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Deconstructing the Legislative Veto Girardeau A University of Minnesota Law School Scholarship Repository Minnesota Law Review 1984 Deconstructing the Legislative Veto Girardeau A. Spann Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Spann, Girardeau A., "Deconstructing the Legislative Veto" (1984). Minnesota Law Review. 1388. https://scholarship.law.umn.edu/mlr/1388 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Deconstructing the Legislative Veto* Girardeau A. Spann** On June 23, 1983, the Supreme Court invalidated more fed- eral statutes in a single day than it had in all of its prior his- tory. In so doing, the Court also dramatically altered the allocation of governmental power between Congress and the President. At least that is how the press viewed the signifi- cance of INS v. Chadha,' the decision invalidating the legisla- tive veto device on which Congress had come to rely as an expedient method of controlling the exercise of executive dis- cretion. Whether or not the hyperbole proves to have been warranted, the decision does possess a certain intrigue-it is not possible to tell whether the case is right or wrong. Chadha illustrates, in a striking manner, that legal doctrine is indeterminate. This is true whether the term "doctrine" is defined narrowly to include mere legal rules or is defined broadly to include the social policies served by the rules as well. After all available constitutional principles have been brought to bear upon the problem, it is still not possible to as- certain in a satisfactory doctrinal manner whether the legisla- tive veto is constitutional or unconstitutional. Moreover, such indeterminacy characterizes every effort made to arrive at a principled resolution of every legal problem. In fact, the closer we look at any legal problem the more apparent it becomes that our analytical skills have been outdistanced by our ability to perceive unavoidable contradictions and inconsistencies. Far from being a cause for alarm, however, proper appreciation of our analytical inadequacies may stimulate innovative in- sights that permit us to confront legal problems on more satis- fying conceptual levels. Accordingly, the true significance of * © 1984 by Girardeau A. Spann and THE MNESOTA LAw REVIEW FOUNDATION. All rights reserved. ** Associate Professor of Law, Georgetown University Law Center. I would like to thank Odette Bendeck, Sue Bloch, Larry Ellsworth, Steve Goldberg, Pat Gudridge, Alan Morrison, Mitt Regan, Roy Schotland, Mike Seid- man, and Mark Tushnet for their help in preparing this Article. Research for this Article was supported by a grant from the Georgetown University Law Center. 1. 103 S. Ct. 2764 (1983). MINNESOTA LAW REVIEW [Vol. 68:473 cases such as Chadha may lie in their ultimate propensity to launch us into new analytical paradigms. Part I of this Article undertakes a doctrinal analysis of the constitutional issues raised by the legislative veto in order to demonstrate that doctrine is incapable of resolving those is- sues. The legal arguments that can be made both for and against the constitutionality of the veto are equally flawed, and there is no principled basis for choosing among them. More- over, there is a self-defeating circularity inherent in constitu- tional analysis of the legislative veto that renders any resolution of the constitutional issues logically unacceptable. Part II suggests that the indeterminacy present in the leg- islative veto context can be extrapolated to all legal analysis because of fatal defects in the concept of principled decision- making itself. All principles can be "deconstructed," or shown to be equally supportive of contradictory outcomes. Part II then goes on to suggest that appreciation rather than suppres- sion of inevitable indeterminacy may ultimately permit us to understand our legal and social problems in qualitatively differ- ent ways that overcome the apparent contradictions inhabiting our present analytical paradigms. I. DOCTRINAL ANALYSIS Under the traditional view of the legal system, disputes are resolved in accordance with generally accepted principles of law that constrain the discretion of presiding judges and gener- ate particular results. Although some decisions may be ques- tionable, or even wrong, the defects in those decisions stem from the failure to ascertain the manner in which the governing principles and policies properly apply. Once they are correctly understood, however, the principles illuminate the path to the correct result. Moreover, adherence to this principled mode of decisionmaking is what ensures effective operation of the judi- cial process by securing for judicial decisions a degree of public acceptability that they could not command if they were merely products of the judges' personal predilections. 