The Legislative Veto and
Congressional Review of Agency Rules
[The following testimony discusses the constitutional objections to legislative vetoes,
w hich are grounded in principles o f presentation, bicameralism, and separation of
powers. The testimony also describes and responds to several theories advanced in
support o f the constitutionality o f legislative vetoes. Finally, it outlines the Reagan
Administration’s policy objections to legislative vetoes in the broader context o f con
gressional review o f agency actions, and suggests alternative ways in which Congress
may provide meaningful legislative oversight o f executive action consistent with appli
cable constitutional principles.]
October 7, 1981
STATEM ENT OF TH EO D ORE B. OLSON, ASSISTANT
ATTORNEY GENERAL, O FFIC E OF LEGA L COUNSEL,
BEFORE THE SUBCOMMITTEE ON RULES OF THE
COM M ITTEE ON RULES, UNITED STATES HOUSE OF
REPRESENTATIVES
Introduction
Thank you for affording me the opportunity to appear before you
today to discuss congressional review of agency rules and, in particular,
legislative vetoes.
I hasten to acknowledge that there may be little that I can add to this
Subcommittee’s wisdom in this field. This Subcommittee performed a
valuable service during the 96th Congress by holding extensive hear
ings on this topic. I may not be able to expand upon the wealth of
material contained in the several volumes published on this subject by
this Subcommittee last Congress.
I should note at the outset that I supplied testimony in this area last
April to the Subcommittee on Agency Administration of the Commit
tee on the Judiciary of the United States Senate. Rather than take your
time with a repetition of the views expressed on that occasion, I am
furnishing your Subcommittee with a copy of that testimony and ask
that it be included as part of the record of today’s hearing.
In my remarks today, I will expand upon this Administration’s consti
tutional objections to legislative vetoes and discuss briefly the broader
subject of congressional review of agency rules. Consideration of alter
native methods of congressional review of agency actions, including
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rules, should not be deterred by concentration exclusively on the legis
lative veto. There are numerous techniques that may better serve the
objectives of restraining and preventing agency or administrative abuses
without deviating from fundamental constitutional requirements con
cerning the procedures by which Congress may legislate and the princi
ple of the separation of powers.
As a preliminary matter, I would like to address two points. First,
my testimony represents the position of the Administration concerning
the constitutionality of legislative veto provisions. As a matter of
policy, however, and as I will discuss in more detail later in my
testimony, the Administration is not opposed to all congressional over
sight devices. Without in any way diminishing its responsibility to
challenge the constitutionality of such matters in the courts, in the
legislative process the Administration may not necessarily oppose cer
tain legislative oversight measures relative to selected “independent”
agencies. The President might well decide to sign a bill containing such
a proposal; indeed, every modem President has signed similar laws in
the past. However, the Administration would be compelled to oppose
any legislative veto provision that applied to Executive Branch agen
cies under the direct supervision and control of the President.
Second, I would like to address the notion, mistaken in my view, that
legislative vetoes present “liberal-conservative” issues. Characterization
in this manner tends to confuse the debate, divert attention from the
real concerns, and utterly misconstrue the nature of the relevent legal
and policy considerations.
Legislative vetoes implicate two general areas of constitutional con
cern: (1) how laws are created and (2) how the power to execute laws
is allocated under our Constitution. It is neither accurate nor illuminat
ing to characterize concern for the principles that laws may only be
created by the affirmative votes of both Houses of Congress and the
concurrence of the President or a congressional override of his veto as
“liberal” or “conservative.” Moreover, the elaboration of constraints
placed by the principle of separation of powers on the Executive or
Legislative Branches is not, and in rational terms cannot, be analyzed in
terms of considerations that usually are viewed as “conservative” or
“liberal.” Neither end of the political spectrum has an exclusive claim
to the conviction that the executive power is vested by the Constitution
in the President.
There is obviously a great deal more than partisanship involved in
opposition to a technique by Presidents ranging from Roosevelt,
Truman, Kennedy, and Johnson to Hoover, Eisenhower, Nixon, and
Ford. I do not believe that either “liberal” or “conservative” leanings
prompted one of my predecessors, then Assistant Attorney General,
now Supreme Court Justice William Rehnquist, to refer to legislative
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vetoes as “clearly . . . a violation of the separation of powers.” 1 The
same may be said of a 1977 American Enterprise Institute-sponsored
study which stated that the legislative veto device “is, almost necessar
ily, unconstitutional.” 2
Partisan labeling of this issue simply does not promote analysis or
understanding. The issue must be approached and addressed from the
dual standpoints of how a particular legislative veto might rearrange
the manner in which laws are created—either without participation by
the President or without both the President and some portion of the
Congress—and the extent to which a particular form of legislative veto
might revise the President’s constitutional responsibility to enforce and
administer the laws that Congress enacts.
