrine. Since the president signed the initial bill authorizing\nless effective in relation to a one House veto. 132 Each House is constitu-\nthe legislative veto (or it was passed over his veto), he had his\ntionally representative per se. The constitutional averaging argument\nopportunity. 121 The weakness of this argument is that it focuses too\nis wholly inapplicable where a resolution of both Houses is required.\nmuch on the president as an individual. While an individual can\nThe structural arguments both for and against the legislative veto\nconsent to restrictions on himself, the president cannot consent to a\nappear to me to have serious flaws. Both tend to attempt to solve the\nreduction in his constitutional role. 122 Certainly, he cannot bind future\nquestion by definition. Both have a categoristic approach. Opponents\npresidents. The acceptance of the legislative veto on consent grounds\nare using a rigid model of the Constitution which would prohibit not\nwould allow one president to restrict the powers of future presidents.¹²³\nonly legislative vetos but also most modern administrative practice. 133\nIt would also allow Congress to institutionalize its powers for if it once\nSupporters would establish a new form of \"semi-law\" which does not\nobtained a two-thirds majority (in a moment of political passion),\nhave to go through the full constitutional procedures. 194 There would\nlegislative control could be preserved since, after the two-thirds major-\nnaturally be a desire by Congress to take the easier means of effecting\nity broke up or was reduced electorally, the necessity of presenting bills\nsubstantive changes in the law. The traditional American belief has\nto the president (in the legislative veto provision's area) would be\nbeen to the contrary, that the constitutional restrictions are desirable\ncircumvented. Supporters also point to the long history of legislative\nsafeguards against governmental overreaching.195\nveto provisions. While there is a long history, the reach of legislative\nvetos has been considerably broadened in recent years. 125 The actual\nexercise of the legislative veto power has been relatively infrequent\nTHE ACCOUNTABILITY PROBLEM\nuntil very recently.¹²\nAn additional argument against the legislative veto is based on\nUnder the structuralist approach to separation of powers, Congress\nbicameralism. I have not classified this argument as structural, since I\nmakes the laws. The agencies which implement the laws simply follow\nbelieve its primary focus is not rigidly textual. This \"constitutional\nthe legislative plan and lack any independent policy-setting role. 136\naveraging\"12 argument is that a primary purpose of the framers was to\nEven under the most flexible separation analysis, policymaking is at\novercome local, parochial interests. 129 These interests were to be over-\nthe core of the congressional function. 137 The real situation differs\ncome through the means of a broadly representative two-chambered\ndrastically. The administrative agencies not only exercise a ministerial\nrole; they also decide policy. 138 Far from being under the policy setting\ndirection of Congress, agencies have directly opposed the general\n¹²¹Abourezk, supra note 20, at 338-339.\n¹²Watson, supra note 4, at 1066-1067.\nat 1036-1037. See also The Federalist Nos. 51,62 (J. Madison) (J. Cooke ed. 1961).\n124See F.T.C. Report, supra note 4, at 1088.\n\"See Fiorina, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT 72-31\n125See text accompanying notes 10-19 infra.\n(1977). See also Watson, supra note 4, at 1053-1057.\n126Only 63 of 351 resolutions (less than one-fifth) introduced became effective, SENATE\n192Watson, supra note 4, at 1075-1076.\nCOMM. ON GOVERNMENTAL OPERATIONS, 2 STUDY ON FEDERAL REGULATIONS, 95th Cong.,\n133See F.T.C. V. Ruberoid Co., 343 U.S. 470, 481-488 (1952) (Jackson, J. dissenting).\n1st Sess. 161-164 (1977) (hereinafter cited as 2 SENATE COMM.).\n\"See Watson, supra note 4, at 1034-1037. There is also an additional argument against\nThe Court failed to apply its separation analysis to the agencies' right to issue binding\nregulations. See also Chadha, 103 S. Ct. 2764, 2801-2803 (White, J., dissenting).\nthe legislative veto based on art. 1, Sec. 6 making congressmen ineligible for offices.\n\"Watson, supra note 4, at 1071-1078.\nWatson, supra note 4, at 1037-1043, identifies the main purpose of the clause as preven-\ntion of corruption. 1 consider it inapplicable to the legislative veto since no officers are\n133See Myers V. United States, 272 U.S. 52, 292 (1927) (Brandeis, J. dissenting)\n(hereinafter cited as Myers).\ncreated, and there is little corruption potential aside from the self interest problem\n136Dixon, supra note 22, at 449-450.\nbelow.\n\"Chadha, 634 F.2d at 424.\n¹²⁸Watson, supra note 4, at 1051-1052.\n198Ruberoid, 343 U.S. at 487-488 (Jackson, J. dissenting).\n129/d. at 1034-1037.\n52 ADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE\n53\npolicy directive of their enabling statute. 139 The need in a democratic\nagency. 149 The Constitution intended Congress to set policy but the\nsociety to have all political, socio-economic policy decisions made by (or\nresult in CECA, supra, is that Congress is excluded, and an unelected\nat least ratified by) a representative institution will be referred to\nagency determines national policy. 150 Structuralism is based on a com-\nhereafter as accountability. 140 This notion of accountability stems from\npartmentalized reading of the Constitution. 151 Accountability, I be-\nbasic principles of American constitutional democracy. Accountabil-\nlieve, serves the higher goal of ensuring popular control of govern-\nity's original premise is that ultimate political power resides in the\nment. Accountability is much closer to the roots of the democratic\npeople, and the people, through duly elected legitimate bodies, should\ntradition. Where it conflicts with a structural reading, structuralism\ndecide the policies which will govern them.\nmust fall. Seen properly, there need not be any conflict between\nThe core notion underlying the legitimacy of administrative agen-\naccountability and separation of powers. A better view of separation of\ncies is quite different. It is a belief in expertise. 141 This notion holds that\npowers is that one branch may not intrude on the core functions of\nif agencies are to effectively set the best policy, they must be insulated\nanother branch. 152 By preserving the core role of Congress as policy\nfrom political pressure or influence. 142 The underlying premise is that\ndeterminer, a legislative veto enhances rather than diminishes the\nefficiency conflicts with popular desires, and efficiency is the higher\npurpose of separation of powers.\nvalue. 143 The notion of efficiency requiring independence from politi-\nThe major failing of the structural critique of the legislative veto is\ncal control pervades administrative law. For example, the administra-\nthat it is focused only on that subject. It does not apply the same\ntive agencies are set up to enforce a particular policy in the public\nstructural critique to the power of administrative agencies to make\ninterest. 144 The independent administrative agency commissioners\nrules and thereby set policy. The power of quasi-legislative bodies to set\nmay not be removed for political reasons but only for cause. 145 The\npolicy would violate all the criticisms which are also directed against the\nmove for a time towards imposing due process-like requirements\nlegislative veto. 153 The mere long time acceptance of administrative\nreflects the view that the agencies are modeled after the courts¹⁴⁶ and,\npolicymaking is an insufficient response. This too applies equally to\nlike the courts, must not be influenced by outside concerns. 147\nlegislative vetos. The distinction is rooted in a belief that the agencies\nThis view of administrative agencies does not comport with a sub-\nare only acting within legislatively defined parameters and, conse-\nstantial portion of their real activities. Agencies function not only like\nquently, are merely selecting means to achieve congressionally defined\ncourts but also like legislatures. Since they set policy, accountability\nends. The fullest expression of this belief is the nondelegation doc-\nrequires that the agencies be subordinate in some manner to popular\ntrine.\ncontrol. A structural analysis should severely limit the degree of con-\nThe nondelegation doctrine developed in the early years of the\ntrol over administrative agencies. In CECA, supra, the Court struck\ntwentieth century. 154 It arose in response to congressional action del-\ndown a legislative veto review over the FERC, an independent\negating power to the president.¹⁵⁵ Initially, it only allowed the executive\nto take specific action when the executive independently determined\n\"See Kelleher, Deregulation and the Practicing Attorney, 44J. of AIR LAW AND COMMERCE\nthe existence of certain facts. 156 Later it expanded to allow executive or\n261 (1978). Kelleher, as a proponent of deregulation, refers to it positively as the agency\nleading the way. Merits aside, the C.A.B. was clearly leading the way against the intent of\nagency policymaking under the general standards set by Congress. 157\nthe 1938 enabling act.\nThe executive policymaking was merely a modification of the general\n140See Javits, supra note 20, at 460.\n1415 SENATE COMM. at 26-36; Cutler, supra note 22, at 1401-02.\n142Cutler, supra note 22, at 1402-1404.\n¹⁴⁹673 F.2d at 425.\n¹⁴³Id.\n130Id. at 472-479.\n1445 SENATE COMM. at 26-36.\n\"Atkins, 556 F.2d at 1080-1081 (Skelton, J. dissenting).\n145See, e.g., 15 U.S.C. Sec. 41 (FTC); 49 U.S.C. Sec. 11 (ICC).\n\"Nixon, 433 U.S. at 442-443; Chadha, 634 F.2d at 421-423.\n146See Cutler, supra note 22, at 1402-1404; Pillsbury Co. V. FTC., 354 F.2d 952,\n\"The Supreme Court failed to apply the bicameralism and presidential presentment\n963-964 (5th Cir. 1966) (hereinafter cited as Pillsbury).\nrequirements to rules issued by administrative agencies, Chadha, 103 S. Ct. 2764, 2786.\n\"Pillsbury, 354 F.2d at 963-964. See also Home Box Office, Inc. V. FCC, 567 F.2d 9,\n¹ˢᵗHampton, Jr. & Co. V. United States, 276 U.S. 394 (1928).\n53-54 (D.C. Cir. 1977).\n153/d. at 398.\n148See Ruberoid, 343 U.S. at 487-488 (Jackson, J. dissenting); Cutler, supra note 22, at\n136/d. at 398-399.\n1399.\n\"Panama Refining Co. V. Ryan, 293 U.S. 388, 428-430 (1935).\n54 ADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE 55\ncongressional policy. 158 If Congress allowed the agency power without\nlimits, it was essentially abdicating its policymaking function. 159 This\nA weak nondelegation standard allows Congress to create agencies\nwas an excessive and, hence, invalid delegation. The Supreme Court in\nto deal with a particular problem without defining the basic policy the\nthe mid 1930s invalidated two New Deal acts on grounds of excessive\nagency is to follow. Authorizing statutes requiring the agencies to act\ndelegation. In Schechter¹⁶⁰ and Panama Refining,\" the principal evil was\n\"fairly\" have been upheld. 175 Such a limitation provides little real guid-\n\"unfettered discretion to make whatever law he thinks (desirable)\". 162\nance relating to policy, and the agency necessarily must make policy on\nThere must be limits on the executive's discretion so the Court can\nits own. The agency is not thwarting the legislative will in such a case,\nensure that the executive is following legislative policy, not making its\nsince Congress has abdicated its role as policy determiner to the\nown. 163 The Court since has allowed such extremely broad delegations\nagency. 176 The political demands made on congressmen are a major\nas determinations of \"excess profit,\"¹⁸ fair rates in the bituminous coal\nreason why Congress opts to hand over policy-setting power to admin-\nindustry and license fees for cable television. 166 The broadest exam-\nistrative agencies. 177 The creation of a government agency is a tradi-\nple of permissible delegation and the governing law¹⁶⁷ in the field is the\ntional method of responding to a demand for governmental action. 178\nwage and price controls case, Amalgamated Meat Cutters U. Connally.¹⁶⁸\nThe creation of the agency is easier if the agency is given general rather\nThis case upheld the nationwide wage and price restrictions imposed\nthan ambiguous authority over a particular area. 179 If the agency is\nby President Nixon. 169 The Supreme Court had previously upheld such\ngiven a more specific role, it usually will generate a more bitter ideolog-\na broad delegation only in time of war¹⁷⁰ or when restricted to a single\nical battle. 180 Once the agency has been created, the congressman's\nindustry.¹⁷¹ Nevertheless, the D.C. District Court sustained the delega-\nmain interaction with it¹⁸¹ is the area of constituent complaints. 182 The\ntion. It noted one limitation in the statute-that prices and wages were\ncongressman wins political credit by intervening to solve minor\nto be no lower than existed on a certain date.¹⁷² The Court also read in a\nbureaucratic snarls with the administrative agencies. 189 Since the polit-\nrequirement of reasonableness into the statute. 173 So long as Amal-\nical credit is earned by constituent service and not by policy determina-\ntion, the political incentive is to concentrate on the former and not to\ngamated remains good law,¹⁷⁴ virtually any delegation can be upheld.\nmake enemies by engaging in the latter. 184 While this pattern of con-\nduct has proven beneficial to individual congressmen, it has delete-\n159Id. at 430-432. See also A.L.A. Schechter Poultry Corp. V. United States, 295 U.S.\nrious effects upon Congress as an institution. Congress is encouraged\n495, 529-531 (1935).\nto avoid the policymaking role which is its core function. A legislative\n¹⁶⁰295 U.S. 495 (1935).\nveto provision would re-inject Congress into the policymaking sphere.\n¹⁶¹293 U.S. 388 (1935).\nCongressmen can and do currently disavow responsibility for adminis-\n¹⁶²295 U.S. at 537-538.\n¹⁶³Id. at 537-539.\ntrative agency action. 185 They can do so successfully since they lack the\n¹⁶¹Lichter V. United States, 334 U.S. 742 (1948).\npower to effectively supervise¹⁸⁶ agencies except in certain egregiously\n¹⁶⁵Sunshine Anthracite Coal Co. V. Adkins, 310 U.S. 381 (1940).\n¹⁶⁶National Cable Television Ass'n. V. United States, 415 U.S. 336 (1974). The Court\nunpopular agency actions. In those cases,¹⁸⁷ Congress will occasionally\nheld that if the language of the act (allowing the Federal Communications Commission to\n¹⁷Sunshine, 310 U.S. 381.\nimpose taxes) were read literally, there would be Schechter-type delegation problems.\n¹⁷⁶Abourezk, supra note 20, at 334-335.\nThe Court solved the problem by a narrow reading of the Act. See also Federal Energy\n\"\"Cutler and Johnson, supra note 22, at 1400.\nAdm'n V. Algonquin SNG, Inc., 426 U.S. 548 (1976) upholding the president's authority\n¹⁷Fiorina, supra note 131, at 43-44.\nto impose oil import fees \"as he deems fit\" by a similar restrictive reading of the statute.\n¹⁶⁷337 F. Supp. 737 (D.D.C. 1971) (hereinafter cited as Amalgamated).\nthreatened. 179Id. The more ambiguous the agency's power and mission, the less any group will feel\n¹⁶⁹1d. at 745.\n1811d. at 41-48.\n¹⁷⁰Lichter, 334 U.S. 742.\n¹⁸²Id. at 72-81.\n\"Sunshine Coal, 310 U.S. 381.\n¹⁹³Id. at 46.\n\"\"Amalgamated, 337 F. Supp. at 747.\n¹⁸⁴Id. at 46-47.\n1731d. at 755. The Court also noted the short duration of the statute.\n\"\"Although National Cable and Algonquin raised the delegation issue, they rather\neasily construe around it. Amalgamated itself raised the delegation issue. The end result\nthat it is the only effective means of supervision.\n¹⁸⁶Javits and Klein, supra note 20, at 460. The legislative veto's primary justification is\nin all three cases was upholding very broad delegation.\n\"See text accompanying notes 245-250, infra.\n56\nADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE\n57\noverrule the agency by statute. Both the agency and the congressman\nmore restrained or more sincere. Since there is no current congressio-\nnormally avoid political responsibility for the agency action. The\nnal responsibility for agency action, there is an incentive to speak for\naccountability value is denied under these circumstances. A legislative\npublic effect. 192 Congress might well be less critical of agencies if it bore\nveto clearly makes the agency accountable to Congress (and thereby to\nactual responsibility.\nthe people). It also increases the accountability of Congress. Since\nThe legislative veto responds to the accountability and check prob-\nCongress would now possess the power to review agency rules, indi-\nlems. The structural approach is based on an overly rigid model and is\nvidual congressmen could no longer disclaim responsibility for agency\nalso artifically limited to the legislative veto problem. However, the\nrules. They could be held electorally accountable for unpopular rules\nconstitutional provisions requiring full legislative action demand at\nthey allowed to become effective or equally for desirable rules which\nleast that if a different procedure is to be allowed in some circum-\nthey blocked. Since the political incentive would now be to more closely\nstances, all other means of achieving the desired result must first be\nsupervise agency rules, the degree of congressional involvement on\nexhausted.\nagency policymaking would increase. Congressional policymaking\nwould increase, a desirable result from an accountability standpoint.\nALTERNATIVE MEANS OF\nIn addition to the accountability benefit, there would be the value of\nPOLITICAL SUPERVISION\nlimiting agency authority. I will refer to this as the \"check\" principle.\nThe administrative agencies are relatively free in deciding policy mat-\nAn alternative to vesting review powers in Congress, through the\nters. They must, however, conform to the constitutional requirements\nmechanism of a legislative veto, is to vest review powers in some other\nagainst arbitrariness. 188 The means of promulgating policy must con-\nbranch. Faithfulness to accountability goals requires considering the\nform to the requirement of the Administrative Procedure Act. 189 Aside\npresidency, since it is the only other politically responsible branch.\nfrom these minor limitations, agencies set policies subject to review by\nExecutive review of administrative agencies has both executive¹⁹ and\nno one. The principle of check opposes any unlimited power given to\nscholarly¹⁹⁴ support. This support takes two major forms. The first\nany branch or agency. It resembles separation analysis in this respect.\nwould give the president a greater degree of indirect control over the\nThe check principle is more far-reaching, since it is directed against\nindependent agencies. The principle means of accomplishing this\nconcentrations of power without any restraints upon them. 190 It is\nwould be to expand the presidential power of removability. 195 The\ndirectly opposite to the structural analysis, in some respects, since\nsecond form would grant the president power¹⁹⁶ to control agencies\nstructuralist doctrine allows the branches to remain largely auton-\n(both executive and independent) directly. Under this proposal, the\nomous. 191 As applied to administrative agencies, the check principle\npresident could revise agencies' rules directly.¹⁹⁷\ndemands that limits be placed on the policymaking power of agencies.\nThe president's existing powers to control agencies is dependent on\nThe need to limit agencies is greater because the constitutional\nthe nature of the agency. The agencies regarded as executive agencies\nbranches are limited by each other, while the \"fourth\" administrative\nare most fully responsive to the president. His powers of control\nbranch is not limited by any of the other three. The combination of the\ninclude the power to remove subordinates¹⁹⁸ and review powers over\ncheck principle with the accountability principle (since the two run\nthe agency's rules. 199 Within the executive branch, there are also execu-\nparallel in this circumstance) requires that limits be placed on the\n\"Fiorina, supra note 131, at 42, 48.\nadministrative agencies through a politically responsible branch.\nSee the President's Committee on Administrative Management (1937-\"The\nA legislative veto would promote other goals as well. Since affirma-\nBrownlow Committee\"), Commission on Organization of the Executive Branch of the\ntive congressional action (in the form of a disapproval resolution)\nGovernment (1947-1949 \"Hoover Commission\"), President's Advisory Council on Ex-\necutive Organization (1971-\"Ash Council\")\nwould be required, the process would be public. The current congres-\n19'Cutler, supra note 22.\nsional attacks on various aspects of agency action would become either\n195This proposal would allow removal at pleasure.\nT96Cutler, supra note 22, at 1414-1417.\n1885 U.S.C. Sec. 706(2)(A), (B).\n\"Cutler would limit the revisory power to balancing conflicting statutory goals. The\n1895 U.S.C. Sec. 551 et, seq.\npresident would be required to state his reasons and his revision would be subject to a one\nHouse veto.\n¹⁹⁰Nixon, 433 U.S. at 441-443.\n198Myers, 272 U.S. 52.\n¹⁹¹Buckley, 424 U.S. at 120; Springer, 277 U.S. at 201-202.\n199Javits, supra note 20 at 488.\n58 ADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE\n59\ntive branch independent agencies.20 The presidential powers of\nThe Court restricted the removal power for the FTC to \"for cause\nremoval and review²⁰² over these agencies are restricted. Finally,\nonly.\" It was unwilling to restrict the president's removal power over\nthere are independent agencies that are not part of the executive\nexecutive branch subordinates. 211 It harmonized the two results by\nbranch. 203 The president has power to remove only for cause204 and has\nestablishing the FTC as an agency independent of executive supervi-\nno power to review agency rules.205 The president's powers over the\nsion. The Congress has since created many other independent agen-\nindependent agencies are his power of initial nomination, 206 budgetary\ncies. When an agency is made independent, it is made independent of the\nreview²⁰⁷ and political influence. He, of course, has these minor powers\npresident. Congress evinces a strong desire not to allow presidential\nover both forms of executive agencies as well. By gaining the additional\ncontrol. 213 Despite repeated executive attempts to regain removability\npowers of removal and revision over the independent agencies, the\npower, Congress has not in the past and likely will not in the future\npresident seeks to eliminate their distinguishing characteristics of inde-\nagree to a general presidential removal power over independent\npendence.\nagencies. That being the case, review powers over the independent\nPresidential attempts to gain supervisory power over the indepen-\nagencies, at least, must be sought by congressional means.\ndent agencies began as a reaction to the Humphrey's Executor20 case. The\nPresidential control over the executive branch agencies is stronger.\nCourt rejected the president's attempt to dismiss an FTC commis-\nMyers215 announced and Humphrey's²¹⁶ reconfirmed an absolute pres-\nsioner. 209 The president sought dismissal for political incompatibility.210\nidential removal power. This gives the president significant control\nover the actions of executive branch agencies²¹⁸ and satisfies the\n²⁰E.g., the Environmental Protection Agency.\naccountability goal. However, dismissal is an inefficient (and not\n20¹The president's power to remove Commissioners of the Federal Energy Regulatory\nuniversal219) method of control. The particular action might not be\nCommission is limited to cause, 42 U.S.C. Sec. 7171(b).\nimportant enough to warrant dismissal. In such cases, the president\nThe president has revisory powers over FERC rules only in an \"emergency situation\nof overriding national importance\", 42 U.S.C. Sec. 7172(c)(2).\nmust rely on a power of direct revision.\n20³E.g., FTC, ICC.\nThe power to directly revise rules is occasionally but rarely given\n20415 U.S.C. Sec. 41 (FTC); 49 U.S.C. Sec. 11 (ICC).\nstatutorily. 220 Supporters of the power see it springing from the presi-\n203The following are the minor exceptions of direct presidential authority over inde-\npendent agencies:\nPresidential approval of certificates for foreign air transportation issued by the Civil\nAeronautics Board (49 U.S.C. Sec. 1461).\nSuspension by the president of certain statutory provisions of the Federal Maritime\n2ⁿᵈ. at 629-631.\nCommission relating to the carriage of goods by sea (46 U.S.C. Sec. 1313).\n2125 SENATE COMM. at 26-33.\n213Id. at 25.\nCommencement of investigations of violations of antitrust laws by the Federal Trade\n214But cf., id. at 38, concerning the removal of Robert Timm, chairman of the Civil\nCommission at the direction of the president (15 U.S.C. Sec. 16).\nAeronautics Board. Timm resigned under pressure of presidential removal for cause.\nPresidential approval of the laying of certain submarine cables in the United States\n215Myers, 272 U.S. at 135, also gave the president removal power over members of\nunder the authority of the Federal Communications Commission (47 U.S.C. Sec. 34,\nexecutive adjudicatory commissions. This was probably intended to include agencies\n35). Assignment by the president of frequencies to government radio stations and\nsuch as the ICC and FTC.\nauthorization by the president of the operation of foreign government radio stations\n\"295 U.S. at 629-631.