The Legislative Veto

Congressional Control Of Regulation

Barbara Craig

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9781000302929
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

On June 23, 1983, the U.S. Supreme Court declared a legislative veto unconstitutional in the

Immigration and Naturalization Service v. Chadha

case, a ruling that seems to invalidate the legislative vetoes in more than two hundred laws. Two weeks later the court reaffirmed the principles of

Chadha

to invalidate the legislative veto in other acts. These epic cases, which are already being called the most important separation-of-powers rulings since the White House tapes cases, have generated debate over the implications of the loss of the legislative veto and the wisdom of the court's actions. In this book the author argues that the legislative veto fell far short of its promise in actual operation over the regulatory process. Instead of promoting democratic congressional control over the actions of bureaucrats, legislative veto politics more often devolved to the politics of special interest protection, heavily influenced by unelected congressional staff. Moreover, the legislative veto. allowed Congress to sidestep conflicts by issuing vague mandates that left agencies without the necessary congressional support to implement them. Dr. Craig combines a historical perspective on the legislative veto with analyses of original case studies involving some of the most important policy issues of the 1980s--housing, education, energy, and consumer protection. Assessing all the cases available for research, she points to discrepancies between the legislative veto's intended effects and its actual results. In a final chapter she considers the impact of the

Chadha

case and discusses possible alternatives to the legislative veto for congressional control of regulation.

1
The Legislative Veto and the Rulemaking Process

Growing public disaffection with governmental regulation has directed the attention of lawmakers to the problem of control over administrative agencies and the bureaucrats who run them. One method of control that has been enjoying increasing popularity with many in Congress is the procedural device known as the "legislative veto" or "congressional veto." Major provisions that would subject every rule and regulation promulgated by executive and independent agencies to legislative veto scrutiny have been under consideration in both the House and Senate since 1976. Such agencies as the Federal Trade Commission, the Consumer Product Safety Commission, and the Department of Education already have their entire regulatory product subject to legislative veto review. Numerous other agencies must submit to Congress for review all regulations made under the authority of specific acts.

The congressional veto is a curious device that effectively stands the presidential veto on its head by requiring the agency to offer "legislation"--in this case in the form of agency-developed regulations--for congressional review and potential veto. Functional consequences for the governmental system of continued and expanded application of this device to the rulemaking process should receive far more notice and sustained analysis than obtain today. As the application of legislative veto controls becomes even more widespread, the need for the accumulation of information on experiences with veto-type oversight is imperative.

This book presents case studies of several currently operating legislative veto provisions over congressionally delegated rulemaking authority within a framework that allows for assessment of the veto's implications for the content and control of public policy within the regulatory process; for how Congress exercises its legislative and oversight functions; for the administrative system; and for what are understood to be the traditional guiding principles of administration and of our democratic process.

The Legislative Veto Defined

The legislative veto is an effort by Congress, by one house of Congress, or even by a single committee or chairman to retain control over the execution or interpretation of laws after enactment. The legislative veto has many variants but typically mandates that the executive branch notify Congress of an action proposed pursuant to statutory authority, and that it then wait for a specific time--usually thirty, sixty, or ninety days--before carrying out the action. Absent additional powers, congressional postenactment review of this sort is usually referred to as a "report-and-wait" or "advance-notification" requirement. Reaction is limited under these circumstances to traditional legislative and budgetary channels. In this form, the procedure is safe from constitutional challenges, although some observers maintain that the resultant process is much the same as with other procedures, and they include review orocedures such as these under the legislative veto rubric.¹

If the review involves an inordinately long waiting period coupled with a procedure that allows a particular committee or its chairman to waive the waiting period, an executive official would have little choice but to come into agreement with a committee before acting. Under these conditions, the congressional review power is similar to the more controversial and constitutionally suspect legislative veto.² Included in this analysis is one case study involving application of a congressional postenactment review power of this design, the so-called constitutional veto.

A stronger form of postenactment review allows Congress to prevent implementation of proposed executive action by passing during the waiting period a concurrent resolution of disapproval (a majority vote in both houses, with no need for the president's signature; the so-called two-house veto); a resolution of disapproval by either house (a simple majority vote of one house, without the need of action by the other house or by the president; the socalled one-house veto); or even action of a single committee.³ Another variant requires adoption of a resolution of approval by Congress or committees before the proposed executive action can go into effect.⁴

Proponents of the legislative veto assert that where regulations are involved, it provides a mechanism whereby Congress can respond more quickly than through the more protracted legislative process, and that it focuses the attention of Congress--or at least of some individual members or congressional staff--on potentially trouble-some aspects of regulations before they attain the force of law. Thus, Congress can protect the citizen from "bad law" before and not after damage is done.

