DOCSLIB.ORG

Deconstructing the Legislative Veto Girardeau A

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

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
Recommended publications
  • President, Prime Minister, Or Constitutional Monarch?

    President, Prime Minister, Or Constitutional Monarch?

    I McN A I R PAPERS NUMBER THREE PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? By EUGENE V. ROSTOW THE INSTITUTE FOR NATIONAL S~RATEGIC STUDIES I~j~l~ ~p~ 1~ ~ ~r~J~r~l~j~E~J~p~j~r~lI~1~1~L~J~~~I~I~r~ ~'l ' ~ • ~i~i ~ ,, ~ ~!~ ,,~ i~ ~ ~~ ~~ • ~ I~ ~ ~ ~i! ~H~I~II ~ ~i~ ,~ ~II~b ~ii~!i ~k~ili~Ii• i~i~II~! I ~I~I I• I~ii kl .i-I k~l ~I~ ~iI~~f ~ ~ i~I II ~ ~I ~ii~I~II ~!~•b ~ I~ ~i' iI kri ~! I ~ • r rl If r • ~I • ILL~ ~ r I ~ ~ ~Iirr~11 ¸I~' I • I i I ~ ~ ~,i~i~I•~ ~r~!i~il ~Ip ~! ~ili!~Ii!~ ~i ~I ~iI•• ~ ~ ~i ~I ~•i~,~I~I Ill~EI~ ~ • ~I ~I~ I¸ ~p ~~ ~I~i~ PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH.'? PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? By EUGENE V. ROSTOW I Introduction N THE MAKING and conduct of foreign policy, ~ Congress and the President have been rivalrous part- ners for two hundred years. It is not hyperbole to call the current round of that relationship a crisis--the most serious constitutional crisis since President Franklin D. Roosevelt tried to pack the Supreme Court in 1937. Roosevelt's court-packing initiative was highly visible and the reaction to it violent and widespread. It came to an abrupt and dramatic end, some said as the result of Divine intervention, when Senator Joseph T. Robinson, the Senate Majority leader, dropped dead on the floor of the Senate while defending the President's bill.
  • Beyond Accountability Lisa Schultz Bressman

    Beyond Accountability Lisa Schultz Bressman

    Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 2003 Beyond Accountability Lisa Schultz Bressman Follow this and additional works at: https://scholarship.law.vanderbilt.edu/faculty-publications Part of the Administrative Law Commons, Agency Commons, and the Constitutional Law Commons Recommended Citation Lisa Schultz Bressman, Beyond Accountability, 78 Beyond Accountability. 461 (2003) Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/884 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. ARTICLES BEYOND ACCOUNTABILITY: ARBITRARINESS AND LEGITIMACY IN THE ADMINISTRATIVE STATE LISA SCHULTZ BRESSMAN* This Article argues that efforts to square the administrative state with the constitu- tional structure have become too fixated on the concern for political accountability. As a result, those efforts have overlooked an important obstacle to agency legiti- macy: the concern for administrative arbitrariness. Such thinking is evident in the prevailing model of the administrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation-the President. This Article contends that the "pres- idential control" model cannot legitimate agencies because the model rests on a mistaken assumption about the sufficiency of political accountability for that pur- pose. The assumption resonates with the premise, familiar in constitutional theory, that majoritarianism is the hallmark of legitimate government.
  • The Legislative Veto: Is It Legislation?

    The Legislative Veto: Is It Legislation?

    Washington and Lee Law Review Volume 38 | Issue 1 Article 13 Winter 1-1-1981 The Legislative Veto: Is It Legislation? Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Legislation Commons Recommended Citation The Legislative Veto: Is It Legislation?, 38 Wash. & Lee L. Rev. 172 (1981), https://scholarlycommons.law.wlu.edu/wlulr/vol38/iss1/13 This Note is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. THE LEGISLATIVE VETO: IS IT LEGISLATION? The complexity of the law-making process and the need for legislative efficiency have compelled legislatures to delegate authority to administrative agencies and departments.1 The delegation of the legislative power has raised important constitutional issues.2 The United States Constitution divides the federal government into three branches.' Each branch has specific powers and responsibilities.' The doctrine of separation of powers demands that each branch carry out only those functions designated by the Constitution.' The delegation of the legislative authority to executive administrative agencies, therefore, may constitute a violation of the separation of powers doctrine.6 For the most part, however, the Supreme Court has sanctioned such delegation.' ' See Stone, The Twentieth Century AdministrativeExplosion and After, 52 CALIF. L. REV. 513, 518-19 (1964). Stone has expressed the belief that the growth of administrative law is a response to legislative shortfalls.
  • The Line Item Veto Case and the Separation of Powers

