The Legislative Veto and

Congressional Review of Agency Rules

[The following testimony discusses the constitutional objections to legislative vetoes, 

which are grounded in principles of presentation, bicameralism, and separation of 

powers. The testimony also describes and responds to several theories advanced in 

support of the constitutionality of legislative vetoes. Finally, it outlines the Reagan 

Administration’s policy objections to legislative vetoes in the broader context of congressional review of agency actions, and suggests alternative ways in which Congress 

may provide meaningful legislative oversight of executive action consistent with applicable constitutional principles.]

October 7, 1981

STATEMENT OF THEODORE B. OLSON, ASSISTANT 

ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, 

BEFORE THE SUBCOMMITTEE ON RULES OF THE 

COMMITTEE ON RULES, UNITED STATES HOUSE OF 

REPRESENTATIVES

Introduction

Thank you for affording me the opportunity to appear before you 

today to discuss congressional review of agency rules and, in particular, 

legislative vetoes.

I hasten to acknowledge that there may be little that I can add to this 

Subcommittee’s wisdom in this field. This Subcommittee performed a 

valuable service during the 96th Congress by holding extensive hearings on this topic. I may not be able to expand upon the wealth of 

material contained in the several volumes published on this subject by 

this Subcommittee last Congress.

I should note at the outset that I supplied testimony in this area last 

April to the Subcommittee on Agency Administration of the Committee on the Judiciary of the United States Senate. Rather than take your 

time with a repetition of the views expressed on that occasion, I am 

furnishing your Subcommittee with a copy of that testimony and ask 

that it be included as part of the record of today’s hearing.

In my remarks today, I will expand upon this Administration’s constitutional objections to legislative vetoes and discuss briefly the broader 

subject of congressional review of agency rules. Consideration of alternative methods of congressional review of agency actions, including

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rules, should not be deterred by concentration exclusively on the legislative veto. There are numerous techniques that may better serve the 

objectives of restraining and preventing agency or administrative abuses 

without deviating from fundamental constitutional requirements concerning the procedures by which Congress may legislate and the principle of the separation of powers.

As a preliminary matter, I would like to address two points. First, 

my testimony represents the position of the Administration concerning 

the constitutionality of legislative veto provisions. As a matter of 

policy, however, and as I will discuss in more detail later in my 

testimony, the Administration is not opposed to all congressional oversight devices. Without in any way diminishing its responsibility to 

challenge the constitutionality of such matters in the courts, in the 

legislative process the Administration may not necessarily oppose certain legislative oversight measures relative to selected “independent” 

agencies. The President might well decide to sign a bill containing such 

a proposal; indeed, every modem President has signed similar laws in 

the past. However, the Administration would be compelled to oppose 

any legislative veto provision that applied to Executive Branch agencies under the direct supervision and control of the President.

Second, I would like to address the notion, mistaken in my view, that 

legislative vetoes present “liberal-conservative” issues. Characterization 

in this manner tends to confuse the debate, divert attention from the 

real concerns, and utterly misconstrue the nature of the relevent legal 

and policy considerations.

Legislative vetoes implicate two general areas of constitutional concern: (1) how laws are created and (2) how the power to execute laws 

is allocated under our Constitution. It is neither accurate nor illuminating to characterize concern for the principles that laws may only be 

created by the affirmative votes of both Houses of Congress and the 

concurrence of the President or a congressional override of his veto as 

“liberal” or “conservative.” Moreover, the elaboration of constraints 

placed by the principle of separation of powers on the Executive or 

Legislative Branches is not, and in rational terms cannot, be analyzed in 

terms of considerations that usually are viewed as “conservative” or 

“liberal.” Neither end of the political spectrum has an exclusive claim 

to the conviction that the executive power is vested by the Constitution 

in the President.

There is obviously a great deal more than partisanship involved in 

opposition to a technique by Presidents ranging from Roosevelt, 

Truman, Kennedy, and Johnson to Hoover, Eisenhower, Nixon, and 

Ford. I do not believe that either “liberal” or “conservative” leanings 

prompted one of my predecessors, then Assistant Attorney General, 

now Supreme Court Justice William Rehnquist, to refer to legislative

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vetoes as “clearly . . . a violation of the separation of powers.” 1 The 

same may be said of a 1977 American Enterprise Institute-sponsored 

study which stated that the legislative veto device “is, almost necessarily, unconstitutional.” 2

Partisan labeling of this issue simply does not promote analysis or 

understanding. The issue must be approached and addressed from the 

dual standpoints of how a particular legislative veto might rearrange 

the manner in which laws are created—either without participation by 

the President or without both the President and some portion of the 

Congress—and the extent to which a particular form of legislative veto 

might revise the President’s constitutional responsibility to enforce and 

administer the laws that Congress enacts.