\nin the United States (47 U.S.C. Sec. 305).\n\"Presidential removal power ensures that the president can ultimately control his\nLimitation by the president of certain construction permits for radio stations during\nsubordinates.\nnational emergency or time of war (47 U.S.C. Sec. 308).\n\"See Morgan V. TVA, 115 F.2d 990 (6th Cir. 1940); Lewis V. Carter, 436 F. Supp. 958\n(D.D.C. 1977) (EEOC), upholding presidential power to remove executive branch inde-\nPresidential direction of the International Trade Commission to investigate injuries\npendent agency commissioners. But cf. Weiner V. United States, 357 U.S. 349 (1958), and\ncaused to domestic industries by imports (19 U.S.C. Sec. 2251).\nNader V. Bork, 366 F. Supp. 104 (D.D.C. 1973) restricting presidential removal power.\nCertain presidential determinations relating to trade policies following the investiga-\nNader held that President Nixon's dismissal of Special Prosecuter Cox was illegal. Nader\ntion by the International Trade Commission under 19 U.S.C. Sec. 2251 (19 U.S.C. Sec.\npoints up the weakness inherent in attempting to limit presidential removal powers.\n2252).\nAfter declaring the removal invalid, the court did not order reinstatement. Cox himself\n206Buckley, 424 U.S. at 124-129, 133.\nhad not sought reinstatement, and it is doubtful whether the president could be forced to\n2075 SENATE COMM. at 43-52.\naccept a subordinate against his wishes.\n208295 U.S. 602 (1935).\n\"The president may well allow secondary issues to be decided contrary to his wishes\n209Id. at 628-629.\nbecause he values the agency head more than a secondary policy.\n2¹⁰Id. at 618.\n220See note 205 supra.\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE\n61\n60\nADMINISTRATIVE LAW REVIEW\ndent's constitutional position as the head of the executive branch. 221\nthe accountability of the president. The president faces the electorate\nSince the power comes directly from the Constitution, Congress could\ntwice at most. 232 This automatically limits the popular control over a\nnot restrict it. 222 Congress by placing rulemaking power in an executive\npresident's action. This is particularly so in his second term, since he\nbranch agency has accepted potential presidential modification. 223 This\ncan no longer face the electorate. Once elected, the president often\ndoes not accord with Congress' action however. Congress often specifi-\ngrows out of touch with the electorate. The national nature of the\nissues dealt with by the president has an adverse impact on his political\ncally directs that the secretary of a cabinet department promulgate\nrules.22 This indicates an intent that the secretary, not the president,\naccountability for any particular action. 234 The president is elected or\nre-elected on basic issues such as the state of the economy or foreign\ndecides. Congress also has granted the president review powers over\ncertain executive agencies,\" an unnecessary act if the president pos-\npolicy.235 It is highly unlikely that a significant number of people will\nsesses plenary review power. Finally, the exercise of review power by\nvote for or against a president because they disagree with his revision\n(or lack of revision) of an agency rule. The principle of check is\nthe president has been relatively rare.226 To the degree that the presi-\ndent does have review powers over the executive branch, a legislative\nobserved, since there are limits on the agency, but the president is not\nveto would be unnecessary. However, where the president lacks such\nreally reviewing agency rules in line with accountability because there is\nnot a realistic threat of electoral defeat even if he makes an unpopular\npower [and possibly where he fails to exercise it²²⁷] the principles of\nchoice. The individual congressman is more likely to be held politically\naccountability and check may require some legislative review. 228\nGranting the president revisory power or removal power would\naccountable, since the public can always defeat him at the next election\nrestrain the agencies satisfying the principle of check. It might not fully\nand the public is less likely to judge their congressman on national\nissues.236\nsatisfy the accountability principle because the president and the indi-\nvidual congressmen are politically accountable in different ways. 229 The\nCongress is the preferable branch to restrain the agencies but the\nlegislative veto is only one method of doing so. The other means of\npresident is elected by the entire nation. This gives him political legit-\nimacy to address national issues that a congressman or senator with\nlimiting agencies will be reviewed next. First, it is important to note that\ntheir narrower constituencies lack.230 The president has a claim to\nCongress itself has judged these alternatives as inadequate. The\nincreasing inclusion of legislative veto provisions is itself a congressio-\nsupervising agencies to ensure they comply with his electoral man-\ndate.231 However, there are also significant problems connected with\nnal judgment that the alternatives, at best, are insufficient and a new\ntool is required.\n22'See Verkuil, Jawboning Administrative Agencies: Ex Parte Contacts by the White House, 80\nThe simplest means of restricting agency freedom is to do so initially.\nCOLUM. L. REV. 943 (1980); Note, Delegation and Regulatory Reform: Letting the President\nA clearer delegation of power would limit the agency freedom to make\nChange the Rules, 89 YALE L.J. 561 (1980). See also Javits, supra note 20 at 486-488.\npolicy contrary to congressional and public opinion.238 This would\n\"Verkuil, supra note 221, at 956-962.\n2231d. at 956-958.\nindeed restrict agency ability to set policy but it would also restrict\n22'See, e.g., 7 U.S.C. § 602 et. seq., the various Agricultural Adjustment Acts. These Acts\nagency ability to effectively implement congressional policy. The virtue\ngive the Secretary of Agriculture broad powers over commodity pricing.\nof flexibility to different circumstances would be lost. 239 If the agency is\n225See 42 U.S.C. § 7172(c)(2), allowing presidential revision of FERC rules under\ncertain circumstances.\nnot going to apply a \"checklist\" of congressional options, it is either\n226But see Javits, supra note 20, 488, noting President Ford's revocation of an HEW\nruling regarding father-son, mother-daughter activities in public schools; see also Exec.\nOrder No. 12,291 3 C.F.R.\n1981 (President Reagan's Regulatory Review order), and\nExec. Order 12,287 46 Fed. Reg. 9909 (1981) revoking petroleum price and allocation\n2ˢ2Note, supra note 221, at 582-583.\nrules.\n253Id. at 582.\n227Javits, supra note 20, at 486-488.\nNote, supra note 221, at 578-581 suggests a solution to the problem of agency\n2351d. at 582 n. 122.\nnonaccountability by creating a new Board of Regulatory Appeals. The Board would\n296Fiorina, supra note 131, at 12-28.\nbalance competing statutory goals and have the power to revise agency rules. This seems\n237See Javits, supra note 20, at 456-458. The increasing passage of legislative veto\nto me to be creating a new problem. The proposed Board would have greater powers\nprovisions indicates a congressional judgment that the other means of legislative over-\nthan do current agencies, yet it would be accountable to no one.\nsight are insufficient.\n2291d. at 582-583; Cutler supra note 22, at 1411-1412.\n23⁸Note, supra note 221, at 574-578; Verkuil, supra note 221, at 964-966.\n230Cutler, supra note 22, at 1410-1411; Fiorina, supra note 131, at 41-49.\n239Note, supra note 221, at 569-570.\n23'Note, supra note 221, at 582-583; Cutler, supra note 22 at 1410-1411.\n62\nADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE\n63\ngoing to ignore related but uncovered abuses²⁴⁰ or it is going to have to\nA variation of the legislative approach has been put forward as a\nhave a certain policy-setting role. 241\nmeans of restricting agency actions. The appropriations approach\nThe most legitimate means of control is through amendatory legisla-\namends the agency's appropriations bill and prevents it from taking\ntion. This has no constitutional problems²⁴² and is the traditional means\ncertain action. 252 This has the advantage of saving a great deal of time,\nof restricting agencies from pursuing unpopular policies. 243 The\nsince appropriations riders can be added on the floor of either House\namendatory legislation solution has two serious problems which\nand need not undergo the lengthy committee process. There is\nundermine its effectiveness as a restraint. First, the amendatory legisla-\nanother side to this advantage, since it often means the appropriations\ntion is definitely a reaction to a perceived agency error. It, therefore, is\nrestraint will be insufficiently flexible. The history of lawmaking\nonly a corrective and has little impact on the agency's general pol-\nthrough appropriations riders evinces a tendency towards extremely\nicymaking. The legislative approach will solve only the particular\nbroad solutions, for example, the Hyde Amendments restricting\nproblems engendered by a specific agency error. 244 This problem is\nabortion and the restriction on the Internal Revenue Service's regula-\ncompounded by the more serious second problem of the legislative\ntions on fringe benefits. The form of the limits is usually a restriction\nsolution.\non how the agency may spend its money. 255 The I.R.S. is, for example,\nThe success of amendatory legislation as a means of limiting agency\nforbidden to spend appropriated funds on issuing new regulations on\naction is dependent on its effectiveness in doing so. The difficulty of\nfringe benefits. 256 This has the undesirable result of freezing the status\nthe legislative process can be illustrated by the case of the seatbelt\nquo with the effect of agency inability to effectively respond to new\ninterlock rule issued by the Department of Transportation. 245 This rule\nsituations. 257 The legality of such appropriations limits is at least ques-\nmandated the installation of a system preventing operation of the\ntionable. While Congress may directly amend the law, it is uncertain\nautomobile unless the seatbelt was properly fastened. 246 There was\nwhether it can order an agency not to enforce the law. The enforce-\nwidespread popular antipathy to the rule, as well as rampant public\nment of legislative policy is traditionally considered an executive/\ndisregard. Since the agency refused to rescind the rule, Congress\nadministrative²⁵⁸ province. Congress is relatively poorly equipped to\nrepealed it through the normal legislative process. 248 This process took\neffectively force the agency to comply. It can reduce the total level of\nover a year. 249 Clearly, Congress cannot effectively restrain agencies\nagency funds available, but if the agency chooses to spend its money on\nthrough the threat of the normal legislative process. 230 Legislative\nthe particular area, Congress' means of reversing the offending rule\namendment provides little relief even when there is an extremely\nmust be to either go through the normal legislative process with the\nunpopular agency action. The relief is presumably even less for less\nproblems which that process entails (and the additional risk of a pres-\negregiously unpopular actions, and, hence, there is a gap left that\nidential veto) or resort to the courts. 259 The appropriations method is\ncannot be filled by the normal legislative process. 251\nalso flawed.\nThe Congress may use its investigatory powers to hold hearings.260\n240Id.\nChadha, 103 S.Ct. at 2786 n. 1, the Supreme Court suggested that Congress\nThe true purpose of such hearings is to summon up enough political\ndelegate its authority more clearly. While this is obviously desirable, a great deal of\nsupport to embarrass or harrass the agency into acquiescing to the\nflexibility in policy determination will necessarily remain with administrative agencies.\n242Since it is passed by both Houses and signed by the president.\n\"Javits, supra note 20, at 464.\n²⁴³Javits, supra note 20, at 460.\n253Pub. L. No. 94-439, c.209, 90 Stat. 1418 (1976), Pub. L. No. 95-205, .101, 91 Stat.\n241d. at 460-462.\n1466 (1977), Pub. L. No. 95-480, c.210, 192 Stat. 155 (1978), Pub. L. No. 96-123, c.109,\n24338 Fed. Reg. 16,073 (1973) (amending 49 C.F.R. § 571.208 (1973)).\n193 Stat. 923 (1979), Pub. L. No. 96-369, C. 101(c), 194 Stat. 1351 (1980).\n25⁴Pub. L. No. 95-427, c.1,192 Stat. 976 (1978), Pub. L. No. 96-167, c.l, 93 Stat. 1275\n\"\"Javits, supra note 20, at 463.\n(1979) amending 26 U.S.C. § 61.\n248Motor Vehicles and Schoolbus Safety Amendments of 1974, 15 U.S.C. § 1410(b).\n⁵Appropriations limits forbid an agency from using appropriated funds to enforce a\n²¹⁹Javits, supra note 20, at 463.\nparticular regulation or forbid it from writing new regulaitons on a particular subject.\n250Id. at 462-464. See also Cutler supra note 22, at 1400.\n256See note 254, supra.\n²⁵¹The Supreme Court in Chadha failed to consider this effect of voiding legislative\n257Note, supra note 221, at 569-570.\nreview. The administrative agencies have been freed from the only legal restraint that\n258Chadha, 634 F.2d at 431-432.\nhad a real impact on their actions. The paradoxical result of an attempt to prevent\n259See Clarkson and Muris, Constraining the Federal Trade Commission: The Case of Occupa-\noverreaching is that unelected, irremovable (and for these reasons, unresponsive) of-\ntional Regulation, 35 U. MIAMI L.REV. 77,90-93 (1980).\nficials can determine policy.\n2601d. at 93-99; Javits, supra note 20, at 460-462.\n64\nADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE 65\ncongressional demand and into revising or revoking its rule. 261 This\ncongressionally appointed Federal Elections Commission was an un-\nalso has the merit of being constitutionally unimpeachable.262 The\nconstitutional usurpation of the executive power of appointment.271\nprincipal drawback is its lack of ensured effectiveness. The agency will\nThe FEC had six members, four of them appointed by the senior\nin most cases submit to congressional pressure. It need not do so, and\nmembers of the House and the Senate. The FEC at that time dealt\nif it does not choose to do so, the investigatory hearing cannot force it to\nsolely with the conduct of the presidential election. 273 The congressio-\nalter its decision. 264 The investigatory hearing solution is least effective\nnal fear of improper executive influence was the justification for con-\nwhere the agency is most resistant to congressional or popular opinion.\ngressional appointment. 274 Nevertheless, the Court held the case was\nThe investigatory hearing is an inadequate solution (although a useful\ncontrolled by Springer and that the power of appointment was in-\ncomplement to other solutions) both in terms of accountability and\nherently executive.275 Direct congressional appointment, even under\ncheck.\nthe most plausible circumstances, is foreclosed by Buckley.\nThere is another method of control which is constitutionally sound.\nAnother variant is direct congressional administration of the agency.\nThe Senate has the power of confirmation of appointees.²⁶³ It was\nChadha involved such a congressional attempt to directly administer\nthought by the framers that the Senate would be able to exert signifi-\nthe deportation of aliens.276 The attorney general could suspend de-\ncant control over policy through its confirmation power. 266 There are\nportations if he made certain findings. The House, acting under the\nsome accountability problems with relying on the Senate, since it is\nauthority of a 1940 immigration statute, passed a resolution disapprov-\nmore remote from the people by virtue of its longer term and wider\ning the attorney general's action.277 The House action required that the\npolitical constituency than the House. (Congressional Representatives,\naliens be deported. 278 The committee chairman read off a list of names,\nrepresent only one district while Senators represent an entire state.)\nincluding Chadha's and the resolution was adopted on a unanimous\nThis is less important, since confirmation has proved to be an ineffec-\nconsent motion with no debate.279 Congress is poorly equipped to\ntive means of control. The appointee once confirmed is no longer\ndirectly administer programs. In attempting to do so, it disrupts the\nsubject to control by the confirming body. The appointee concerns\nrelatively orderly administrative process which is better handled by the\nhimself with following the dictates of the institution which can remove\nexecutive branch.280 Congress need not supply reasons for its actions\nhim. 267 Since Myers, the president has exclusive removal power,268 and\n(the congressional action may often be based on political influence as\nthe appointee cannot be removed by the Senate and need not submit to\nmuch as reasoned judgment), and the executive is therefore unable to\nthat body. 269 The confirmation process has therefore become relatively\nalter its actions to conform with the congressional will. 281 The D.C.\nroutinized, and appointees for senior executive and administrative\nCircuit Court also found that the congressional attempt to decide cases\npositions are rarely rejected.2⁷\nencroached on the judicial responsibility to interpret and apply the\nThe failure of the traditional methods of legislatively restraining\nlaw.282\nagencies led Congress to attempt other means of reasserting itself.\nThe opponents of the legislative veto view it as another form of\nCongress had tried to obtain for itself the power of appointment (and\ndirect congressional administration of programs. 283 While this is true of\npresumably the related power of removal which subordinates the\nchosen nominee). In Buckley v. Valeo, the Supreme Court held that a\n\"Buckley 424 U.S. at 124-129.\n²⁷²Id. at 113.\n273Id. at 109-113, 134.\n274Id. at 134.\n261See Pillsbury, 354 F.2d 952.\nat 124.\n262McGrain, 273 U.S. 135.\n276Chadha, 634 F.2d at 431-433.\n²⁶³Fiorina, supra note 119, at 65-68.\n²⁷Id. at 411.\n264Since by definition it lacks coercive power, McGrain 273 U.S. at 160-161.\nU.S. CONST. Art. II Sec. 2.\n279121 CONG. REC. 40,800 (1975).\n266Federalist No. 77 (Hamilton).\n280Chadha, 634 F.2d at 431-432.\n267Verkuil, supra note 209, at 945-946, 953.\n2811d. at 431.\n268Myers, 272 U.S. at 117.\n2821d. Justice Powell would have decided Chadha solely on the basis of the encroachment\n209Buckley, 424 U.S. at 124-129.\non the judicial function. He expressed apprehension at the breadth of the majority\n27°69, 806 of 69,929 nominations received in 1980 were confirmed (more than 99%)\nopinion, 103 S.Ct. at 2791-2792 (Powell, J. concurring).\nCONG. REC. D 1594 (1980).\n283Watson, supra note 4, at 1081-1082.\n66\nADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE\n67\nthe form of the legislative veto used in Chadha, it is not true of legisla-\nallows the chairman and special interest groups to determine the\ntive review of agency rules. Review of rules allows Congress to control\nsubstantive policies. Further, the ready acquiescence to small group\nthe policies followed by the agency without interfering with the actual\npressure circumvents some of the major virtues of the legislative veto.\nimplementation of the policies.284\nThe public on the record vote is avoided. The congressional responsi-\nbility for the rule may become perceived to be lessened, since the actual\nTHE SPECIAL INTERESTS PROBLEM\ninfluence occurred privately. The agency may even frustrate the popu-\nlar will, since it may accommodate the chairman when the general\nThe problem of special interests and committee influence is the most\ncongressional opinion may be significantly different. 293 This threat of\nserious objection to the legislative veto proposal. 285 It involves the\nagency accommodation would, if accurate, undermine the account-\naccountability principle. This principle requires that the administra-\nability feature of the legislative veto, since accountability is directed\ntive agencies be subject to popular control. A legislative veto provision\ntowards popular control, not special interest control.\nallows for popular control through the supervision of Congress.\nThe initial problem of agency regulatory deadlock is less\nHowever, the existence of a legislative veto gives the committee chair-\nimportant. 294 Factually it has usually turned out to be only delay. 295 The\nman a great deal of leverage in negotiating with agencies over pro-\nagency does eventually arrive at a rule to which Congress at least\nposed rules.286 The enhanced negotiating position of the chairman will\nacquiesces or accepts. The process of an agency submitting proposed\navoid the constitutional balancing out of special interests obtained\nrules and Congress responding by legislatively vetoing them can last\nthrough the action of one or two Houses.2 The chairman is more\nfor a considerable period of time. In a case study done on the legislative\nlikely to be beholden to the special interests regulated by the agency. 288\nveto, Professors Bruff and Gelhorn found that the risk of deadlock was\nThe special interests will not be balanced out on the floor as normally\nsignificant. 296 However, all the situations of deadlock they cite have\nhappens in the legislative process. Instead, through the mediation of\nsince been successfully resolved by the implementation of new\nthe chairman, they will exert pressure on the agency indirectly. 289 The\nregulations. 297 If Congress allows the new rules to become effective by\nagency will be conscious that its bargaining position is weak, since a\nnot disapproving, it signals that there is no longer a sufficient degree of\nlegislative veto requires that it be responsive to congressional pres-\ncongressional dissatisfaction. If the agency abandons the attempt and\nsure. 290 The agency can respond in two ways. It may choose not to bow\nrefuses to attempt to issue unpopular rules, one must ask, where is the\nto the pressure and present its regulations unmodified. Congress will\nharm. If it is that the rules are not adopted, then one is implicitly saying\nusually respond by supporting the challenged committee and vetoing\nthat regulatory deadlock is inherently bad. Deadlock in a politically\nthe regulations. Congress will also block regulations perceived as\naccountable institution occurs when the proposed change lacks enough\ninsufficiently responsive to the congressional concerns. The result will\npopular support to win approval. Democratic theory accepts that a\nbe a deadlock, and no regulations will be implemented. The other\nproposed change should not occur until it can win majority approval.\nalternative is that the agency may yield to pressure too easily.292 This\nAlthough the accommodation argument appears more compelling,\nit reflects an inaccurate view of American politics. The initial inaccu-\n28ᵗThe similarity of the independent agencies to judicial bodies might support vesting\nracy is compounded by a somewhat utopian theoretical view of the\nreview power in the courts, McGowan, supra note 22, at 1163. The courts could constitu-\nlegislative process. The legislative veto will of course increase the\ntionally exercise the power of appointment and removal. See ex parte Siebold, 100 U.S.\ninfluence of committees and their chairmen. This is not surprising.\n371 (1879); ex parte Hennen, 38 U.S. 230 (1839); Hobson V. Hansen, 265 F.Supp. 902\n(D.D.C. 1967). However, since the judiciary is itself constitutionally irremovable, vesting\nit with review powers would violate accountability principles.\n293See, e.g., Clarkson and Muris, supra note 259, at 99.\n283Watson, supra note 4, at 1034-1037; Cutler, supra note 22, at 1408-1409.\n2942 SENATE COMM. at 117-119.\n286Watson, supra note 4, at 1060-1063.\n293See note 297 infra.\n296Bruff and Gelhorn, supra note 22, at 1414-1415.\n288Fiorina, supra note 131, at 62-70.\n2971d. at 1382-1409. Federal Election Commission Rules 11 C.F.R. § 100 et seq., General\n\"Watson, supra note 4, at 1060-1063.\nService Administration Rules regarding Nixon documents 41 C.F.R. 105 Part 63.101 et\n290Bruff and Gelhorn, supra note 22, at 1378.\nseq., Federal Energy Administration 10 C.F.R. 210 (gradual decontrol by President\n2911d. at 1417-1420.\nCarter) superceded by Exec. Order No. 12,287, 46 Fed. Reg. 9909 (1981) (immediate\ndecontrol by President Reagan).\n68\nADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE\n69\nSince Congress does most of its work in committees, any legislative\nunlikely that the mere potential for congressional action will have\naction of a continuing nature will result in enhanced committee in-\nanything more than a minor impact. The leverage which the commit-\nfluence. The committees have this influence, since the whole of either\ntee chairman has is based on the realistic likelihood of one House\nHouse is too large to efficiently handle the tremendous amount of\npassing a disapproval resolution. If no or few prior resolutions have\nbusiness. The committee influence critique is in reality an objection to\npassed, the agency will have no reason to bend to legislative pressure,\nany effective legislative action. Furthermore, the committees have a\nunless its proposed rule is likely to be very unpopular. Those highly\ndual check upon them. They consist of individual members who are\nunpopular rules are legitimate targets for congressional pressure.