Chadha and the Legislative Veto

1. Chadha and the Legislative Veto • SCT held that legislative veto violated the constitution because it • was an exercise of legislative power (had the purpose and effect of altering the rights, duties and relations of persons outside the legislative branch) • that did not meet the bicamerality/presentment requirements of Art. I, Sec. 7, cl.2 • Problem w/ Justice Burger’s reasoning? • Definition of legislative power could apply to almost any gov’t action (judicial or executive actions as well) • A more pragmatic analysis of what Congress did suggests that it’s action might have been an unconstitutional exercise of ANOTHER branch’s power (i.e., judicial or executive)

2. Why doesn’t the legislative veto just involve a delegation issue? • If Congress can delegate legislative authority to an agency, why can’t it delegate to itself the authority to veto agency action – especially if the statute giving it that authority was passed consistent with the bicamerality and presentment requirements? • Is there a difference between Congress and agencies in this regard?

3. Controlling Agencies through the Appropriations Process • In what ways can Congress use its budgetary authority to influence agency action? • Consider the OSHA ergonomics regulation issue at pp. 54-55. • Why would Congress want to constrain OSHA’s ability to enact ergonomics regulations through a budgetary rider rather than through a regular law?

4. The Line Item Veto • Defined: Power of the executive to nullify specific provisions of a bill (usually appropriations) without nullifying the entire legislative package. • What are the purposes of such a provision (as opposed to the veto contained in Art. I, Sec. 7, cl. 2)?

5. Clinton v. New York • LIVA, 2 USC § 691: • President has ability to cancel specific appropriations & tax benefits provisions w/in 5 days of enactment w/ certain conditions: • Must identify items for cancellation after considering legislative history, the purposes of the items to be cancelled and other relevant information, • Must determine that cancellation will reduce federal budget, not impair essential gov’t functions, and not harm the national interest • In message accompanying veto sent to Congress, President must identify reasons for cancellation • Congress may enact a “disapproval bill” (enacted pursuant to Art. I, Sec. 7, cl. 2 procedures except that it can occur on an expedited basis) that reverses this cancellation • What does the majority rule regarding the Constitutionality of LIVA?

6. Why isn’t this just a delegation issue? • Didn’t Congress just enact a statute that delegated to the President the authority to enforce certain appropriations and tax benefits laws? • Why shouldn’t we treat this as a delegation issue rather than as a violation of Art. I, Sec. 7, cl. 2? • Is this a delegation of power by Congress to Congress as in Chadha? • Does the text of the Constitution prohibit line item vetoes? • Is this kind of power to cancel the effect of a law any different from that in Field v. Clark? • Why might we be concerned about delegation of this kind of authority?

7. Controlling delegations at the state level: • Stronger state anti-delegation principles result in less need for direct legislative control over agencies. Attempts to control delegations usually look like: • Legislative veto: one/both houses of legislature can nullify agency action by resolution • Courts usually require a specific provision in the State constitution allowing legislature to exercise veto. Otherwise follow Chadha and strike them down. • “Mandatory approval” legislative rules review process: Special Leg. Comm. reviews all agency rules w/power to veto, suspend or delay rules. If the comm. doesn’t act w/in period of time, rules take effect. • Most (but not all) state courts strike down provisions as unconstitutional absent a specific constitutional provision allowing them. • Missouri Coalition for the Envio. v. Joint Comm. on Admin Rules, 948 S.W.2d 125 (1997) – ruled MO’s mandatory rules approach violated state Constitution

8. Line Item Vetoes in the States • Most Governors have the line item veto. • Only seven states do not give their governor some kind of line item veto. • Missouri governor has line-item veto