I am delighted to have been given the opportunity to comment on Judge Breyer\u27s proposal for a fast-track substitute to the legislative veto. Although the Supreme Court invalidated the legislative veto device in INS v. Chadha, Judge Breyer\u27s proposal demonstrates that innovative thinking may well permit those with enough determination to circumvent the apparent effect of the Court\u27s decision. Even more important, the proposal illustrates why such circumvention is possible.
As a doctrinal matter, the legislative veto poses a real dilemma--one that is rooted in fundamental uncertainty about the proper relationship between the Supreme Court and the elected branches of government. Because the Supreme Court tried to resolve the constitutional issues raised by the legislative veto without first resolving that dilemma, the Chadha opinion is unsatisfying. Its tone is glib; its reasoning is superficial; and its analysis is linguistic rather than functional in nature

Spann, Girardeau A

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Spinning the Legislative Veto

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Georgetown University Law Center Scholarship @ GEORGETOWN LAW 1984 Spinning the Legislative Veto Girardeau A. Spann Georgetown University Law Center, spann@law.georgetown.edu   This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1936  72 Geo. L.J. 813 (1984) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub  Part of the Constitutional Law Commons, and the Supreme Court of the United States Commons Spinning the Legislative Veto*GIRARDEAU A. SPANN**I am delighted to have been given the opportunity to comment on JudgeBreyer's proposal for a fast-track substitute to the legislative veto.' Althoughthe Supreme Court invalidated the legislative veto device in INS v. Chadha,2Judge Breyer's proposal demonstrates that innovative thinking may well per-mit those with enough determination to circumvent the apparent effect of theCourt's decision. Even more important, the proposal illustrates why such cir-cumvention is possible.As a doctrinal matter, the legislative veto poses a real dilemma--one that isrooted in fundamental uncertainty about the proper relationship between theSupreme Court and the elected branches of government. Because the SupremeCourt tried to resolve the constitutional issues raised by the legislative vetowithout first resolving that dilemma, the Chadha opinion is unsatisfying. Itstone is glib; its reasoning is superficial; and its analysis is linguistic rather thanfunctional in nature.3Judge Breyer's fast-track proposal illustrates these defects in a rather dra-matic fashion. By posing the pertinent constitutional issues in a way that can-not be resolved without directly confronting the underlying dilemma, JudgeBreyer's veto alternative places so much strain on the reasoning of Chadha thatthe opinion threatens to burst apart at the seams. All of this not only permitsclever lawyers and legislators to conjure up strategies for sidestepping theCourt's decision, but precludes us, as well, from making any reliable determi-nation of whether those strategies are consistent with the theory of our Consti-tution. Using the raw materials provided in the Chadha decision, it is possibleto spin legal analysis of the legislative veto around and around until we get anyanswer concerning its validity that we desire. It strikes me that this is a usefulthing to know, and we are indebted to Judge Breyer for providing the catalystthat makes it so apparent.I. THE FAST-TRACK PROPOSALThe legislative veto has been viewed by many as a useful device because itpermits Congress to make broad delegations of authority to executive agencieswhile retaining the authority to invalidate particular exercises of that authoritywhen it disapproves of what the executive has done.4 Of course, Congress cangenerally invalidate an act of the executive branch by passing a new statute,* © Girardeau A. Spann, 1984. This article consists of comments on a paper entitled The LegislativeVeto ,4fer Chadha, which was delivered on October 13, 1983, by Judge Stephen Breyer, as part of theRyan Lecture series, at the Georgetown University Law Center, Washington, D.C.** Associate Professor of Law, Georgetown University Law Center.1. See Breyer, The Legislative Veto After Chadha, 72 GEo. L.J. 785 (1984).2. 