The legislative veto in times of political reversal: Chadha and the 104th Congress.

Summary

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Legislative vetoes are noticeably absent from major legislation including the Contract with America Advancement Act of 1996, possibly as a result of the 1983 Chadha decision. Instead, this and other laws have employed the 'joint resolution of disapproval' in order to effectuate legislative oversight. This mechanism allows Congress a sixty day period to disapprove through a joint resolution before a regulation takes effect. Thus, Chadha effectively disallowed use of the legislative veto.

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Extract

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The legislative veto in times of political reversal: Chadha and the 104th Congress.

More than a decade after it was decided, the Supreme Court's decision in INS v. Chadha(1) had perhaps its greatest impact. The impact is seen in the absence of a legislative veto from the Contract With America Advancement Act of 1996.(2) The Act provides for congressional review of agency rulemaking, but not by a legislative veto. The mechanism is a "joint resolution of disapproval," that is, a resolution that requires approval by both houses and presentment to the President.(3) This provision applies to all major rules by all agencies; rules cannot take effect for sixty days after they are issued, during which time Congress has the opportunity to pass the joint resolution.

The reason Congress opted for a "joint resolution of disapproval," of course, is that Chadha forecloses the preferable alternative. Had Chadha come out the other way, the new law would have contained an across-the-board legislative veto provision rather than the across-the-board joint resolution of disapproval.(4) Imagining a one-house legislative veto wielded against agency rules by today's Congress highlights a largely overlooked aspect of the veto and shows why Chadha was rightly decided.

The arguments for and against the legislative veto, and the meta-arguments about styles of constitutional interpretation and the role of the courts, are now old friends. But just like human friends, these familiar companions can look quite different when the setting in which the friendship arose changes. Recent events might make us wonder how well we really know the legislative veto. In this article, I reconsider Chadha in light of the transformation of the national political scene worked by the 1992 and 1994 elections.

Using the example of the 104th Congress's failed regulatory reform proposals, this article imagines how the legislative veto would operate if wielded by today's Congress against rulemaking proposals from today's agencies. This discussion shows that the veto can undermine rather than preserve the Constitution's basic allocation of authority. After decades of almost uninterrupted Republican control of the White House and Democratic control of Congress, 1994 saw the election of an aggressive Congress controlled by what for decades had been the minority party, but still with significant policy divergences between House and Senate, close on the heels of a change of party in the White House. This alignment highlights the fear that the legislative veto would be used in ways inconsistent with decisions made by a prior Congress...

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