Adjusting the Separation of Powers: The “Legislative Veto” and the United States Supreme Court's Decision in the Chadha Case

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).

United States v. Nixon, 418 U.S. 683 (1974).

For example, despite the importance of the ruling, it was announced to a half-empty courtroom — In contrast to the popular excitement and anticipation surrounding the decision of other recent cases, such as the Watergate Tapes Case, id., the Abortion Cases (Roe v. Wade, 410 U.S. 113 (1973)) and the ruling in Regents of the University of California v. Bakke (438 U.S. 265 (1978)). In addition, the majority opinion was delivered by a Chief Justice who had been appointed by President Nixon because he was a “strict constructionist”, presumably meaning he would be circumspect in his exercise of the power to invalidate the laws passed by Congress.

Immigration and Naturalization Service v. Chadha, No. 80 - 1832, slip op. of White, J., dissenting, at 38.

Act of January 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926, 1948, 28 U.S.C. §2076 (1976).

See generally Harris J. , Congressional Control of Administration 217–38 (1964); Anderson , “Tensions of the American Presidency”, in The Effective President ( Hoy J. Bernstein M. eds. 1976). Broadly speaking, the “legislative veto” also includes the proviso, found in a number of statutes, whereby the statute itself, or action taken by virtue of it, may be repealed or terminated by concurrent resolution of both houses, again without the requirement of presidential review. For example, the National Emergencies Act of 1976 (Pub. L. No. 94-412, §202, 90 Stat. 1255, 50 U.S.C. §1622 (1976)) authorizes the president to declare a state of national emergency (thus triggering certain laws designed for periods of crisis), but the same Act allows Congress alone to terminate the state of emergency by concurrent resolution. Similarly, under the War Powers Resolution of 1973 (Pub. L. No. 93-148, §5, 87 Stat. 555, 556–57, 50 U.S.C. §1544 (1976)) presidential engagement of United States forces in overseas hostilities can, in the absence of a congressional declaration of war, be ordered stopped by concurrent resolution. The constitutionality of both of these provisos has been cast into serious doubt as a result of the Court's decision in Chadha, however. See discussion infra note 82.

U.S. Const. art. I, §7, cl.2.

Supra note 4, at 7.

See Harris , supra note 6, at 206–210; Bailey S. , Congress in the Seventies 92 (2d ed. 1970).

Harris , supra note 6, at 210–213.

Id. at 217–33.

Anderson , supra note 6, at 43.

Supra note 6.

Id.

Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, §1013, 88 Stat. 297, 334–35, 31 U.S.C. §1403 (1976).

Nuclear Non-Proliferation Act of 1978, Pub. L. No. 95-242, §§303–304, 306–307, 401, 92 Stat. 120, 130, 134, 137–39, 144, 42 U.S.C. §§2160 (f), 2155 (b), 2157 (b), 2153 (d) (Supp.III 1979).

International Security Assistance and Arms Control Act of 1976, Pub. L. No. 94-329, §211, 90 Stat. 729, 743, 22 U.S.C. §2776 (b) (1976).

Trade Act of 1974, Pub. L. No. 93-618, §§203 (c), 302 (b), 402 (d), 407, 88 Stat. 1978, 2016, 2043, 2057–60, 2063–64, 19 U.S.C. §§2253 (c), 2412 (b), 2432, 2434 (1976).

National Aeronautics and Space Act of 1958, Pub. L. No. 85-568, §302c, 72 Stat. 426, 433, 42 U.S.C. §2453 (1976). See generally Jahnige, “The Congressional Committee System and the Oversight Process: Congress and NASA”, 21 W.Pol.Q. 227, 233, 239 (1968).

Supra note 17.

The near-exception was the Reagan Administration's proposed $8.5 billion sale of Airborne Warning and Control Systems (AWACS) radar planes to Saudi Arabia in 1981. A concurrent resolution of disapproval was passed by the House of Representatives, but failed by a narrow margin in the Senate. Congressional Quarterly, 1981 Almanac, p.129. See generally Zeidenstein, “The Reassertion of Congressional Power: New Curbs on the President”, 93 Pol.Sci.Q . 393–409 (1978); Congressional Quarterly, Weekly Report, July 2, 1983 at 1330, and April 10, 1982 at 798–99.

See, e.g. Department of Education Organization Act, Pub. L. No. 96-88, §414 (b), 93 Stat. 668, 685 (1979), 20 U.S.C. §3474 (Supp.III 1979).