With this background in mind, I would like to turn to an analysis of 

the constitutionality of legislative vetoes.

I. The Legislative Veto

Because the term “legislative veto” has been used to describe a wide 

range of congressional oversight techniques, it is analytically useful to 

provide a definition of the term. It is a statutory provision under which 

Congress, or a unit of Congress, is purportedly authorized to adopt a 

resolution that will impose on the Executive Branch a specific requirement to take or refrain from taking an action. A key characteristic of 

all legislative veto provisions is that a resolution pursuant to such a 

provision is not presented to the President for his approval or veto. 

Such a provision contemplates a procedure under which one or both 

Houses of Congress or a committee of one House may act contrary to 

the constitutional procedure for enacting laws to overrule, reverse, 

revise, modify, suspend, prevent, or delay an action by the President or 

some other part of the Executive Branch.

The two-House legislative veto consists of both Houses acting affirmatively by concurrent resolution (as in the case of motor vehicle safety 

standards, 15 U.S.C. § 1410(d) (1976)). A variation is the active involvement by one House of Congress and the passive acquiescence or failure 

to disagree by the other House—which is termed a “one-and-one-half 

House” legislative veto (as in S. 890, 97th Cong., 1st Sess. (1981), the 

proposed Regulatory Reduction and Congressional Control Act of 

1981). A legislative veto provision may provide for a veto by one 

House of Congress (as in the Federal Pay Comparability Act of 1970, 5 

U.S.C. § 5305(c)(2) (1976), or in the Congressional Budget and Impoundment Control Act of 1974, 31 U.S.C. § 1403(b) (1976)), or by one 

committee of one House of Congress (as in the case of the Federal

1 Address by William H. Rehnquist, “Committee Veto: Fifty Years of Sparring Between the 

Executive and Legislature” 9-10 (Aug. 12t 1969) (Speech before the Section on Administrative Law of 

the American Bar Association)

2 J. Bolton, The Legislative Veto: Unseparating the Powers 49 (1977).

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Land Policy and Management Act of (1976), 43 U.S.C. § 1714(e)

(1976)). Legislative veto provisions are contained in statutes dealing 

with rulemaking by Executive Branch departments and agencies (for 

instance, rulemaking by the Department of Education, 20 U.S.C. 

§ 1232(d) (1976 & Supp. IV 1980)), as well as with rulemaking by 

“independent” agencies and commissions (for instance, rulemaking by 

the Federal Trade Commission, in view of § 20 of the Federal Trade 

Commission Improvements Act of 1980, 15 U.S.C. § 57a-l (Supp. IV 

1980)). They also are contained in legislation under which Executive 

Branch officials are called upon to execute the law in particular cases— 

for instance, when the Attorney General suspends the deportation of an 

alien, 8 U.S.C. § 1254 (1976 & Supp. IV), when the President approves 

execution of an agreement with another nation for atomic energy cooperation, 42 U.S.C. § 2153(d) (Supp. IV 1980), or when the National 

Railroad Passenger Corporation seeks to alter Amtrak’s basic route 

system, 45 U.S.C. § 564(c) (1976 & Supp. IV 1980).

A. Constitutional Defects

For purposes of constitutional analysis, all of the types of legislative 

vetoes that I have outlined share two substantial infirmities. First, 

because they do not provide for presentation to the President of a 

resolution purporting to bind the Executive Branch, they violate the 

constitutionally mandated procedures for legislative action set forth in 

the Presentation Clauses of Article I, § 7, clauses 2 and 3. A related 

defect of legislative veto provisions other than two-House vetoes is that 

they violate the constitutional principle of bicameralism, under which 

all exercises of the legislative power having binding effect on the 

Executive Branch must first involve passage of a resolution or bill by 

both Houses of Congress—not just one House or one committee— 

before presentation to the President. This is also a requirement of 

Article I, § 7, clauses 2 and 3.

Second, since legislative vetoes would allow the Legislative Branch 

(or some unit of it) to substitute its judgment about how best to execute 

the law for the discretion of the Executive Branch, legislative veto 

provisions violate the underlying constitutional principle of the separation of powers, under which the Legislature is to legislate and the 

Executive is to execute the law.

I will discuss these constitutional defects in turn.

1. Article I, § 7

(a) The Presentation Clauses

A resolution adopted pursuant to a legislative veto provision is necessarily an exercise of Congress’ Article I power to take legislative 

action. Article I is the source of Congress’ power to impose legal 

requirements on the Executive Branch. As noted earlier, while some

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forms of legislative vetoes apply to purely executive actions, Congress 

simply may not execute the law. That power is given to the President. 