Support for the legislative veto over regulations is also based on the veto's utility for resolving conflict within Congress. When the technology involved in policy considerations is complex or uncertain or when there is insufficient agreement among members to give specific policy direction, the legislative veto, it is argued, allows Congress to delegate the necessary flexibility to the executive to act, knowing that it can negate any delegation it deems improperly exercised.

The roots of the veto concept are found in the Legislative Appropriations Act for Fiscal Year 1933, which in Title IV (Reorganization of Executive Departments) authorized the president to transfer, to consolidate, and to redistribute by executive order any executive agencies or functions. An executive order issued under the act was transmitted to Congress to lie before it for sixty days. If either house passed a resolution disapproving the order within that time, it became null and void: if neither acted, the order became effective. This legislative veto concept, as applied to executive branch reorganizations, proved to be an ingenious way to enable Congress to transfer a time-consuming and politically sensitive legislative power to the president yet retain the right to negate its exercise.

Congress has increasingly employed veto-type controls in a variety of other efforts to oversee executive branch actions. According to the Congressional Research Service, between 1932 and February 1980 Congress approved at least 167 laws with one or more legislative veto provisions. Of these, more than half were enacted in the 1970s, forty-two during the Carter presidency.⁵ More important than the surge in the veto's application, however, is the shift in target.

Prior to the 1970s, most of the provisions for veto review were in acts dealing with executive branch reorganization, conduct of foreign affairs and national defense, real estate transactions, and the administration of public works programs. Congressional control via the legislative veto in these instances has been exercised at the presidential-decision level or over pork-barrel, public-works-type project decisions. The Education Amendments of 1972, which included a legislative veto over the Office of Education's proposed family-contribution schedules for its program of basic grants for postsecondary education, signaled a dramatic alteration in the nature and scope of executive action that could be subject to the veto process. This broadened application to agency-level regulatory actions has been growing apace. Application of the legislative veto to executive agency and independent agency rules, regulations, plans, schedules, or guidelines is already a reality for many programs and is under consideration for many others.

Representative Elliott H. Levitas (D, GA), under the clarion call "Who Makes the Laws? Congress or Unelected Bureaucrats?" is continuing his crusade for application of the legislative veto to all rule-making procedures.⁶ He is hardly alone in his efforts. Tabulations by Clark F. Norton of the Congressional Research Service show that twenty-three bills that provided for congressional review of agency rules and regulations in general--generic veto proposals--were introduced into the 96th Congress (1979-1980).⁷ In 1981 Levitas again introduced his bill (H.R. 1776: Procedures for Congressional Review of Agency Rules), this time with more than two hundred cosponsors. By May 1981 at least seven other proposals to the same effect had been introduced in the 97th Congress.⁸ In March 1982 the Senate voted 69 to 25 to make almost all agency regulations subject to a two-house veto procedure. Without the pressures of the FY 83 budget battle coupled with reelection demands, which precluded final action on regulatory reform during 1982, and given past House support for the veto, Congress undoubtedly would have enacted a generic veto in some form. Efforts are again under way in the 98th Congress (1983-84) toward this end.

In support of his bill Levitas argues, roughly: Agency regulations are tantamount to laws. Citizens must abide by them, often facing penalties for failure to do so. Therefore, a democratically elected legislature has not only the right but the duty to exercise control over their content. The best way to do this, in Levitas's opinion--and in the opinion of many other members as well--is for Congress to have the opportunity to veto regulations before they qo into effect.

Former Assistant Attorney General Robert G. Dixon, Jr., calls legislative veto provisions over regulatory matters "a significant attempt by Congress to move from vigorous oversight of the executive, through hearings, reports and revisions of statutes, to shared administration under existing statutory delegations."⁹ By using the legislative veto device, Congress, as Harold Seidman points out, is able to "bypass the president and directly control subordinate executive branch officials."¹⁰ Concern about legislative intrusion into the domain of the executive branch has prompted charges of unconstitutionality; indeed, such charges make up the bulk of current criticism of the veto device.

It is common for the political system to embrace simple-seeming procedural solutions for dealing with complex, often highly political, and conflicting policy problems. But, just as organizational arrangements are not neutral in their impact, structural and procedural arrangements are not neutral in theirs. Changes in procedures inevitably result in redistribution of political resources and, ultimately, of power to control outcomes of political processes. Reliance upon the legislative veto procedure has functional consequences--for Congress, for the executive, and for the overall political and administrative process.