With this background in mind, I would like to turn to an analysis of
the constitutionality of legislative vetoes.
I. The Legislative Veto
Because the term “legislative veto” has been used to describe a wide
range of congressional oversight techniques, it is analytically useful to
provide a definition of the term. It is a statutory provision under which
Congress, or a unit of Congress, is purportedly authorized to adopt a
resolution that will impose on the Executive Branch a specific require
ment to take or refrain from taking an action. A key characteristic of
all legislative veto provisions is that a resolution pursuant to such a
provision is not presented to the President for his approval or veto.
Such a provision contemplates a procedure under which one or both
Houses of Congress or a committee of one House may act contrary to
the constitutional procedure for enacting laws to overrule, reverse,
revise, modify, suspend, prevent, or delay an action by the President or
some other part of the Executive Branch.
The two-House legislative veto consists of both Houses acting affirm
atively by concurrent resolution (as in the case of motor vehicle safety
standards, 15 U.S.C. § 1410(d) (1976)). A variation is the active involve
ment by one House of Congress and the passive acquiescence or failure
to disagree by the other House—which is termed a “one-and-one-half
House” legislative veto (as in S. 890, 97th Cong., 1st Sess. (1981), the
proposed Regulatory Reduction and Congressional Control Act of
1981). A legislative veto provision may provide for a veto by one
House of Congress (as in the Federal Pay Comparability Act of 1970, 5
U.S.C. § 5305(c)(2) (1976), or in the Congressional Budget and Im
poundment Control Act o f 1974, 31 U.S.C. § 1403(b) (1976)), or by one
committee of one House of Congress (as in the case of the Federal
1 Address by William H. Rehnquist, “Committee Veto: Fifty Years o f Sparring Between the
Executive and Legislature” 9-10 (Aug. 12t 1969) (Speech before the Section on Administrative Law of
the Am erican Bar Association)
2 J. Bolton, T he Legislative Veto: Unseparating the Powers 49 (1977).
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Land Policy and Management Act of (1976), 43 U.S.C. § 1714(e)
(1976)). Legislative veto provisions are contained in statutes dealing
with rulemaking by Executive Branch departments and agencies (for
instance, rulemaking by the Department of Education, 20 U.S.C.
§ 1232(d) (1976 & Supp. IV 1980)), as well as with rulemaking by
“independent” agencies and commissions (for instance, rulemaking by
the Federal Trade Commission, in view of § 20 of the Federal Trade
Commission Improvements Act of 1980, 15 U.S.C. § 57a-l (Supp. IV
1980)). They also are contained in legislation under which Executive
Branch officials are called upon to execute the law in particular cases—
for instance, when the Attorney General suspends the deportation of an
alien, 8 U.S.C. § 1254 (1976 & Supp. IV), when the President approves
execution of an agreement with another nation for atomic energy co
operation, 42 U.S.C. § 2153(d) (Supp. IV 1980), or when the National
Railroad Passenger Corporation seeks to alter Amtrak’s basic route
system, 45 U.S.C. § 564(c) (1976 & Supp. IV 1980).
A. Constitutional Defects
For purposes of constitutional analysis, all of the types of legislative
vetoes that I have outlined share two substantial infirmities. First,
because they do not provide for presentation to the President of a
resolution purporting to bind the Executive Branch, they violate the
constitutionally mandated procedures for legislative action set forth in
the Presentation Clauses of Article I, § 7, clauses 2 and 3. A related
defect of legislative veto provisions other than two-House vetoes is that
they violate the constitutional principle of bicameralism, under which
all exercises of the legislative power having binding effect on the
Executive Branch must first involve passage of a resolution or bill by
both Houses of Congress—not just one House or one committee—
before presentation to the President. This is also a requirement of
Article I, § 7, clauses 2 and 3.
Second, since legislative vetoes would allow the Legislative Branch
(or some unit of it) to substitute its judgment about how best to execute
the law for the discretion of the Executive Branch, legislative veto
provisions violate the underlying constitutional principle of the separa
tion of powers, under which the Legislature is to legislate and the
Executive is to execute the law.
I will discuss these constitutional defects in turn.
1. Article I, § 7
(a) The Presentation Clauses
A resolution adopted pursuant to a legislative veto provision is neces
sarily an exercise of Congress’ Article I power to take legislative
action. Article I is the source of Congress’ power to impose legal
requirements on the Executive Branch. As noted earlier, while some
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forms of legislative vetoes apply to purely executive actions, Congress
simply may not execute the law. That power is given to the President.