Act of August 9, 1975, Pub. L. No. 94-88, §208, 89 Stat. 433, 436–37, 42 U.S.C. §602 (1976).

Department of Energy Act of 1978, Pub. L. No. 95-238, §107, 207 (b), 92 Stat. 47, 55, 70, 22 U.S.C. §3224a, 42 U.S.C. §5919 (m) (Supp.III 1979).

National Historic Preservation Act Amendments of 1980, Pub. L. No. 96-515, §501, 94 Stat. 2987, 3004, 16 U.S.C. §470 w-6 (Supp.IV 1980).

Federal Election Campaign Act Amendments of 1979, Pub. L. No. 96-187, §109, 93 Stat. 1339, 1364, 2 U.S.C. §438 (d) (2) (Supp.III 1979).

See, e.g., Act of December 17, 1980, Pub. L. No. 96-539, §4, 94 Stat. 3194–95, 7 U.S.C. §136w (Supp.IV 1980).

Federal Trade Commission Improvements Act of 1980, Pub. L. No. 96-252, §21 (a), 94 Stat. 374, 393, 15 U.S.C. §57a-1 (Supp.IV 1980).

S. Con. Res. 60, 97th Cong., 2d Sess. (May 26, 1982). This resolution and its statutory foundation id. were held unconstitutional in Consumer's Union of the United States. Inc. v. Federal Trade Commission, 691 F. 2d 575 (D.C.Cir.1982). aff'd, 103 S.Ct.3556 (1983). See discussion at n.80 infra.

S.1080 and H.R. 746, 97th Cong. 2d Sess. (1982). For an analysis of these bills, see Congressional Quarterly, Weekly Report, April 3, 1982 at 740–42.

West & Cooper, “The Congressional Veto and Administrative Rule-making”, 98 Pol.Sci.Q . 285, 286 (1983), citing Norton C. , Congressional Review, Deferral, and Disapproval of Executive Actions: A Summary and an Inventory of Statutory Authority (1976 & Supps.). From 1978 to 1983 Congress exercised the legislative veto 31 times. N.Y. Times, June 24, 1983, at B4, Col.1.

Cf. Mansfield , “Reorganising the Federal Executive Branch: The Limits of Institutionalization”, Law & Contemp. Probs. 461, 464 (1970).

Cf. H.J. Res.480, 97th Cong., 2d Sess. (1982) (House Banking Committee resolution delaying action by the Department of Housing and Urban Development to raise rents of tenants of government - subsidized housing). See also Congressional Quarterly, Weekly Report, September 4, 1982 at 2197–99 (passage of concurrent resolution blocking certain regulations issued by the Department of Education relating to compensatory education and a new block grant to the states, designed to reduce the amount of federal regulation over education).

See, e.g., Congressional Review of Administrative Rulemaking: Hearings Before the Committee on the Judiciary of the U.S. House of Representatives, 94th Cong., 1st Sess. (1975).

See infra.

See, e.g., Congressional Quarterly, Weekly Report, February 6 1982 at 201 (statement of Attorney-General Smith); July 24, 1982 at 1803 (announcement by Department of Housing and Urban Development); Congressional Quarterly, 1982 Almanac, p.483 (statement by President Reagan).

Supra note 31, at 287–91.

See, e.g., Gilmour , “The Congressional Veto: Shifting the Balance of Administrative Control”, 2 J.Pol'y Anal. & Mgmt . 13–25 (1982); Bruff Gellhorn , “Congressional Control of Administrative Regulation: A Study of Legislative Vetoes”, 90 Harv. L. Rev. 1369–1440 (1977).

Jackson , “A Presidential Legal Opinion”, 66 Harv. L. Rev. 1353–61 (1953).

Several of these were written by members of the legislative or executive branches. References to most of this legal literature are collected together in note 12 of Justice White's dissenting opinion in Chadha at pp. 11–12 (slip op.)

See generally Harris, supra note 6, at 238–44.

See generally Corwin E. , The President: Office and Powers 1787–1957 at 129–30 (4th ed. 1957); Mansfield , supra note 32.

See Schwartz , “Legislative Veto and the Constitution - a Re-examination”, 46 Geo. Wash. L. Rev. 351 (1978) for a discussion of these earlier cases.

Chadha v. Immigration and Naturalization Service, 634 F. 2d 408 (1980).