\naccountable to the people through the election process. These mem-\nThe dynamics of the political process make it improbable that the\nbers do not face the entire electorate and may represent local interests\ncommittee chairmen or special interest groups will have a decisive\nto a certain extent. They do face an electorate in contrast to a commis-\nimpact on significant new rules. The influence of committee chairmen\nsion which faces no local pressure because it faces no election. The\nis always less significant on more important, more controversial issues.\nmembers, once elected, face the House or Senate which organizes itself\nOn these issues, members are less willing to defer to the chairman's\ninto committees. The members are accountable to their House as a\ninfluence or expertise. This is true for all of the more visible congres-\nwhole, since their House places them on the committees. The House\nsional activities. The recent congressional action defeating a dis-\nand Senate, by organizing into committees, approve the increased\napproval resolution against the sale of A.W.A.C.S. planes and other\ninfluence that the members of a committee will gain on certain matters\nmilitary equipment to Saudi Arabia is an apt example. The political\nby virtue of their position on a committee that deals with those matters.\npassions broke down the normal congressional willingness to defer to\nThe potential for agency submissiveness towards powerful chairmen\nthe chairmen. 305 Instead, each member made his own choice. A legisla-\ndepends on a number of implicit assumptions. The device must be\ntive veto on an important rule will be highly visible, and the member\nfrequently used or it lacks credibility. The actual practice is that the\nwill be held accountable since the legislative action is dispositive. The\noverwhelming majority of legislative vetos are exercised (or even\ncongressman will likely follow popular pressure or follow what he\nattempted) in a few well defined areas. 300 For example, the Congress\nbelieves to be best for the country. On the less important issues, the\nrecently imposed a legislative veto restraint on the FTC's rulemaking\ncommittee chairman's and the special interests' influence will be\npower. 301 The supporters claimed that it was a last resort to restrain the\ngreater. In Chadha, the committee chairman merely read off a list of\nFTC.302 Opponents of the provision said that the agency would be-\nnames to whom the resolution would apply. 306 There was no debate,\ncome totally malleable to congressional and special interests pres-\nand the measure was carried on unanimous consent. On important\nsure. 303 The first attempt to exercise the legislative veto provision was\nissues, the matter is more fully debated. The responsibility for agency\nnot made for over a year after Congress granted itself the power. 304 It is\nmistakes that the legislative veto would place on Congress will tend to\nencourage greater independence and questioning by the congress-\n298See generally WILSON, CONGRESSIONAL GOVERNMENT (1879); Fiorina, supra note 131,\nmen. However, on a great number of the more routine, less generally\nat 62-65.\ncontroversial issues, the congressmen will probably go along with their\nU.S. CONST. art. I, Sec. 5.\nchairman. The danger is that these less visible issues may be less\n\"Between 1960 and 1975, 351 resolutions of approval (and disapproval) were intro-\nduced. Over 300 dealt with only five areas-(1) disposal of materials from the national\nimportant to the general public, but may be very important to a narrow\nstockpile (2) executive reorganization plans (3) federal employee pay levels (4) proposed\nspecific group. To a degree, this is a danger inherent in any elected\nBudget expenditure deferrals and recissions (5) foreign assistance. More than half of the\nresolutions enacted dealt with Budget deferrals and recissions, 2 SENATE COMM. at\n163-164.\nboth the substantive merits and the constitutional implications before it also vetoed the\nU.S.C. § 57(a)-1.\nrule by a vote of 286 to 133, 128 CONG. REC. H2882-83 (daily ed.) (See particularly the\n302128 CONG. REC. H3856-3873 (daily ed. May 20, 1980) (See particularly the remarks\nremarks of representatives Dingell and Glickman at 2856-83). In a per curiam decision\nof Representatives Fenwick and Frenzel).\nrelying wholly on its earlier decision in CECA, the D.C. Circuit in Consumers Union of\n303128 CONG. REC. S5676-5690 (daily ed. May 21, 1980) (See particularly the remarks\nthe United States, Inc. V. FTC, 691 F.2d 575, 577-78 (D.C. Cir. 1982) held this legislative\nof Senators Ford and Metzenbaum).\nveto of the FTC's rule unconstitutional. See note 84 supra.\n*The FTC's proposed rule on used car dealer warranties was overturned by the vote\nSee, e.g., 128 CONG. REC. S9673-9675 (daily ed. Sept. 15, 1981). Sor H9926-9928\nof both Houses. The Senate passed the veto resolution on May 18, 1982 by a vote of 69 to\n(daily ed. Sept. 17, 1981), H7236-7307 (daily ed. Oct. 14, 1981).\n27, 128 CONG. REC. S5402 (daily ed.). The House of Representatives fully discussed\n\"121 CONG. REC 40,800 (1975).\n70 ADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE\n71\nbody. Intensity of concern about an issue can substitute for general\nlimited to reviewing agencies. The legislative veto should deal only with\npopularity. However, the congressman who defers to the special in-\npolicy determination. The actual administration of policies is not prop-\nterest is gambling that the results will not be SO bad that at the next\nerly within Congress' role. 314 The legislative veto should not be used to\nelection he will be held responsible. This will tend to make congress-\nimpinge on presidential prerogatives. The Constitution allows the\nmen hesitate before acquiescing to any call to veto an agency's rules.\npresident few areas of broad power. Broad powers exist in such areas\nThe agencies themselves are not likely to be overaccommodating\nas military and foreign affairs precisely because such areas require\ntowards Congress.3 They were created to be independent. They now\nquick decisions and flexibility. Only an egregious error that would\nact independently.308 There will be a certain amount of behind the\ncommand two-thirds support in both Houses should enable Congress\nscenes bargaining. The agencies will not go too far in accommodating\nto override the president in such matters.\ncongressional pressure out of a sense of bureaucratic self-interest.\nA legislative veto mechanism should require a positive vote of dis-\nAgencies will not allow Congress to totally dominate them. These\napproval by at least one House. Accountability requires that if Con-\npredictions which I have developed are supported by the Bruff and\ngress truly disapproves of a regulation, it should be forced to vote it\nGelhorn case study. The study showed that although negotiations\ndown openly. The alternative of allowing the rule to become effective\ngenerally did occur, the agencies were willing to make concessions only\nonly if Congress approves it gives factions within Congress too much\nup to a certain point. When this point was reached, the agencies were in\npower. It explicitly invests each rule with congressional approval, but it\nsome cases able to issue regulations, while deadlock occurred in other\nalso makes it too easy for factions within Congress to block a proposed\ncases.310 One agency was an exception to this pattern, and in drawing\nrule (by delay for example).\nup rules it caved in to congressional pressure. 311 This agency was the\nThe resolution of disapproval should be an up or down vote without\nOffice of Education (which has since become the Department of\nopportunity to amend the proposed rule. A danger of the legislative\nEducation) in the Department of Health, Education and Welfare. The\nveto device is that Congress may use it to enact substantive law.318 A\nlegislative veto concerned Basic Educational Opportunity Grants, a\nnon-amendability requirement would prevent Congress from rewrit-\npolitically popular measure.312 An executive agency may be willing to\ning the regulation through the form of amendment. This would be\naccede to congressional pressure on such a politically popular measure.\nimpermissibly similar to enacting substantive law.\nThe executive agency can always rely on presidential support to halt\nSimilar reasons demand that at least one House take action. A\ncongressional encroachment, if necessary. The agencies in the case\ncommittee veto gives too much authority to a relatively small unrepre-\nstudy generally were willing and able to resist congressional pressure. 813\nsentative body. The reality of the legislative veto may well be that on\nSince continued agency independence is desirable from the agency's\nmany routine matters there will be a committee veto in fact. 319 But the\nperspective, this willingness to resist makes accommodation unlikely.\nform of action by the whole body is important. On many routine laws,\nthe committee is also deferred to. The one House resolution allows for\nthe opportunity of action by the entire House. This opportunity suf-\nLIMITATIONS\nficiently distinguishes the one House veto from the committee veto.\nCertain legitimate limitations should be imposed on the legislative\nThe use of certain forms of the legislative veto in certain narrow\nveto. The purpose of these measures will be to ensure that Congress is\nareas has been approved by some opponents of the legislative veto. 320\n\"Chadha, 634 F.2d at 431-432.\n\"Four of the five agencies in the case study resisted congressional pressure, Bruff and\n³¹⁵The War Powers Act, 50 U.S.C. § 1541 and the Arms Export Control Act, 22 U.S.C.\nGelhorn, supra note 22, at 1382-1409.\n§ 2755(d) are examples of invalid encroachments on clearly presidential prerogatives. See\n308Clarkson and Muris, supra note 259, at 98-101, 104-105.\nalso Nixon, PUB. PAPERS 893-895 (1973) (veto message on the War Powers Act).\n\"The Supreme Court's decision in Chadha will have the effect of driving agency\n910Cutler, supra note 22, at 1410-1411.\naccommodations behind closed doors. Since the bargaining will occur in secret, Con-\nsircf. Watson, supra note 4, at 1071-1078. Allowing one House to block the actions of\ngressmen will be able to avoid political responsibility for their impact on administrative\nthe other House is said to preserve the principle that there be no substantive change in\nregulations.\nthe law without the consent (or acquiescence) of each House.\n\"Bruff and Gelhorn, supra note 22, at 1382-1409. But on deadlock, see note 297 supra.\ns¹⁸Atkins, 556 F.2d at 1080 (Skelton, J. dissenting).\n\"Id. at 1382-1385.\n\"See, e.g. 121 CONG. REC. 40,800 (1975).\n3121d. at 1383.\n\"See, e.g., Watson, supra note 4, at 1071-1072; Cutler, supra note 22, at 1414; Dixon,\n3)31d. at 1409-1411.\nsupra note 22, at 484.\n72\nADMINISTRATIVE LAW REVIEW\nHOLDING INDEPENDENT AGENCIES ACCOUNTABLE 73\nThe use of legislative vetos in areas such as governmental reorganiza-\npolitics can and has meant independence from popular control. 330\ntion is acceptable, since the organizational structure of government\nAmerican democratic principles are resolutely based on the belief that\ndoes not affect substantive rights. The form of legislative veto\npower is ultimately derived from the people. The enhanced supervi-\napproved is initial presidential submission with one or both Houses\nsion of agencies by a body that, for all its imperfections, is electorally\nrequired to disapprove the presidential submission to block it from\nresponsible furthers this principle of accountability. Such accountabil-\nbecoming effective. 322 This so-called \"reverse legislation\" is a reversal of\nity is not only constitutionally legitimate, it is sound policy as well.\nthe normal process, since the president acts first but is substantively\nsimilar to normal legislation. 323 The legislative veto upheld in Atkins was\na reverse legislation-type of legislative veto. 324 While this form is accept-\nable, it does not address itself to the real problem of making agencies\naccountable. 325 It is therefore inadequate as a solution to the problem of\nrestraining agencies.\nThere are also a variety of relatively minor problems connected with\nthe effective implementation of the legislative veto. These include a\nlack of effective scrutiny by Congress, an increased workload making it\ndifficult for Congress to deal with other matters, the possibility of\nagencies using adjudication to avoid legislative review and the judicial\ninterpretation to be placed on regulations not blocked by Congress.\nThe responsibility for agency action which a legislative veto will impose\non Congress will encourage congressional scrutiny. The fear of in-\ncreased workload causing a congressional backlog has not material-\nized in the actual exercise of legislative veto responsibility. The\nagencies can be prevented legislatively from using adjudication to\npromulgate policies. The courts will insist that a legislative veto is\nlimited to policy approval (as it is or should be) and has no impact on\nthe legality or constitutionality of the regulation or the law. 327\nSUMMARY\nThe legislative veto is an attempt by Congress to restrain the inde-\npendent agencies. 328 The congressional action represents a certain\ndisenchantment with independent agencies.329 Independence from\n\"Dixon, supra note 22, at 484.\n\"Watson, supra note 4, at 1071-1072.\n32'Atkins, 556 F.2d at 1057, 1070-1071.\n325Watson, supra note 4, at 1081-1082 explicitly rejects this form as inapplicable for\ncongressional review of agencies.\n3262 SENATE COMM. at 120-122.\n327The legislative veto of rules is purely a policy control device, Javits, supra note 20, at\n494-495.\n***Abourezk, supra note 20, at 327; Javits, supra note 20, at 462-465.\nST9Cutler, supra note 22, at 1399, 1409.\n⁹³⁰Id. at 1399.\nWHITE HOUSE LAW LIBRARY\nROOM 528 CEOB\n(202) 395-3397\nDate 6/23/84\nTo John Doberts\nRoom No.\nFrom Angie nuch\nTo Keep\nTo Borrow (Date Due\nPer Your Request/Per Our\nConversation\nFYI\nMessage: This volume is\navailable in Ole law\nlibrary\n98th Congress\n}\nCOMMITTEE PRINT\n2d Session\n{\nSERIAL No. 13\nSPECIAL REPORT\nOF THE\nCOMMITTEE ON THE JUDICIARY\nHOUSE OF REPRESENTATIVES\nNINETY-EIGHTH CONGRESS\nSECOND SESSION\nIDENTIFYING\nCOURT PROCEEDINGS AND ACTIONS OF VITAL\nINTEREST TO THE CONGRESS\nTHE LEGISLATIVE VETO:\nImmigration and Naturalization Service v. Chadha\nand Related Cases\nPrinted for the use of the Committee on the Judiciary\nU.S. GOVERNMENT PRINTING OFFICE\n30-424 0\nWASHINGTON : 1984\nFOREWORD\nOn June 23, 1983, the U.S. Supreme Court issued a landmark de-\ncision, Immigration and Naturalization Service U. Chadha. At issue\nwas the so-called legislative veto-a device by which Congress re-\nserves unto itself the power to override Executive branch decisions\nwithout passing a formal law. In holding the legislative veto uncon-\nstitutional, the Court declared that Article I of the Constitution\nclearly sets forth the process by which Congress may exercise legis-\nlative power. The legislative veto, said the Court, simply does not\ncomport with that process.\nCurrently there are fifty-six legislative vetoes scattered through-\nout the U.S. Code. These deal with matters ranging from the provi-\nsion of foreign assistance to countries that violate human rights\n(the International Development and Food Assistance Act of 1975) to\nthe legitimacy of rules published by the Federal Trade Commission\n(the Federal Trade Commission Improvements Act of 1980). It is\ntherefore no exaggeration to state that the Chadha decision has\nsignificantly affected the distribution of powers among the three\nbranches of government.\nThis special report, which was written and compiled pursuant to\nthe Speaker of the House's directive that the Committee on the Ju-\ndiciary identify and report on \"court proceedings and cases of vital\ninterest to the Congress,\" traces the history of the Chadha case. In-\ncluded herein are the various briefs, documents, and decisions con-\ncerning the litigation, as well as our own synopsis of the case. In\naddition, this volume contains synopses of several other legislative\nveto cases, along with all the major judicial decisions rendered in\nthose cases.\nIt is my belief that the publication of this comprehensive compi-\nlation of decisions, pleadings, documents, and synopses will serve to\nheighten understanding of the Supreme Court's decision and will\nprove to be an invaluable aid to Congress as it attempts to reexam-\nine its role within the American system of government.\nPETER W. RODINO, Jr.,\nChairman, House Committee on the Judiciary.\n(III)\nCONTENTS\nPage\nForeword\nIII\nI. Immigration and Naturalization Service U. Chadha:\nA. Summary of the case\n3\nB. Key decisions and pleadings filed in the case:\n1. June 25, 1974 Opinion of the Immigra-\ntion Judge\n19\n2. House Resolution of Disapproval (H.\nRes. 926)\n21\n3. July 18, 1977 Brief of Jagdish Rai\nChadha in the U.S. Court of Appeals\nfor the Ninth Circuit\n22\n4. November 4, 1977 Circuit Court Brief of\nthe Immigration and Naturalization\nService\n94\n5. Immigration and Naturalization Serv-\nice's Suggestion that the Circuit Court\nInvite the Submission of Amici Curiae\nBriefs\n146\n6. February 27, 1978 Circuit Court Amicus\nCuriae Brief of the House of Represent-\natives\n151\n7. Senate Resolution Authorizing the Sec-\nretary to Appear as Amicus Curiae (S.\nRes. 338)\n219\n8. February 27, 1978 Circuit Court Amicus\nCuriae Brief of the Senate\n221\n9. March 22, 1978 Circuit Court Reply\nBrief of the Immigration and Natural-\nization Service\n273\n10. May 1, 1978 Circuit Court Supplemental\nBrief of Jagdish Rai Chadha\n293\n11. May 4, 1978 Circuit Court Supplemental\nAmicus Curiae Brief of the House of\nRepresentatives\n304\n12. May 4, 1978 Circuit Court Supplemental\nAmicus Curiae Brief of the Senate\n319\n13. May 15, 1978 Circuit Court Supplemen-\ntal Brief of the Immigration and Natu-\nralization Service\n344\n14. December 22, 1980 Opinion of the U.S.\nCourt of Appeals for the Ninth Circuit\n357\n(V)\nVI\nPage\n15. May 1, 1981 Jurisdictional Statement of\nthe Immigration and Naturalization\nService in the U.S. Supreme Court\n392\n16. February 4, 1981 Motion to Intervene of\nthe House of Representatives\n421\n17. June 22, 1981 Petition for a Writ of\nCertiorari of the House of Representa-\ntives\n426\n18. June 22, 1981 Petition for a Writ of\nCertiorari of the Senate\n462\n19. June 22, 1981 Motion to Dismiss of the\nHouse of Representatives\n503\n20. June 22, 1981 Motion to Dismiss of the\nSenate\n523\n21. November 19, 1981 Supreme Court Brief\nof the House of Representatives\n532\n22. November 19, 1981 Supreme Court Brief\nof the Senate\n620\n23. December 31, 1981 Supreme Court Brief\nof Jagdish Rai Chadha\n678\n24. January 12, 1982 Supreme Court Brief\nof the Immigration and Naturalization\nService\n743\n25. January 8, 1982 Supreme Court Motion\nand Brief of the American Bar Associa-\ntion\n832\n26. February 12, 1982 Supreme Court Reply\nBrief of the House of Representatives\n868\n27. November 22, 1982 Supreme Court Sup-\nplemental Brief of the House of Repre-\nsentatives\n888\n28. June 23, 1983 Opinion of the U.S. Su-\npreme Court\n941\nII. Related Cases on the Legislative Veto and the Legisla-\ntive Directive:\nConsumer Energy Council of America v. Federal\nEnergy Regulatory Commission\n1007\nProcess Gas Consumers Group U. Consumer Energy\nCouncil of America\n1007\nConsumers Union U. Federal Trade Commission\n1012\nAmerican Federation of Government Employees v.\nPierce\n1015\nAmerican Foreign Service Association U. McPherson\n1023\nPacific Legal Foundation U. Watt\n1025\nMountain States Legal Foundation v. Watt\n1025\nLewis v. Sawyer\n1048\nIII. Related Decisions:\nConsumer Energy Council of America U. Federal\nEnergy Commission, 673 F.2d 425 (D.C. Cir. Jan.\n29, 1982)\n1063\nConsumers Union U. Federal Trade Commission, 691\nF.2d 575 (D.C. Cir. Oct. 22, 1982) (en banc)\n1125\nVII\nPage\nPage\nof\nAmerican Federation of Government Employees U.\non\nPierce, Civil Action No. 82-3111 (D.D.C. Nov. 15,\n392\n1982)\n1129\nof\nAmerican Federation of Government Employees U.\n421\nPierce, 697 F.2d 303 (D.C. Cir. Dec. 8, 1982)\n1133\nof\nAmerican Foreign Service Association U. McPherson,\nca-\nCivil Action No. 81-2073 (D.D.C. Nov. 30, 1982)\n1141\n426\nPacific Legal Foundation U. Watt and Mountain\nof\nStates Legal Foundation v. Watt, 529 F. Supp. 982\n462\n(D. Mont. Dec. 16, 1981, amended Jan. 19, 1982)\n1143\nhe\nPacific Legal Foundation v. Watt and Mountain\n503\nStates Legal Foundation U. Watt, Civil Action Nos.\nhe\n81-141-BLG and 81-168-BLG (D. Mont. March 23,\n523\n1982)\n1173\nief\nPacific Legal Foundation v. Watt and Mountain\n532\nStates Legal Foundation U. Watt, 539 F. Supp.\nief\n1194 (D. Mont. June 3, 1982)\n1181\n620\nLewis U. Sawyer, Civil Action No. 82-1515 (D.D.C.\nief\nJuly 2, 1982)\n1191\n678\nLewis U. Sawyer, 698 F.2d 1261 (D.C. Cir. Feb. 4,\nief\n1983)\n1199\n743\nia-\n832\noly\n868\nip-\nre-\n888\nu-\n941\nla-\n1007\n1007\n1012\nv.\n1015\n1023\n1025\n1025\n1048\n1063\n1125\nlegist\nfile\nAfter the\nCongressional\nRobert S. Gilmour\nVeto:\nBarbara Hinkson Craig\nASSESSING THE ALTERNATIVES\nCongressional choice of effective replacements for the recently banned\nlegislative veto will require an accurate understanding of the actual\nresults of the now unconstitutional device. The impact of the veto\nvaried strikingly depending on, among other things, the type and target\nAbstract of the veto and on the principal sites of review in Congress itself. No\nsingle mechanism will suffice. Rather a variety of devices are available\nand under consideration. The underlying question raised by this\nanalysis is which effects of the veto are worth perpetuating in light of\npast results and stated congressional objectives.\nThe U.S. Supreme Court, in its historic Chadha decision¹ of June\n23, 1983, appeared, in one stroke, to overrule virtually every va-\nriety of more than 200 congressional vetoes enacted over the span\nof 50 years.² Statutory provisions requiring the president or his\nsubordinates to submit proposed orders, regulations, and plans to\nCongress for review and potential veto by majority vote of one or\nboth houses of that body had, in the court's view, impermissibly\naltered the constitutional process. Once Congress has made the\noriginal choice to delegate to the executive, Chief Justice Burger\nwrote for the majority, it may change the implementation of del-\negated authority \"in only one way; bicameral passage followed by\npresentment to the President.\" Lest any doubt remain about the\ncourt's meaning, just two weeks later it ruled legislative vetoes\nunconstitutional in the Natural Gas Policy Act of 1978 and in the\nFederal Trade Commission Improvements Act of 1980.\n\"Congressional veto,\" however, is one phrase for many devices.\nApplied in different forms to a wide range of policy areas, the\ncongressional veto has produced varied results. If precise replace-\nments are now to be adopted, an assessment of those results is the\nnecessary first step.\nJournal of Policy Analysis and Management, Vol. 3, No. 3, 373-392 (1984)\n© 1984 by the Association for Public Policy Analysis and Management\nPublished by John Wiley & Sons. Inc.\nCCC 0276-8739/84/020373-20$04.00\n374\nAfter the Congressional Veto\nA MULTITUDE OF Although Congress has made increasing use of the veto process\nRESULTS during the past decade, debate has persisted over its desirability.\nCongressional proponents assert that the veto returns lawmaking\npower to \"our democratically elected representatives,\" who there-\nupon curb the excesses of \"lawless\" and \"overzealous\" bureau-\ncrats or cut short the adventures of an \"imperial\" president. Fur-\nthermore, it is said, the legislative veto \"opens up\" the adminis-\ntrative process and makes it more democratic.\nIn actual fact, only a small number of executive actions have\nbeen overturned by vetoes of one or both houses. Since the first\nlegislative veto provision was adopted in a 1932 executive reor-\nganization act, Congress has approved only 125 resolutions ve-\ntoing presidential or agency actions.³ Of those more than half (66)\nhave been rejections of presidential spending deferrals. Of the\nremaining 59 vetoes actually exercised, 24 were disapprovals of\npresidential reorganization plans. In sum, during 50 years of ex-\nperience there were no vetoes of presidential initiatives in foreign\naffairs and only 35 vetoes of agency regulations, projects, or de-\ncisions. However, the threat of a veto as well as the application\nof veto reviews by Congress have had a potent influence on policy\ndecisions.\nCareful analysis shows that the effect of the congressional veto\ndepends not only on its form and the policy area involved, but also\non the intended target of the veto power and on the effective site\nof review in Congress. Depending upon the intended target of veto\nreview-specified in law as either presidential or agency action-\nand the subject matter under review, the critical action in a veto\nreview process could involve any of four principal relationships:\nthe president and congressional leadership, often involving many\nor most members of Congress in open debate; the president or\nexecutive office staff and individual standing committees; inde-\npendent commissions or executive regulatory agencies and\ncongressional leadership as well as many or most members at\nlarge; and regulatory agencies and their oversight committees,\nsubcommittees, and staff.