    The Line Item Veto Case and the Separation of Powers

    The Line Item Veto Case and the Separation of Powers Matthew Thomas Klinet In Clinton v. City of New York, the Supreme Court struck down the Line Item Veto Act because it upset the finely wrought law-making process provided for in the Constitution's Presentment Clause. This Comment argues that the Court reached the right result in Clinton, but for the wrong reason. The Act gave the President the power to cancel certain budgetary items, thus vesting more law-execution power in the executive. Properly understood, the Act did not expand or alter the President's limited law- making veto power, as it is defined in the Presentment Clause. This Comment argues that the Act's reshuffling of power did, however, violate the separation-of-powersprinciple-one of the core political tenets upon which our government of limited powers rests. This Comment further con- tends that the Court should not have relied upon even an expansive inter- pretation of the Presentment Clause to strike down the Act, because as case law and history teach, the clause is directedat curbing the expansion of Congress'spower, not that of the President.Rather, the Court should have examined in their full light the fundamental separation-of-powers issues at play. After determining whether the shift in power presented the several indicia of a separation-of-powersviolation, the Court should have struck down the Line Item Veto Act on explicit separation-of-powers grounds, thus vindicating the long-term liberty interest that the principle centrally serves to safeguard. INTRODUCTION Dissents often help create a Supreme Court Justice's reputation.
  • Legislative Department

    Legislative Department

    ARTICLE I LEGISLATIVE DEPARTMENT CONTENTS Page Section 1. Legislative Powers ................................................................................................... 63 Separation of Powers and Checks and Balances ............................................................. 63 The Theory Elaborated and Implemented ................................................................ 63 Judicial Enforcement .................................................................................................. 65 Bicameralism ...................................................................................................................... 70 Enumerated, Implied, Resulting, and Inherent Powers .................................................. 71 Delegation of Legislative Power ........................................................................................ 73 Origin of the Doctrine of Nondelegability ................................................................. 73 Delegation Which Is Permissible ............................................................................... 75 Filling Up the Details .......................................................................................... 76 Contingent Legislation ........................................................................................ 76 The Effective Demise of the Nondelegation Doctrine ............................................... 78 The Regulatory State ........................................................................................... 78
  • The Legislative Veto and Congressional Review of Agency Rules

    The Legislative Veto and Congressional Review of Agency Rules

    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 con­ gressional review of agency actions, and suggests alternative ways in which Congress may provide meaningful legislative oversight of executive action consistent with appli­ cable 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 hear­ ings 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 Commit­ tee 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.
  • Download This Article As A

    Download This Article As A

    TRUST THE PROCESS: HOW THE NATIONAL EMERGENCY ACT THREATENS MARGINALIZED POPULATIONS AND THE CONSTITUTION—AND WHAT TO DO ABOUT IT Geoffrey A. Manne and Seth Weinberger On February 15, 2019, President Donald Trump issued Proclamation 9844 pursuant to the National Emergencies Act of 19761 (NEA), declaring a “National Emergency Concerning the Southern Border of the United States.”2 On February 27, the House of Representatives voted 245–182 to overturn the declaration of national emergency; on March 14, the Senate agreed with the House in a 59–41 vote.3 The following day, the President vetoed the joint resolution.4 Neither house of Congress was able to override the veto and so, more than a year later, the emergency remains in place.5 The border wall emergency declared by President Trump has awakened strident opposition in Congress, which is a historical anomaly.6 And yet, although virtually none of the previous declarations engendered the vehement outcry that accompanied the border wall emergency declaration, they were substantially different only in scope, not in kind. Including Trump’s border wall emergency Geoffrey A. Manne is President and founder of the International Center for Law and Economics in Portland, Oregon; Seth Weinberger is Professor of Politics & Government at the University of Puget Sound in Tacoma, WA. The authors would like to thank the editors of Just Security, who published an earlier version of this argument. See Geoffrey A. Manne & Seth Weinberger, Time to Rehabilitate the Legislative Veto: How Congress Should Rein in Presidents’ “National Emergency” Powers, JUST SECURITY (Mar. 13, 2019), https://www.justsecurity.org/63201/congress-rein-presidents-national- emergency-power-rehabilitating-legislative-veto/ [https://perma.cc/H9KQ-DLDC].
  • Legislative Vetoes After Chadha

