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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Legislative Veto
(3 of 6)
Box: 31
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
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WITHDRAWAL SHEET
Ronald Reagan Library
Collection: ROBERTS, JOHN G.: Files
Archivist: gcc/bcb
File Folder: JGR/Legislative Veto [3 of 6]
OA 12663
Date: 5/26/98
12660
DOCUMENT
SUBJECT/TITLE
DATE
RESTRICTION
NO. AND TYPE
1. memo
John G. Roberts ro Fred F. Fielding re :Revised Draft
5/7/84
P5
OMB Statement Concerning Legislative Veto, 6p.2
dts 12/1400
(2-p. memo, + 2 copies of A 2-p memo
from Fielding to BRANdeN Blum)
RESTRICTION CODES
Presidential Records Act [44 U.S.C. 2204(a)]
Freedom of Information Act [5 U.S.C. 552(b)]
P-1 National security classified information [(a)(1) of the PRA].
F-1 National security classified information [(b)(1) of the FOIA].
P-2 Relating to appointment to Federal office [(a)(2) of the PRA].
F-2 Release could disclose internal personnel rules and practices of an agency [(b)(2) of the
P-3 Release would violate a Federal statute [(a)(3) of the PRA].
FOIA].
P-4 Release would disclose trade secrets or confidential commercial or financial information
F-3 Release would violate a Federal statue ((b)(3) of the FOIA].
[(a)(4) of the PRA].
F-4 Release would disclose trade secrets or confidential commercial or financial information
P-5 Release would disclose confidential advice between the President and his advisors, or
[(b)(4) of the FOIA].
between such advisors [(a)(5) of the PRA].
F-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the
P-6 Release would constitute a clearly unwarranted invasion of personal privacy [(a)(6) of
FOIA].
the PRA).
F-7 Release would disclose information compiled for law enforcement purposes ((b)(7) of
the FOIA].
C. Closed in accordance with restrictions contained in donor's deed of gift.
F-6 Release would disclose information concerning the regulation of financial institutions
[(b)(8) of the FOIA].
F-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of
the FOIA].
41
36
ADMINISTRATIVE LAW REVIEW
41
(Winter
1984)
HOLDING THE INDEPENDENT
AGENCIES ACCOUNTABLE:
LEGISLATIVE VETO OF
AGENCY RULES*
Michael Saks
have occupied a position of independence
since the case of Humphrey's Executor1 in the
mid 1930s. In that case, the Court rejected claims of executive control
and established the Federal Trade Commission as an independent
agency.2 A few years previously, Congress had passed the first legisla-
tive veto statute.³ Since then, Congress has enacted three hundred
post-enactment review laws.¹ The typical statute requires the president
or some agency to report its action to Congress and allows Congress to
overrule the agency action.3 The normal requirement for a congres-
sional override is action by at least one House, but there are statutes
which require action by both Houses,⁶ by committee of either one or
both Houses' and in one case by the action of a single committee
chairman.⁸ Some statutes require that one or both Houses approve
executive action for that action to become effective.⁹
*EDITOR'S NOTE: This article was written and submitted for publication prior to the
United States Supreme Court decision in the case of Immigration and Naturalization Service
v. Chadha. The editor feels, however, that the article still serves a useful purpose in
addressing the issue of independent agency accountability.
'295 U.S. 602 (1935).
21d. at 629. See also STUDY ON FEDERAL REGULATION, SENATE COMM. ON GOVERNMENTAL
AFFAIRS, 95th Cong., 2d Sess. 32 (1977) (hereinafter cited as 5 SENATE COMM.).
³Pub. L. No. 72-212, Legislative Appropriations for Fiscal Year 1933, 47 Stat. 382
(1932).
"See S. REP. No. 96-184, 96th Cong. 2d Sess. (1980) reprinted in U.S. CODE CONG. & AD.
NEWS at 1073, 1091 (hereinafter cited as F.T.C. Report), See also Watson, Congress Steps
Out: A Look at Congressional Control of the Executive, 63 CAL. L. REV. 983, 1089 (1975).
See Watson, supra note 4, at 984-987.
Reorganization Act of 1977, 5 U.S.C. Sec. 901 (1976).
Futures Trading Act of 1978, 7 U.S.C. Sec. 6c(c) (1981 Suppl. V).
Supplemental Appropriation Act of 1953, Ch. 758, 66 Stat. 637, gave certain powers
over military housing regulations to the Chairman of the House Appropriations Com-
mittee.
"Congressional Budget and Impoundment Control Act of 1974, 31 U.S.C. Sec. 1402
(1976).
42
ADMINISTRATIVE LAW REVIEW
HOLDING INDEPENDENT AGENCIES ACCOUNTABLE 43
Congress has turned to the legislative veto device increasingly in
factor is not present, at least not in the same way, the cases and critiques
recent years. Over half of the legislative veto statutes were enacted in
involving relations between Congress and the president are not fully
the past decade. 10 Most of the early statutes dealt with relatively non-
applicable. The courts and commentators, however, use the same
controversial matters such as immigration," reorganization of the
separation of powers analysis in both situations. There is also such a
federal government," disposal of government property15 and govern-
paucity of cases dealing with the legislative veto that none can afford to
ment construction. More recently, Congress has given itself review
be overlooked.
powers over more substantive areas such as war powers,15 foreign
Shortly after the passage of the first legislative veto provision, Con-
military sales,¹⁶ federal salaries,¹⁷ energy policy¹⁸ and the Federal Trade
gress passed the statute allowing the Supreme Court to promulgate the
Commission's rulemaking. 19 Throughout the period of this expansion,
Federal Rules of Civil Procedure. The statute contained a lay over
Congress has asserted a need to review the agencies or the president so
provision requiring that the rules be submitted to Congress to allow
as to retain its power to determine policy.2 Presidents ever since
Congress the opportunity to review them before they became ef-
Woodrow Wilson2¹ have opposed the legislative veto both on constitu-
fective. The Supreme Court, in Sibbach V. Wilson25 upheld this provi-
tional and policy grounds. Scholarly opinion has also opposed the
sion as a legitimate means of ensuring that the action under the
legislative veto. This paper takes the position that the legislative veto,
delegation squares with the result.2 Although a regular law²⁷ would
in certain forms, is both constitutional and also wise policy. The jus-
have been required to overrule a Court promulgated rule, the Court
tification for this acceptability is a belief that there is a need for the
noted with approval the legislative veto provisions applying to territo-
administrative agencies to be held politically accountable. Since this
ries and to government reorganization in which full legislative action
was not required.28 Thereafter, courts generally dismissed cases involv-
"F.T.C. Report, supra note 4, at 1091-1102.
ing legislative vetos29 or refused to reach the issue. Justice White in a
"Alien Registration Act of 1940, 8 U.S.C. Sec. 1254(c)(2) (1976).
"Reorganization Act of 1939, Pub. L. No. 76-19, 53 Stat. 561 (1939).
concurring opinion in Buckley v. Valeoˢᵗ approved the legislative veto
"Act of Aug. 7, 1946, Pub. L. No. 79-649, 60 Stat. 897 (1946).
provision under which the Senate had disapproved Federal Election
¹⁴Act of April 4, 1944, Pub. L. No. 78-289, 58 Stat. 189 (1944).
Commission regulations. He argued that the initial law encompassing
15War Powers Resolution, 50 U.S.C. Sec. 1541 (1976 and 1981 Suppl. V.).
the legislative veto had satisfied the requirement of presentation to the
1622 U.S.C. Sec. 2755(d) (1976).
"Postal Revenue and Federal Salary Act of 1967, 2 U.S.C. Sec. 359(1) (1976).
president." Justice White also dismissed the argument of legislative
"Emergency Petroleum Allocation Act of 1973, 15 U.S.C. Sec. 757 (1976).
encroachment on the grounds that the regulation ordinarily became
"Federal Trade Commission Improvements Act of 1980 Sec. 21(a)(1), 15 U.S.C. Sec.
effective without presidential approval, so that the president lost
57(a)-1 (1980).
20See Abourezk, The Congressional Veto: A Contemporary Response to Executive Encroach-
nothing.34 He also found a critical distinction between a legislative veto
ment on Legislative Prerogatives, 52 IND. L. J. 323, 330-331 (1977); Javits and Klein,
provision in which congressional action was necessary to give the
Congressional Oversight and the Legislative Veto: A Constitutional Analysis, 52 N.Y.U. L. REV.
regulation effect35 and a provision in which disapproval by one House
455, 458-460 (1977). See also-CONG. REC. H 11, 202-206 (daily ed. Nov. 27, 1979) and H
3, 856-873 (daily ed. May 20, 1980). (Congressional debate on the F.T.C. Improvements
Act).
2'59 CONG. REC. 7026-27, 8609 (1920) (remarks of Rep. Wilson); 76 CONG. REC. 2445
23See Sibbach V. Wilson & Co., 312 U.S. 1, 8 (1941).
(1933) (Remarks of Rep. Hoover); 83 CONG. REC. 4487 (1938) (remarks of Rep.
24Id.
Roosevelt); Jackson, A Presidential Legal Opinion, 66 HARV. L. REV. 1353, 1357-1358
2⁵Id.
(publishing an opinion by President Roosevelt) (1953); Truman: PUB. PAPERS 280
26Id. at 15.
(1951); Eisenhower: PUB. PAPERS 507 (1954), Public Papers of the President at 688
"Id.
(1955), Public Papers of the President at 648 (1956), Public Papers of the President at 49
28Id. at 15 n. 17.
(1960); Kennedy: Public Papers of the President at 6 (1963); Johnson: Public Papers of
29See, e.g., Pressler V. Simon, 428 F. Supp. 302 (D.D.C. 1976); Pacific Legal Foundation
the President at 861, 1249 (1963-1964); Nixon: Public Papers of the President at 893
V. DOT, 593 F.2d 1338 (D.C. Cir. 1978).
(1973), Ford: Public Papers of the President at 294 (1974); Carter: Public Papers of the
30See, e.g., Buckley V. Valeo, 424 U.S. 1, 140 n. 176 (1976) (hereinafter cited as
President at 1146 (1978), 16 WEEKLY COMP. OF PRES. Doc. 4 (1980).
Buckley). The Court in a footnote reserved the question as unnecessary to decide,
"See Watson, supra note 4; McGowan, Congress, Court, and Control of Delegated Power, 77
³¹d.
COLUM. L. REV. 1119 (1977); Cutler and Johnson, Regulation and the Political Process, 84
³²Id. at 284-286.
YALE L.J. 1395 (1975); Dixon, The Congressional Veto and Separation of Powers: The Executive
33Id. at 284.
On a Leash?, 56 N.C.L. REV. 423 (1978); Bruff and Gelhorn, Congressional Control of
34Id.
Administrative Regulation: A Study of Legislative Vetos, 90 HARV. L REV. 1369 (1977).
331d. at 286.
44
ADMINISTRATIVE LAW REVIEW
HOLDING INDEPENDENT AGENCIES ACCOUNTABLE
45
blocked a regulation from becoming effective.36 Although Justice
Atkins U. United States involved the provisions of the Salary Act.
White's analysis was hardly a thorough one (it consumed barely two
Under this Act, the president submitted recommendations for in-
pages in the official reports), since it was (prior to the Supreme Court's
creases in judicial salaries.⁵ The Act contained a one House veto
opinion in INS. U. Chadha)" the first opinion from a Justice of the
provision and the Senate vetoed the increases. 53 The House and Senate
Supreme Court, subsequent cases and commentary have analyzed it
submitted briefs, since the Justice Department conceded the statute's
heavily.38
unconstitutionality. The Court of Claims upheld the statute. It found
In Clark v. Valeo³⁹ the D.C. Circuit, in a per curiam opinion, dismissed
that while the statute delegated initial authority to the president, Con-
Ramsey Clark's attack on the Federal Election Campaign Act's one
gress wished to retain ultimate responsibility itself.35 The Court found
House veto as moot⁴⁰ (since Clark had been defeated in his election bid)
that the delegation to the president of pay-setting powers was
and unripe41 (since neither House had vetoed any FEC rules since the
unobjectionable, and the only potential problem was congressional
agency had been reconstituted after the Buckley case). The Court took
review. Similar to Justice White's analysis, the Court held that the
note of the Sibbach case43 and the long history of legislative veto
action of a single House was "not making new law". 57 Since the action of
provisions and followed the Supreme Court in avoiding discussion of
a single House only blocked the president's recommendations, it
the legislative veto's constitutionality. Judge MacKinnon, in dissent,
merely preserved the status quo.⁵⁸ Since one House action did not
would have held the legislative veto unconstitutional. Dealing with
change anything, the Court held that the action of both Houses was
Justice White's argument that neither House need approve an F.E.C.
unnecessary.ᵇ⁹ The presidential veto problem was overcome by the
rule for it to become effective, Judge MacKinnon said what that "really
president's opportunity to veto the initial legislation authorizing the
means
is that, for an F.E.C. regulation to become effective both
legislative veto.60 Congress' ability to veto presidential recommenda-
houses must approve it by voting not to veto it" (emphasis by
tions was also defended against an encroachment attack. 61 The presi-
MacKinnon). Giving Congress any power to review would not be
dent was acting under powers delegated from Congress, and Congress
"nonaction" according to Judge MacKinnon because there is inher-
could retain the power to overrule its "agent"."2 Finally, the congres-
ently an approval somewhere in the congressional action. The action
sional power was upheld under the necessary and proper clause of
of any committee or subcommittee somewhere in the legislative pro-
Article I Section 8, since it was merely a means of doing what Congress
cess blocking a veto resolution was viewed as not only affirmative action
could do directly.6 The Atkins dissent saw the case turning on separa-
but also the action of a potentially small minority.48 The use of the
tion of powers.64 The Congress was seen as encroaching on an execu-
Sibbach case was criticized as improper since Sibbach dealt only with
tive matter. 65 The presidential salary adjustment had the force of law
delaying the effectiveness of a rule.49 The analogy by Justice White of a
without any action by Congress.66 The action by one House was either
legislative veto to merely one House passing and the other rejecting
legislative or nonlegislative.6" If legislative, then both Houses must act
ignored "the basic rule of the Constitution: laws must first pass both
Houses of Congress and be signed by the President" (emphasis by
556 F.2d 1028 (Ct. Cl. 1977) (hereinafter cited as Atkins).
MacKinnon).
52Id. at 1057.
³³Id.
361d. at 284-285.
54Id. at 1058 n. 15. The Court dismissed this as irrelevant since the Justice Department
"103 S.Ct. 2764 (1983).
would naturally mirror the consistent pattern of presidential disapproval.
38See Dixon, supra note 22, at 458-469; Watson, supra note 4, at 1046-1057.
⁵⁵Id. at 1059, 1063-1064.
9559 F.2d 642 (D.C. Cir. 1977) (hereinafter cited as Clark).
⁵⁶Id. at 1060-61.
401d. at 647.
⁵⁷Id. at 1063.
"Id.
⁵⁸Id.
42Id.
59Id. at 1063-1064.
⁴Id. at 648-649.
⁶⁰Id. at 1065.
"Id.
61/d. at 1065-1068.
45Id. at 681.
62Id. at 1067-1068.
461d. at 685.
631d. at 1061.
"Id. at 686.
⁶¹ᵈ. at 1076 (Skelton, J. dissenting).
48Id. at 688.
65[d. at 1076-77, 1080.
"Id. at 680-681.
66Id. at 1080.
507d. at 689.
⁶⁷Id. at 1080-81.
46
ADMINISTRATIVE LAW REVIEW
HOLDING INDEPENDENT AGENCIES ACCOUNTABLE 47
before their action becomes law.68 If not legislative, then the action was
delegation very broadly and effectively insulated the independent
impermissible per se⁶⁹ and an encroachment on the executive.
agencies from legislative review.8
In Chadha U. Immigration and Naturalization Service,⁷⁰ the legislative
The Supreme Court recently ruled on the legislative veto in INS U.
veto mechanism served as a means of reviewing the agency's individual
Chadha.85 The Court focused strongly on the legislative procedure
adjudications. Chadha's deportation was suspended by the attorney
necessary to pass a law. The Court noted the framers' fear of legisla-
general.⁷¹ The House, acting under a 1940 law, passed a disapproval
tive tyranny. The Court's strict separation of powers analysis led it to
resolution overruling the attorney general's action and requiring
conclude that the legislative veto constituted improper overreaching.
Chadha's deportation. The 9th Circuit Court of Appeals overturned
the statute as a legislative intrusion on the executive and judicial
branches." The Court viewed separation of powers as a means of
AN EVALUATION OF THE
TRADITIONAL ARGUMENTS
limiting the overreaching of any one branch.⁷⁴ The framers' particular
intent was to restrict legislative overreaching.⁷⁸ The long history of
Most of the judicial and scholarly analysis of the legislative veto⁸⁹
congressional involvement with immigration was dismissed. The veto
attacks it as contrary to separation of powers. The defenders of the
device reviewed the executive in a particular action." Congress, in
legislative veto also concentrate on a textually-oriented defense. Both
deciding paticular cases, was also displacing the judiciary.⁷ Since Con-
of these views are based, in my belief, on a rigid classificatory constitu-
gress' action and its reasons could not be reviewed, the potential for
tional analysis. Since this analysis is based on the tripartite structure of
selective abuse was enhanced.79
the federal government, it will be referred to hereafter as structural
The D.C. Circuit also struck down the legislative veto in Consumer
analysis.
Energy Council of America U. Federal Energy Regulatory Commission.80 Pur-
The structural attack on the legislative veto is premised on a strictly
suant to the 1978 Natural Gas Act, the FERC adopted a set of incre-
compartmentalized view of separation of powers. 91 The legislative veto
mental pricing regulations covering the period until natural gas price
must fit into either the legislative category or in a nonlegislative
decontrol would become effective. The House of Representatives
category.92 If it is a legislative act, it falls afoul of two constitutional
passed a disapproval resolution, and the FERC revoked the regula-
provisions. First, it (usually) does not require action by both Houses of
tions. 81 The Court held that the House's action was an attempt to make
Congress.99 A legislative veto provision which allows action by one
policy. The only constitutional means of doing so was via the full
House (or by a committee) grants that House (or committee) power
legislative process with presidential opportunity to veto.⁸² The Court
which the Constitution vests in both Houses.⁹⁴ Second, a legislative veto
stressed the concerns about legislative dominance and the constitu-
tional checks of bicameralism and presidential veto.⁸⁸ The Court read
84Id. at 471-479. The D.C. Circuit reaffirmed its decision that the legislative veto is
unconstitutional in Consumers Union of the United States, Inc. V. FTC, 691 F.2d 575
(D.C. Cir. 1982). This case involved the two House veto in the FTC Improvements Act of
1980, Sec. 21(a)(1), 15 U.S.C. Sec. 57a-1(a) (1980). The Court held that its analysis in
681d.
CECA was sufficient and stated that it adhered to that analysis. It therefore held the two
69Id. at 1081.
House veto was also a violation of separation of powers and a violation of the full
70634 F.2d 408 (9th Cir. 1980) (hereinafter cited as Chadha).
legislative procedures necessary for passing a law.
¹¹d. at 411.
85103 S. Ct. 2764 (1983). The decision affects legislative review previsions in approx-
⁷²Id.
imately 200 laws, id. at 2792 (White, J. dissenting).
⁷Id. at 435-436.
86Id. at 2781-2787.
14Id. at 421-423.
87Id. at 2783-2784.
⁷⁵Id. at 433-434, citing, The Federalist Nos. 51 (J. Madison); and 71 (A. Hamilton) (J.
881d. at 2788.
Cooke ed. 1961).
"See Watson, supra note 4; Dixon, supra note 22.
76Chadha, 634 F.2d at 434.
⁹See generally Javits and Klein, supra note 20; Abourezk, supra note 20; Cooper and
"Id. at 431-433.
Cooper, Legislative Veto and the Constitution, 30 GEO. WASH. L. REV. 467 (1962).
78Id. at 430-431.
⁹'See, e.g., Atkins, 556 F.2d at 1080-1081 (Skelton, J. dissenting).
791d. at 431.
921d. at 1080-1081.
80673 F.2d 425 (D.C. Cir. 1982).
99Id. at 1077, see also Clark, 559 F.2d at 683 (MacKinnon, J. dissenting), Chadha, 634
811d. at 433-434.
F.2d at 433-434, Watson, supra note 4, at 1030-1036.
82Id. at 448-471.
"The purported violation is of U.S. CONST. art. I, Sec. I vesting all legislative powers in
83Id. at 456-471.
a Congress of both Houses, Atkins, 556 F.2d at 1080-1081 (Skelton, J. dissenting).
48 ADMINISTRATIVE LAW REVIEW
HOLDING INDEPENDENT AGENCIES ACCOUNTABLE
49
avoids the possibility of a presidential veto.95 This gives Congress
egation of legislative functions by Congress to the executive is routine,
greater power in relation to the president than it normally possesses.⁹⁶
even though it contravenes the Springer doctrine of the branches re-
Even a two House veto would be inappropriate, since the president has
maining distinct.
no opportunity to check Congress.97 In Chadha, the Supreme Court
The structural defense of the legislative veto does not address itself
adopted this structural view of the legislative veto.⁹⁸
to the problems of using a rigid separation analysis. Instead, it argues
The structuralist criticism against the legislative veto as a nonlegisla-
that the solution is found in the initial act encompassing the legislative
tive act is an analysis based on encroachment. When the resolution is
veto provision. 110 Subsequent actions by one House are seen as merely
considered nonlegislative, it must be either an executive or judicial act.
conditions subsequent to the initial act.¹¹¹ This triggering approach
Since Congress is excluded from those areas, the legislative veto is
really avoids the issue, for if it is accepted, Congress could initially
necessarily an intrusion into the spheres of the other branches. 100 This
authorize anything. The triggering action itself is the controversy,
anti-encroachment doctrine is considered particularly appropriate to
since it is some form of congressional action and not merely the
cases of legislative overreaching." According to this doctrine, separa-
occurrence of an outside event.¹¹²
tion of powers exists to limit the natural tendency of each branch,
Supporters of the legislative veto rely principally on two lines of
particularly the legislative branch, to overreach and intrude on the
analysis directly contrary to the opponents' structural arguments. First,
other branches. 102 This structural analysis draws its impetus from the
they view the legislative veto as less than a full legislative act.¹¹³ The
Springer¹⁰³ opinion. In Springer, the legislature of the Philippines
action of one House is not considered to be a law, since it does not
attempted to control the governor's power of appointment.¹⁰⁴ The
change anything.¹¹⁴ While it does not change any law, it clearly does
Supreme Court analogized the Philippines statute to the United States
have the effect of preventing a regulation (or some executive action)
Constitution. 105 It constructed a model of three branches "forever
from taking effect. 115 The implicit argument must be that altering an
separate and distinct from each other". 106 Every power must belong to
agency regulation (or an executive action under power delegated from
one branch and the other branches could not exercise that power
Congress) does not require full legal action, since the agency or execu-
without encroachment.107
tive action is not fully "law". 116 This implicit argument runs directly
The structural argument is essentially dependent on the watertight
counter to both accepted administrative law doctrine and actual prac-
category separation model of Springer. This rigid separation analysis
tice that agency or executive action under proper delegation does
has been generally repudiated by the Supreme Court" since Springer.
indeed have the effect of law. 117 The need for approval by both Houses
Current separation analysis allows for more flexible categories. 109 Del-
and presentation to the president is obviated, since only full legislative
acts must follow this procedure." Support for the belief that not all
"Clark, 559 F.2d at 689-690 (MacKinnon, J. dissenting).
action is constitutionally required to be full legislative action is found in
See Watson, supra note 4, at 1051-1053. See also the presidential material cited in note
the powers granted to a single House by the Constitution. Since these
21 infra. The presidential opposition to the legislative veto is a natural response to a
exceptions to the general requirement of full legislative procedure are
congressional attempt to empower itself.