Article II, § 1, clause 1 states that executive power “shall be vested in 

[the] President.” With certain express exceptions (e.g., the Senate’s 

advice and consent regarding presidential appointments), when Congress acts, it is exercising its legislative powers.

However, the Constitution did not leave it to the discretion of Congress to decide how it will exercise its legislative power. Specific procedures must be followed as prescribed in Article I, § 7, clauses 2 and 3. 

Article I, § 7, clause 2 provides that every “bill” “before it become[s] a 

Law” shall have been passed by both Houses of Congress and shall 

have been presented to the President for his approval or veto. If the 

President disapproves of a “bill” and vetoes it, the bill may still become 

law if it is re-passed by a two-thirds vote of both Houses of Congress.

The Framers anticipated and closed the “loophole” that might have 

been thought to exist under clause 2 which might, standing alone, have 

been perceived to have allowed Congress to avoid the presentation 

requirement by legislating in the form of resolutions rather than “bills.” 

They added to the text of the Constitution Article I, § 7, clause 3, 

which provides in language that in many respects tracks clause 2, that 

“[e]very Order, Resolution, or Vote” requiring concurrent action 

(except resolutions of adjournment) 3 “shall be presented to the President,” who may approve or veto the order, resolution, or vote. Like 

clause 2, clause 3 provides that after a proposal is vetoed, it may still 

become law if it is subsequently passed by a two-thirds vote of both 

Houses of Congress. Thus, clause 3, read in conjunction with clause 2, 

makes quite plain that the Framers intended that all exercises of legislative power having the substantive effects of legislation, irrespective of 

the form of congressional action, must follow the specified legislative 

procedure.4

Clauses 2 and 3 demonstrate that the Framers intended that all 

exercises of legislative power must follow the required process, which 

includes passage by both Houses of Congress and then presentation to

3 Article I, §5, clause 4 prevents adjournment for more than 3 days without the consent of each 

House. Because such adjournments thus must be accomplished by concurrent action, a specific proviso 

m Article I, § 7, clause 3 was necessary to prevent Congress from having to submit adjournment 

resolutions to the President. It would be inappropriate for Congress to have to present adjournment 

resolutions to the President for his approval or veto since the President is able to convene Congress in 

any event. See Article II, § 3; S. Rep. No. 1335, 54th Cong., 2d Sess. 6 (1897).

4 The history of the adoption of clauses 2 and 3 confirms that conclusion. During the debate on the 

presidential veto provision, James Madison observed that

if the negative of the President was confined to bills, it would be evaded by acts under 

the form and name of resolutions, votes [etc. He] proposed that “or resolve” should be 

added after "billy' . . . with an exception as to votes of adjournment [etc.]. (Emphasis 

in original.)

5 J. Elliot, Debates on the Adoption o f the Federal Constitution, 431 (1876). Although Madison's 

proposal was initially rejected, it was renewed during the following day's session by Mr. Randolph, 

who put the proposal in a new form substantially as it now appears. It was then adopted by a 9 - 1 

vote. 2 M. Farrand, Records of the Federal Convention of 1787, 304-08 (rev. ed. 1937).

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the President.5 As one commentator noted, "[i]t would be difficult to 

conceive of language and history which would more clearly require 

that all concurrent action of the two Houses be subject to the President’s approval or veto.” 6 Legislative veto provisions fall short of 

compliance with these requirements in that they do not permit the 

President to exercise his power to approve or veto a legislative veto 

resolution.

The presentation requirement is critical to our constitutional scheme 

of government. The separation of powers that distinguishes our Constitution is counter-weighted with a system of checks by each branch 

over the other two. The President’s power to approve or veto actions 

of Congress is absolutely necessary to the preservation of the Presidency and to the system of checks and balances. See The Federalist, 

Nos. 48 & 73 (J. Madison & A. Hamilton) (J. Cooke ed. 1961); 2 M. 

Farrand, Records of the Federal Convention of 1787, 299-300, 586-87 

(rev. ed. 1937). The Constitution’s Framers feared that, absent a presidential veto, “the legislative and executive powers might speedily come 

to be blended in the same hands.” The Federalist No. 73, at 494 (A. 

Hamilton) (J. Cooke ed. 1961). The Framers also believed that the 

President’s veto power could operate on behalf of the public interest to 

protect against the effects of special interests in our public life. See The 

Federalist No. 73, supra. Without the veto power, as Alexander Hamilton observed, the President “would be absolutely unable to defend 

himself against the depredations of the [Legislative Branch]. He might 

gradually be stripped of his authorities by successive resolutions or 

annihilated by a single vote.” 7

Legislative veto provisions purport to authorize congressional resolutions that change the law without being subject to the presidential veto. 

