CONGRESSIONAL OVERSIGHT OF
ADMINISTRATIVE DISCRETION:
DEFINING THE PROPER ROLE
OF THE LEGISLATIVE VETO
I.
INTRODUCTION
Congressional oversight of executive and bureaucratic power1 is a
legislative concern that dates back to the early years of the American
Republic. 2 The bureaucracy, conceived as a way to aid the President
administer the laws, has grown into what has been termed the "fourth
branch" of the government. 3 Its importance is reflected in the ongoing struggle between Congress and the President for control over
administrative agencies. Although the President's power to appoint
administrative officials and to issue executive orders and policy directives provides some measure of control over the bureaucracy, proposed legislative oversight mechanisms would increase the accountability of executive and independent agencies to Congress, and through
4
it, to the public.
A controversial oversight mechanism is the legislative veto-a procedure that enables Congress to review rules promulgated by various
administrative agencies and executive departments before they become effecitve. 5 A provision in the enabling legislation which authorizes this type of oversight requires an agency to submit its proposed regulations to Congress. The regulations are approved or
1. The term "bureaucracy" applies to independent regulatory agencies, as well as to
executive departments and agencies.
2. R. EGGER & J. HARRIS, THE PRESIDENT AND CONGRESS 21-40 (1970).
3. Congressional Review of Administrative Rulemaking: Hearings on H.R. 3658,
H.R. 3281 and Related Bills Before the Subcomm. on Administrative Law and Governmental Operations of the House Comm. on the Judiciary, 94th Cong., 1st Sess., 141
(1976) [hereinafter cited as Hearings on H.R. 3658]; 122 CONG. REC. H10,681 (daily ed.
Sept. 21, 1976) (remarks of Rep. Moore).
4. Traditional congressional oversight mechanisms include the power to appropriate
funds, to pass new legislation, and to issue directives for conducting and reporting on
studies. For a complete discussion of various oversight mechanisms and their effect on
administrative agencies, see J. HARMS, CONGRESSIONAL CONTROL OF ADMINISTRATION
(1964) [hereinafter cited as HARRIS]; M. OGUL, CONGRESS OVERSEES THE BUREAUCRACY (1976) [hereinafter cited as OGUL].
5. E.g., Atomic Energy Act Amendments of 1974, 42 U.S.C. § 2153 (Supp. V 1975).
6. E.g., Department of Interior and Related Agencies Appropriations for Fiscal Year
1975, Pub. L. No. 93-404, 88 Stat. 803 (to be codified in scattered sections of 16, 18, 43
U.S.C.).
19771
LEGISLATIVE VETO
disapproved 7 by both houses of Congress, 8 a single house, 9 or a designated committee. 10
The legislative veto was not a frequently employed oversight
mechanism until the late 1960's,11 and it did not receive a great deal
of academic attention until the middle 1970's. 12 By 1976, however,
Congress had adopted more than 300 separate veto provisions in over
200 different acts. 13 In the ninety-fourth Congress, a bill was introduced which would have extended the legislative veto power to all
administrative rules issued by every agency.' 4 The legislation would
have affected agencies created both before and after the enactment of
15
the bill.
Proponents of the legislative veto argue that although it increases
congressional control over the administration of legislation, it is simply a valid exercise of congressional oversight power. 16 The procedure, however, raises fundamental constitutional issues. The constitutional arguments focus on whether Congress' use of the legislative
veto encroaches on the powers of its coequal branches or permits
lawmaking through a constitutionally unauthorized procedure.
Notwithstanding the constitutional implications of the legislative
veto, its potential impact on the effectiveness of the administrative
process is significant. This comment will discuss the evolution of the
legislative veto as a form of congressional oversight, and then analyze
several types of veto provisions in terms of the constitutional issues
7. E.g., Employees Retirement Income Security Act of 1974 (ERISA), Pub. L. No.
93-406, 88 Stat. 829-1035 (to be codified in scattered sections of 5, 18, 29, 42 U.S.C.).
8. E.g., Export-Import Bank Amendments of 1974, 12 U.S.C. § 635 (Supp. V 1975).
9. E.g., Emergency Petroleum Allocation Act of 1973, 15 U.S.C. §§ 751-756 (Supp. V
1975).
10. E.g., Water Resources Development Act of 1974, 33 U.S.C. § 579 (Supp. V 1975),
as amended by Act of Oct. 22, 1976, Pub. L. No. 94-587, § 157(b), 90 Stat. 2933.
11. C. NORTON, CONGREssIoNAL REVIEW, DEFERRAL AND DIsAPPRovAL OF
EXECUTIVE ACTIONS: A SUMMARY AND AN INVENTORY OF STATUTORY AUTHORITY 1-3
(Congressional Research Service Pub. No. JK 1015 C, 1976) [hereinafter cited as CRS].
12. See, e.g., FitzGerald, Congressional Oversight or Congressional Foresight:
Guidelinesfrom the Founding Fathers, 28 AD. L. REv. 429 (1976) [hereinafter cited as
FitzGerald]; Watson, Congress Steps Out: A Look at CongressionalControl of the Executive, 63 CALIF. L. REv. 983 (1975) [hereinafter cited as Watson]; Note, Congressional Veto of Administrative Action: The Probable Response To a Constitutional
Challenge, 1976 DUKE L.J. 285; Note, Constitutionality of the Legislative Veto, 13
HARV. J. LEGIS. 593 (1976).
13. CRS, supra note 11, at 1-3.
14. Administrative Rulemaking Reform Act of 1976, H.R. 12048, 94th Cong., 2d
Sess., 122 CONG. REc. H10,666 (daily ed. Sept. 21, 1976).
15. Id.
16. According to this argument, the legislative veto does not have the force and effect of law; it is a congressional action designed to insure agency compliance with the
enabling statute. H.R. REP. No. 1014, pt. 1, 94th Cong., 2d Sess. 10 (1976).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:1018
presented. In an attempt to define the proper role of the legislative
veto as a means of improving congressional oversight over administrative agencies, the veto provisions of the Federal Election Campaign
Act 17 and the Federal Salary Act of 196718 will be examined from
both the constitutional and the practical standpoints. Finally, the
problems which the institutionalization of the legislative veto would
present to the administrative agencies and to Congress will be discussed, and an alternative framework for improved congressional
oversight suggested.
II.
A.
BACKGROUND
Evolution of Congressional Oversight of
Administrative and Executive Action
Although Congress was conceived as the legislative branch of the
federal government,1 9 it has continuously asserted authority to administer the laws. 20 The separation of powers doctrine, according to
its early interpretation, prohibited one branch of the government
from exercising power that was reserved in the Constitution for a
coequal branch. 21 Any congressional actions that could be termed
"executive" in nature violated this pure form of the doctrine. 22 Despite potential separation of power deficiencies, however, most of the
acts which authorized Congress to administer the laws went un23
challenged.
17. The veto provision of the Federal Campaign Act of 1971 (FECA), Pub. L. No.
92-225, 86 Stat. 3 (codified in scattered sections of 2, 18 U.S.C. (Supp. V 1975)), as
amended by Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283,
90 Stat. 475 (codified in scattered sections of 2, 18 U.S.C.A. (West Cum. Supp. 1977); ch.
95 I.R.C.).
18. Postal Revenue and Federal Salary Act of 1967, 2 U.S.C. §§ 351, 359(1)(B)
(1970).
19. U.S. CONST. art. I, § 1.
20. Watson, supra note 12, at 995.
21. Id. at 1053-74. Madison described the separation of powers concept embodied in
the Constitution and explained that the executive and judiciary could not exercise any
legislative powers. When any branch operates outside of its constitutional sphere, a system of tyranny results. THE FEDERALIST No. 74, at 303 (J. Madison) (Mentor ed. 1961)
[hereinafter cited as THE FEDERALIST].
22. Springer v. The Philippine Islands, 277 U.S. 189 (1928).
23. Watson, supra note 12, at 1053-74. Justice Jackson explained that due to the
importance of the legislation, presidential acquiescence was given despite constitutional
objections to the legislative veto. Jackson, A Presidential Legal Opinion, 66 HARV. L.
REv. 1353, 1357 (1953).
The framers adopted the doctrine of separation of powers to prevent the overconcentration of power in any one branch of the federal system. In order to attain efficient
government, however, it was essential to provide for extensive compulsory interaction
1977]
LEGISLATIVE VETO
Congress first exercised oversight actions outside its legislative
sphere by directing either an executive or a regulatory agency to take
specific action. 2 4 Statutory provisions which required congressional
resolutions by one or both houses to authorize Presidential action became a popular oversight mechanism in the late 1800's.25 It was determined subsequently that such congressional action must be in the
26
form of a concurrent resolution.
between the branches. THE FEDERALIST, supra note 21, Nos. 47, 48, at 307-08.
Professor Miller argues that the separation of powers is not a constitutional doctrine,
but an analytical framework for the function of the American system. He also asserts
that the term is a misnomer; in practice, it establishes distinct institutions sharing
power. Miller, Separation of Powers: An Ancient Doctrine under Modern Challenge, 28
AD. L. REv. 299, 300 (1976).
Justice Jackson's description of the interaction between the branches of government
places separation of powers into proper perspective:
The actual art of governing our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even
single Articles torn from context. While the Constitution diffuses power the better
to secure liberty, it also contemplates that practice will integrate the dispersed
powers into a workable government. It enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.
Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 635
(1952) (Jackson, J., concurring). See also Hampton and Co. v. United States, 276 U.S.
294, 406 (1928).
24. The first such oversight action occurred when Congress directed the Secretary of
the Treasury to conduct and report on budgetary studies. Congress controlled how the
budget was allocated by directing how budgetary studies would be conducted and reported. As this procedure developed, Congress began to appropriate funds directly for
specific programs by including program spending limitations within the enabling legislation. Watson, supra note 12, at 995. The power of appropriations remains as Congress' most potent and effective means of exercising control over the executive and the
bureaucracy. See generally HARRIS, supra note 4; OGUL, supra note 4.
25. Resolutions were originally used to govern internal legislative matters of Congress and to express congressional opinions. The first resolution employed for oversight
of the President directed the Executive to liquidate a claim that Congress found to be
within the contemplation of a statute.
The use of the resolution increased in the late 1800's. Watson attributes the popularity of the resolution to an 1854 Opinion of Attorney General Caleb Cushing, 6 Op.
ATT'Y GEN. 680 (1854), suggesting that in order for resolutions to be binding on the
President, they had to be provided for in a duly enacted statute. Thus, resolutions were
an accepted oversight mechanism when the executive acquiesced by signing the bill.
Watson, supra note 12, at 996-97.
For the purposes of this Comment, the three types of congressional resolutions will
be defined as follows: 1) A simple resolution requires an approval by a majority of
either House of Congress in order for it to become effective. 2) A concurrent resolution
requires approval by a majority of each House of Congress. 3) A joint resolution is a
concurrent resolution requiring presidential approval. See text accompanying notes
50-54 infra.
26. This development reflected concern over the ineffectiveness of submitting a
simple resolution to the President for his approval. See U.S. CONST. art. I, § 7, cl. 3.
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[Vol. 2.6:1018
In the early 1900's, Congress used resolutions primarily for inves27
tigation and information gathering to aid the legislative process.
Later, the resolution was used for purposes unrelated to the legislative process, including direct oversight of executive and administrative actions. 28 President Wilson's veto of the Budget and Recounting
Bill of 192029 was the first sign of presidential opposition to provisions
enabling direct congressional oversight of the executive. 30 Presidential disapproval of such measures has since become commonplace. 3 1
The form of congressional oversight thus far discussed directed the
executive or a regulatory agency, by resolution, to take specific affirmative action. Statutory provisions permitting congressional disapproval of authorized executive or agency action first appeared in the
Legislative Appropriations for Fiscal Year 1933.32 The provisions
were designed to monitor the President's reorganization of executive
agencies. 33 Presidential reorganization authority subject to a legislaCongress construed the requirement as applying only to "necessary" actions-the exercise of Congress' legislative power. Watson, supra note 12, at 999.
27. Watson, supra note 12, at 1000. Another effective device for congressional control over the executive is the investigatory and reporting power. See generally HARRIS,
supra note 4, at 249-51, 269-75; OGUL, supra note 4, at 105-29, 140-48, 175-80, 193-95.
28. Watson, supra note 12, at 1003. Although the enabling legislation authorized a
review procedure, Congress used the resolution to review both administrative decisions
and other substantive decisions beyond the scope necessary to procure information for
legislation. Id.
29. H.R. 9783, 66th Cong., 2d Sess., 59 CONG. REc. 6223 (1920).
30. Watson, supra note 12, at 1004-09.
31. Id. Presidential opposition, however, has been inconsistent and may depend on
the type of oversight mechanism used. Id.
In his testimony before the Subcommittee on Administrative Law and Governmental
Relations of the Committee on the Judiciary of the House of Representatives, H. Lee
Watson outlined the general hostility of the Chief Executive and Attorneys General
toward these types of provisions. He stated that Presidents Wilson, Hoover, Roosevelt,
Truman, Eisenhower, Kennedy, Johnson, and Nixon vetoed or criticized extra-legislative control of administrators. He noted that President Ford had vetoed bills containing such mechanisms but had taken no firm stance on the issue. Hearings on H.R. 3658,
supra note 3, at 274. However, President Ford subsequently informed Congress that he
intended to veto H.R. 12048, 94th Cong., 2d Sess. (1976), the bill which would have
given Congress the power to veto all rules promulgated by the executive branch under
enabling legislation. 122 CONG. REC. H10,674 (daily ed. Sept. 21, 1976) (remarks of
Rep. Steiger). See also Atkins v. United States, 556 F.2d 1028 (Ct. Cl. 1977) (Skelton, J.,
dissenting).