\nCompelling The primary result of congressional vetoes applied directly to the\nConsultation president and his highest advisors has been to compel leveraged\nand visible consultation with the Congress. Historically, Congress\nhas not played an important role in foreign policymaking. How-\never, throughout the 1970s, as domestic and foreign policy became\nincreasingly entwined, particularly in reaction to the Vietnam\nwar, Congress began to assert its long-neglected authority. In act\nafter nearly a dozen in all-the legislative veto became a\nprimary means by which Congress sought to control the power of\nthe president in foreign affairs. And while no presidential initia-\ntive has ever been vetoed under these laws, in some cases, such as\nthose involving arms sales, the final policy decisions have been\ndemonstrably altered. In other cases, the veto has had no dis-\ncernible impact on either the decision-making process or the out-\ncomes. The War Powers Act veto, for example, has proven an\nAfter the Congressional Veto\n375\nineffectual check on presidential actions. A brief analysis of the\napplication of foreign policy veto provisions brings to light some\nof the reasons for these varied results.\nCongressional support for a veto provision over arms sales, for\ninstance, came in response to the exponential growth of foreign\nmilitary sales and the recognition that these arms transfers had\nbecome a major instrument of U.S. policy. To redress what many\nin Congress saw as a serious deficiency in the decision-making\nprocess governing arms sales, a formal procedure was devised to\npromote congressional participation in the deliberations on arms\nsales. As modified by subsequent amendment and practice, the\nlaw now requires the president to report to Congress sales of $14\nmillion or more for single items and $50 million or more for pack-\nages. Congress has 30 days to veto such a sale by concurrent res-\nolution. Nevertheless, the president has statutory power to waive\nthis review period by declaring that \"an emergency exists which\nrequires the proposed sale in the national security interest of the\nUnited States.\"4\nAs exercised by Congress, the procedure has not been used to\nthwart arms sales proposed by the president; rather, the threat of\na veto has forced the president on several occasions to make pro-\nposals more acceptable by adjusting numbers, eliminating com-\nponents, or attaching stipulations on use of the weapons. The\nresult has been a consultation and negotiations process between\nthe president and Congress.\nThere have been only five arms sales proposals since 1974 that\nhave become the subjects of debate because of veto threats. In\neach case the president has been willing to modify his proposal to\nmake it more acceptable, thereby forestalling every veto so far.\nFor example, in 1976 President Ford cut the number of Maverick\nand Sidewinder missiles to be sold to Saudi Arabia; and in 1978\nPresident Carter provided various assurances to Congress that\nSaudi fighter aircraft purchased from the U.S. would have limited\noffensive capabilities and would be stationed out of striking dis-\ntance of Israel.\nAll five veto threats concerned nations in or near the Middle\nEast or the Persian Gulf. Four involved a powerful, vocal, and\nwell-organized domestic constituency. Through its American Is-\nrael Public Affairs Committee (AIPAC), whose purpose is to \"nur-\nture the U.S. alliance with Israel and to prevent alliances with\nArab nations from jeopardizing Israel's security,\" the Israel lobby\nhas been instrumental in focusing congressional attention on these\narms sales proposals.⁵\nAlthough these five sales represent billions of dollars, they con-\nstitute only a small proportion of the value and number of arms\nsales proposals submitted to Congress by presidents since 1974.\nMoreover, the record does not show that Congress has used the\nveto as a means to exercise sustained oversight. In those instances\nwhen Congress has seriously challenged an arms sale proposal,\nthreatening a resolution of disapproval, it has been able to effect\nsignificant changes in the president's plans. However, such com-\n376\nAfter the Congressional Veto\npromise by the president has not resulted when Congress failed to\nmake a convincing show of force. For example, when President\nReagan notified Congress of his proposed sale of 40 F-16 warplanes\nto Pakistan less than a month after a major battle over the Saudi\nAWACS sale, no resolutions of disapproval were reported, despite\nthe fact that the sale threatened the delicate balance of power\nbetween two traditional enemies.⁶ Absent a powerful domestic\nconstituency, as in the Israel protection cases, or the high visibility\nprovided by media focus on the issue, Congress was not moved to\ninvolve itself significantly in this arms sale proposal. Predictably,\nthe administration was not inclined to negotiate.\nSince pressure from the media and powerful constituencies also\nhas an impact on the president, he will often prefer to include\nCongress in controversial decision-making. Then any political\ndamage resulting from his proposals will be shared. In forgoing\nthe emergency waiver option in the Saudi AWACS sale,⁷ for ex-\nample, Reagan was forced to expend an enormous amount of po-\nlitical influence in bargaining with Congress. When he succeeded\nin fending off a legislative veto his political credibility was\nstrengthened.\nAs with arms sales, War Powers legislation consists of three de-\nvices to compel presidential consultation with Congress in deci-\nsion-making: a requirement that the president consult with Con-\ngress before introducing armed forces into hostilities; a require-\nment that the president make a formal report to Congress within\n48 hours of the deployment of troops in hostile areas; and a 60-\nday time limit extendable by 30 days on presidential action\nwithout congressional approval. This last stipulation includes a\nconcurrent-resolution veto enabling. Congress to terminate presi-\ndential use of the armed forces during that period.\nCongress has not used its veto power under the War- Powers\nResolution to stop the presidential use of armed forces or even to\ncompel consultation. Indeed, there is no evidence that the War\nPowers veto has had any effect whatsoever. Despite opposition bv\nmembers of Congress, U.S. military advisors have been in El Sal-\nvador since March 1981, and Marines have been in Lebanon since\nAugust 1982. No member has tried to force withdrawal through\nthe introduction of a veto resolution. In fact, until recent efforts\nto limit the use of American troops in Lebanon, no withdrawal\neffort of any sort has made headway in Congress. When an amend-\nment requiring military advisors to depart El Salvador within 30\ndays after the bill's enactment was defeated (11 to 19) in the House\nForeign Affairs Committee, losing members took the issue to court.\nDismissing the case, the judge declared that Congress, \"must ei-\nther take action to express its views that the War Powers Reso-\nlution is applicable to the situation and that a report is required,\nor, if it desires immediate withdrawal of forces, pass a concurrent\nresolution directing removal of the forces.\n\"8 In effect. the only\nmajor impact of the War Powers Act has been to afford congres-\nsional leadership and committee members a vehicle for presenting\ntheir views to the media.\nAfter the Congressional Veto\n377\nAssessment of the effects of veto reviews applied to foreign trade\nand aid legislation is difficult because Congress has attempted few\nsuch actions. Of the several efforts made, none has been suc-\ncessful, and there is little evidence that the attempts themselves\nhave prompted presidential consultation with Congress or modi-\nfication of ultimate decisions. A veto designed to protect industry\nfrom injurious imports went unused for two decades until 1978.\nThen resolutions to override President Carter's denial of protec-\ntionist action died in committee.⁹\nProtecting Presidential The basic legislative model for presidential reorganization of gov-\nPlans ernment was established in 1949. It authorized \"plans\" proposed\nby the chief executive to take effect, subject to a one-house veto.\nAlthough reorganization was always justified in part as an effort\nto achieve savings, realists recognize that primary benefits are\nmanagerial and political.\nThe alteration of prior organizational arrangements threatens\nthe interests of agencies and their congressional overseers,\narousing jurisdictional jealousies. If such feelings find expression\nthrough the traditional legislative process, the coherence of an\norganizational plan is likely to be comprised if not destroyed,\nThus, delegation of organizing power to the president, subject to\nthe legislative veto, offered a way of preserving the integrity of a\ntotal plan in the interest of worthwhile, if controversial, change.\nIf protest is raised to the plan, the president can, within a stipu-\nlated time, appeal directly to the full membership of either house\nfor support of the total package. He can bypass both the leader-\nship and the legislative committee seniors if they are unsympa-\nthetic.\n10\nThe integrity of presidential reorganization plans was not pre-\nserved without complications. Presented with a nonamendable\nplan, Congress was faced with an all-or-nothing choice so that\nentire programs were sometimes defeated. For example, when\nCongress turned down a new department of urban affairs in 1962,\nit was widely regarded as a debilitating blow to President Ken-\nnedy, casting a pall over prospects for his entire legislative pro-\ngram. In fact, nearly a fifth of all presidential reorganization\nplans submitted between 1949 and 1980 were vetoed. Reorgani-\nzation by presidential plan presents difficulties from a congres-\nsional perspective as well. Time limitations constrain investiga-\ntion of the plan's merits and defects, and coveted agency-com-\nmittee relationships may be imperiled.\nWith passage of reorganization acts subsequent to the prototyp-\nical 1949 act, there has been \"a gradual, yet persistent, erosion of\nthe President's reorganization authority. His flexibility has\nbeen curtailed in establishing or abolishing departments or inde-\npendent agencies, in dealing with more than \"one logically con-\nsistent subject matter,\" and in eliminating enforcement functions\nor agency programs. Agencies such as the Legal Services Corpo-\nration and the Synthetic Fuels Corporation have been exempted*\naltogether from presidential organization authority.\n378\nAfter the Congressional Veto\nThe presidential plan approach has also been applied to the\ndevelopment of a national gasoline rationing program. In 1979,\njust as the gas lines began forming, President Carter submitted to\nCongress a contingency rationing plan in compliance with the En-\nergy Policy and Conservation Act of 1975. The entire plan fell to a\nveto widely described as \"a severe political setback\" to the pres-\nident. 12 Carter then called upon the legislative branch to develop\nits own proposals. Instead, Congress passed a law that would\nmake future vetoes of rationing plans unlikely. The Emergency\nEnergy Conservation Act of 1979 altered the previous procedure\nso that presidential rationing plans could be disapproved only by\na joint resolution and within 30 days of submission. Under this\nauthority, a revision of Carter's 1979 plan was adopted on July 30,\n1980. Still, activation of the plan is predicated on a 20% shortfall\nin fuels and is subject to a one-house resolution of disapproval.\nInfluencing During the 1976 presidential campaign, candidate Carter prom-\nManagement ised a drastic reorganization of the federal bureaucracy. However,\nthe 1977 Act passed by Congress substantially diminished presi-\ndential reorganizing power that had been routinely granted in the\npast. By permitting the president to amend organization plans\nafter submission to Congress, the 1977 Act in effect precluded pas-\nsage of a total, coherent plan. With the threat of a legislative veto\nin the near background, \"Congress may now recommend amend-\nments requested by interest groups, and the president may be\nobliged to submit them as a price for passage. The amendment\noption itself is now one of the bargaining chips in the negotiations\nbetween Congress and the President.\nIn fact, five of the ten reorganization plans submitted by Carter\nwere amended. Because of other statutory limitations on presi-\ndential reorganization by plan, the most significant organizing\nefforts of the Carter administration-creation of the Departments\nof Energy and Education and (for the most part) the reorganized\ncivil service system-were accomplished by the ordinary legisla-\ntive process.\nA more telling exercise of congressional veto control over pres-\nidential management has occurred in the budget process. Im-\npoundment provisions of the Budget Reform Act of 1974 oblige\nthe president to submit proposals for \"rescissions,\" the reduction\nor repeal of appropriations items, which will take effect only upon\npassage of a joint resolution of approval. Proposed rescissions\nhave no effect unless Congress completes affirmative action within\na 45-day period. However, if a recommendation to \"defer\" appro-\npriated expenditures is made, it will take effect automatically un-\nless vetoed by either house.\nFor the most part, deferrals represent \"housekeeping\" pro-\nposals, short-term economies in ongoing programs; often construc-\ntion projects with long lead times. Less than 10% of all deferrals\nfrom 1975 through 1979 have been refused. Of those refused over\n90% involved highway funding,¹⁴ an issue salient for virtually\nevery district.\nAfter the Congressional Veto\n379\nFacilitating Perhaps the most significant use of the legislative veto in recent\nCongressional years has been to expedite congressional agreement-or at least\nDecision the appearance of agreement-on important and highly visible\npolicy issues where no genuine consensus exists. In the midst of\ncrisis or at the crest of a groundswell of popular sentiment, the\nlegislative veto has offered a flexible means to shortcut the labo-\nrious process of data gathering and assessment, and to symbolize\ncongressional-decisiveness in the absence of adequate knowledge\nor resolve. Put in its best light, in addition to assisting Congress\nin adapting to the \"strains\" and \"challenges of modern govern-\nment,\" the veto \"provides a means of securing majority support\nin highly divisive and politicized policy areas without imposing\nunbearable political costs on individual members or ceding ulti-\nmate control.\"¹ From a less flattering perspective, the veto al-\nlows individual voting members to clasp lofty ideals that disguise\ndeep divisions in Congress and to escape responsibility for the\nspecific consequences of the embrace.\nThe Energy Security Act of 1980 is a prime example of the leg-\nislative veto used to delegate policymaking to an agency when\nCongress itself lacked adequate technical knowledge. Enacted just\nafter the second \"oil shock,\" and during an intense presidential\ncampaign, the act symbolized a national commitment to energy\nself-sufficiency. Long on policy mandates, procedural restrictions,\nand administrative details, the legislation is short and vague on\nsubstantive standards and specifics. These are left to an admin-\nistratively cumbersome, off-budget enterprise, the U.S. Synthetic\nFuels Corporation. Although responsibility for the substance of\nalternative energy policy has been delegated to the corporation,\nits programs, projects, and regulations are contingent upon a\ngreater number and variety of constitutional and unconstitutional\nveto devices than those in any other statute. Clearly, many critical\naspects of synthetic fuel development, such as the cost and loca-\ntion of specific types of projects, as well as the question of congres-\nsional commitment to the enterprise, were not resolved but put\noff to another day.\nSimilarly there is little doubt that the veto played a decisive\nrole in allowing Congress to reach a semblance of agreement on\nlegislation governing the authority of the Federal Trade Commis-\nsion (FTC). By accepting a two-house, 90-day legislative veto in\nMay 1980, FTC supporters were able to ensure a compromise al-\nlowing the commission to continue its rulemaking in several areas\nthat had been expressly eliminated in either the House or Senate\nversions of authorization bills. For example, the House bill con-\ntained restrictions preventing the FTC from regulating the funeral\nhome industry or from investigating the insurance industry for the\npurpose of developing regulations. The Senate bill contained a\nsimilar restriction on FTC action aimed at the insurance industry;\ndid not forbid regulation of the funeral home industry; but tar-\ngeted used-car sales as specifically off limits for FTC rulemaking\nactivities. The legislative veto provided Congress a means to avoid\nthe controversial decision on what the FTC should regulate.\n380\nAfter the Congressional Veto\nWhen, in the fall of 1981, the FTC issued a final rule regulating\nthe used-car industry, it was decisively vetoed in both houses.\nThe Natural Gas Policy Act of 1978 offers an example of the way\nin which the veto was used both to mask political disagreement\nand to enable legislative action well before relevant economic data\ncould be evaluated. Initially, congressional debate on the subject\ncentered on the fundamental conflict between the need to dereg-\nulate prices of natural gas as a means to stimulate new production\nand the limited ability of consumers to pay significantly higher\nprices for heat. In order to protect consumers without inhibiting\nthe development of new supplies, an incremental pricing mecha-\nnism was proposed that would require industrial consumers to\nbear the cost of the more expensive new gas until the price of gas\nwas comparable to that of coal and oil. However, incremental\npricing at the time was merely a theoretical idea and the legisla-\ntive veto was a way to circumvent the technological complexities\nof the concept. It satisfied members who insisted on consumer\nprotection as a prerequisite for supporting the phased decontrol\nof gas prices, yet it allowed Congress to postpone a thorough de-\nlineation of incremental pricing. 16\nThe monumental task of calibrating incremental pricing was\nawarded to the Federal Energy Regulatory Commission (FERC), a\nbody whose proposals were ultimately vetoed by the House of Rep-\nresentatives. Ironically, after having worked for over a year on\nthe rules, FERC commissioners appeared to welcome the out-\ncome 17 Consumer groups at once challenged the decision and\nunderlying procedure in federal court.\nEnsuring Committee When congressional vetoes have been applied generically to the\nInfluence\nrulemaking and planning of an agency and when the policies in-\nvolved have not attracted widespread attention, the presence of\nthe veto power has almost uniformly enhanced the influence of\ncommittee and subcommittee members and their staffs. To be\nsure, even when such veto power did not exist, members and staff\nhave always been able to participate in agency rulemaking and\nthere is little question that their views have been given due defer-\nence. Yet Congress has typically been inactive in agency rule-\nmaking. The legislative veto structures this involvement, how-\never, setting definite committee timetables for regulatory review\nand putting other participants on notice of a new forum. So too\nwith veto reviews of agency plans for programs and projects.\nOversight that was once optional and sporadic has been scheduled\nby statute.\nParticularly where agencies are responsible for the promulga-\ntion of numerous grant-in-aid or subsidy regulations, operating\ncharacteristically under tight deadlines, the legislative veto con-\nfers powerful leverage to congressional oversight committees. To\navoid protracted, often debilitating, battles involving hearings and\nfloor votes brought on by a full veto review process, regulatory\nagencies are inclined to follow committee guidance.\nAfter the Congressional Veto\n381\nCommittee-agency consultation and negotiation over the de-\nvelopment of regulations is nowhere more evident than between\nthe House Committee on Education and Labor and the Depart-\nment of Education. Bilateral relations between the two bodies\nhave been institutionalized as a result of a series of vetoes by the\nEducation and Labor committee that sent a powerful message to\nthe Department of Education. Congressional concerns are now\nincorporated through meetings between a representative of the\nDepartment of Education and committee staff after enactment of\nany major legislation affecting the department. Information gath-\nered in this process is integrated into rulemaking at the earliest\nstages and is used as a check to ensure that the proposed and final\nregulations are acceptable to the committee. 18\nAnother vivid illustration of committee leverage conferred by\nthe veto is reflected in the action of the committees that oversee\nthe Federal Election Commission (FEC). In the aftermath of the\nWatergate scandal, the FEC was created in 1974 to develop ap-\npropriate regulations governing campaign financing. In one in-\nstance, after the FEC had failed to follow Senate committee guid-\nance, the committee recommended disapproval and a veto fol-\nlowed. After subsequent FEC hearings and meetings with House\nand Senate staff, committee and staff recommendations were\nadopted in the regulation. 19\nVeto reviews of agency planning have similar effects. The leg-\nislative veto provision in the Resource Planning Act of 1974 was\nused, for example, to further cement ties between the U.S. Forest\nService and the House and Senate agricultural committees. In an\nera of \"belt tightening,\" one veteran staffer observed, \"the agen-\ncies have increasingly turned to the committees and subcommit-\ntees in an attempt to pry more dollars out of OMB\" (the Office of\nManagement and Budget). 20 In this instance, closer relations were\nsought both by the committees and by the agency. 21\nLegislative veto reviews at the committee and subcommittee\nlevels also provide opportunities for members to negotiate regu-\nlatory changes favoring constituent interests. Here universalized\ngoals may be shaped to reflect more parochial concerns. Such\nwas the case when the Office of Education liberalized the eligi-\nbility rules for the granting of financial aid under a 1972 program.\nConstituent pressure on oversight committee members had\nprompted a veto threat of the agency's proposed regulations.\nAgreement was finally reached because all parties understood that\nthe entire program was in jeopardy. 22\nThe Results In sum, the impact of legislative vetoes has varied substantially,\nSummarized not only with the institutional target of review (the president or\nan agency) and with the congressional site of review (plenary ses-\nsion and leadership, committee, or subcommittee), but also with\nthe specific variety of veto applied to any given situation. The\nstructure of the veto device, as with other structural arrange-\nments, is not unimportant. The initiative of a presidential reor-\n382\nAfter the Congressional Veto\nganization plan that will take effect unless both houses of Congress\nvote it down is more powerful than that of a plan that may be\ndefeated by the majority of only one house. A change in rules to\nmake such plans amendable during the committee review period\nblunts presidential initiative still further and affords greater in-\nfluence to the reviewing committees.\nCongressional willingness to exercise its enacted veto review\npower is also critically relevant to the impact of legislative veto\nprovisions. Even when a veto effort has failed, a determined\ncongressional veto review can influence policy outcomes, as in the\ncase of several arms sales proposals. When Congress has not dem-\nonstrated a strong intention to use its veto power, as in most for-\neign trade and war powers situations, policies have not been af-\nfected. Where agency-level action is the target of a veto threat,\nhowever, far less congressional investment is required to produce\nan effect on policy decisions. Yet, even at this level committee\nmembers and staff must exhibit some determination to oversee\nagency actions if they are to have influence.\nIn addition, legislative vetoes may be understood to have dif-\nferent effects depending upon the situations in which they are ap-\nplied. The insertion of legislative vetoes, of whatever sort, as a\ncheck on congressional delegations in highly visible policy areas\nwhere technical knowledge is inadequate and political divisions\nrun deep yields far different results than the application of vetoes\nto less highly charged issues. In the one the appearance of decision\nmay be assured and the underlying controversy postponed. In the\nother subcommittee oversight of and direct involvement in agency\ndecisions may be markedly enhanced. Clearly, no single substi-\ntute will now take the place of the legislative vetoes apparently\nlost to the Supreme Court's review.\nASSESSING THE Proposed substitutes for unconstitutional varieties of the legisla-\nALTERNATIVES tive veto are relatively numerous. Although some analysts have\nsuggested such measures as a constitutional amendment to undo\nThe Proposed the Chadha decision, most consideration is being given to legis-\nSubstitures lative alternatives. Among these is the report-and-wait device\nwhich requires that proposed regulations or executive actions be\nreported to Congress for a specified period prior to implementa-\ntion. The interval period offers time for Congress to revoke or alter\nthe proposals through the normal legislative process. Committees\nmay be granted authority to waive or extend the waiting period,\na prerogative which could strengthen their negotiating position.