They circumvent one of the President’s most important constitutional 

powers—in a sense, his only defense. They are therefore not constitutionally permissible.

5 Exercises of legislative power having the substantive effect of legislation and subject to the 

procedures of Article I, § 7 are distinguishable from: (1) acts that 'may be taken by one or both Houses 

o f Congress or their committees because they are merely m aid of Congress’ legislative power and do 

not purport to bind the Executive Branch, such as investigations, oversight hearings, or requests for 

information from the Executive Branch, and (2) acts by one or both Houses of Congress expressly 

authorized by a constitutional provision that does not require the procedures in Article I, § 7. The 

latter class of actions includes the power of the House of Representatives to impeach (Article I, § 2, 

clause 5); the Senate's power to try all impeachments (Article I, § 3, clause 6) and to ratify treaties and 

pass upon presidential nominations (Article II, §2, clause 2), the power of both Houses to pass a 

concurrent resolution of adjournment that is not presented to the President (Article I, § 7, clause 3), 

and the power of each House to establish rules governing its own proceedings (Article I, § 5, clause 

2) See also Article V and Hollingsworth v Virginia, 3 U S. (3 Dali.) 378 (1798) (power of both Houses 

by a two-thirds vote to propose constitutional amendments) In addition, of course, one or both 

Houses of Congress can employ a resolution as a means of expressing an opinion of the House that 

purports to have no binding effect on the Executive Branch.

6Ginnane, The Control o f Federal Administration by Congressional Resolutions and Committees, 66 

Harv L. Rev. 569, 573 (1953).

7 The Federalist No. 73, at 494 (A. Hamilton) (J. Cooke ed. 1961).

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The argument that legislative veto provisions directed at agency rules 

do not contemplate the exercise of legislative power does not survive a 

straightforward analysis. Typically, Congress delegates rulemaking authority to an agency to implement policy objectives mandated by statute. Agency regulations adopted pursuant to such an authorization have 

the force and effect of law if they are within the substantive delegation 

of the rulemaking power. See, e.g., Chrysler Corp. v. Brown, 441 U.S. 

281, 295-96 (1979). Such a statutory delegation, which requires the 

concurrence of both Houses of Congress and presentation to the President, may be withdrawn or modified only by following the same 

procedure for legislation. In contrast, a legislative veto provision would 

erect a fundamentally different scheme. It would allow Congress— 

whether two Houses, one House, or otherwise—to overrule or block a 

rule or decision by the Executive Branch that had been issued pursuant 

to statutory authorization. The effect would amount to repealing or 

partially modifying the prior statutory authorization without following 

the prescribed process of presenting to the President resolutions having 

a public, legally binding effect.8 Hence, the resolutions constitute legislative actions and, to be constitutional, they must be presented to the 

President for his concurrence or veto.

(b) The Bicameralism Principle

Legislative vetoes that contemplate action by Congress without 

affirmative approval by both Houses of Congress also violate the Constitution’s bicameralism principle. This principle, like the presentation 

requirement, is embodied in Article I, § 7, clauses 2 and 3. These two 

clauses, which I have already discussed, require that any measure that 

has the effect of an exercise of legislative power, whether in the form 

of a bill, resolution, or otherwise, must be affirmatively approved by both

Houses o f Congress. 9 This conclusion is buttressed by the language of 

Article I, § 1, which vests “[a]ll legislative Powers herein granted” in 

“a Congress of the United States, which shall consist of a Senate and

House of Representatives” (emphasis added).

8 Because under most forms of legislative veto devices, such rules go into effect (subject to judicial 

review) without any further action by Congress, it cannot plausibly be argued that such rules 

constitute mere "proposals” or "recommendations,” the veto of which does not affect the legal “status 

quo.*’

9See S. Rep. No. 1335, 54th Cong., 2d Sess. 1-2, 6-8 (1897). Any suggestion that by assigning 

“veto” power to one House, rather than both, Congress may avoid the strictures of Article I, § 7, 

clause 3 would appear to be a constitutional absurdity. See Watson, Congress Steps Out: A Look at

Congressional Control o f the Executive, 63, Calif. L. Rev. 983, 1066 n.428 (1975) (it “verges on 

irrationality to maintain that action by concurrent resolution, whereby Congress is at least held in 

check by its own structure, is invalid because the veto clause so states, but that the invalidity of a 

simple resolution, wherein a single House acts without check, is more in doubt”). As another 

commentator put it: “It surely must be true that a power not permitted to both houses of Congress by 

the Constitution cannot suddenly be 'made available by delegating it to one house.” J. Bolton, The 

Legislative Veto: Unseparating the Powers, 39 (1977).