32. Pub. L. No. 72-212, § 407, 47 Stat. 414 (1932), 5 U.S.C. §§ 124-131 (1934) (expired 1935). Under Title IV of the Reorganization Act, the President was authorized to
reorganize executive agencies and their responsibilities. The executive order was to
become effective after 60 calendar days or by a concurrent resolution, but if either
House of Congress passed a simple resolution disapproving the order, it would become
null and void. CRS, supra note 11, at 13.
33. Id. at 13.
197'7]
LEGISLATIVE VETO
tive veto was in the interest of both the President and the Congress;
therefore, there was little opposition to its use on constitutional
34
grounds.
The number of provisions requiring congressional review of and
consent to executive actions gradually increased between 1932 and
1970. 3 5 Since 1970, there has been a dramatic increase in the number
and complexity of legislative review and consent requirements. With
the exception of the bureaucratic reorganization acts, Congress passed
virtually all important legislative veto provisions after 1970,36 and
more than half of the provisions enacted between 1970 and 1975 were
enacted in 1975. 3 7
Although the constitutionality of the various oversight mechanisms
was not tested judicially, congressional debates38 and Opinions of Attorneys General 39 contain evidence of the tension between the oversight mechanisms and the doctrine of separation of powers. Each subsequent oversight mechanism conflicted more significantly with the
early interpretation of the doctrine than did its predecessor. Ulti-
34. See note 23 supra. The growing complexity of the government in the 1930's
required delegation of authority to the President while Congress was assured that its
control of executive organization would not be diminished. HARIMS, supra note 4, at
204; Hearingson H.R. 3658, supra note 3, at 274-75.
35. CRS, supra note 11, at 1-2. There were 4 legislative veto provisions passed in
the 1930's; 19 were passed in the 1940's; 34 passed in the 1950's; and 49 enacted in the
1960's. Id. The subject matter of the earlier statutes shows that such provisions were
used primarily where the exercise of power was within the congressional sphere, but
due to the nature of the legislation, executive action was preferable. Id. at 13-22.
36. The statistical data concerning the number of provisions may be somewhat misleading. In a prepared statement submitted to the Administrative Law Subcommittee,
Watson explained that the data compiled by the Congressional Research Service study
was inflated, because it included several types of noncontroversial provisions such as
"report and wait" (administration is required to report its proposed actions in advance
so that Congress can obtain information necessary for legislation), "no appropriations"
(tantamount to congressional rulemaking power through fiscal restraints), and acceleration provisions (Congress may waive the waiting period required for the rule to become
effective). Hearings on H.R. 3658, supra note 3, at 278. It is also interesting to note that
very few resolutions have been passed under the authority of the legislative veto provisions. Id.
37. CRS, supra note 11, at 1-3. Of 89 review and consent provisions passed between
1970 and 1976, 58 were passed in 1975. Id. at 2. See also Hearings on H.R. 3658, supra
note 3, at 274-75.
38. Watson, supra note 12, at 1002-28.
39. Attorney General Griffin Bell issued an opinion asserting that the legislative veto
was constitutional when it was used in reorganization acts. The opinion withheld comment on the constitutionality of the legislative veto when used in other types of legislation. 43 Op. ATr'Y GEN. 10 (1977). For a further discussion of positions taken by the
Attorney General regarding congressional oversight mechanisms, see Watson, supra
note 12, at 1002-28.
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[Vol. 26:1018
mately, these mechanisms have been reconciled with the doctrine
through compromises in the form of oversight mechanisms and
through a more liberal interpretation of the meaning of the separation
of powers doctrine. The tension remains, however, and the legislative
veto may present irreconcilable constitutional inconsistencies despite
a more relaxed interpretation of the concept of separation of powers.
B. CongressionalOversight:
Maintainingthe ConstitutionalBalance
The Articles of Confederation were drafted to enable elected representatives to govern without a credible chief executive; therein lay
its principal weakness. 40 The Constitution reflected a more pragmatic
view of government-a view that each branch of government would
ultimately seek to attain for itself complete control over the exercise
of political power. 4 1 The framers of the Constitution believed that the
legislature, due to its representative selection/and popular support,
could subvert the scheme of a delicately balanced American government by controlling the other branches. 42 Therefore, the delegation
of specific powers to the Congress under article I, and the general
grant of executive power to the President under article II were designed to control and check the legislature while encouraging executive power sufficient to maintain this precise balance. 43 The two principal sources of explicit checks on the power of Congress were the
bicameral system of the legislature and the veto power of the ex44
ecutive.
40. THE FEDERALIST, supra note 21, No. 21.
41. See, e.g., W. BINKLEY, THE PRESIDENT AND CONGRESS 12, 19-20 (3d ed. 1962)
[hereinafter cited as BINKLEY]; THE FEDERALIST, supra note 21, No. 48, at 308 (J. Madison).
42. BINKLEY, supra note 41, at 28; THE FEDERALIST, supra note 21, No. 48, at 310
(J. Madison). The framers believed that the legislature, especially the House of Representatives, would dominate the other branches of government because it was the only
body whose representatives were elected directly by the people. That direct link with
the people was thought to give it a more legitimate claim to power over the other
branches. Thus, the framers were careful to give the executive and judicial branches
sufficient power to prevent usurpation by the legislature. See also THE FEDERALIST,
supra note 21, Nos. 71, 73, at 433, 442 (A. Hamilton).
43. BINKLEY, supra note 41, at 28, 30; THE FEDERALIST, supra note 21, No. 73, at
442-43 (A. Hamilton); Watson, supra note 12, at 1031, 1044. But cf. Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579 (1952) (President's powers limited to those enumerated in the Constitution where no statute enacted by Congress specifically authorizes
such action).
44. Watson, supra note 12, at 1044. Madison argued that a bicameral legislature
1977]
LEGISLATIVE VETO
The precise tripartite balance established by the framers has been
upset by the emergence and proliferation of administrative agencies
which often exercise forms of executive, legislative, and judicial
power. 4 5 Thus, it is unclear which branch should be able to control
them. Congress has sought to extend its control over the bureaucracy
46
by attempting to exercise power to administer the laws.
The President frequently has failed to challenge congressional encroachments on his power to administer the laws. 4 7 The growth of
the federal bureaucracy, however, has increased the importance of
checking agency action, and acccordingly, the struggle between the
President and Congress for control over administrative agencies has
intensified. Due to the size and administrative responsibilities of the
bureaucracy, 48 the outcome of the struggle is of great importance in
terms of maintaining the constitutional balance of power. The complete domination of the bureaucracy by any branch would emasculate
the power of the other branches.
Thus, the primary concern with congressional oversight mechanisms is that they may cause an imbalance between the coequal
branches and undermine the separation of powers principle. Although
administrative agencies were not addressed by the Constitution, their
operation and governance must comport with the framers' intent to
create a tripartite system. Consequently, legislative veto provisions
must be examined to determine whether they work to the furtherance or detriment of a balanced tripartite government.
would provide security to the people by requiring two distinct bodies to concur, which
in turn would help to prevent abuses within the legislature. THE FEDERALIST, supra
note 21, No. 62, at 378 (J. Madison).
The veto power represents an executive role in the legislative process and the most
effective presidential weapon against legislative tyranny. The debates of the framers
reflect a great concern over this power-whether it should be absolute and, if not, what
percent of Congress should be required to override the veto. Watson, supra note 12, at
1044-48. See also THE FEDERALIST, supra note 21, Nos. 69, 73, at 416-17, 442-43 (A.
Hamilton).
45. For example, the Federal Trade Commission can promulgate rules within the
scope of its enabling act-a legislative function. It may then execute the laws by investigating and enforcing agency regulations. Finally, it may adjudicate disputes between
the enforcement division and a party challenging the regulations or their enforcement.
See generally K. DAVIS, ADMINISTRATIVE LAW OF THE SEVENTIES (1976).
46. Watson, supra note 12, at 995.
47. Id.
48. In 1974, 67 Federal agencies adopted 7,596 new or amended regulations. During
the same period, Congress passed 404 public laws-a ratio of 18-1. STAFF OF SENATE
COMM. ON GOVERNMENT OPERATIONS, 95TH CONG., IST SESS., STUDY ON FEDERAL
REGULATION 116 (Comm. Print 1977) [hereinafter cited as SENATE STUDY].
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III.
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THE CONSTITUTIONALITY OF THE LEGISLATIVE VETO
A.
Types of Veto Provisions
The legislative veto is a shorthand term used to refer to various
congressional oversight procedures. The language of the statutory
provisions and the procedures they prescribe may differ, but for purposes of a constitutional analysis, the legislative vetoes may be
49
characterized as one of three types.
Many legislative veto provisions specify that an administrative rule
may be disapproved by a simple resolution or approved by a concurrent resolution. 50 Although the procedures by which these actions are
taken differ, they involve similar constitutional considerations. 5 ' A
simple resolution for disapproval enables one House of Congress to
defeat an administrative rule without the agreement of the other
House. A concurrent resolution for approval requires the approval
of both Houses in order for the administrative rule to become effective-if one House fails to approve the rule, it is defeated. Thus,
both the simple resolution for disapproval and the concurrent resolution for approval allow action taken by one House to determine
52
whether a rule promulgated by an agency becomes effective.
Other provisions delegate authority to congressional committees or
subcommittees to oversee administrative agencies through the veto
procedure; this oversight provision has been termed the "committee
veto." Although the specific language of the enabling legislation may
49. The veto provision of the Federal Election Campaign Act of 1971 (FECA), Pub.
L. No. 92-225, 86 Stat. 3 (codified in scattered sections of 2, 18 U.S.C. (Supp. V 1975)),
as amended by Federal Election Campaign Act Amendments of 1976, Pub. L. No.
94-283, 90 Stat. 475 (codified in scattered sections of 2, 18 U.S.C.A. (Cum. Supp. 1977);
and ch. 95 I.R.C.) contains various features of the three types of veto provisions discussed. See notes 105-34 & accompanying text infra.
50. See, e.g., note 8 supra.
51. See notes 56-104 & accompanying text infra.
52. It should be noted that the simple resolution for disapproval differs from the
concurrent resolution for approval in one respect-the former allows rules to become
effective by nonaction, while the latter requires congressional action. Justice White relied on this distinction in his opinion in Buckley v. Valeo, 424 U.S. 1, 284-85 (1976)
(White, J., concurring and dissenting). He asserted that nonaction in allowing rules to
become effective is not the equivalent of a legislative act requiring the concurrence of
both Houses or the approval of the President. Id. at 284-86. Justice White's position has
been criticized severely because it ignores the situation in which Congress does exercise its veto with a simple resolution for disapproval. In that case, Congress acts just as
emphatically as if it had approved the rules by a concurrent resolution for approval. J.
BOLTON, THE LEGISLATIVE VETO 37 (1977). Justice White's argument, however, was
also the cornerstone of the decision in Atkins v. United States, 556 F.2d 1028 (Ct. Cl.
1977). See notes 135-51 & accompanying text infra.
19771
LEGISLATIVE VETO
vary, committee vetoes generally require agreement between the
agency and the committee on the provisions of the rule before they
become effective. 5 3
The third type of legislative veto provision, the concurrent resolution for disapproval, requires that action be taken by both Houses in
order to defeat a proposed administrative rule.5 4 This procedural variation is significant, since it is the only type of legislative veto that
requires action by both Houses-the form of action prescribed in the
Constitution for the exercise of the legislative power.
B.
The ConstitutionalIssue
Within the past twenty-five years, the constitutional arguments
raised by the legislative veto have been the subject of many scholarly
discussions.5 5 Litigation in response to recent legislation suggests that
the constitutional issue will be settled in the near future. 56 Proponents of the legislative veto argue that it does not have the effect of
establishing law when it is exercised. 5 7 The significance of this assertion is that acts of Congress which do not have the effect of lawmaking require none of the checks imposed by the Constitution. 58 Thus,
the argument continues, since the legislative veto does not constitute
lawmaking, it is within the sphere of permissible actions necessary for
the legislative process. 5 9 As long as the means are reasonable and
53. See note 10 supra.
54. See note 7 supra.
55. HAuus, supra note 4, at 238-48; Cooper, The Legislative Veto: Its Promise and
Its Perils, 7 PUB. POL'Y 128 (1956); Cooper & Cooper, The Legislative Veto and The
Constitution, 30 GEO. WASH. L. REV. 467 (1962) [hereinafter cited as Cooper &
Cooper]; FitzGerald, supra note 12; Ginnane, The Control of FederalAdministrationby
Congressional Resolutions and Committees, 66 HARV. L. REv. 569 (1953); Jackson, A
PresidentialLegal Opinion, 66 HARV. L. REV. 1353 (1953); Miller & Knapp, The Congressional Veto: Preserving the Constitutional Framework, 1977 IND. L.J. 367 [hereinafter cited as Miller & Knapp]; Small, The Committee Veto: Its Current Use and Appraisals of Its Validity, Library of Congress Research Service Document JK 1015C
(Jan. 1967); Watson, supra note 12 (considered the definitive work on the historical
precedents of congressional oversight and on the development of constitutional issues);
Note, CongressionalVeto of Administrative Action: The Probable Response to a Constitutional Challenge, 1976 DuKE L.J. 285; Note, Constitutionality of the Legislative
Veto, 13 HARV. J. LEcIs. 593 (1976).
56. See notes 105-51 & accompanying text infra.
57. See note 16 supra. Throughout this comment, the terms "lawmaking" and "establishing law" are used to connote action having the force and effect of law.