⁹⁷Clark, 559 F.2d at 689-690 (MacKinnon, J. dissenting).
explicitly authorized by the Constitution, any broader reading of them
98103 S. Ct. 2764, 2784 (1983).
is inappropriate. The investigatory power¹²⁰ of subunits of Congress
"Atkins, 556 F.2d at 1080-1081 (Skelton, J. dissenting).
supports the position that subunits of Congress can legitimately act to
100Id. at 1080.
101See Chadha, 634 F.2d at 433-434; Watson, supra note 4, at 1030-1043.
"Chadha, 103 S. Ct. at 2784.
"Abourezk, supra note 20, at 338-339; Atkins, 556 F.2d at 1065.
¹⁰⁵Springer V. Government of The Philippine Islands, 277 U.S. 189 (1928). Judge
"Atkins, 556 F.2d at 1067-1068.
Skelton cited this case as support for his structuralist argument. Atkins, 556 F.2d at 1081.
"Atkins, 556 F.2d at 1077, 1081-1082 (Skelton, J. dissenting).
104277 U.S. at 199.
""Abourezk, supra note 20, at 336-338.
103Id. at 200.
114Id.; Atkins, 556 F.2d at 1062-1063.
106Id. at 201.
"Clark, 559 F.2d at 685-688 (MacKinnon, J. dissenting).
¹⁰⁷Id. at 201-202.
"Atkins, 556 F.2d at 1062-1063.
Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579, 634-638 (Jackson,
"Id. at 1080 (Skelton, J. dissenting).
concurring) (1952); Nixon V. Adm'r. of Gen. Services, 433 U.S. 425 (1977) (hereinafter
U.S. CONST. art. I, Sec. 7.
cited as Nixon).
"Atkins, 556 F.2d at 1062.
See Nixon, 433 U.S. at 441-443, which criticizes the rigid structural separation
"See McGrain V. Daugherty, 273 U.S. 135 (1927) (hereinafter cited as McGrain);
analysis of Springer and of Humphrey's Executor.
Atkins, 556 F.2d at 1062; Cooper and Cooper, supra note 90, at 473-474.
50 ADMINISTRATIVE LAW REVIEW
HOLDING INDEPENDENT AGENCIES ACCOUNTABLE 51
review implementation of laws. However, the investigatory power is
legislature. No one faction would be able to dominate by itself, and the
distinguishable from a legislative veto power. The investigatory power
accommodations required to gain political power would protect
may stimulate action but does not legally require it. The legislative veto
individuals. 130 This argument is a strong one against any lessening of
by itself is legally effective.
the requirement for legislative action. It is strongest against the com-
The second structural support of the legislative veto is a form of
mittee veto where the possibility of local interest is greatest. 131 It is far
consent doctrine. Since the president signed the initial bill authorizing
less effective in relation to a one House veto. 132 Each House is constitu-
the legislative veto (or it was passed over his veto), he had his
tionally representative per se. The constitutional averaging argument
opportunity. 121 The weakness of this argument is that it focuses too
is wholly inapplicable where a resolution of both Houses is required.
much on the president as an individual. While an individual can
The structural arguments both for and against the legislative veto
consent to restrictions on himself, the president cannot consent to a
appear to me to have serious flaws. Both tend to attempt to solve the
reduction in his constitutional role. 122 Certainly, he cannot bind future
question by definition. Both have a categoristic approach. Opponents
presidents. The acceptance of the legislative veto on consent grounds
are using a rigid model of the Constitution which would prohibit not
would allow one president to restrict the powers of future presidents.¹²³
only legislative vetos but also most modern administrative practice. 133
It would also allow Congress to institutionalize its powers for if it once
Supporters would establish a new form of "semi-law" which does not
obtained a two-thirds majority (in a moment of political passion),
have to go through the full constitutional procedures. 194 There would
legislative control could be preserved since, after the two-thirds major-
naturally be a desire by Congress to take the easier means of effecting
ity broke up or was reduced electorally, the necessity of presenting bills
substantive changes in the law. The traditional American belief has
to the president (in the legislative veto provision's area) would be
been to the contrary, that the constitutional restrictions are desirable
circumvented. Supporters also point to the long history of legislative
safeguards against governmental overreaching.195
veto provisions. While there is a long history, the reach of legislative
vetos has been considerably broadened in recent years. 125 The actual
exercise of the legislative veto power has been relatively infrequent
THE ACCOUNTABILITY PROBLEM
until very recently.¹²
An additional argument against the legislative veto is based on
Under the structuralist approach to separation of powers, Congress
bicameralism. I have not classified this argument as structural, since I
makes the laws. The agencies which implement the laws simply follow
believe its primary focus is not rigidly textual. This "constitutional
the legislative plan and lack any independent policy-setting role. 136
averaging"12 argument is that a primary purpose of the framers was to
Even under the most flexible separation analysis, policymaking is at
overcome local, parochial interests. 129 These interests were to be over-
the core of the congressional function. 137 The real situation differs
come through the means of a broadly representative two-chambered
drastically. The administrative agencies not only exercise a ministerial
role; they also decide policy. 138 Far from being under the policy setting
direction of Congress, agencies have directly opposed the general
¹²¹Abourezk, supra note 20, at 338-339.
¹²Watson, supra note 4, at 1066-1067.
at 1036-1037. See also The Federalist Nos. 51,62 (J. Madison) (J. Cooke ed. 1961).
124See F.T.C. Report, supra note 4, at 1088.
"See Fiorina, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT 72-31
125See text accompanying notes 10-19 infra.
(1977). See also Watson, supra note 4, at 1053-1057.
126Only 63 of 351 resolutions (less than one-fifth) introduced became effective, SENATE
192Watson, supra note 4, at 1075-1076.
COMM. ON GOVERNMENTAL OPERATIONS, 2 STUDY ON FEDERAL REGULATIONS, 95th Cong.,
133See F.T.C. V. Ruberoid Co., 343 U.S. 470, 481-488 (1952) (Jackson, J. dissenting).
1st Sess. 161-164 (1977) (hereinafter cited as 2 SENATE COMM.).
"See Watson, supra note 4, at 1034-1037. There is also an additional argument against
The Court failed to apply its separation analysis to the agencies' right to issue binding
regulations. See also Chadha, 103 S. Ct. 2764, 2801-2803 (White, J., dissenting).
the legislative veto based on art. 1, Sec. 6 making congressmen ineligible for offices.
"Watson, supra note 4, at 1071-1078.
Watson, supra note 4, at 1037-1043, identifies the main purpose of the clause as preven-
tion of corruption. 1 consider it inapplicable to the legislative veto since no officers are
133See Myers V. United States, 272 U.S. 52, 292 (1927) (Brandeis, J. dissenting)
(hereinafter cited as Myers).
created, and there is little corruption potential aside from the self interest problem
136Dixon, supra note 22, at 449-450.
below.
"Chadha, 634 F.2d at 424.
¹²⁸Watson, supra note 4, at 1051-1052.
198Ruberoid, 343 U.S. at 487-488 (Jackson, J. dissenting).
129/d. at 1034-1037.
52 ADMINISTRATIVE LAW REVIEW
HOLDING INDEPENDENT AGENCIES ACCOUNTABLE
53
policy directive of their enabling statute. 139 The need in a democratic
agency. 149 The Constitution intended Congress to set policy but the
society to have all political, socio-economic policy decisions made by (or
result in CECA, supra, is that Congress is excluded, and an unelected
at least ratified by) a representative institution will be referred to
agency determines national policy. 150 Structuralism is based on a com-
hereafter as accountability. 140 This notion of accountability stems from
partmentalized reading of the Constitution. 151 Accountability, I be-
basic principles of American constitutional democracy. Accountabil-
lieve, serves the higher goal of ensuring popular control of govern-
ity's original premise is that ultimate political power resides in the
ment. Accountability is much closer to the roots of the democratic
people, and the people, through duly elected legitimate bodies, should
tradition. Where it conflicts with a structural reading, structuralism
decide the policies which will govern them.
must fall. Seen properly, there need not be any conflict between
The core notion underlying the legitimacy of administrative agen-
accountability and separation of powers. A better view of separation of
cies is quite different. It is a belief in expertise. 141 This notion holds that
powers is that one branch may not intrude on the core functions of
if agencies are to effectively set the best policy, they must be insulated
another branch. 152 By preserving the core role of Congress as policy
from political pressure or influence. 142 The underlying premise is that
determiner, a legislative veto enhances rather than diminishes the
efficiency conflicts with popular desires, and efficiency is the higher
purpose of separation of powers.
value. 143 The notion of efficiency requiring independence from politi-
The major failing of the structural critique of the legislative veto is
cal control pervades administrative law. For example, the administra-
that it is focused only on that subject. It does not apply the same
tive agencies are set up to enforce a particular policy in the public
structural critique to the power of administrative agencies to make
interest. 144 The independent administrative agency commissioners
rules and thereby set policy. The power of quasi-legislative bodies to set
may not be removed for political reasons but only for cause. 145 The
policy would violate all the criticisms which are also directed against the
move for a time towards imposing due process-like requirements
legislative veto. 153 The mere long time acceptance of administrative
reflects the view that the agencies are modeled after the courts¹⁴⁶ and,
policymaking is an insufficient response. This too applies equally to
like the courts, must not be influenced by outside concerns. 147
legislative vetos. The distinction is rooted in a belief that the agencies
This view of administrative agencies does not comport with a sub-
are only acting within legislatively defined parameters and, conse-
stantial portion of their real activities. Agencies function not only like
quently, are merely selecting means to achieve congressionally defined
courts but also like legislatures. Since they set policy, accountability
ends. The fullest expression of this belief is the nondelegation doc-
requires that the agencies be subordinate in some manner to popular
trine.
control. A structural analysis should severely limit the degree of con-
The nondelegation doctrine developed in the early years of the
trol over administrative agencies. In CECA, supra, the Court struck
twentieth century. 154 It arose in response to congressional action del-
down a legislative veto review over the FERC, an independent
egating power to the president.¹⁵⁵ Initially, it only allowed the executive
to take specific action when the executive independently determined
"See Kelleher, Deregulation and the Practicing Attorney, 44J. of AIR LAW AND COMMERCE
the existence of certain facts. 156 Later it expanded to allow executive or
261 (1978). Kelleher, as a proponent of deregulation, refers to it positively as the agency
leading the way. Merits aside, the C.A.B. was clearly leading the way against the intent of
agency policymaking under the general standards set by Congress. 157
the 1938 enabling act.
The executive policymaking was merely a modification of the general
140See Javits, supra note 20, at 460.
1415 SENATE COMM. at 26-36; Cutler, supra note 22, at 1401-02.
142Cutler, supra note 22, at 1402-1404.
¹⁴⁹673 F.2d at 425.
¹⁴³Id.
130Id. at 472-479.
1445 SENATE COMM. at 26-36.
"Atkins, 556 F.2d at 1080-1081 (Skelton, J. dissenting).
145See, e.g., 15 U.S.C. Sec. 41 (FTC); 49 U.S.C. Sec. 11 (ICC).
"Nixon, 433 U.S. at 442-443; Chadha, 634 F.2d at 421-423.
146See Cutler, supra note 22, at 1402-1404; Pillsbury Co. V. FTC., 354 F.2d 952,
"The Supreme Court failed to apply the bicameralism and presidential presentment
963-964 (5th Cir. 1966) (hereinafter cited as Pillsbury).
requirements to rules issued by administrative agencies, Chadha, 103 S. Ct. 2764, 2786.
"Pillsbury, 354 F.2d at 963-964. See also Home Box Office, Inc. V. FCC, 567 F.2d 9,
¹ˢᵗHampton, Jr. & Co. V. United States, 276 U.S. 394 (1928).
53-54 (D.C. Cir. 1977).
153/d. at 398.
148See Ruberoid, 343 U.S. at 487-488 (Jackson, J. dissenting); Cutler, supra note 22, at
136/d. at 398-399.
1399.
"Panama Refining Co. V. Ryan, 293 U.S. 388, 428-430 (1935).
54 ADMINISTRATIVE LAW REVIEW
HOLDING INDEPENDENT AGENCIES ACCOUNTABLE 55
congressional policy. 158 If Congress allowed the agency power without
limits, it was essentially abdicating its policymaking function. 159 This
A weak nondelegation standard allows Congress to create agencies
was an excessive and, hence, invalid delegation. The Supreme Court in
to deal with a particular problem without defining the basic policy the
the mid 1930s invalidated two New Deal acts on grounds of excessive
agency is to follow. Authorizing statutes requiring the agencies to act
delegation. In Schechter¹⁶⁰ and Panama Refining," the principal evil was
"fairly" have been upheld. 175 Such a limitation provides little real guid-
"unfettered discretion to make whatever law he thinks (desirable)". 162
ance relating to policy, and the agency necessarily must make policy on
There must be limits on the executive's discretion so the Court can
its own. The agency is not thwarting the legislative will in such a case,
ensure that the executive is following legislative policy, not making its
since Congress has abdicated its role as policy determiner to the
own. 163 The Court since has allowed such extremely broad delegations
agency. 176 The political demands made on congressmen are a major
as determinations of "excess profit,"¹⁸ fair rates in the bituminous coal
reason why Congress opts to hand over policy-setting power to admin-
industry and license fees for cable television. 166 The broadest exam-
istrative agencies. 177 The creation of a government agency is a tradi-
ple of permissible delegation and the governing law¹⁶⁷ in the field is the
tional method of responding to a demand for governmental action. 178
wage and price controls case, Amalgamated Meat Cutters U. Connally.¹⁶⁸
The creation of the agency is easier if the agency is given general rather
This case upheld the nationwide wage and price restrictions imposed
than ambiguous authority over a particular area. 179 If the agency is
by President Nixon. 169 The Supreme Court had previously upheld such
given a more specific role, it usually will generate a more bitter ideolog-
a broad delegation only in time of war¹⁷⁰ or when restricted to a single
ical battle. 180 Once the agency has been created, the congressman's
industry.¹⁷¹ Nevertheless, the D.C. District Court sustained the delega-
main interaction with it¹⁸¹ is the area of constituent complaints. 182 The
tion. It noted one limitation in the statute-that prices and wages were
congressman wins political credit by intervening to solve minor
to be no lower than existed on a certain date.¹⁷² The Court also read in a
bureaucratic snarls with the administrative agencies. 189 Since the polit-
requirement of reasonableness into the statute. 173 So long as Amal-
ical credit is earned by constituent service and not by policy determina-
tion, the political incentive is to concentrate on the former and not to
gamated remains good law,¹⁷⁴ virtually any delegation can be upheld.
make enemies by engaging in the latter. 184 While this pattern of con-
duct has proven beneficial to individual congressmen, it has delete-
159Id. at 430-432. See also A.L.A. Schechter Poultry Corp. V. United States, 295 U.S.
rious effects upon Congress as an institution. Congress is encouraged
495, 529-531 (1935).
to avoid the policymaking role which is its core function. A legislative
¹⁶⁰295 U.S. 495 (1935).
veto provision would re-inject Congress into the policymaking sphere.
¹⁶¹293 U.S. 388 (1935).
Congressmen can and do currently disavow responsibility for adminis-
¹⁶²295 U.S. at 537-538.
¹⁶³Id. at 537-539.
trative agency action. 185 They can do so successfully since they lack the
¹⁶¹Lichter V. United States, 334 U.S. 742 (1948).
power to effectively supervise¹⁸⁶ agencies except in certain egregiously
¹⁶⁵Sunshine Anthracite Coal Co. V. Adkins, 310 U.S. 381 (1940).
¹⁶⁶National Cable Television Ass'n. V. United States, 415 U.S. 336 (1974). The Court
unpopular agency actions. In those cases,¹⁸⁷ Congress will occasionally
held that if the language of the act (allowing the Federal Communications Commission to
¹⁷Sunshine, 310 U.S. 381.
impose taxes) were read literally, there would be Schechter-type delegation problems.
¹⁷⁶Abourezk, supra note 20, at 334-335.
The Court solved the problem by a narrow reading of the Act. See also Federal Energy
""Cutler and Johnson, supra note 22, at 1400.
Adm'n V. Algonquin SNG, Inc., 426 U.S. 548 (1976) upholding the president's authority
¹⁷Fiorina, supra note 131, at 43-44.
to impose oil import fees "as he deems fit" by a similar restrictive reading of the statute.
¹⁶⁷337 F. Supp. 737 (D.D.C. 1971) (hereinafter cited as Amalgamated).
threatened. 179Id. The more ambiguous the agency's power and mission, the less any group will feel
¹⁶⁹1d. at 745.
1811d. at 41-48.
¹⁷⁰Lichter, 334 U.S. 742.
¹⁸²Id. at 72-81.
"Sunshine Coal, 310 U.S. 381.
¹⁹³Id. at 46.
""Amalgamated, 337 F. Supp. at 747.
¹⁸⁴Id. at 46-47.
1731d. at 755. The Court also noted the short duration of the statute.
""Although National Cable and Algonquin raised the delegation issue, they rather
easily construe around it. Amalgamated itself raised the delegation issue. The end result
that it is the only effective means of supervision.
¹⁸⁶Javits and Klein, supra note 20, at 460. The legislative veto's primary justification is
in all three cases was upholding very broad delegation.
"See text accompanying notes 245-250, infra.
56
ADMINISTRATIVE LAW REVIEW
HOLDING INDEPENDENT AGENCIES ACCOUNTABLE
57
overrule the agency by statute. Both the agency and the congressman
more restrained or more sincere. Since there is no current congressio-
normally avoid political responsibility for the agency action. The
nal responsibility for agency action, there is an incentive to speak for
accountability value is denied under these circumstances. A legislative
public effect. 192 Congress might well be less critical of agencies if it bore
veto clearly makes the agency accountable to Congress (and thereby to
actual responsibility.
the people). It also increases the accountability of Congress. Since
The legislative veto responds to the accountability and check prob-
Congress would now possess the power to review agency rules, indi-
lems. The structural approach is based on an overly rigid model and is
vidual congressmen could no longer disclaim responsibility for agency
also artifically limited to the legislative veto problem. However, the
rules. They could be held electorally accountable for unpopular rules
constitutional provisions requiring full legislative action demand at
they allowed to become effective or equally for desirable rules which
least that if a different procedure is to be allowed in some circum-
they blocked. Since the political incentive would now be to more closely
stances, all other means of achieving the desired result must first be
supervise agency rules, the degree of congressional involvement on
exhausted.
agency policymaking would increase. Congressional policymaking
would increase, a desirable result from an accountability standpoint.
ALTERNATIVE MEANS OF
In addition to the accountability benefit, there would be the value of
POLITICAL SUPERVISION
limiting agency authority. I will refer to this as the "check" principle.
The administrative agencies are relatively free in deciding policy mat-
An alternative to vesting review powers in Congress, through the
ters. They must, however, conform to the constitutional requirements
mechanism of a legislative veto, is to vest review powers in some other
against arbitrariness. 188 The means of promulgating policy must con-
branch. Faithfulness to accountability goals requires considering the
form to the requirement of the Administrative Procedure Act. 189 Aside
presidency, since it is the only other politically responsible branch.
from these minor limitations, agencies set policies subject to review by
Executive review of administrative agencies has both executive¹⁹ and
no one. The principle of check opposes any unlimited power given to
scholarly¹⁹⁴ support. This support takes two major forms. The first
any branch or agency. It resembles separation analysis in this respect.
would give the president a greater degree of indirect control over the
The check principle is more far-reaching, since it is directed against
independent agencies. The principle means of accomplishing this
concentrations of power without any restraints upon them. 190 It is
would be to expand the presidential power of removability. 195 The
directly opposite to the structural analysis, in some respects, since
second form would grant the president power¹⁹⁶ to control agencies
structuralist doctrine allows the branches to remain largely auton-
(both executive and independent) directly. Under this proposal, the
omous. 191 As applied to administrative agencies, the check principle
president could revise agencies' rules directly.¹⁹⁷
demands that limits be placed on the policymaking power of agencies.
The president's existing powers to control agencies is dependent on
The need to limit agencies is greater because the constitutional
the nature of the agency. The agencies regarded as executive agencies
branches are limited by each other, while the "fourth" administrative
are most fully responsive to the president. His powers of control
branch is not limited by any of the other three. The combination of the
include the power to remove subordinates¹⁹⁸ and review powers over
check principle with the accountability principle (since the two run
the agency's rules. 199 Within the executive branch, there are also execu-
parallel in this circumstance) requires that limits be placed on the
"Fiorina, supra note 131, at 42, 48.
administrative agencies through a politically responsible branch.
See the President's Committee on Administrative Management (1937-"The
A legislative veto would promote other goals as well. Since affirma-
Brownlow Committee"), Commission on Organization of the Executive Branch of the
tive congressional action (in the form of a disapproval resolution)
Government (1947-1949 "Hoover Commission"), President's Advisory Council on Ex-
ecutive Organization (1971-"Ash Council")
would be required, the process would be public. The current congres-
19'Cutler, supra note 22.
sional attacks on various aspects of agency action would become either
195This proposal would allow removal at pleasure.
T96Cutler, supra note 22, at 1414-1417.
1885 U.S.C. Sec. 706(2)(A), (B).
"Cutler would limit the revisory power to balancing conflicting statutory goals. The
1895 U.S.C. Sec. 551 et, seq.
president would be required to state his reasons and his revision would be subject to a one
House veto.
¹⁹⁰Nixon, 433 U.S. at 441-443.
198Myers, 272 U.S. 52.
¹⁹¹Buckley, 424 U.S. at 120; Springer, 277 U.S. at 201-202.
199Javits, supra note 20 at 488.
58 ADMINISTRATIVE LAW REVIEW
HOLDING INDEPENDENT AGENCIES ACCOUNTABLE
59
tive branch independent agencies.20 The presidential powers of
The Court restricted the removal power for the FTC to "for cause
removal and review²⁰² over these agencies are restricted. Finally,
only." It was unwilling to restrict the president's removal power over
there are independent agencies that are not part of the executive
executive branch subordinates. 211 It harmonized the two results by
branch. 203 The president has power to remove only for cause204 and has
establishing the FTC as an agency independent of executive supervi-
no power to review agency rules.205 The president's powers over the
sion. The Congress has since created many other independent agen-
independent agencies are his power of initial nomination, 206 budgetary
cies. When an agency is made independent, it is made independent of the
review²⁰⁷ and political influence. He, of course, has these minor powers
president. Congress evinces a strong desire not to allow presidential
over both forms of executive agencies as well. By gaining the additional
control. 213 Despite repeated executive attempts to regain removability
powers of removal and revision over the independent agencies, the
power, Congress has not in the past and likely will not in the future
president seeks to eliminate their distinguishing characteristics of inde-
agree to a general presidential removal power over independent
pendence.
agencies. That being the case, review powers over the independent
Presidential attempts to gain supervisory power over the indepen-
agencies, at least, must be sought by congressional means.
dent agencies began as a reaction to the Humphrey's Executor20 case. The
Presidential control over the executive branch agencies is stronger.
Court rejected the president's attempt to dismiss an FTC commis-
Myers215 announced and Humphrey's²¹⁶ reconfirmed an absolute pres-
sioner. 209 The president sought dismissal for political incompatibility.210
idential removal power. This gives the president significant control
over the actions of executive branch agencies²¹⁸ and satisfies the
²⁰E.g., the Environmental Protection Agency.
accountability goal. However, dismissal is an inefficient (and not
20¹The president's power to remove Commissioners of the Federal Energy Regulatory
universal219) method of control. The particular action might not be
Commission is limited to cause, 42 U.S.C. Sec. 7171(b).
important enough to warrant dismissal. In such cases, the president
The president has revisory powers over FERC rules only in an "emergency situation
of overriding national importance", 42 U.S.C. Sec. 7172(c)(2).
must rely on a power of direct revision.
20³E.g., FTC, ICC.
The power to directly revise rules is occasionally but rarely given
20415 U.S.C. Sec. 41 (FTC); 49 U.S.C. Sec. 11 (ICC).
statutorily. 220 Supporters of the power see it springing from the presi-
203The following are the minor exceptions of direct presidential authority over inde-
pendent agencies:
Presidential approval of certificates for foreign air transportation issued by the Civil
Aeronautics Board (49 U.S.C. Sec. 1461).