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The bicameralism principle of Article I, § 7 contemplates actual passage of a resolution by both Houses—not mere passive “acquiescence” 

by one of the two Houses with respect to the action of the other 

House. Legislative veto provisions that contravene this bicameralism 

principle are invalid for that reason alone.

2. The Principle of the Separation of Powers

The additional constitutional defect of legislative veto provisions is 

that, to the extent that they permit Congress to reserve to itself powers 

vested by the Constitution in the Executive and Judicial Branches, they 

violate the principle of the separation of powers. This principle, one of 

the two or three most fundamental premises that underlie our Constitution, is directly reflected in the Constitution’s structure, which establishes the three branches of government in Articles I, II, and III, for 

the purposes of legislating, executing the laws, and adjudicating, respectively. It also is reflected in several other provisions, including Article

I, § 7, clauses 2 and 3 (the Presentation Clauses); Article I, § 6, clause 2 

(the Ineligibility and Incompatibility Clause); and Article II, § 2, clause 

2 (the Appointments Clause). See generally Buckley v. Valeo, 424 U.S. 1, 

120-37 (1976).

The principle of the separation of powers is based on the premise 

that if one branch of government could, on its own initiative, merge 

legislative, executive, or judicial powers, it could easily become dominant and tyrannical. In such a circumstance, it would not be subject to 

the checks on governmental power that the Framers considered a 

necessary protection of freedom. See The Federalist Nos. 47 & 73 (J. 

Madison & A. Hamilton) (J. Cooke ed. 1961). The three branches of 

government are not “watertight compartments” acting in isolation of 

each other. Springer v. Government of the Philippine Islands, 277 U.S. 

189, 211 (1928) (Holmes, J., dissenting); see Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). 

Rather, the Framers conceived of national government as involving the 

dynamic interaction between the three branches, with each “checking” 

the others and “balancing” the powers conferred on the others with its 

own assertions of power. At the core of this concept is the precept that 

no single branch can usurp or arrogate to itself the essential functions 

of the other branches.

The Framers realized that “[i]n republican government, the legislative authority, necessarily, predominates.” The Federalist No. 51, at 350 

(J. Madison) (J. Cooke ed. 1961). One of their major concerns was to 

ensure that this most powerful branch of government did not become 

too powerful. “[I]t is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all 

their precautions.” The Federalist No. 48, at 334 (J. Madison) (J. Cooke 

ed. 1961). The Framers knew, as Blackstone had observed, that “[i]n all

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tyrannical governments, the supreme magistracy, or the right both of 

making and enforcing the laws, is vested in one and the same man, or 

one and the same body of men.” 1 W. Blackstone, Commentaries 146 

(Cooley 4th ed., 1899) (emphasis in original). Madison observed that the 

accumulation of legislative, executive, and judicial power in one department was “the very definition of tyranny.” The Federalist No. 47, at 

324 (J. Madison) (J. Cooke ed. 1961). He cited Montesquieu for the 

proposition that “ ‘there can be no liberty where the legislative and 

executive powers are united in the same person, or body of magistrates.’ ” Id. at 325. Precisely in order to prevent such an accumulation 

of power, the Constitution was structured so that “[t]he magistrate in 

whom the whole executive power resides cannot of himself make a law, 

though he can put a negative on every law” and “[t]he entire legislature 

. . . can exercise no executive prerogative. . . .” Id. at 326 (emphasis 

added).

The boundary between legislative and executive action is set in the 

first instance by Congress when it decides how much discretion to 

delegate to the Executive Branch in implementing policies established 

by statute. Once such an authorization is enacted, however, the implementation of the statutory policies is an executive function. Indeed, it is 

the core of the Executive Branch’s function. The statute sets a boundary 

beyond which the Executive Branch may not go without intruding on 

the legislative function. It similarly sets a boundary within which the 

Executive must be allowed to function without congressional vetoes or 

requirements except as adopted through the constitutional process of 

legislation. If it were otherwise, Congress would be able to arrogate to 

itself the essence of the Executive’s function. In that circumstance, 

there would be no place for the Executive as a separate, co-equal 

branch of government.