Consumer Energy Council of America v. Federal Energy Regulatory Commission, 673 F. 2d 425 (1982) (1-house veto over FERC rules on gas pricing conflicts with President's veto power and doctrine of separation of powers); Consumers Union of the United States, Inc. v. Federal Trade Commission, 691 F. 2d 575 (1982) (2-house veto over FTC rules conflicts with President's veto power and doctrine of separation of powers).

Pub. L. No.82-414, 66 Stat. 163, 8 U.S.C. §1254(a) (1) (1976).

94th Cong., lst Sess.; 121 Cong. Rec. 40800 (1975).

Chadha v. Immigration and Naturalization Service, 634 F. 2d 408 (9th Cir. 1980).

Separate suits filed by the Senate and the House of Representatives against the INS in the Court of Appeals were granted certiorari by the Supreme Court. The Senate and House also filed amicus curiae briefs in Chadha in both the Court of Appeals and the Supreme Court. The views of Congress were thus presented to the courts despite the obvious lack of adverseness between Chadha and the INS.

Immigration and Naturalization Service v. Chadha, No. 80-1832, slip op. of Ct. at 8–23.

Id. at 10–14.

Section 406; 8 U.S.C. §1101 (1976).

See Congressional Quarterly, Weekly Report, February 6, 1982 at 202.

Chadha slip op. of Ct. at 16.

See the majority's oblique reference to this id. at 24.

Infra.

Chadha slip op. of Ct. at 16.

U.S. Const. art. I, §§1, 7, cl.2–3.

Chadha, slip op. of Ct. at 25.

Id. at 26–28.

Id. at 28–30.

Id. at 31.

U.S. Const. art II, §2, cl.3; art. I, §2, cl.5. Chadha, slip op. of Ct. at 35.

Chadha, slip op. of Ct. at 32.

Id. at note 16.

Id. at 34.

Id. at 34–37.

Chadha, slip op. of White, J., dissenting, at 7.

Id. at 19–24. Justice White specifically disclaimed any intention on his part of reaching the constitutional question concerning the committee veto. Id. at 12, note 15.

Id. at 36–37. See U.S. Const. art. I. §8, cl.4. Justice Rehnquist's dissenting opinion found the legislative veto provision to be unseverable from the remainder of §244. He did not reach the issue on the constitutional merits. See discussion supra.

N.Y. Times, June 25, 1983, at 8, cols. 4–6.

Chadha, slip op. of Powell, J., concurring, at 5–9.

Chadha, slip op. of Ct. at 32.

Chadha, slip op. of White, J., dissenting, at 20–24.

Chadha, slip op. of Ct. at 32–33, note 16.

Cf. Chadha, slip op. of White, J. dissenting, at 20–21. See generally 1983 Schwartz B. , An Introduction to American Administrative Law 26–54 (2d ed. 1962).

See generally Abraham H. , Freedom and the Court: Civil Rights and Liberties in the United States 342–43 (4th ed. 1982).

Supra note 62.

A statute subjecting named individuals to deportation would still be open to attack on other constitutional grounds, e.g. as a prohibited bill of attainder. See U.S. Const. art. I, §9, cl.3. Cf. Chadha, slip op. of Ct. at 14, note 8, and 33, note 17.

Any lingering doubt that the Court might limit Chadha to the 1-house veto of a purely executive agency decision (such as the INS) was erased by the Court's summary affirmation on July 6, 1983, of the U.S. Court of Appeals judgement striking down the 2-house congressional veto over Federal Trade Commission rules. See the Consumers Union case cited supra note 45, and Congressional Quarterly, Weekly Report, July 9, 1983 at 1406. Rulemaking by federal judicial bodies under authority delegated by Congress would also appear to be covered by the Chadha decision. See slip op. of Ct. at 14, note 9.

See N.Y. Times, June 24, 1983, at 1, cols. 4–5; Congressional Quarterly, Weekly Report, July 30, 1983 at 1564, 1576.

Chadha, slip op. of Ct. at 33, and note 18.

Congressional Quarterly, Weekly Report, July 2, 1983 at 1329.

Id. June 25, 1983 at 1265.

Chadha, slip op. of Ct. at 14, and note 9.

Cf. Fisher , “A Political Context for Legislative Vetoes”, 93 Pol.Sci.Q. 241, 244–45 (1978).

See The Federalist No. 48; National Broadcasting Co. v. United States, 319 U.S. 190 (1943); Lichter v. United States, 334 U.S. 742 (1948).

Lochner v. New York, 198 U.S. 45 (1905).

Schechter v. United States, 295 U.S. 495 (1935).

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).