Article II, § 1, clause 1 states that executive power “shall be vested in
[the] President.” With certain express exceptions (e.g., the Senate’s
advice and consent regarding presidential appointments), when Con
gress acts, it is exercising its legislative powers.
However, the Constitution did not leave it to the discretion of Con
gress to decide how it will exercise its legislative power. Specific proce
dures must be followed as prescribed in Article I, § 7, clauses 2 and 3.
Article I, § 7, clause 2 provides that every “bill” “before it become[s] a
Law” shall have been passed by both Houses of Congress and shall
have been presented to the President for his approval or veto. If the
President disapproves of a “bill” and vetoes it, the bill may still become
law if it is re-passed by a two-thirds vote of both Houses of Congress.
The Framers anticipated and closed the “loophole” that might have
been thought to exist under clause 2 which might, standing alone, have
been perceived to have allowed Congress to avoid the presentation
requirement by legislating in the form of resolutions rather than “bills.”
They added to the text o f the Constitution Article I, § 7, clause 3,
which provides in language that in many respects tracks clause 2, that
“[e]very Order, Resolution, or Vote” requiring concurrent action
(except resolutions of adjournment) 3 “shall be presented to the Presi
dent,” who may approve or veto the order, resolution, or vote. Like
clause 2, clause 3 provides that after a proposal is vetoed, it may still
become law if it is subsequently passed by a two-thirds vote of both
Houses of Congress. Thus, clause 3, read in conjunction with clause 2,
makes quite plain that the Framers intended that all exercises of legisla
tive power having the substantive effects of legislation, irrespective of
the form of congressional action, must follow the specified legislative
procedure.4
Clauses 2 and 3 demonstrate that the Framers intended that all
exercises of legislative power must follow the required process, which
includes passage by both Houses of Congress and then presentation to
3 A rticle I, § 5 , clause 4 prevents adjournment for more than 3 days without the consent of each
House. Because such adjournments thus must be accomplished by concurrent action, a specific proviso
m Article I, § 7, clause 3 was necessary to prevent Congress from having to submit adjournment
resolutions to the President. It would be inappropriate for Congress to have to present adjournment
resolutions to the President for his approval or veto since the President is able to convene Congress in
any event. See A rticle II, § 3; S. Rep. N o. 1335, 54th Cong., 2d Sess. 6 (1897).
4 T he history o f the adoption of clauses 2 and 3 confirms that conclusion. During the debate on the
presidential veto provision, James M adison observed that
if the negative o f the President was confined to bills, it would be evaded by acts under
the form and name o f resolutions, votes [etc. He] proposed that “or resolve” should be
added after "billy' . . . with an exception as to votes of adjournment [etc.]. (Emphasis
in original.)
5 J. Elliot, D ebates on the Adoption o f the Federal Constitution, 431 (1876). Although Madison's
proposal was initially rejected, it was renewed during the following day's session by Mr. Randolph,
w ho put the proposal in a new form substantially as it now appears. It was then adopted by a 9 - 1
vote. 2 M. Farrand, Records of the Federal Convention o f 1787, 304-08 (rev. ed. 1937).
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the President.5 As one commentator noted, "[i]t would be difficult to
conceive of language and history which would more clearly require
that all concurrent action of the two Houses be subject to the Presi
dent’s approval or veto.” 6 Legislative veto provisions fall short of
compliance with these requirements in that they do not permit the
President to exercise his power to approve or veto a legislative veto
resolution.
The presentation requirement is critical to our constitutional scheme
of government. The separation of powers that distinguishes our Consti
tution is counter-weighted with a system of checks by each branch
over the other two. The President’s power to approve or veto actions
of Congress is absolutely necessary to the preservation of the Presi
dency and to the system of checks and balances. See The Federalist,
Nos. 48 & 73 (J. Madison & A. Hamilton) (J. Cooke ed. 1961); 2 M.
Farrand, Records of the Federal Convention of 1787, 299-300, 586-87
(rev. ed. 1937). The Constitution’s Framers feared that, absent a presi
dential veto, “the legislative and executive powers might speedily come
to be blended in the same hands.” The Federalist No. 73, at 494 (A.
Hamilton) (J. Cooke ed. 1961). The Framers also believed that the
President’s veto power could operate on behalf of the public interest to
protect against the effects of special interests in our public life. See The
Federalist No. 73, supra. Without the veto power, as Alexander Hamil
ton observed, the President “would be absolutely unable to defend
himself against the depredations of the [Legislative Branch]. He might
gradually be stripped of his authorities by successive resolutions or
annihilated by a single vote.” 7
Legislative veto provisions purport to authorize congressional resolu
tions that change the law without being subject to the presidential veto.