This principle is violated by legislative veto provisions to the extent 

that they would give to the Houses of Congress or even committees of 

Congress the power to intervene, apart from the passage of legislation, 

directly in the process by which the Executive Branch executes the law 

in particular cases or by rulemaking. They would effectively transform 

executive decisions into tentative actions, rather like those of congressional committees, having no force and effect of their own but merely 

achieving legal status if Congress, for example, does not disapprove 

them. In essence, a legislative veto of agency rules would set up the 

Houses of Congress as final administrative authorities over the whole 

range of regulatory matters. Legislative vetoes of purely executive 

decisions take the power from the Executive Branch and vest it in the 

Congress just as surely as if the President were simply an advisory 

official, suggesting proposed actions to Congress. This system might be 

what some may prefer, but it is not the system that our Constitution 

created.

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It must be conceded that there have been abuses of power by Executive Branch agencies. Congress is properly disturbed when an agency 

exceeds the limits on its discretion or ignores the manifest will of the 

Legislature. But in our system, the Judiciary, not Congress, corrects 

such abuses absent the adoption of plenary legislation. As members of 

this Subcommittee repeatedly have observed, it is your right and your 

responsibility to set policies and to insist that the policies you established will be implemented. However, as Justice Brandeis noted, the 

doctrine of the separation of powers was adopted “. . . not to promote 

efficiency but to preclude the exercise of arbitrary power . . . not to 

avoid friction, but . . . to save the people from autocracy.” Myers v. 

United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).

B. Responses to Proponents o f Legislative Vetoes

I would like to respond briefly to the major rejoinders by those who 

support legislative veto provisions and believe that they are not unconstitutional.

First, although some argue otherwise, there is no meaningful constitutional distinction to be drawn between legislative vetoes of rulemaking and of other types of agency action. Rulemaking is a form of 

executive action. See Buckley v. Valeo, 424 U.S. at 140-41. Like other 

such actions, it is lodged in the Executive Branch under Article II of 

the Constitution. The distinction between rulemaking and other forms 

of executive action carries no weight with respect to compliance with 

the constitutionally prescribed procedure for the exercise of legislative 

power. Article I, § 7, clauses 2 and 3 specify the process to be followed 

by all legislative action having the force of law and not otherwise 

covered by constitutional sections specifically providing for a different 

procedure, regardless whether the action affects rulemaking, adjudication, or other decisions by agencies.

Second, it has been argued that the adoption of a resolution disapproving an agency rule pursuant to a legislative veto provision is not 

really an exercise of legislative power and is not therefore subject to 

the constitutional provisions that I have described, but rather is the 

exercise of a condition on agency discretion under a statute giving the 

agency rulemaking power in the first place. Viewed in that light, 

original grants of rulemaking discretion to agencies in organic statutes 

would be changed by amendments containing legislative veto provisions to “conditional delegations.” The analogy is to grants of statutory 

power made contingent upon findings of fact by an Executive Branch 

officer, or upon the favorable vote of persons who will be affected by 

proposed governmental action. See H.R. Rep. No. 120, 76th Cong., 1st 

Sess. 6 (1939). Such an argument is, in the first instance, semantic in 

that it presupposes that affixing another label to the final act of the 

legislative body which determines what the law will or will not be can

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render it not an exercise of legislative power. That supposition simply 

exalts the label over the reality of what is occurring. Moreover, the 

fatal analytical deficiency in this argument is that it assumes that the 

delegation of power to a person or entity outside the Legislative 

Branch is constitutionally equivalent to the delegation of power to the 

Houses of Congress, which are within the Legislative Branch and thus 

subject to the strictures of Article I. That assumption is insupportable. 

The Framers of our Constitution did not want Congress to have the 

power that they gave to the Executive. Whenever power is vested 

outside Congress, it is not concentrated within it. The undue concentration of power in Congress is what the separation of powers is specifically designed to avoid. Hence, a provision allowing persons or bodies 

outside Congress to determine whether conditions on the exercise of 

delegated authority have been met does not present the same constitutional separation of power questions that vesting such power within 

Congress raises.

The other deficiency in the “conditional delegation” argument is that 

if carried to its obvious and natural extreme, it would allow a single 

member of Congress to be authorized to veto any or every executive 

action—an obvious absurdity.

Third, it is no response to the constitutional objections to legislative 

vetoes to assert that they are authorized by the Necessary and Proper 

Clause, Article I, § 8, clause 18, which grants Congress power to 

“make all Laws which shall be necessary and proper for carrying into 

Execution the foregoing [enumerated] Powers, and all other Powers 

vested by this Constitution in the Government of the United States, or 

in any Department or Officer thereof.” The exercise of Article I power 

by Congress pursuant to the Necessary and Proper Clause is limited by 

other express provisions of the Constitution, including Article I, § 7, 

clauses 2 and 3 and by the principle of the separation of powers. See

Buckley v. Valeo, 424 U.S. at 135. As the United States Court of 

Appeals for the Ninth Circuit noted in Chadha v. INS, 634 F.2d 408, 

433 (1980), petition for cert, pending No. 80-1832 (filed May 1, 1981), 

the Necessary and Proper Clause “authorizes Congress to ‘make all 

laws,’ not to exercise power in any way it deems convenient. That a 

power is clearly committed to Congress does not sustain an unconstitutional form in the exercise of the power.”