Suspension by the president of certain statutory provisions of the Federal Maritime
2ⁿᵈ. at 629-631.
Commission relating to the carriage of goods by sea (46 U.S.C. Sec. 1313).
2125 SENATE COMM. at 26-33.
213Id. at 25.
Commencement of investigations of violations of antitrust laws by the Federal Trade
214But cf., id. at 38, concerning the removal of Robert Timm, chairman of the Civil
Commission at the direction of the president (15 U.S.C. Sec. 16).
Aeronautics Board. Timm resigned under pressure of presidential removal for cause.
Presidential approval of the laying of certain submarine cables in the United States
215Myers, 272 U.S. at 135, also gave the president removal power over members of
under the authority of the Federal Communications Commission (47 U.S.C. Sec. 34,
executive adjudicatory commissions. This was probably intended to include agencies
35). Assignment by the president of frequencies to government radio stations and
such as the ICC and FTC.
authorization by the president of the operation of foreign government radio stations
"295 U.S. at 629-631.
in the United States (47 U.S.C. Sec. 305).
"Presidential removal power ensures that the president can ultimately control his
Limitation by the president of certain construction permits for radio stations during
subordinates.
national emergency or time of war (47 U.S.C. Sec. 308).
"See Morgan V. TVA, 115 F.2d 990 (6th Cir. 1940); Lewis V. Carter, 436 F. Supp. 958
(D.D.C. 1977) (EEOC), upholding presidential power to remove executive branch inde-
Presidential direction of the International Trade Commission to investigate injuries
pendent agency commissioners. But cf. Weiner V. United States, 357 U.S. 349 (1958), and
caused to domestic industries by imports (19 U.S.C. Sec. 2251).
Nader V. Bork, 366 F. Supp. 104 (D.D.C. 1973) restricting presidential removal power.
Certain presidential determinations relating to trade policies following the investiga-
Nader held that President Nixon's dismissal of Special Prosecuter Cox was illegal. Nader
tion by the International Trade Commission under 19 U.S.C. Sec. 2251 (19 U.S.C. Sec.
points up the weakness inherent in attempting to limit presidential removal powers.
2252).
After declaring the removal invalid, the court did not order reinstatement. Cox himself
206Buckley, 424 U.S. at 124-129, 133.
had not sought reinstatement, and it is doubtful whether the president could be forced to
2075 SENATE COMM. at 43-52.
accept a subordinate against his wishes.
208295 U.S. 602 (1935).
"The president may well allow secondary issues to be decided contrary to his wishes
209Id. at 628-629.
because he values the agency head more than a secondary policy.
2¹⁰Id. at 618.
220See note 205 supra.
HOLDING INDEPENDENT AGENCIES ACCOUNTABLE
61
60
ADMINISTRATIVE LAW REVIEW
dent's constitutional position as the head of the executive branch. 221
the accountability of the president. The president faces the electorate
Since the power comes directly from the Constitution, Congress could
twice at most. 232 This automatically limits the popular control over a
not restrict it. 222 Congress by placing rulemaking power in an executive
president's action. This is particularly so in his second term, since he
branch agency has accepted potential presidential modification. 223 This
can no longer face the electorate. Once elected, the president often
does not accord with Congress' action however. Congress often specifi-
grows out of touch with the electorate. The national nature of the
issues dealt with by the president has an adverse impact on his political
cally directs that the secretary of a cabinet department promulgate
rules.22 This indicates an intent that the secretary, not the president,
accountability for any particular action. 234 The president is elected or
re-elected on basic issues such as the state of the economy or foreign
decides. Congress also has granted the president review powers over
certain executive agencies," an unnecessary act if the president pos-
policy.235 It is highly unlikely that a significant number of people will
sesses plenary review power. Finally, the exercise of review power by
vote for or against a president because they disagree with his revision
(or lack of revision) of an agency rule. The principle of check is
the president has been relatively rare.226 To the degree that the presi-
dent does have review powers over the executive branch, a legislative
observed, since there are limits on the agency, but the president is not
veto would be unnecessary. However, where the president lacks such
really reviewing agency rules in line with accountability because there is
not a realistic threat of electoral defeat even if he makes an unpopular
power [and possibly where he fails to exercise it²²⁷] the principles of
choice. The individual congressman is more likely to be held politically
accountability and check may require some legislative review. 228
Granting the president revisory power or removal power would
accountable, since the public can always defeat him at the next election
restrain the agencies satisfying the principle of check. It might not fully
and the public is less likely to judge their congressman on national
issues.236
satisfy the accountability principle because the president and the indi-
vidual congressmen are politically accountable in different ways. 229 The
Congress is the preferable branch to restrain the agencies but the
legislative veto is only one method of doing so. The other means of
president is elected by the entire nation. This gives him political legit-
imacy to address national issues that a congressman or senator with
limiting agencies will be reviewed next. First, it is important to note that
their narrower constituencies lack.230 The president has a claim to
Congress itself has judged these alternatives as inadequate. The
increasing inclusion of legislative veto provisions is itself a congressio-
supervising agencies to ensure they comply with his electoral man-
date.231 However, there are also significant problems connected with
nal judgment that the alternatives, at best, are insufficient and a new
tool is required.
22'See Verkuil, Jawboning Administrative Agencies: Ex Parte Contacts by the White House, 80
The simplest means of restricting agency freedom is to do so initially.
COLUM. L. REV. 943 (1980); Note, Delegation and Regulatory Reform: Letting the President
A clearer delegation of power would limit the agency freedom to make
Change the Rules, 89 YALE L.J. 561 (1980). See also Javits, supra note 20 at 486-488.
policy contrary to congressional and public opinion.238 This would
"Verkuil, supra note 221, at 956-962.
2231d. at 956-958.
indeed restrict agency ability to set policy but it would also restrict
22'See, e.g., 7 U.S.C. § 602 et. seq., the various Agricultural Adjustment Acts. These Acts
agency ability to effectively implement congressional policy. The virtue
give the Secretary of Agriculture broad powers over commodity pricing.
of flexibility to different circumstances would be lost. 239 If the agency is
225See 42 U.S.C. § 7172(c)(2), allowing presidential revision of FERC rules under
certain circumstances.
not going to apply a "checklist" of congressional options, it is either
226But see Javits, supra note 20, 488, noting President Ford's revocation of an HEW
ruling regarding father-son, mother-daughter activities in public schools; see also Exec.
Order No. 12,291 3 C.F.R.
1981 (President Reagan's Regulatory Review order), and
Exec. Order 12,287 46 Fed. Reg. 9909 (1981) revoking petroleum price and allocation
2ˢ2Note, supra note 221, at 582-583.
rules.
253Id. at 582.
227Javits, supra note 20, at 486-488.
Note, supra note 221, at 578-581 suggests a solution to the problem of agency
2351d. at 582 n. 122.
nonaccountability by creating a new Board of Regulatory Appeals. The Board would
296Fiorina, supra note 131, at 12-28.
balance competing statutory goals and have the power to revise agency rules. This seems
237See Javits, supra note 20, at 456-458. The increasing passage of legislative veto
to me to be creating a new problem. The proposed Board would have greater powers
provisions indicates a congressional judgment that the other means of legislative over-
than do current agencies, yet it would be accountable to no one.
sight are insufficient.
2291d. at 582-583; Cutler supra note 22, at 1411-1412.
23⁸Note, supra note 221, at 574-578; Verkuil, supra note 221, at 964-966.
230Cutler, supra note 22, at 1410-1411; Fiorina, supra note 131, at 41-49.
239Note, supra note 221, at 569-570.
23'Note, supra note 221, at 582-583; Cutler, supra note 22 at 1410-1411.
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going to ignore related but uncovered abuses²⁴⁰ or it is going to have to
A variation of the legislative approach has been put forward as a
have a certain policy-setting role. 241
means of restricting agency actions. The appropriations approach
The most legitimate means of control is through amendatory legisla-
amends the agency's appropriations bill and prevents it from taking
tion. This has no constitutional problems²⁴² and is the traditional means
certain action. 252 This has the advantage of saving a great deal of time,
of restricting agencies from pursuing unpopular policies. 243 The
since appropriations riders can be added on the floor of either House
amendatory legislation solution has two serious problems which
and need not undergo the lengthy committee process. There is
undermine its effectiveness as a restraint. First, the amendatory legisla-
another side to this advantage, since it often means the appropriations
tion is definitely a reaction to a perceived agency error. It, therefore, is
restraint will be insufficiently flexible. The history of lawmaking
only a corrective and has little impact on the agency's general pol-
through appropriations riders evinces a tendency towards extremely
icymaking. The legislative approach will solve only the particular
broad solutions, for example, the Hyde Amendments restricting
problems engendered by a specific agency error. 244 This problem is
abortion and the restriction on the Internal Revenue Service's regula-
compounded by the more serious second problem of the legislative
tions on fringe benefits. The form of the limits is usually a restriction
solution.
on how the agency may spend its money. 255 The I.R.S. is, for example,
The success of amendatory legislation as a means of limiting agency
forbidden to spend appropriated funds on issuing new regulations on
action is dependent on its effectiveness in doing so. The difficulty of
fringe benefits. 256 This has the undesirable result of freezing the status
the legislative process can be illustrated by the case of the seatbelt
quo with the effect of agency inability to effectively respond to new
interlock rule issued by the Department of Transportation. 245 This rule
situations. 257 The legality of such appropriations limits is at least ques-
mandated the installation of a system preventing operation of the
tionable. While Congress may directly amend the law, it is uncertain
automobile unless the seatbelt was properly fastened. 246 There was
whether it can order an agency not to enforce the law. The enforce-
widespread popular antipathy to the rule, as well as rampant public
ment of legislative policy is traditionally considered an executive/
disregard. Since the agency refused to rescind the rule, Congress
administrative²⁵⁸ province. Congress is relatively poorly equipped to
repealed it through the normal legislative process. 248 This process took
effectively force the agency to comply. It can reduce the total level of
over a year. 249 Clearly, Congress cannot effectively restrain agencies
agency funds available, but if the agency chooses to spend its money on
through the threat of the normal legislative process. 230 Legislative
the particular area, Congress' means of reversing the offending rule
amendment provides little relief even when there is an extremely
must be to either go through the normal legislative process with the
unpopular agency action. The relief is presumably even less for less
problems which that process entails (and the additional risk of a pres-
egregiously unpopular actions, and, hence, there is a gap left that
idential veto) or resort to the courts. 259 The appropriations method is
cannot be filled by the normal legislative process. 251
also flawed.
The Congress may use its investigatory powers to hold hearings.260
240Id.
Chadha, 103 S.Ct. at 2786 n. 1, the Supreme Court suggested that Congress
The true purpose of such hearings is to summon up enough political
delegate its authority more clearly. While this is obviously desirable, a great deal of
support to embarrass or harrass the agency into acquiescing to the
flexibility in policy determination will necessarily remain with administrative agencies.
242Since it is passed by both Houses and signed by the president.
"Javits, supra note 20, at 464.
²⁴³Javits, supra note 20, at 460.
253Pub. L. No. 94-439, c.209, 90 Stat. 1418 (1976), Pub. L. No. 95-205, .101, 91 Stat.
241d. at 460-462.
1466 (1977), Pub. L. No. 95-480, c.210, 192 Stat. 155 (1978), Pub. L. No. 96-123, c.109,
24338 Fed. Reg. 16,073 (1973) (amending 49 C.F.R. § 571.208 (1973)).
193 Stat. 923 (1979), Pub. L. No. 96-369, C. 101(c), 194 Stat. 1351 (1980).
25⁴Pub. L. No. 95-427, c.1,192 Stat. 976 (1978), Pub. L. No. 96-167, c.l, 93 Stat. 1275
""Javits, supra note 20, at 463.
(1979) amending 26 U.S.C. § 61.
248Motor Vehicles and Schoolbus Safety Amendments of 1974, 15 U.S.C. § 1410(b).
⁵Appropriations limits forbid an agency from using appropriated funds to enforce a
²¹⁹Javits, supra note 20, at 463.
particular regulation or forbid it from writing new regulaitons on a particular subject.
250Id. at 462-464. See also Cutler supra note 22, at 1400.
256See note 254, supra.
²⁵¹The Supreme Court in Chadha failed to consider this effect of voiding legislative
257Note, supra note 221, at 569-570.
review. The administrative agencies have been freed from the only legal restraint that
258Chadha, 634 F.2d at 431-432.
had a real impact on their actions. The paradoxical result of an attempt to prevent
259See Clarkson and Muris, Constraining the Federal Trade Commission: The Case of Occupa-
overreaching is that unelected, irremovable (and for these reasons, unresponsive) of-
tional Regulation, 35 U. MIAMI L.REV. 77,90-93 (1980).
ficials can determine policy.
2601d. at 93-99; Javits, supra note 20, at 460-462.
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HOLDING INDEPENDENT AGENCIES ACCOUNTABLE 65
congressional demand and into revising or revoking its rule. 261 This
congressionally appointed Federal Elections Commission was an un-
also has the merit of being constitutionally unimpeachable.262 The
constitutional usurpation of the executive power of appointment.271
principal drawback is its lack of ensured effectiveness. The agency will
The FEC had six members, four of them appointed by the senior
in most cases submit to congressional pressure. It need not do so, and
members of the House and the Senate. The FEC at that time dealt
if it does not choose to do so, the investigatory hearing cannot force it to
solely with the conduct of the presidential election. 273 The congressio-
alter its decision. 264 The investigatory hearing solution is least effective
nal fear of improper executive influence was the justification for con-
where the agency is most resistant to congressional or popular opinion.
gressional appointment. 274 Nevertheless, the Court held the case was
The investigatory hearing is an inadequate solution (although a useful
controlled by Springer and that the power of appointment was in-
complement to other solutions) both in terms of accountability and
herently executive.275 Direct congressional appointment, even under
check.
the most plausible circumstances, is foreclosed by Buckley.
There is another method of control which is constitutionally sound.
Another variant is direct congressional administration of the agency.
The Senate has the power of confirmation of appointees.²⁶³ It was
Chadha involved such a congressional attempt to directly administer
thought by the framers that the Senate would be able to exert signifi-
the deportation of aliens.276 The attorney general could suspend de-
cant control over policy through its confirmation power. 266 There are
portations if he made certain findings. The House, acting under the
some accountability problems with relying on the Senate, since it is
authority of a 1940 immigration statute, passed a resolution disapprov-
more remote from the people by virtue of its longer term and wider
ing the attorney general's action.277 The House action required that the
political constituency than the House. (Congressional Representatives,
aliens be deported. 278 The committee chairman read off a list of names,
represent only one district while Senators represent an entire state.)
including Chadha's and the resolution was adopted on a unanimous
This is less important, since confirmation has proved to be an ineffec-
consent motion with no debate.279 Congress is poorly equipped to
tive means of control. The appointee once confirmed is no longer
directly administer programs. In attempting to do so, it disrupts the
subject to control by the confirming body. The appointee concerns
relatively orderly administrative process which is better handled by the
himself with following the dictates of the institution which can remove
executive branch.280 Congress need not supply reasons for its actions
him. 267 Since Myers, the president has exclusive removal power,268 and
(the congressional action may often be based on political influence as
the appointee cannot be removed by the Senate and need not submit to
much as reasoned judgment), and the executive is therefore unable to
that body. 269 The confirmation process has therefore become relatively
alter its actions to conform with the congressional will. 281 The D.C.
routinized, and appointees for senior executive and administrative
Circuit Court also found that the congressional attempt to decide cases
positions are rarely rejected.2⁷
encroached on the judicial responsibility to interpret and apply the
The failure of the traditional methods of legislatively restraining
law.282
agencies led Congress to attempt other means of reasserting itself.
The opponents of the legislative veto view it as another form of
Congress had tried to obtain for itself the power of appointment (and
direct congressional administration of programs. 283 While this is true of
presumably the related power of removal which subordinates the
chosen nominee). In Buckley v. Valeo, the Supreme Court held that a
"Buckley 424 U.S. at 124-129.
²⁷²Id. at 113.
273Id. at 109-113, 134.
274Id. at 134.
261See Pillsbury, 354 F.2d 952.
at 124.
262McGrain, 273 U.S. 135.
276Chadha, 634 F.2d at 431-433.
²⁶³Fiorina, supra note 119, at 65-68.
²⁷Id. at 411.
264Since by definition it lacks coercive power, McGrain 273 U.S. at 160-161.
U.S. CONST. Art. II Sec. 2.
279121 CONG. REC. 40,800 (1975).
266Federalist No. 77 (Hamilton).
280Chadha, 634 F.2d at 431-432.
267Verkuil, supra note 209, at 945-946, 953.
2811d. at 431.
268Myers, 272 U.S. at 117.
2821d. Justice Powell would have decided Chadha solely on the basis of the encroachment
209Buckley, 424 U.S. at 124-129.
on the judicial function. He expressed apprehension at the breadth of the majority
27°69, 806 of 69,929 nominations received in 1980 were confirmed (more than 99%)
opinion, 103 S.Ct. at 2791-2792 (Powell, J. concurring).
CONG. REC. D 1594 (1980).
283Watson, supra note 4, at 1081-1082.
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the form of the legislative veto used in Chadha, it is not true of legisla-
allows the chairman and special interest groups to determine the
tive review of agency rules. Review of rules allows Congress to control
substantive policies. Further, the ready acquiescence to small group
the policies followed by the agency without interfering with the actual
pressure circumvents some of the major virtues of the legislative veto.
implementation of the policies.284
The public on the record vote is avoided. The congressional responsi-
bility for the rule may become perceived to be lessened, since the actual
THE SPECIAL INTERESTS PROBLEM
influence occurred privately. The agency may even frustrate the popu-
lar will, since it may accommodate the chairman when the general
The problem of special interests and committee influence is the most
congressional opinion may be significantly different. 293 This threat of
serious objection to the legislative veto proposal. 285 It involves the
agency accommodation would, if accurate, undermine the account-
accountability principle. This principle requires that the administra-
ability feature of the legislative veto, since accountability is directed
tive agencies be subject to popular control. A legislative veto provision
towards popular control, not special interest control.
allows for popular control through the supervision of Congress.
The initial problem of agency regulatory deadlock is less
However, the existence of a legislative veto gives the committee chair-
important. 294 Factually it has usually turned out to be only delay. 295 The
man a great deal of leverage in negotiating with agencies over pro-
agency does eventually arrive at a rule to which Congress at least
posed rules.286 The enhanced negotiating position of the chairman will
acquiesces or accepts. The process of an agency submitting proposed
avoid the constitutional balancing out of special interests obtained
rules and Congress responding by legislatively vetoing them can last
through the action of one or two Houses.2 The chairman is more
for a considerable period of time. In a case study done on the legislative
likely to be beholden to the special interests regulated by the agency. 288
veto, Professors Bruff and Gelhorn found that the risk of deadlock was
The special interests will not be balanced out on the floor as normally
significant. 296 However, all the situations of deadlock they cite have
happens in the legislative process. Instead, through the mediation of
since been successfully resolved by the implementation of new
the chairman, they will exert pressure on the agency indirectly. 289 The
regulations. 297 If Congress allows the new rules to become effective by
agency will be conscious that its bargaining position is weak, since a
not disapproving, it signals that there is no longer a sufficient degree of
legislative veto requires that it be responsive to congressional pres-
congressional dissatisfaction. If the agency abandons the attempt and
sure. 290 The agency can respond in two ways. It may choose not to bow
refuses to attempt to issue unpopular rules, one must ask, where is the
to the pressure and present its regulations unmodified. Congress will
harm. If it is that the rules are not adopted, then one is implicitly saying
usually respond by supporting the challenged committee and vetoing
that regulatory deadlock is inherently bad. Deadlock in a politically
the regulations. Congress will also block regulations perceived as
accountable institution occurs when the proposed change lacks enough
insufficiently responsive to the congressional concerns. The result will
popular support to win approval. Democratic theory accepts that a
be a deadlock, and no regulations will be implemented. The other
proposed change should not occur until it can win majority approval.
alternative is that the agency may yield to pressure too easily.292 This
Although the accommodation argument appears more compelling,
it reflects an inaccurate view of American politics. The initial inaccu-
28ᵗThe similarity of the independent agencies to judicial bodies might support vesting
racy is compounded by a somewhat utopian theoretical view of the
review power in the courts, McGowan, supra note 22, at 1163. The courts could constitu-
legislative process. The legislative veto will of course increase the
tionally exercise the power of appointment and removal. See ex parte Siebold, 100 U.S.
influence of committees and their chairmen. This is not surprising.
371 (1879); ex parte Hennen, 38 U.S. 230 (1839); Hobson V. Hansen, 265 F.Supp. 902
(D.D.C. 1967). However, since the judiciary is itself constitutionally irremovable, vesting
it with review powers would violate accountability principles.
293See, e.g., Clarkson and Muris, supra note 259, at 99.
283Watson, supra note 4, at 1034-1037; Cutler, supra note 22, at 1408-1409.
2942 SENATE COMM. at 117-119.
286Watson, supra note 4, at 1060-1063.
293See note 297 infra.
296Bruff and Gelhorn, supra note 22, at 1414-1415.
288Fiorina, supra note 131, at 62-70.
2971d. at 1382-1409. Federal Election Commission Rules 11 C.F.R. § 100 et seq., General
"Watson, supra note 4, at 1060-1063.
Service Administration Rules regarding Nixon documents 41 C.F.R. 105 Part 63.101 et
290Bruff and Gelhorn, supra note 22, at 1378.
seq., Federal Energy Administration 10 C.F.R. 210 (gradual decontrol by President
2911d. at 1417-1420.
Carter) superceded by Exec. Order No. 12,287, 46 Fed. Reg. 9909 (1981) (immediate
decontrol by President Reagan).
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Since Congress does most of its work in committees, any legislative
unlikely that the mere potential for congressional action will have
action of a continuing nature will result in enhanced committee in-
anything more than a minor impact. The leverage which the commit-
fluence. The committees have this influence, since the whole of either
tee chairman has is based on the realistic likelihood of one House
House is too large to efficiently handle the tremendous amount of
passing a disapproval resolution. If no or few prior resolutions have
business. The committee influence critique is in reality an objection to
passed, the agency will have no reason to bend to legislative pressure,
any effective legislative action. Furthermore, the committees have a
unless its proposed rule is likely to be very unpopular. Those highly
dual check upon them. They consist of individual members who are
unpopular rules are legitimate targets for congressional pressure.
accountable to the people through the election process. These mem-
The dynamics of the political process make it improbable that the
bers do not face the entire electorate and may represent local interests
committee chairmen or special interest groups will have a decisive
to a certain extent. They do face an electorate in contrast to a commis-
impact on significant new rules. The influence of committee chairmen
sion which faces no local pressure because it faces no election. The
is always less significant on more important, more controversial issues.
members, once elected, face the House or Senate which organizes itself
On these issues, members are less willing to defer to the chairman's
into committees. The members are accountable to their House as a
influence or expertise. This is true for all of the more visible congres-
whole, since their House places them on the committees. The House
sional activities. The recent congressional action defeating a dis-
and Senate, by organizing into committees, approve the increased
approval resolution against the sale of A.W.A.C.S. planes and other
influence that the members of a committee will gain on certain matters
military equipment to Saudi Arabia is an apt example. The political
by virtue of their position on a committee that deals with those matters.
passions broke down the normal congressional willingness to defer to
The potential for agency submissiveness towards powerful chairmen
the chairmen. 305 Instead, each member made his own choice. A legisla-
depends on a number of implicit assumptions. The device must be
tive veto on an important rule will be highly visible, and the member
frequently used or it lacks credibility. The actual practice is that the
will be held accountable since the legislative action is dispositive. The
overwhelming majority of legislative vetos are exercised (or even
congressman will likely follow popular pressure or follow what he
attempted) in a few well defined areas. 300 For example, the Congress
believes to be best for the country. On the less important issues, the
recently imposed a legislative veto restraint on the FTC's rulemaking
committee chairman's and the special interests' influence will be
power. 301 The supporters claimed that it was a last resort to restrain the
greater. In Chadha, the committee chairman merely read off a list of
FTC.302 Opponents of the provision said that the agency would be-
names to whom the resolution would apply. 306 There was no debate,
come totally malleable to congressional and special interests pres-
and the measure was carried on unanimous consent. On important
sure. 303 The first attempt to exercise the legislative veto provision was
issues, the matter is more fully debated. The responsibility for agency
not made for over a year after Congress granted itself the power. 304 It is
mistakes that the legislative veto would place on Congress will tend to
encourage greater independence and questioning by the congress-
298See generally WILSON, CONGRESSIONAL GOVERNMENT (1879); Fiorina, supra note 131,
men. However, on a great number of the more routine, less generally
at 62-65.
controversial issues, the congressmen will probably go along with their
U.S. CONST. art. I, Sec. 5.
chairman. The danger is that these less visible issues may be less
"Between 1960 and 1975, 351 resolutions of approval (and disapproval) were intro-
duced. Over 300 dealt with only five areas-(1) disposal of materials from the national
important to the general public, but may be very important to a narrow
stockpile (2) executive reorganization plans (3) federal employee pay levels (4) proposed
specific group. To a degree, this is a danger inherent in any elected
Budget expenditure deferrals and recissions (5) foreign assistance. More than half of the
resolutions enacted dealt with Budget deferrals and recissions, 2 SENATE COMM. at
163-164.
both the substantive merits and the constitutional implications before it also vetoed the
U.S.C. § 57(a)-1.
rule by a vote of 286 to 133, 128 CONG. REC. H2882-83 (daily ed.) (See particularly the
302128 CONG. REC. H3856-3873 (daily ed. May 20, 1980) (See particularly the remarks
remarks of representatives Dingell and Glickman at 2856-83). In a per curiam decision
of Representatives Fenwick and Frenzel).
relying wholly on its earlier decision in CECA, the D.C. Circuit in Consumers Union of
303128 CONG. REC. S5676-5690 (daily ed. May 21, 1980) (See particularly the remarks
the United States, Inc. V. FTC, 691 F.2d 575, 577-78 (D.C. Cir. 1982) held this legislative
of Senators Ford and Metzenbaum).
veto of the FTC's rule unconstitutional. See note 84 supra.