103 S. Ct. 2764 (1983).3. I have in the past argued that functional analysis is preferable to, and less dangerous than, linguis-tic analysis for a variety of reasons. See Spann, Functional Analsis of the Plain-Error Rule, 71 GEO.L.J. 945 (1983).4. The history and purpose of the legislative veto, as well as many of the ideas expressed in thisTHE GEORGETOWN LAW JOURNALbut statutes are not always so easy to enact. They require the expenditure ofenough time and political capital to amass the majorities or supermajoritiesneeded for enactment. The legislative veto, however, permits Congress to in-validate an executive action with the concurrence of something less than thefull majorities required for passage of new legislation. It is, therefore, a politi-cally expedient way for Congress to exert control over executive agencies.Viewed in this light, as Judge Breyer points out,5 the legislative veto is a polit-ical compromise between efficiency on the one hand and accountability on theother.6Broad delegations of power to executive agencies are efficient in two ways.First, they tend to be stated in general terms that facilitate enactment by reduc-ing political opposition that might accompany more specific legislative propos-als. Second, the breadth of agency delegations minimizes questions that mightotherwise arise concerning an agency's statutory authority to take particularactions. However, this efficiency reduces the degree of accountability to whichexecutive agencies are subject. As a result, Congress sought to provide a sub-stitute form of accountability through retention of the power to veto particularexercises of agency authority. Even when a veto is not actually exercised, thethreat of a veto is often enough to prompt executive officials to make conces-sions to the elected Members of Congress before taking potentially controver-sial actions.Although Chadha declared the legislative veto to be invalid, it is not clearprecisely why. As Judge Breyer has emphasized, 7 the reasoning relied on bythe Court was literal and mechanical. The Court merely declared the exerciseof a legislative veto to be an act that was legislative in nature and, therefore,invalid for failure to comply with the article I enactment procedures prescribedfor legislation.8 Because the Court offered no functional explanation of whythe veto ought to be subject to the article I enactment procedures, the opinionis unsatisfying. Now, Judge Breyer has proposed an alternative to the vetodevice that demonstrates just how unsatisfying the Chadha opinion is.Under Judge Breyer's alternative, 9 executive actions taken pursuant tobroad congressional delegations of power would not automatically have legaleffect. Rather, they would serve as legislative proposals that would becomeeffective only if affirmatively enacted by Congress. The internal rules of eachHouse, however, would be amended to provide a "fast track" for such legisla-tive proposals, pursuant to which the proposals would quickly be voted on byeach House without procedural delays. This would provide a quasi-automaticprocess by which executive proposals could become law, but the procedurecould be terminated with respect to any particular executive proposal throughpassage of a "derailing" resolution by one or both Houses. Such a resolutionarticle, are more fully developed in Spann, Deconstiucting The Legislative Veto, 68 MINN. L. REv. -(1984) (forthcoming).5. See Breyer, supra note 1, at 787-88.6. To the extent that the legislative veto permits Congress to take actions that a majority of theMembers of Congress would not agree to take, it is not a "legislative" veto at all. Rather, it is a vetoexercised by some entity that is smaller than, and different from, Congress. See Spann, supra note 4.7. See Breyer, supra note I, at 790.8. Chadha, 103 S. Ct. at 2780-88.9. See Breyer, supra note I, at 793-94.[Vol. 72:813LEGISLATIVE VETOwould have the effect of taking the executive proposal off of the fast track andsubjecting it to the normal legislative process, with all of its attendant politicalmaneuvering and delays.The derailing resolution would have roughly the same effect as a one- or atwo-House veto, depending on which derailing option Congress selected, be-cause it would strike roughly the same political compromise as that struck bythe legislative veto.' 0 However, the fast-track proposal would not depart fromthe legislative procedures prescribed by article I, and would not, therefore, ap-pear to be invalid under the terms of the Chadha decision. How then shouldthe fast-track alternative be viewed in constitutional terms? Should it beviewed as constitutional because it satisfies the language of article I, or shouldit be viewed as unconstitutional because it serves the same purpose as thatserved by the unconstitutional legislative veto? Stated differently, was theSupreme Court merely disapproving of the manner in which Congress chose tostrike the political compromise embodied in the legislative veto, or was it in-validating the political compromise itself? As it turns out, that question posesa dilemma so fundamental that it is easy to understand why the Court chose toavoid it.II. THE DILEMMAThe dilemma is this: Constitutional theory both permits and precludes Con-gress from relying upon the legislative veto as a device for controlling execu-tive action. Watch what happens when we undertake a functional analysis ofthe legislative veto.Subject to certain exceptions that are not here pertinent," Congress can ex-ercise only legislative power, because that is the only power that it is grantedunder the Constitution.' 