C. Policy Objections

In addition to their serious constitutional defects, legislative vetoes 

are objectionable for a variety of other reasons. First, they do nothing 

to cure the root causes of regulatory excesses, duplication, or inefficiency, namely, broad, relatively standardless delegations to agencies. 

In fact, they have a natural tendency to encourage broader statutory 

delegations, for they provide the superficial reassurance that Congress

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may have a role in implementing a statute after it is passed and thus 

need not carefully define an agency’s powers and limits before the law 

is enacted. The result of overbroad delegation is excessive agency 

discretion that could not possibly be monitored carefully by Congress.

Legislative vetoes also have been said measurably to increase the 

amount of behind-the-scenes negotiation between agencies and committee staffs and single members of Congress to the detriment of a public, 

fully accountable administrative process.10 In addition, many veto provisions foster delay, for even though only few rules or actions would 

likely be vetoed, all matters referred to Congress would be subject to 

deferral and uncertainty.

To the extent that legislative vetoes may be passed by less than two 

Houses of Congress, they undermine the accountability of all members 

of Congress for actions of Congress. They thus encourage the tendency 

of decentralization of power within Congress to the detriment of the 

body as a whole. Furthermore, to the extent that Congress as a body 

does get seriously involved in reviewing rules or other executive actions subject to legislative vetoes, Congress predictably will get hopelessly mired in details. As Jefferson wrote:

Nothing is so embarrassing nor so mischievous, in a great 

assembly, as the details of execution. The smallest trifle of 

that kind occupies as long as the most important act of 

legislation, and takes place of everything else. Let any 

man recollect, or look over, the files of Congress; he will 

observe the most important propositions hanging over, 

from week to week, and month to month, till the occasions have passed them, and the things never done. I have 

ever viewed the executive details as the greatest cause of 

evil to us, because they in fact place us as if we had no 

federal head, by diverting the attention of that head from 

great to small subjects . . . .n

In short, legislative vetoes do not solve the problems of administrative excess that they are intended to correct, and they have several 

policy infirmities of their own.

II. Congressional Review of Agency Action in General

Although the Administration believes that legislative veto provisions 

are unconstitutional and is taking that position in pending litigation,12

10 See Bruff and Gellhom, Congressional Control o f Administrative Regulation: A Study o f Legislative

Vetoes. 90 Harv. L. Rev. 1369, 1409-14 (1977).

116 T. Jefferson, The Writings of Thomas Jefferson 228 (A. Bergh ed. 1903) (letter to E. 

Carnngton, Aug. 4, 1787).

12 Among the pending cases are Immigration and Naturalization Service v. Chadha, petition for cert, 

pending No. 80-1832 (filed May 1, 1981), in which the Department of Justice has filed a Jurisdictional 

Statement in the Supreme Court on behalf of the Immigration and Naturalization Service; Consumer

Continued

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we would stress that there are many full constitutional legislative and 

oversight mechanisms that Congress can use to achieve the goals of 

more effective review of executive action, including rules. In organic 

statutes, Congress can—and undoubtedly should—place specific and 

precise limits on the authority of agencies to issue rules. Moreover, 

Congress always can override unwise, inappropriate, burdensome, or 

excessive agency rules with legislation. To the extent that procedural 

hurdles within Congress impeding the enactment of legislation have 

fostered legislative veto proposals, Congress can adopt legislation assuring early floor consideration of bills overturning agency rules.

Congress also can authorize an agency to act for a limited period of 

time, thereby forcing the agency to return to Congress for authority to 

continue to act when its authorization expires. Congress can hold oversight hearings, at which explanations for agency rules that members of 

Congress may question can be sought and made part of a public record. 

Congress can adopt resolutions expressing its views that, while not 

legally binding upon the Executive Branch unless adopted pursuant to 

the plenary legislative process, can guide an agency in its implementation of the law. Further, Congress has authority to appropriate the 

money with which agencies execute the law. In appropriations statutes, 

Congress can provide for limitations on the expenditure of funds for 

certain purposes consistent with other applicable legal requirements.