58. See notes 71-72 & accompanying text infra.
59. Any means that violate no constitutional provisions and that are reasonably calculated to benefit the exercise of the legislative power should be sustained. McCulloch
v. Maryland, 17 U.S. (4 Wheat.) 311, 326 (1819).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:1018
violate no constitutional provisions, 60 the legislative veto is a valid
exercise of congressional oversight employed to insure that agencies
comply with congressional intent.
The argument correctly assumes that an act of Congress which does
not constitute lawmaking does not require the checks prescribed by
the Constitution. It is well settled, however, that a resolution can
have the effect of establishing law, and when it is used in this manner, it must comply with the Constitution's checks on the legislative
power. 6 1 If Congress delegates legislative authority to administrative
agencies to promulgate rules, these rules, upon congressional approval, have the force and effect of law. 62 Similarly, congressional
action that determines which administrative rules become effective
has the effect of establishing law and requires the constitutionally
prescribed institutional checks.
Opponents of the legislative veto challenge its constitutionality on
three grounds: certain types of veto provisions contravene the principle of a bicameral legislature; the procedure permits lawmaking by
Congress without the required presidential approval; and the use of
the legislative veto allows Congress to exceed the scope of its constitutional power. Each of these constitutional arguments will be examined in succeeding sections.
1. The requirement of a bicameral legislature
The framers of the Constitution, by creating a bicameral legislature, sought to control the inherent tendency of the legislature to
60. Id.
61. United States v. California, 322 U.S. 19 (1946) (concurrent resolution used by
Congress to cede land to California held to require presidential affirmation). See also
Watson, supra note 12, at 1050-51. Watson argues that any congressional action which
has the effect of lawmaking must maintain the basic forces in the government-a balance between the local and national interests which the legislators represent, a balance
between legislative and executive power, the exclusion of the legislators' personal interests, and a limitation on the power of the federal government. Any action that alters
this formula requires careful scrutiny. Id. at 1048-49. Thus, any disruptive effect the
legislative veto has on the constitutional balance makes the action of questionable validity. Action by one House seems to disturb the constitutional balance. See notes 63-68 &
accompanying text infra.
It can also be argued that one-House or committee action violates the incompatability clause, U.S. CONST. art. I, § 6, cI. 2. For a discussion of the relation of the incompatability clause to action by a subgroup of Congress, see note 69 & accompanying text
infra.
62. K. DAVIS, ADMINISTRATIVE LAW TEXT § 1.07 (3d ed. 1972). Kenneth Culp Davis
notes that agencies exercise three types of power-legislative, executive, judicial-and
concludes that in the context of agencies, the powers should not be exercised separately, but should be combined. Id. § 1.08.
LEGISLATIVE VETO
dominate the other branches. 63 In order to check the legislative
power, the framers created two Houses elected from different
constituencies. 6 4 One body of the legislature would be unable to
enact an "unwise" bill into law; approval of the second house would
prove the merit of the bill. 6 5 The bicameral principle can be inferred
from the grant of only a limited number of powers to one House
which do not require action by the other.6 6 By inference, then, congressional actions must be taken by both Houses unless the Constitution provides otherwise.
When legislative veto provisions permit action by one House of
Congress to determine whether an administrative rule may become
effective, the bicameral legislative formula is circumvented. As administrative rules are laws made pursuant to enabling legislation, it
can be argued that the bicameral formula must be followed. Congressional action to determine whether the rule may become effective
must be taken by the entire legislature.
The one-House and committee vetoes are vulnerable to a constitutional attack from this standpoint, because neither procedure requires
action by both Houses. Even if the enabling act were adopted according to constitutional prescription, 67 Congress cannot delegate legislative power to one House or to one committee. The power must be
exercised by both Houses.6 8 If executive power can be exercised by
the legislature, it also must be exercised by the entire Congress. 69
63. Madison believed that the legislature had an inherent tendency to usurp the
powers of the other branches. The House, he argued, would tend to be the more ambitious chamber of the legislature because it represented the people, while the Senate
represented the states. Thus, a large state could exercise greater power in the House
than in the Senate. THE FEDERALIST, supra note 21, Nos. 48, 55, 58 (J. Madison). The
framers sought to stabilize the legislature by providing longer terms for senators than
for representatives, and by granting certain one-House powers to the Senate. THE
FEDERALIST, supra note 21, No. 62, at 310 (J. Madison). The requirement that bills be
passed by both Houses was thought to insure calm and deliberate reflection of the legislative action. THE FEDERALIST, supra note 21, No. 63, at 384-85 (J. Madison).
64. See note 63 supra.
65. Id.
66. U.S. CONST. art. I, § 2, cl. 5; id. § 3, cl. 6; id. art. II, § 2, cl. 2.
67. The enabling act either must pass both Houses of Congress and be signed by the
President, or must pass by a two-thirds majority of each House over a presidential veto.
U.S CONST. art. I, § 7, cls. 1, 2.
68. The bicameral principal requires action by both Houses of Congress. See notes
63-66 & accompanying text supra.
69. Under the incompatability clause, U.S. CONST. art. I, § 6, cl. 2, a part of Congress
may not exercise any power that does not inure to the legislative power. See Buckley v.
Valeo, 424 U.S. 1, 126 (1976) (Congress may not exercise appointment power due to the
incompatability clause); Kilbourn v. Thompson, 103 U.S. 168, 182 (1880) (Congress may
not punish uncooperative witnesses before a congressional investigation).
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Although the framers' fear that the legislature would dominate the
political system has not been proven historically, 70 this cannot justify
circumventing the Constitution. It is only permissible for one House
of Congress to exercise power when the Constitution specifically provides for it, 7 1 or when the action taken is necessary for the exercise of
72
the legislative power.
2. Executive veto
The role of the executive in the lawmaking process reflects a constitutional policy favoring interbranch action. Historically, presiden70. In fact, executive power has required congressional supervision. For an account
of the presidency as the powerful branch despite the framers' contrary concern, see R.
EGGER & J. HARRIS, supra note 2, at 21-40.
A recent example of an extensive discussion of the significance of the powers enumerated to Congress versus the general powers granted the Executive was the debate
concerning the War Powers Resolution, 50 U.S.C. §§ 1541-1548 (Supp. III, 1973). The
Act required the President, in certain situations, to report the use of armed forces to
Congress. The President was required to terminate the activity within 60 calendar days
unless Congress declared war, authorized continuation of the activity, extended the 60
day period, or could not meet due to armed attack. This direct congressional oversight
of the executive warmaking power raised several fundamental constitutional issues. Although an impressive assemblage of the nation's foremost constitutional lawyers participated in the debate, it provides only slight assistance in resolving the constitutionality
of the legislative veto. The focus of the debate was primarily on the powers delegated
specifically for declaring war and for providing for the national defense. See Hearings
on S. 731, SJ. Res. 18 and SJ. Res. 59 Before the Senate Comm. on Foreign Relations,
92d Cong., 1st Sess. (1971); Hearings on S. 440 Before the Senate Comm. on Foreign
Relations, 93d Cong., 1st Sess. (1973); S. Rep. No. 92-606, 92d Cong., 2d Sess. (1972);
SENATE COMM. ON FOREIGN RELATIONS, 91ST. CONG., 2D SEss., DOCUMENTS RELATING TO THE WAR POWER OF CONGRESS, THE PRESIDENT'S AUTHORITY AS
COMMANDER-IN-CHIEF AND THE WAR IN INDOCHINA (Comm. Print 1970).
71. U.S. CONST. art. I, § 2, cl. 5 (the House chooses its speaker and officers, and
impeaches them); id. § 3, cl. 5 (the Senate chooses its officers); id. cl. 6 (the Senate has
the power of impeachment); id. art. I, § 5, cl. 1 (each House judges its own members'
elections and qualifications).
72. Under the "necessary and proper" clause, U.S. CONST. art. I, § 7, cl. 18, the
delegation of investigation, research, and similar types of authority is permissible as
"necessary" for the exercise of the legislative power. It is imperative that powers exercised under the "necessary and proper" clause use "all means which are appropriate,
which are plainly adapted to that end, which are not prohibited, but consistent with the
letter and spirit of the Constitution ..
." McCulloch v. Maryland, 17 U.S. (4 Wheat.)
311, 326 (1819). The one-House power violates this principle. See also THE FEDERALIST, supra note 21, No. 33 (A. Hamilton).
One argument offered in support of a legislative veto exercised by one House is that
since the legislation has already been enacted, subsequent extra-legislative action, even
if it has the effect of law, does not require action by both Houses of Congress because it
is a negative act. It would be anomalous to say that the framers' inclusion of the veto
requirement, U.S. CONST. art. I, § 7, cl. 3, could pemit such a technical distinction. The
entire system of checks and balances and the measures taken to preclude certain factions from dominating the legislature would be frustrated. See note 55 supra.
19771
LEGISLATIVE VETO
tial approval has been required for all congressional action, with the
exception of the congressional power to propose constitutional
amendments. 73 When a two-thirds majority of each House passes an
amendment, no presidential approval is required, as the amendment
is not enacted until it is ratified by the stateg.7 4 When Congress attempted to circumvent the executive veto by passing a resolution to
cede land to a state, the Supreme Court held that such action required presidential affirmation, as all acts which in effect make law
must be in accordance with the lawmaking process prescribed by the
75
Constitution.
The framers considered the executive veto the most effective check
on congressional power. 76 It enables the President to defeat congressional legislative action unless a two-thirds vote to override the veto
can be obtained. 77 When congressional action has the effect of lawmaking, the President is constitutionally entitled to exercise the veto
power.
Proponents of the legislative veto argue that although an administrative agency's promulgation of rules under the authority of enabling
legislation has the effect of establishing law, constitutional problems
are avoided, as the rules are promulgated pursuant to legislation
passed by Congress and presumably signed by the President. Opponents of the veto argue that once an administrative rule is proposed
by an agency, congressional action that determines whether the rule
becomes effective has the effect of lawmaking. 78 According to the
constitutional framework, such congressional action should provide
the President with the opportunity to exercise the veto power after
the rule has been reviewed by Congress. As the legislative veto process does not require subsequent executive action, it is in derogation
of the executive veto power.
It can be argued, however, that the President had the opportunity
to veto the enabling act. The President's acquiescence to a specific
73.
74.
See Watson, supra note 12, at 995.
Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798).
75. United States v. California, 332 U.S. 19 (1946). It was asserted that the resolution
did not require presidential approval under Hollingsworth v. Virginia, 3 U.S. (3 Dall.)
378 (1798), because the disposal of public property was within the scope of congressional power. U.S. CONST. art. IV, § 3, cl. 2.
76. THE FEDERALIST, supra note 21, No. 73, at 442-43 (A. Hamilton). Hamilton be-
lieved that the executive veto would provide a dual check on congressional power; it
would safeguard the nation from unwise legislation, and it would provide the President
with sufficient power to prevent congressional encroachment on his power. Id.
77. U.S. CONST. art. I, § 7, cls. 2, 3.
78. See notes 61-62 & accompanying text supra.
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legislative veto provision would make a subsequent exercise of that
veto by both houses constitutional. By signing the bill, the President
indicates in advance that he approves the congressional action that
completes the legislative process; 79 he has, in effect, waived his veto
power concerning the specific bill enacted.
It must be emphasized that presidential acquiescence to a particular legislative veto provision must not preclude the exercise of his
constitutional powers in all similar instances. Thus, when the President signs a bill containing a legislative veto provision, he has only
waived his right to veto Congress' oversight of administrative rulemaking pursuant to the particular enabling legislation. Any prospective forfeiture of the presidential veto for all administrative rules, it
can be argued, is constitutionally impermissible. 8 0
3.
Encroachment on the executive power
The Constitution grants the President the power to execute the
laws. 81 Congress has the power to pass bills and to perform other
enumerated functions under Article 1.82 Under a strict interpretation
of the separation of powers doctrine, any congressional encroachment
8 3
on the President's power to execute the laws is unconstitutional. It
has been suggested that the legislative veto is such an encroachment.8 4 Under this theory, once Congress has passed a bill, its constitutional function is complete; it is the President's task to administer
the legislation. Subsequent congressional action can only be taken
through the legislative process. Contrary to this principle, the legislative veto permits Congress to execute federal legislation by determin85
ing which administrative rules are required to administer the law.
The boundaries of congressional power have been unclear for many
years. 86 The separation of powers doctrine does not require the com79. See notes 77-78 & accompanying text supra. The constitutional problems which
may arise in the event of a legislative override of the President's veto is beyond the
scope of this Comment.
80. See notes 152-83 & accompanying text infra.
81. U.S. CONST. art. II, § 1, cl. 1.
82. U.S. CONST. art. I.
83. See, e.g., Springer v. The Philippine Islands, 277 U.S. 189 (1928) (authority of
legislators to appoint agents to execute legislation was an unconstitutional encroachment on the executive power).
84. Watson, supra note 12, at 1053-74.
85.
Id.
86. Recent Supreme Court decisions have favored greater interaction between the
branches and described the functions of the branches in more general terms. Compare
Springer v. The Philippine Islands, 277 U.S. 189, 202 (1928) ("[T]his separation and the
consequent exclusive character of the powers conferred . . . is basic and vital .... "),
LEGISLATIVE VETO
plete compartmentalization of the branches. 8 7 The Supreme Court
supported this view in Buckley v. Valeo 8 8 and stated that "the hermetic sealing off of the three branches of government from one another will preclude the establishment of a Nation capable of governing itself effectively." 89 The difficulty lies in determining the extent
to which Congress may exercise executive power in the name of effective government.
The Supreme Court has seldom addressed this issue; Springer v.