\nAnother alternative to the banned measures is a joint resolution\nof disapproval, which requires a majority vote of both houses and\npresentment to the president in order to negate executive branch\nor independent agency proposals. By constitutional design, pres-\nidential rejection of this \"constitutional veto\" would be returned\nto Congress where two-thirds majorities could carry the measure,\nnonetheless. This raises the unlikely but cumbersome prospect of\na veto of the veto of a veto. However, presidential vetoes of joint\nresolutions of disapproval would be unlikely and, as additional\nAfter the Congressional Veto\n383\nprotection from presidential rejection, such disapprovals could be\nattached as amendments to important authorization or appropri-\nation bills.\nThe joint resolution of approval is yet another device that could\npromote congressional influence in executive and agency policy-\nmaking. Executive proposals would require affirmative action by\nboth houses of Congress and presentment to the president before\nthey could be implemented. When applied to the regulatory pro-\ncess, \"final rules\" promulgated by the agencies could be treated\nas mere proposals for subsequent congressional action, enhanced,\nperhaps, by procedures that would command speedy congres-\nsional attention.\nA nonbinding two-house resolution expressing the majority sen-\ntiment of Congress could serve to encourage presidential deference\nto congressional views. Such resolutions are unlikely to be ig-\nnored, either by president or press. In order that comity might\nprevail between the branches, and in view of other policy objec-\ntives, presidential accession to congressional will expressed in this\nmanner is more probable than commonly supposed.\nWith regard to agency activities, certain informal procedures\nbased on the established relationships with oversight committees\nwould probably be perpetuated. The congressional practice of re-\nquiring agencies to obtain prior approval from their oversight\ncommittees for certain actions is widespread. Though sometimes\nspecified in statutes, committee reports, or hearings, these direc-\ntives are often based on informal \"gentlemen's agreements\"\namong the agencies and committees involved. Deference to com-\nmittee veto power is so ingrained in agency behavior that it is\nlikely to continue, especially where funding is involved and the\ncommittees concerned are appropriations subcommittees. Faced\nwith the annual necessity of securing appropriations for the\nagency from the same subcommittees, an agency is unlikely to\nabandon a prior approval mechanism regardless of its question-\nable validity.\nIn the House of Representatives rules changes might be adopted\nto permit consideration of \"no appropriations\" riders barring\nagency spending to enforce a particular regulation under review.\nA variation of this procedure would permit amendments to limit\nspending only after an agency's authorizing committee had voted\nto disapprove an agency action or regulation.\nSome analysts have also suggested the creation of special select\ncommittees to review proposed presidential actions in foreign or\nmilitary affairs or to coordinate agency regulations. Such com-\nmittees could facilitate presidential-congressional communica-\ntions and regulatory oversight divorced from the more isolated\nand parochial subcommittee jurisdictions.\nFinally, Congress always has the option of withholding delega-\ntions of legislative power until it is able to do so with precision.\nIt may also extend the use of manifold oversight tools already\navailable and widely used. These include statutory techniques\nsuch as removing express areas from agency regulatory authority,\n384\nAfter the Congressional Veto\nestablishing moratoriums on rulemaking activities, or transferring\nregulatory jurisdictions from one agency to another. They also\ninclude nonstatutory techniques such as the initiation of investi-\ngations or the assertion of directives in committee reports and\nhearings.\n23\nCompelling If in attaching veto provisions to foreign affairs legislation Con-\nConsultation gress meant to insure its regular involvement in a coherent and\ndeliberative review of foreign policy decisions, then its goal has\nnot been realized. Replacement of these veto devices with similar,\nconstitutionally acceptable alternatives is equally unlikely to\nachieve such a goal. The legislative vetoes have, however, afforded\nCongress negotiating power with the executive on specific issues,\nand Congress can reproduce this leverage in similar situations.\nWith regard to the two-house arms sales veto, for example, Con-\ngress successfully used the device to modify some arms sales de-\ncisions while at the same time members avoided other arms sales\ncontroversies when they so desired. Furthermore, the veto pro-\nvided national media opportunities for congressional leaders and\nindividual members. Replacing this veto with either joint reso-\nlutions of disapproval or nonbinding concurrent resolutions might\nappear to weaken congressional ability to achieve even these lim-\nited goals. After all, a joint resolution requires the president's\nsignature or a two-thirds override vote to be binding and a non-\nbinding resolution is just what the name implies-advice, not di-\nrection. However, the manner in which Congress actually used its\narms sales veto power mitigates these concerns. Congress never\nexercised the concurrent veto to reject an arms sale and in those\ninstances when the veto was used to initiate negotiations, the pres-\nident would very likely have made concessions anyway, given the\ndetermined attitude of Congress.\nA president's willingness to involve Congress in specific arms\nsales proposals seems to stem as much from his need to gain ac-\nceptance for controversial sales as from the threat of a legislative\nveto. Since there is mutual advantage to the negotiations, Con-\ngress is in a strong position to bargain for a gentlemen's agreement\nobliging the president to debate the issues and to respect a con-\ncurrent resolution of disapproval. A relationship built on such\ncooperation and mutual advantage is far more likely to produce\npositive results than the adversarial relationship inherent in the\ndesign of the veto process.\nIf, however, Congress is now determined to develop a system of\nregularized participation in the arms sales program it will need\nto devise a comprehensive procedure for scheduling arms sales\ndiscussions on the congressional agenda and for providing Con-\ngress with current and accurate information on the sales under\nconsideration. Moreover, members require such information\nwhen arms sales proposals are tentative, not after an American\noffer has been finalized. 24 Setting the agenda could be achieved\nthrough imposition of a joint resolution of approval, but assuring\nthe timely flow of arms sales information is a far more compli-\nAfter the Congressional Veto\n385\ncated objective. It entails an enormous increase in the workload\nof Congress and it raises questions about the desirability of such\ndeep congressional involvement in sensitive foreign policy deci-\nsions.\nIn the area of foreign trade and aid, Congress has, over the past\ndecade, gradually resorted to other means than the legislative veto\nto control presidential authority. These measures have included\ncongressional approval of presidential proposals before they can\nbecome effective and formal presidential certification of subject-\nnation compliance with detailed conditions. For example, any\nagreements permitting nontariff trade barriers negotiated by the\npresident with foreign nations under provisions of the Trade Act\nof 1974 require ratification by passage of a statute (no amend-\nments permitted). The Trade Act also requires the president to\ncertify a country's full compliance with freedom-of-emigration re-\nquirements as a condition of granting nondiscriminatory treat-\nment and other trade benefits. Similarly, Congress has condi-\ntioned the release of foreign aid funds upon specific accomplish-\nments of the nations in question and has placed ceilings on total\naid by country and by intended use. Judging from the past usage\nof the veto provisions in foreign trade and aid cases, a joint reso-\nlution of disapproval or a nonbinding concurrent resolution\nshould serve adequately as substitutes. Either would allow Con-\ngress to object visibly to presidential actions and either would also\nenable Congress to choose only those cases in which it wished to\nbe involved.\nCongress could resort to a joint resolution of approval if it\nwanted to be assured of ultimate control over trade and aid de-\ncisions. Recently, the House Foreign Affairs Committee chose this\nroute. Moved by the outcries of agricultural interests suffering\nsevere financial burdens as the result of President Carter's grain\nembargo against the Soviets, the committee ensured that similar\nfuture actions could not be taken without positive congressional\nsupport. The significant flaw in such an approach is that it re-\nduces presidential flexibility in difficult foreign policy situations.\nGiven the limited variety of nonmilitary options available to a\npresident, as well as the reluctance of Congress to impose burdens\non vocal domestic constituencies, the wisdom of any widespread\nuse of this alternative is open to serious question.\nSince the veto provision in the War Powers Resolution has never\nbeen used by Congress, there seems little reason to replace it. Nev-\nertheless, the Senate has already moved to amend the resolution\nso that Congress can force immediate withdrawal of troops from\nhostilities by passage of a joint resolution of disapproval. This\nsubstitute will probably not alter Congress' ability to influence\ntroop deployment. In fact, legislators have acted decisively only\nin response to strong public pressure, and they are very unlikely\nto move against the commander-in-chief unless spurred to do so\nby overwhelming popular sentiment. Similarly, a president is un-\nlikely to veto majority bicameral action that is firmly backed by\nthe public. There are, however, sound reasons for Congress to\n386\nAfter the Congressional Veto\nstrengthen its involvement in decisions to use the armed forces.\nAt a minimum Congress could establish a body within its own\nmembership to receive and evaluate the sensitive information nec-\nessary to forming judgments about military issues. 25\nProtecting Presidential The only major presidential planning authority subject to a\nPlans congressional veto, and still in effect, concerns the imposition of\na contingency plan for gasoline rationing. The one-house resolu-\ntion of disapproval involved here, as elsewhere, is not easily re-\nplaced. There is no precise substitute. However, substitution of\na joint resolution of approval would protect the prerogatives of\neach chamber while making difficult the imposition of so drastic\na measure as nationwide gasoline rationing. The likelihood of a\npresidential veto would, of course, be nil.\nAny revival of now-lapsed presidential authority to reorganize\nthe executive branch would also require a substitution for the one-\nhouse congressional veto check. Legislation concerning presiden-\ntial reorganization plans could require an affirmative joint reso-\nlution of approval for adoption. In this way, the particular con-\ncerns of each house would be protected, but the president would\nfind himself in the difficult position of having to bargain for sup-\nport from both houses in a short time period. A less demanding\napproach would permit presidential reorganization plans to take\neffect subject to a joint resolution of disapproval. Congress would\nensure its role by requiring annual reauthorization of presidential\nauthority in this regard, by exempting certain agencies from re-\norganization plans, and by proscribing the creation or dissolution\nof departments.\nInfluencing Loss of the one-house veto provision to review and occasionally\nManagement defeat the president's proposals to defer congressional appropri-\nations has been regarded as a serious setback for legislative control\nof financial management. The effect of the one-house veto held\nover presidential deferrals is not only difficult to reproduce, but\ncomplete legislation required in response to the dozens of deferral\nproposals submitted by the chief executive each session is onerous\nand unduly time consuming. Yet virtually everyone recognizes\nthe need for managerial flexibility to create spending reserves and\nto withhold disbursements of funds that could not or should not\nreasonably be spent.\nPerhaps the simplest solution is not to replace the deferral veto\nat all. Delaying expenditures of appropriated funds was an au-\nthorized practice for many years-with no veto attached. Until\nabused during the Nixon administration, the system had worked\nwell. In addition, Congress has recently adopted a useful and con-\nstitutional alternative to the deferral veto-the inclusion of de-\nferral disapprovals in regular and supplemental appropriations\nbills. These bills have, of course, gone to the president for his\nsignature or rejection 26 However, the problem of extended delays\nAfter the Congressional Veto\n387\nin financial oversight via complete legislation remains. Perhaps\nthe most expeditious means of accommodating both Congress and\nthe chief executive in this matter is an informal agreement be-\ntween the parties that a nonbinding, single-house resolution to\ndisapprove deferrals would be honored.\nFacilitating Some members of Congress have been reluctant to delegate broad\nCongressional powers to agencies when the veto is no longer available to serve\nDecision as a constraint on agency actions. For example, after a House\ncommittee reported the Consumer Product Safety Commission\n(CPSC) authorization of 1983, including a congressional veto just\nbefore the Chadha decision, one of the most consistent proponents\nof the veto suggested: \"if that decision had come down prior to\nmarking up this bill, the committee would have looked very\nclosely at the delegations of authority given to the Consumer Prod-\nucts Safety Commission to make a determination as to whether or\nnot you wanted that broad delegation to continue without the\nlegislative veto.\"27\nNonetheless, a functional equivalent to the now unconstitu-\ntional varieties can be found in the joint resolution of disapproval.\nWhere appropriate, the threat of a presidential veto may be min-\nimized by attaching an amendment disapproving a specific agency\naction to \"must\" legislation or by substituting a nonbinding con-\ncurrent resolution combined with the addition of a \"no appropri-\nations\" rider to pending appropriations legislation. These proce-\ndures offer no guarantee that policy will not be settled at the com-\nmittee or subcommittee level.\nA joint resolution of approval, on the other hand, would neces-\nsitate plenary action by both chambers. The danger of widespread\nuse of this approach, of course, is that the congressional agenda\nwould be inundated with trivial matters, scheduled by outsiders.\nThe difficulty of selecting among these alternatives is also illus-\ntrated by House floor action on the recent CPSC bill. In the ab-\nsence of either time or inclination to abandon the symbol of broad-\ngauge consumer protection in favor of specific statutory targets\nand standards, the House attached the two veto substitutes to the\nbill. The selection of which veto device should appear in the final\nact was left to the conference committee.\nNo one knows just which consumer products problems (or which\nissues in other areas of broadly delegated legislative power) will\nattract regulatory attention in the years ahead. It seems nonethe-\nless certain that initially acceptable symbols will be reduced to\nnarrowly defined and hotly contested issues once regulatory pol-\nicies become more pointed and the specific costs and impacts of\nthe regulations are known. Difficult choices will remain. If those\nchoices are dependent upon joint resolutions of approval, they will\nultimately be made in the voting body of Congress for submission\nto the president. Regulatory agencies operating under such con-\nstraints will be recast, in part, as \"study commissions\" which will\nhave far greater ability to set the congressional agenda. Such\n388\nAfter the Congressional Veto\nagencies will also become primary initiators of legislation for\nwhich Congress will have ultimate and inescapable responsibility.\nCongress, for its part, particularly if such joint resolutions are\nmade amendable, will regain some measure of its original role as\nnational legislator.\nIf, instead, such choices are made contingent upon joint reso-\nlutions of disapproval, only highly visible proposals will be likely\nto involve the full voting membership of Congress. Less visible\nregulations would probably never get beyond the subcommittee\nlevel, if indeed they were acted upon at all. As was pointed out\nduring the recent debate over CPSC veto provisions, \"The problem\nis that the resolution of disapproval which a Member of this body\nmight introduce would be referred to the subcommittee\nand\n,\nthere is a strong likelihood that if the [chairman] liked the rule,\nand did not like the resolution of disapproval, this House would\nnever even have the opportunity of expressing itself on the\nmatter.\n\"28\nUse of congressional veto devices to synthesize legislative ma-\njorities where there are known to be deep underlying policy divi-\nsions does not avoid the \"strains\" of decision-making; it merely\npostpones them, possibly at some considerable cost to Congress.\nSo long as significant controversy remains, it matters little what\nform of veto mechanism is applied-affirmative or negative, con-\nstitutional or unconstitutional. Moreover, the timing of each re-\nturning conflict and the terms of renewed debate are determined\nby the delegated agency, not by Congress. Parties who lose in veto\nreviews simply take their appeals elsewhere: to the appropriations\nprocess; to the courts; to the White House; or to the press.\nThe substantially weakened FTC used-car rule, for example,\ncould hardly be said to create an onerous burden for dealers. They\nhad merely to list major known defects in the used cars they of-\nfered for sale. Under terms of the regulation, there was no in-\nspection requirement, and dealers could disclaim liability for any\nunknown defects. In these circumstances, the particular window-\nsticker lists required could hardly be acclaimed a great victory for\ncar buyers either. Nonetheless, both dealers and consumer ad-\nvocates acted as if sizable stakes were at issue. After sustaining\nan overwhelming veto favoring the dealers, consumer groups im-\nmediately appealed to the judiciary and to the public. They won\nat law, and Congress lost decisively in the communications media.\nNewspapers and television stations headlined a Congress that had\n\"knuckled under\" to powerful dealership interests. Long and\nprominently featured lists correlated campaign contributions of\nauto dealer political action committees with member votes on the\nveto. Arguably, it would have been much more straightforward\nand far less costly for Congress to have set its own targets for FTC\nregulation in the first place. Shortly thereafter, when the FTC\nsubmitted its regulations on funeral homes and children's televi-\nsion advertising, Congress evidenced little interest in a repeat per-\nformance. The aftermath of the FTC veto implies the common\nresult that as public interest or, for that matter, generalized\nAfter the Congressional Veto\n389\ncongressional interest in an issue abates, plenary oversight of new\nregulations reverts to committee.\nEnsuring Committee A report-and-wait strategy can serve much the same function as a\nInfluence veto with regard to oversight of agency rulemaking or planning.\nAgencies have commonly responded to committee objections by\nrevising their proposals in accord with the wishes of their congres-\nsional overseers. 29 Nonetheless, the joint resolution of disapproval\nis actually the most precise replacement for a congressional veto\nintended to enhance committee influence over established agen-\ncies.\nTwo examples from the Department of Housing and Urban De-\nvelopment make it clear that a potential joint resolution of dis-\napproval may offer committee leverage over agency rulemaking\nthat is just as powerful as the veto devices now constitutionally\nprohibited. As the result of an intense lobbying effort by repre-\nsentatives of the masonry industry who were resisting new con-\nstruction standards, a resolution of disapproval was introduced in\nthe House that triggered a 90-day waiting period as required by\nthe Housing and Community Development Amendments of 1978.\nThis and subsequent maneuvers made it possible for masonry in-\nterests to escape imposition of the new standards for two building\nseasons before the rule could be implemented. About the same\ntime, HUD issued its fair housing rule to comply with equal op-\nportunity requirements. A resolution of disapproval was used to\ninsure an airing of constituent concern that preferences for local\nresidents would not be honored in HUD-subsidized \"Section 8\"\nhousing. Even though the regulation did nothing to jeopardize\nthe concept of \"local preference\" in admissions to the program,\nHUD withdrew the fair housing rule in order to get on with the\nbulk of its regulatory program. It was not reintroduced.³⁰\nAt first glance the veto may seem to endow committees with\npower unencumbered by responsibility. While the agencies ap-\npear to bear responsibility for the development of policies and\nprograms, congressional committees wield authority over imple-\nmentation. Ultimately, at least in a legal sense, Congress cannot\nso easily escape its responsibility. If agencies are deflected from\ntheir statutory mandates by committee negotiations, the respon-\nsibility for such alterations will be deferred to upon judicial re-\nview. The tradeoff for such a process is to render impotent agency\ndecision-making requirements based upon fairness, openness, rea-\nsoned decision, and substantial evidence, requirements that have\nbeen developed by the judiciary, and by Congress, over a number\nof years. 31\nShould Congress become dissatisfied with the devolution of reg-\nulatory policymaking to the secrecy of the committee anteroom\nenvironments, resurrection of a \"constitutionalized\" veto will not\ncorrect the situation. Here the special select committee approach\nto centralized congressional review of proposed agency regula-\ntions holds far greater promise for alerting Congress to regulatory\nduplication and overlap and to ultra vires bureaucratic acts. 32 In\n390\nAfter the Congressional Veto\naddition, such a select committee, if properly staffed, could offer\na counterweight to the centralized and powerful regulatory review\nprogram undertaken by the Reagan administration's Task Force\non Regulatory Relief and the Office of Management and Budget. 33\nCONCLUSION The congressional veto, in the various forms and contexts of its\napplication, has had different results both for policymaking and\nfor policy. Curiously, the veto has accomplished few if any of the\ngoals promoted in the slogans of its sponsors. In part it is simply\nanother device for traditional administrative oversight; yet it has\nalso been a powerful means to facilitate some manner of congres-\nsional decision and delegation. Functional replacements for the\nabolished vetoes will likely be varied as well. Being \"the first one\nout of the bag\"34 with a generic substitute for vetoes lost in the\nChadha decision may be good politics but mistaken policy.\nClearly the veto's multiple effects argue against application of a\ngeneric veto of any sort. The adoption of a required joint resolu-\ntion of approval, for example, might be a useful device to postpone\ncongressional decision on the specifics of particular programs.\nBut applied to prolific regulation writers, such as the Department\nof Education, EPA, and HUD, Congress would be inundated by the\nrequired affirmative passage of voluminous and highly detailed\nlegislation. By the same token, generic application of a joint res-\nolution of disapproval not only fails to protect the interests of any\none chamber of the Congress upon review but it also encourages\nthe tendency to allow critical decisions to gravitate to committee\nor subcommittee without plenary review by either chamber. Fur-\nthermore, since legislative vetoes applied to presidential war\npowers and foreign aid yielded insignificant results, constitutional\nreplacements for them are unnecessary. The need to address other\ncongressional concerns-adequate presidential consultation and\ncommunication—seems far more pressing.\nROBERT S. GILMOUR is professor of political science at the Uni-\nversity of Connecticut and a member of the Vermont bar.\nBARBARA HINKSON CRAIG is assistant professor of government\nat Wesleyan University and author of The Legislative Veto: Congres-\nsional Control of Regulation.\nNOTES 1. Immigration and Naturalization Service v. Chadha, et al. (80-1832, 80-\n2170, 80-2171-Dissent),\nU.S\n(June 23, 1983).\n2. For a complete summary of all legislative veto provisions adopted\nsince the first in 1932, see: Norton, Clark F., Congressional Review,\nDeferral and Disapproval of Executive Actions: A Summary and an In-\nventory of Statutory Authority, Report 76-88G; 1976-1977 Congres-\nsional Acts Authorizing Prior Review, Approval or Disapproval of Pro-\nposed Executive Actions, Report 78-117 (Gov.); Congressional Veto Pro-\nAfter the Congressional Veto\n391\nvisions and Amendments: 96th Congress, Issue Brief 79044;\nCongressional Veto Legislation: 97th Congress, Issue Brief 11381138\n(Washington, DC: Library of Congress, Congressional Research Ser-\nvice, 1976, 1979, 1981, 1983).