They circumvent one of the President’s most important constitutional
powers—in a sense, his only defense. They are therefore not constitu
tionally permissible.
5 Exercises o f legislative power having the substantive effect of legislation and subject to the
procedures of A rticle I, § 7 are distinguishable from: (1) acts that 'may be taken by one or both Houses
o f Congress or their committees because they are merely m aid of Congress’ legislative power and do
not purport to bind the Executive Branch, such as investigations, oversight hearings, or requests for
information from the Executive Branch, and (2) acts by one or both Houses of Congress expressly
authorized by a constitutional provision that does not require the procedures in Article I, § 7. The
latter class of actions includes the power of the House of Representatives to impeach (Article I, § 2,
clause 5); the Senate's power to try all impeachments (Article I, § 3, clause 6) and to ratify treaties and
pass upon presidential nominations (Article II, §2, clause 2), the power of both Houses to pass a
concurrent resolution of adjournment that is not presented to the President (Article I, § 7, clause 3),
and the power of each House to establish rules governing its own proceedings (Article I, § 5, clause
2) See also Article V and Hollingsworth v Virginia, 3 U S. (3 Dali.) 378 (1798) (power o f both Houses
by a two-thirds vote to propose constitutional amendments) In addition, of course, one or both
Houses of Congress can employ a resolution as a means o f expressing an opinion of the House that
purports to have no binding effect on the Executive Branch.
6Ginnane, The Control o f Federal Administration by Congressional Resolutions and Committees, 66
Harv L. Rev. 569, 573 (1953).
7 The Federalist No. 73, at 494 (A. Hamilton) (J. Cooke ed. 1961).
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The argument that legislative veto provisions directed at agency rules
do not contemplate the exercise of legislative power does not survive a
straightforward analysis. Typically, Congress delegates rulemaking au
thority to an agency to implement policy objectives mandated by stat
ute. Agency regulations adopted pursuant to such an authorization have
the force and effect of law if they are within the substantive delegation
of the rulemaking power. See, e.g., Chrysler Corp. v. Brown, 441 U.S.
281, 295-96 (1979). Such a statutory delegation, which requires the
concurrence of both Houses of Congress and presentation to the Presi
dent, may be withdrawn or modified only by following the same
procedure for legislation. In contrast, a legislative veto provision would
erect a fundamentally different scheme. It would allow Congress—
whether two Houses, one House, or otherwise—to overrule or block a
rule or decision by the Executive Branch that had been issued pursuant
to statutory authorization. The effect would amount to repealing or
partially modifying the prior statutory authorization without following
the prescribed process of presenting to the President resolutions having
a public, legally binding effect.8 Hence, the resolutions constitute legis
lative actions and, to be constitutional, they must be presented to the
President for his concurrence or veto.
(b) The Bicameralism Principle
Legislative vetoes that contemplate action by Congress without
affirmative approval by both Houses of Congress also violate the Con
stitution’s bicameralism principle. This principle, like the presentation
requirement, is embodied in Article I, § 7, clauses 2 and 3. These two
clauses, which I have already discussed, require that any measure that
has the effect of an exercise of legislative power, whether in the form
of a bill, resolution, or otherwise, must be affirmatively approved by both
Houses o f Congress. 9 This conclusion is buttressed by the language of
Article I, § 1, which vests “[a]ll legislative Powers herein granted” in
“a Congress of the United States, which shall consist of a Senate and
House of Representatives” (emphasis added).
8 Because under most forms of legislative veto devices, such rules go into effect (subject to judicial
review) w ithout any further action by Congress, it cannot plausibly be argued that such rules
constitute mere "proposals” or "recommendations,” the veto o f which does not affect the legal “status
quo.*’
9See S. Rep. No. 1335, 54th Cong., 2d Sess. 1-2, 6-8 (1897). Any suggestion that by assigning
“veto” pow er to one House, rather than both, Congress may avoid the strictures of Article I, § 7,
clause 3 would appear to be a constitutional absurdity. See Watson, Congress Steps Out: A Look at
Congressional Control o f the Executive, 63, Calif. L. Rev. 983, 1066 n.428 (1975) (it “verges on
irrationality to maintain that action by concurrent resolution, whereby Congress is at least held in
check by its own structure, is invalid because the veto clause so states, but that the invalidity o f a
simple resolution, wherein a single House acts without check, is more in doubt”). As another
com m entator put it: “ It surely must be true that a power not permitted to both houses of Congress by
the Constitution cannot suddenly be 'made available by delegating it to one house.” J. Bolton, The
Legislative Veto: Unseparating the Pow ers, 39 (1977).