    Legislative Vetoes After Chadha

    Order Code RS22132 May 2, 2005 CRS Report for Congress Received through the CRS Web Legislative Vetoes After Chadha Louis Fisher Senior Specialist in Separation of Powers Government and Finance Division Summary In INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court struck down Congress’s use of the “legislative veto,” a device used for half a century to control certain activities in the executive branch. Congress had delegated power to executive officials on the condition that Congress could control their decisions without having to pass another law. These legislative controls, short of a public law, included one-house vetoes, two-house vetoes, and committee vetoes. Congress no longer relies on one- house or two-house vetoes, but committee and subcommittee vetoes continue to be a part of executive-legislative accommodations. This report will be updated as events warrant. The Chadha Case Congress often enacts limitations, prohibitions, and provisos in statutes that prevent agencies from engaging in certain actions or activities. In INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court addressed a particular type of “legislative veto,” an oversight mechanism used by Congress for half a century to monitor and control the executive branch without having to pass a law. Congress could approve or disapprove executive decisions through legislative actions that were short of a public law: one-house vetoes, two-house vetoes, and committee vetoes. Those legislative actions were not submitted to the President for his signature or veto. Writing for the majority, Chief Justice Warren Burger invalidated the legislative veto. The Court ruled that whenever congressional action has the “purpose and effect of altering the legal rights, duties, and relations” of persons outside the legislative branch, Congress must act through both houses in a bill or resolution submitted to the President.
  • 1 Why the Need for Reform?

    1 Why the Need for Reform?

    MPIfG Working Paper 05/8, September 2005 No Exit from the Joint Decision Trap? Can German Federalism Reform Itself? Fritz W. Scharpf ([email protected]), Max Planck Institute for the Study of Societies Abstract The unique institutions that make up Germany's "unitary federal state," long considered part of the country's post-war success story, are now generally perceived as a "joint-decision trap" impeding effective policy responses to new economic and demographic challenges at both levels of government. Nevertheless, a high-powered bicameral Commission set up in the fall of 2003 failed to reach agreement on constitutional reforms. The paper analyzes the misguided procedural and substantive choices that led to this failure, and it discusses the possibility of asymmetric constitutional solutions that might enhance the capacity for autonomous action at both levels. Zusammenfassung Die im internationalen Vergleich einmaligen Institutionen des "unitarischen Bundesstaats" erschienen lange as Element der deutschen Erfolgsgeschichte in der Nachkriegszeit. Heute erscheinen sie jedoch als "Politikverflechtungsfalle," welche die Politik in Bund und Ländern an der Bewältigung der neuen ökonomischen und demographischen Herausforderungen hindert. Trotzdem gelang es einer im Herbst 2003 eingesetzten und politisch potent besetzten gemeinsamen Kommission von Bundestag und Bundesrat nicht, sich auf eine Verfassungsreform zu einigen. Der Text analysiert die prozeduralen und sachlichen Fehlentscheidungen, die das Scheitern erklären, und er erörtert die
  • Separation of Powers, the Political Branches, and the Limits of Judicial Review