\n3. Figures on resolutions of disapproval overturning presidential or reg-\nulatory actions are drawn from Cohen, Richard E., \"Life Without the\nLegislative Veto-Will Congress Ever Learn to Like It?\" National\nJournal (July 2, 1983): 1379; and Rothman, Robert, \"Congress' Long\nConflict with the President Led to the 1974 Impoundment Control\nLaw,\" Congressional Quarterly (July 2, 1983): 1333.\n4. Arms Export Control Act, 22 U.S.C. 2776.\n5. See Congressional Quarterly (August 22, 1981): 1524.\n6. \"Sale of F-16s to Pakistan Approved in Spite of Questions in Con-\ngress,\" Congressional Quarterly (December 5, 1981): 2413.\n7. See Whittle, Richard, \"President Can Waive Arms Veto,\" Congres-\nsional Quarterly (October 17, 1981): 2008.\n8. Crockett, et al. V. Reagan, 558 F. Supp. 893 (1982): 899. The case was\nbrought by 29 congressmen and senators. Twenty-eight other mem-\nbers of the House and Senate were granted intervener status and filed\nan amicus curiae brief in opposition to the plaintiffs' case.\n9. In this case, involving industrial fasteners, the resolution of disap-\nproval could have been reported unfavorably by the Ways and Means\nCommittee, to be decided by the full House. Instead, the Carter ad-\nministration worked out a compromise with the committee, which\nresulted in a new investigation of import relief. Subsequently, some\nrelief was granted. What role the veto effort played in this remains\nunclear. Pregelj, Valdimer N., \"Legislative Veto or Positive Approval\nof Executive Action Under the Trade Act of 1974 and Related Legis-\nlation,\" in Congressional Research Service, Studies on the Legislative\nVeto, pp. 719-720.\n10. Mansfield, Harvey C., \"Federal Executive Reorganization: Thirty\nYears of Experience,\" Public Administration Review, 29 (July-August\n1969): 341.\n11. Fisher, Louis, and Moe, Ronald C., \"Presidential Reorganization Au-\nthority: Is It Worth The Cost?\" Political Science Quarterly, 96 (Summer\n1981): 314.\n12. Quoted in Davis, David H., \"Legislative Vetoes in Energy Policy,\" in\nCongressional Research Service, Studies on the Legislative Veto, P. 108.\n13. Fisher and Moe, p. 312.\n14. Schick, Allen, Congress and Money: Budgeting, Spending and Taxing\n(Washington, DC: The Urban Institute, 1980), pp. 401-412.\n15. Cooper, Joseph, and Hurley, Patricia A., \"The Legislative Veto: A\nPolicy Analysis,\" Congress and the Presidency, 10 (Spring 1983):\n16-17.\n16. Craig, Barbara Hinkson, The Legislative Veto: Congressional Control of\nRegulation (Boulder, CO: Westview Press, 1983), pp. 103-110.\n17. See U.S. House of Representatives, Subcommittee on Energy and\nPower of the Committee on Interstate and Foreign Commerce,\nHearing on the Phase II Incremental Pricing of Natural Gas, 96th Cong.,\n2d Sess., April 3 and May 6, 1980.\n18. U.S. Department of Education, \"Department of Education Regulation\nProcess Memorandum,\" internal memorandum for Deputy General\nCounsel for Regulation and Legislation Stewart A. Baker, September\n25, 1980, p. 4; see Craig, The Legislative Veto\npp. 67-97.\n19. For a more complete account of this and related FEC cases, see Bruff,\nHarold H., and Gellhorn, Ernest, \"Congressional Control of Admin-\n392\nAfter the Congressional Veto\nistrative Regulation: A Study of Legislative Vetoes,\" Harvard Law\nReview, 90 (May 1977): 1403-1409.\n20. Interview with U.S. Senate Committee on Agriculture and Forestry\nstaff, Washington, DC, July 13, 1979.\n21. In addition to a concerted House and Senate campaign to pass the\nact, the Forest Service was a consistent lobbyist on behalf of resource\nplanning. Earlier long-range planning efforts had been torpedoed by\nOMB, but the disarray of the late days of the Nixon administration\nmade possible the passage of the Resource Planning Act with legis-\nlative veto intact. Although OMB \"violently opposed\" the bill and\nurged newly installed President Gerald Ford to exercise his own veto\npower, in the particular circumstances of 1974, he declined to do so.\nInterviews with U.S. Forest Service senior staff, Washington, DC, July\n12, 1979.\n22. Bruff and Gellhorn, p. 1384.\n23. See Kaiser, Frederick M., \"Congressional Action to Overturn Agency\nRules,\" Administrative Law Review, 32 (1980): 667.\n24. Congress has already moved in this direction to the extent of requiring\nthe president to provide it with quarterly and annual reports pro-\njecting potential arms sales thought \"most likely to result in the is-\nsuance of a letter of offer\" (Pregelj, pp. 721-726).\n25. See Craig, Barbara Hinkson, \"The Power to Make War: Congress'\nSearch for an Effective Role,\" Journal of Policy Analysis and Manage-\nment, 1 (Fall 1982): 325-328.\n26. See Fisher, Louis, \"Chadha's Impact on the Budget Process,\" Congres-\nsional Research Service Review (Fall 1983): 12.\n27. Remarks of Representative Elliott Levitas, (D-GA), Congressional Re-\ncord, 98th Cong., 2d Sess., 1983, 129, p. H4474.\n28. Ibid., p. H 4772.\n29. Gilmour, Robert S., \"The Congressional Veto: Shifting the Balance of\nAdministrative Control,\" Journal of Policy Analysis and Management,\n2 (Fall 1982): 13; Harris, Joseph P., Congressional Control of Admin-\nistration (Garden City, NY: Doubleday and Co., 1964), pp. 258-259.\n30. Craig, The Legislative Veto\npp. 45-66; \"The Congressional Veto\nand Rulemaking,\" Public Administration Quarterly, 7 (1983): 24.\n31. Gilmour, pp. 20-22.\n32. See U.S. House of Representatives, Committee on Rules, Recommen-\ndations on Establishment of Procedures for Congressional Review of\nAgency Rules, 96th Cong., 2d Sess., 1980 (Committee Print).\n33. See Viscusi, W. Kip, \"Presidential Oversight: Controlling the Regu-\nlators,\" Journal of Policy Analysis and Management, 2(2) (Winter 1983):\n157-173; Gilmour, Robert S., \"Presidential Clearance of Regulation,\"\na paper presented at the National Conference of the American Society\nfor Public Administration, New York, April 17, 1983.\n34. Statement of Representative Elliott Levitas, quoted in Pressman,\nSteven, \"Congress Considers Choices in Legislative Veto Aftermath,\"\nCongressional Quarterly (July 2, 1983): 1327.\nTHE WHITE HOUSE\nWASHINGTON\nMay 14, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS\n120R\nSUBJECT:\nDraft DOJ Report on S.J. Res. 135,\n\"Proposing an Amendment to the Constitution\nof the United States for the Establishment\nof a Legislative Veto\"\nOMB has asked for our views by close of business May 15 on a\ndraft Department of Justice report opposing S.J. Res. 135, a\nproposed constitutional amendment to overturn the Chadha\ndecision. The report notes that the Chadha decision was\nbased on constitutional provisions reflecting the Framers'\nconcern with separation of powers. It was not the result of\ntechnicalities that need to be corrected but rather a\ncorollary of the basic structure of our Government.\nChadha struck down legislative vetoes because they contra-\nvened the bicameralism requirement and the presentment\nclause. As the Justice report notes, the bicameralism-\nrequirement was consciously devised to provide a check to\nflawed legislation that might pass one House. By the same\ntoken, the presentment clause was added to the Constitution\nto provide a check against legislative encroachments on the\npower of the Executive, and to insert the Executive -- the\nonly official (other than the Vice President) elected by all\nthe people -- into the legislative process. The Justice\nreport concludes by rejecting many of the policy arguments\nin favor of legislative veto, including the argument that\nsuch vetoes serve to make agency action more politically\naccountable. The Justice report argues that the underlying\nproblem is vague delegation by Congress, a problem not\neffectively cured by retention of veto authority.\nI have no objection to the proposed report. On page 10,\nline 42, the report states that \"Congress can adopt re-\nsolutions expressing views, which may not be legally binding\nupon the Executive Branch\n\"\nIt is unclear whether \"may\"\nis used in the permissive sense or to express likelihood.\nOnly the former is correct, since concurrent resolutions are\nnever binding on the President, yet readers could well\nsuppose the latter was intended. I would change \"may not\nbe\" to \"are not.\" \"\nTHE WHITE HOUSE\nWASHINGTON\nMay 14, 1984\nMEMORANDUM FOR BRANDEN BLUM\nLEGISLATIVE ATTORNEY\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nFRED F. FIELDING Orig. signed by FFF\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nDraft DOJ Report on S.J. Res. 135,\n\"Proposing an Amendment to the Constitution\nof the United States for the Establishment\nof a Legislative Veto\"\nCounsel's Office has reviewed the above-referenced draft\nreport, and finds no objection to it from a legal per-\nspective. On page 10, line 42, however, I recommend\nchanging \"may not be\" to \"are not.\" As now written it is\nunclear whether \"may\" is used in the permissive sense or to\nexpress a likelihood. Only the former is correct in this\ncontext, since resolutions expressing the views of Congress\nare never binding on the President.\nFFF: JGR:aea 5/14/84\ncc: FFFielding/JGRoberts/Subj/Chron\nTHE WHITE HOUSE\nWASHINGTON\nMay 14, 1984\nMEMORANDUM FOR BRANDEN BLUM\nLEGISLATIVE ATTORNEY\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nDraft DOJ Report on S.J. Res. 135,\n\"Proposing an Amendment to the Constitution\nof the United States for the Establishment\nof a Legislative Veto\"\nCounsel's Office has reviewed the above-referenced draft\nreport, and finds no objection to it from a legal per-\nspective. On page 10, line 42, however, I recommend\nchanging \"may not be\" to \"are not.\" As now written it is\nunclear whether \"may\" is used in the permissive sense or to\nexpress a likelihood. Only the former is correct in this\ncontext, since resolutions expressing the views of Congress\nare never binding on the President.\nFFF: JGR:aea 5/14/84\nCC: FFFielding/JGRoberts/Subj/Chron\nID #.\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\no . OUTGOING\nH . INTERNAL\nI . INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nJohn\nName of Correspondent:\nJames C. Murr\nMI Mail Report\nUser Codes: (A)\nSubject: Draft DOJ report on S.J. Rea (B) 135, proposing\nan amendment to the Constitution of the\nUnited States for the untablishment of a\nlegislative veto'\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nWHolland\nORIGINATOR 84,05,10\n/\n/\nReferral Note:\nWAT18\nD 84/05/11\n5 84,0515\nReferral Note:\n/\n/\n/\n/\nI\nReferral Note:\n/\n/\n/\n/\nReferral Note:\n/\n/\n/\n/\n-\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA Appropriate Action\nI . Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC . Comment/Recommendation\nR - Direct Reply w/Copy\nB . Non-Special Referral\nS : Suspended\nD Draft Response\nS For Signature\nF . Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nEXECUTIVE OFFICE OF THE PRESIDENT\nOFFICE OF management AND BUDGET\nWASHINGTON, D.C. 20503\nMay 9, 1984\nSPECIAL\nLEGISLATIVE REFERRAL MEMORANDUM\nTO:\nLEGISLATIVE LIAISON OFFICER\nSEE DISTRIBUTION\nSUBJECT: Draft DOJ report on S.J.Res. 135, \"proposing an amendment\nto the Constitution of the United States for the establish-\nment of a legislative veto.\"\nThe Office of Management and Budget requests the views-of your\nagency on the above subject before advising on its relationship\nto the program of the President, in accordance with OMB Circular\nA-19.\nPlease provide us with your views no later than\nCOB Tuesday, May 15, 1984\nDirect your questions to Branden Blum (395-3802), the legislative\nattorney in this office.\nthe goy the James C. Murr for for\nAssistant Director for\nLegislative Reference\nEnclosure\nCC: B. Bedell\nM. Horowitz\nF. Fielding\nE. Strait\nJ. Hill\nM. Uhlmann\nDISTRIBUTION:\nDepartment of Agriculture\nDepartment of Commerce\nDepartment of Education\nDepartment of Defense\nDepartment of Labor\nDepartment of Health and Human Services\nDepartment of Housing and Urban Development\nDepartment of State\nDepartment of the Treasury\nDepartment of Transportation\nDepartment of the Interior\nDepartment of Energy\nVeterans Administration\nEnvironmental Protection Agency\nSmall Business Administration\nOffice of Personnel Management\nGeneral Services Administration\nFederal Emergency Management Agency\nUnited States Postal Service\nCentral Intelligence Agency\nAdministrative Conference of the United States\nU.S. Department of Justice\nOffice of Legislative Affairs\nOffice of the Assistant Attorney General\nWashington, D.C. 20530\nHonorable Strom Thurmond\nChairman, Committee on the\nJudiciary\nUnited States Senate\nWashington, D.C. 20510\nDear Mr. Chairman:\nThis letter is in response to your request for the views\nof the Department of Justice on S.J. Res. 135, \"proposing an\namendment to the Constitution of the United States for the\nestablishment of a legislative veto.\" The Department of\nJustice believes that the constitutional amendment proposed\nby this resolution would substantially eliminate the carefully\ndrawn checks on the exercise of legislative power that were\nincluded in the basic constitutional framework of our Nation,\nand would drastically and unnecessarily alter the existing\nrelationships between the three coordinate Branches of the\nfederal government. Consequently, the Department of Justice\nrecommends against adoption of S.J. Res. 135 and transmittal\nof it to the states for ratification.\nThe language of the constitutional amendment proposed\nby S.J. Res. 135 reads as follows:\nSection 1. Executive action under\nlegislatively delegated authority may be\nsubject to the approval of one or both\nHouses of Congress, without presentment\nto the President, if the legislation that\nauthorizes the executive action so provides.\nThe clear intent of the proposed amendment is to abrogate the\nSupreme Court's decision in INS V. Chadha, 103 S. Ct. 2764\n(1983), holding \"legislative veto\" devices to be unconsti-\ntutional. In Chadha, the Court made clear that under the\n\"carefully designed limits\" imposed by the Framers on the\npowers of the coordinate Branches, Congress must exercise\nits legislative power in strict conformity with the require-\nments of Art. I, §§ 1 and 7 of the Constitution: passage\nby a majority of both Houses and presentment to the President\nfor approval or veto. 103 S. Ct. at 2786-87. S.J. Res. 135\nwould nullify the Chadha decision by amending the Constitution\nto allow Congress to take action that alters the authority\nof the Executive to exercise statutorily delegated responsi-\nbilities by vote of either one or both Houses, without\npresentment to the President. 1/\nWe believe that the proposed constitutional amendment\nwould be a wholly unwarranted and unwise alteration of the\n\"enduring\" and \"carefully designed limits\" imposed by the\nFramers on the powers of the coordinate Branches, INS V.\nChadha, 103 S. Ct. at 2787. As the Court emphasized in\nChadha, those limits were no accident of history. The\ndebates surrounding adoption of the Constitution leave no\ndoubt that the procedure established in that document for\nthe exercise of legislative power was not a mere formality\nor unintended limitation on legislative authority. To the\ncontrary, the constitutional requirements that power be\ndivided among the Legislative, Executive, and Judicial\nBranches, and that all measures having the effect of a law\nmust receive the concurrence of both Houses and must be\npresented to the President for approval or disapproval were\nintended to be fundamental checks against oppressive,\nimprovident, or precipitate action by the Legislative\nBranch and encroachment by that Branch upon the Executive.\nThe legislative process devised by the Framers in\nArticle I of the Constitution reflects three underlying\nstructural components: separation of powers, bicameralism,\nand presentment. As discussed below, each of these components\nis vitally important to the functioning of our constitutional\nsystem.\nSeparation of Powers\nThe powers of the national government were deliberately\ndivided by the Framers among three coordinate Branches,\n1/ The proposed amendment would authorize legislative vetoes\nby action of one or both Houses, but would not authorize\napproval or disapproval of Executive actions by one or more\ncongressional committees. Accordingly, we would not read\nthe proposed amendment to alter the effect of the Chadha\ndecision insofar as committee approval, disapproval, or\nwaiver mechanisms are concerned.\n- 2 -\nbecause they considered the concentration of governmental\npower to be the greatest threat to individual liberty. \"The\nFramers regarded the checks and balances that they had built\ninto the tripartite Federal Government as a self-executing\nsafeguard against the encroachment or aggrandizement of\none branch at the expense of the other.' Buckley V. Valeo,\n424 U.S. 1, 122 (1976). The principle of separation of\npowers is based on the premise that if one Branch of govern-\nment could, on its own initiative, merge legislative, executive,\nor judicial powers, it could easily become dominant and\ntyrannical. In such circumstances, it would not be subject\nto the checks on governmental powers that the Framers considered\na necessary protection of freedom. The three Branches of the\nGovernment are not \"watertight compartments\" acting in isolation\nof each other. Springer V. Government of the Philippine\nIslands, 277 U.S. 189, 211 (1928) (Holmes, J., dissenting);\nsee Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579, 635\n(1952) (Jackson, J., concurring). Rather, the Framers\nconceived of national government as involving the dynamic\ninteraction between the three Branches, with each \"checking\"\nthe others and \"balancing\" the powers conferred on the others\nwith its own assertions of power.\nThe separation of powers principle, intended to be a\n\"vital check against tyranny,\" 2/ and \"essential to the\npreservation of liberty,\" 3/ is a bedrock principle of our\nconstitutional system, and should not be disregarded. At\nthe core of the principle is the precept that no single\nBranch can usurp or arrogate to itself the essential functions\nof other Branches. Since the brilliant men who created our\nConstitution believed that the concentration of power in\nany one individual or group was the very definition of\ntyranny, we would regard any alteration in this separation\nof powers, mandated by the Constitution, to be a very\nserious departure from the principles that have guaranteed\nour liberties for nearly two hundred years.\n2/ Buckley V. Valeo, 424 U.S. 1, 121 (1976); see, e.g.,\nThe Federalist No. 47 (J. Madison), at 324.\n3/ The Federalist No. 51 (J. Madison), at 348; see Youngstown\nSheet & Tube Co. V. Sawyer, 348 U.S. 579, 635 (1952) (Jackson, J.,\nconcurring).\n- 3 -\nBicameralism\nDespite the careful separation of powers between the\nthree Branches, the Framers recognized that the Legislature,\nwith the authority to make all laws and to appropriate all\nmoney, was the Branch with the greatest potential powers.\nThe Framers were acutely aware that \"[i]n republican government\nthe legislative authority, necessarily, predominates. The\nFederalist No. 51 (J. Madison), at 350. While there was\ngeneral agreement that the Legislative Branch should set\npolicy, there was also agreement that an internal check was\nnecessary on the power of the Legislature. One of the\nchecks the Framers fashioned against this potential was to\nrequire that legislative action receive the approval of\nboth Houses of Congress. James Wilson, later a Justice of\nthe Supreme Court, observed during the debates of the\nConstitutional Convention:\nDespotism comes on mankind in different\nshapes. Sometimes in an Executive, sometimes\nin a military, one. Is there no danger of a\nLegislative despotism? Theory and practice\nproclaim it. If the Legislative authority\nbe not restrained, there can be neither\nliberty nor stability; and it can only be\nrestrained by dividing it within itself,\ninto distinct and independent branches. In\na single house there is no check, but the\ninadequate one, of the virtue & good sense\nof those who compose it.\n1 M. Farrand, The Records of the Federal Convention of 1787\n254 (1966) (emphasis added). Madison, expounding upon\nthe necessity of the Senate, noted \"the propensity of all\nsingle and numerous assemblies, to yield to the impulse of\nsudden and violent passions, and to be seduced by factious\nleaders, into intemperate and pernicious resolutions.\" The\nFederalist No. 62 (J. Madison), at 418. This propensity\nwould be checked, he maintained, by providing a greater\nopportunity for due deliberation in the course of considera-\ntion by the two differently constituted Houses. Id. at 417-\n19. See also The Federalist No. 63 (J. Madison), at 426-27.\nThe dangers posed by a Congress comprised of a single House\nwere thus clearly apparent to the Framers. Alexander\nHamilton warned that, were the Constitution to provide for\nonly one legislative organ:\n- 4 -\nwe shall finally accumulate, in a single\nbody, all the most important prerogatives\nof sovereignty, and thus entail upon our\nposterity one of the most execrable forms\nof government that human infatuation ever\ncontrived. Thus we should create in reality\nthat very tyranny which the adversaries of\nthe new Constitution either are, or affect\nto be, solicitous to avert.\nThe Federalist No. 22 (A. Hamilton), at 135, quoted in INS V.\nChadha, supra, 103 S. Ct. at 2783.\nPresentment\nYet another check fashioned by the Framers against the\npossibility of encroachment by the Legislative Branch upon\nthe independence of the Executive was the requirement of\nArt. I, § 7, that all legislative measures be presented to\nthe President for approval or disapproval. The Presentment\nClauses were intended by the Framers as a \"self-executing\nsafeguard\" against abuse of legislative power, 4/ and as a\n\"guard[ [] against ill-considered and unwise legislation. 5/\nAs the Court pointed out in Chadha, presentment to the\nPresident and the presidential veto were considered so\nimperative that the draftsmen took special pains to assure\nthat these requirements could not be circumvented. See\n2 M. Farrand, supra, at 301-02, discussed in INS V. Chadha,\n103 S. Ct. at 2782.\nThere was virtual unanimity at the Constitutional\nConvention that the President should participate in the\nlegislative process by exercising a veto over proposed\nlegislation. The purpose was threefold. First, presentment\nto the President would check, as Chief Justice Burger stated\nin INS V. Chadha, \"whatever propensity a particular Congress\nmight have to enact oppressive, improvident, or ill-considered\nBuckley V. Valeo, 424 U.S. 1, 122 (1976). See The Federalist\nNo. 51, supra, at 350; see also The Federalist No. 73 (A. Hamilton)\nat 497; The Federalist No. 66 (A. Hamilton), at 445-46; 1 M. Farrand,\nsupra, at 97-106; id. at 139-40 (remarks of George Mason).\n5/ The Pocket Veto Case, 279 U.S. 655, 678 (1929) see also id.\nat 677-78 n.4; Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S.\n579, 587 (1952) ; United States V. Rumely, 345 U.S. 41, 46 (1953).\n- 5 -\nmeasures.\" 6/ Second, it would ensure that the legislative\nprocess included a national perspective. As the Supreme\nCourt aptly noted in Myers V. United States, 272 U.S. 52\n(1926):\nThe President is a representative of the\npeople just as the members of the Senate\nand of the House are, and it may be, at\nsome times, on some subjects, that the\nPresident elected by all the people is\nrather more representative of them all\nthan are the members of either body of\nthe Legislature whose constituencies are\nlocal and not countrywide\n....\n272 U.S. at 123, quoted in INS V. Chadha, supra, 103 S. Ct.\nat 2782-83. 7/ Third, the presentment requirement is\nnecessary to enable the President to defend the powers of\nthe Executive from legislative encroachments. Without the\nveto power, as Alexander Hamilton observed, the President\n\"would be absolutely unable to defend himself against the\ndepredations of the [Legislative Branch.] He might gradually\nbe stripped of his authorities by successive resolutions,\nor annihilated by a single vote.\" The Federalist No. 73\n(A. Hamilton), at 494.\nThe protections of bicameralism and presentment to the\nPresident, derived from the underlying principle of separa-\ntion of powers, were thus no accident of history or lightly\nconsidered procedural requirements, but rather a \"finely\nwrought and exhaustively considered procedure\" intended to\nserve what the Framers believed to be essential constitutional\nfunctions. INS V. Chadha, 103 S. Ct. at 2784. While compliance\nwith this procedure may result in some inefficiencies or\ninconveniences, see id. at 2781, those inefficiencies and\n6/ INS V. Chadha, 103 S. Ct. at 2782; The Federalist No. 73\n(A. Hamilton), at 495-96; see generally 1. J. Story, Commentaries\non the Constitution of the United States, §§ 884-893; at 614-21\n(3d ed. 1858).\n7/ See also INS V. Chadha, 103 S. Ct. at 2784; II Elliot's\nDebates on the Federal Constitution 448 (1836).