*The FTC's proposed rule on used car dealer warranties was overturned by the vote
See, e.g., 128 CONG. REC. S9673-9675 (daily ed. Sept. 15, 1981). Sor H9926-9928
of both Houses. The Senate passed the veto resolution on May 18, 1982 by a vote of 69 to
(daily ed. Sept. 17, 1981), H7236-7307 (daily ed. Oct. 14, 1981).
27, 128 CONG. REC. S5402 (daily ed.). The House of Representatives fully discussed
"121 CONG. REC 40,800 (1975).
70 ADMINISTRATIVE LAW REVIEW
HOLDING INDEPENDENT AGENCIES ACCOUNTABLE
71
body. Intensity of concern about an issue can substitute for general
limited to reviewing agencies. The legislative veto should deal only with
popularity. However, the congressman who defers to the special in-
policy determination. The actual administration of policies is not prop-
terest is gambling that the results will not be SO bad that at the next
erly within Congress' role. 314 The legislative veto should not be used to
election he will be held responsible. This will tend to make congress-
impinge on presidential prerogatives. The Constitution allows the
men hesitate before acquiescing to any call to veto an agency's rules.
president few areas of broad power. Broad powers exist in such areas
The agencies themselves are not likely to be overaccommodating
as military and foreign affairs precisely because such areas require
towards Congress.3 They were created to be independent. They now
quick decisions and flexibility. Only an egregious error that would
act independently.308 There will be a certain amount of behind the
command two-thirds support in both Houses should enable Congress
scenes bargaining. The agencies will not go too far in accommodating
to override the president in such matters.
congressional pressure out of a sense of bureaucratic self-interest.
A legislative veto mechanism should require a positive vote of dis-
Agencies will not allow Congress to totally dominate them. These
approval by at least one House. Accountability requires that if Con-
predictions which I have developed are supported by the Bruff and
gress truly disapproves of a regulation, it should be forced to vote it
Gelhorn case study. The study showed that although negotiations
down openly. The alternative of allowing the rule to become effective
generally did occur, the agencies were willing to make concessions only
only if Congress approves it gives factions within Congress too much
up to a certain point. When this point was reached, the agencies were in
power. It explicitly invests each rule with congressional approval, but it
some cases able to issue regulations, while deadlock occurred in other
also makes it too easy for factions within Congress to block a proposed
cases.310 One agency was an exception to this pattern, and in drawing
rule (by delay for example).
up rules it caved in to congressional pressure. 311 This agency was the
The resolution of disapproval should be an up or down vote without
Office of Education (which has since become the Department of
opportunity to amend the proposed rule. A danger of the legislative
Education) in the Department of Health, Education and Welfare. The
veto device is that Congress may use it to enact substantive law.318 A
legislative veto concerned Basic Educational Opportunity Grants, a
non-amendability requirement would prevent Congress from rewrit-
politically popular measure.312 An executive agency may be willing to
ing the regulation through the form of amendment. This would be
accede to congressional pressure on such a politically popular measure.
impermissibly similar to enacting substantive law.
The executive agency can always rely on presidential support to halt
Similar reasons demand that at least one House take action. A
congressional encroachment, if necessary. The agencies in the case
committee veto gives too much authority to a relatively small unrepre-
study generally were willing and able to resist congressional pressure. 813
sentative body. The reality of the legislative veto may well be that on
Since continued agency independence is desirable from the agency's
many routine matters there will be a committee veto in fact. 319 But the
perspective, this willingness to resist makes accommodation unlikely.
form of action by the whole body is important. On many routine laws,
the committee is also deferred to. The one House resolution allows for
the opportunity of action by the entire House. This opportunity suf-
LIMITATIONS
ficiently distinguishes the one House veto from the committee veto.
Certain legitimate limitations should be imposed on the legislative
The use of certain forms of the legislative veto in certain narrow
veto. The purpose of these measures will be to ensure that Congress is
areas has been approved by some opponents of the legislative veto. 320
"Chadha, 634 F.2d at 431-432.
"Four of the five agencies in the case study resisted congressional pressure, Bruff and
³¹⁵The War Powers Act, 50 U.S.C. § 1541 and the Arms Export Control Act, 22 U.S.C.
Gelhorn, supra note 22, at 1382-1409.
§ 2755(d) are examples of invalid encroachments on clearly presidential prerogatives. See
308Clarkson and Muris, supra note 259, at 98-101, 104-105.
also Nixon, PUB. PAPERS 893-895 (1973) (veto message on the War Powers Act).
"The Supreme Court's decision in Chadha will have the effect of driving agency
910Cutler, supra note 22, at 1410-1411.
accommodations behind closed doors. Since the bargaining will occur in secret, Con-
sircf. Watson, supra note 4, at 1071-1078. Allowing one House to block the actions of
gressmen will be able to avoid political responsibility for their impact on administrative
the other House is said to preserve the principle that there be no substantive change in
regulations.
the law without the consent (or acquiescence) of each House.
"Bruff and Gelhorn, supra note 22, at 1382-1409. But on deadlock, see note 297 supra.
s¹⁸Atkins, 556 F.2d at 1080 (Skelton, J. dissenting).
"Id. at 1382-1385.
"See, e.g. 121 CONG. REC. 40,800 (1975).
3121d. at 1383.
"See, e.g., Watson, supra note 4, at 1071-1072; Cutler, supra note 22, at 1414; Dixon,
3)31d. at 1409-1411.
supra note 22, at 484.
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HOLDING INDEPENDENT AGENCIES ACCOUNTABLE 73
The use of legislative vetos in areas such as governmental reorganiza-
politics can and has meant independence from popular control. 330
tion is acceptable, since the organizational structure of government
American democratic principles are resolutely based on the belief that
does not affect substantive rights. The form of legislative veto
power is ultimately derived from the people. The enhanced supervi-
approved is initial presidential submission with one or both Houses
sion of agencies by a body that, for all its imperfections, is electorally
required to disapprove the presidential submission to block it from
responsible furthers this principle of accountability. Such accountabil-
becoming effective. 322 This so-called "reverse legislation" is a reversal of
ity is not only constitutionally legitimate, it is sound policy as well.
the normal process, since the president acts first but is substantively
similar to normal legislation. 323 The legislative veto upheld in Atkins was
a reverse legislation-type of legislative veto. 324 While this form is accept-
able, it does not address itself to the real problem of making agencies
accountable. 325 It is therefore inadequate as a solution to the problem of
restraining agencies.
There are also a variety of relatively minor problems connected with
the effective implementation of the legislative veto. These include a
lack of effective scrutiny by Congress, an increased workload making it
difficult for Congress to deal with other matters, the possibility of
agencies using adjudication to avoid legislative review and the judicial
interpretation to be placed on regulations not blocked by Congress.
The responsibility for agency action which a legislative veto will impose
on Congress will encourage congressional scrutiny. The fear of in-
creased workload causing a congressional backlog has not material-
ized in the actual exercise of legislative veto responsibility. The
agencies can be prevented legislatively from using adjudication to
promulgate policies. The courts will insist that a legislative veto is
limited to policy approval (as it is or should be) and has no impact on
the legality or constitutionality of the regulation or the law. 327
SUMMARY
The legislative veto is an attempt by Congress to restrain the inde-
pendent agencies. 328 The congressional action represents a certain
disenchantment with independent agencies.329 Independence from
"Dixon, supra note 22, at 484.
"Watson, supra note 4, at 1071-1072.
32'Atkins, 556 F.2d at 1057, 1070-1071.
325Watson, supra note 4, at 1081-1082 explicitly rejects this form as inapplicable for
congressional review of agencies.
3262 SENATE COMM. at 120-122.
327The legislative veto of rules is purely a policy control device, Javits, supra note 20, at
494-495.
***Abourezk, supra note 20, at 327; Javits, supra note 20, at 462-465.
ST9Cutler, supra note 22, at 1399, 1409.
⁹³⁰Id. at 1399.
WHITE HOUSE LAW LIBRARY
ROOM 528 CEOB
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98th Congress
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COMMITTEE PRINT
2d Session
{
SERIAL No. 13
SPECIAL REPORT
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
NINETY-EIGHTH CONGRESS
SECOND SESSION
IDENTIFYING
COURT PROCEEDINGS AND ACTIONS OF VITAL
INTEREST TO THE CONGRESS
THE LEGISLATIVE VETO:
Immigration and Naturalization Service v. Chadha
and Related Cases
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
30-424 0
WASHINGTON : 1984
FOREWORD
On June 23, 1983, the U.S. Supreme Court issued a landmark de-
cision, Immigration and Naturalization Service U. Chadha. At issue
was the so-called legislative veto-a device by which Congress re-
serves unto itself the power to override Executive branch decisions
without passing a formal law. In holding the legislative veto uncon-
stitutional, the Court declared that Article I of the Constitution
clearly sets forth the process by which Congress may exercise legis-
lative power. The legislative veto, said the Court, simply does not
comport with that process.
Currently there are fifty-six legislative vetoes scattered through-
out the U.S. Code. These deal with matters ranging from the provi-
sion of foreign assistance to countries that violate human rights
(the International Development and Food Assistance Act of 1975) to
the legitimacy of rules published by the Federal Trade Commission
(the Federal Trade Commission Improvements Act of 1980). It is
therefore no exaggeration to state that the Chadha decision has
significantly affected the distribution of powers among the three
branches of government.
This special report, which was written and compiled pursuant to
the Speaker of the House's directive that the Committee on the Ju-
diciary identify and report on "court proceedings and cases of vital
interest to the Congress," traces the history of the Chadha case. In-
cluded herein are the various briefs, documents, and decisions con-
cerning the litigation, as well as our own synopsis of the case. In
addition, this volume contains synopses of several other legislative
veto cases, along with all the major judicial decisions rendered in
those cases.
It is my belief that the publication of this comprehensive compi-
lation of decisions, pleadings, documents, and synopses will serve to
heighten understanding of the Supreme Court's decision and will
prove to be an invaluable aid to Congress as it attempts to reexam-
ine its role within the American system of government.
PETER W. RODINO, Jr.,
Chairman, House Committee on the Judiciary.
(III)
CONTENTS
Page
Foreword
III
I. Immigration and Naturalization Service U. Chadha:
A. Summary of the case
3
B. Key decisions and pleadings filed in the case:
1. June 25, 1974 Opinion of the Immigra-
tion Judge
19
2. House Resolution of Disapproval (H.
Res. 926)
21
3. July 18, 1977 Brief of Jagdish Rai
Chadha in the U.S. Court of Appeals
for the Ninth Circuit
22
4. November 4, 1977 Circuit Court Brief of
the Immigration and Naturalization
Service
94
5. Immigration and Naturalization Serv-
ice's Suggestion that the Circuit Court
Invite the Submission of Amici Curiae
Briefs
146
6. February 27, 1978 Circuit Court Amicus
Curiae Brief of the House of Represent-
atives
151
7. Senate Resolution Authorizing the Sec-
retary to Appear as Amicus Curiae (S.
Res. 338)
219
8. February 27, 1978 Circuit Court Amicus
Curiae Brief of the Senate
221
9. March 22, 1978 Circuit Court Reply
Brief of the Immigration and Natural-
ization Service
273
10. May 1, 1978 Circuit Court Supplemental
Brief of Jagdish Rai Chadha
293
11. May 4, 1978 Circuit Court Supplemental
Amicus Curiae Brief of the House of
Representatives
304
12. May 4, 1978 Circuit Court Supplemental
Amicus Curiae Brief of the Senate
319
13. May 15, 1978 Circuit Court Supplemen-
tal Brief of the Immigration and Natu-
ralization Service
344
14. December 22, 1980 Opinion of the U.S.
Court of Appeals for the Ninth Circuit
357
(V)
VI
Page
15. May 1, 1981 Jurisdictional Statement of
the Immigration and Naturalization
Service in the U.S. Supreme Court
392
16. February 4, 1981 Motion to Intervene of
the House of Representatives
421
17. June 22, 1981 Petition for a Writ of
Certiorari of the House of Representa-
tives
426
18. June 22, 1981 Petition for a Writ of
Certiorari of the Senate
462
19. June 22, 1981 Motion to Dismiss of the
House of Representatives
503
20. June 22, 1981 Motion to Dismiss of the
Senate
523
21. November 19, 1981 Supreme Court Brief
of the House of Representatives
532
22. November 19, 1981 Supreme Court Brief
of the Senate
620
23. December 31, 1981 Supreme Court Brief
of Jagdish Rai Chadha
678
24. January 12, 1982 Supreme Court Brief
of the Immigration and Naturalization
Service
743
25. January 8, 1982 Supreme Court Motion
and Brief of the American Bar Associa-
tion
832
26. February 12, 1982 Supreme Court Reply
Brief of the House of Representatives
868
27. November 22, 1982 Supreme Court Sup-
plemental Brief of the House of Repre-
sentatives
888
28. June 23, 1983 Opinion of the U.S. Su-
preme Court
941
II. Related Cases on the Legislative Veto and the Legisla-
tive Directive:
Consumer Energy Council of America v. Federal
Energy Regulatory Commission
1007
Process Gas Consumers Group U. Consumer Energy
Council of America
1007
Consumers Union U. Federal Trade Commission
1012
American Federation of Government Employees v.
Pierce
1015
American Foreign Service Association U. McPherson
1023
Pacific Legal Foundation U. Watt
1025
Mountain States Legal Foundation v. Watt
1025
Lewis v. Sawyer
1048
III. Related Decisions:
Consumer Energy Council of America U. Federal
Energy Commission, 673 F.2d 425 (D.C. Cir. Jan.
29, 1982)
1063
Consumers Union U. Federal Trade Commission, 691
F.2d 575 (D.C. Cir. Oct. 22, 1982) (en banc)
1125
VII
Page
Page
of
American Federation of Government Employees U.
on
Pierce, Civil Action No. 82-3111 (D.D.C. Nov. 15,
392
1982)
1129
of
American Federation of Government Employees U.
421
Pierce, 697 F.2d 303 (D.C. Cir. Dec. 8, 1982)
1133
of
American Foreign Service Association U. McPherson,
ca-
Civil Action No. 81-2073 (D.D.C. Nov. 30, 1982)
1141
426
Pacific Legal Foundation U. Watt and Mountain
of
States Legal Foundation v. Watt, 529 F. Supp. 982
462
(D. Mont. Dec. 16, 1981, amended Jan. 19, 1982)
1143
he
Pacific Legal Foundation v. Watt and Mountain
503
States Legal Foundation U. Watt, Civil Action Nos.
he
81-141-BLG and 81-168-BLG (D. Mont. March 23,
523
1982)
1173
ief
Pacific Legal Foundation v. Watt and Mountain
532
States Legal Foundation U. Watt, 539 F. Supp.
ief
1194 (D. Mont. June 3, 1982)
1181
620
Lewis U. Sawyer, Civil Action No. 82-1515 (D.D.C.
ief
July 2, 1982)
1191
678
Lewis U. Sawyer, 698 F.2d 1261 (D.C. Cir. Feb. 4,
ief
1983)
1199
743
ia-
832
oly
868
ip-
re-
888
u-
941
la-
1007
1007
1012
v.
1015
1023
1025
1025
1048
1063
1125
legist
file
After the
Congressional
Robert S. Gilmour
Veto:
Barbara Hinkson Craig
ASSESSING THE ALTERNATIVES
Congressional choice of effective replacements for the recently banned
legislative veto will require an accurate understanding of the actual
results of the now unconstitutional device. The impact of the veto
varied strikingly depending on, among other things, the type and target
Abstract of the veto and on the principal sites of review in Congress itself. No
single mechanism will suffice. Rather a variety of devices are available
and under consideration. The underlying question raised by this
analysis is which effects of the veto are worth perpetuating in light of
past results and stated congressional objectives.
The U.S. Supreme Court, in its historic Chadha decision¹ of June
23, 1983, appeared, in one stroke, to overrule virtually every va-
riety of more than 200 congressional vetoes enacted over the span
of 50 years.² Statutory provisions requiring the president or his
subordinates to submit proposed orders, regulations, and plans to
Congress for review and potential veto by majority vote of one or
both houses of that body had, in the court's view, impermissibly
altered the constitutional process. Once Congress has made the
original choice to delegate to the executive, Chief Justice Burger
wrote for the majority, it may change the implementation of del-
egated authority "in only one way; bicameral passage followed by
presentment to the President." Lest any doubt remain about the
court's meaning, just two weeks later it ruled legislative vetoes
unconstitutional in the Natural Gas Policy Act of 1978 and in the
Federal Trade Commission Improvements Act of 1980.
"Congressional veto," however, is one phrase for many devices.
Applied in different forms to a wide range of policy areas, the
congressional veto has produced varied results. If precise replace-
ments are now to be adopted, an assessment of those results is the
necessary first step.
Journal of Policy Analysis and Management, Vol. 3, No. 3, 373-392 (1984)
© 1984 by the Association for Public Policy Analysis and Management
Published by John Wiley & Sons. Inc.
CCC 0276-8739/84/020373-20$04.00
374
After the Congressional Veto
A MULTITUDE OF Although Congress has made increasing use of the veto process
RESULTS during the past decade, debate has persisted over its desirability.
Congressional proponents assert that the veto returns lawmaking
power to "our democratically elected representatives," who there-
upon curb the excesses of "lawless" and "overzealous" bureau-
crats or cut short the adventures of an "imperial" president. Fur-
thermore, it is said, the legislative veto "opens up" the adminis-
trative process and makes it more democratic.
In actual fact, only a small number of executive actions have
been overturned by vetoes of one or both houses. Since the first
legislative veto provision was adopted in a 1932 executive reor-
ganization act, Congress has approved only 125 resolutions ve-
toing presidential or agency actions.³ Of those more than half (66)
have been rejections of presidential spending deferrals. Of the
remaining 59 vetoes actually exercised, 24 were disapprovals of
presidential reorganization plans. In sum, during 50 years of ex-
perience there were no vetoes of presidential initiatives in foreign
affairs and only 35 vetoes of agency regulations, projects, or de-
cisions. However, the threat of a veto as well as the application
of veto reviews by Congress have had a potent influence on policy
decisions.
Careful analysis shows that the effect of the congressional veto
depends not only on its form and the policy area involved, but also
on the intended target of the veto power and on the effective site
of review in Congress. Depending upon the intended target of veto
review-specified in law as either presidential or agency action-
and the subject matter under review, the critical action in a veto
review process could involve any of four principal relationships:
the president and congressional leadership, often involving many
or most members of Congress in open debate; the president or
executive office staff and individual standing committees; inde-
pendent commissions or executive regulatory agencies and
congressional leadership as well as many or most members at
large; and regulatory agencies and their oversight committees,
subcommittees, and staff.
Compelling The primary result of congressional vetoes applied directly to the
Consultation president and his highest advisors has been to compel leveraged
and visible consultation with the Congress. Historically, Congress
has not played an important role in foreign policymaking. How-
ever, throughout the 1970s, as domestic and foreign policy became
increasingly entwined, particularly in reaction to the Vietnam
war, Congress began to assert its long-neglected authority. In act
after nearly a dozen in all-the legislative veto became a
primary means by which Congress sought to control the power of
the president in foreign affairs. And while no presidential initia-
tive has ever been vetoed under these laws, in some cases, such as
those involving arms sales, the final policy decisions have been
demonstrably altered. In other cases, the veto has had no dis-
cernible impact on either the decision-making process or the out-
comes. The War Powers Act veto, for example, has proven an
After the Congressional Veto
375
ineffectual check on presidential actions. A brief analysis of the
application of foreign policy veto provisions brings to light some
of the reasons for these varied results.
Congressional support for a veto provision over arms sales, for
instance, came in response to the exponential growth of foreign
military sales and the recognition that these arms transfers had
become a major instrument of U.S. policy. To redress what many
in Congress saw as a serious deficiency in the decision-making
process governing arms sales, a formal procedure was devised to
promote congressional participation in the deliberations on arms
sales. As modified by subsequent amendment and practice, the
law now requires the president to report to Congress sales of $14
million or more for single items and $50 million or more for pack-
ages. Congress has 30 days to veto such a sale by concurrent res-
olution. Nevertheless, the president has statutory power to waive
this review period by declaring that "an emergency exists which
requires the proposed sale in the national security interest of the
United States."4
As exercised by Congress, the procedure has not been used to
thwart arms sales proposed by the president; rather, the threat of
a veto has forced the president on several occasions to make pro-
posals more acceptable by adjusting numbers, eliminating com-
ponents, or attaching stipulations on use of the weapons. The
result has been a consultation and negotiations process between
the president and Congress.
There have been only five arms sales proposals since 1974 that
have become the subjects of debate because of veto threats. In
each case the president has been willing to modify his proposal to
make it more acceptable, thereby forestalling every veto so far.
For example, in 1976 President Ford cut the number of Maverick
and Sidewinder missiles to be sold to Saudi Arabia; and in 1978
President Carter provided various assurances to Congress that
Saudi fighter aircraft purchased from the U.S. would have limited
offensive capabilities and would be stationed out of striking dis-
tance of Israel.
All five veto threats concerned nations in or near the Middle
East or the Persian Gulf. Four involved a powerful, vocal, and
well-organized domestic constituency. Through its American Is-
rael Public Affairs Committee (AIPAC), whose purpose is to "nur-
ture the U.S. alliance with Israel and to prevent alliances with
Arab nations from jeopardizing Israel's security," the Israel lobby
has been instrumental in focusing congressional attention on these
arms sales proposals.⁵
Although these five sales represent billions of dollars, they con-
stitute only a small proportion of the value and number of arms
sales proposals submitted to Congress by presidents since 1974.
