Legislative Veto: Is It Constitutional?

A legislative veto is a provision that allows a congressional resolution to nullify a rule or action taken by an executive agency or the President. This provision was widely used in the US federal government and state governments between 1930 and 1980, and by 1975, 10 states' constitutions allowed the governor to reorganize state government departments subject to a legislative veto. However, the legislative veto was declared unconstitutional by the US Supreme Court in 1983, as it violated the principle of bicameralism and the presentment provisions.

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Legislative veto provisions and constitutional questions

The legislative veto was a feature of dozens of statutes enacted by the United States federal government between approximately 1930 and 1980. It is a provision whereby Congress passes a statute granting authority to the President and reserves for itself the ability to override, through a simple majority vote, individual actions taken by the President pursuant to that authority. This provision has been used by Congress to retain control over the subject matter of legislation after its enactment, especially in cases where the complexity of the objects of legislation requires that Congress delegate more and more power to the executive.

The legislative veto was first developed in the context of the delegation to the President to reorganize governmental agencies and was first authorized by the Legislative Appropriations Act in 1932. It was furthered by the necessities of providing for national security and foreign affairs immediately prior to and during World War II. The legislative veto was also used by Congress to give itself a veto over regulations issued by executive branch agencies, and proposals were made to give Congress a veto over all regulations issued by executive branch independent agencies.

The proliferation of legislative veto provisions in legislation raised a series of constitutional questions. Opponents of the legislative veto argue that it violates the separation of powers by allowing the legislature to perform executive functions. They contend that it bypasses constitutional requirements for lawmaking, such as bicameralism and presentment, creates legal uncertainty, and encourages excessive legislative involvement in administrative decisions. The Court's analysis of the presentment issue stated that a provision for a two-chamber veto, though complying with bicameralism, and a provision for veto by a Congressional committee suffer the same constitutional infirmity.

The legislative veto was held to be unconstitutional by the U.S. Supreme Court in INS v. Chadha (1983). However, few of the mechanisms have actually been challenged in court, and some legislative veto mechanisms have received support from the judicial branch. For example, in a recent case, the Court of Claims held constitutional the one-House veto provision in the Federal Salary Act.

Legislative veto and the principle of bicameralism

The legislative veto was a feature of dozens of statutes enacted by the United States federal government between 1930 and 1980. It was a provision whereby Congress passed a statute granting authority to the President but reserved for itself the ability to override, through a simple majority vote, individual actions taken by the President pursuant to that authority. The legislative veto was first developed in the context of the delegation to the President to reorganize government agencies and was first authorized by the Legislative Appropriations Act in 1932.

The legislative veto can be a provision in a bill that allows a resolution by one legislative chamber, both chambers, or a legislative committee veto to nullify or amend a rule, regulation, or executive order. It enables legislative chambers or committees to disapprove agency actions they consider improper or beyond the agency's authority. This tool provides lawmakers with a direct mechanism to influence administrative decisions without enacting new legislation or requiring executive approval.

The legislative veto has been opposed by recent US Presidents as being unconstitutional. Opponents contend that it violates the separation of powers by allowing the legislature to perform executive functions. They argue that it bypasses constitutional requirements for lawmaking, such as bicameralism and presentment, creates legal uncertainty, and encourages excessive legislative involvement in administrative decisions.

The Court held that a legislative veto on the part of one chamber of the legislature was unconstitutional as violating the principle of bicameralism embodied in Article I, Section 1 and Section 7, and the presentment provisions of Clauses 2 and 3 of Section 7. However, few mechanisms have been challenged in court, and some legislative veto mechanisms have received support from the judicial branch. For example, in a recent case, the Court of Claims held constitutional the one-House veto provision in the Federal Salary Act.