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The bicameralism principle of Article I, § 7 contemplates actual pas
sage of a resolution by both Houses—not mere passive “acquiescence”
by one of the two Houses with respect to the action of the other
House. Legislative veto provisions that contravene this bicameralism
principle are invalid for that reason alone.
2. The Principle of the Separation of Powers
The additional constitutional defect of legislative veto provisions is
that, to the extent that they permit Congress to reserve to itself powers
vested by the Constitution in the Executive and Judicial Branches, they
violate the principle of the separation of powers. This principle, one of
the two or three most fundamental premises that underlie our Constitu
tion, is directly reflected in the Constitution’s structure, which estab
lishes the three branches of government in Articles I, II, and III, for
the purposes of legislating, executing the laws, and adjudicating, respec
tively. It also is reflected in several other provisions, including Article
I, § 7, clauses 2 and 3 (the Presentation Clauses); Article I, § 6, clause 2
(the Ineligibility and Incompatibility Clause); and Article II, § 2, clause
2 (the Appointments Clause). See generally Buckley v. Valeo, 424 U.S. 1,
120-37 (1976).
The principle of the separation of powers is based on the premise
that if one branch of government could, on its own initiative, merge
legislative, executive, or judicial powers, it could easily become domi
nant and tyrannical. In such a circumstance, it would not be subject to
the checks on governmental power that the Framers considered a
necessary protection of freedom. See The Federalist Nos. 47 & 73 (J.
Madison & A. Hamilton) (J. Cooke ed. 1961). The three branches of
government are not “watertight compartments” acting in isolation of
each other. Springer v. Government o f the Philippine Islands, 277 U.S.
189, 211 (1928) (Holmes, J., dissenting); see Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
Rather, the Framers conceived of national government as involving the
dynamic interaction between the three branches, with each “checking”
the others and “balancing” the powers conferred on the others with its
own assertions of power. At the core of this concept is the precept that
no single branch can usurp or arrogate to itself the essential functions
of the other branches.
The Framers realized that “[i]n republican government, the legisla
tive authority, necessarily, predominates.” The Federalist No. 51, at 350
(J. Madison) (J. Cooke ed. 1961). One of their major concerns was to
ensure that this most powerful branch of government did not become
too powerful. “[I]t is against the enterprising ambition of this depart
ment, that the people ought to indulge all their jealousy and exhaust all
their precautions.” The Federalist No. 48, at 334 (J. Madison) (J. Cooke
ed. 1961). The Framers knew, as Blackstone had observed, that “[i]n all
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tyrannical governments, the supreme magistracy, or the right both of
m aking and enforcing the laws, is vested in one and the same man, or
one and the same body o f men.” 1 W. Blackstone, Commentaries 146
(Cooley 4th ed., 1899) (emphasis in original). Madison observed that the
accumulation of legislative, executive, and judicial power in one depart
ment was “the very definition of tyranny.” The Federalist No. 47, at
324 (J. Madison) (J. Cooke ed. 1961). He cited Montesquieu for the
proposition that “ ‘there can be no liberty where the legislative and
executive powers are united in the same person, or body of magis
trates.’ ” Id. at 325. Precisely in order to prevent such an accumulation
of power, the Constitution was structured so that “[t]he magistrate in
whom the whole executive power resides cannot of himself make a law,
though he can put a negative on every law” and “[t]he entire legislature
. . . can exercise no executive prerogative. . . .” Id. at 326 (emphasis
added).
The boundary between legislative and executive action is set in the
first instance by Congress when it decides how much discretion to
delegate to the Executive Branch in implementing policies established
by statute. Once such an authorization is enacted, however, the imple
mentation of the statutory policies is an executive function. Indeed, it is
the core of the Executive Branch’s function. The statute sets a boundary
beyond which the Executive Branch may not go without intruding on
the legislative function. It similarly sets a boundary within which the
Executive must be allowed to function without congressional vetoes or
requirements except as adopted through the constitutional process of
legislation. If it were otherwise, Congress would be able to arrogate to
itself the essence of the Executive’s function. In that circumstance,
there would be no place for the Executive as a separate, co-equal
branch of government.