Moreover, the record does not show that Congress has used the
veto as a means to exercise sustained oversight. In those instances
when Congress has seriously challenged an arms sale proposal,
threatening a resolution of disapproval, it has been able to effect
significant changes in the president's plans. However, such com-
376
After the Congressional Veto
promise by the president has not resulted when Congress failed to
make a convincing show of force. For example, when President
Reagan notified Congress of his proposed sale of 40 F-16 warplanes
to Pakistan less than a month after a major battle over the Saudi
AWACS sale, no resolutions of disapproval were reported, despite
the fact that the sale threatened the delicate balance of power
between two traditional enemies.⁶ Absent a powerful domestic
constituency, as in the Israel protection cases, or the high visibility
provided by media focus on the issue, Congress was not moved to
involve itself significantly in this arms sale proposal. Predictably,
the administration was not inclined to negotiate.
Since pressure from the media and powerful constituencies also
has an impact on the president, he will often prefer to include
Congress in controversial decision-making. Then any political
damage resulting from his proposals will be shared. In forgoing
the emergency waiver option in the Saudi AWACS sale,⁷ for ex-
ample, Reagan was forced to expend an enormous amount of po-
litical influence in bargaining with Congress. When he succeeded
in fending off a legislative veto his political credibility was
strengthened.
As with arms sales, War Powers legislation consists of three de-
vices to compel presidential consultation with Congress in deci-
sion-making: a requirement that the president consult with Con-
gress before introducing armed forces into hostilities; a require-
ment that the president make a formal report to Congress within
48 hours of the deployment of troops in hostile areas; and a 60-
day time limit extendable by 30 days on presidential action
without congressional approval. This last stipulation includes a
concurrent-resolution veto enabling. Congress to terminate presi-
dential use of the armed forces during that period.
Congress has not used its veto power under the War- Powers
Resolution to stop the presidential use of armed forces or even to
compel consultation. Indeed, there is no evidence that the War
Powers veto has had any effect whatsoever. Despite opposition bv
members of Congress, U.S. military advisors have been in El Sal-
vador since March 1981, and Marines have been in Lebanon since
August 1982. No member has tried to force withdrawal through
the introduction of a veto resolution. In fact, until recent efforts
to limit the use of American troops in Lebanon, no withdrawal
effort of any sort has made headway in Congress. When an amend-
ment requiring military advisors to depart El Salvador within 30
days after the bill's enactment was defeated (11 to 19) in the House
Foreign Affairs Committee, losing members took the issue to court.
Dismissing the case, the judge declared that Congress, "must ei-
ther take action to express its views that the War Powers Reso-
lution is applicable to the situation and that a report is required,
or, if it desires immediate withdrawal of forces, pass a concurrent
resolution directing removal of the forces.
"8 In effect. the only
major impact of the War Powers Act has been to afford congres-
sional leadership and committee members a vehicle for presenting
their views to the media.
After the Congressional Veto
377
Assessment of the effects of veto reviews applied to foreign trade
and aid legislation is difficult because Congress has attempted few
such actions. Of the several efforts made, none has been suc-
cessful, and there is little evidence that the attempts themselves
have prompted presidential consultation with Congress or modi-
fication of ultimate decisions. A veto designed to protect industry
from injurious imports went unused for two decades until 1978.
Then resolutions to override President Carter's denial of protec-
tionist action died in committee.⁹
Protecting Presidential The basic legislative model for presidential reorganization of gov-
Plans ernment was established in 1949. It authorized "plans" proposed
by the chief executive to take effect, subject to a one-house veto.
Although reorganization was always justified in part as an effort
to achieve savings, realists recognize that primary benefits are
managerial and political.
The alteration of prior organizational arrangements threatens
the interests of agencies and their congressional overseers,
arousing jurisdictional jealousies. If such feelings find expression
through the traditional legislative process, the coherence of an
organizational plan is likely to be comprised if not destroyed,
Thus, delegation of organizing power to the president, subject to
the legislative veto, offered a way of preserving the integrity of a
total plan in the interest of worthwhile, if controversial, change.
If protest is raised to the plan, the president can, within a stipu-
lated time, appeal directly to the full membership of either house
for support of the total package. He can bypass both the leader-
ship and the legislative committee seniors if they are unsympa-
thetic.
10
The integrity of presidential reorganization plans was not pre-
served without complications. Presented with a nonamendable
plan, Congress was faced with an all-or-nothing choice so that
entire programs were sometimes defeated. For example, when
Congress turned down a new department of urban affairs in 1962,
it was widely regarded as a debilitating blow to President Ken-
nedy, casting a pall over prospects for his entire legislative pro-
gram. In fact, nearly a fifth of all presidential reorganization
plans submitted between 1949 and 1980 were vetoed. Reorgani-
zation by presidential plan presents difficulties from a congres-
sional perspective as well. Time limitations constrain investiga-
tion of the plan's merits and defects, and coveted agency-com-
mittee relationships may be imperiled.
With passage of reorganization acts subsequent to the prototyp-
ical 1949 act, there has been "a gradual, yet persistent, erosion of
the President's reorganization authority. His flexibility has
been curtailed in establishing or abolishing departments or inde-
pendent agencies, in dealing with more than "one logically con-
sistent subject matter," and in eliminating enforcement functions
or agency programs. Agencies such as the Legal Services Corpo-
ration and the Synthetic Fuels Corporation have been exempted*
altogether from presidential organization authority.
378
After the Congressional Veto
The presidential plan approach has also been applied to the
development of a national gasoline rationing program. In 1979,
just as the gas lines began forming, President Carter submitted to
Congress a contingency rationing plan in compliance with the En-
ergy Policy and Conservation Act of 1975. The entire plan fell to a
veto widely described as "a severe political setback" to the pres-
ident. 12 Carter then called upon the legislative branch to develop
its own proposals. Instead, Congress passed a law that would
make future vetoes of rationing plans unlikely. The Emergency
Energy Conservation Act of 1979 altered the previous procedure
so that presidential rationing plans could be disapproved only by
a joint resolution and within 30 days of submission. Under this
authority, a revision of Carter's 1979 plan was adopted on July 30,
1980. Still, activation of the plan is predicated on a 20% shortfall
in fuels and is subject to a one-house resolution of disapproval.
Influencing During the 1976 presidential campaign, candidate Carter prom-
Management ised a drastic reorganization of the federal bureaucracy. However,
the 1977 Act passed by Congress substantially diminished presi-
dential reorganizing power that had been routinely granted in the
past. By permitting the president to amend organization plans
after submission to Congress, the 1977 Act in effect precluded pas-
sage of a total, coherent plan. With the threat of a legislative veto
in the near background, "Congress may now recommend amend-
ments requested by interest groups, and the president may be
obliged to submit them as a price for passage. The amendment
option itself is now one of the bargaining chips in the negotiations
between Congress and the President.
In fact, five of the ten reorganization plans submitted by Carter
were amended. Because of other statutory limitations on presi-
dential reorganization by plan, the most significant organizing
efforts of the Carter administration-creation of the Departments
of Energy and Education and (for the most part) the reorganized
civil service system-were accomplished by the ordinary legisla-
tive process.
A more telling exercise of congressional veto control over pres-
idential management has occurred in the budget process. Im-
poundment provisions of the Budget Reform Act of 1974 oblige
the president to submit proposals for "rescissions," the reduction
or repeal of appropriations items, which will take effect only upon
passage of a joint resolution of approval. Proposed rescissions
have no effect unless Congress completes affirmative action within
a 45-day period. However, if a recommendation to "defer" appro-
priated expenditures is made, it will take effect automatically un-
less vetoed by either house.
For the most part, deferrals represent "housekeeping" pro-
posals, short-term economies in ongoing programs; often construc-
tion projects with long lead times. Less than 10% of all deferrals
from 1975 through 1979 have been refused. Of those refused over
90% involved highway funding,¹⁴ an issue salient for virtually
every district.
After the Congressional Veto
379
Facilitating Perhaps the most significant use of the legislative veto in recent
Congressional years has been to expedite congressional agreement-or at least
Decision the appearance of agreement-on important and highly visible
policy issues where no genuine consensus exists. In the midst of
crisis or at the crest of a groundswell of popular sentiment, the
legislative veto has offered a flexible means to shortcut the labo-
rious process of data gathering and assessment, and to symbolize
congressional-decisiveness in the absence of adequate knowledge
or resolve. Put in its best light, in addition to assisting Congress
in adapting to the "strains" and "challenges of modern govern-
ment," the veto "provides a means of securing majority support
in highly divisive and politicized policy areas without imposing
unbearable political costs on individual members or ceding ulti-
mate control."¹ From a less flattering perspective, the veto al-
lows individual voting members to clasp lofty ideals that disguise
deep divisions in Congress and to escape responsibility for the
specific consequences of the embrace.
The Energy Security Act of 1980 is a prime example of the leg-
islative veto used to delegate policymaking to an agency when
Congress itself lacked adequate technical knowledge. Enacted just
after the second "oil shock," and during an intense presidential
campaign, the act symbolized a national commitment to energy
self-sufficiency. Long on policy mandates, procedural restrictions,
and administrative details, the legislation is short and vague on
substantive standards and specifics. These are left to an admin-
istratively cumbersome, off-budget enterprise, the U.S. Synthetic
Fuels Corporation. Although responsibility for the substance of
alternative energy policy has been delegated to the corporation,
its programs, projects, and regulations are contingent upon a
greater number and variety of constitutional and unconstitutional
veto devices than those in any other statute. Clearly, many critical
aspects of synthetic fuel development, such as the cost and loca-
tion of specific types of projects, as well as the question of congres-
sional commitment to the enterprise, were not resolved but put
off to another day.
Similarly there is little doubt that the veto played a decisive
role in allowing Congress to reach a semblance of agreement on
legislation governing the authority of the Federal Trade Commis-
sion (FTC). By accepting a two-house, 90-day legislative veto in
May 1980, FTC supporters were able to ensure a compromise al-
lowing the commission to continue its rulemaking in several areas
that had been expressly eliminated in either the House or Senate
versions of authorization bills. For example, the House bill con-
tained restrictions preventing the FTC from regulating the funeral
home industry or from investigating the insurance industry for the
purpose of developing regulations. The Senate bill contained a
similar restriction on FTC action aimed at the insurance industry;
did not forbid regulation of the funeral home industry; but tar-
geted used-car sales as specifically off limits for FTC rulemaking
activities. The legislative veto provided Congress a means to avoid
the controversial decision on what the FTC should regulate.
380
After the Congressional Veto
When, in the fall of 1981, the FTC issued a final rule regulating
the used-car industry, it was decisively vetoed in both houses.
The Natural Gas Policy Act of 1978 offers an example of the way
in which the veto was used both to mask political disagreement
and to enable legislative action well before relevant economic data
could be evaluated. Initially, congressional debate on the subject
centered on the fundamental conflict between the need to dereg-
ulate prices of natural gas as a means to stimulate new production
and the limited ability of consumers to pay significantly higher
prices for heat. In order to protect consumers without inhibiting
the development of new supplies, an incremental pricing mecha-
nism was proposed that would require industrial consumers to
bear the cost of the more expensive new gas until the price of gas
was comparable to that of coal and oil. However, incremental
pricing at the time was merely a theoretical idea and the legisla-
tive veto was a way to circumvent the technological complexities
of the concept. It satisfied members who insisted on consumer
protection as a prerequisite for supporting the phased decontrol
of gas prices, yet it allowed Congress to postpone a thorough de-
lineation of incremental pricing. 16
The monumental task of calibrating incremental pricing was
awarded to the Federal Energy Regulatory Commission (FERC), a
body whose proposals were ultimately vetoed by the House of Rep-
resentatives. Ironically, after having worked for over a year on
the rules, FERC commissioners appeared to welcome the out-
come 17 Consumer groups at once challenged the decision and
underlying procedure in federal court.
Ensuring Committee When congressional vetoes have been applied generically to the
Influence
rulemaking and planning of an agency and when the policies in-
volved have not attracted widespread attention, the presence of
the veto power has almost uniformly enhanced the influence of
committee and subcommittee members and their staffs. To be
sure, even when such veto power did not exist, members and staff
have always been able to participate in agency rulemaking and
there is little question that their views have been given due defer-
ence. Yet Congress has typically been inactive in agency rule-
making. The legislative veto structures this involvement, how-
ever, setting definite committee timetables for regulatory review
and putting other participants on notice of a new forum. So too
with veto reviews of agency plans for programs and projects.
Oversight that was once optional and sporadic has been scheduled
by statute.
Particularly where agencies are responsible for the promulga-
tion of numerous grant-in-aid or subsidy regulations, operating
characteristically under tight deadlines, the legislative veto con-
fers powerful leverage to congressional oversight committees. To
avoid protracted, often debilitating, battles involving hearings and
floor votes brought on by a full veto review process, regulatory
agencies are inclined to follow committee guidance.
After the Congressional Veto
381
Committee-agency consultation and negotiation over the de-
velopment of regulations is nowhere more evident than between
the House Committee on Education and Labor and the Depart-
ment of Education. Bilateral relations between the two bodies
have been institutionalized as a result of a series of vetoes by the
Education and Labor committee that sent a powerful message to
the Department of Education. Congressional concerns are now
incorporated through meetings between a representative of the
Department of Education and committee staff after enactment of
any major legislation affecting the department. Information gath-
ered in this process is integrated into rulemaking at the earliest
stages and is used as a check to ensure that the proposed and final
regulations are acceptable to the committee. 18
Another vivid illustration of committee leverage conferred by
the veto is reflected in the action of the committees that oversee
the Federal Election Commission (FEC). In the aftermath of the
Watergate scandal, the FEC was created in 1974 to develop ap-
propriate regulations governing campaign financing. In one in-
stance, after the FEC had failed to follow Senate committee guid-
ance, the committee recommended disapproval and a veto fol-
lowed. After subsequent FEC hearings and meetings with House
and Senate staff, committee and staff recommendations were
adopted in the regulation. 19
Veto reviews of agency planning have similar effects. The leg-
islative veto provision in the Resource Planning Act of 1974 was
used, for example, to further cement ties between the U.S. Forest
Service and the House and Senate agricultural committees. In an
era of "belt tightening," one veteran staffer observed, "the agen-
cies have increasingly turned to the committees and subcommit-
tees in an attempt to pry more dollars out of OMB" (the Office of
Management and Budget). 20 In this instance, closer relations were
sought both by the committees and by the agency. 21
Legislative veto reviews at the committee and subcommittee
levels also provide opportunities for members to negotiate regu-
latory changes favoring constituent interests. Here universalized
goals may be shaped to reflect more parochial concerns. Such
was the case when the Office of Education liberalized the eligi-
bility rules for the granting of financial aid under a 1972 program.
Constituent pressure on oversight committee members had
prompted a veto threat of the agency's proposed regulations.
Agreement was finally reached because all parties understood that
the entire program was in jeopardy. 22
The Results In sum, the impact of legislative vetoes has varied substantially,
Summarized not only with the institutional target of review (the president or
an agency) and with the congressional site of review (plenary ses-
sion and leadership, committee, or subcommittee), but also with
the specific variety of veto applied to any given situation. The
structure of the veto device, as with other structural arrange-
ments, is not unimportant. The initiative of a presidential reor-
382
After the Congressional Veto
ganization plan that will take effect unless both houses of Congress
vote it down is more powerful than that of a plan that may be
defeated by the majority of only one house. A change in rules to
make such plans amendable during the committee review period
blunts presidential initiative still further and affords greater in-
fluence to the reviewing committees.
Congressional willingness to exercise its enacted veto review
power is also critically relevant to the impact of legislative veto
provisions. Even when a veto effort has failed, a determined
congressional veto review can influence policy outcomes, as in the
case of several arms sales proposals. When Congress has not dem-
onstrated a strong intention to use its veto power, as in most for-
eign trade and war powers situations, policies have not been af-
fected. Where agency-level action is the target of a veto threat,
however, far less congressional investment is required to produce
an effect on policy decisions. Yet, even at this level committee
members and staff must exhibit some determination to oversee
agency actions if they are to have influence.
In addition, legislative vetoes may be understood to have dif-
ferent effects depending upon the situations in which they are ap-
plied. The insertion of legislative vetoes, of whatever sort, as a
check on congressional delegations in highly visible policy areas
where technical knowledge is inadequate and political divisions
run deep yields far different results than the application of vetoes
to less highly charged issues. In the one the appearance of decision
may be assured and the underlying controversy postponed. In the
other subcommittee oversight of and direct involvement in agency
decisions may be markedly enhanced. Clearly, no single substi-
tute will now take the place of the legislative vetoes apparently
lost to the Supreme Court's review.
ASSESSING THE Proposed substitutes for unconstitutional varieties of the legisla-
ALTERNATIVES tive veto are relatively numerous. Although some analysts have
suggested such measures as a constitutional amendment to undo
The Proposed the Chadha decision, most consideration is being given to legis-
Substitures lative alternatives. Among these is the report-and-wait device
which requires that proposed regulations or executive actions be
reported to Congress for a specified period prior to implementa-
tion. The interval period offers time for Congress to revoke or alter
the proposals through the normal legislative process. Committees
may be granted authority to waive or extend the waiting period,
a prerogative which could strengthen their negotiating position.
Another alternative to the banned measures is a joint resolution
of disapproval, which requires a majority vote of both houses and
presentment to the president in order to negate executive branch
or independent agency proposals. By constitutional design, pres-
idential rejection of this "constitutional veto" would be returned
to Congress where two-thirds majorities could carry the measure,
nonetheless. This raises the unlikely but cumbersome prospect of
a veto of the veto of a veto. However, presidential vetoes of joint
resolutions of disapproval would be unlikely and, as additional
After the Congressional Veto
383
protection from presidential rejection, such disapprovals could be
attached as amendments to important authorization or appropri-
ation bills.
The joint resolution of approval is yet another device that could
promote congressional influence in executive and agency policy-
making. Executive proposals would require affirmative action by
both houses of Congress and presentment to the president before
they could be implemented. When applied to the regulatory pro-
cess, "final rules" promulgated by the agencies could be treated
as mere proposals for subsequent congressional action, enhanced,
perhaps, by procedures that would command speedy congres-
sional attention.
A nonbinding two-house resolution expressing the majority sen-
timent of Congress could serve to encourage presidential deference
to congressional views. Such resolutions are unlikely to be ig-
nored, either by president or press. In order that comity might
prevail between the branches, and in view of other policy objec-
tives, presidential accession to congressional will expressed in this
manner is more probable than commonly supposed.
With regard to agency activities, certain informal procedures
based on the established relationships with oversight committees
would probably be perpetuated. The congressional practice of re-
quiring agencies to obtain prior approval from their oversight
committees for certain actions is widespread. Though sometimes
specified in statutes, committee reports, or hearings, these direc-
tives are often based on informal "gentlemen's agreements"
among the agencies and committees involved. Deference to com-
mittee veto power is so ingrained in agency behavior that it is
likely to continue, especially where funding is involved and the
committees concerned are appropriations subcommittees. Faced
with the annual necessity of securing appropriations for the
agency from the same subcommittees, an agency is unlikely to
abandon a prior approval mechanism regardless of its question-
able validity.
In the House of Representatives rules changes might be adopted
to permit consideration of "no appropriations" riders barring
agency spending to enforce a particular regulation under review.
A variation of this procedure would permit amendments to limit
spending only after an agency's authorizing committee had voted
to disapprove an agency action or regulation.
Some analysts have also suggested the creation of special select
committees to review proposed presidential actions in foreign or
military affairs or to coordinate agency regulations. Such com-
mittees could facilitate presidential-congressional communica-
tions and regulatory oversight divorced from the more isolated
and parochial subcommittee jurisdictions.
Finally, Congress always has the option of withholding delega-
tions of legislative power until it is able to do so with precision.
It may also extend the use of manifold oversight tools already
available and widely used. These include statutory techniques
such as removing express areas from agency regulatory authority,
384
After the Congressional Veto
establishing moratoriums on rulemaking activities, or transferring
regulatory jurisdictions from one agency to another. They also
include nonstatutory techniques such as the initiation of investi-
gations or the assertion of directives in committee reports and
hearings.
23
Compelling If in attaching veto provisions to foreign affairs legislation Con-
Consultation gress meant to insure its regular involvement in a coherent and
deliberative review of foreign policy decisions, then its goal has
not been realized. Replacement of these veto devices with similar,
constitutionally acceptable alternatives is equally unlikely to
achieve such a goal. The legislative vetoes have, however, afforded
Congress negotiating power with the executive on specific issues,
and Congress can reproduce this leverage in similar situations.
With regard to the two-house arms sales veto, for example, Con-
gress successfully used the device to modify some arms sales de-
cisions while at the same time members avoided other arms sales
controversies when they so desired. Furthermore, the veto pro-
vided national media opportunities for congressional leaders and
individual members. Replacing this veto with either joint reso-
lutions of disapproval or nonbinding concurrent resolutions might
appear to weaken congressional ability to achieve even these lim-
ited goals. After all, a joint resolution requires the president's
signature or a two-thirds override vote to be binding and a non-
binding resolution is just what the name implies-advice, not di-
rection. However, the manner in which Congress actually used its
arms sales veto power mitigates these concerns. Congress never
exercised the concurrent veto to reject an arms sale and in those
instances when the veto was used to initiate negotiations, the pres-
ident would very likely have made concessions anyway, given the
determined attitude of Congress.
A president's willingness to involve Congress in specific arms
sales proposals seems to stem as much from his need to gain ac-
ceptance for controversial sales as from the threat of a legislative
veto. Since there is mutual advantage to the negotiations, Con-
gress is in a strong position to bargain for a gentlemen's agreement
obliging the president to debate the issues and to respect a con-
current resolution of disapproval. A relationship built on such
cooperation and mutual advantage is far more likely to produce
positive results than the adversarial relationship inherent in the
design of the veto process.
If, however, Congress is now determined to develop a system of
regularized participation in the arms sales program it will need
to devise a comprehensive procedure for scheduling arms sales
discussions on the congressional agenda and for providing Con-
gress with current and accurate information on the sales under
consideration. Moreover, members require such information
when arms sales proposals are tentative, not after an American
offer has been finalized. 24 Setting the agenda could be achieved
through imposition of a joint resolution of approval, but assuring
the timely flow of arms sales information is a far more compli-
After the Congressional Veto
385
cated objective. It entails an enormous increase in the workload
of Congress and it raises questions about the desirability of such
deep congressional involvement in sensitive foreign policy deci-
sions.
In the area of foreign trade and aid, Congress has, over the past
decade, gradually resorted to other means than the legislative veto
to control presidential authority. These measures have included
congressional approval of presidential proposals before they can
become effective and formal presidential certification of subject-
nation compliance with detailed conditions. For example, any
agreements permitting nontariff trade barriers negotiated by the
president with foreign nations under provisions of the Trade Act
of 1974 require ratification by passage of a statute (no amend-
ments permitted). The Trade Act also requires the president to
certify a country's full compliance with freedom-of-emigration re-
quirements as a condition of granting nondiscriminatory treat-
ment and other trade benefits. Similarly, Congress has condi-
tioned the release of foreign aid funds upon specific accomplish-
ments of the nations in question and has placed ceilings on total
aid by country and by intended use. Judging from the past usage
of the veto provisions in foreign trade and aid cases, a joint reso-
lution of disapproval or a nonbinding concurrent resolution
should serve adequately as substitutes. Either would allow Con-
gress to object visibly to presidential actions and either would also
enable Congress to choose only those cases in which it wished to
be involved.
Congress could resort to a joint resolution of approval if it
wanted to be assured of ultimate control over trade and aid de-
cisions. Recently, the House Foreign Affairs Committee chose this
route. Moved by the outcries of agricultural interests suffering
severe financial burdens as the result of President Carter's grain
embargo against the Soviets, the committee ensured that similar
future actions could not be taken without positive congressional
support. The significant flaw in such an approach is that it re-
duces presidential flexibility in difficult foreign policy situations.
Given the limited variety of nonmilitary options available to a
president, as well as the reluctance of Congress to impose burdens
on vocal domestic constituencies, the wisdom of any widespread
use of this alternative is open to serious question.
