July 20, 1978
Page 21935
THE LEGISLATIVE VETO — AN UNCONSTITUTIONAL CHECK ON AGENCY REGULATIONS
Mr. MUSKIE. Mr. President, the amendment offered today by the distinguished Senator from New Mexico raises an issue of increasing concern to the Congress — that is how can we perform our constitutional responsibilities in a manner which assures that the laws of this country are carried out in an effective and efficient manner and in a way which is consistent with the intent of the Congress.
I am, however, deeply troubled by the solution which the Senator proposes, for I firmly believe that a general legislative veto, which would permit either House of Congress to reject regulations developed by an executive department, is a mechanism which is unconstitutional and which will, in practice, lead to a result that is likely to be the opposite of the intent of its proponents.
The House of Representatives, in considering the Housing and Community Development Amendments of 1978, adopted a similar amendment which would have provided that no rule or regulation of the Department of Housing and Urban Development would become effective if, within 90 congressional days, either the House or Senate adopted a resolution of disapproval.
The supporters of the amendment expressed concern that laws which have been written by the Congress are being "interpreted" by "bureaucrats in the executive branch," and that these interpretations, which take the form of regulations and have the force of law, have been contrary to the clear intent of Congress in too many instances.
This concern by Members of Congress grows larger with the frustration we hear from our constituents — frustration not from Government having tried to solve problems — but from. not having solved them well enough.
This frustration stems in large part from observing a Government grown so large and ineffective that it is suffocating the very goals it seeks to achieve.
Finding a remedy for this frustration is the most important — and difficult — challenge to Government today. For we have little hope of solving the truly serious problems we face — from inflation to energy to jobs — as long as Government bears this burden of no trust.
And I am convinced that we cannot meet that challenge unless Government is prepared to change its ways.
In my view, the task of meeting this challenge must fall first of all to the Congress.
While I understand the concern of those Members of Congress who feel that the intent of our laws is often frustrated in their execution. we must address those concerns in a manner which is consistent with the respective roles and responsibilities assigned to the Congress and the executive branch under theConstitution, and in a manner which will enhance and not diminish the role of the Congress.
I believe it is far more important for us to focus our efforts on strengthening the authorization process and not attempt the impossible task of reviewing each and every regulation that HUD or other Federal agencies issue.
The use of the legislative veto developed slowly. The first provision appeared in 1932 in legislation granting the President authority to reorganize the executive branch. Since that time the use of this mechanism has accelerated.
The Congressional Research Service has advised that of the 192 bills inviting legislative vetoes enacted between 1932 and 1975, more than half have been enacted since 1970. A total of 351 resolutions have been introduced between 1960 and 1975 which proposed to veto executive actions covered by these laws. Of those, 244 were introduced in 1974 or 1975.
In the 1st session of the 95th Congress alone, seven measures became public law with the inclusion of a legislative veto mechanism. Several other bills have passed the House of Representatives and at least two have passed the Senate which would incorporate similar procedures.
Before many more laws are constructed which delegate authority to the executive branch agencies and which rely on this reservation of authority in the Congress, it is important to have a definitive resolution of the constitutionality of this procedure. The Supreme Court last year declined to grant certiorari in the case of Atkins against United States. That case involving the exercise of the one House veto provision of salary recommendations issued pursuant to executive and judicial salary legislation, could have presented us with an opportunity for the Supreme Court to resolve this important question. That opportunity has passed and it may be some time before another case is properly framed around this question.
Until this issue is resolved by the Supreme Court, we should refrain from attaching veto provisions to even more legislative proposals.
In my judgment the Constitution does not give the Congress the right of review and veto over each and every regulation which the executive branch puts forward to implement a law.
Congress unquestionably has the power to legislate and to delegate to the Executive the authority to supplement and to give effect to statutes passed by the Congress, but the actual execution of such laws can be accomplished only by officers of the executive branch.
Article I, section 7, clause 2 of the Constitution provides that every bill passed by the House of Representatives and the Senate must be presented to the President for his approval or disapproval and that if it is disapproved, it cannot become law unless repassed by two-thirds vote in each House.
The primary purpose of that procedure is to give the President a defensive weapon against congressional encroachment upon his constitutional powers.
Clause 3 of that same section makes it clear that the purpose of the framers was to prevent congressional invasion of the Presidential veto power by labeling as something other than a bill any congressional action which establishes public policy.
Furthermore, I do not believe we can call upon the "necessary and proper" clause as justification for a general legislative veto provision. That clause gives Congress the power to make all laws which shall be necessary and proper to execute its other powers.
As early as 1819, Chief Justice Marshall read a restriction into the execution of this power in McCulloch against Maryland. The Chief Justice said that this power must be used in a manner in which the end is legitimate and which is consistent with the letter and the spirit of the Constitution.
Certainly Congress could not, because it concluded a measure was necessary and proper to the discharge of its legislative authority, pass a bill of attainder or an ex post facto law. Nor could it vest in itself the authority to appoint officers of the United States when the appointments clause prohibits it from doing so.
A general legislative veto provision is constitutionally suspect on three different grounds — it violates the constitutional separation of powers, it derogates the Presidential veto power, and it abrogates the safeguards of our bicameral legislative system.
Putting aside for the moment the constitutional objections to the legislative veto, I cannot believe that it will achieve the results which are hoped for by its sponsors.
Federal agencies issue thousands of complex regulations each year. Many are adopted after months or even years of hearings and are based on many volumes of evidence. In his message to the Congress on the legislative veto, the President pointed out that Congress would have to examine all of this evidence, hold its own hearings, and decide whether to overrule the agencies — all in a few weeks.
Such a provision would introduce yet another element of red tape and delay into an already tedious rule making process. Let us take the example of the regulations concerning President Nixon's papers. Three versions of those regulations were vetoed, and it took nearly 3 years to reach agreement on them.
The regulatory process has been criticized for being slow and for creating an uncertainty which cripples planning by business, by State and local governments and by many others who must depend upon that process. I agree with President Carter when he says the legislative veto would greatly compound those problems.
It will prolong the period of uncertainty for each regulation by several months and it could mean years of delay. Furthermore, it creates considerable uncertainty when the actions of the executive branch are subject to the judicial review.
Even when the Congress chooses to allow a regulation to go into effect, that regulation has been issued after the agency has published it on the record and provided an opportunity for notice and comments by interested observers. If the details of those regulations have been worked out behind closed doors with congressional committees, under the potential threat of a legislative veto, how is a court expected to know the basis for the agency decision making?
Mr. President, I strongly oppose the pending amendment. I firmly believe if Congress is to gain stronger control over the programs of the Federal Government, it must use the authorization and appropriations processes which are clearly within its constitutional powers.
As most Senators in this body know, we have worked for the past 3 years to develop sunset legislation which would extend the authorization process to many programs of the Government which are permanently authorized and over which Congress exercises limited oversight.
The procedures embodied in S. 2, The Program Reauthorization and Evaluation Act of 1978, as reported by the Committee on Rules and Administration, presents the Senate and House of Representatives with an opportunity to improve the authorization process in a manner consistent with the traditional powers and responsibility of the Congress and in a way which will insure more consistent and thorough policy review by the legislative branch of the Government.
Mr. President, only through an improved reauthorization process, by which Congress periodically reconsiders its past actions and enacts new laws in response to the lessons which we learn from such increased oversight, can we most effectively assure that the intent of Congress will be carried out by the executive branch.