The Philippine Islands9" is virtually the only case in which the Court
discussed congressional encroachment on executive power.9 1 The
Philippine legislature created nationally owned corporations whose
directors were selected by the Philippine President of the Senate, the
Speaker of the House of Representatives and the Governor-General.
The Supreme Court held that the selections procedure vested execu92
tive power in legislative representatives.
The Court emphasized that, due to the "exclusive character of the
powers conferred upon each of the three departments," each branch
was authorized to exercise only those powers specifically enumerated
in the Constitution. 9 3 Thus, unless a power was expressly conferred
upon it, a branch of government could not exercise the type of power
given to another branch. 94 The legislative power was defined as the
authority to pass laws; the power to enforce laws and to appoint administrators to enforce them belonged to the executive. The Court
held that the selection of public agents charged with executive func95
tions was beyond the scope of the legislative power.
and Kilbourn v. Thompson, 103 U.S. 168, 190-91 (1880) ("[P]erfection of the system
requires that the lines which separate . . . these departments shall be broadly and
clearly defined.") with Buckley v. Valeo, 424 U.S. 1, 121 (1976) ("[tlhe Constitution by
no means contemplates total separation of ... these three .. .branches.") and Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 635 (1952)
(Jackson, J., concurring) ("[The branches have] separateness but interdependence,
autonomy but reciprocity").
87. Buckley v. Valeo, 424 U.S. at 121; Youngstown Sheet & Tube Co. v. Sawyer
(The Steel Seizure Case), 343 U.S. at 635 (Jackson, J.,
concurring).
88. 424 U.S. 1 (1976).
89. Id. at 121.
90. 277 U.S. 189 (1928).
91. Watson, supra note 12, at 1011.
92. 277 U.S. at 202. It was argued that the function of appointing the directors was
executive in nature. While the case challenged two acts, similar provisions were used in
at least four other statutes. This led to a claim that the legislature had a systematic plan
to take over the control of nationalized corporations. Id. at 199.
93. Id. at 207.
94. Id. at 201-02.
95. Id. at 202. The Court viewed the powers which the legislative representatives
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Springer can be read broadly to hold that after a statute is enacted,
any legislative intrusion into the administration of the law violates the
executive prerogative and is therefore unconstitutional. On the other
hand, since there is an important distinction between the nature of
the actions of the Philippine legislature and the actions of Congress in
the exercise of the legislative veto, the case may be limited in its
application.96
The value of Springer may be questioned further because it involved the legislature's participation in the selection of administrative
officials-a power reserved specifically for the executive. Arguably,
the legislative veto is within the permissible scope of congressional
concerns. Oversight of administrative agencies and the executive is
necessary for the exercise of the legislative power, 97 because it insures the proper interpretation and implementation of congressional
intent.
4. Congressional delegation of the legislative power
The constitutional analysis of the legislative veto has been limited
thus far to issues primarily concerning the separation of powers doctrine. The discussion has centered around arguments that the legislative veto permits Congress to encroach on powers reserved explicitly
for another branch or to avoid the constitutionally prescribed internal
checks on the legislative branch.
On the other hand, the legislative veto can, arguably, improve the
balance between the coequal branches by requiring additional interbranch checks. Congressional review of administrative and executive
action is authorized by statute; therefore, it can be argued that even
if this review allows one branch to exercise a power enumerated specifically for another branch, the review is permissible as a voluntary
delegation of the enumerated power.
If Congress can delegate legislative power to promulgate rules to
the executive or to the bureaucracy, then, arguably, that delegation
can be made with the stipulation that Congress subsequently may
review the administrative rules promulgated under the authority of
the statute. If Congress delegates part of its legislative power to the
exercised as executive or judicial in nature and therefore not within the sphere of per-
missible legislative action. The legislature had the authority to pass laws regarding the
property in question but it had no authority to appoint managers. Id. at 181-82.
96. Watson, supra note 12, at 1011.
97. Cooper & Cooper, supra note 55, at 500-01. See also Atkins v. United States,
556 F.2d 1028 (Ct. Cl. 1977).
19771
LEGISLATIVE VETO
executive, or does so conditionally-that is, reserving part of the
power for itself-the legislative veto is the constitutionally permissible exercise of the remaining legislative power. Thus, the presidential
affirmation is supplanted by the legislative veto as the final act in the
legislative process. Alternatively, the legislative veto may be viewed
as a voluntary delegation of executive power to Congress by the President, evidenced by his approval of a bill containing a legislative veto
provision. The issue then is whether the legislative power or the executive power was delegated properly according to judicially shaped
standards.
The delegation doctrine developed in a line of cases that tested the
constitutionality of the congressional delegation of legislative power to
the executive. In early cases involving the delegation of legislative
power, the Supreme Court held that such delegation to the executive
was permissible, provided that Congress had already enacted the
legislation, the execution of the act depended on future conditions,
and Congress included clear guidelines to indicate when the legislation should be implemented.9 8 The Court thus relied on a fiction that
the President or the administrative agency merely executed the law.
They ostensibly exercised discretion only in deciding when the legislation should be put into effect; the substance of the legislation was
unaffected.
Judicial emphasis later shifted from the enactment-execution distinction to the requirement that when Congress delegated its authority, it had to provide within the statute explicit standards for implementing the law.9 9 In later cases applying the same criterion,
but with less exacting scrutiny, the Court deemed even the most
vague standards sufficiently precise. The modern doctrine still permits the delegation of legislative authority as long as sufficiently precise standards for execution appear in the statute. The difference is
98. Hampton & Co. v. United States, 276 U.S. 394, 406-09 (1928) (upholding delegation of authority to the executive to determine changes required in tariffs due to an
independent event, market fluctuations). Accord, Currin v. Wallace, 306 U.S. 1 (1938)
(upholding a requirement for a favorable vote by tobacco growers before legislation
governing tobacco production could become effective).
99. See, e.g., H.P. Hood & Sons v. United States, 307 U.S. 588 (1939); United States
v. Rock Royal Co-op, 307 U.S. 533 (1939) (companion cases) (delegation of price-fixing
authority to the Secretary of Agriculture upheld because explicit standards and elaborate
procedures were included); Schechter Poultry Corp. v. United States, 295 U.S. 495
(1935) (standards for the executive's approval of codes of "fair competition" held deficient); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (delegation of authority to the
executive to promulgate rules prohibiting and punishing the transfer of petroleum in
interstate commerce in excess of state-imposed limits held to lack constitutionally re-
quired standards).
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that almost any degree of standards may be sufficient, even if they
must be inferred. 10 0
Whether Congress delegates the legislative power to itself to effect
rules, or reserves part of this legislative power, it can be argued that
the delegation or reservation is constitutional as long as the enabling
legislation has been passed according to the constitutional formula,
and contains sufficiently precise standards. When a bill, passed by
both houses and signed by the President, provides for a legislative
veto, the exercise of the veto by the entire Congress completes the
legislative act. The procedure can be compared to those which the
Supreme Court has approved concerning a rule that becomes effective on the occurrence of an independent event. 10 1 In the context of
the legislative veto, the event required for the rule to become effective is congressional approval.
The alternative argument is that by signing the bill, the President
has delegated to Congress executive power to administer the law. If
Congress can delegate legislative power to the executive under certain conditions, 10 2 the President should be permitted to delegate executive power to Congress when the enabling act contains sufficiently
precise standards for the exercise of power. Thus, an enabling act
provision for the concurrent resolution for disapproval of administrative rules is constitutionally permissible because the President has
approved it, or because he has delegated to Congress a limited form
of executive power. This increased sharing of executive power be100.
Zemel v. Rusk, 381 U.S. 1 (1965) (delegation of authority to the Secretary of
State to impose passport restriction was upheld based on prior administrative activity
and legislative inaction despite the absence of any standards prescribing his exercise of
discretion); Kent v. Dulles, 357 U.S. 116 (1958) (upheld delegation of authority to exercise discretion in passport regulations; the adequacy of standards was implied by the
delegation itself); Lichter v. United States, 334 U.S. 742 (1948) (administrative determination of "excess profits" upheld for imposition of an excess profits tax); Bowles v.
Willingham, 321 U.S. 503 (1944) (authorization of the Administrator under the
Emergency Price Control Act of 1942 to fix maximum rents upheld because the antiinflationary purpose of the act was a sufficient standard); Yakus v. United States, 321
U.S. 414 (1944) (authorization of the Administrator under the Emergency Price Control
Act of 1942 to prosecute merchants who sold at prices higher than the fixed prices
upheld because the "generally fair and equitable" statutory language was a sufficient
standard); Fahey v. Mallonee, 332 U.S. 245 (1927) (upheld power of administrative
agency to appoint other administrators despite absence of standards regarding when
action could be taken). Accord, Amalgamated Meat Cutters and Butcher Workers v.
Connally, 337 F. Supp. 737 (D.D.C. 1971) (upheld the Economic Stabilization Act of
1970, relying heavily on Yakus).
101. Currin v. Wallace, 306 U.S. 1 (1939); Hampton & Co. v. United States, 276 U.S.
394 (1928). See note 98 supra. For the historical evaluation of this concept, see notes
98-100 & accompanying text supra.
102. See notes 92-100 & accompanying text supra.
1977]
LEGISLATIVE VETO
tween the President and Congress is consistent with the trend toward
permitting the President to exercise legislative power. 10 3 The executive power must not be infringed by a general waiver applicable to all
future legislative veto provisions, however; a prospective waiver of
the executive veto power would present serious constitutional problems.
The foregoing constitutional analysis suggests that legislative veto
provisions requiring action by both houses may be employed in certain situations. The executive must consent by acquiescing to the
legislation, but the consent must be limited to the specific statute
which contains the legislative veto provision. The statute must also
indicate that only the rulemaking authority is conditionally delegated
to administrative agencies so as not to interfere with the bureaucracy's quasi-judicial and quasi-executive powers. Legislative veto
provisions which specify that a rule becomes effective upon the expiration of a certain waiting period, 10 4 or which provide for disapproval
by concurrent resolution, can serve as an interbranch check that
maintains the constitutional tripartite balance.
IV.
JUDICIAL RESPONSES TO LEGISLATIVE VETO PROVISIONS
A.
The Legislative Veto and the Federal
Election CampaignAct
The previous discussion examined the constitutional implications of
the legislative veto and suggested an analytical framework which can
be applied to specific legislative enactments. An important feature of
the analysis is its flexibility. The paramount concern should be to
maintain a balanced tripartite system which provides sufficient interbranch checks to prevent abuses of power. If the legislative veto is
required in order to maintain the tripartite balance, it should be
used; if it undermines the balance, it should be avoided.
When agencies require complete independence for their administrative integrity, the legislative veto should be avoided. A case in
103. Id. In his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 634 (1952) (Steel Seizure Case), Justice Jackson argued that executive power
and congressional power are at their zenith when they operate in conjunction with each
other, and that the exercise of power is unconstitutional only when the federal govern-
ment as a whole lacks power.
104. A waiting period denotes that an administrative rule becomes effective in a
specified number of days, giving Congress time to pass remedial legislation or to take
non-legislative action. The waiting period action was upheld in Sibbach v. Wilson, 312
U.S. 1 (1940).
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point is the Federal Election Commission (FEC), created by the
Federal Election Campaign Act (FECA).10 5 Under the FECA veto
provisions, the Senate has the power to disapprove rules and regulations regarding senatorial elections. The House has the power to disapprove rules and regulations for the election of representatives,
delegates, or resident commissioners; either house has the power
to disapprove any rules and regulations for the election of the
President.106 Thus, a simple resolution is required to disapprove
rules promulgated by the Commission.
According to the constitutional arguments previously analyzed, a
one-house veto is unconstitutional unless the Constitution specifically
provides that one house of Congress may act. 10 7 As the Constitution
vests the authority to regulate congressional elections in Congress,'0 8
105.
Veto provisions of the FECA, Pub. L. No. 92-225, 86 Stat. 3 (codified in scat-
tered sections of 2, 18 U.S.C. (Supp V 1975)), as amended by Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 475 (codified in scattered
sections of 2, 18 U.S.C.A. (West Cum. Supp. 1977), and ch. 95 I.R.C.).
106. Some of the veto provisions which are set forth in FECA include:
(1) The Commission, before prescribing any rule or regulation under this section,
shall transmit a statement with respect to such rule or regulation to the Senate or
House of Representatives, as the case may be, in accordance with the provisions of
this subsection. Such statement shall set forth the proposed rule or regulation and
shall contain a detailed explanation and justification of such rule or regulation.
(2) If the appropriate body of the Congress which receives a statement from the
Commission under this subsection does not, through appropriate action, disapprove
the proposed rule or regulation set forth in such statement no later than 30 legislative days after receipt of such statement, then the Commission may prescribe such
rule or regulation proposed to deal with reports or statements required to be filed
under this subchapter by a candidate for the office of President of the United
States, and by political committees supporting such a candidate with the Senate and
the House of Representatives shall have the power to disapprove such proposed
rule or regulation ....
(3) If the Commission proposes to prescribe any rule or regulation dealing with
reports or statements required to be filed under this subchapter by a candidate for
the office of Senator, and by political committees supporting such candidate, it shall
transmit such statement to the Senate. If the Commission proposes to prescribe any
rule or regulation dealing with reports or statements required to be filed under this
subchapter by a candidate for the office of Representative, Delegate or Resident
Commissioner, and by political committees supporting such candidate, it shall
transmit such statement to the House of Representatives. If the Commission proposes to prescribe any rule or regulation dealing with reports or statements required to be filed under this subchapter by a candidate for the office of President of
the United States, and by political committees supporting such candidate it shall
transmit such statement to the House of Representatives and the Senate.
The Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, tit. I,
§§ 105, 110, 90 Stat. 481, 486 (codified at 2 U.S.C.A. § 438(c) (West Cum. Supp. 1977).
See also id., tit. III, § 304(a)(b), 90 Stat. 498 (codified in I.R.C. §9 9009(c), 9039(c)).
107. See notes 63-66 & accompanying text supra.
108. U.S. CONST. art. I, § 4, cl. 1. It should be noted that in U.S. CONST. art. I, § 5,
1977]
LEGISLATIVE VETO
it can be argued that the legislative veto, even if exercised by one
house, is valid. This argument will not withstand constitutional
scrutiny for two reasons. First, the Constitution vested the power to
regulate elections of Senators and Representatives in the entire Congress; neither house has exclusive authority to prescribe rules governing the election of its members. 10 9 There is no specific provision in
the Constitution to justify the exercise of a one-house veto.
In addition, the plenary authority of Congress to legislate must not
offend some other constitutional restriction. Congress' authority to
regulate federal elections may not be exercised in a way that violates
the separation of powers doctrine."i 0 The legislative power to regulate elections must be exercised within the constitutional framework
of bicameral legislation and separation of powers; therein lies the constitutional deficiency of the FECA.
The legislative review provisions present several significant constitutional and practical problems in addition to the obvious constitutional deficiency of the one-house veto. The procedure for review in
the FECA gives either house of Congress the power to disapprove
rules which the FEC has promulgated. The procedure thereby vests
control of the election process in Congress."' In the past, the Supreme Court has allowed one branch of government to control an
administrative agency when the nature of the agency's function is the
same as that of the controlling branch."i 2 For example, when the
agency's function is primarily executive, the executive may exercise
cl. 1, each House is given the authority to judge the election of its members, but in light
of the rest of the clause and § 4, cl. 1, it appears that the power to regulate elections is
vested in the Congress as part of its legislative power. See Buckley v. Valeo, 424 U.S. 1,
133 (1976).
109. See note 108 supra. The Constitution did not include the authority to regulate
presidential elections because presidents were not popularly elected until the twelfth
amendment was passed.
110. The Supreme Court explained this prohibition as follows.
Congress has plenary authority in all areas in which it has substantive jurisdiction,
so long as the exercise of that authority does not offend some other constitutional
restriction. We see no reason to believe that the authority of Congress over federal
election practices is of such a wholly different nature from the other grants of authority to Congress that it may be employed in such a manner as to offend well
established constitutional restrictions stemming from the separation of powers.
Buckley v. Valeo, 424 U.S. 1, 132 (1976) (citations omitted).
111. FECA, Pub. L. No. 92-225, 86 Stat. 3 (codified in scattered sections of 2, 18
U.S.C. (Supp. V 1975)), as amended by Federal Election Campaign Act Amendments of
1976, Pub. L. No. 94-283, 90 Stat. 475 (codified in scattered sections of 2, 18 U.S.C.A.
(West Cum. Supp. 1977); and ch. 95 I.R.C.).
112. Myers v. United States, 272 U.S. 52 (1926) (Postmaster General held to perform
an exclusively executive function so that his removal could be authorized by the President).
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control over an administrative agency by removing the bureau
chief.1 1 3 There are stringent limitations, however, on the control one
branch of government may exercise over an administrative agency
when an agency's complete independence from executive control is
necessary for a responsive and effective government. Under those
circumstances, the Supreme Court has114held that the President's removal of an agency official is improper.
The FEC is the type of independent agency whose operations must
remain separate from both subtle and overt pressures of the institutions that it regulates. It can be argued that the legislative veto provisions of the FECA should be invalidated, as they undermine the requisite autonomy of the FEC. If the review mechanisms set forth in
FEC's indethe FECA defeat the purpose of the Act by jeopardizing
5
pendence, the mechanism is of doubtful validity."1
The review mechanisms in the FECA were challenged on several
grounds in Buckley v. Valeo."16 Although the constitutionality of the
legislative veto provisions of the FECA 17 was raised," i8 the Court
did not reach the issue because it held that the unconstitutional appointments procedure precluded the members of the Commission
from exercising their rulemaking authority."19
The constitutionality of the veto provisions of the FECA were again
challenged in a suit brought by former Attorney General Ramsey
113. Id.
114.
Wiener v. United States, 357 U.S. 349 (1958) (War Claims Commissioner);
Humphrey's Executor v. United States, 295 U.S. 602 (1935) (Federal Trade Commissioner).
115. For the provisions outlining the procedures, see note 106 supra.
116. 424 U.S. 1 (1976). The Court examined provisions that (1) limited the amount of
money individuals and groups could contribute to a political campaign; (2) limited the
expenditures by individuals or groups to a set amount, and expenditures by a candidate
himself to varying amounts, depending on the office; (3) required political committees
to compile and retain records of contributions, and to report contributions over $100; (4)
created the Federal Election Commission (FEC), comprised of two members selected
by the President pro tempore of the Senate, two by the Speaker of the House, and two
by the President, all of whom were subject to confirmation by both Houses. For the
purposes of this comment, the relevant parts of the Court's opinion are in its discussion
of provision (4). The Court upheld provisions (1) & (3) but held that provision (2) violated the first amendment 424 U.S. at 2.
117. Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, tit.
I, § 105, 110; tit. III, § 304, 90 Stat. 481 (amending 2 U.S.C. § 438(c) (1974); I.R.C.
§§ 909(C), 9039(C) (1974)).
118. Certified question 8(d) questioned the constitutionality of the provisions which
required that rules promulgated by the FEC be submitted to Congress. 424 U.S. at 283
(White, J., dissenting). As already noted, the Court did not rule on this question. See
text accompanying note 121 infra.
119. 424 U.S. at 140 n.176.
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LEGISLATIVE VETO
Clark and the Justice Department 120 against the FEC. Three of the
questions raised constitutional issues regarding bicameralism, separation of powers, delegation of power, and the role of the executive's
veto power in the lawmaking process, but the court held that the
1 21
issues were not ripe for judicial resolution.
The FECA provision must also be judged under the Necessary and
Proper Clause 1 2 2 to determine whether the means used are reasonably calculated to achieve a constitutionally permissible end.1 23 Although the purpose of the FECA-to prevent corruption in election
campaigns and to insure the fair administration of the electoral process 12 4 -is on its face constitutional, the question remains whether
the veto provision is unconstitutional under the due process and
equal protection guarantees because there is either a discriminatory
effect or a conflict of interest. An examination of constitutional principles suggests an affirmative response.
Clearly, the FECA legislative oversight provisions are neutral on
their face. That is, there is nothing in the statute that reveals a purposeful discrimination against nonincumbents. This test, however, is
not enough. As the Supreme Court has noted:
Though the law itself be fair on its face and impartial in appearance,
yet, if it is applied and administered by public authority with an evil
eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their
120. Clark v. Valeo, 559 F.2d 642 (D.C. Cir.), aff'd mem. sub nom. Clark v. Kimmitt,
97 S. Ct. 2667 (1977).
Five questions were certified to the U.S. Court of Appeals for the District of Columbia: (1) Whether the action presented a justiciable case or controversy; (2) whether the
single-house veto violated the principles of separation of powers, derogated the presidential veto power, and exceeded the legislative powers enumerated in the Constitution; (3) whether the veto provisions deprived the candidate of his fifth amendment due
process right by circumventing the legislative process, or whether allowing incumbents
to veto rules had a discriminatory effect on challengers; (4) whether FECA delegated
power to one house of Congress without standards to govern its exercise of discretion;
and (5) whether action by a single house of Congress creates an extra-constitutional
legislative process. Brief for Plaintiff at 2-5.
121. Although this case could have been decided on the case or controversy issue, it
is outside the scope of this comment. It should be noted that timing in FEC appeals is
problematical due to the short duration of an election campaign. Cf. Roe v. Wade, 410
U.S. 113 (1973) (usual rule in federal cases that a case or controversy must exist at all
stages of review was relaxed for pregnancies due to short gestation period and likelihood of recurrence).
122. U.S. CONST. art. I, § 8, cl. 18.
123. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 311, 312-16 (1819).
124. COMM. ON HousE ADMINISTRATION, REPORT ON THE FEDERAL ELECTION
CAMPAIGN ACT AMENDMENTS OF 1976, H.R. REP. No. 417, 94th Cong., 2d Sess. 2
(1976).
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rights, the denial of equal justice is still within the prohibitions of the
Constitution. 125
The incumbents' participation in the formulation and administration
of election laws also might impede neutral and objective legislation
and work against nonincumbents who seek office. The Supreme
Court has held that where bias is difficult to establish, a government
official may be disqualified
from ruling on matters where there is a
"possible temptation' 1 26 or "possible personal interest" involved. 1 27
Although there need be no assertion of bad faith or evidence of
wrongdoing, the necessity for nonpartisan and neutral determinations 128 mandates disqualification where there is a possibility of selfinterest.12 9 Certainly a decision which involves the rules and regulations by which an incumbent must be re-elected presents more than
130
a possibility of personal interest.
The legislative veto provisions included in the Act have also frustrated implementation. The FEC's inability to promulgate rules to
regulate the November 1976 federal election demonstrates the ineffectiveness of the veto provisions in the FECA. The FEC was
required to transmit rules to Congress and then to wait thirty legislative days before the rule became effective if there was no Congressional disapproval. 13 1 After the 1976 FECA Amendments were enacted
125. Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).
126. Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972) (quoting Tunney v. Ohio,
273 U.S. 510, 532 (1927)).
127. Gibson v. Berryhill, 411 U.S. 564, 579 (1973).
128. COMM. ON HOUSE ADMINISTRATION, REPORT ON THE FEDERAL ELECTION
CAMPAIGN ACT AMENDMENTS OF 1976, H.R. REP. No. 417, 94th Cong., 2d Sess. 3
(1976).
Second, election campaigns are the central expression of this country's democratic
ideal. It is therefore essential in this sensitive area that the system of administration
and enforcement enacted into law does not provide room for partisan misuse or for
administrative action which does not comport with the intent of the enabling statute. At the same time it is recognized that the authorities charged with administering and enforcing the law have the independence required by the tripartite system
of government created by the Constitution.
Id.
129. Gibson v. Berryhill, 411 U.S. 564 (1973); Ward v. Village of Monroeville, 409
U.S. 57 (1972).
130. Brief for Plaintiff at 55-58, Clark v. Valeo, 559 F.2d 642 (D.C. Cir.), aff'd mem.
sub nom. Clark v. Kimmitt, 97 S. Ct. 2667 (1977). Clark argued that it is doubtful that
any incumbent will be objective when his re-election may be affected by his vote in
Congress on a rule promulgated by the FEC.
131. Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, tit. I,
§§ 105, 110, 90 Stat. 481, 486 (codified at 2 U.S.C.A. § 438(c)); id. tit. III, § 304, 90 Stat.
498 (codified in scattered sections of I.R.C.).
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LEGISLATIVE VETO
on May 11, 1976,132 the FEC was unable to promulgate rules in time
for them to take effect before Congress adjourned on October 1,
1976.133
Complete independence and nonpartisanship of the FEC are essential for the effectiveness and integrity of the rules it promulgates. 134 As the legislative oversight mechanism in the FECA does
not improve the Commission's accountability to the public nor does it
promote agency compliance with congressional intent, there are no
convincing justifications for its use. Further, the legislative veto precludes the independence of the FEC by encouraging partisan political
influence on agency regulations. Thus, the use of the legislative veto
in the administration of the FECA frustrates the purpose of the Act.
B.
The Atkins Decision
The legislative veto provisions in the FECA have been discussed in
terms of their consistency with a system of government characterized
by interbranch checks. The primary deficiency of the FECA provisions is that they undermine the independence of a nonpartisan
commission. When congressional oversight does not threaten the independence of a decisionmaking body, the legislative veto may improve interbranch cooperation and checking and assure more responsive administrative determinations.
On May 18, 1977, the United States Court of Claims reached a
decision regarding the constitutionality of the legislative veto in Atkins v. United States. 135 In Atkins, 140 United States circuit and district court judges brought suit against the federal government to recover additional compensation allegedly due them.' 36 The judges
based their claim on two theories. First, they argued that article III
of the Constitution prohibits any direct or indirect legislative or executive action which reduces or has the effect of reducing judicial
compensation, and that inflation has resulted in diminished com-
132. Id.
133. On August 3, 1976, FEC transmitted to Congress proposals which it had been
working on through public hearings and consultations with Congress since June 1976.
FEDERAL ELECTION REGULATIONS, COMMUNICATION FROM THE CHAIRMAN, FEDERAL
ELECTION COMMISSION, H.R. Doc. No. 573, 94th Cong., 2d Sess. (1976). Due to the 30
legislative day requirement and the recesses for the convention and holidays, the rules
could not have become effective before the 1976 election.
134. See note 128 & accompanying text supra.
135. Atkins v. United States, 556 F.2d 1028 (Ct. Cl. 1977), cert. denied, 46 U.S.L.W.
3431 (1978).
136. Id. at 1033.
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pensation. 13 7 The second theory challenged the validity of the legislative veto provision in the Federal Salary Act of 1967138 which permitted a one-house veto of presidential recommendations for judicial pay
raises. Under the Act, the President had recommended that judicial
salaries be increased by 7.5 percent in each of fiscal years
1974 through 1976. These recommendations were defeated by a Senate resolution 13 9 adopted pursuant to the Salary Act.
