Legislative Veto

Author:Louis Fisher

Page 1599

The legislative veto emerged in the 1930s as an effort to reconcile two conflicting needs. Executive officials sought greater discretionary authority, while Congress wanted to retain control over delegated authority without having to adopt new legislation for that purpose. The resulting accommodation permitted administrators to submit proposals that would become law unless Congress acted to disapprove by simple resolution (a one-house veto) or concurrent resolution (a two-house veto). Evolving forms of the legislative veto came to include requirements of congressional approval as well as opportunities for disapproval; Congress even vested some of the controls in its committees.

Although the legislative veto acquired a reputation as a congressional usurpation of executive power, initially the device favored the President. In 1932 Congress authorized President HERBERT C. HOOVER to reorganize the executive branch. His plans would become law within sixty days unless either house disapproved. The President did not have to secure the support of both houses, as would have been necessary through the regular legislative process. Instead, the burden was placed on Congress to veto his initiatives. Furthermore, to prevent presidential proposals from being buried in committee, filibustered, or changed by Congress, the law limited each opportunity for legislative veto by rules for discharging committees, restricting congressional debate, and prohibiting committee or floor amendments.

The executive branch began to view the legislative veto apprehensively when Congress attached it to statutes governing such important subjects as lend lease, IMMIGRATION, public works, energy, IMPOUNDMENT, federal salaries, foreign trade, and the WAR POWERS. As part of the congressional reassertion after the VIETNAM WAR and WATERGATE, legislative vetoes proliferated in the 1970s. By the late 1970s, Congress seemed on the verge of subjecting every federal regulation to some form of legislative veto.

The lower federal courts upheld some legislative vetoes and invalidated others, but carefully restricted their opinions to the particular statutes challenged. In 1982, however, the UNITED STATES COURT OF APPEALS for the District of Columbia Circuit struck down three laws on such broad grounds as to cast a shadow of illegality over every type of legislative veto. The Supreme Court adopted this comprehensive approach in IMMIGRATION AND NATURALIZATION SERVICE V. CHADHA (1983), invalidating the...

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