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ArtI.S7.C2.4 Legislative Veto

Article I, Section 7, Clause 2:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Beginning in the 1930s, Congress embraced a new use for concurrent resolutions (resolutions by both Houses of Congress) and simple resolutions (resolutions by a single Chamber), invoking them to terminate powers delegated to the President or to disapprove particular exercises of power by the President or the President’s agents. The “legislative veto” or “congressional veto” first developed in the context of the delegation to the Executive of power to reorganize governmental agencies,1 and expanded in response to national security and foreign affairs considerations immediately prior to and during World War II.2 At first, Congress applied veto provisions to certain actions taken by the President or another Executive officer—such as the reorganization of an agency, changes to tariff rates, or the disposal of federal property. However, Congress later expanded the device to give itself power to negate regulations issued by Executive Branch agencies, and proposals were made to allow Congress to negate all regulations of Executive Branch independent agencies.3 The proliferation of congressional veto provisions raised a series of interrelated constitutional questions.4

101-256, 101
st Cong., 2d sess. (1991), 907–1054. Justice Byron 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.

In the 1983 case INS v. Chadha, the Court held a one-House congressional veto to be unconstitutional as violating both the bicameralism principles reflected in Article I, Sections 1 and 7, and the presentment provisions of Section 7, Clauses 2 and 3.5 The veto provision in question, Section 244(c)(2) of the Immigration and Nationality Act, 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.

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. The Court explained that whether actions taken by either House are “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.’” 6 The Court concluded that the action before it “was essentially legislative” 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.” 7

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 and to provide advice and consent to Executive appointments and treaties; similarly, the Congress may propose a constitutional amendment without the President’s approval, and each House is given autonomy over certain “internal matters” such as 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.” 8

While Chadha involved a single-House veto, the Court’s analysis of the presentment issue made clear that two-House veto provisions and committee veto provisions suffer the same constitutional infirmity as the law at issue in that case.9 Justice Byron White, dissenting in Chadha, asserted that the Court had “sound[ed] the death knell for nearly 200 other statutory provisions in which Congress has reserved a ‘legislative veto.’” 10 The breadth of the Court’s ruling in Chadha was evidenced in its 1986 decision in Bowsher v. Synar.11 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. The Court explained that “Chadha makes clear” that “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.” 12

Since 1983, Congress has employed various devices other than the legislative veto, such as “report and wait” provisions and requirements for certain consultative steps before action may be undertaken.13 Chada has, however, restricted efforts in Congress to confine the discretion it delegates to the Executive Branch.

Act of June 30, 1932, § 407, 47 Stat. 414. back
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. back
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). back
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 subsequent listing, in light of the Supreme Court’s ruling, is contained in H. Doc. No.
101-256, 101
st Cong., 2d sess. (1991), 907–1054. Justice Byron 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. back
462 U.S. 919 (1983). back
Id. at 952. back
Id. back
Id. at 955–56. back
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). back
Chadha, 462 U.S. at 967 (White, J., dissenting). back
478 U.S. 714 (1986). See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991). back
Id. at 733. This position was developed at greater length in the concurring opinion of Justice John Paul Stevens. Id. at 736. back
A “report and wait” provision requires that new rule-making be reported to Congress before it takes effect. It does not allow Congress to veto a rule unilaterally, but instead gives Congress the opportunity to enact new legislation through the ordinary legislative process to block or alter the rule. The Court has upheld a “report and wait” provision that allowed for congressional rule of new court procedural rules. Sibbach v. Wilson, 312 U.S. 1 (1941); see also Chadha, 462 U.S. at 935 n.9 (citing Sibbach). back