\n- 6 -\ninconveniences are a small price to pay for maintaining an\nappropriate balance between the coordinate Branches of the\nGovernment. The Court's observations in Chadha are particularly\nrelevant:\nThe choices we discern as having been\nmade in the Constitutional Convention impose\nburdens on governmental processes that often\nseem clumsy, inefficient, even unworkable,\nbut those hard choices were consciously\nmade by men who had lived under a form of\ngovernment that permitted arbitrary govern-\nmental acts to go unchecked. There is no\nsupport in the Constitution or decisions of\nthis Court for the proposition that the\ncumbersomeness and delays often encountered\nin complying with explicit Constitutional\nstandards may be avoided, either by the\nCongress or by the President. See Youngstown\nSheet & Tube Co. V. Sawyer, 343 U.S. 579,\n72 S. Ct. 863, 96 L.Ed. 1153 (1952). With\nall the obvious flaws of delay, untidiness,\nand potential for abuse, we have not yet\nfound a better way to preserve freedom than\nby making the exercise of power subject to\nthe carefully crafted restraints spelled\nout in the Constitution.\n103 S.Ct. at 2788.\nThe constitutional amendment proposed by S.J. Res. 135\nwould substantially eliminate these carefully drawn checks on\nthe exercise of legislative power and would drastically --\nand unnecessarily -- alter the existing relationships between\nthe Executive and Legislative Branches. We believe strongly\nthat any fundamental alteration of these limits would amount\nto seriously ill-advised tampering with the carefully constructed\nand tested constitutional scheme.\nEven aside from our grave concerns about the wisdom of\nmaking fundamental changes in our constitutional structure\ngoverning the lawmaking and lawexecuting processes, we fear\nthat authorization of one- and two-House legislative vetoes\nwould have a substantial adverse impact on both the Legislative\nand Executive Branches and would in fact impede, rather than\nfacilitate, the making and execution of laws. Granting one\nor both Houses of Congress the authority to veto Executive\nBranch decisions would inevitably introduce additional -- and\noften excessive -- delay into the decisionmaking process,\nwould place a massive new burden on already scarce congressional\n- 7 -\nand Executive Branch resources and would decrease the impact\nof public participation and political accountability in the\ndecisionmaking process. In addition, in those cases in which\njudicial review is available for particular Executive decisions,\na provision for congressional approval or disapproval would\nintroduce considerable uncertainty into the carefully structured\nrelationship between administrative decisionmaking and judicial\nreview, because the courts would be faced not only with\nadministrative judgments, based on statutory criteria, but\npolitical judgments of Congress -- judgments courts have been\ngenerally reluctant to review. See, e.g., Perkins V. Lukens\nSteel Co., 310 U.S. 113, 130 (1940); Panama Canal Co. V.\nGrace Lines, 356 U.S. 309, 318-19 (1958); Kansas City Power\n& Light Co. V. McKay, 225 F.2d 924, 930-31 (D.C. Cir. 1955),\ncert. denied 350 U.S. 884 (1955).\nWe see little merit to the argument that has generally\nbeen advanced in support of legislative veto authority --\nthat such devices are necessary to maintain a proper balance\nbetween the Executive and Congress in the face of the vast\ndelegation of policymaking power that has accompanied the\nphenomenon of modern regulation. Even if the premise were\ncorrect that Congress cannot, through legislation, deal\nwith the many details of modern regulatory schemes, we\nsee no reason to believe that Congress's inability to\nmaster detail through the formal legislative process would\ndisappear if Congress were faced with the task of reviewing\nagency rules and the thousands of other Executive Branch\ndecisions. The review by Congress of detailed rules, policies,\nand decisions made on a daily basis by the Executive Branch\nmay well in practice be avoided for the same reasons that\nCongress tends to avoid enactment of detailed legislation,\nresulting in Congress's giving piecemeal attention to particu-\nlarly sensitive or visible decisions, an approach that would\nbe destructive of the stability and fairness of the laws and\nwould be vulnerable to special interest political pressure.\nThis danger has been apparent since the earliest days\nof the Republic. In a letter in August 1787 regarding the\nproposed structure of the national government, Thomas Jefferson\ndescribed the problem in these terms:\nNothing is so embarrassing nor so mischievous,\nin a great assembly, as the details of execution.\nThe smallest trifle of that kind occupies as\n- 8 -\nlong as the most important act of legislation\nand takes the place of everything else. Let\nany man recollect, or look over, the files of\nCongress; he will observe the most important\npropositions hanging over, from week to week,\nand month to month, till the occasions have past\nthem, and the thing never done. I have ever\nviewed the executive details as the greatest\ncause of evil to us, because they in fact place\nus as if we had no federal head, by diverting\nthe attention of that head from great to small\nsubjects\n\"\n6 T. Jefferson, The Writings of Thomas Jefferson 228 (A. Bergh,\ned. 1903) (letter to E. Carrington, Aug. 4, 1787).\nFurthermore, S.J. Res. 135 would authorize legislation\ngiving one or both Houses the power to veto actions taken by\nthe President pursuant to statutory power which deeply impli-\ncates the President's conduct of the foreign policy of our\nNation. Such power would have the predictable impact of\npreventing the President from implementing a coherent foreign\npolicy that could be depended upon for its consistency, by\nfriend and foe alike.\nMoreover, there is considerable and compelling evidence\nthat legislative vetoes simply have not served the purposes\nfor which they were intended, and have, in fact, been counter-\nproductive. 8/ Rather than fostering more participation. in\nthe policymaking process by members of Congress, legislative\nvetoes have provided Congress with a convenient excuse for\nexcessive, overly-broad delegations of authority, have\nfostered nonaccountable decisionmaking and evasion of poli-\ntically controversial decisions by the Legislative Branch,\nand have tended to undermine respect for the rule of law in\nthat Congress may appear to use its authority in an arbitrary\nand capricious manner.\nThe fundamental problem that has given impetus to legis-\nlative veto provisions in the past is not that the allocation\nof power under our Constitution is skewed in favor of the\n8/ See, e.g., American Bar Association Commission on Law and\nThe Economy, \"Federal Regulation: Roads to Reform\" (1979)\nAntonin Scalia, \"The Legislative Veto: A False Remedy for\nSystem Overload\" Regulation (November/December 1979).\n- 9 -\nExecutive, but rather that the statutory standards pursuant\nto which the Executive Branch -- particularly the regulatory\nagencies -- operate are in many cases not well-defined, are\ntoo broad, and provide only limited guidance to the Executive\nin its execution and enforcement of the laws. In many cases\nCongress has asked the Executive Branch to make basic, vitally\nimportant policy choices that, at least in theory, are more\nproperly for the legislature to make. This underlying problem\nwould not in reality be addressed by giving Congress a \"second\nshot\" at reviewing Executive actions through a legislative veto\nprocess; the problem can only be fully addressed by Congress's\ngiving the Executive Branch clear and precise guidance as to\nhow, and to what ends, discretion should be exercised.\nFinally, we see no compelling need for use of legislative\nveto devices to oversee or restrain Executive Branch decisions.\nThrough Executive Order 12291, the President has been able to\nmaintain oversight over the process of rulemaking by the non-\nindependent Executive Branch agencies, both to ensure that the\nagencies scrutinize carefully the legal and factual basis for\nmajor rules in order that those rules maximize social benefits\nand minimize costs to the extent permitted by law, and to ensure\na consistent, well-reasoned, Administration-wide approach to\npolicies for which the Executive Branch is responsible. In\naddition, there are many effective and fully constitutional\noversight and law-making mechanisms whereby Congress can\ncarry out its constitutional functions. Particularly in the\ndomestic area, Congress can limit its need to review the\nExecutive's execution of the law by placing more specific. and\nprecise limits on the authority, for example, of agencies to\nissue rules. Congress, with participation by the President,\ncan override unwise, inappropriate, or excessively burdensome\nrules or decisions made pursuant to statutorily delegated\nauthority, by enactment of legislation. The use of expediting\nmechanisms for consideration of such legislation could facilitate\nspeedy review, and would not have to be tied to the legislative\nveto devices with which they have so often been associated.\nCongress can also adopt- sunset provisions that require agencies\nto return to Congress periodicially for reenactment of generic\nauthority. Congress can hold oversight hearings, at which\nmembers of Congress may demand explanations for Executive\nBranch decisions. Congress can adopt resolutions expressing\nviews, which may not be legally binding upon the Executive\nBranch, but which may be useful from a policy standpoint in\nthe Executive Branch's implementation of the law. Ultimately,\nCongress can exercise the power of the purse, through the\nappropriations process, to shape Executive action, although\n- 10 -\nthat process should be viewed as one of last resort because\nit often bypasses or fails to make maximum use of Congress's\nfull expertise on a particular issue and it overburdens an\nalready complex appropriations process.\nThe Administration is deeply interested in addressing\nconcerns about the sharing of power within the federal govern-\nment, and the need to improve or reform the process by which\nlaws are made and executed -- concerns that are not necessarily\nnew, but that have reemerged in the wake of the Chadha decision.\nHowever, we do not believe that a constitutional amendment to\nallow for legislative vetoes would either address those concerns\nadequately or would avoid a real danger of paralysis in the\ndecisionmaking process in both the domestic and foreign affairs\narenas. Even more importantly, we do not believe the Chadha\ndecision should be the occasion for a fundamental alteration\nof the constitutionally mandated legíslative process.\nAccordingly, the Department of Justice opposes adoption\nof S.J. Res. 135 and transmittal of it to the states for\nratification.\nThe Office of Management and Budget has advised this Depart-\nment that there is no objection to the submission of this report\nto Congress and that it is in accord with the program of the\nAdministration.\nSincerely,\nROBERT A. McCONNELL\nAssistant Attorney General\n- 11 -\nTHE WHITE HOUSE\nWASHINGTON\nMay 7, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS\nSUBJECT:\nRevised Draft OMB Statement\nConcerning Legislative Veto\nOMB has asked for comments by close of business today on a\nrevised version of legislative veto testimony to be delivered\non May 10 by Chris DeMuth. The memorandum we prepared\nnoting several objections to the earlier version of DeMuth's\ntestimony had not been sent when we received this revised\nversion. Accordingly, I advised Pat not to send it, in\norder that we could send one memorandum on the latest\nversion.\nThe only substantive change in the revised version of the\ntestimony is the last page, which is entirely new. This new\npage expresses Administration willingness to work with\nCongress in devising a proposal to \"gain experience\" with\none or more of the legislative veto proposals through a\ncarefully controlled \"test period.\" The test legislation\nmust (1) be consistent with Chadha, (2) apply for two years\nor less to only a few important and representative agencies,\n(3) provide the President an opportunity to \"oversee\" the\nrules promulgated under the proposal, and (4) be drafted in\na way to maximize the lessons from the experiment.\nI am not aware that this dramatic addition has been approved\nat any level, and I do not think the Administration should\ncommit to such an experiment without more careful deliberations\nby all those affected. As I advised you some time ago,\nDeMuth is enamored with the idea of requiring that all major\nrules be approved by Congress. He believes this will do\naway with judicial review of agency rulemaking, essentially\nputting the D.C. Circuit out of business. This sudden\nrevision, tucked away on the very last page, appears to be\nhis opening salvo in an effort to establish his position as\nthat of the Administration. We should object and insist\nthat the matter be reviewed at the highest levels before the\nAdministration agrees to DeMuth's \"experiment.\" We should\nalso reiterate the objections noted in our earlier, unsent\n- 2 -\nmemorandum. The first paragraph in the attached memo for\nyour signature is new; the remainder has been changed only\nso that the page and line references correspond to the\nrevised version of the testimony.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nMay 7, 1984\nMEMORANDUM FOR BRANDEN BLUM\nLEGISLATIVE ATTORNEY\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nFRED F. FIELDING\nsigned\nby\nFFF\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nRevised Draft OMB Statement\nConcerning Legislative Veto\nCounsel's Office has reviewed the above-referenced revised\ndraft testimony. The principal revision is the addition of\na new concluding paragraph on page 21. That paragraph\nexpresses Administration support for enactment of one or\nmore of the post-Chadha regulatory veto proposals on a\nlimited, experimental basis. I object to the inclusion of\nthis paragraph in the testimony. Administration support for\nsuch an experiment must be considered at the highest levels\nby all affected departments before it can be endorsed. I\nfor one am not presently persuaded that such an \"experiment\"\nis advisable; the question certainly has not been adequately\ndebated within the Administration.\nIn the first full paragraph on page 5, the testimony\ndismisses the supposition that the shift of policymaking\nauthority in the regulatory area to the judiciary is due to\njudicial activism. The argument that such activism is in\nfact at least one cause of this shift has been advanced\npublicly on numerous occasions by Justice Department\nofficials, most prominently the Attorney General, and the\ntestimony should not undermine this position. I would\nchange the second sentence of this paragraph to read as\nfollows: \"This is not only the result of judicial activism\nbut also a consequence of the increasing economic importance\nof regulatory law.\"\nOn page 7, lines 7-8, \"members of the President's immediate\noffice\" should be changed to \"the Office of Management and\nBudget. The phrase \"the President's immediate office\" is\nimprecise and would generally suggest something other than\nOMB.\nOn page 9, lines 6-7, the proposed testimony dismisses as\n\"vain\" the hopes that Chadha will compel Congress to act\nmore responsibly in drafting laws. Again, this is incon-\nsistent with previous Administration statements that made\n- 2 -\nthe precise point that is rejected. Furthermore, I do not\nconsider it accurate to dismiss the hope as unfounded. It\nis entirely reasonable to suppose -- certainly to hope --\nthat Congress will be more circumspect in delegating law-\nmaking authority now that it will not have a ready oppor-\ntunity to review agency action in specific cases. This\nparagraph should be rewritten to make its point without\naltogether dismissing the argument that, as the Attorney\nGeneral stated in his press release the day Chadha was\ndecided, the long-term effect of the decision \"will be a\nbetter and more effective Congress as well as a more ef-\nfective Presidency.\"\nThe first full sentence on page 11 should be deleted.\nPresidents have not accepted legislative vetoes; all 11 that\nhave addressed the issue have expressed the view that they\nare unconstitutional. As the Chadha opinion itself makes\nclear, Presidents have not \"accepted\" legislative vetoes in\nany legal sense simply by signing bills that contain them.\nBecause of the Department of Justice's involvement, this\ntestimony should be reviewed by it as soon as possible.\nFFF:JGR:aea 5/7/84\nCC: FFFielding/JGRoberts/Subj/Chron\nCC: Richard G. Darman\nTHE WHITE HOUSE\nWASHINGTON\nMay 7, 1984\nMEMORANDUM FOR BRANDEN BLUM\nLEGISLATIVE ATTORNEY\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nRevised Draft OMB Statement\nConcerning Legislative Veto\nCounsel's Office has reviewed the above-referenced revised\ndraft testimony. The principal revision is the addition of\na new concluding paragraph on page 21. That paragraph\nexpresses Administration support for enactment of one or\nmore of the post-Chadha regulatory veto proposals on a\nlimited, experimental basis. I object to the inclusion of\nthis paragraph in the testimony. Administration support for\nsuch an experiment must be considered at the highest levels\nby all affected departments before it can be endorsed. I\nfor one am not presently persuaded that such an \"experiment\"\nis advisable; the question certainly has not been adequately\ndebated within the Administration.\nIn the first full paragraph on page 5, the testimony\ndismisses the supposition that the shift of policymaking\nauthority in the regulatory area to the judiciary is due to\njudicial activism. The argument that such activism is in\nfact at least one cause of this shift has been advanced\npublicly on numerous occasions by Justice Department\nofficials, most prominently the Attorney General, and the\ntestimony should not undermine this position. I would\nchange the second sentence of this paragraph to read as\nfollows: \"This is not only the result of judicial activism\nbut also a consequence of the increasing economic importance\nof regulatory law.\"\nOn page 7, lines 7-8, \"members of the President's immediate\noffice\" should be changed to \"the Office of Management and\nBudget.' The phrase \"the President's immediate office\" is\nimprecise and would generally suggest something other than\nOMB.\nOn page 9, lines 6-7, the proposed testimony dismisses as\n\"vain\" the hopes that Chadha will compel Congress to act\nmore responsibly in drafting laws. Again, this is incon-\nsistent with previous Administration statements that made\n- 2 -\nthe precise point that is rejected. Furthermore, I do not\nconsider it accurate to dismiss the hope as unfounded. It\nis entirely reasonable to suppose -- certainly to hope --\nthat Congress will be more circumspect in delegating law-\nmaking authority now that it will not have a ready oppor-\ntunity to review agency action in specific cases. This\nparagraph should be rewritten to make its point without\naltogether dismissing the argument that, as the Attorney\nGeneral stated in his press release the day Chadha was\ndecided, the long-term effect of the decision \"will be a\nbetter and more effective Congress as well as a. more ef-\nfective Presidency.\"\nThe first full sentence on page 11 should be deleted.\nPresidents have not accepted legislative vetoes; all 11 that\nhave addressed the issue have expressed the view that they\nare unconstitutional. As the Chadha opinion itself makes\nclear, Presidents have not \"accepted\" legislative vetoes in\nany legal sense simply by signing bills that contain them.\nBecause of the Department of Justice's involvement, this\ntestimony should be reviewed by it as soon as possible.\nFFF:JGR:aea 5/7/84\nCC: FFFielding/JGRoberts/Subj/Chron\nID #.\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\nO - OUTGOING\nH . INTERNAL\nI\n- INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nJames C. Murr\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject: Revised draft OMB statement\nforcuming legislative beto\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nWHolland\nORIGINATOR 84/05/07\n/\n/\nReferral Note:\nWATI8\nD 8410507\n5 84105107\nReferral Note:\n/\n/\n/\n/\n-\nReferral Note:\n/\n/\n/\n/\nReferral Note:\n/\n/\n/\n/\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA . Appropriate Action\nI Into Copy Only/No Action Necessary\nA Answered\nC Completed\nC + Comment/Recommendation\nR - Direct Reply w/Copy\nB - Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF . Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nEXECUTIVE OFFICE OF THE PRESIDENT\nOFFICE OF management AND BUDGET\nWASHINGTON, D.C. 20503\nSPECIAL\nMay 7, 1984\nLEGISLATIVE REFERRAL MEMORANDUM\nTO:\nLEGISLATIVE LIAISON OFFICER\nSEE DISTRIBUTION\nSUBJECT: REVISED draft OMB statement concerning legislative veto\nThe Office of Management and Budget requests the views of your\nagency on the above subject before advising on its relationship\nto the program of the President, in accordance with OMB Circular\nA-19.\nPlease provide us with your views no later than COB Monday, May 7, 1984\n(NOTE: An earlier version of OMB's testimony was circulated 5/2/84. The hearing\nis scheduled for May 10, 1984.)\nDirect your questions to Branden Blum (395-3802), the legislative\nattorney in this office.\nJames C. Murr for\nAssistant Director for\nLegislative Reference\nEnclosure\nCC: B. Bedell\nM. Horowitz\nF. Fielding\nC. DeMuth\nE. Strait\nK. Wilson\nJ. Frey\nM. Uhlmann\nJ. Hill\nDISTRIBUTION\nDepartment of Agriculture\nDepartment of Commerce\nDepartment of Education\nDepartment of Defense\nDepartment of Labor\nDepartment of Health and Human Services\nDepartment of Housing and Urban Development\nDepartment of State\nDepartment of the Treasury\nDepartment of Transportation\nDepartment of the Interior\nDepartment of Energy\nVeterans Administration\nEnvironmental Protection Agency\nSmall Business Administration\nOffice of Personnel Management\nGeneral Services Administration\nDepartment of Justice\nFederal Emergency Management Agency\nUnited States Postal Service\nCentral Intelligence Agency\nAdministrative Conference of the United States\nDRAFT (5/4/84)\nSTATEMENT OF CHRISTOPHER DeMUTH\nADMINISTRATOR FOR INFORMATION AND REGULATORY AFFAIRS\nOFFICE OF MANAGEMENT AND BUDGET\nBEFORE THE COMMITTEE ON RULES\nU.S. HOUSE OF REPRESENTATIVES\nON\nLEGISLATIVE VETO\nMay 10, 1984\nChairman Pepper and members of the Committee:\nI appreciate the opportunity to appear before you this\nafternoon to discuss the impact of the Supreme Court's decision\nin INS V. Chadha on the regulatory process. Before the Court's\ndecisions last term in Chadha and related cases, the\nAdministration had opposed on constitutional grounds many\nlegislative veto provisions and proposals (many of them affecting\nExecutive branch decisions other than rulemaking). At the same\ntime, substantial majorities of both Houses of the previous\nCongress were on record as favoring some version of legislative\nveto over agency rules.\nNow that the Court has definitively resolved the\nconstitutional issue, we are faced with the more direct and\ndifficult policy issue: Should the President and Congress agree,\nthrough legislation, to procedures that would approximate the\n2\ndefunct legislative vetoes over some or all agency rules, while\navoiding their constitutional pitfalls? Recent \"regulatory veto\"\nproposals 1/ offered by Members of both Houses and both political\nparties urge an affirmative response--while differing\nsignificantly on what those procedures should be. Moreover, both\nHouses are either considering attaching, or have attached,\nspecific \"regulatory veto\" provisions to the authorizations of\nindividual regulatory agencies.\nThe Administration has not yet adopted a position on any of\nthese proposals. Our hesitation regarding the various\nacross-the-board regulatory veto proposals is not, however, due\nto lack of interest. We believe these proposals are of profound\nimportance, and therefore worthy of the most careful\ndeliberation.\nWe are following the Congressional debates with close and\nkeen interest, and hope to have a more definite position\nconcerning universal regulatory veto requirements in the near\nfuture. But I do not want to leave the impression that we will\nultimately conclude by supporting some provision. It may well be\nthat, given existing forms of oversight and the complexities of\nadding new, constitutional procedures for Congressional review of\nindividual rules, a universal regulatory veto requirement is not\n1/ I refer to these proposals as \"regulatory veto\" to distinguish\nthem from proposals concerning Congressional involvement in\nnon-regulatory matters such as spending deferrals and the\nPresident's military and foreign policy authorities.\n3\nthe best solution. At the same time, properly constructed\nregulatory veto requirements, applicable for specific time limits\nto selected agencies, may be suitable on an experimental basis.\nThis afternoon, I would like to offer three general\nconsiderations which are guiding our own thinking on this issue,\nin the hope that they will be useful to you as well.\n*****\nFirst, it is important to recognize that the regulatory veto\nproposals address a serious and fundamental problem. This is the\nincreasing use of administrative \"rulemaking\" to establish\nsubstantive law--a trend that has seriously weakened the\nauthority and accountability of the two political branches for\nmajor national policies, and has led to an increasing migration\nof policy control to the Federal courts.