Since the veto provision in the War Powers Resolution has never
been used by Congress, there seems little reason to replace it. Nev-
ertheless, the Senate has already moved to amend the resolution
so that Congress can force immediate withdrawal of troops from
hostilities by passage of a joint resolution of disapproval. This
substitute will probably not alter Congress' ability to influence
troop deployment. In fact, legislators have acted decisively only
in response to strong public pressure, and they are very unlikely
to move against the commander-in-chief unless spurred to do so
by overwhelming popular sentiment. Similarly, a president is un-
likely to veto majority bicameral action that is firmly backed by
the public. There are, however, sound reasons for Congress to
386
After the Congressional Veto
strengthen its involvement in decisions to use the armed forces.
At a minimum Congress could establish a body within its own
membership to receive and evaluate the sensitive information nec-
essary to forming judgments about military issues. 25
Protecting Presidential The only major presidential planning authority subject to a
Plans congressional veto, and still in effect, concerns the imposition of
a contingency plan for gasoline rationing. The one-house resolu-
tion of disapproval involved here, as elsewhere, is not easily re-
placed. There is no precise substitute. However, substitution of
a joint resolution of approval would protect the prerogatives of
each chamber while making difficult the imposition of so drastic
a measure as nationwide gasoline rationing. The likelihood of a
presidential veto would, of course, be nil.
Any revival of now-lapsed presidential authority to reorganize
the executive branch would also require a substitution for the one-
house congressional veto check. Legislation concerning presiden-
tial reorganization plans could require an affirmative joint reso-
lution of approval for adoption. In this way, the particular con-
cerns of each house would be protected, but the president would
find himself in the difficult position of having to bargain for sup-
port from both houses in a short time period. A less demanding
approach would permit presidential reorganization plans to take
effect subject to a joint resolution of disapproval. Congress would
ensure its role by requiring annual reauthorization of presidential
authority in this regard, by exempting certain agencies from re-
organization plans, and by proscribing the creation or dissolution
of departments.
Influencing Loss of the one-house veto provision to review and occasionally
Management defeat the president's proposals to defer congressional appropri-
ations has been regarded as a serious setback for legislative control
of financial management. The effect of the one-house veto held
over presidential deferrals is not only difficult to reproduce, but
complete legislation required in response to the dozens of deferral
proposals submitted by the chief executive each session is onerous
and unduly time consuming. Yet virtually everyone recognizes
the need for managerial flexibility to create spending reserves and
to withhold disbursements of funds that could not or should not
reasonably be spent.
Perhaps the simplest solution is not to replace the deferral veto
at all. Delaying expenditures of appropriated funds was an au-
thorized practice for many years-with no veto attached. Until
abused during the Nixon administration, the system had worked
well. In addition, Congress has recently adopted a useful and con-
stitutional alternative to the deferral veto-the inclusion of de-
ferral disapprovals in regular and supplemental appropriations
bills. These bills have, of course, gone to the president for his
signature or rejection 26 However, the problem of extended delays
After the Congressional Veto
387
in financial oversight via complete legislation remains. Perhaps
the most expeditious means of accommodating both Congress and
the chief executive in this matter is an informal agreement be-
tween the parties that a nonbinding, single-house resolution to
disapprove deferrals would be honored.
Facilitating Some members of Congress have been reluctant to delegate broad
Congressional powers to agencies when the veto is no longer available to serve
Decision as a constraint on agency actions. For example, after a House
committee reported the Consumer Product Safety Commission
(CPSC) authorization of 1983, including a congressional veto just
before the Chadha decision, one of the most consistent proponents
of the veto suggested: "if that decision had come down prior to
marking up this bill, the committee would have looked very
closely at the delegations of authority given to the Consumer Prod-
ucts Safety Commission to make a determination as to whether or
not you wanted that broad delegation to continue without the
legislative veto."27
Nonetheless, a functional equivalent to the now unconstitu-
tional varieties can be found in the joint resolution of disapproval.
Where appropriate, the threat of a presidential veto may be min-
imized by attaching an amendment disapproving a specific agency
action to "must" legislation or by substituting a nonbinding con-
current resolution combined with the addition of a "no appropri-
ations" rider to pending appropriations legislation. These proce-
dures offer no guarantee that policy will not be settled at the com-
mittee or subcommittee level.
A joint resolution of approval, on the other hand, would neces-
sitate plenary action by both chambers. The danger of widespread
use of this approach, of course, is that the congressional agenda
would be inundated with trivial matters, scheduled by outsiders.
The difficulty of selecting among these alternatives is also illus-
trated by House floor action on the recent CPSC bill. In the ab-
sence of either time or inclination to abandon the symbol of broad-
gauge consumer protection in favor of specific statutory targets
and standards, the House attached the two veto substitutes to the
bill. The selection of which veto device should appear in the final
act was left to the conference committee.
No one knows just which consumer products problems (or which
issues in other areas of broadly delegated legislative power) will
attract regulatory attention in the years ahead. It seems nonethe-
less certain that initially acceptable symbols will be reduced to
narrowly defined and hotly contested issues once regulatory pol-
icies become more pointed and the specific costs and impacts of
the regulations are known. Difficult choices will remain. If those
choices are dependent upon joint resolutions of approval, they will
ultimately be made in the voting body of Congress for submission
to the president. Regulatory agencies operating under such con-
straints will be recast, in part, as "study commissions" which will
have far greater ability to set the congressional agenda. Such
388
After the Congressional Veto
agencies will also become primary initiators of legislation for
which Congress will have ultimate and inescapable responsibility.
Congress, for its part, particularly if such joint resolutions are
made amendable, will regain some measure of its original role as
national legislator.
If, instead, such choices are made contingent upon joint reso-
lutions of disapproval, only highly visible proposals will be likely
to involve the full voting membership of Congress. Less visible
regulations would probably never get beyond the subcommittee
level, if indeed they were acted upon at all. As was pointed out
during the recent debate over CPSC veto provisions, "The problem
is that the resolution of disapproval which a Member of this body
might introduce would be referred to the subcommittee
and
,
there is a strong likelihood that if the [chairman] liked the rule,
and did not like the resolution of disapproval, this House would
never even have the opportunity of expressing itself on the
matter.
"28
Use of congressional veto devices to synthesize legislative ma-
jorities where there are known to be deep underlying policy divi-
sions does not avoid the "strains" of decision-making; it merely
postpones them, possibly at some considerable cost to Congress.
So long as significant controversy remains, it matters little what
form of veto mechanism is applied-affirmative or negative, con-
stitutional or unconstitutional. Moreover, the timing of each re-
turning conflict and the terms of renewed debate are determined
by the delegated agency, not by Congress. Parties who lose in veto
reviews simply take their appeals elsewhere: to the appropriations
process; to the courts; to the White House; or to the press.
The substantially weakened FTC used-car rule, for example,
could hardly be said to create an onerous burden for dealers. They
had merely to list major known defects in the used cars they of-
fered for sale. Under terms of the regulation, there was no in-
spection requirement, and dealers could disclaim liability for any
unknown defects. In these circumstances, the particular window-
sticker lists required could hardly be acclaimed a great victory for
car buyers either. Nonetheless, both dealers and consumer ad-
vocates acted as if sizable stakes were at issue. After sustaining
an overwhelming veto favoring the dealers, consumer groups im-
mediately appealed to the judiciary and to the public. They won
at law, and Congress lost decisively in the communications media.
Newspapers and television stations headlined a Congress that had
"knuckled under" to powerful dealership interests. Long and
prominently featured lists correlated campaign contributions of
auto dealer political action committees with member votes on the
veto. Arguably, it would have been much more straightforward
and far less costly for Congress to have set its own targets for FTC
regulation in the first place. Shortly thereafter, when the FTC
submitted its regulations on funeral homes and children's televi-
sion advertising, Congress evidenced little interest in a repeat per-
formance. The aftermath of the FTC veto implies the common
result that as public interest or, for that matter, generalized
After the Congressional Veto
389
congressional interest in an issue abates, plenary oversight of new
regulations reverts to committee.
Ensuring Committee A report-and-wait strategy can serve much the same function as a
Influence veto with regard to oversight of agency rulemaking or planning.
Agencies have commonly responded to committee objections by
revising their proposals in accord with the wishes of their congres-
sional overseers. 29 Nonetheless, the joint resolution of disapproval
is actually the most precise replacement for a congressional veto
intended to enhance committee influence over established agen-
cies.
Two examples from the Department of Housing and Urban De-
velopment make it clear that a potential joint resolution of dis-
approval may offer committee leverage over agency rulemaking
that is just as powerful as the veto devices now constitutionally
prohibited. As the result of an intense lobbying effort by repre-
sentatives of the masonry industry who were resisting new con-
struction standards, a resolution of disapproval was introduced in
the House that triggered a 90-day waiting period as required by
the Housing and Community Development Amendments of 1978.
This and subsequent maneuvers made it possible for masonry in-
terests to escape imposition of the new standards for two building
seasons before the rule could be implemented. About the same
time, HUD issued its fair housing rule to comply with equal op-
portunity requirements. A resolution of disapproval was used to
insure an airing of constituent concern that preferences for local
residents would not be honored in HUD-subsidized "Section 8"
housing. Even though the regulation did nothing to jeopardize
the concept of "local preference" in admissions to the program,
HUD withdrew the fair housing rule in order to get on with the
bulk of its regulatory program. It was not reintroduced.³⁰
At first glance the veto may seem to endow committees with
power unencumbered by responsibility. While the agencies ap-
pear to bear responsibility for the development of policies and
programs, congressional committees wield authority over imple-
mentation. Ultimately, at least in a legal sense, Congress cannot
so easily escape its responsibility. If agencies are deflected from
their statutory mandates by committee negotiations, the respon-
sibility for such alterations will be deferred to upon judicial re-
view. The tradeoff for such a process is to render impotent agency
decision-making requirements based upon fairness, openness, rea-
soned decision, and substantial evidence, requirements that have
been developed by the judiciary, and by Congress, over a number
of years. 31
Should Congress become dissatisfied with the devolution of reg-
ulatory policymaking to the secrecy of the committee anteroom
environments, resurrection of a "constitutionalized" veto will not
correct the situation. Here the special select committee approach
to centralized congressional review of proposed agency regula-
tions holds far greater promise for alerting Congress to regulatory
duplication and overlap and to ultra vires bureaucratic acts. 32 In
390
After the Congressional Veto
addition, such a select committee, if properly staffed, could offer
a counterweight to the centralized and powerful regulatory review
program undertaken by the Reagan administration's Task Force
on Regulatory Relief and the Office of Management and Budget. 33
CONCLUSION The congressional veto, in the various forms and contexts of its
application, has had different results both for policymaking and
for policy. Curiously, the veto has accomplished few if any of the
goals promoted in the slogans of its sponsors. In part it is simply
another device for traditional administrative oversight; yet it has
also been a powerful means to facilitate some manner of congres-
sional decision and delegation. Functional replacements for the
abolished vetoes will likely be varied as well. Being "the first one
out of the bag"34 with a generic substitute for vetoes lost in the
Chadha decision may be good politics but mistaken policy.
Clearly the veto's multiple effects argue against application of a
generic veto of any sort. The adoption of a required joint resolu-
tion of approval, for example, might be a useful device to postpone
congressional decision on the specifics of particular programs.
But applied to prolific regulation writers, such as the Department
of Education, EPA, and HUD, Congress would be inundated by the
required affirmative passage of voluminous and highly detailed
legislation. By the same token, generic application of a joint res-
olution of disapproval not only fails to protect the interests of any
one chamber of the Congress upon review but it also encourages
the tendency to allow critical decisions to gravitate to committee
or subcommittee without plenary review by either chamber. Fur-
thermore, since legislative vetoes applied to presidential war
powers and foreign aid yielded insignificant results, constitutional
replacements for them are unnecessary. The need to address other
congressional concerns-adequate presidential consultation and
communication—seems far more pressing.
ROBERT S. GILMOUR is professor of political science at the Uni-
versity of Connecticut and a member of the Vermont bar.
BARBARA HINKSON CRAIG is assistant professor of government
at Wesleyan University and author of The Legislative Veto: Congres-
sional Control of Regulation.
NOTES 1. Immigration and Naturalization Service v. Chadha, et al. (80-1832, 80-
2170, 80-2171-Dissent),
U.S
(June 23, 1983).
2. For a complete summary of all legislative veto provisions adopted
since the first in 1932, see: Norton, Clark F., Congressional Review,
Deferral and Disapproval of Executive Actions: A Summary and an In-
ventory of Statutory Authority, Report 76-88G; 1976-1977 Congres-
sional Acts Authorizing Prior Review, Approval or Disapproval of Pro-
posed Executive Actions, Report 78-117 (Gov.); Congressional Veto Pro-
After the Congressional Veto
391
visions and Amendments: 96th Congress, Issue Brief 79044;
Congressional Veto Legislation: 97th Congress, Issue Brief 11381138
(Washington, DC: Library of Congress, Congressional Research Ser-
vice, 1976, 1979, 1981, 1983).
3. Figures on resolutions of disapproval overturning presidential or reg-
ulatory actions are drawn from Cohen, Richard E., "Life Without the
Legislative Veto-Will Congress Ever Learn to Like It?" National
Journal (July 2, 1983): 1379; and Rothman, Robert, "Congress' Long
Conflict with the President Led to the 1974 Impoundment Control
Law," Congressional Quarterly (July 2, 1983): 1333.
4. Arms Export Control Act, 22 U.S.C. 2776.
5. See Congressional Quarterly (August 22, 1981): 1524.
6. "Sale of F-16s to Pakistan Approved in Spite of Questions in Con-
gress," Congressional Quarterly (December 5, 1981): 2413.
7. See Whittle, Richard, "President Can Waive Arms Veto," Congres-
sional Quarterly (October 17, 1981): 2008.
8. Crockett, et al. V. Reagan, 558 F. Supp. 893 (1982): 899. The case was
brought by 29 congressmen and senators. Twenty-eight other mem-
bers of the House and Senate were granted intervener status and filed
an amicus curiae brief in opposition to the plaintiffs' case.
9. In this case, involving industrial fasteners, the resolution of disap-
proval could have been reported unfavorably by the Ways and Means
Committee, to be decided by the full House. Instead, the Carter ad-
ministration worked out a compromise with the committee, which
resulted in a new investigation of import relief. Subsequently, some
relief was granted. What role the veto effort played in this remains
unclear. Pregelj, Valdimer N., "Legislative Veto or Positive Approval
of Executive Action Under the Trade Act of 1974 and Related Legis-
lation," in Congressional Research Service, Studies on the Legislative
Veto, pp. 719-720.
10. Mansfield, Harvey C., "Federal Executive Reorganization: Thirty
Years of Experience," Public Administration Review, 29 (July-August
1969): 341.
11. Fisher, Louis, and Moe, Ronald C., "Presidential Reorganization Au-
thority: Is It Worth The Cost?" Political Science Quarterly, 96 (Summer
1981): 314.
12. Quoted in Davis, David H., "Legislative Vetoes in Energy Policy," in
Congressional Research Service, Studies on the Legislative Veto, P. 108.
13. Fisher and Moe, p. 312.
14. Schick, Allen, Congress and Money: Budgeting, Spending and Taxing
(Washington, DC: The Urban Institute, 1980), pp. 401-412.
15. Cooper, Joseph, and Hurley, Patricia A., "The Legislative Veto: A
Policy Analysis," Congress and the Presidency, 10 (Spring 1983):
16-17.
16. Craig, Barbara Hinkson, The Legislative Veto: Congressional Control of
Regulation (Boulder, CO: Westview Press, 1983), pp. 103-110.
17. See U.S. House of Representatives, Subcommittee on Energy and
Power of the Committee on Interstate and Foreign Commerce,
Hearing on the Phase II Incremental Pricing of Natural Gas, 96th Cong.,
2d Sess., April 3 and May 6, 1980.
18. U.S. Department of Education, "Department of Education Regulation
Process Memorandum," internal memorandum for Deputy General
Counsel for Regulation and Legislation Stewart A. Baker, September
25, 1980, p. 4; see Craig, The Legislative Veto
pp. 67-97.
19. For a more complete account of this and related FEC cases, see Bruff,
Harold H., and Gellhorn, Ernest, "Congressional Control of Admin-
392
After the Congressional Veto
istrative Regulation: A Study of Legislative Vetoes," Harvard Law
Review, 90 (May 1977): 1403-1409.
20. Interview with U.S. Senate Committee on Agriculture and Forestry
staff, Washington, DC, July 13, 1979.
21. In addition to a concerted House and Senate campaign to pass the
act, the Forest Service was a consistent lobbyist on behalf of resource
planning. Earlier long-range planning efforts had been torpedoed by
OMB, but the disarray of the late days of the Nixon administration
made possible the passage of the Resource Planning Act with legis-
lative veto intact. Although OMB "violently opposed" the bill and
urged newly installed President Gerald Ford to exercise his own veto
power, in the particular circumstances of 1974, he declined to do so.
Interviews with U.S. Forest Service senior staff, Washington, DC, July
12, 1979.
22. Bruff and Gellhorn, p. 1384.
23. See Kaiser, Frederick M., "Congressional Action to Overturn Agency
Rules," Administrative Law Review, 32 (1980): 667.
24. Congress has already moved in this direction to the extent of requiring
the president to provide it with quarterly and annual reports pro-
jecting potential arms sales thought "most likely to result in the is-
suance of a letter of offer" (Pregelj, pp. 721-726).
25. See Craig, Barbara Hinkson, "The Power to Make War: Congress'
Search for an Effective Role," Journal of Policy Analysis and Manage-
ment, 1 (Fall 1982): 325-328.
26. See Fisher, Louis, "Chadha's Impact on the Budget Process," Congres-
sional Research Service Review (Fall 1983): 12.
27. Remarks of Representative Elliott Levitas, (D-GA), Congressional Re-
cord, 98th Cong., 2d Sess., 1983, 129, p. H4474.
28. Ibid., p. H 4772.
29. Gilmour, Robert S., "The Congressional Veto: Shifting the Balance of
Administrative Control," Journal of Policy Analysis and Management,
2 (Fall 1982): 13; Harris, Joseph P., Congressional Control of Admin-
istration (Garden City, NY: Doubleday and Co., 1964), pp. 258-259.
30. Craig, The Legislative Veto
pp. 45-66; "The Congressional Veto
and Rulemaking," Public Administration Quarterly, 7 (1983): 24.
31. Gilmour, pp. 20-22.
32. See U.S. House of Representatives, Committee on Rules, Recommen-
dations on Establishment of Procedures for Congressional Review of
Agency Rules, 96th Cong., 2d Sess., 1980 (Committee Print).
33. See Viscusi, W. Kip, "Presidential Oversight: Controlling the Regu-
lators," Journal of Policy Analysis and Management, 2(2) (Winter 1983):
157-173; Gilmour, Robert S., "Presidential Clearance of Regulation,"
a paper presented at the National Conference of the American Society
for Public Administration, New York, April 17, 1983.
34. Statement of Representative Elliott Levitas, quoted in Pressman,
Steven, "Congress Considers Choices in Legislative Veto Aftermath,"
Congressional Quarterly (July 2, 1983): 1327.
THE WHITE HOUSE
WASHINGTON
May 14, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
120R
SUBJECT:
Draft DOJ Report on S.J. Res. 135,
"Proposing an Amendment to the Constitution
of the United States for the Establishment
of a Legislative Veto"
OMB has asked for our views by close of business May 15 on a
draft Department of Justice report opposing S.J. Res. 135, a
proposed constitutional amendment to overturn the Chadha
decision. The report notes that the Chadha decision was
based on constitutional provisions reflecting the Framers'
concern with separation of powers. It was not the result of
technicalities that need to be corrected but rather a
corollary of the basic structure of our Government.
Chadha struck down legislative vetoes because they contra-
vened the bicameralism requirement and the presentment
clause. As the Justice report notes, the bicameralism-
requirement was consciously devised to provide a check to
flawed legislation that might pass one House. By the same
token, the presentment clause was added to the Constitution
to provide a check against legislative encroachments on the
power of the Executive, and to insert the Executive -- the
only official (other than the Vice President) elected by all
the people -- into the legislative process. The Justice
report concludes by rejecting many of the policy arguments
in favor of legislative veto, including the argument that
such vetoes serve to make agency action more politically
accountable. The Justice report argues that the underlying
problem is vague delegation by Congress, a problem not
effectively cured by retention of veto authority.
I have no objection to the proposed report. On page 10,
line 42, the report states that "Congress can adopt re-
solutions expressing views, which may not be legally binding
upon the Executive Branch
"
It is unclear whether "may"
is used in the permissive sense or to express likelihood.
Only the former is correct, since concurrent resolutions are
never binding on the President, yet readers could well
suppose the latter was intended. I would change "may not
be" to "are not." "
THE WHITE HOUSE
WASHINGTON
May 14, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING Orig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Draft DOJ Report on S.J. Res. 135,
"Proposing an Amendment to the Constitution
of the United States for the Establishment
of a Legislative Veto"
Counsel's Office has reviewed the above-referenced draft
report, and finds no objection to it from a legal per-
spective. On page 10, line 42, however, I recommend
changing "may not be" to "are not." As now written it is
unclear whether "may" is used in the permissive sense or to
express a likelihood. Only the former is correct in this
context, since resolutions expressing the views of Congress
are never binding on the President.
FFF: JGR:aea 5/14/84
cc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
May 14, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Draft DOJ Report on S.J. Res. 135,
"Proposing an Amendment to the Constitution
of the United States for the Establishment
of a Legislative Veto"
Counsel's Office has reviewed the above-referenced draft
report, and finds no objection to it from a legal per-
spective. On page 10, line 42, however, I recommend
changing "may not be" to "are not." As now written it is
unclear whether "may" is used in the permissive sense or to
express a likelihood. Only the former is correct in this
context, since resolutions expressing the views of Congress
are never binding on the President.
FFF: JGR:aea 5/14/84
CC: FFFielding/JGRoberts/Subj/Chron
ID #.
CU
WHITE HOUSE
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Subject: Draft DOJ report on S.J. Rea (B) 135, proposing
an amendment to the Constitution of the
United States for the untablishment of a
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5/81
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF management AND BUDGET
WASHINGTON, D.C. 20503
May 9, 1984
SPECIAL
LEGISLATIVE REFERRAL MEMORANDUM
TO:
LEGISLATIVE LIAISON OFFICER
SEE DISTRIBUTION
SUBJECT: Draft DOJ report on S.J.Res. 135, "proposing an amendment
to the Constitution of the United States for the establish-
ment of a legislative veto."
The Office of Management and Budget requests the views-of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than
COB Tuesday, May 15, 1984
Direct your questions to Branden Blum (395-3802), the legislative
attorney in this office.
the goy the James C. Murr for for
Assistant Director for
Legislative Reference
Enclosure
CC: B. Bedell
M. Horowitz
F. Fielding
E. Strait
J. Hill
M. Uhlmann
DISTRIBUTION:
Department of Agriculture
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Administrative Conference of the United States
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
Honorable Strom Thurmond
Chairman, Committee on the
Judiciary
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
This letter is in response to your request for the views
of the Department of Justice on S.J. Res. 135, "proposing an
amendment to the Constitution of the United States for the
establishment of a legislative veto." The Department of
Justice believes that the constitutional amendment proposed
by this resolution would substantially eliminate the carefully
drawn checks on the exercise of legislative power that were
included in the basic constitutional framework of our Nation,
and would drastically and unnecessarily alter the existing
relationships between the three coordinate Branches of the
federal government. Consequently, the Department of Justice
recommends against adoption of S.J. Res. 135 and transmittal
of it to the states for ratification.
The language of the constitutional amendment proposed
by S.J. Res. 135 reads as follows:
Section 1. Executive action under
legislatively delegated authority may be
subject to the approval of one or both
Houses of Congress, without presentment
to the President, if the legislation that
authorizes the executive action so provides.
