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

AuthorHerz, Michael

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 -- in other words, to alter rather than to preserve the status quo, and to do so in a way that Congress could not do through constitutionally prescribed procedures. It is this largely overlooked aspect of the operation of the legislative veto that I explore below.(5)

  1. FROM DIRECT TO INDIRECT REGULATORY REFORM

    High on the 104th Congress's agenda upon its arrival in Washington was "regulatory reform." This umbrella phrase covers a variety of deregulatory initiatives, growing out of the Contract With America. In particular, Republican proposals would impose an across-the-board cost-benefit analysis requirement on all major agency rulemakings. The cost-benefit analysis would ill turn rest on risk assessments carried out according to detailed congressional instructions.(6) To an uncertain degree, these requirements (like, but more forcefully than, the requirements of Executive Orders 12,291 and 12,866) would "supplement" (in the case of the Senate bill) or "supersede" (in the case of the House bill) existing statutes' treatment of costs and benefits.(7) These proposals reflected the Republican Congress's determination to relieve the regulatory burden on American business and to undo what it perceived as the excesses of Congresses past. These would not have been minor mid-course corrections but a fundamental shift in regulatory policy. The project was sufficiently sweeping to have set scholars to talking about Ackermanian constitutional moments.(8) In addition to the substantive provisions, the regulatory reform bills in the 104th Congress also included the "joint resolution of disapproval" mechanism for congressional review of major rules.(9) This was hardly surprising. Congress ought to have been concerned about the enthusiasm or good faith with which agencies would implement the new cost-benefit and risk analysis requirements. These would be significant substantive changes that career staffers might resent, and they reflect a Republican agenda toward which the political appointees in a Democratic administration would be hostile. It would make perfect sense for Congress to enforce the changes through such oversight.

    Whatever their merits, the regulatory reform bills had mixed success in the 104th Congress. H.R. 1022 passed quickly and painlessly. However, its Senate counterparts became hopelessly stalled, in part because of a lack of equal fervor in the Senate, and in part because of the threat of a presidential veto. By late summer of 1995 they had been given up for dead.(10)

    Now imagine a fictional scenario based on these events. Suppose Chadha had come out the other way. It seems almost certain that the regulatory reform bills would then have contained at least a two-house legislative veto, and possibly the one-house version. From the Republicans' point of view, the joint resolution of disapproval is vastly inferior, because the President is unlikely to sign a resolution disapproving regulations from his own agencies, and the Republicans in Congress lack the two-thirds majority necessary to override a veto. So a legislative veto in the regulatory reform bills would sound good to the Republican leadership. But what might sound even better, especially in light of the hard sledding that the proposals actually encountered, would be to enact an across-the-board legislative veto provision, not as part of but instead of the regulatory reform bill.(11) Such a measure would be easier to get through Congress (which will always be in favor of enhancing its authority) and no harder to get by the President; it might also accomplish much of what was hoped from the regulatory reform proposals.

    In reality, this imaginary scenario is exactly what happened -- to the extent permissible by Chadha. Faced with the failure of the direct, substantive effort, Congress carved out the congressional review provisions from the regulatory reform bills and enacted them as part of the Contract with America Advancement Act. Indeed, as is implied by the title of the bill in which they were finally included, these provisions were close to Republicans' hearts. They were included in a number of separate bills and ultimately passed the Senate at least four times and the House at least twice.(12) The anti-regulatory members were enthusiastic and hopeful that the new procedures would have real substantive impact.(13)

    The actual potency of the joint resolution of disapproval remains to be seen. What is certain, however, is that a legislative veto, and in particular a one-house veto, would have been a drastically more powerful (and, for the reasons discussed below, problematic) tool to the same end. Requiring presidential approval (or a two-thirds majority vote to override) is hardly a formality. And if the House of Representatives, which easily passed its ambitious version of the regulatory reform proposals, could exercise a one-house veto on its own, it would surely do so.

    The potency of the legislative veto is not in itself a problem. The point is that given the current political alignment -- a newly Democratic White House, Republican Senate, and more strident Republican House -- Congress could wield the veto to ensure substantive policy consistent with its radical, but unenacted and unenactable, regulatory goals. Unable to amend the health-at-any-cost statutes of the 1970s, Congress might yet, in this quiet, indirect way,(14) achieve much of the substantive agenda it could not accomplish loudly and directly. Correcting the excesses of Congresses past is, of course, exactly what new Congresses are supposed to do. But they can do so only via the same constitutionally prescribed procedures that produced the excesses in the first place.

  2. THE LEGISLATIVE VETO AND REVIEW OF AGENCY DECISIONMAKING

    The basic justification for the legislative veto is as a mechanism for protecting congressional authority against executive encroachment. Congress having given away the store, the legislative veto counteracts the growth of executive power -- indeed, its genesis was as a means for allowing massive concessions of authority to the executive(15) -- and so merely retains some semblance of the constitutional allocation of policymaking authority to the democratically accountable legislature.(16) This retention of congressional authority argument can take two forms, not always carefully distinguished. On the one hand, the legislative veto can prevent agency initiatives the current Congress deems inappropriate but which are within the bounds of a sweeping delegation of power to the executive. These circumstances involve what is really agency legislation. On the other, the veto is defended as a means of preventing agency decisions that are inconsistent with the congressional delegation -- "[a] device to weed out agency action that [Congress] view[s] as inconsistent with its mandates."(17) In this setting, the veto protects not overall congressional authority but particular congressional decisions. These situations are ones in which the agency's power is more truly executive rather than legislative.(18)

    Opponents of the legislative veto offer two basic arguments for its unconstitutionality. One is the formalist argument to which Chief Justice Burger devoted most of his opinion in Chadha itself. The legislative veto is a type of congressional action that qualifies as "legislation,"(19) and as such it can be exercised (by Congress, anyway) only pursuant to the...

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