\nThe growth of the pre-Chadha legislative veto was roughly\ncoincident with the rise of the large administrative state. Over\nthe past half-century, Congress has extended the Federal\ngovernment's reach into one new territory after another\npreviously the domain of the states, private markets, or other\nvoluntary arrangements--highways, education, medical care, the\ndesign of automobiles and other products, pollution abatement,\nand SO forth. With Congress injecting the Federal government\n4\nmore and more deeply into private markets and local governance,\nCongress has increasingly lacked the resources--chiefly time and\ninformation--to enact into law all of the discrete judgments and\ncompromises necessary to guide these interventions. As a result,\nCongress has increasingly hedged, enacting vague or even\ncontradictory statutory standards that have effectively\ntransformed Executive officials (and, derivatively, judges) into\nde facto lawmakers.\nCabinet agencies and the so-called independent regulatory\nagencies alike have responded to this challenge with a series of\nadministrative innovations that has demonstrated their relative\nversatility in writing detailed and complex laws-and, as a\nresult, has induced further Congressional lawmaking and\nincreasing regulatory growth. The most important innovation has\nbeen \"informal rulemaking,\" a technique that subtly combines the\nefficiencies of hierarchical, executive decisionmaking with the\nkey legitimating features of judicial and legislative\ndecisionmaking--due process and public sanction. The agency\nissues a \"notice of proposed rulemaking,\" receives and evaluates\nwritten comments from the public, and then issues a \"final rule\"\nthat becomes (with the courts' permission) the law of the land.\nThe success of informal rulemaking, however, has been\nproblematic at best. While it has provided a means for\nhigh-volume decisionmaking in the large modern state, it has done\n5\nso at a very high cost in policy coherence and political\naccountability. While the regulatory bureaucracies have never\nexactly been \"out of control,\" the locus of that control, and its\nrelationship to any publicly articulated conception of the\nnational interest, have been increasingly difficult to discern.\nJudicial preoccupation with \"due process\" has led to an\nincreasing migration of large areas of policymaking to an\nunelected judiciary. This is not, as is often supposed, the\nresult of the growth of \"activist\" judicial doctrines among\nmodern judges; rather it is a direct corollary of the increasing\neconomic importance of regulatory lawmaking. With freewheeling\ndiscretion delegated to administrative agencies, and with large\nstakes riding on the results of their proceedings, private groups\nhave strong incentives to invest in litigating thoroughly every\nconceivable aspect of their decisions--and the courts must attend\nto these arguments. The reach of the Judicial branch is not\ndetermined simply by views of appellate judges, but also by the\ningenuity of litigants in devising persuasive arguments within\nthe context of whatever legal precedents may exist.\nThere can be little debate that the scope and detail of\njudicial review is today of an altogether different order than\nCongress envisioned in adopting the \"arbitrary, capricious, or\nabuse of discretion\" standard of the Administrative Procedure Act\nof 1946. Indeed, the courts' use of these words today bears no\n6\nresemblence to their normal, everyday meaning. While everyone,\nregardless of political viewpoint, is pleased with some court\ndecisions under the current standards, it can hardly be said that\nthe result has been greater agency accountability. This would be\nso only if the agencies had been ignoring clear Congressional\nmandates until the courts suddenly brought them into line.\nInstead, the usual case is that Congress does not issue the clear\nmandates in the first place, or else does not foresee the issues\nits laws will raise in specific instances--leaving the courts as\nwell as the agencies adrift regardless of the \"strictness\" of\njudicial review.\nThe general public acceptance of judicial policymaking has\nbeen much remarked upon. One reason for this acceptance is\nsurely that the political legitimacy afforded agency rules by\npublic notice-and-comment procedures is itself such a thin\nsubstitute for lawmaking by two representative majorities plus\nthe President. Indeed, the rulemaking process is inherently far\nless representative than the constititional lawmaking procedures\nfor which it substitutes. Rulemaking proceedings are closely\nattended only by organized groups with immediate stakes in the\ndecisions. Their arguments, of course, are usually couched in\nterms of the broad public interest. But in fact the interests of\norganized lobbying groups frequently conflict with the general\npublic interest--whether this interest is defined by a vote of\nthe Congress or suggested by the conclusions of an economic\n7\ncost-benefit analysis.\nThe legislative veto has been, of course, just one of a\nvariety of devices developed to increase the accountability of\nthe regulatory bureaucracies. Presidents Ford, Carter, and\nReagan have issued increasingly explicit Executive orders\nrequiring agencies to assess the benefits and costs of their\nrules and to consult with members of the President's immediate\noffice. President Reagan's Executive Order 12291 requires\nregulatory agencies, to the extent permitted by statute, to\nfashion rules that will produce the greatest net social benefits;\nit seeks to guide administrative discretion towards decisions\nthat are in the broadest public interest--which may, as I have\nsaid, be different than the interest of any notice-and-comment\npetitioner. The Order further directs agencies to report on\ntheir proposed and final rules to the Office of Management and\nBudget, and thus seeks to increase the accountability of the\nregulatory process by ensuring that individual rules are in\nharmony with the President's policies.\nThe pre-Chadha legislative vetoes put the legislative branch\ndirectly \"in the loop\" of Executive branch decisions, and thus\nmade Congress, at least in theory, more accountable to the public\nfor agency actions. Although these were the Congress' most\nconspicuous response to the problems of galloping\nlawmaking-by-rulemaking, they were not Congress' only response.\n8\nIn fact, they were of much less practical significance than other\nforms of Congressional influence. Legislative vetoes of agency\nrules were exercised on only a few occasions. When Congress was\nstrongly opposed to a regulatory decision, it was more likely to\noverride that decision by statute, as in the cases of the\nsaccharin ban and the automobile seatbelt-ignition interlock\nrule. In some cases where vetoes were exercised, as in the 1982\noverride of the FTC's used-car labelling rule (nullified by the\nSupreme Court shortly after Chadha), a statutory override with\nthe President's signature was probably available. And\nappropriations riders barring or directing agency action have\ncome into increasing use in recent years. They have (I am sorry\nto say!) been used or threatened on a number of occasions to\nprevent the Reagan Administration from undertaking important\nregulatory reforms.\nOn a day-to-day basis, however, the most important tools of\nCongressional influence over Executive policymaking have been the\nlong-established informal ones: the growth of committee, and\nsubcommittee staffs working intimately with agency staffs and\nprivate groups; increasingly frequent oversight hearings; and the\nconstant process of dialogue, negotiation, and compromise between\nExecutive officials and committee chairmen and other\nCongressional leaders. And Congress has utilized several large\ninstitutions to help it with the details of these efforts--the\nCongressional Budget Office; the General Accounting Office, and\n9\nthe Office of Technology Assessment.\nMany observers have expressed the hope that Congress will\nrespond to the challenge of Chadha by becoming \"more\nresponsible\" by writing \"better\" laws that make the tough policy\nchoices Congress avoided by relying on legislative veto\nprovisions instead. The analysis above suggests that this is a\nvain hope. The problem of modern lawmaking is not a matter of\nlegislators avoiding their responsibility. It is rather an\ninstitutional problem, inherent in the size and ambitions of\ntoday's Federal government and the intentional, incorrigibly (and\nintentionally) ponderous nature of legislative decisionmaking.\nThe Congress remains a diverse, collegial body of individuals\nrepresenting a wide variety of differing and often conflicting\ninterests and viewpoints. Congress is best suited to making\nbroad decisions requiring the achievement of a consensus. So\nlong as Congress feels that it is under such great pressure to\nwrite and finance so many laws, it is unlikely to write \"better\"\nand even more detailed laws that, through statutory language,\nreclaim substantial lawmaking authority from the Executive\nbranch.\nThe Congressional advocates of the new, post-Chadha\nregulatory veto procedures clearly recognize this dilemma. They\nalso recognize that, for purposes of practical impact and\naccountability to the public, there is no substitute for having\n10\nCongress stand 'up and be counted on a concrete proposition--not\nwhether one is for or against clean air or for or against cancer,\nbut whether one is for or against a specific level of control for\na specific pollutant, or for or against banning a specific\nproduct. What remains to be determined is whether the regulatory\nveto advocates have identified not only the correct problem but a\nworkable solution as well.\n*\nMy second point is that the Chadha decision has a major\neffect on the regulatory veto debate. On occasion, proponents of\none or another regulatory veto device have claimed that their new\napproach would be functionally equivalent to the pre-Chadha\nlegislative vetoes--implying that the Supreme Court's holding was\nan academic and punctilious exercise easily avoided by practical\nmen. It is important to recognize that these claims are\nincorrect: the principle that Congress may make policy only by\nmaking law as specified in Article I of the Constitution changes\nfundamentally the procedures now available for vetoing agency\nrules. These changes could affect the positions of those on both\nsides of the pre-Chadha legislative veto debate.\nPre-Chadha, there were à variety of institutional reasons why\n11\nlegislative veto procedures were enacted. Presidents\noccasionally accepted them to induce broader grants of authority\nfrom Congress. Members of the House and Senate supported them to\ncounterbalance broad statutory standards with greater influence\nover Executive interpretation and implementation. Members of the\nHouse supported them to share in regulatory influence provided\nthe Senate by the confirmation process. Authorizing committees\nsupported them to counterbalance the power of appropriations\ncommittees. Junior members supported them to equalize power held\nby authorizing committee chairmen. Program opponents supported\nthem to dilute the power of program advocates. The House and the\nSenate supported them as a check upon the other body.\nUnder Chadha, however, the variety of veto procedures has\nbeen narrowed, and so have the possible motivations for\nE\nsupporting them. To see this, consider the two paradigmatic\nregulatory veto mechanisms now available. Under one\nprocedure--\"statutory, disapproval\" a law would provide that\nagency rules could go into effect only after a \"report-and-wait\"\nperiod, and that Congress could disapprove rules by joint\nresolution before the end of the period. Except for the\nprocedures involved, this would be little different from the\nstatus quo, since Congress can always override a regulation by\nstatute.\nUnder the second procedure--\"statutory approval a law would\n12\nprovide that agency rules could go into effect only after a\n\"report-and-wait\" period, and then only if Congress had approved\nthe rule by joint resolution before the end of the period. This\nwould be a considerable change from the status quo, and would\npermit a simple majority of either House to \"veto\" any agency\n\"rule\" which would no longer be a rule in the traditional sense\nbut rather a proposal to enact legislation. This regulatory veto\nwould \"solve\" the regulatory problem by virtually abolishing\nregulation itself, converting rules into statutes and regulatory\nagencies into proposers of legislation; it would also flood\nCongress with thousands of minute decisions that could bring the\nlegislative process as well to a screeching halt.\nOf course, the major proposals to establish a regulatory veto\nwould modify these pure approval or disapproval procedures. The\nproposal sponsored by Senators Levin and Boren adopts the\nstatutory disapproval approach--but features expediting\nprocedures to move disapproval resolutions promptly to the floors\nfor votes of the entire Houses without delay by committees or\nsubcommittees. The authorizing committees are often champions of\n\"their\" agencies' programs, and can--through scheduling and other\ndevices--block. By making program implementation more often\nsubject to votes by floor majorities, the expediting procedures\ncould make regulatory programs more responsive to majority\nsentiment. The proposal sponsored by Senator Grassley and\nCongressman Lott adopts the statutory approval approach (with\n13\nexpediting procedures) but only for \"major\" rules (fifty or\nsixty a year), leaving the large majority of less significant\nrules covered by a statutory disapproval procedure similar to\nthat in Levin-Boren.\nBoth of these proposals would give Congress greater\nresponsibility and purport to make Congress more accountable to\nthe public for Federal regulations. To the extent they do so,\nhowever, it is at a cost: both would place new administrative\nburdens on the Congress, and both would limit Congress' ability\nto pick and choose among the issues that may come before it. And\nthere are two other, fundamental respects in which they would\ndiffer from the pre-Chadha legislative vetoes, both arising from\nthe requirement that Congress must act jointly (between the two\nHouses always, and with the President unless his veto is\noverridden).\nFirst, the President could \"veto the veto\" under the\nLevin-Boren procedure. If the President favors a rule issued by\nagencies, and vetoes a joint resolution presented to him which\nwould disapprove it, a two-thirds majority in both Houses would\nbe required to override his veto. On the other hand, the\nGrassley-Lott approach for \"major\" rules is closer to a one-House\nsimple majority veto. Either House could refuse to enact into\nlaw a proposed major regulation by not approving the joint\nresolution of approval. Note that there is constitutional form\n14\nof the pre-Chadha two-house legislative veto. That the currently\navailable forms are extreme ones--one-House simple/majority\nversus two-House supermajority--may make it more difficult to\nforge a majority consensus behind any regulatory veto.\nThe second difference is that the President's role in the\nlegislative process could change significantly. Under\nGrassley-Lott, once a major rule is proposed, at least one House\nwill be obliged to vote on it; if the first House to vote\napproves, the other House will then be obliged to vote as well.\nThis stronger form of regulatory veto risks the current\nprerogatives of both the Executive and Legislative branches. The\nExecutive would be obliged to persuade -a majority of both Houses\nto put a proposed major new regulation into effect, or to make\nmajor change in an existing regulation. But, at the same time,\nthe Congress would lose some control over its calendar, and could\nnot avoid voting on controversial issues it might prefer to avoid\nor delay. The President would be able to determine, several\ntimes each session, when and in what context Congress would have\nto stand up and be counted.\nThese are not arguments against the regulatory veto. They\nmerely emphasize that, with the options properly limited by\nChadha, we are faced with very different dynamics for\nCongressional and Executive review. No constitutional regulatory\nveto could simply augment the power of one political branch at\n15\nthe expense of 'the other, so adopting one would involve risks and\ndemand statesmanship at both ends of Pennsylvania Avenue. The\nnew procedure also would affect the Judiciary. Indeed, to the\nextent agency rules were adopted as statutory law, the courts\ncould be removed altogether from review except on constitutional\ngrounds.\nMy third point is that there are strong and serious arguments\non all sides of the issues raised by the proposed regulatory veto\ndevices. For each of these issues, we will need to weigh how the\ndetails of each regulatory veto proposal will affect the function\nand authority of each branch and its accountability to the\npublic--and, most importantly, whether one of them will improve\ngovernment operations.\n1. Administrative Burdens for Congress. The opponents of\nregulatory veto proposals have good cause for concern over the\npotential volume and technical detail of the issues that would be\ncoming into the Congress. These could require a great deal of\ntime and attention under any of the regulatory veto proposals.\nGrassley-Lott in particular would entail a substantial increase\nin Congressional workload. Under Executive Order 12291, OMB\n16\nreviews 40 to 50 \"major\" (over $100 million in impact) final\nrules and about 1,500 \"non-major\" final rules a year.2/ OMB does\nnot review the rules of most \"independent\" regulatory agencies,\nwhich could involve an additional dozen \"major\" rules each year.\nNeither does OMB review most of the rules issued by the Internal\nRevenue Service.\nTo place this in context, over the past ten years, Congresses\nhave passed about 200 public laws in the first session and; 400\npublic laws in the second. Adding to Congress' annual\nlegislative calendar 60 or more joint resolutions to affirm major\nregulations, plus an unknown number of regulatory disapprovals,\ncould increase the number of legislative transactions considered\nby Congress from 10% to more than 25%.\n2. Executive Accountability. Although the President and\nofficials of the Executive Branch must work closely with\nCongress, there can be only one Executive. The President, like\nCongress, is accountable to the public. With so much execution\nof Federal law taking place through regulation, traditional\nExecutive oversight mechanisms--budget and accounting\ncontrols--no longer suffice, and have been supplemented in recent\nby regulatory oversight procedures (currently under Executive\n2/ To illustrate the possible impact of the Grassley-Lott\nproposal, I am attaching a listing of 125 major final rules\nreviewed under Executive Order 12291 during 1981-83, which\nprovides a brief explanation of each rule and a summary of any\ncourt challenges.\n17\nOrder 12291). Any reform of the rulemaking process acceptable to\nthe President must provide the President--the official charged by\nthe Constitution to see to the execution of the laws of the\nUnited States--the means to coordinate and direct executive\npolicymaking, including rulemaking.\nYet regulatory veto procedures could seek to limit Executive\nauthority over the regulatory agencies. Agency regulatory\nmanagement and staff may, even more than now, perform a balancing\nact between Congressional interests and the President's.\nRequiring agencies to forge new lines of responsibility to the\nCongress could threaten the ability of the President to fulfill\nhis responsibilities as the Federal government's Chief Executive.\n3. Judicial Review. A public law, unlike a regulation, is\nnot subject to review under the Administrative Procedure Act.\nUnless constitutional considerations require otherwise, a law--in\ncontrast to an agency rule--cannot be overturned by a court on\nthe grounds of having been created in an \"arbitrary and\ncapricious\" manner.\nThe effect upon subsequent judicial review of a joint\nresolution approving--or even disapproving- a regulation is a\nmatter that must be squarely addressed. We are unaware of any\nexperience with requirements that rules take effect only if\napproved by a joint resolution, and do not know what effect such\n18\na procedure might have on judicial review. Similarly, we do not\nhave experience with joint resolutions of disapprovals of agency\nrules that are passed by Congress but are not signed by the\nPresident. Both of these possibilities are presented by the\nproposed regulatory veto provisions. Unfortunately, this absence\nof experience further compounds the difficulty of assessing with\nconfidence appropriate mechanisms for a regulatory veto.\nThe statutes providing for a regulatory veto could provide\nthat the effect of a joint resolution of approval is to preclude\nfurther judicial consideration of the rule, except, of course,\nfor constitutional challenges. This would treat an \"approved\"\nrule like a statute. At the other extreme, the statute could\nprovide that Congressional and Presidential approval has no\neffect on subsequent judicial review--that a rule so approved\ncould then be overturned by a court for record inadequacies,\nprocedural defects, or on any other ground provided by the\nAdministrative Procedure Act or authorizing statute. A question\nworth deep reflection is whether the courts would fee comfortable\ndoing this--or, if they did, the procedure would be\nconstitutionally appropriate. These questions must be addressed\nin developing any regulatory veto statute.\n4. Agency Efficiency. Just as the regulatory veto process\nshould not stymie Congress in its other legislative work, it\nshould not stymie the ability of agencies to implement existing\n19\nstatutes. Any regulatory veto mechanism should contain emergency\nprocedures allowing agencies to take prompt and lasting agency\nregulatory action, without the necessity of prior Congressional\nreview. Any provision authorizing legislative veto must also\nstate how changes to rules approved by a joint resolution can be\naltered by subsequent agency action. Must minor changes to such\na rule also be approved by a joint resolution?\n5. Scope. A statute establishing a joint resolution\nprocedure either to disapprove or approve a regulation needs to\ndefine the regulatory statutes to which it will apply. Some\nexisting proposals limit Congressional review to rules issued\nthrough the informal rulemaking provisions of the APA. However,\nrulemaking to implement certain regulatory statutes are not\nclearly subject to the APA and may not, therefore, be subject to\nthe current regulatory veto bills. This includes most rules\nunder the Clean Air Act, and possibly the hybrid rulemaking\nprocedures of the Consumer Produce Safety Commission and the\nFederal Trade Commission. It is not only necessary to determine\nwhich agencies should be subject to the legislative veto\nmechanism, but also which statutes administered by those agencies\nshould be.\n6. Procedures and Review Periods. The administrative\ndetails of the regulatory veto bills are also important, and can\nseriously affect whether or not the proposal would work. Both\n20\nthe major proposals would amend the Rules of the House and the\nSenate to expedite regulatory reviews. They set time limits for\ncommittee review of each joint resolution; provide procedures for\ndischarge of each joint resolution and for floor consideration;\nmake the joint resolutions highly privileged--not subject to\namendment and subject to limited times for debate. The agency's\nmaximum \"report-and-wait\" period would be 90 days of continuous\nsession of Congress. This would mean that, if an agency\nsubmitted a proposed rule to Congress after the middle of May\nthis year, the 90 days of continuous session as defined in the\nbills could run out by adjournment.\n*****\nIn summary, then, the Congressional advocates of regulatory\nreview procedures believe that Congress must stand up and be\ncounted on specific regulatory proposals. It is also clear,\nhowever, that any new, post-Chadha regulatory veto procedure\npresents some very different dynamics for Congressional and\nExecutive relationships. The details of these new procedures may\nincrease administrative burdens for Congress, affect Executive\naccountability, change the reach of judicial review, and affect\nagency efficiency.\n21\nThe Administration agrees that the problems sought to be\naddressed by the various regulatory veto procedures are very\nimportant. And yet there are many uncertainties with these new\nproposals. The consequences of misjudging the effect of one of\nthese proposals could be severe. We may need to gain experience\nwith one or more of these proposals through a carefully\ncontrolled test period. We could agree to work with Congress to\ndevise such a proposal, with four conditions. First, any such\nprocedures must be consistent with the Chadha decision. Second,\nthe procedures should be applicable to the regulations issued by\nonly a few important and representative rulemaking agencies, and\nshould be strictly limited in time--a maximum of two years.\nThird, the Chief Executive-- the President--should be provided the\nmeans to coordinate and oversee the rules promulgated under these\nprocedures. And fourth, the legislation to do this should be\nwritten in a manner to maximize the chances of knowing after the\ntest period whether the procedures have been an improvement. We\nwould look forward to working with you in the development of such\nlegislation.\nMr. Chairman, thank you for the opportunity to present these\nviews."
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