legislative veto

Legislative VetoBureaucratic Politics

Introduction

• The last Congressional control:• Legislative Veto – a provision contained within the guiding

statute of an agency that gives Congress the power to veto the decision by the agency.• The vehicle by which a legislative veto is exercised is called a

resolution.

Legislative Resolutions

• Must have a majority to pass (50% + 1 unit), so it may not pass.

• Not subject to:• Committee hearings• Extensive debate• Other standard features of the lawmaking process.

Types of Resolutions

• Committee Resolution• Typically used for:• Budget allocations• Agency given discretion to allocate it

• Single chamber (simple) resolution• Typically used for:• Internal chamber rules• Non-binding expressions of what the chamber wants (house

operations/rules)• Non-binding expression of policy

• Numbering:• H. Res. or S. Res.• Numbered sequentially

Types of Resolutions

• Concurrent resolution • Procedural/housekeeping matters for both houses• Authorizing the printing of Congressional documents• To determine a date to adjourn Congress• Express opinion on foreign or domestic policy issue• Declare the ratification of an Amendment to the Constitution• Budget Resolution• Numbering:

• H. Con. Res. or S. Con. Res.• Numbered sequentially

• Joint resolution (same power as law)• Propose amendments to the Constitution• Create joint committees (committee used to coordinate functions of Congress)• Numbering:

• H. J. Res. or S. J. Res.• Numbered sequentially

Types of Legislative Vetos

Type of Resolution

# of Chambers Presidential Signature Required

CommitteeSingle Chamber

ConcurrentJoint

0122

NoNoNoYes

Uses of Resolutions

• Helps members of Congress to take a stance on a policy issue when election is coming.

• Use as a signal to an agency on a policy question• Spending instructions• War Powers Act of 1973 (was a joint resolution)• Legislative Veto

Legislative Veto

• In a law, Congress can delegate a large amount of discretion to the agency knowing they can always veto the legislation

• Attach a string to legislation:• If we don’t like the agency action, we can pass a

resolution to shoot the action down• Exercise of veto is voting on the resolution)• If resolution passes, rule is invalidated

Types of Legislative Vetoes

• Examples:• FERC (1978) – 1 chamber• FTC (1980) – 2 chamber• NHTSA (1974) – 2 chamber• INS (1940) – single chamber

Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983)

• Facts:• Chadha was an East Indian who studying in the United States under a student visa.• Chadha remained in the United States even after his student visa had expired making him

deportable under the Immigration and Nationality Act.• An INS judge reviewed Chadha’s case and allowed him to stay (Attorney General allowed him

to stay) based on the INA.• The House reviewed this decision and 5 others and overturned the decisions through the use of

legislative veto (which was included in the guiding statute of the INS).• Chadha took his case to the Supreme Court arguing that the legislative veto was

unconstitutional.• Legal Question:

• Does the Immigration and Nationality Act, which contains a legislative veto provision, violate the separation of power doctrine?

• Holding:• Yes. Affirmed.

• Vote:• 7 (Burger, Brennan, Marshall, Blackmun, Powell, Stevens, O’Connor) – 2 (White, Rehnquist)


• Legal Reasoning:• How does the Court address the argument that the legislative veto is a political

creation that is convenient and efficient?• Even political creations must be subject to the terms of the Constitution.

• What two provisions of the Constitution is the Court referring to specifically? • Bicameralism (Article I, Section 7)• Presentment clause (Article I, Section 7)

• “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States…”

• What was the purpose of these provisions?• To separate the powers of government and create checks and balances.

• How does the Court know this?• They look at the records of the Constitutional Convention.

• The requirements of Article I, Section 7 apply to legislative actions. Is this a legislative action according to the Court?• Yes.


• Legal Reasoning (cont’d)• Why?

• It relates to a legislative power listed in Article I, Section 8 to “establish an uniform Rule of Naturalization.”

• Congress would not have been able to take this action normally without passing legislation.

• Why does it matter that it is legislative in nature?• That means the terms of Article I, Section 7 (bicameralism, presentment) apply.

• Doesn’t the Constitution allow for some single chamber actions by Congress?• Yes, but those exceptions are listed.• The fact that they listed means they did not intend for there to be any other single chamber

instances of authority.• The legislative veto requirement is severable and declared unconstitutional.• Court struck down more acts of Congress in this one decision than its entire history

combined.


• Concurring Opinion (per Powell):• Powell concurs but writes a separate opinion because he felt that the case

involved a judicial power and not a legislative power.• Congress, in this case, is exercising a judicial power by making decisions

with respect to particular individuals.• Thus, Powell would only declare this particular legislative veto

unconstitutional and not address the broader question of the constitutionality of the legislative veto as a whole.

• Dissenting Opinion (per White):• The legislative veto has a practical value as it acts as a legislative check over

the bureaucracy.• It ensures that agencies are accountable to Congress and helps Congress to

preserve its lawmaking function.

Aftermath of Chadha

• Congress still passes laws that include provisions for a legislative veto.• Congressional Review Act of 1996• Allows Congress to veto agency rules by joint resolution.

• How is this possible?• How would this have occurred before resolutions?• Must introduce a bill to revise the agency’s charter.• May fail at president (veto)• May not have enough votes for an override (2/3)• Legislative Veto fixes this problem

Types of Legislative Vetos

Type of Resolution

# of Chambers Presidential Signature Required

CommitteeSingle Chamber

ConcurrentJoint

0122

NoNoNoYes

Final Thoughts

• The legislative veto allows Congress to delegate more power, but w/ the ability to control use of power even after the guiding statute has been enacted.

• The legislative veto helps give Congress an edge in the struggle for control over the bureaucracy.

legislative veto

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