This principle is violated by legislative veto provisions to the extent
that they would give to the Houses of Congress or even committees of
Congress the power to intervene, apart from the passage of legislation,
directly in the process by which the Executive Branch executes the law
in particular cases or by rulemaking. They would effectively transform
executive decisions into tentative actions, rather like those of congres
sional committees, having no force and effect of their own but merely
achieving legal status if Congress, for example, does not disapprove
them. In essence, a legislative veto of agency rules would set up the
Houses of Congress as final administrative authorities over the whole
range of regulatory matters. Legislative vetoes of purely executive
decisions take the power from the Executive Branch and vest it in the
Congress just as surely as if the President were simply an advisory
official, suggesting proposed actions to Congress. This system might be
what some may prefer, but it is not the system that our Constitution
created.
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It must be conceded that there have been abuses of power by Execu
tive Branch agencies. Congress is properly disturbed when an agency
exceeds the limits on its discretion or ignores the manifest will of the
Legislature. But in our system, the Judiciary, not Congress, corrects
such abuses absent the adoption of plenary legislation. As members of
this Subcommittee repeatedly have observed, it is your right and your
responsibility to set policies and to insist that the policies you estab
lished will be implemented. However, as Justice Brandeis noted, the
doctrine of the separation of powers was adopted “. . . not to promote
efficiency but to preclude the exercise of arbitrary power . . . not to
avoid friction, but . . . to save the people from autocracy.” Myers v.
United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).
B. Responses to Proponents o f Legislative Vetoes
I would like to respond briefly to the major rejoinders by those who
support legislative veto provisions and believe that they are not uncon
stitutional.
First, although some argue otherwise, there is no meaningful consti
tutional distinction to be drawn between legislative vetoes of rulemak
ing and of other types of agency action. Rulemaking is a form of
executive action. See Buckley v. Valeo, 424 U.S. at 140-41. Like other
such actions, it is lodged in the Executive Branch under Article II of
the Constitution. The distinction between rulemaking and other forms
of executive action carries no weight with respect to compliance with
the constitutionally prescribed procedure for the exercise of legislative
power. Article I, § 7, clauses 2 and 3 specify the process to be followed
by all legislative action having the force of law and not otherwise
covered by constitutional sections specifically providing for a different
procedure, regardless whether the action affects rulemaking, adjudica
tion, or other decisions by agencies.
Second, it has been argued that the adoption of a resolution disap
proving an agency rule pursuant to a legislative veto provision is not
really an exercise of legislative power and is not therefore subject to
the constitutional provisions that I have described, but rather is the
exercise of a condition on agency discretion under a statute giving the
agency rulemaking power in the first place. Viewed in that light,
original grants of rulemaking discretion to agencies in organic statutes
would be changed by amendments containing legislative veto provi
sions to “conditional delegations.” The analogy is to grants of statutory
power made contingent upon findings of fact by an Executive Branch
officer, or upon the favorable vote of persons who will be affected by
proposed governmental action. See H.R. Rep. No. 120, 76th Cong., 1st
Sess. 6 (1939). Such an argument is, in the first instance, semantic in
that it presupposes that affixing another label to the final act of the
legislative body which determines what the law will or will not be can
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render it not an exercise o f legislative power. That supposition simply
exalts the label over the reality of what is occurring. Moreover, the
fatal analytical deficiency in this argument is that it assumes that the
delegation of power to a person or entity outside the Legislative
Branch is constitutionally equivalent to the delegation of power to the
Houses of Congress, which are within the Legislative Branch and thus
subject to the strictures o f Article I. That assumption is insupportable.
The Framers of our Constitution did not want Congress to have the
power that they gave to the Executive. Whenever power is vested
outside Congress, it is not concentrated within it. The undue concentra
tion of power in Congress is what the separation of powers is specifi
cally designed to avoid. Hence, a provision allowing persons or bodies
outside Congress to determine whether conditions on the exercise of
delegated authority have been met does not present the same constitu
tional separation of power questions that vesting such power within
Congress raises.
The other deficiency in the “conditional delegation” argument is that
if carried to its obvious and natural extreme, it would allow a single
member of Congress to be authorized to veto any or every executive
action—an obvious absurdity.
Third, it is no response to the constitutional objections to legislative
vetoes to assert that they are authorized by the Necessary and Proper
Clause, Article I, § 8, clause 18, which grants Congress power to
“make all Laws which shall be necessary and proper for carrying into
Execution the foregoing [enumerated] Powers, and all other Powers
vested by this Constitution in the Government of the United States, or
in any Department or Officer thereof.” The exercise of Article I power
by Congress pursuant to the Necessary and Proper Clause is limited by
other express provisions o f the Constitution, including Article I, § 7,
clauses 2 and 3 and by the principle of the separation of powers. See
Buckley v. Valeo, 424 U.S. at 135. As the United States Court of
Appeals for the Ninth Circuit noted in Chadha v. INS, 634 F.2d 408,
433 (1980), petition for cert, pending No. 80-1832 (filed May 1, 1981),
the Necessary and Proper Clause “authorizes Congress to ‘make all
laws,’ not to exercise power in any way it deems convenient. That a
power is clearly committed to Congress does not sustain an unconstitu
tional form in the exercise of the power.”
