General critique by Koppelman

• None of opinions address whether legislative veto was actually an effective tool for checking administrative agencies.

• Tribe. “legislative vetoes may not have substantially enhanced governmental efficiency, but may instead have simply given special interest groups that lose battles before agencies ways to win favors from committees of Congress.”

• Could majority perhaps be thinking that it was not an effective tool, and hoping that eliminating this illusory check will induce Congress to delegate less.

• It is not clear that decision has had much effect on actual practice.

• From Chadha  end of 103^rd Congress on 12/1/94, Congress enacted more than 300 new legislative vetoes, most of which require executive branch to obtain approval of specified committees.

• Because Congress can place onerous restrictions on funding, it has been able to bargain for informal, nonstatutory agreements that certain agency actions will not be taken w/o approval of specified committee. These understandings were first articulated in committee reports but have now often been incorporated into agency manuals, and would therefore remain in effect even if legislative vetoes were removed from statutes.

• Fisher and Devins: “Predictable and inevitable result of Chadha is a system of lawmaking that is now more convoluted, cumbersome, and covert than before. In many cases the Court’s decision simply drives underground a set of legislative and committee vetoes that used to operate in plain sight.”

Single-house actions approved by usc

• There are four actions that USC permits a single house to take, without possibility of presidential veto. [House’s power to initiate impeachments, Senate’s power to conduct trials following impeachment, Senate’s power over presidential appointments, and Senate’s power to ratify treaties.]

• In these four situations, a single-house legislative veto would presumably be constitutional. For instance, since Senate alone is given power to approve/disapprove presidential appointments, Senate could presumably pass resolution that all presidential appointments shall be deemed approved by Senate if that body does not vote to reject them within a certain period of time. However, such a provision might be attacked on the theory that it delegates to Executive Branch powers which must be affirmatively exercised by Senate itself.

Chadha in context - Legislative control of the bureaucracy

• The legislative veto is one of a number of means by which Congress has attempted to control administrative agencies to which Congress had delegated substantial discretionary authority.

• Hearings. Congressional committees/subcommittees hold oversight hearings; publicity may lead to informal pressure for changes in executive policy.

• Appropriations Rider. An attachment to an authorization of expenditure of federal funds that prohibits agency from engaging in certain courses of conduct.

• Budget. Similarly, Congress can simply increase/decrease a given agency’s budget in the annual appropriations process to express its views on the agency’s mission and whether more or less enforcement is desirable.

• Sunset Legislation. Provides that agency authority will terminate after certain period unless Congress reenacts substantive statute.

• Ordinary Legislation modifying agency’s authority. Repeal of agency authority, through ordinary legislation, to engage in particular course of conduct. Even more extreme, Congress might rewrite statute itself to limit agency authority.

The reach of Chadha

• Should Chadha apply to all legislative vetoes? Two cases below involving independent agencies confirm White’s suggestion that the reach of Chadha is quite broad.

Process Gas Consumers Group v. Consumers Energy Council of America

• 1983. SCt summarily affirmed, on authority of Chadha, a decision invalidating legislative veto as applied to certain Federal Energy Regulatory Commission regulations of natural gas pricing.

United States Senate v. FTC

• 1983. SCt summarily affirmed decision invalidating legislative veto as applied to rulemaking by FTC. This case involved a “two-House veto,” in which both Houses of Congress must agree before any veto can become effective.

A return to the text?

• Chadha decision might fit within category of “interpretivist” or “originalist” approaches to USC in that decision considers USC as self-contained, with clear answers to at least some problems.

• White complained that this approach was inconsistent with its previous flexible attitude toward separation of powers disputes. If this is true, should we consider SCt’s analysis here naïve and mechanical, or an honest adherence to USC’s text and underlying intent?

• Perhaps we could argue that in light of enormous expansion of the bureaucracy, application of the framer’s views on distribution of national powers counseled in favor of, rather than against, the legislative veto arrangement.