Another alternative is one that I understand originated in this Subcommittee last year. It is the proposal to create a Select Committee on 

Regulatory Affairs that would be given broad jurisdiction over the 

rulemaking activities of the federal government. By virtue of its broad 

jurisdiction, such a committee could investigate issues of regulatory

Energy Council o f America v Federal Energy Regulatory Commission, Nos. 80-2184, 80-2312, argued on 

September 10, 1981, before a panel o f the United States Court of Appeals for the District of Columbia 

Circuit; and Pacific Legal Foundation v. Watt, No. 81-141, and Mountain States Legal Foundation v. 

Watt, No. 81-168, two cases consolidated in the United States District Court for the District of 

Montana.

The only federal court yet to reach the issue of the constitutionality of “legislative veto” devices 

other than the United States Court o f Appeals for the Ninth Circuit in Chadha v. INS, 634 F.2d 408 

(1980), is the United States Court o f Claims in Atkins v. United States. 556 F.2d 1028 (Ct. Cl. 1977), 

cert, denied 434 U.S. 1009 (1978). T he 4-3 holding of the Court of Claims in that case was narrowly 

restricted to the context of the Federal Salary Act of 1967, 2 U.S.C. § 359(1XB)(1970). See 556 F.2d at 

1059. Three of the seven judges forcefully disagreed with the per curiam opinion on the legislative 

veto device under consideration there. Cf. Buckley v. Valeo, 424 U.S. 1, 140 n.176 (1976) (declining to 

address the question of the validity o f a one-House “legislative veto” provision in the Federal Election 

Campaign Act of 1971, 2 U.S.C. § 438(c) (Supp. IV 1980), an issue not briefed by the United States); 

424 U.S. at 257 (White, J., concurring m part and dissenting in part) (concluding that the “legislative 

veto,” at least as applied to so-called “independent agencies,” is not a usurpation of the President’s 

constitutional power); McCorkle v. United States, 559 F.2d 1258 (4th Cir. 1977), cert, denied 434 U.S. 

1011 (1978) (declining to reach the issue of the constitutionality of the same provision of the Federal 

Salary Act that was at issue in Atkins v. United States, supra, on the ground that the provision was not 

“severable” from the rest of the statute and, therefore, even if the statute were held unconstitutional, 

plaintiff would have no right to additional pay); Clark v. Valeo, 559 F.2d 642 (D.C. Cir.) (en banc),

a ffd mem. sub nom. Clark v. Kimmitt, 431 U.S. 950 (1977) (declining to consider the constitutionality 

o f the “legislative veto” provision o f the Federal Election Campaign Act on the ground that the issue 

was not ripe for adjudication), 559 F.2d at 678 (MacKinnon, J., dissenting) (concluding that the 

legislative veto provision is unconstitutional).

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overlap and duplication that presently prove difficult for standing committees to address.

The common themes underlying these several alternative methods by 

which Congress actively can review agency rules is that they do not 

displace the President and the Executive Branch in the execution of the 

law. They respect the principle of the separation of powers, as well as 

the presentation and bicameralism principles that apply to exercises of 

legislative power.

There should be no doubt regarding this Administration’s concern 

about excessive and abusive agency actions. Indeed, the Administration 

has taken numerous steps to assure that agency rules are carefully 

considered and limited in the manner provided by Congress. If further 

oversight is necessary, we would support the use of joint resolutions 

providing for consideration by both Houses of Congress, presentation 

to the President, and a congressional override of any presidential veto 

in the rare case in which it might occur. Such a method would include 

in the process all of the major elected officials in the national government. As you know, the President shares your concern that the costs 

and burdens of government must be diminished. Any mutual attempts 

to achieve this objective that do not strip the President of his constitutional power would be welcomed.

Conclusion

We respect the views of those members of Congress who disagree 

with us on the constitutional questions and we join in their desire for a 

reasonably prompt resolution of this dispute in the courts. In the meantime, we urge restraint against proposals that tend to rearrange the 

powers which our forefathers so carefully distributed among the three 

branches.

The debate over legislative vetoes and alternative ways for Congress 

to oversee agency rules must be viewed in terms of the most basic 

structural underpinnings of our system of government—checks by the 

legislature upon itself; the principle of bicameralism; checks by the 

President on the Congress in the form of presentment of legislation to 

him for veto or approval; and the separation of powers between Congress and the Executive Branch. The temptation to vest greater power 

in Congress and to exercise greater control over the Executive Branch 

should not provide the excuse for a major structural rearrangement in 

violation of these principles.

Each branch seems inclined to rectify perceived abuses in the other 

two by expediencies that the Constitution will not tolerate. We must be 

ever mindful that the genius that created the precious system which has 

preserved our freedom for nearly 200 years expressly eschewed remedies for temporary problems that pave a path for excessive domination 

by one branch of government.

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