It has yet to be proved that the legislative veto insures that regulatory agencies will remain "true" to congressional intent in carrying out the law, or that it reduces abusive and excessive regulation. And although it may, indeed, expeditiously resolve conflict, the policy implications of this approach to lawmaking remain unclear. It is essential that we know how the legislative veto operates or is likely to operate in the reality of the political process if we are to evaluate it as a "reform" for regulatory problems. The analysis of the case studies inchapters 3, 4, and 5 addresses three questions: (1) What are the functional consequences for the political system of the imposition of the legislative veto upon rulemaking? (2) Who is advantaged? (3) Who loses in the redistribution of power?

Analytic Framework

This study specially emphasizes the nature of the interrelationships among various actors in the regulatory process, the effect of the addition of the legislative veto on the distribution of power within the interrelationships, and the veto's impact upon rules and regulations, the product of the regulatory process.

Because the character of each legislative decision-making area is dependent upon the relationships that exist among the participants (the agencies; the congressional committee or individual member; the congressional staff; the executive branch hierarchy--the president and Office of Management and Budget or the secretary; the interest groups or clienteles; and the public at large), analysis of the interrelationships in areas where the veto is in place offers the basis for understanding the impact of the veto upon each regulatory subsystem and its policy outputs.¹¹ Such a basis also helps to explain power distributions within the interrelationships and alterations effected by the addition of the legislative veto.¹²

Implicit in the analysis is the assumption that structural or procedural changes within policy subsystems--in this case regulatory processes--produce functional changes in the nature of the procedure, the product, or both. This assumed link between structural change and resultant functional outcomes, either intended (manifest) or unintended (latent), rests upon concepts of structural functionalism as developed by contemporary sociological theorists, particularly Robert K. Merton.¹³

The analytical framework is based on the conception of "arenas of power," developed first by Harold Lasswell and Abraham Kaplan, and later articulated by Theodore Lowi and others.¹⁴ The concept is used to analyze the nature of the interrelationships among participants in policymaking processes. Broadly categorized, policymaking relationships can be described by three variations: distributive, pluralistic, and administrative arenas.

The accepted social science model of regulation used to be depicted as comfortably isolated coalitions of regulator and regulatee that were organized on an industryby-industry basis, the so-called iron triangles of government policymaking. Typical of this would be the coalition of the television and radio industries, the Federal Communications Commission, and the Subcommittee on Communications of the House Interstate and Foreign Commerce Committee and the Subcommittee on Communications of the Senate Commerce, Science, and Transportation Committee. Regulatory decision making under this set of circumstances allows for protection and enhancement of the industry as well as regulation. Indeed, legislative intent in the creation of such regulatory agencies specifically spells out that kind of dual, if often conflicting, purpose. Lowi has referred to such relationships as distributive policymaking arenas that individualize conflict, provide the basis for highly stable coalitions, and allow for obscure piecemeal decision making.¹⁵ Disagreements within distributive arenas rarely erupt in the public forum; rather, they are hammered out within the arenas. Under such an arrangement, the industry and the congressional oversight committee members enjoy a close and influential relationship with the regulatory agency.

Several things have happened to undermine the iron-triangle model for many regulatory areas. First, the governmental role has expanded, especially since the mid-sixties, beyond marketplace economic regulation into a broader regulation aimed at protecting the "public" by seeking to promote health, safety, a cleaner en...

Table of contents

• Cover
• Half Title
• About the Book and Author
• Dedication
• Title
• Copyright
• Contents
• LIST OF TABLES
• FOREWORD
• ACKNOWLEDGMENTS
• INTRODUCTION
• 1 THE LEGISLATIVE VETO AND THE RULEMAKING PROCESS
• 2 HISTORICAL PERSPECTIVE ON THE LEGISLATIVE VETO: LEGAL AND ADMINISTRATIVE ISSUES
• 3 THE CASE OF THE HUD "CONSTITUTIONAL" VETOES
• 4 THE EDUCATION VETOES: CONFLICT AND ACCOMMODATION
• 5 THE LEGISLATIVE VETO AS A MEANS FOR DECISION AVOIDANCE: TWO TARGETED VETOES
• 6 THE LEGISLATIVE VETO OF REGULATIONS: CONSEQUENCES FOR DEMOCRATIC POLICYMAKING
• EPILOGUE
• APPENDIX: EXCERPTS FROM THE EPIC CHADHA DECISION
• INDEX