The clear intent of the proposed amendment is to abrogate the
Supreme Court's decision in INS V. Chadha, 103 S. Ct. 2764
(1983), holding "legislative veto" devices to be unconsti-
tutional. In Chadha, the Court made clear that under the
"carefully designed limits" imposed by the Framers on the
powers of the coordinate Branches, Congress must exercise
its legislative power in strict conformity with the require-
ments of Art. I, §§ 1 and 7 of the Constitution: passage
by a majority of both Houses and presentment to the President
for approval or veto. 103 S. Ct. at 2786-87. S.J. Res. 135
would nullify the Chadha decision by amending the Constitution
to allow Congress to take action that alters the authority
of the Executive to exercise statutorily delegated responsi-
bilities by vote of either one or both Houses, without
presentment to the President. 1/
We believe that the proposed constitutional amendment
would be a wholly unwarranted and unwise alteration of the
"enduring" and "carefully designed limits" imposed by the
Framers on the powers of the coordinate Branches, INS V.
Chadha, 103 S. Ct. at 2787. As the Court emphasized in
Chadha, those limits were no accident of history. The
debates surrounding adoption of the Constitution leave no
doubt that the procedure established in that document for
the exercise of legislative power was not a mere formality
or unintended limitation on legislative authority. To the
contrary, the constitutional requirements that power be
divided among the Legislative, Executive, and Judicial
Branches, and that all measures having the effect of a law
must receive the concurrence of both Houses and must be
presented to the President for approval or disapproval were
intended to be fundamental checks against oppressive,
improvident, or precipitate action by the Legislative
Branch and encroachment by that Branch upon the Executive.
The legislative process devised by the Framers in
Article I of the Constitution reflects three underlying
structural components: separation of powers, bicameralism,
and presentment. As discussed below, each of these components
is vitally important to the functioning of our constitutional
system.
Separation of Powers
The powers of the national government were deliberately
divided by the Framers among three coordinate Branches,
1/ The proposed amendment would authorize legislative vetoes
by action of one or both Houses, but would not authorize
approval or disapproval of Executive actions by one or more
congressional committees. Accordingly, we would not read
the proposed amendment to alter the effect of the Chadha
decision insofar as committee approval, disapproval, or
waiver mechanisms are concerned.
- 2 -
because they considered the concentration of governmental
power to be the greatest threat to individual liberty. "The
Framers regarded the checks and balances that they had built
into the tripartite Federal Government as a self-executing
safeguard against the encroachment or aggrandizement of
one branch at the expense of the other.' Buckley V. Valeo,
424 U.S. 1, 122 (1976). The principle of separation of
powers is based on the premise that if one Branch of govern-
ment could, on its own initiative, merge legislative, executive,
or judicial powers, it could easily become dominant and
tyrannical. In such circumstances, it would not be subject
to the checks on governmental powers that the Framers considered
a necessary protection of freedom. The three Branches of the
Government are not "watertight compartments" acting in isolation
of each other. Springer V. Government of the Philippine
Islands, 277 U.S. 189, 211 (1928) (Holmes, J., dissenting);
see Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579, 635
(1952) (Jackson, J., concurring). Rather, the Framers
conceived of national government as involving the dynamic
interaction between the three Branches, with each "checking"
the others and "balancing" the powers conferred on the others
with its own assertions of power.
The separation of powers principle, intended to be a
"vital check against tyranny," 2/ and "essential to the
preservation of liberty," 3/ is a bedrock principle of our
constitutional system, and should not be disregarded. At
the core of the principle is the precept that no single
Branch can usurp or arrogate to itself the essential functions
of other Branches. Since the brilliant men who created our
Constitution believed that the concentration of power in
any one individual or group was the very definition of
tyranny, we would regard any alteration in this separation
of powers, mandated by the Constitution, to be a very
serious departure from the principles that have guaranteed
our liberties for nearly two hundred years.
2/ Buckley V. Valeo, 424 U.S. 1, 121 (1976); see, e.g.,
The Federalist No. 47 (J. Madison), at 324.
3/ The Federalist No. 51 (J. Madison), at 348; see Youngstown
Sheet & Tube Co. V. Sawyer, 348 U.S. 579, 635 (1952) (Jackson, J.,
concurring).
- 3 -
Bicameralism
Despite the careful separation of powers between the
three Branches, the Framers recognized that the Legislature,
with the authority to make all laws and to appropriate all
money, was the Branch with the greatest potential powers.
The Framers were acutely aware that "[i]n republican government
the legislative authority, necessarily, predominates. The
Federalist No. 51 (J. Madison), at 350. While there was
general agreement that the Legislative Branch should set
policy, there was also agreement that an internal check was
necessary on the power of the Legislature. One of the
checks the Framers fashioned against this potential was to
require that legislative action receive the approval of
both Houses of Congress. James Wilson, later a Justice of
the Supreme Court, observed during the debates of the
Constitutional Convention:
Despotism comes on mankind in different
shapes. Sometimes in an Executive, sometimes
in a military, one. Is there no danger of a
Legislative despotism? Theory and practice
proclaim it. If the Legislative authority
be not restrained, there can be neither
liberty nor stability; and it can only be
restrained by dividing it within itself,
into distinct and independent branches. In
a single house there is no check, but the
inadequate one, of the virtue & good sense
of those who compose it.
1 M. Farrand, The Records of the Federal Convention of 1787
254 (1966) (emphasis added). Madison, expounding upon
the necessity of the Senate, noted "the propensity of all
single and numerous assemblies, to yield to the impulse of
sudden and violent passions, and to be seduced by factious
leaders, into intemperate and pernicious resolutions." The
Federalist No. 62 (J. Madison), at 418. This propensity
would be checked, he maintained, by providing a greater
opportunity for due deliberation in the course of considera-
tion by the two differently constituted Houses. Id. at 417-
19. See also The Federalist No. 63 (J. Madison), at 426-27.
The dangers posed by a Congress comprised of a single House
were thus clearly apparent to the Framers. Alexander
Hamilton warned that, were the Constitution to provide for
only one legislative organ:
- 4 -
we shall finally accumulate, in a single
body, all the most important prerogatives
of sovereignty, and thus entail upon our
posterity one of the most execrable forms
of government that human infatuation ever
contrived. Thus we should create in reality
that very tyranny which the adversaries of
the new Constitution either are, or affect
to be, solicitous to avert.
The Federalist No. 22 (A. Hamilton), at 135, quoted in INS V.
Chadha, supra, 103 S. Ct. at 2783.
Presentment
Yet another check fashioned by the Framers against the
possibility of encroachment by the Legislative Branch upon
the independence of the Executive was the requirement of
Art. I, § 7, that all legislative measures be presented to
the President for approval or disapproval. The Presentment
Clauses were intended by the Framers as a "self-executing
safeguard" against abuse of legislative power, 4/ and as a
"guard[ [] against ill-considered and unwise legislation. 5/
As the Court pointed out in Chadha, presentment to the
President and the presidential veto were considered so
imperative that the draftsmen took special pains to assure
that these requirements could not be circumvented. See
2 M. Farrand, supra, at 301-02, discussed in INS V. Chadha,
103 S. Ct. at 2782.
There was virtual unanimity at the Constitutional
Convention that the President should participate in the
legislative process by exercising a veto over proposed
legislation. The purpose was threefold. First, presentment
to the President would check, as Chief Justice Burger stated
in INS V. Chadha, "whatever propensity a particular Congress
might have to enact oppressive, improvident, or ill-considered
Buckley V. Valeo, 424 U.S. 1, 122 (1976). See The Federalist
No. 51, supra, at 350; see also The Federalist No. 73 (A. Hamilton)
at 497; The Federalist No. 66 (A. Hamilton), at 445-46; 1 M. Farrand,
supra, at 97-106; id. at 139-40 (remarks of George Mason).
5/ The Pocket Veto Case, 279 U.S. 655, 678 (1929) see also id.
at 677-78 n.4; Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S.
579, 587 (1952) ; United States V. Rumely, 345 U.S. 41, 46 (1953).
- 5 -
measures." 6/ Second, it would ensure that the legislative
process included a national perspective. As the Supreme
Court aptly noted in Myers V. United States, 272 U.S. 52
(1926):
The President is a representative of the
people just as the members of the Senate
and of the House are, and it may be, at
some times, on some subjects, that the
President elected by all the people is
rather more representative of them all
than are the members of either body of
the Legislature whose constituencies are
local and not countrywide
....
272 U.S. at 123, quoted in INS V. Chadha, supra, 103 S. Ct.
at 2782-83. 7/ Third, the presentment requirement is
necessary to enable the President to defend the powers of
the Executive from legislative encroachments. Without the
veto power, as Alexander Hamilton observed, the President
"would be absolutely unable to defend himself against the
depredations of the [Legislative Branch.] He might gradually
be stripped of his authorities by successive resolutions,
or annihilated by a single vote." The Federalist No. 73
(A. Hamilton), at 494.
The protections of bicameralism and presentment to the
President, derived from the underlying principle of separa-
tion of powers, were thus no accident of history or lightly
considered procedural requirements, but rather a "finely
wrought and exhaustively considered procedure" intended to
serve what the Framers believed to be essential constitutional
functions. INS V. Chadha, 103 S. Ct. at 2784. While compliance
with this procedure may result in some inefficiencies or
inconveniences, see id. at 2781, those inefficiencies and
6/ INS V. Chadha, 103 S. Ct. at 2782; The Federalist No. 73
(A. Hamilton), at 495-96; see generally 1. J. Story, Commentaries
on the Constitution of the United States, §§ 884-893; at 614-21
(3d ed. 1858).
7/ See also INS V. Chadha, 103 S. Ct. at 2784; II Elliot's
Debates on the Federal Constitution 448 (1836).
- 6 -
inconveniences are a small price to pay for maintaining an
appropriate balance between the coordinate Branches of the
Government. The Court's observations in Chadha are particularly
relevant:
The choices we discern as having been
made in the Constitutional Convention impose
burdens on governmental processes that often
seem clumsy, inefficient, even unworkable,
but those hard choices were consciously
made by men who had lived under a form of
government that permitted arbitrary govern-
mental acts to go unchecked. There is no
support in the Constitution or decisions of
this Court for the proposition that the
cumbersomeness and delays often encountered
in complying with explicit Constitutional
standards may be avoided, either by the
Congress or by the President. See Youngstown
Sheet & Tube Co. V. Sawyer, 343 U.S. 579,
72 S. Ct. 863, 96 L.Ed. 1153 (1952). With
all the obvious flaws of delay, untidiness,
and potential for abuse, we have not yet
found a better way to preserve freedom than
by making the exercise of power subject to
the carefully crafted restraints spelled
out in the Constitution.
103 S.Ct. at 2788.
The constitutional amendment proposed by S.J. Res. 135
would substantially eliminate these carefully drawn checks on
the exercise of legislative power and would drastically --
and unnecessarily -- alter the existing relationships between
the Executive and Legislative Branches. We believe strongly
that any fundamental alteration of these limits would amount
to seriously ill-advised tampering with the carefully constructed
and tested constitutional scheme.
Even aside from our grave concerns about the wisdom of
making fundamental changes in our constitutional structure
governing the lawmaking and lawexecuting processes, we fear
that authorization of one- and two-House legislative vetoes
would have a substantial adverse impact on both the Legislative
and Executive Branches and would in fact impede, rather than
facilitate, the making and execution of laws. Granting one
or both Houses of Congress the authority to veto Executive
Branch decisions would inevitably introduce additional -- and
often excessive -- delay into the decisionmaking process,
would place a massive new burden on already scarce congressional
- 7 -
and Executive Branch resources and would decrease the impact
of public participation and political accountability in the
decisionmaking process. In addition, in those cases in which
judicial review is available for particular Executive decisions,
a provision for congressional approval or disapproval would
introduce considerable uncertainty into the carefully structured
relationship between administrative decisionmaking and judicial
review, because the courts would be faced not only with
administrative judgments, based on statutory criteria, but
political judgments of Congress -- judgments courts have been
generally reluctant to review. See, e.g., Perkins V. Lukens
Steel Co., 310 U.S. 113, 130 (1940); Panama Canal Co. V.
Grace Lines, 356 U.S. 309, 318-19 (1958); Kansas City Power
& Light Co. V. McKay, 225 F.2d 924, 930-31 (D.C. Cir. 1955),
cert. denied 350 U.S. 884 (1955).
We see little merit to the argument that has generally
been advanced in support of legislative veto authority --
that such devices are necessary to maintain a proper balance
between the Executive and Congress in the face of the vast
delegation of policymaking power that has accompanied the
phenomenon of modern regulation. Even if the premise were
correct that Congress cannot, through legislation, deal
with the many details of modern regulatory schemes, we
see no reason to believe that Congress's inability to
master detail through the formal legislative process would
disappear if Congress were faced with the task of reviewing
agency rules and the thousands of other Executive Branch
decisions. The review by Congress of detailed rules, policies,
and decisions made on a daily basis by the Executive Branch
may well in practice be avoided for the same reasons that
Congress tends to avoid enactment of detailed legislation,
resulting in Congress's giving piecemeal attention to particu-
larly sensitive or visible decisions, an approach that would
be destructive of the stability and fairness of the laws and
would be vulnerable to special interest political pressure.
This danger has been apparent since the earliest days
of the Republic. In a letter in August 1787 regarding the
proposed structure of the national government, Thomas Jefferson
described the problem in these terms:
Nothing is so embarrassing nor so mischievous,
in a great assembly, as the details of execution.
The smallest trifle of that kind occupies as
- 8 -
long as the most important act of legislation
and takes the place of everything else. Let
any man recollect, or look over, the files of
Congress; he will observe the most important
propositions hanging over, from week to week,
and month to month, till the occasions have past
them, and the thing never done. I have ever
viewed the executive details as the greatest
cause of evil to us, because they in fact place
us as if we had no federal head, by diverting
the attention of that head from great to small
subjects
"
6 T. Jefferson, The Writings of Thomas Jefferson 228 (A. Bergh,
ed. 1903) (letter to E. Carrington, Aug. 4, 1787).
Furthermore, S.J. Res. 135 would authorize legislation
giving one or both Houses the power to veto actions taken by
the President pursuant to statutory power which deeply impli-
cates the President's conduct of the foreign policy of our
Nation. Such power would have the predictable impact of
preventing the President from implementing a coherent foreign
policy that could be depended upon for its consistency, by
friend and foe alike.
Moreover, there is considerable and compelling evidence
that legislative vetoes simply have not served the purposes
for which they were intended, and have, in fact, been counter-
productive. 8/ Rather than fostering more participation. in
the policymaking process by members of Congress, legislative
vetoes have provided Congress with a convenient excuse for
excessive, overly-broad delegations of authority, have
fostered nonaccountable decisionmaking and evasion of poli-
tically controversial decisions by the Legislative Branch,
and have tended to undermine respect for the rule of law in
that Congress may appear to use its authority in an arbitrary
and capricious manner.
The fundamental problem that has given impetus to legis-
lative veto provisions in the past is not that the allocation
of power under our Constitution is skewed in favor of the
8/ See, e.g., American Bar Association Commission on Law and
The Economy, "Federal Regulation: Roads to Reform" (1979)
Antonin Scalia, "The Legislative Veto: A False Remedy for
System Overload" Regulation (November/December 1979).
- 9 -
Executive, but rather that the statutory standards pursuant
to which the Executive Branch -- particularly the regulatory
agencies -- operate are in many cases not well-defined, are
too broad, and provide only limited guidance to the Executive
in its execution and enforcement of the laws. In many cases
Congress has asked the Executive Branch to make basic, vitally
important policy choices that, at least in theory, are more
properly for the legislature to make. This underlying problem
would not in reality be addressed by giving Congress a "second
shot" at reviewing Executive actions through a legislative veto
process; the problem can only be fully addressed by Congress's
giving the Executive Branch clear and precise guidance as to
how, and to what ends, discretion should be exercised.
Finally, we see no compelling need for use of legislative
veto devices to oversee or restrain Executive Branch decisions.
Through Executive Order 12291, the President has been able to
maintain oversight over the process of rulemaking by the non-
independent Executive Branch agencies, both to ensure that the
agencies scrutinize carefully the legal and factual basis for
major rules in order that those rules maximize social benefits
and minimize costs to the extent permitted by law, and to ensure
a consistent, well-reasoned, Administration-wide approach to
policies for which the Executive Branch is responsible. In
addition, there are many effective and fully constitutional
oversight and law-making mechanisms whereby Congress can
carry out its constitutional functions. Particularly in the
domestic area, Congress can limit its need to review the
Executive's execution of the law by placing more specific. and
precise limits on the authority, for example, of agencies to
issue rules. Congress, with participation by the President,
can override unwise, inappropriate, or excessively burdensome
rules or decisions made pursuant to statutorily delegated
authority, by enactment of legislation. The use of expediting
mechanisms for consideration of such legislation could facilitate
speedy review, and would not have to be tied to the legislative
veto devices with which they have so often been associated.
Congress can also adopt- sunset provisions that require agencies
to return to Congress periodicially for reenactment of generic
authority. Congress can hold oversight hearings, at which
members of Congress may demand explanations for Executive
Branch decisions. Congress can adopt resolutions expressing
views, which may not be legally binding upon the Executive
Branch, but which may be useful from a policy standpoint in
the Executive Branch's implementation of the law. Ultimately,
Congress can exercise the power of the purse, through the
appropriations process, to shape Executive action, although
- 10 -
that process should be viewed as one of last resort because
it often bypasses or fails to make maximum use of Congress's
full expertise on a particular issue and it overburdens an
already complex appropriations process.
The Administration is deeply interested in addressing
concerns about the sharing of power within the federal govern-
ment, and the need to improve or reform the process by which
laws are made and executed -- concerns that are not necessarily
new, but that have reemerged in the wake of the Chadha decision.
However, we do not believe that a constitutional amendment to
allow for legislative vetoes would either address those concerns
adequately or would avoid a real danger of paralysis in the
decisionmaking process in both the domestic and foreign affairs
arenas. Even more importantly, we do not believe the Chadha
decision should be the occasion for a fundamental alteration
of the constitutionally mandated legíslative process.
Accordingly, the Department of Justice opposes adoption
of S.J. Res. 135 and transmittal of it to the states for
ratification.
The Office of Management and Budget has advised this Depart-
ment that there is no objection to the submission of this report
to Congress and that it is in accord with the program of the
Administration.
Sincerely,
ROBERT A. McCONNELL
Assistant Attorney General
- 11 -
THE WHITE HOUSE
WASHINGTON
May 7, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Revised Draft OMB Statement
Concerning Legislative Veto
OMB has asked for comments by close of business today on a
revised version of legislative veto testimony to be delivered
on May 10 by Chris DeMuth. The memorandum we prepared
noting several objections to the earlier version of DeMuth's
testimony had not been sent when we received this revised
version. Accordingly, I advised Pat not to send it, in
order that we could send one memorandum on the latest
version.
The only substantive change in the revised version of the
testimony is the last page, which is entirely new. This new
page expresses Administration willingness to work with
Congress in devising a proposal to "gain experience" with
one or more of the legislative veto proposals through a
carefully controlled "test period." The test legislation
must (1) be consistent with Chadha, (2) apply for two years
or less to only a few important and representative agencies,
(3) provide the President an opportunity to "oversee" the
rules promulgated under the proposal, and (4) be drafted in
a way to maximize the lessons from the experiment.
I am not aware that this dramatic addition has been approved
at any level, and I do not think the Administration should
commit to such an experiment without more careful deliberations
by all those affected. As I advised you some time ago,
DeMuth is enamored with the idea of requiring that all major
rules be approved by Congress. He believes this will do
away with judicial review of agency rulemaking, essentially
putting the D.C. Circuit out of business. This sudden
revision, tucked away on the very last page, appears to be
his opening salvo in an effort to establish his position as
that of the Administration. We should object and insist
that the matter be reviewed at the highest levels before the
Administration agrees to DeMuth's "experiment." We should
also reiterate the objections noted in our earlier, unsent
- 2 -
memorandum. The first paragraph in the attached memo for
your signature is new; the remainder has been changed only
so that the page and line references correspond to the
revised version of the testimony.
Attachment
THE WHITE HOUSE
WASHINGTON
May 7, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
signed
by
FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Revised Draft OMB Statement
Concerning Legislative Veto
Counsel's Office has reviewed the above-referenced revised
draft testimony. The principal revision is the addition of
a new concluding paragraph on page 21. That paragraph
expresses Administration support for enactment of one or
more of the post-Chadha regulatory veto proposals on a
limited, experimental basis. I object to the inclusion of
this paragraph in the testimony. Administration support for
such an experiment must be considered at the highest levels
by all affected departments before it can be endorsed. I
for one am not presently persuaded that such an "experiment"
is advisable; the question certainly has not been adequately
debated within the Administration.
In the first full paragraph on page 5, the testimony
dismisses the supposition that the shift of policymaking
authority in the regulatory area to the judiciary is due to
judicial activism. The argument that such activism is in
fact at least one cause of this shift has been advanced
publicly on numerous occasions by Justice Department
officials, most prominently the Attorney General, and the
testimony should not undermine this position. I would
change the second sentence of this paragraph to read as
follows: "This is not only the result of judicial activism
but also a consequence of the increasing economic importance
of regulatory law."
On page 7, lines 7-8, "members of the President's immediate
office" should be changed to "the Office of Management and
Budget. The phrase "the President's immediate office" is
imprecise and would generally suggest something other than
OMB.
On page 9, lines 6-7, the proposed testimony dismisses as
"vain" the hopes that Chadha will compel Congress to act
more responsibly in drafting laws. Again, this is incon-
sistent with previous Administration statements that made
- 2 -
the precise point that is rejected. Furthermore, I do not
consider it accurate to dismiss the hope as unfounded. It
is entirely reasonable to suppose -- certainly to hope --
that Congress will be more circumspect in delegating law-
making authority now that it will not have a ready oppor-
tunity to review agency action in specific cases. This
paragraph should be rewritten to make its point without
altogether dismissing the argument that, as the Attorney
General stated in his press release the day Chadha was
decided, the long-term effect of the decision "will be a
better and more effective Congress as well as a more ef-
fective Presidency."
The first full sentence on page 11 should be deleted.
Presidents have not accepted legislative vetoes; all 11 that
have addressed the issue have expressed the view that they
are unconstitutional. As the Chadha opinion itself makes
clear, Presidents have not "accepted" legislative vetoes in
any legal sense simply by signing bills that contain them.
Because of the Department of Justice's involvement, this
testimony should be reviewed by it as soon as possible.
FFF:JGR:aea 5/7/84
CC: FFFielding/JGRoberts/Subj/Chron
CC: Richard G. Darman
THE WHITE HOUSE
WASHINGTON
May 7, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Revised Draft OMB Statement
Concerning Legislative Veto
Counsel's Office has reviewed the above-referenced revised
draft testimony. The principal revision is the addition of
a new concluding paragraph on page 21. That paragraph
expresses Administration support for enactment of one or
more of the post-Chadha regulatory veto proposals on a
limited, experimental basis. I object to the inclusion of
this paragraph in the testimony. Administration support for
such an experiment must be considered at the highest levels
by all affected departments before it can be endorsed. I
for one am not presently persuaded that such an "experiment"
is advisable; the question certainly has not been adequately
debated within the Administration.
In the first full paragraph on page 5, the testimony
dismisses the supposition that the shift of policymaking
authority in the regulatory area to the judiciary is due to
judicial activism. The argument that such activism is in
fact at least one cause of this shift has been advanced
publicly on numerous occasions by Justice Department
officials, most prominently the Attorney General, and the
testimony should not undermine this position. I would
change the second sentence of this paragraph to read as
follows: "This is not only the result of judicial activism
but also a consequence of the increasing economic importance
of regulatory law."
On page 7, lines 7-8, "members of the President's immediate
office" should be changed to "the Office of Management and
Budget.' The phrase "the President's immediate office" is
imprecise and would generally suggest something other than
OMB.
On page 9, lines 6-7, the proposed testimony dismisses as
"vain" the hopes that Chadha will compel Congress to act
more responsibly in drafting laws. Again, this is incon-
sistent with previous Administration statements that made
- 2 -
the precise point that is rejected. Furthermore, I do not
consider it accurate to dismiss the hope as unfounded. It
is entirely reasonable to suppose -- certainly to hope --
that Congress will be more circumspect in delegating law-
making authority now that it will not have a ready oppor-
tunity to review agency action in specific cases. This
paragraph should be rewritten to make its point without
altogether dismissing the argument that, as the Attorney
General stated in his press release the day Chadha was
decided, the long-term effect of the decision "will be a
better and more effective Congress as well as a. more ef-
fective Presidency."