C. Policy Objections
In addition to their serious constitutional defects, legislative vetoes
are objectionable for a variety of other reasons. First, they do nothing
to cure the root causes o f regulatory excesses, duplication, or ineffi
ciency, namely, broad, relatively standardless delegations to agencies.
In fact, they have a natural tendency to encourage broader statutory
delegations, for they provide the superficial reassurance that Congress
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may have a role in implementing a statute after it is passed and thus
need not carefully define an agency’s powers and limits before the law
is enacted. The result of overbroad delegation is excessive agency
discretion that could not possibly be monitored carefully by Congress.
Legislative vetoes also have been said measurably to increase the
amount of behind-the-scenes negotiation between agencies and commit
tee staffs and single members of Congress to the detriment of a public,
fully accountable administrative process.10 In addition, many veto pro
visions foster delay, for even though only few rules or actions would
likely be vetoed, all matters referred to Congress would be subject to
deferral and uncertainty.
To the extent that legislative vetoes may be passed by less than two
Houses of Congress, they undermine the accountability of all members
of Congress for actions of Congress. They thus encourage the tendency
of decentralization of power within Congress to the detriment of the
body as a whole. Furthermore, to the extent that Congress as a body
does get seriously involved in reviewing rules or other executive ac
tions subject to legislative vetoes, Congress predictably will get hope
lessly mired in details. As Jefferson wrote:
Nothing is so embarrassing nor so mischievous, in a great
assembly, as the details of execution. The smallest trifle of
that kind occupies as long as the most important act of
legislation, and takes place of everything else. Let any
man recollect, or look over, the files of Congress; he will
observe the most important propositions hanging over,
from week to week, and month to month, till the occa
sions have passed them, and the things never done. I have
ever viewed the executive details as the greatest cause of
evil to us, because they in fact place us as if we had no
federal head, by diverting the attention of that head from
great to small subjects . . . .n
In short, legislative vetoes do not solve the problems of administra
tive excess that they are intended to correct, and they have several
policy infirmities of their own.
II. Congressional Review of Agency Action in General
Although the Administration believes that legislative veto provisions
are unconstitutional and is taking that position in pending litigation,12
10See Bruff and Gellhom , Congressional Control o f Administrative Regulation: A Study o f Legislative
Vetoes. 90 Harv. L. Rev. 1369, 1409-14 (1977).
116 T. Jefferson, T he Writings of Thomas Jefferson 228 (A. Bergh ed. 1903) (letter to E.
Carnngton, Aug. 4, 1787).
12 Among the pending cases are Immigration and Naturalization Service v. Chadha, petition for cert,
pending No. 80-1832 (filed May 1, 1981), in which the Department o f Justice has filed a Jurisdictional
Statement in the Supreme Court on behalf o f the Immigration and Naturalization Service; Consumer
C ontinued
305
we would stress that there are many full constitutional legislative and
oversight mechanisms that Congress can use to achieve the goals of
more effective review o f executive action, including rules. In organic
statutes, Congress can—and undoubtedly should—place specific and
precise limits on the authority of agencies to issue rules. Moreover,
Congress always can override unwise, inappropriate, burdensome, or
excessive agency rules with legislation. To the extent that procedural
hurdles within Congress impeding the enactment of legislation have
fostered legislative veto proposals, Congress can adopt legislation assur
ing early floor consideration of bills overturning agency rules.
Congress also can authorize an agency to act for a limited period of
time, thereby forcing the agency to return to Congress for authority to
continue to act when its authorization expires. Congress can hold over
sight hearings, at which explanations for agency rules that members of
Congress may question can be sought and made part of a public record.
Congress can adopt resolutions expressing its views that, while not
legally binding upon the Executive Branch unless adopted pursuant to
the plenary legislative process, can guide an agency in its implementa
tion of the law. Further, Congress has authority to appropriate the
money with which agencies execute the law. In appropriations statutes,
Congress can provide for limitations on the expenditure of funds for
certain purposes consistent with other applicable legal requirements.