2 The doctrine of separation of powers, which is im-plicit in the structure of the Constitution, requires the concurrence of threeseparate constituencies to make legislation valid. The Senate-which repre-sents state interests, the House of Representatives-which represents the inter-ests of local majorities, and the President-who represents the interests of thenational majority all must agree on the desirability of a particular actionbefore that action can have the effect of valid legislation. 13 Consistent with oursystem of checks and balances, this three-constituency-concurrence require-ment provides a degree of quality control over the development of federal poli-cies that helps to ensure that imprudent legislative proposals will not beimplemented. Because the legislative veto permits one or two Houses of Con-gress acting alone to implement legislative policy decisions without the concur-rence of the three required constituencies, the veto is unconstitutional, inviolation of separation of powers principles ....10. The political compromise would not be precisely the same, however, for the reasons that JudgeBreyer specifies. See id at 794-95.11. See, e.g., U.S. CONST. art. I, § 5.12. See id art. I, § I.13. The separate-constituency theory was articulated most clearly in the legislative veto context bythe United States Court of Appeals for the District of Columbia Circuit in Consumer Energy Councilof Am. v. Federal Energy Regulatory Comm'n, 673 F.2d 425, 461-65 (D.C. Cir. 1982), affidmem., 103S. Ct. 3556 (1983) (invalidating one-House veto with respect to agency rulemaking).1984]THE GEORGETOWN LAW JOURNALBut the legislative veto is authorized by legislation. Moreover, that legisla-tion is perfectly valid because it has been agreed to by the three separate con-stituencies specified in the Constitution, thereby satisfying our quality controlstandards. Both Houses of Congress and the President have determined that,in the contexts in which it is authorized, the legislative veto constitutes a pru-dent method of achieving a valid governmental objective. Because the legisla-tive veto is an essential component of a perfectly valid piece of legislation, theveto is constitutional and is completely consistent with separation of powersprinciples.Separation of powers principles are designed to ensure that the political pro-cess operates properly, but here, a properly operating political process has cho-sen to take an action that can be said to violate separation of powers principles.When the two conflict, which should prevail-the principle designed to protectthe political process or the political process that the principle was designed toprotect? It is not possible to resolve this dilemma without first adopting a nor-mative position regarding the primacy of principle versus politics. That iswhat the Supreme Court failed to do in Chadha, and that is why the Chadhadecision is unsatisfying. In more cosmic terms, the problems that plague theChadha decision are the same problems that plague the legitimacy of judicialreview itself. When we decide how we feel about judicial review, we should beable to decide how we feel about the legislative veto. Until that time, however,constitutional analysis is likely to be a somewhat dizzying experience. Bymaking a minor modification to Judge Breyer's proposal I can illustrate what Imean.III. ANALYTICAL SPINJudge Breyer's fast-track alternative is appealing because it closely approxi-mates the political compromise that is struck by the legislative veto. As inge-nious as the fast-track alternative is, however, it does not perfectly replicatethat compromise.14 Luckily, I have developed the perfect alternative. Now,your initial reaction will be that my alternative is absurd and impractical, andyou will be tempted to say, "Thank God for Judge Breyer and his down-to-Earth approach to this difficult subject." But on reflection, it should becomeapparent that mine is, indeed, the perfect alternative. My alternative proposalis called the "legislative veto!"At the beginning of the next session of Congress, the Members of bothHouses should meet to discuss the consequences of the Chadha decision. Ifthey genuinely wish to use the legislative veto as a means of controlling execu-tive discretion, and if they are willing to pay the price, the Members of Con-gress have it well within their power to exercise legislative vetos that are everybit as effective as the veto invalidated in Chadha. They need only agree torubber stamp, through affirmative legislation, all vetos exercised by a desig-nated House or Committee of Congress. My proposal differs from JudgeBreyer's in that it does not rely on a rules change or any other method offormally binding legislators to the veto scheme. Moreover, because enactment14. See Breyer, supra note 1, at 794-95.