The first full sentence on page 11 should be deleted.
Presidents have not accepted legislative vetoes; all 11 that
have addressed the issue have expressed the view that they
are unconstitutional. As the Chadha opinion itself makes
clear, Presidents have not "accepted" legislative vetoes in
any legal sense simply by signing bills that contain them.
Because of the Department of Justice's involvement, this
testimony should be reviewed by it as soon as possible.
FFF:JGR:aea 5/7/84
CC: FFFielding/JGRoberts/Subj/Chron
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
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Subject: Revised draft OMB statement
forcuming legislative beto
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to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
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Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF management AND BUDGET
WASHINGTON, D.C. 20503
SPECIAL
May 7, 1984
LEGISLATIVE REFERRAL MEMORANDUM
TO:
LEGISLATIVE LIAISON OFFICER
SEE DISTRIBUTION
SUBJECT: REVISED draft OMB statement concerning legislative veto
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than COB Monday, May 7, 1984
(NOTE: An earlier version of OMB's testimony was circulated 5/2/84. The hearing
is scheduled for May 10, 1984.)
Direct your questions to Branden Blum (395-3802), the legislative
attorney in this office.
James C. Murr for
Assistant Director for
Legislative Reference
Enclosure
CC: B. Bedell
M. Horowitz
F. Fielding
C. DeMuth
E. Strait
K. Wilson
J. Frey
M. Uhlmann
J. Hill
DISTRIBUTION
Department of Agriculture
Department of Commerce
Department of Education
Department of Defense
Department of Labor
Department of Health and Human Services
Department of Housing and Urban Development
Department of State
Department of the Treasury
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Department of the Interior
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Small Business Administration
Office of Personnel Management
General Services Administration
Department of Justice
Federal Emergency Management Agency
United States Postal Service
Central Intelligence Agency
Administrative Conference of the United States
DRAFT (5/4/84)
STATEMENT OF CHRISTOPHER DeMUTH
ADMINISTRATOR FOR INFORMATION AND REGULATORY AFFAIRS
OFFICE OF MANAGEMENT AND BUDGET
BEFORE THE COMMITTEE ON RULES
U.S. HOUSE OF REPRESENTATIVES
ON
LEGISLATIVE VETO
May 10, 1984
Chairman Pepper and members of the Committee:
I appreciate the opportunity to appear before you this
afternoon to discuss the impact of the Supreme Court's decision
in INS V. Chadha on the regulatory process. Before the Court's
decisions last term in Chadha and related cases, the
Administration had opposed on constitutional grounds many
legislative veto provisions and proposals (many of them affecting
Executive branch decisions other than rulemaking). At the same
time, substantial majorities of both Houses of the previous
Congress were on record as favoring some version of legislative
veto over agency rules.
Now that the Court has definitively resolved the
constitutional issue, we are faced with the more direct and
difficult policy issue: Should the President and Congress agree,
through legislation, to procedures that would approximate the
2
defunct legislative vetoes over some or all agency rules, while
avoiding their constitutional pitfalls? Recent "regulatory veto"
proposals 1/ offered by Members of both Houses and both political
parties urge an affirmative response--while differing
significantly on what those procedures should be. Moreover, both
Houses are either considering attaching, or have attached,
specific "regulatory veto" provisions to the authorizations of
individual regulatory agencies.
The Administration has not yet adopted a position on any of
these proposals. Our hesitation regarding the various
across-the-board regulatory veto proposals is not, however, due
to lack of interest. We believe these proposals are of profound
importance, and therefore worthy of the most careful
deliberation.
We are following the Congressional debates with close and
keen interest, and hope to have a more definite position
concerning universal regulatory veto requirements in the near
future. But I do not want to leave the impression that we will
ultimately conclude by supporting some provision. It may well be
that, given existing forms of oversight and the complexities of
adding new, constitutional procedures for Congressional review of
individual rules, a universal regulatory veto requirement is not
1/ I refer to these proposals as "regulatory veto" to distinguish
them from proposals concerning Congressional involvement in
non-regulatory matters such as spending deferrals and the
President's military and foreign policy authorities.
3
the best solution. At the same time, properly constructed
regulatory veto requirements, applicable for specific time limits
to selected agencies, may be suitable on an experimental basis.
This afternoon, I would like to offer three general
considerations which are guiding our own thinking on this issue,
in the hope that they will be useful to you as well.
*****
First, it is important to recognize that the regulatory veto
proposals address a serious and fundamental problem. This is the
increasing use of administrative "rulemaking" to establish
substantive law--a trend that has seriously weakened the
authority and accountability of the two political branches for
major national policies, and has led to an increasing migration
of policy control to the Federal courts.
The growth of the pre-Chadha legislative veto was roughly
coincident with the rise of the large administrative state. Over
the past half-century, Congress has extended the Federal
government's reach into one new territory after another
previously the domain of the states, private markets, or other
voluntary arrangements--highways, education, medical care, the
design of automobiles and other products, pollution abatement,
and SO forth. With Congress injecting the Federal government
4
more and more deeply into private markets and local governance,
Congress has increasingly lacked the resources--chiefly time and
information--to enact into law all of the discrete judgments and
compromises necessary to guide these interventions. As a result,
Congress has increasingly hedged, enacting vague or even
contradictory statutory standards that have effectively
transformed Executive officials (and, derivatively, judges) into
de facto lawmakers.
Cabinet agencies and the so-called independent regulatory
agencies alike have responded to this challenge with a series of
administrative innovations that has demonstrated their relative
versatility in writing detailed and complex laws-and, as a
result, has induced further Congressional lawmaking and
increasing regulatory growth. The most important innovation has
been "informal rulemaking," a technique that subtly combines the
efficiencies of hierarchical, executive decisionmaking with the
key legitimating features of judicial and legislative
decisionmaking--due process and public sanction. The agency
issues a "notice of proposed rulemaking," receives and evaluates
written comments from the public, and then issues a "final rule"
that becomes (with the courts' permission) the law of the land.
The success of informal rulemaking, however, has been
problematic at best. While it has provided a means for
high-volume decisionmaking in the large modern state, it has done
5
so at a very high cost in policy coherence and political
accountability. While the regulatory bureaucracies have never
exactly been "out of control," the locus of that control, and its
relationship to any publicly articulated conception of the
national interest, have been increasingly difficult to discern.
Judicial preoccupation with "due process" has led to an
increasing migration of large areas of policymaking to an
unelected judiciary. This is not, as is often supposed, the
result of the growth of "activist" judicial doctrines among
modern judges; rather it is a direct corollary of the increasing
economic importance of regulatory lawmaking. With freewheeling
discretion delegated to administrative agencies, and with large
stakes riding on the results of their proceedings, private groups
have strong incentives to invest in litigating thoroughly every
conceivable aspect of their decisions--and the courts must attend
to these arguments. The reach of the Judicial branch is not
determined simply by views of appellate judges, but also by the
ingenuity of litigants in devising persuasive arguments within
the context of whatever legal precedents may exist.
There can be little debate that the scope and detail of
judicial review is today of an altogether different order than
Congress envisioned in adopting the "arbitrary, capricious, or
abuse of discretion" standard of the Administrative Procedure Act
of 1946. Indeed, the courts' use of these words today bears no
6
resemblence to their normal, everyday meaning. While everyone,
regardless of political viewpoint, is pleased with some court
decisions under the current standards, it can hardly be said that
the result has been greater agency accountability. This would be
so only if the agencies had been ignoring clear Congressional
mandates until the courts suddenly brought them into line.
Instead, the usual case is that Congress does not issue the clear
mandates in the first place, or else does not foresee the issues
its laws will raise in specific instances--leaving the courts as
well as the agencies adrift regardless of the "strictness" of
judicial review.
The general public acceptance of judicial policymaking has
been much remarked upon. One reason for this acceptance is
surely that the political legitimacy afforded agency rules by
public notice-and-comment procedures is itself such a thin
substitute for lawmaking by two representative majorities plus
the President. Indeed, the rulemaking process is inherently far
less representative than the constititional lawmaking procedures
for which it substitutes. Rulemaking proceedings are closely
attended only by organized groups with immediate stakes in the
decisions. Their arguments, of course, are usually couched in
terms of the broad public interest. But in fact the interests of
organized lobbying groups frequently conflict with the general
public interest--whether this interest is defined by a vote of
the Congress or suggested by the conclusions of an economic
7
cost-benefit analysis.
The legislative veto has been, of course, just one of a
variety of devices developed to increase the accountability of
the regulatory bureaucracies. Presidents Ford, Carter, and
Reagan have issued increasingly explicit Executive orders
requiring agencies to assess the benefits and costs of their
rules and to consult with members of the President's immediate
office. President Reagan's Executive Order 12291 requires
regulatory agencies, to the extent permitted by statute, to
fashion rules that will produce the greatest net social benefits;
it seeks to guide administrative discretion towards decisions
that are in the broadest public interest--which may, as I have
said, be different than the interest of any notice-and-comment
petitioner. The Order further directs agencies to report on
their proposed and final rules to the Office of Management and
Budget, and thus seeks to increase the accountability of the
regulatory process by ensuring that individual rules are in
harmony with the President's policies.
The pre-Chadha legislative vetoes put the legislative branch
directly "in the loop" of Executive branch decisions, and thus
made Congress, at least in theory, more accountable to the public
for agency actions. Although these were the Congress' most
conspicuous response to the problems of galloping
lawmaking-by-rulemaking, they were not Congress' only response.
8
In fact, they were of much less practical significance than other
forms of Congressional influence. Legislative vetoes of agency
rules were exercised on only a few occasions. When Congress was
strongly opposed to a regulatory decision, it was more likely to
override that decision by statute, as in the cases of the
saccharin ban and the automobile seatbelt-ignition interlock
rule. In some cases where vetoes were exercised, as in the 1982
override of the FTC's used-car labelling rule (nullified by the
Supreme Court shortly after Chadha), a statutory override with
the President's signature was probably available. And
appropriations riders barring or directing agency action have
come into increasing use in recent years. They have (I am sorry
to say!) been used or threatened on a number of occasions to
prevent the Reagan Administration from undertaking important
regulatory reforms.
On a day-to-day basis, however, the most important tools of
Congressional influence over Executive policymaking have been the
long-established informal ones: the growth of committee, and
subcommittee staffs working intimately with agency staffs and
private groups; increasingly frequent oversight hearings; and the
constant process of dialogue, negotiation, and compromise between
Executive officials and committee chairmen and other
Congressional leaders. And Congress has utilized several large
institutions to help it with the details of these efforts--the
Congressional Budget Office; the General Accounting Office, and
9
the Office of Technology Assessment.
Many observers have expressed the hope that Congress will
respond to the challenge of Chadha by becoming "more
responsible" by writing "better" laws that make the tough policy
choices Congress avoided by relying on legislative veto
provisions instead. The analysis above suggests that this is a
vain hope. The problem of modern lawmaking is not a matter of
legislators avoiding their responsibility. It is rather an
institutional problem, inherent in the size and ambitions of
today's Federal government and the intentional, incorrigibly (and
intentionally) ponderous nature of legislative decisionmaking.
The Congress remains a diverse, collegial body of individuals
representing a wide variety of differing and often conflicting
interests and viewpoints. Congress is best suited to making
broad decisions requiring the achievement of a consensus. So
long as Congress feels that it is under such great pressure to
write and finance so many laws, it is unlikely to write "better"
and even more detailed laws that, through statutory language,
reclaim substantial lawmaking authority from the Executive
branch.
The Congressional advocates of the new, post-Chadha
regulatory veto procedures clearly recognize this dilemma. They
also recognize that, for purposes of practical impact and
accountability to the public, there is no substitute for having
10
Congress stand 'up and be counted on a concrete proposition--not
whether one is for or against clean air or for or against cancer,
but whether one is for or against a specific level of control for
a specific pollutant, or for or against banning a specific
product. What remains to be determined is whether the regulatory
veto advocates have identified not only the correct problem but a
workable solution as well.
*
My second point is that the Chadha decision has a major
effect on the regulatory veto debate. On occasion, proponents of
one or another regulatory veto device have claimed that their new
approach would be functionally equivalent to the pre-Chadha
legislative vetoes--implying that the Supreme Court's holding was
an academic and punctilious exercise easily avoided by practical
men. It is important to recognize that these claims are
incorrect: the principle that Congress may make policy only by
making law as specified in Article I of the Constitution changes
fundamentally the procedures now available for vetoing agency
rules. These changes could affect the positions of those on both
sides of the pre-Chadha legislative veto debate.
Pre-Chadha, there were à variety of institutional reasons why
11
legislative veto procedures were enacted. Presidents
occasionally accepted them to induce broader grants of authority
from Congress. Members of the House and Senate supported them to
counterbalance broad statutory standards with greater influence
over Executive interpretation and implementation. Members of the
House supported them to share in regulatory influence provided
the Senate by the confirmation process. Authorizing committees
supported them to counterbalance the power of appropriations
committees. Junior members supported them to equalize power held
by authorizing committee chairmen. Program opponents supported
them to dilute the power of program advocates. The House and the
Senate supported them as a check upon the other body.
Under Chadha, however, the variety of veto procedures has
been narrowed, and so have the possible motivations for
E
supporting them. To see this, consider the two paradigmatic
regulatory veto mechanisms now available. Under one
procedure--"statutory, disapproval" a law would provide that
agency rules could go into effect only after a "report-and-wait"
period, and that Congress could disapprove rules by joint
resolution before the end of the period. Except for the
procedures involved, this would be little different from the
status quo, since Congress can always override a regulation by
statute.
Under the second procedure--"statutory approval a law would
12
provide that agency rules could go into effect only after a
"report-and-wait" period, and then only if Congress had approved
the rule by joint resolution before the end of the period. This
would be a considerable change from the status quo, and would
permit a simple majority of either House to "veto" any agency
"rule" which would no longer be a rule in the traditional sense
but rather a proposal to enact legislation. This regulatory veto
would "solve" the regulatory problem by virtually abolishing
regulation itself, converting rules into statutes and regulatory
agencies into proposers of legislation; it would also flood
Congress with thousands of minute decisions that could bring the
legislative process as well to a screeching halt.
Of course, the major proposals to establish a regulatory veto
would modify these pure approval or disapproval procedures. The
proposal sponsored by Senators Levin and Boren adopts the
statutory disapproval approach--but features expediting
procedures to move disapproval resolutions promptly to the floors
for votes of the entire Houses without delay by committees or
subcommittees. The authorizing committees are often champions of
"their" agencies' programs, and can--through scheduling and other
devices--block. By making program implementation more often
subject to votes by floor majorities, the expediting procedures
could make regulatory programs more responsive to majority
sentiment. The proposal sponsored by Senator Grassley and
Congressman Lott adopts the statutory approval approach (with
13
expediting procedures) but only for "major" rules (fifty or
sixty a year), leaving the large majority of less significant
rules covered by a statutory disapproval procedure similar to
that in Levin-Boren.
Both of these proposals would give Congress greater
responsibility and purport to make Congress more accountable to
the public for Federal regulations. To the extent they do so,
however, it is at a cost: both would place new administrative
burdens on the Congress, and both would limit Congress' ability
to pick and choose among the issues that may come before it. And
there are two other, fundamental respects in which they would
differ from the pre-Chadha legislative vetoes, both arising from
the requirement that Congress must act jointly (between the two
Houses always, and with the President unless his veto is
overridden).
First, the President could "veto the veto" under the
Levin-Boren procedure. If the President favors a rule issued by
agencies, and vetoes a joint resolution presented to him which
would disapprove it, a two-thirds majority in both Houses would
be required to override his veto. On the other hand, the
Grassley-Lott approach for "major" rules is closer to a one-House
simple majority veto. Either House could refuse to enact into
law a proposed major regulation by not approving the joint
resolution of approval. Note that there is constitutional form
14
of the pre-Chadha two-house legislative veto. That the currently
available forms are extreme ones--one-House simple/majority
versus two-House supermajority--may make it more difficult to
forge a majority consensus behind any regulatory veto.
The second difference is that the President's role in the
legislative process could change significantly. Under
Grassley-Lott, once a major rule is proposed, at least one House
will be obliged to vote on it; if the first House to vote
approves, the other House will then be obliged to vote as well.
This stronger form of regulatory veto risks the current
prerogatives of both the Executive and Legislative branches. The
Executive would be obliged to persuade -a majority of both Houses
to put a proposed major new regulation into effect, or to make
major change in an existing regulation. But, at the same time,
the Congress would lose some control over its calendar, and could
not avoid voting on controversial issues it might prefer to avoid
or delay. The President would be able to determine, several
times each session, when and in what context Congress would have
to stand up and be counted.
These are not arguments against the regulatory veto. They
merely emphasize that, with the options properly limited by
Chadha, we are faced with very different dynamics for
Congressional and Executive review. No constitutional regulatory
veto could simply augment the power of one political branch at
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the expense of 'the other, so adopting one would involve risks and
demand statesmanship at both ends of Pennsylvania Avenue. The
new procedure also would affect the Judiciary. Indeed, to the
extent agency rules were adopted as statutory law, the courts
could be removed altogether from review except on constitutional
grounds.
My third point is that there are strong and serious arguments
on all sides of the issues raised by the proposed regulatory veto
devices. For each of these issues, we will need to weigh how the
details of each regulatory veto proposal will affect the function
and authority of each branch and its accountability to the
public--and, most importantly, whether one of them will improve
government operations.
1. Administrative Burdens for Congress. The opponents of
regulatory veto proposals have good cause for concern over the
potential volume and technical detail of the issues that would be
coming into the Congress. These could require a great deal of
time and attention under any of the regulatory veto proposals.
Grassley-Lott in particular would entail a substantial increase
in Congressional workload. Under Executive Order 12291, OMB
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reviews 40 to 50 "major" (over $100 million in impact) final
rules and about 1,500 "non-major" final rules a year.2/ OMB does
not review the rules of most "independent" regulatory agencies,
which could involve an additional dozen "major" rules each year.
Neither does OMB review most of the rules issued by the Internal
Revenue Service.
To place this in context, over the past ten years, Congresses
have passed about 200 public laws in the first session and; 400
public laws in the second. Adding to Congress' annual
legislative calendar 60 or more joint resolutions to affirm major
regulations, plus an unknown number of regulatory disapprovals,
could increase the number of legislative transactions considered
by Congress from 10% to more than 25%.
2. Executive Accountability. Although the President and
officials of the Executive Branch must work closely with
Congress, there can be only one Executive. The President, like
Congress, is accountable to the public. With so much execution
of Federal law taking place through regulation, traditional
Executive oversight mechanisms--budget and accounting
controls--no longer suffice, and have been supplemented in recent
by regulatory oversight procedures (currently under Executive
2/ To illustrate the possible impact of the Grassley-Lott
proposal, I am attaching a listing of 125 major final rules
reviewed under Executive Order 12291 during 1981-83, which
provides a brief explanation of each rule and a summary of any
court challenges.
17
Order 12291). Any reform of the rulemaking process acceptable to
the President must provide the President--the official charged by
the Constitution to see to the execution of the laws of the
United States--the means to coordinate and direct executive
policymaking, including rulemaking.
Yet regulatory veto procedures could seek to limit Executive
authority over the regulatory agencies. Agency regulatory
management and staff may, even more than now, perform a balancing
act between Congressional interests and the President's.
Requiring agencies to forge new lines of responsibility to the
Congress could threaten the ability of the President to fulfill
his responsibilities as the Federal government's Chief Executive.
3. Judicial Review. A public law, unlike a regulation, is
not subject to review under the Administrative Procedure Act.
Unless constitutional considerations require otherwise, a law--in
contrast to an agency rule--cannot be overturned by a court on
the grounds of having been created in an "arbitrary and
capricious" manner.
The effect upon subsequent judicial review of a joint
resolution approving--or even disapproving- a regulation is a
matter that must be squarely addressed. We are unaware of any
experience with requirements that rules take effect only if
approved by a joint resolution, and do not know what effect such
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a procedure might have on judicial review. Similarly, we do not
have experience with joint resolutions of disapprovals of agency
rules that are passed by Congress but are not signed by the
President. Both of these possibilities are presented by the
proposed regulatory veto provisions. Unfortunately, this absence
of experience further compounds the difficulty of assessing with
confidence appropriate mechanisms for a regulatory veto.
The statutes providing for a regulatory veto could provide
that the effect of a joint resolution of approval is to preclude
further judicial consideration of the rule, except, of course,
for constitutional challenges. This would treat an "approved"
rule like a statute. At the other extreme, the statute could
provide that Congressional and Presidential approval has no
effect on subsequent judicial review--that a rule so approved
could then be overturned by a court for record inadequacies,
procedural defects, or on any other ground provided by the
Administrative Procedure Act or authorizing statute. A question
worth deep reflection is whether the courts would fee comfortable
doing this--or, if they did, the procedure would be
constitutionally appropriate. These questions must be addressed
in developing any regulatory veto statute.
4. Agency Efficiency. Just as the regulatory veto process
should not stymie Congress in its other legislative work, it
should not stymie the ability of agencies to implement existing
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statutes. Any regulatory veto mechanism should contain emergency
procedures allowing agencies to take prompt and lasting agency
regulatory action, without the necessity of prior Congressional
review. Any provision authorizing legislative veto must also
state how changes to rules approved by a joint resolution can be
altered by subsequent agency action. Must minor changes to such
a rule also be approved by a joint resolution?
5. Scope. A statute establishing a joint resolution
procedure either to disapprove or approve a regulation needs to
define the regulatory statutes to which it will apply. Some
existing proposals limit Congressional review to rules issued
through the informal rulemaking provisions of the APA. However,
rulemaking to implement certain regulatory statutes are not
clearly subject to the APA and may not, therefore, be subject to
the current regulatory veto bills. This includes most rules
under the Clean Air Act, and possibly the hybrid rulemaking
procedures of the Consumer Produce Safety Commission and the
Federal Trade Commission. It is not only necessary to determine
which agencies should be subject to the legislative veto
mechanism, but also which statutes administered by those agencies
should be.
6. Procedures and Review Periods. The administrative
details of the regulatory veto bills are also important, and can
seriously affect whether or not the proposal would work. Both
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the major proposals would amend the Rules of the House and the
Senate to expedite regulatory reviews. They set time limits for
committee review of each joint resolution; provide procedures for
discharge of each joint resolution and for floor consideration;
make the joint resolutions highly privileged--not subject to
amendment and subject to limited times for debate. The agency's
maximum "report-and-wait" period would be 90 days of continuous
session of Congress. This would mean that, if an agency
submitted a proposed rule to Congress after the middle of May
this year, the 90 days of continuous session as defined in the
bills could run out by adjournment.
*****
In summary, then, the Congressional advocates of regulatory
review procedures believe that Congress must stand up and be
counted on specific regulatory proposals. It is also clear,
however, that any new, post-Chadha regulatory veto procedure
presents some very different dynamics for Congressional and
Executive relationships. The details of these new procedures may
increase administrative burdens for Congress, affect Executive
accountability, change the reach of judicial review, and affect
agency efficiency.
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The Administration agrees that the problems sought to be
addressed by the various regulatory veto procedures are very
important. And yet there are many uncertainties with these new
proposals. The consequences of misjudging the effect of one of
these proposals could be severe. We may need to gain experience
with one or more of these proposals through a carefully
controlled test period. We could agree to work with Congress to
devise such a proposal, with four conditions. First, any such
procedures must be consistent with the Chadha decision. Second,
the procedures should be applicable to the regulations issued by
only a few important and representative rulemaking agencies, and
should be strictly limited in time--a maximum of two years.
Third, the Chief Executive-- the President--should be provided the
means to coordinate and oversee the rules promulgated under these
procedures. And fourth, the legislation to do this should be
written in a manner to maximize the chances of knowing after the
test period whether the procedures have been an improvement. We
would look forward to working with you in the development of such
legislation.
Mr. Chairman, thank you for the opportunity to present these
views.