The court in Atkins ruled on the validity of the legislative veto,
and, as the first judicial interpretation of the veto provisions, the importance of the decision is manifest. The controversy, however, was
argued before a seven-judge court sitting en banc. The court issued a
per curiam opinion which, although it upheld the validity of the oneHouse veto, reflects the views of only three judges. The precedential
value of the decision is, therefore, weak. The suit was dismissed;
three of the judges held that there was no reduction in compensation
and that the one-House veto was constitutionally permissible in this
instance. 140 One judge, in a concurring opinion, argued that the suit
should have been dismissed for lack of jurisdiction.' 4 1 The three remaining judges dissented, stating that the one-House veto was unconstitutional.' 42 Thus, there was a three-to-three split on the issue of
the validity of the legislative veto.
The court, in its per curiam opinion, sought to limit the applicability of its holding and announced: "[Wie are not to consider . . . the
general question of whether a one-House veto is valid as an abstract
proposition, in all instances, across-the-board, or even in most
instances."' 43 Dealing with the specific situation before it, the court
emphasized that the power to fix salaries of executive, legislative, and
judicial officers is a power "historically and intrinsically, at the heart
of Congress' own competence and concern.' 14 4 The court held that
137. Id.
138. 2 U.S.C. § 359(I)(B) (1970).
139. S. Res. 293, 93d Cong., 2d Sess., 120 CONG. REc. 5508 (Mar. 6, 1974).
140. Atkins v. United States, 556 F.2d 1028, 1070 (Ct. CI. 1977), cert. denied, 46
U.S.L.W. 3431 (1978).
141. Id. at 1071-75 (Nichols, J., concurring). The basis of Judge Nichols' argument
was that a suit for salary owed could only be brought in the Court of Claims by a party
whose salary is fixed by law for the position he actually holds. Thus, since the salaries
fixed by Congress were paid, and Congress did not indicate its intent to find a
pecuniary liability due to inflation, the court could not decide the issue. Id. at 1073.
142. Id. at 1075-92 (Skelton, S.J.; Kashiwa & Kunsig, J.J., concurring and dissenting).
143. Id. at 1058.
144. Id. at 1059.
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LEGISLATIVE VETO
the delegation of authority to the President to set salary increases,
with the ultimate control remaining with Congress, was a legitimate
exercise of congressional power. 145
After tracing the evolution of the delegation doctrine, the court
stated that the "necessary and proper clause authorizes Congress to
choose, first, to delegate the initial power to make proposals to the
President, and, then, to select for itself the appropriate method for
checking and monitoring the President's action." 14 6 The court endorsed the one-House veto as one of the many types of power that
one of the two congressional bodies may exercise individually. 147 The
court implied that the one-House veto of rules that become law without further action by the entire Congress is similar to other proce14 8
dures where action by one House is acceptable.
The court, however, failed to consider that the veto of a rule which
would otherwise become law requires action by both Houses and
thus cannot be equated with acts which do not have the force and
effect of law. As the dissenting opinion notes, action taken by one
House that has the force and effect of law without the action of the
other House deprives the second House of the power or authority to
enact legislation. 149 Further, as stated in the dissent, the delegation
of authority to the President to fix salaries under a law passed by
both Houses of Congress cannot be withdrawn by the action of one
House.150
The court upheld the legislative veto as a means of improving interbranch cooperation and checks and balances. The court's justification for the procedure reflects the same approach as was propounded
in the foregoing analysis of this comment. 15 1 Thus, the arguments
that the legislative veto permits Congress to exercise executive power
and that it derogates the Executive's veto power are rebutted by the
view that the legislative veto encourages additional interbranch cooperation and input into significant legislative policy decisions.
In the case of judicial salary increases, the Executive's participation
145. Id.
146. Id. at 1061.
147.
148.
Id. at 1062.
The court compares the one-House veto with acknowledged one-House powers
-resolutions of opinion, investigation, and in-House procedural matters. None of these,
however, has the force and effect of law.
149. Id. at 1080 (dissenting opinion).
150. Id. at 1081 (dissenting opinion).
151. See notes 97-104 & accompanying text supra.
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in the initial policy determination inures to the benefit of checks and
balances and injects additional accountability to the electorate. The
principal deficiency in the legislative veto provision of the Federal
Salary Act is that it permits a simple resolution to defeat presidential
recommendations, thereby eliminating the intra-branch bicameral
check.
V.
THE FUTURE OF THE LEGISLATIVE VETO
AND THE IMPLICATIONS FOR ADMINISTRATIVE DECISIONMAKING
A. Institutionalizingthe Legislative Veto
Contemporary political events which culminated in the Watergate
scandal have given Congress the impetus to reassert its constitutional
role and to restore the balance of power between the executive and
legislative branches. 152 The enormous size and responsibilities of the
federal bureaucracy' 53 and the fact that administrative agencies are
created by congressional action have led Congress to re-examine its
oversight function. By increasing its control over the bureaucracy,
Congress would be able to restore the constitutional balance and improve the responsiveness of agency actions to public needs.
In an effort to increase the effectiveness and public accountability
of administrative agencies, Congress has embarked on an unprecedented study to examine means of improving the legislative oversight of those agencies. Senator Abraham Ribicoff, Chairman of the
Senate Committee on Government Operations, described the importance of improved oversight procedures as follows:
Regulatory reform is one of the most important issues facing the Nation
... . Because Congress created the Federal regulatory agencies and is
152.
The erosion of congressional power was readily apparent in the warmaking
area. The President's role as commander-in-chief, U.S. CONST. art. II, § 2, c. 1, and as
the architect of American foreign policy, United States v. Curtiss-Wright Export Corp.,
299 U.S. 304 (1936), led to an encroachment on Congress' warmaking power, U.S.
CONST. art. I, § 8, cls. 11-17. In an effort to restore its constitutionally mandated role in
the warmaking process and to preserve the framers' concept of a balanced government,
Congress passed the War Powers Resolution, 50 U.S.C. §§ 1541-1548 (Supp. III 1973).
For a further discussion of the War Powers Resolution, see note 70 & accompanying text
supra.
153. Improving Congressional Oversight of Federal Regulatory Agencies: Hearings
on S. 2258, S. 2716, S. 2812, S. 2878, S. 2903, S. 2905, S. 3318, and S. 3428 Before the
Committee on Government Operations, 94th Cong., 2d Sess. 1 (1976) (statement of Sen.
Ribicoff) [hereinafter cited as Hearings on S. 2258]; SENATE STUDY, supra note 48,
at 116.
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LEGISLATIVE VETO
responsible for overseeing their activities, any reform effort must provide for improved Congressional oversight.
The Committee's Study as well as many legislative proposals for regulatory reform have arisen out of an outpouring of complaints with
many regulatory policies and their impacts . . . Congress must find
ways to better monitor regulatory programs on a continuing basis to
insure that policies of the agencies are in accord with the intent of Con154
gress and that the agencies are accountable to the public.
To accomplish these objectives, bills that provided for the submis-
sion of all administrative rules for congressional review were recently
introduced in both Houses of Congress. 15 5 The only bill of this type to
reach the floor of either House for a vote was H.R. 12048;156 it was
defeated by two votes under a suspension of the House rules that
157
required approval by a two-thirds majority.
A bill that would institutionalize the legislative veto procedure presents serious implications for administrative decisionmaking. The
legislative veto provisions of H.R. 12048 require some discussion in
order to analyze their constitutional, political, and practical ramifications.
The procedure set forth in H.R. 12048 was more complex than the
legislative veto measures discussed earlier. 158 This comment has
categorized legislative veto provisions embodied in agency enabling
acts as requiring action by one House, by a committee, or by both
Houses of Congress. The one-House veto and committee veto present
154. Hearings on S. 2258, supra note 153, at 75 (statement of Sen. Ribicoff).
155. E.g., Improving Congressional Oversight of Federal Regulatory Agencies, S.
2258, 94th Cong., 2d Sess. (1976); S. 2716, 94th Cong., 2d Sess. (1976); S. 2878, 94th
Cong., 2d Sess. (1976); S. 2903, 94th Cong., 2d Sess. (1976); Administrative Rulemaking
Reform Act, H.R. 12048, 94th Cong., 2d Sess., 122 CONG. REc. H10,666 (daily ed. Sept.
21, 1976).
156. H.R. 12048, 94th Cong., 2d Sess., 122 CONG. REC. H10,666 (daily ed. Sept. 21,
1976).
157. 122 CONG. REC. H10,718 (daily ed. Sept. 21, 1976). The breakdown of the first
vote taken on H.R. 12049 was as follows: 265 ayes, 135 noes, I present, and 29 not
voting. During the debate, several representatives who in principle favored the substantive provisions of the bill opposed it because of the limited time allocated for floor
debate under a suspension of the House rules. In addition, the decision in Clark v.
Valeo, 559 F.2d 642 (D.C. Cir. 1977), which dealt with the constitutionality of the veto
provision in FECA, was pending. See notes 116-19 & accompanying text supra. Thus,
in the 95th Congress, under the normal House procedure, this type of bill may receive
the majority vote needed for its approval.
158. See notes 49-55 & accompanying text supra.
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constitutional problems absent in the two-House measures, as action
by less than the entire Congress violates the principle of a bicameral
legislature.1 5 9
The bill provided for a hybrid of one-House and two-House veto
procedures; it specified that a concurrent resolution for disapproval
adopted within ninety days of promulgation defeated an administrative rule.1 60 The bill further provided that if one House adopted a
resolution disapproving the rule within sixty days, and the other
House did not disapprove the resolution within thirty days after it was
transmitted to the other House, the rule was defeated.' 6 1 Thus, unless the other House supported the rule, action taken by one House
defeated it.
This procedure would have permitted either one House or both
Houses to defeat administrative rules. The one-House veto procedure
was to be effective only when the other House took no action to disapprove the resolution. Arguably, the failure of one House to act on
the disapproving resolution of the other House would have constituted
a tacit approval of the disapproving resolution. Under this view, H.R.
12048 required action by both Houses of Congress to disapprove administrative rules and did not violate the constitutional requirement
62
of a bicameral legislature.'
Perhaps the most significant aspect of the bill, however, was its
scope. The bill was to apply to all agency statements "of general applicability designed to implement, interpret, or prescribe law or policy or to describe the organization, procedure, or practice requirements of an agency and includes any amendments, revision, or repeal
of such a statement."' i 63 Rules concerning military or foreign affairs
that required secrecy in the interests of national security, 164 agency
management or personnel decisions,' 65 and emergency rules' 6 6 were
exempt from legislative review. The broad definition of "rule" included adjudicative determinations of prospective and general applicability and all rules which existing agencies subsequently might
promulgate. The bill also would have provided for a review of effec-
159. Id.
160.
H.R. 12048, 94th Cong., 2d Sess. § 602(a)(2)(A) (1976).
161.
Id. § 602(a)(2)(B).
162.
163.
See notes 63-72 & accompanying text supra.
H.R. 12048, 94th Cong., 2d Sess. § 551(a)(4) (1976).
164. Id. § 553(a)(1).
165. Id. § 553(a)(2).
166. Id. § 553(f).
1977]
LEGISLATIVE VETO
tive rules which agencies had promulgated prior to the bill's
67
enactment. 1
B.
The Constitutionality of Bills Institutionalizing
the Legislative Veto
The constitutional analysis developed earlier suggests that the legislative veto is a permissible oversight device, as long as certain criteria
are met.' 68 Most importantly, the legislative veto provisions must be
included in the specific enabling act, rather than in a statute extending this type of congressional oversight to all administrative ac69
tions.'
Congress, in the enabling legislation, may delegate rulemaking
power to the executive or to administrative agencies and, at the same
time, reserve for itself the power to use the legislative veto to determine whether the rule should become effective.' 70 On the other
hand, Congress may delegate to an agency complete rulemaking authority, to be exercised upon the occurrence of a specific event.' 7 ' It
is doubtful that Congress could reclaim, through a prospective legislative veto provision, the legislative power so delegated without repeal72
ing or amending the enabling legislation.'
If Congress could reclaim the power by institutionalizing the legislative veto, the rules which the agency had promulgated according to
the enabling legislation could be vetoed. In that case, even if an
agency acted according to the specific provisions of a carefully drawn
statute, its rules still could be subject to a legislative veto. The result
would be a confusing legislative mandate with imprecise standards for
the exercise of agency discretion.
167. H.R. REP. No. 1014, 94th Cong., 2d Sess. 14-16 (1976). The House Report explained that the proposed changes in the definition of "rule" excluded agency decisions
applicable to named or similarly specified parties. The new definition of "rule" was to
have had the effect of including all governmental functions which historically were considered legislative in nature. Proceedings having general applicability were those in
which the members of the public affected were described as a class, but were not identified because the proceedings dealt with future members of the class rather than with
past or present members. Id.
168. See notes 40-104 & accompanying text supra.
169. See notes 103-04 & accompanying text supra.
170. Id.
171. See note 98 & text accompanying note 101 supra.
172. Hearings on S.2258, supra note 153, at 77 (testimony of Antonin Scalia, Former
Assistant Attorney General of the United States). See notes 103-04 & accompanying text
supra.
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Although the delegation doctrine has fallen into disfavor, 173 it
still has limited applicability.' 74 Congress may delegate its legislative
authority accompanied by imprecise standards. 75 Ithas been suggested, however, that a provision which would create a conflict between an agency's enabling act standards and the standards used for
the legislative review of its rules (thereby permitting the agency to
follow the more lenient of the standards) would constitute an impermissible delegation of legislative power. 176 It can be argued that H.R.
12048 would have this effect.
