Legislative Veto: Articles and Testimony

"Obama's Objections to Committee Veto Misguided," Roll Call, January 19, 2012. As with other Presidents, Barack Obama in his signing statements has objected to bills that require executive agencies to seek approval from congressional committees for certain actions. He claims the procedure violates the Supreme Court's decision in INS v. Chadha (1983), striking down the legislative veto. In calling committee review "congressional aggrandizement in the execution of the laws," he is apparently unaware that both branches for the last seven decades have understood the benefits of this process. Committee review and approval enables agencies throughout the fiscal year to shift funds to respond to new and pressing needs. The federal government needs to perform effectively. Committee vetoes serve that purpose.
"Committee Controls of Agency Decisions," CRS Report No. RL33151, November 16, 2005. Congress has a long history of subjecting certain types of executive decisions to committee control, both at the committee and subcommittee levels. In the 1940s, the executive branch and Congress entered into an accommodation that allowed Congress to delegate broadly while using committees to monitor the use of that discretionary authority. Notwithstanding the Supreme Court's decision in INS v. Chadha (1983), striking down the legislative veto, and presidential signing statements following that decision that repeatedly object to committee vetoes as invalid under Chadha, these executive-legislative accommodations persist.
“Legislative Vetoes after Chadha,” CRS Report No. RS22132, May 2, 2005. Following the Supreme Court's decision in INS v. Chadha (1983), Congress discontinued the use of one-house and two-house legislative vetoes. However, the Court's ruling had little effect on legislative vetoes that continued to operate at the committee and subcommittee levels, particularly to satisfy the desire of executive agencies to shift funds within an appropriations account through the process of "reprogramming." In their budget manuals, agencies specify the types of reprogrammings that require prior-approval from designated committees that appropriate and authorize agency programs.
"The Legislative Veto: Invalidated, It Survives," 56 Law & Contemp. Prob. 273 (1993). The Supreme Court's strained and highly theoretical ruling in INS v. Chadha (1983) did not stop the continued use of legislative vetoes at the committee and subcommittee levels. The Court failed to understand the political and legal history of the legislative veto, why it met needs important to both the executive and legislative branches, and how it originated not from congressional intrusiveness into administrative details but rather from Presidents who sought broader delegations of legislative authority and were willing to accept congressional checks short of public laws.
"Judicial Misjudgments About the Lawmaking Process: The Legislative Veto Case," 45 Pub. Admin. Rev. 705 (1985). The Supreme Court's decision in INS v. Chadha (1983) failed to understand how and why legislative vetoes surfaced. Instead of Congress intruding on executive matters, Presidents and agencies understood the value of Congress delegating broadly and retaining some kind of legislative check without going through the entire legislative process, including action by both houses and submitting a bill to the President. The political and constitutional misconceptions by the Court left the impression - a false one - that legislative vetoes would completely disappear after 1983.
"Statement before the House Committee on Rules, "Legislative Veto After Chadha," November 10, 1983. In seeking substitutes for the legislative veto after the Supreme Court's decision in INS v. Chadha, I explored techniques that were best suited to fulfill the purpose of Congress and to satisfy its constitutional duties. Simply replacing legislative vetoes with joint resolutions, which are submitted to the President for his review and potential veto, was not advisable. It is impractical to bring every executive-legislative dispute to the floor for full debate and action. Much of the effective work of Congress is done at the committee and subcommittee level. Informal methods of exercising control over executive agencies are essential.
"Congress Can't Lose on Its Veto Power," Washington Post, February 21, 1982. Although lower courts had begun to strike down the legislative veto and the issue was likely to go to the Supreme Court for final judicial action, this article argued that invalidation of the legislative veto would not be an automatic victory for the President and the executive branch. They could lose valuable flexibility that they had enjoyed under the legislative veto. Also, even if the Supreme Court broadly invalidated the legislative veto, it would likely continue at the committee level through various nonstatutory controls that had worked well for both Congress and executive agencies.
"A Political Context for Legislative Vetoes," 93 Pol. Sci. Q. 241 (1978). Hundreds of statutory provisions require the President and executive officials to report to Congress regarding intended actions with the understanding that Congress may, short of the full legislative process, disapprove. Congressional vetoes could be exercised by a single house, by both houses through a concurrent resolution, or by committees and subcommittees. None of those legislative actions are submitted to the President for his possible veto. This article analyzes the different types of legislative vetoes and why they originated through collective legislative and executive judgments.
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