    Separation of Powers, the Political Branches, and the Limits of Judicial Review

    Case Western Reserve University School of Law Scholarly Commons Faculty Publications 1990 Separation of Powers, the Political Branches, and the Limits of Judicial Review Jonathan L. Entin Case Western University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Constitutional Law Commons Repository Citation Entin, Jonathan L., "Separation of Powers, the Political Branches, and the Limits of Judicial Review" (1990). Faculty Publications. 367. https://scholarlycommons.law.case.edu/faculty_publications/367 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Separation of Powers, the Political Branches, and the Limits of Judicial Review* JONATHAN L. ENTIN** The term "separation of powers" appears nowhere in the Constitution. Nevertheless, the division of federal authority among three distinct but interde­ pendent branches is one of the defining features of the American governmental system. Although designed to promote both liberty and efficiency, this structure affords ample opportunity for interbranch conflict. Perhaps because, as de Toc­ queville presciently observed, "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question,"1 the Supreme Court recently has addressed an unusually large number of disputes concerning the respective powers of Congress and the President.2 This has oc­ curred even though the New Deal apparently had transformed the seemingly arcane subject of separation of powers into a topic of primarily antiquarian interest.
  • The President's Veto Power: an Important Instrument of Conflict in Our Constitutional System

    The President's Veto Power: an Important Instrument of Conflict in Our Constitutional System

    The President's Veto Power: An Important Instrument of Conflict in Our Constitutional System CARL MCGOWAN* In this Article Judge McGowan presents an in-depth analysis of the scope of presidential veto power. The Article reviews the his- tory and debate surrounding the design of the Veto Clauses and highlights the veto's role in United States political and legal his- tory. The Article then examines contemporary debate over the proper scope of the President'sveto power, including recent judi- cial treatment of the pocket veto. As this Article explains, the veto power continues to play an important role in the separation of power scheme of our political system. The United States is the world's most successful and longest run- ning democracy. We can attribute much of our success to the insight and vision demonstrated by the Framers of our federal constitution. Our federal government is a unique system characterized by a bold separation of powers and an intricate system of checks and balances. The separation of powers in the three branches of government pre- vents any one branch from capturing an undue portion of power. Reinforcing the separation of powers is a system of checks and bal- ances empowering each branch to defend itself against encroach- ments by another. For example, Congress may check the President with the threat (or, in extreme cases, the actual use) of the impeachment power. * Senior Circuit Judge, United States Court of Appeals for the District of Colum- bia Circuit. This Article is adapted from the Nathaniel Nathanson Lecture Series, deliv- ered at the University of San Diego School of Law on January 30, 1986.
  • Separation of Powers, Legislative Vetoes, and the Public Lands

    Separation of Powers, Legislative Vetoes, and the Public Lands

    University of Kentucky UKnowledge Law Faculty Scholarly Articles Law Faculty Publications Spring 1985 Separation of Powers, Legislative Vetoes, and the Public Lands Eugene R. Gaetke University of Kentucky College of Law, [email protected] Follow this and additional works at: https://uknowledge.uky.edu/law_facpub Part of the Constitutional Law Commons, and the Property Law and Real Estate Commons Right click to open a feedback form in a new tab to let us know how this document benefits ou.y Recommended Citation Eugene R. Gaetke, Separation of Powers, Legislative Vetoes, and the Public Lands, 56 U. Colo. L. Rev. 559 (1985). This Article is brought to you for free and open access by the Law Faculty Publications at UKnowledge. It has been accepted for inclusion in Law Faculty Scholarly Articles by an authorized administrator of UKnowledge. For more information, please contact [email protected]. Separation of Powers, Legislative Vetoes, and the Public Lands Notes/Citation Information University of Colorado Law Review, Vol. 56, No. 3 (Spring 1985), pp. 559-580 This article is available at UKnowledge: https://uknowledge.uky.edu/law_facpub/413 SEPARATION OF POWERS, LEGISLATIVE VETOES, AND THE PUBLIC LANDS EUGENE R. GAETKE* The Supreme Court's decision in Immigration and Naturalization Service v. Chadha' struck a serious, if not fatal, blow to the constitu- tional acceptability of the legislative veto.2 In Chadha the Court held that a provision of the Immigration and Naturalization Act,3 which permitted one House of Congress to reverse a decision by the Attorney General not to deport an alien,4 was a violation of the doctrine of sepa- ration of powers since it did not comply with the requirements of pas- sage by both Houses of Congress and presentment to the President.5 In light of that decision, the constitutionality of nearly 200 statutes6 utilizing some form of the legislative veto7 is questionable.