Institutionalizing the legislative veto as a means of congressional
oversight is also constitutionally deficient, as it precludes the prospective exercise of the presidential veto. It may be permissible for the
President to expressly waive his veto power in a specific instance,
due to the substance of the legislation or the type of administrative
action prescribed by the statute. The President cannot be deprived
permanently of this essential constitutional power, however, through
77
a prospective waiver concerning all administrative rules.1
A bill such as H.R. 12048 would, arguably, also permit legislative
oversight when Congress has no constitutional authority. 17 8 The
broad definition of "rule" as an agency interpretation of "general applicability"'17 9 permits congressional oversight of administrative decisions which affect the general public and may even include certain
quasi-judicial determinations made by the agency. The unchecked
exercise of legislative review of quasi-judicial decisions could violate
the power of the judiciary.' 8 0 Additionally, the courts may be hesitant to review agency decisions which are subject to close congressional scrutiny because the issue presented could be viewed as a
political question.181 The decreased judicial role in the review of ad173.
174.
Id. at 84.
It has been suggested that the Supreme Court will revive the delegation doc-
trine based on its decision in National Cable Television Ass'n v. United States, 415
U.S. 336 (1974) (fee levied by FCC against a trade association representing antenna
television systems constituted a valid delegation of power because the FCC did not
levy taxes, a nondelegable power, but fees). The new standard for the delegation of the
legislative power would be whether the agency is capable of exercising the particular
power delegated. Freedman, Delegation of Power and Institutional Competence, 43 U.
Cmi. L. REv. 307, 335-36 (1976).
175. See notes 99-100 & accompanying text supra.
176. Hearings on S.2258, supra note 153, at 84 (testimony of Antonin Scalia).
177. Note, Constitutionality of the Legislative Veto, 13 HARV. J. LEGIS. 593 (1976);
see notes 81-82 & accompanying text supra.
178. Hearings on S. 2258, supra note 153, at 128.
179. H.R. 12048, 94th Cong., 2d Sess. § 551(a)(4) (1976).
180. Hearings on S.2258, supra note 153, at 128.
181. Id. (citing Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 318-19 (1958);
LEGISLATIVE VETO
ministrative rules would result in a misallocation of the constitutionally assigned powers'8 2 and would impair the tripartite checks and
83
balances of the federal system.1
C. PoliticalImplications of the
Legislative Veto
The legislative veto has been examined thus far in terms of its constitutionality. An analysis of the legislative veto must also address policy issues to determine whether Congress should exercise a veto
power over agency rules. If the legislative veto proves to be an unwise congressional oversight mechanism, its use will diminish even if
it survives the constitutional controversy. In a recent Senate study on
federal regulation, the Senate Committee on Government Operations
recommended that Congress reject an across-the-board use of the
legislative veto due to its political and practical ramifications.' 8 4 The
Committee did not address the constitutional issue because it deemed
the policy considerations determinative.18 5
Perkins v. Lukens Steel, 310 U.S. 113, 130 (1940); Kansas City Power & Light Co. v.
McKay, 225 F.2d 924, 930-31 (D.C. Cir.), cert. denied, 350 U.S. 884 (1955)).
182. The foundation of judicial review under U.S. CONST. art. III,§ I is the implied
power to review the validity of the laws of the United States. Marbury v. Madison, 5
U.S. (1 Cranch) 137 (1803). In Kilboum v. Thompson, 103 U.S. 168 (1880), the Supreme
Court re-emphasized the importance of the judicial power and the need for Congress to
abstain from exercising any form ofjudicial power except where the Constitution specifically provides. The Court held that issuing a contempt citation to a witness was an
impermissible act by Congress and noted:
The Constitution declares that the judicial power of the United States shall be
vested in one Supreme Court, and in such inferior courts as the Congress may from
time to time ordain and establish. If what we have said of the division of the powers of the government among the three departments be sound, this is equivalent to
a declaration that no judicial power is vested in the Congress or either branch of it,
save in the cases specifically enumerated to which we have referred. If the investigation which the committee was directed to make was judicial in its character, and
could only be properly and successfully made by a court of justice, and if it related
to a matter wherein relief or redress could be had only by a judicial proceeding, we
do not, after what has been said, deem it necessary to discuss the proposition that
the power attempted to be exercised was one confided by the Constitution to the
judicial and not to the legislative department of the government. We think it
equally clear that the power asserted is judicial and not legislative.
Kilbourn v. Thompson, 103 U.S. 168, 192-93 (1880).
183. See notes 40-48 & accompanying text supra.
184. SENATE STUDY, supra note 48, at 122.
185. Id. at 115-22. The study cited increased administrative delay, increased uncertainty in regulated industries, increased lobbying pressure on Congress, diminished
usefulness of agency records, inducement to increase adjudication at the expense of
rulemaking, adverse effects on regulatory programs, and increased congressional workload as the principal liabilities of the legislative veto.
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Proponents of the administrative process recognize that, in order
for public administration to be successful, certain regulatory agencies
must be independent from political pressure. 186 When it creates a
completely independent administrative agency, however, Congress is
often criticized for establishing an unaccountable body. The debate
over the administrative process focuses on the need for independence
from partisan politics, on the one hand, and the lack of accountability
on the other. These countervailing needs must be kept in mind when
congressional oversight of administrative agencies is examined.
Institutionalizing a legislative review of all administrative rules
would politicize public administration. The infusion of political pressure into areas of bureaucratic discretion undermines the concept of
independence in public administration. Although politicizing the administrative process might enhance agency responsiveness,1 8 7 such a
result must be undertaken with careful scrutiny and with proper
safeguards to prevent abuse.
The success of public administration also depends on experts who
have specialized knowledge in a particular discipline. 18 Legislative
review of highly technical and specialized administrative policies and
decisions could produce two potentially dangerous results. First, it
would inject partisan politics into areas which require the independent judgment of experts.' 8 9 Second, it would require congressional
familiarity with technical matters best understood by experts. To cope
with the latter problem, Congress would be forced to engage highly
specialized experts of its own. Notwithstanding the importance of
congressional oversight, the review of technical decisions would be a
very costly and time-consuming process.
Not only would H.R. 12048 have politicized public administration
by undermining agency independence and by increasing the influence of Congress and special interests, but it also would have encouraged bureaucratic reliance on the political receptivity of Congress regarding a proposed rule. The complete and direct oversight that the
legislative veto prescribes would increase bureaucratic dependence
186. Wiener v. United States, 357 U.S. 349 (1958) (War Claims Commission);
Humphrey's Executor v. United States, 295 U.S. 602 (1933) (Federal Trade Commission); Freedman, Expertise and the Administrative Process, 28 AD. L. REv. 363, 364
(1976).
187. Cutler & Johnson, Regulation and the Political Process, 84 YALE L.J. 1395
(1975) [hereinafter cited as Cutler & Johnson].
188. Freedman, Expertise and the Administrative Process, 28 AD. L. REv. 363, 364
(1976). See also F. ROURKE, BUREAUCRACY, POLITICS, AND PUBLIC POLICY 17-18 (2d ed.
1976) [hereinafter cited as ROURKE].
189. See ROURKE, supra note 188, at 82-85.
LEGISLATIVE VETO
19771
"upon legislative good will . . . from negative as well as positive
considerations-the desire to escape penalties as well as to obtain
reward." 190
The standards regarding review of administrative rules are an important feature of legislative veto provisions. The purpose of H.R.
12048 was "to implement basic policy and to place ultimate limits
upon the discretionary authority of agencies involved in the rulemaking process." 1 9 ' This pronouncement reflects a noteworthy standard
of review. On the other hand, the review of administrative rules
promulgated under the authority of enabling legislation would be subject to constant political pressure and a change of ideology in the
years subsequent to the original enactment. 19 2 Legislative oversight,
then, would reflect the current political climate rather than the congressional intent at the time of the initial mandate.
D.
PracticalProblems of the Legislative Veto
The legislative review of all agency rules would present several
practical administrative problems. First, the hierarchical organization
of bureaucratic authority could be upset, causing a decentralization in
the decisionmaking and policy formulation processes. A bureaucratic
hierarchy is essential for administrative coordination and the efficient
allocation of resources. 193 The uncertain flow of authority and policy
directives in the event of such direct congressional oversight would
hinder effective administration.
The legislative veto places a tremendous burden and responsibility
on Congress. Although it is imperative that Congress develop a system to achieve effective oversight, under a provision similar to H.R.
12048, Congress not only would have the burden of reviewing all
rules upon promulgation, but it also would have to direct any reconsideration of all rules already in effect.194 If Congress did not attempt
to review all administrative rules, it would have to decide which ones
deserve its attention. Lobbying and political pressure on individual
Congressmen might be used to influence review. 195 Yet if Congress
190. Id. at 64.
191. H.R. REP. No. 1014, 94th Cong., 2d Sess. 7 (1976).
192. Hearings on H.R. 3658, supra note 3, at 270.
193. ROURKE, supra note 188, at 128-30; Hearings on H.R. 3658, supra note 3, at
267-74.
194. H.R. 12048, 94th Cong., 2d Sess. § 603, 122 CONG. REc. H10,666 (daily ed.
Sept. 21, 1976). See also H.R. REP. No. 1014, 94th Cong., 2d Sess. 8 (1976).
195. Hearings on S. 2258, supra note 153, at 65 (testimony of Prof. Harold Bruff,
Arizona State University College of Law).
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attempted careful scrutiny of all administrative rules, the effect on
legislative efficiency would be a costly one. Additional staff would be
required, and the result would be a congressional bureaucracy engaged to oversee the federal bureaucracy. The fundamental question
underlying the administrative problem is whether Congress should
devote such a large amount of time, energy, and appropriations to
the oversight of the bureaucracy. 196 Although congressional oversight
is of vital importance, more cost-effective oversight mechanisms
97
would be a desirable alternative.'1
The administrative process could be severely impaired if the legislative veto became a permanent oversight mechanism. Agencies are
frequently criticized for being unresponsive to the public they are
intended to serve and for ineffectively dealing with national problems. Legislative review of all administrative rules would serve to
increase public discontent' 98 by lengthening administrative delay.
Under H.R. 12048, it would have taken up to ninety legislative days
for administrative rules to become effective. The additional bureaucratic delay and fear of congressional disapproval could induce agencies to favor adjudication over rulemaking in policy formulation. 199
Congress' ability to disapprove all agency rules would be harmful
to those whom the rules are designed to serve-the public. The
American legal system requires predictability to allow society to conform to legislative and judicial norms. The contemporary political
climate would influence congressional oversight and, if agencies had
to rely on Congress for their policy formulations, the ultimate man20 0
date would be difficult to predict and subject to frequent change.
196. Newman & Keaton, Congress and the Faithful Execution of Laws-Should
Legislators Supervise Administrators?,41 CALIF. L. REV. 565, 571 (1953). The criticism
against strict legislative oversight of public administration is just as appropriate today as
it was 25 years ago:
One point seems obvious. Congress goes too far if it spends so much time supervising that not enough time is left for legislating. Conversely, administrators can
hardly do the jobs that statutes declare they must do if they have to spend most of
their work week on Capital Hill, testifying for committees.
Id. at 571 (footnotes omitted).
197. See notes 201-34 & accompanying text infra.
198. See generally Freedman, Crisis and Legitimacy in the Administrative Process,
27 STAN. L. REV. 1041 (1975); Stewart, The Reformation of American Administrative
Law, 88 HARV. L. REv. 1669 (1975) [hereinafter cited as Stewart].
199. Hearings on S. 2258, supra note 153, at 68 (testimony of Dean Ernest Gellhorn,
Arizona State University College of Law).
200. H.R. REP. No. 1014, 94th Cong., 2d Sess. 37 (1976) (letter from the Securities
and Exchange Commission to the Office of Management and Budget).
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1977]
VI.
THE PROBLEMS OF CONGRESSIONAL OVERSIGHT
OF THE BUREAUCRACY
AND ALTERNATIVE SOLUTIONS
The effectiveness of public administration has been questioned
seriously in recent years. 20 1 The legislative veto has become an increasingly popular oversight mechanism in the search for administrative accountability. The growing public discontent with the ineffectiveness of the administrative process 20 2 and the constitutional,
20 3 suggest
political, and practical deficiencies of the legislative veto
that an alternative means of oversight be instituted.
The problems that have developed in the administrative process
have resulted in a crisis that requires a solution more comprehensive
than the use of a single oversight mechanism such as the legislative
veto. In the current framework of congressional oversight, the legislative veto is employed as the final check on the administrative
rulemaking process. If other oversight mechanisms 20 4 which would
promote the promulgation of desirable rules were used, the need for
the legislative veto would be obviated. When alternative oversight
procedures fail to produce the desired accountability to Congress and
to the public, or when complete delegation of legislative authority to
the executive or to an agency is the most effective way to fulfill the
legislative intent, 20 5 the legislative veto might serve as the final check
201. See Cutler & Johnson, supra note 187; Dixon, The Independent Commissions
and Political Responsibility, 27 AD. L. REV. 1 (1975); FitzGerald, supra note 12;
Freedman, Crisis and Legitimacy in the Administrative Process, 27 STAN. L. REv. 1041
(1975); Freedman, Delegation of Power and Institutional Competency, 43 U. CI. L.
REV. 307 (1976); Freedman, Expertise and the Administrative Process, 28 AD. L. REV.
363 (1976); Gellhorn & Robinson, Perspectives on Administrative Law, 75 COLuM. L.
REV. 771 (1975); Miller, Administrative Decision Making-Mortal or Immortal?, 25
HASTINGS L.J. 1131 (1974); Nelson, The Politicization of FTC Rulemaking, 8 CONN. L.
REV. 413 (1976); Stewart, supra note 198.
