The Legislative Veto in Times of Political Reversal: Chadha and the 104th Congress

By Herz, Michael | Constitutional Commentary, Summer 1997 | Go to article overview

The Legislative Veto in Times of Political Reversal: Chadha and the 104th Congress


Herz, Michael, Constitutional Commentary


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)

I. 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. …

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