The nondelegation doctrine and legislative veto

The nondelegation doctrine is the theory that one branch of government cannot authorize another entity to exercise the power or function that it is constitutionally authorized to exercise itself. In the context of the Federal Government of the United States, the nondelegation doctrine is based on the idea that Congress, being vested with all legislative powers by Article One, Section 1 of the United States Constitution, cannot delegate that power to anyone else. This prohibition typically involves Congress delegating its powers to administrative agencies or private organizations.

The legislative veto, on the other hand, was a feature of dozens of statutes enacted by the United States federal government between approximately 1930 and 1980. It was a provision whereby Congress passed a statute granting authority to the President and reserving for itself the ability to override, through a simple majority vote, individual actions taken by the President pursuant to that authority. The legislative veto was first developed in the context of the delegation to the President to reorganize governmental agencies and was first authorized by the Legislative Appropriations Act in 1932.

The legislative veto and the nondelegation doctrine have been at the centre of several court cases and constitutional debates. In 1975, for example, the constitutions of 10 states allowed the governor to reorganize state government departments subject to a legislative veto. In 1983, the U.S. Supreme Court held that a legislative veto on the part of one chamber of the legislature was unconstitutional as it violated the principle of bicameralism embodied in Article I, Section 1 and Section 7, and the presentment provisions of Clauses 2 and 3 of Section 7.

One of the earliest cases involving the exact limits of nondelegation was Wayman v. Southard (1825). Congress had delegated to the courts the power to prescribe judicial procedure, and it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While Chief Justice John Marshall conceded that the determination of rules of procedure was a legislative function, he distinguished between "important" subjects and mere details.

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Legislative veto and presidential authority

The legislative veto has been a feature of dozens of statutes enacted by the United States federal government, allowing Congress to override individual actions taken by the President. This provision has been justified as a way to retain power over delegated authority, especially as Congress has had to delegate more and more power to the executive branch.

The legislative veto first appeared in federal law with the Economy Act of 1932, signed by President Herbert Hoover. This granted the President the authority to reorganise the executive branch, but also allowed either Congressional chamber to nullify a presidential executive order within 60 days. The legislative veto was further developed during World War II, as it was deemed necessary for national security and foreign affairs.

The legislative veto has been deemed unconstitutional by the US Supreme Court, which held that it violates the principle of bicameralism and the presentment provisions of the US Constitution. Opponents of the legislative veto argue that it allows the legislature to perform executive functions, bypassing constitutional requirements for lawmaking.

However, the legislative veto has received support from some parts of the judicial branch. For example, the Court of Claims upheld the one-House veto provision in the Federal Salary Act, arguing that it did not conflict with the constitutional powers and obligations of Congress or the President.

The legislative veto has also been used at the state level, with 10 states' constitutions allowing the governor to reorganise state government departments subject to a legislative veto.

State government use of legislative veto

The legislative veto was a feature of many statutes enacted by the United States federal government between 1930 and 1980. It was a provision that allowed Congress to override, through a simple majority vote, individual actions taken by the President. This was held to be unconstitutional by the US Supreme Court in 1983 in INS v. Chadha.

The legislative veto was also widely used by state governments. As of 1975, the constitutions of 10 states allowed the governor to reorganise state government departments subject to a legislative veto. These states were Alaska, California, Illinois, Kansas, Maryland, Massachusetts, Michigan, Missouri, New Jersey, and Vermont. In addition, three states had statutes authorising this procedure: Kentucky, Pennsylvania, and South Carolina.

The legislative veto provision in federal legislation took several forms. Some laws required a simple resolution passed by a majority vote of one chamber of Congress. Other laws required a concurrent resolution passed by both the House and the Senate. Some statutes made it more difficult to pass a veto by requiring a majority vote of the entire legislative body, while some authorised one or more Congressional committees to exercise the veto on behalf of Congress.

The proliferation of legislative veto provisions in legislation raised several constitutional questions. The US Supreme Court held that a legislative veto by one chamber of the legislature was unconstitutional as it violated the principle of bicameralism and the presentment provisions.

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