The Legislative Veto.
Beginning in the 1930s, the concur- rent resolution (as well as the simple resolution) was put to a new use—serving as the instrument to terminate powers delegated to the Chief Executive or to disapprove particular exercises of power by him or his agents. The “legislative veto” or “congressional veto” was first developed in context of the delegation to the Executive of power to reorganize governmental agencies,519 and was really furthered by the necessities of providing for national security and foreign affairs immediately prior to and during World War II.520 The proliferation of “congressional veto” provisions in legislation over the years raised a series of interrelated constitutional questions.521 Congress until relatively recently had applied the veto provisions to some action taken by the President or another executive officer—such as a reorganization of an agency, the lowering or raising of tariff rates, the disposal of federal property—then began expanding the device to give itself a negative over regulations issued by executive branch agencies, and proposals were made to give Congress a negative over all regulations issued by executive branch independent agencies.522
In INS v. Chadha,523 the Court held a one-House congressional veto to be unconstitutional as violating both the bicameralism principles reflected in Art. I, §§ 1 and 7, and the presentment provisions of § 7, cl. 2 and 3. The provision in question was § 244(c)(2) of the Immigration and Nationality Act, which authorized either house of Congress by resolution to veto the decision of the Attorney General to allow a particular deportable alien to remain in the country. The Court’s analysis of the presentment issue made clear, however, that two-House veto provisions, despite their compliance with bicameralism, and committee veto provisions suffer the same constitutional infirmity.524 In the words of dissenting Justice White, the Court in Chadha “sound[ed] the death knell for nearly 200 other statutory provisions in which Congress has reserved a ‘legislative veto.’ ”525
In determining that veto of the Attorney General’s decision on suspension of deportation was a legislative action requiring presentment to the President for approval or veto, the Court set forth the general standard. “Whether actions taken by either House are, in law and in fact, an exercise of legislative power depends not on their form but upon ‘whether they contain matter which is properly to be regarded as legislative in its character and effect.’ [T]he action taken here . . . was essentially legislative,” the Court concluded, because “it had the purpose and effect of altering the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the legislative branch.”526
The other major component of the Court’s reasoning in Chadha stemmed from its reading of the Constitution as making only “explicit and unambiguous” exceptions to the bicameralism and presentment requirements. Thus the House alone was given power of impeachment, and the Senate alone was given power to convict upon impeachment, to advise and consent to executive appointments, and to advise and consent to treaties; similarly, the Congress may propose a constitutional amendment without the President’s approval, and each House is given autonomy over certain “internal matters,” e.g., judging the qualifications of its members. By implication then, exercises of legislative power not falling within any of these “narrow, explicit, and separately justified” exceptions must conform to the prescribed procedures: “passage by a majority of both Houses and presentment to the President.”527
The breadth of the Court’s ruling in Chadha was evidenced in its 1986 decision in Bowsher v. Synar.528 Among that case’s rationales for holding the Deficit Control Act unconstitutional was that Congress had, in effect, retained control over executive action in a manner resembling a congressional veto. “[A]s Chadha makes clear, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly—by passing new legislation.”529 Congress had offended this principle by retaining removal authority over the Comptroller General, charged with executing important aspects of the Budget Act.
That Chadha does not spell the end of some forms of the legislative veto is evident from events since 1983, which have seen the enactment of various devices, such as “report and wait” provisions and requirements for various consultative steps before action may be undertaken. But the decision has stymied the efforts in Congress to confine the discretion it confers through delegation by giving it a method of reviewing and if necessary voiding actions and rules promulgated after delegations.
- Act of June 30, 1932, § 407, 47 Stat. 414.
- See, e.g., Lend Lease Act of March 11, 1941, 55 Stat. 31; First War Powers Act of December 18, 1941, 55 Stat. 838; Emergency Price Control Act of January 30, 1942, 56 Stat. 23; Stabilization Act of October 2, 1942, 56 Stat. 765; War Labor Disputes Act of June 25, 1943, 57 Stat. 163, all providing that the powers granted to the President should come to an end upon adoption of concurrent resolutions to that effect.
- From 1932 to 1983, by one count, nearly 300 separate provisions giving Congress power to halt or overturn executive action had been passed in nearly 200 acts; substantially more than half of these had been enacted since 1970. A partial listing was included in The Constitution, Jefferson’s Manual and Rules of the House of Representatives, H. Doc. No. 96–398, 96th Congress, 2d Sess. (1981), 731–922. A more up-to-date listing, in light of the Supreme Court’s ruling, is contained in H. Doc. No. 101–256, 101st Cong., 2d sess. (1991), 907–1054. Justice White’s dissent in INS v. Chadha, 462 U.S. 919, 968–974, 1003–1013 (1983), describes and lists many kinds of such vetoes. The types of provisions varied widely. Many required congressional approval before an executive action took effect, but more commonly they provided for a negative upon executive action, by concurrent resolution of both Houses, by resolution of only one House, or even by a committee of one House.
- A bill providing for this failed to receive the two-thirds vote required to pass under suspension of the rules by only three votes in the 94th Congress. H.R. 12048, 94th Congress, 2d sess. See H. REP. NO. 94–1014, 94th Congress, 2d sess. (1976), and 122 CONG. REC. 31615–641, 31668. Considered extensively in the 95th and 96th Congresses, similar bills were not adopted. See Regulatory Reform and Congressional Review of Agency Rules: Hearings Before the Subcommittee on Rules of the House of the House Rules Committee, 96th Congress, 1st sess. (1979); Regulatory Reform Legislation: Hearings Before the Senate Committee on Governmental Affairs, 96th Congress, 1st sess. (1979).
- 462 U.S. 919 (1983).
- Shortly after deciding Chadha, the Court removed any doubts on this score with summary affirmance of an appeals court’s invalidation of a two-House veto in Consumers Union v. FTC, 691 F.2d 575 (D.C. Cir. 1982), aff’d sub nom. Process Gas Consumers Group v. Consumer Energy Council, 463 U.S. 1216 (1983). Prior to Chadha, an appellate court in AFGE v. Pierce, 697 F.2d 303 (D.C. Cir. 1982), had voided a form of committee veto, a provision prohibiting the availability of certain funds for a particular purpose without the prior approval of the Committees on Appropriations.
- Chadha, 462 U.S. at 967. Justice Powell concurred separately, asserting that Congress had violated separation of powers principles by assuming a judicial function in determining that a particular individual should be deported. Justice Powell therefore found it unnecessary to express his view on “the broader question of whether legislative vetoes are invalid under the Presentment Clauses.” Id. at 959.
- 462 U.S. at 952 (citation omitted).
- 462 U.S. at 955–56.
- 478 U.S. 714 (1986). See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).
- Bowsher v. Synar, 478 U.S. 714, 733 (1986). This position was developed at greater length in the concurring opinion of Justice Stevens. Id. at 736.