Another alternative is one that I understand originated in this Sub
committee last year. It is the proposal to create a Select Committee on
Regulatory Affairs that would be given broad jurisdiction over the
rulemaking activities of the federal government. By virtue of its broad
jurisdiction, such a committee could investigate issues of regulatory
Energy Council o f America v Federal Energy Regulatory Commission, Nos. 80-2184, 80-2312, argued on
September 10, 1981, before a panel o f the United States Court o f Appeals for the District of Columbia
Circuit; and Pacific Legal Foundation v. Watt, No. 81-141, and Mountain States Legal Foundation v.
Watt, No. 81-168, two cases consolidated in the United States District Court for the District of
Montana.
T he only federal court yet to reach the issue o f the constitutionality of “legislative veto” devices
other than the United States Court o f Appeals for the Ninth Circuit in Chadha v. INS, 634 F.2d 408
(1980), is the United States Court o f Claims in Atkins v. United States. 556 F.2d 1028 (Ct. Cl. 1977),
cert, denied 434 U.S. 1009 (1978). T h e 4-3 holding o f the Court of Claims in that case was narrowly
restricted to the context o f the Federal Salary Act o f 1967, 2 U.S.C. § 359(1XB)(1970). See 556 F.2d at
1059. T hree o f the seven judges forcefully disagreed with the per curiam opinion on the legislative
veto device under consideration there. Cf. Buckley v. Valeo, 424 U.S. 1, 140 n.176 (1976) (declining to
address the question of the validity o f a one-House “legislative veto” provision in the Federal Election
Campaign A ct o f 1971, 2 U.S.C. § 438(c) (Supp. IV 1980), an issue not briefed by the United States);
424 U.S. at 257 (White, J., concurring m part and dissenting in part) (concluding that the “legislative
veto,” at least as applied to so-called “independent agencies,” is not a usurpation o f the President’s
constitutional power); McCorkle v. United States, 559 F.2d 1258 (4th Cir. 1977), cert, denied 434 U.S.
1011 (1978) (declining to reach the issue of the constitutionality o f the same provision of the Federal
Salary A ct that was at issue in Atkins v. United States, supra, on the ground that the provision was not
“severable” from the rest of the statute and, therefore, even if the statute were held unconstitutional,
plaintiff would have no right to additional pay); Clark v. Valeo, 559 F.2d 642 (D.C. Cir.) (en banc),
a f f d mem. sub nom. Clark v. Kimmitt, 431 U.S. 950 (1977) (declining to consider the constitutionality
o f the “legislative veto” provision o f the Federal Election Campaign Act on the ground that the issue
was not ripe for adjudication), 559 F.2d at 678 (MacKinnon, J., dissenting) (concluding that the
legislative veto provision is unconstitutional).
306
overlap and duplication that presently prove difficult for standing com
mittees to address.
The common themes underlying these several alternative methods by
which Congress actively can review agency rules is that they do not
displace the President and the Executive Branch in the execution of the
law. They respect the principle of the separation of powers, as well as
the presentation and bicameralism principles that apply to exercises of
legislative power.
There should be no doubt regarding this Administration’s concern
about excessive and abusive agency actions. Indeed, the Administration
has taken numerous steps to assure that agency rules are carefully
considered and limited in the manner provided by Congress. If further
oversight is necessary, we would support the use of joint resolutions
providing for consideration by both Houses of Congress, presentation
to the President, and a congressional override of any presidential veto
in the rare case in which it might occur. Such a method would include
in the process all of the major elected officials in the national govern
ment. As you know, the President shares your concern that the costs
and burdens of government must be diminished. Any mutual attempts
to achieve this objective that do not strip the President of his constitu
tional power would be welcomed.
Conclusion
We respect the views of those members of Congress who disagree
with us on the constitutional questions and we join in their desire for a
reasonably prompt resolution of this dispute in the courts. In the mean
time, we urge restraint against proposals that tend to rearrange the
powers which our forefathers so carefully distributed among the three
branches.
The debate over legislative vetoes and alternative ways for Congress
to oversee agency rules must be viewed in terms of the most basic
structural underpinnings of our system of government—checks by the
legislature upon itself; the principle of bicameralism; checks by the
President on the Congress in the form of presentment of legislation to
him for veto or approval; and the separation of powers between Con
gress and the Executive Branch. The temptation to vest greater power
in Congress and to exercise greater control over the Executive Branch
should not provide the excuse for a major structural rearrangement in
violation of these principles.
Each branch seems inclined to rectify perceived abuses in the other
two by expediencies that the Constitution will not tolerate. We must be
ever mindful that the genius that created the precious system which has
preserved our freedom for nearly 200 years expressly eschewed reme
dies for temporary problems that pave a path for excessive domination
by one branch of government.
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