2 This traditional system, however, presupposes the existence of a coherent, de- terminate set of doctrinal principles; but there is reason to be- lieve that no such set of principles in fact exists. The Supreme Court's decision in INS v. Chadha,3 invalidating the legislative 2. The traditional view of the legal system is elaborated more fully in Spann, Expository Justice, 131 U. PA. L REv. 585, 588-92 (1983). 3. 103 S. Ct. 2764 (1983). 1984] THE LEGISLATIVE VETO veto on constitutional grounds, provides an example of a situa- tion in which doctrine is unable to provide a satisfactory reso- lution of the pertinent legal issues. A. THE DECISION 1. Context A legislative veto is an action-generally the passage of a resolution-taken by Congress, one House, a committee, or an individual member of Congress that invalidates an act of the executive branch through something less than the full legisla- tive process.4 In Chadha, the Attorney General, acting pursu- 4. See S. BREYER & R. STEWART, ADMINISTRATIVE LAW AND REGuLATORY PoucY 95-96 (1979); G. GUNTHER, CASES AND MATERIALS ON CONSTrrTUTONAL LAW 399-401 (10th ed. 1980); G. ROBINSON, E. GELHORN & H. BRUFF, THE ADMINIS- TRATvE PRocEss 78-80 (1980) [hereinafter cited as THE ADMINISTRATIVE PRO- CESS]; L. TRIBE, AMERICAN CONsTrrUTIoNAL LAw 161-63 (1978). Several articles have been written about the constitutionality and policy desirability of the legislative veto, many of which are cited in Justice White's dissenting opinion in Chadha. See 103 S. Ct. at 2797 n.12 (White, J., dissenting). Among the articles generally favoring the legislative veto, including those cited by Justice White, are Dry, The CongressionalVeto and ConstitutionalSep- aration of Powers, in THE PRESIDENCY IN THE CONSTr ONAL ORDER 195 (J. Bessette & J. Tulis eds. 1981); Abourezk, The Congressional Veto: A Contempo- rary Response to Executive Encroachment on Legislative Prerogatives,52 IND. L.J. 323 (1977); Cooper & Cooper, The Legislative Veto and the Constitution, 30 GEO. WASH. L. REv. 467 (1962); Javits & Klein, CongressionalOversight and the Legislative Veto: A ConstitutionalAnalysis, 52 N.Y.U. L. REV. 455 (1977); Miller & Knapp, The CongressionalVeto: Preserving the ConstitutionalFramework, 52 IND. L.J. 367 (1977); Nathanson, Separation of Powers and Administrative Law: Delegation, the Legislative Veto, and the "Independent"Agencies, 75 Nw. U.L REV. 1064 (1981); Pearson, Oversight: A Vital Yet Neglected Congressional Function,23 U. KAN. L. REV. 277 (1975); Rodino, CongressionalReview of Exec- utive Action, 5 SETON HALL 489 (1974); Schwartz, Legislative Control of Admin- istrativeRules and Regulations: I. The American Experience, 30 N.Y.U. L REV. 1031 (1955); Schwartz, The Legislative Veto and the Constitution-A Reexami- nation, 46 GEo. WASH. L REV. 351 (1978); Stewart, Constitutionality of the Leg- islative Veto, 13 HARV. J. ON LEGIS. 593 (1976); Comment, Congressional Oversight of Administrative Discretion: Defining the ProperRole of the Legisla- tive Veto, 26 Am. U.L. REv. 1018 (1977); Comment, Legislative Control Over Ad- ministrativeAction: The Laying System, 10 J. MAR. J. PRAc. & PRoc. 515 (1977); Comment, Legislative Review of Administrative Action:"Is the Cure Worse than the Illness? 1978 S. ILL. UJJ. 579; Comment, Congressional Oversight of Ad- ministrative Agencies: The Legislative Veto, 31 U. KAN. L. REV. 131 (1982); Comment, The Constitutionalityof the Legislative Veto, 23 WM. & MARY I REV. 123 (1981). Among the books and articles generally disfavoring the legislative veto, in- cluding those cited by Justice White, are J. BOLTON, THE LEGISLATIVE VETO: UNSEPARATING THE POWERS (1977); Bell with Ostrow, Congress--The Ultimate Source of Regulatory Power, 68 A.B. J. 1088 (1982); Bruff & Gellhorn, Congres- sional Control of Administrative Regulation: A Study of Legislative Vetoes, 90 HARV. L. REV. 1369 (1977); Dixon, The Congressional Veto and Separation of Powers: The Executive on a Leash? 56 N.C.L. REV. 423 (1978); FitzGer- MINNESOTA LAW REVIEW [Vol. 68:473 ant to his statutory authority as head of the Immigration and Naturalization Service, invoked a hardship provision of the Im- migration and Nationality Act to permit an otherwise deport- able alien to remain in the United States. The House of Representatives later overruled that hardship determination through passage of a resolution, as it was authorized to do under a one-House veto provision of the same statute.5 The ald, Congressional Oversight or CongressionalForesight: Guidelinesfrom
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