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/effect of altering the rights/duties/relations of persons outside the legislative branch) that did not meet the bicamerality/presentment requirements of Art. I, Sec. 7, cl.2 &3 • Problem w/ Justice Burger’s reasoning? • His definition of legislative power could apply to almost any gov’t action (judicial or executive actions as well) • Could Burger have approached Congress’s exercise of veto over Chadha’s deportation suspension in a different way?

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. Other ways Congress can control delegations • Contract with America Advancement Act (pp. 49 & 997) • Agencies must submit all rules to Congress. Rules except “major” rules go into effect - latter are subject to 60-day stay pending resolutions discussed below. • Major rules are subject to disapproval by a joint resolution filed w/in 60 days that satisfies bicamerality & presentment req’mts. Resolutions are retroactive. If no disapproval by Congress w/in 60 days the rules go into effect. • Agency cannot submit new rule in same form unless a new law authorizes it. • Joint Select Committee on Deficit Reduction (aka the Super Committee) • Budget Control Act gives the 12-member committee power to enter into proposals re proposed cuts. • Proposal goes to House/Senate for a vote (bicamerality) but there can be limited debate/no amendments (Art. I, § 5 allows these restrictions) & then it goes to President if approved (presentment) • If committee can’t agree on proposal, automatic cuts that were in the original legislation occur.

4. 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 p. 52. • Whywould Congress want to constrain OSHA’s ability to enact ergonomics regulations through a budgetary rider rather than through a regular law?

5. 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)?

6. 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 generally regarding the constitutionality of LIVA? What is its reasoning?

7. Why isn’t this just a delegation issue as the dissent claims? • Didn’t Congress just enact a statute that delegated to the President the authority to cancelcertain appropriations and tax benefits laws? • Why shouldn’t we treat this as a delegation of cancellation authority 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? • So we are concerned about delegation of this kind of authority because:

8. 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: • 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 Legislative Committee reviews all agency rules w/power to veto, suspend or delay rules. If the committee 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.

9. Missouri’s Experience W/ Mandatory Rules Legislation • Missouri law created Joint Committee on Administrative Rules (JCAR)– five senators and five representatives • Law gave required that: • Most rules be submitted to JCAR for approval/disapproval before being published as final rules • If JCAR didn’t disapprove the rule w/in 20 days, the rule could be published as final • If JCAR did disapprove a rule, it reported its finding to the full House/Senate, which could reverse a disapproval and reinstate a rule by a joint resolution of both houses within 20 days. • Missouri Coalition for the Envio. v. Joint Comm. on Admin Rules, 948 S.W.2d 125 (1997): • SCT ruled that MO’s mandatory rules approach violatedstateConstitution’s provisions requiring legislative decisions to pass both houses and be presented to the governor (much like Chadha)

10. Line Item Vetoes in the States (including MO) • Most governors have the line item veto • Only six states do not give their governor some kind of line item veto. • Ind., Nv., N.H., N.C., R.I., and Vt. • Missouri governor has line-item veto - Mo Const. Art. IV. § 26: • “The governor may object to one or more items or portions of items of appropriation of money in any bill presented to him, while approving other portions of the bill” except the governor may not reduce appropriations for public schools or payment of principal and interest on public debt. • Generally interpreted as meaning that governor can strike: • Funding for particular item • Funding for entire program or agency • Language accompanying a particular appropriation (if appropriation is stricken) • Suggest reduced amounts re particular appropriations for legislature to consider • Governor must send statement of objectionable items back to general assembly which considers each objection separately. • Assembly can can override line-item veto – C.W. is that 2/3 majority is required – not clear from text of Mo. Constitution.