[Vol. 72:813LEGISLATIVE VETOof the affirmative legislation would be truly automatic under my scheme-Members would not even need to be told the subject matter of the bills forwhich they were voting-the entire process would replicate, rather than merelyapproximate, the efficiency of the traditional legislative veto; it would captureprecisely the same political compromise. However, each veto will have beenimplemented through affirmative legislation, in accordance with the proce-dures specified in article I, thereby honoring the dictates of Chadha.Because my legislative veto so effectively mirrors the legislative veto setaside in Chadha, one might well wonder whether it is truly constitutional. Butthe constitutional issue is easily disposed of. My legislative veto is nothingmore than a standard political deal. Whenever a rubber-stamp bill is intro-duced, each legislator agrees to vote for that bill, even though he or she maynot actually favor it, in exchange for the commitment of other legislators tovote for future rubber-stamp legislation that they might not favor. This is clas-sic political logrolling, in its purest form. If the Court attempted to invalidatesuch a scheme it would be telling legislators that their votes were effective onlyif the Supreme Court approved of their motives in casting those votes. Such aholding would involve a separation of powers violation all right, but it wouldbe the Supreme Court that was intruding impermissibly into the legislativeprocess. Chadha may preclude Congress from binding itself to a legislativeveto scheme by law, but it certainly cannot preclude the Members of Congressfrom making such a scheme politically binding.As fate would have it, my legislative veto not only turns out to be constitu-tional, but it turns out to be a prudent policy choice as well. In fact, it turnsout to be the most prudent policy choice imaginable. Not only will the schemehave been agreed to by the Members of Congress, but the scheme will be con-tinuously reevaluated and immediately corrected if it ever proves to have be-come imprudent. The moment that the Congress ceases to believe that thescheme is warranted, the scheme will cease to work; the moment that too manylegislators decide that they no longer wish to rubber stamp legislative vetosthrough affirmative legislation, the legislation will be defeated and the vetoswill cease to be effective.' 5 Instantaneous political accountability . . . whatcould be better.As I mentioned earlier, you may be thinking that such a scheme would beimpractical and that it would never work because the Members of Congresswould break ranks the first time they were called upon to rubber stamp a vetoof which they disapproved on the merits. Well, I suppose that's right, butthat's also the point. If Congress does not believe strongly enough in the legis-lative veto to pay the political price required to make it work, why should theveto continue to be an available legislative device? Wasn't the Supreme Courtright to invalidate the legislative veto, because it would only be useful to aCongress that did not truly believe in the political compromise that the vetowas intended to embody?15. The scheme will continue to work as long as a majority of the Members of each House areprepared to vote in favor of a legislative veto. If a presidential veto is exercised, the scheme will con-tinue to work as long as two-thirds of the Members of each House are prepared to vote in favor of thelegislative veto.1984]818 THE GEORGETOWN LAW JOURNAL [Vol. 72:813If you are about to say "yes," think carefully before you answer. Just as wewere able to predict that an informal veto scheme would not work because theMembers of Congress might not always honor their political commitments,Congress too could make the same prediction. Why then should not Congressbe able to guard against that danger by making the political commitments ofits Members to a legislative veto scheme legally, as well as politically, binding?As long as the three pertinent constituencies agree that legal commitments area prudent way to supplement political commitments, and they do so in accord-ance with the prescribed article I procedures, shouldn't the resulting legislationbe legally effective?Well, look where we are. We are right back on the horns of that dilemmaagain, and our analysis has simply gone around and around. But where elsecould it go? Until we resolve our ambivalence concerning the proper interac-tion of law and politics-of the Court and the elected branches of govern-ment-it is fitting that we go around in circles. At least those circles will.remind us of how hopelessly interconnected law and politics appear to be.

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Spinning the Legislative Veto

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