202. Freedman, Crisis and Legitimacy in the Administrative Process, 27 STAN. L.
REV. 1041 (1975); Freedman, Expertise and the Administrative Process, 28 AD. L. REV.
363 (1976).
203. See notes 152-200 & accompanying text supra.
204. See notes 226-34 & accompanying text infra.
205. E.g., The Reorganization Act of 1977, Pub. L. No. 95-17, 91 Stat. 29 (to be
codified in 5 U.S.C. §§ 912-917).
The constitutional analysis in this comment has focused on legislative veto provisions
in properly enacted statutes. It should be noted that congressional committees use a
similar extra-legislative veto mechanism in their oversight of executive and administrative agencies. Administrative officers and committee chairmen have developed these
legislative vetoes by reaching accommodations, primarily "reprogramming" appropriated funds from one project to another within a budget account. This type of action,
clearly a circumvention of the legislative process, is done in the mutual interest of Congress and the Executive. As such accommodations represent interbranch cooperation
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on administrative or executive action. A systematic framework of congressional oversight mechanisms designed to increase accountability
at various stages of the administrative process may alleviate some of
the problems which have contributed to the administrative crisis.
A.
The Administrative Crisis
The regulatory process was conceived as a means to solve serious
and complex social and economic problems.2 0 6 Enabling highly
trained personnel to devote their attention to one specific area for a
long period of time2 0 7 was believed to result in agency expertise.
Congress, the courts, and the public relied on this agency expertise
and approved administrative decisions. The problem that confronted
the proponents of public administration was how to achieve the competing objectives of detached expertise and political accountability.
This dichotomy remains, and is at the root of the problem of improv°
ing the administrative process 208
The aspirations of the proponents of the administrative process
have not been fully realized. The public has become increasingly
skeptical of public administration by experts. One commentator attributes this attitude to a general distrust of experts, and to the failure of
administrative experts to determine the "public interest."2 0 9 The
general skepticism has been translated into several recurring criticisms of the administrative process.
One criticism is directed at the failure of Congress and agencies to
develop sufficiently definite standards to permit predictable and comprehensible decisions. Another is the tendency of agencies to become
captives of the industries they regulate rather than to operate in the
interest of the general public. Agencies have also been criticized for
their lack of demonstrable and relevant expertise and for the blight of
ex parte influence and communication. Finally, agencies have been
210
accused of failing to protect the interests of the consumer.
rather than conflict, there is no resultant encroachment by one branch on the power of
the other. Thus, the informal committee veto can be justified as a cooperative effort that
improves interbranch checks and coordination. Miller & Knapp, supra note 55, at
374-75. See generally Fisher, Nonstatutory Legislative Vetoes (Reprogramming), Cong.
Research Serv., Nov. 16, 1976; FISHER, PRESIDENTIAL SPENDING POWER 75-98 (1975)
(reprogramming of funds).
206. Freedman, Expertise and the Administrative Process, 28 AD. L. REV. 363, 364
(1976).
207. Id. at 364-65.
208. Id. at 366.
209. Id. at 367-74.
210. Freedman, Crisis and Legitimacy in the Administrative Process, 27 STAN. L.
REv. 1041 (1975).
LEGISLATIVE VETO
1977]
In order to cure some of the symptoms of the regulatory crisis and
to improve the status of public administration, the underlying problems must be identified and analyzed. The generalized and often conflicting policy objectives enumerated in the enabling legislation make
the administrator's task a difficult one. 2 11 At the time legislation is
drafted, Congress may make broad and conflicting delegations of
legislative authority either to avoid the political consequences of controversial programs or attempt to reconcile competing views.2 12 The
issues and policies, therefore, may be stated too generally, and administrative experts are often unable to solve the problems posed by
the enabling legislation. 21 3 One commentator has argued that vague
standards undermine the administrative process because "[t]he
idealized conception of expertness as an engine of administrative regulation is probably unattainable as long as Congress fails to state clear
and definite policies to be implemented."2 14 The vagueness of policy
directives and the underlying competition between objectives often
have led to the criticism that agencies have failed to act in accordance
with congressional intent. Through extensive and broad delegations of
power, Congress has passed political responsibility to the named
agency.2 1 5 As a consequence, the agency becomes the focus of political pressures from large industries and special interest groups which,
according to traditional political norms, should be directed at
Congress. 21 6 An allegedly independent agency official is thus subjected to special interests and is not formally accountable to the gen21 7
eral public.
Another possible explanation for shortcomings in the administrative
process concerns the composition of the administrative agencies. Expertise, it was believed, would derive from employing highly trained
personnel who were able to devote their energies to a specialized
task and serve in that capacity for a long tenure.2 1 8 It has been suggested that many administrators are not highly trained upon assignment, 21 9 that they have not served long enough, and that they have
211.
212.
213.
214.
215.
Cutler & Johnson, supra note 187, at 29.
Id. at 23-24.
Freedman, supra note 210, at 1060.
Id.
Gellhorn & Robinson, Perspectives on Administrative Law, 75 COLUM. L. REV.
771, 778 (1975).
216. Id.
217. Stewart, supra note 198, at 1676, 1684-85. See also Cutler & Johnson, supra
note 187 at 25; Freedman, supra note 210, at 1054 (1975).
218. See notes 188-90, 206-10 & accompanying text supra.
219. A congressional study on the selection of administrative officials discussed the
qualifications of specific officials and their competence in their respective administra-
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been required to perform many unrelated tasks. 220 Arguably, the
management of the bureaucracy's personnel precludes the development of expertise and therefore undermines the primary rationale of
public administration.
To remedy the shortcomings of the administrative process, Congress has sought to implement effective oversight mechanisms. The
most powerful and effective of these mechanisms are the most
22 1 If
traditional-the legislative power and the appropriations power.
Congress disapproves of administrative policy decisions it can enact
new legislation to deal directly with the problem, or it can control
the success or failure of agency programs through resource allocation.2 22 The use of these traditional mechanisms, however, has not
solved the problem of administrative accountability, either because
they have not been used often enough or because certain problems
require more responsive solutions.
Congress is cognizant of the inadequacies in its oversight of administrative agencies. 22 3 Senator Ribicoff, Chairman of the Senate
Committee on Government Operations, ascribed the lack of accountability to these factors: 1) Congress' dependence on information provided by an agency for the review of that agency's effectiveness; 2)
the lack of well developed standards to measure agency performance;
3) the lack of well defined legislative intent; 4) the delegation of political decisionmaking to administrative agencies; 5) the lack of structure
in committee coordination due to fragmentation of responsibilities;
and 6) the inadequacy of Congressional staff. 224 He contended that
political accountability would be accomplished by improved congressional oversight, public participation in agency decisionmaking, in2 25
creased judicial review, and accountability to the President.
B. Alternative Oversight Mechanisms
The legislative veto is an oversight mechanism that raises serious
constitutional, political, and practical questions. 2 2 6 The primary consideration is whether the need for congressional oversight in the form
tive responsibilities. COMM. ON COMMERCE, 94th CONG., 2D SESs., APPOINTMENTS TO
THE REGULATORY AGENCIES (Comm. Print 1976).
220. Freedman, supra note 210, at 1058-59.
221. Id. at 1062.
222. Id.
223. See generally Ribicoff, CongressionalOversight and Regulatorj Reform, 28 AD.
L. REV. 415 (1976); Hearings on S. 2258, supra note 153.
224. Ribicoff, supra note 223, at 419-21.
225. Id. at 419.
226. See notes 168-200 & accompanying text supra.
LEGISLATIVE VETO
of the legislative veto justifies its use when its drawbacks are taken
into account. This threshold question requires an exploration of a
systematic framework of various oversight mechanisms and the determination of whether the legislative veto is a necessary element in
the oversight formula.
An obvious way to deal with the problem of administrative accountability is at its source. The legislative veto represents Congress' effort
to correct an overbroad delegation of authority. However, Congress
may reject agency rules without any clear indications of a subsequent
desired course of action; the statutory mandate remains as obscure as
public opinion. The legislative veto removes both Congress and the
agency from political accountability. The public is uncertain about
which institution is responsible for a decision, or about the extent of
each institution's responsibility. This problem has an obvious solution:
The congressional "oversight" typified by these legislative veto provisions seems to have been employed to allow the national legislature,
conscious of the vagueness of its delegations of authority to administrative agencies, to maintain some check upon the manner in which that
authority is exercised-instead of attacking the problem directly by tak227
ing steps to clarify the delegations.
Thus, Congress should begin by delineating precise standards for
administrative action.2 2 8 The subsequent promulgation of unsatisfactory rules should not be solved by a trial and error legislative veto
process. Instead, new legislation to clarify the exercise of administrative discretion should be enacted.
Proponents of public administration once believed that agency independence was a prerequisite to regulatory effectiveness. Agency
independence has not been complete; agencies are often subject to
improper congressional and lobbying pressures. Commentators have
questioned agency autonomy, and they have proposed that regulation
22 9
be subject to the accountability of the traditional political process.
227. FitzGerald, supra note 12, at 436.
228. The delineation of precise standards is a measure that may have detrimental
side effects. Congress may be forced to speculate as to future conditions in the area to
be regulated or it may have to create a congressional bureaucracy with the requisite
expertise to draft detailed, comprehensive standards. See generally K. DAvis, ADMInsTRATIVE LAw TEXT (3d ed. 1972).
229. See Cutler & Johnson, supra note 187; Dixon, The Independent Commissions
and PoliticalResponsibility, 27 AD. L. REv. 1 (1975); Freedman, Crisis and Legitimacy
in the Administrative Process, 27 STAN. L. REv. 1041 (1975); Freedman, Expertise and
the Administrative Process, 28 AD. L. REv. 363 (1976); Nelson, The Politicization of
FTC Rulemaking, 8 CONN. L. Rnv. 413 (1976); Stewart, supra note 198.
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The infusion of political accountability to the electorate into administrative decisionmaking can be accomplished in two ways. The
first is to vest authority in the President to modify or direct certain
agency actions and to set priorities among competing statutory goals.
Thus, Congress would be accountable to the electorate for enacting
carefully drawn statutes clearly defining the standards and goals of
administrative action, and the President would be accountable for
2 30
administrative coordination and implementation.
A second mechanism that would improve the public accountability
of the administrative process is to increase public participation in the
formulation of agency decisions and adjudications. 23 1 Public participation in the administrative rulemaking process would modify the current procedure whereby agencies determine "the public interest" by
2 32
the influence of large private interest groups.
The administrative process should be made accountable through
the political process and public participation to the extent that each
agency requires it. An agency that would benefit from its complete
dependence on Congress, on the President, and especially on the
public should rely most heavily on these mechanisms for improved
accountability and responsiveness. An agency whose responsibility
precludes political influence should be granted autonomy from Congress and the President. The Federal Elections Commission, for example, should be accorded complete governmental autonomy in the
233
formulation of policy and promulgation of rules.
Adherence to a formula of neutral and detached regulatory expertise has been challenged. The legislative veto precludes agency independence by requiring the agencies to submit to the congressional
will. Since congressional action is in the form of checking administrative abuses, rather than in formulating particular administrative
policies, the political process is not a major source of input. 23 4 The
230. Cutler & Johnson, supra note 187, at 1414-16. This system would employ the
constitutional formula to prevent agencies from abusing their power and to preserve the
system of checks and balances. See notes 40-48 & accompanying text supra.
231. Stewart, supra note 198, at 1698. See also Comment, Government in the Sunshine Act: Opening Federal Agency Meetings, 26 Am. U.L. REv. 154 (1976).
232. Freedman, supra note 206, at 378.
233. See notes 105-34 & accompanying text supra.
234. Congressmen serve as the elected representatives of the public and, as such,
formulate the public interest in drafting legislation. Through public hearings, floor debate, and ultimate accountability in elections, the success of elected representatives depends on the type of legislation they support. Legislative oversight in the form of a veto
would not produce the same degree of political responsibility for Congressmen as does
legislation. The legislative veto is a rejection of a specific administrative rule without
corrective guidelines, whereas legislation is a positive action with a defined purpose.
19771
LEGISLATIVE VETO
more direct the public participation and political responsibility become, the greater the chances are for improved administrative accountability, responsiveness, and credibility.
VII.
CONCLUSION
The legislative veto has become an increasingly popular form of
congressional oversight of administrative discretion. Although the
final decision regarding the constitutional issue remains uncertain,
the political and practical problems of the veto suggest that it is a
mechanism that should be employed cautiously and judiciously.
Legislators should question whether the legislative veto is the most
effective method of improving administrative accountability and defining the public interest. When agency independence is not essential
and other means of oversight prove to be inadequate, the veto should
be a last resort to further the public interest and maintain the balance
between congressional and executive power. With the advent of
numerous proposals for improving administrative responsiveness and
effectiveness, the legislative veto may fall into further disrepute. Public participation in formulating regulatory policy represents the most
direct and effective means of achieving administrative accountability.
Implementing a workable program requiring public participation in
the administrative process may ultimately result in the obsolescence
of the legislative veto.
ROBERT J. IVANHOE
The exercise of the legislative veto does not receive as much publicity as does the
enactment of a bill. That the public is largely unaware of this congressional power
makes the exercise of the veto less subject to public accountability. In this way, the
legislative veto removes controversial issues from the public eye and insulates Congress
from political responsibility. See J. FREEDMAN, THE POLrrIcAL PROCESS: EXECUTIVE
BUREAu-LEGISLATIVE COMMITTEE RELATIONS (2d ed. 1965); Newman & Keaton, Congress and the Faithful Execution of Laws-Should Legislators Supervise Administrators?, 41 CALIF. L. REv. 565 (1953).