An Epic Court Decision

By KURT ANDERSEN

Out of an obscure case, a reshaping of the powers of Congress and President

If even no propensity had ever discovered itself in the Legislative body to invade the rights of the Executive, the rules of just reasoning. . . would of themselves teach us that the one ought not to be left at the mercy of the other.

--Alexander Hamilton, The Federalist, 1788

As Hamilton urged, the Constitution provided a presidential veto power so that no Executive would be left at the mercy of any Congress. The veto clause was, by John Adams' proud reckoning, one of eight such checks and balances in the Constitution, all meant to ensure that no one branch of Government (nor even a volatile citizenry) could ever impose a tyranny on its own. Thus Congress legislates, but the President may veto bills sent to him, and his veto can be overridden only by a two-thirds vote of Congress.

For nearly two centuries, this separation of powers has been celebrated and affirmed as a fundamental tenet of the U.S. democratic system. But it has not always worked out so neatly in the rough-and-tumble of Washington politics. During the past 50 years, the theoretically crisp lines of authority have become more blurred, due largely to a device called a "legislative veto." Under this controversial maneuver, Congress drafts a statute broadly but incorporates a provision calling for review of the Executive Branch's implementation of the law. The provision permits one or both houses of Congress--or even a single committee--to block any actions with which they disagree. Since 1932 one or more such provisions have been made part of 210 laws dealing with everything from foreign arms sales to rules about morticians' sales pitches. Explains Harvard Law Professor Laurence Tribe, a critic of the legislative veto: "Instead of going through the cumbersome and politically painful process of standing up and being counted, Congress says, 'Why don't we just give a blank check to the Executive agencies, and if we don't like the results, we'll say so.' "

Last week the U.S. Supreme Court bounced that congressional blank check. In a sweeping decision, the court declared the legislative veto to be an unconstitutional usurpation of power by Congress. Apparently any exercise of the legislative veto amounts to a new piece of legislation, said Chief Justice Warren Burger in a lucid, 39-page majority opinion; Article I of the Constitution dictates that "every Order, Resolution or Vote"--any legislative act--by Congress is subject to the President's approval. "It is obviously easier for action to be taken by one House without submission to the President," Burger wrote, "but it is crystal clear . . . that the Framers ranked other values higher than efficiency."

The 7-to-2 decision is the most important handed down during the court's current session, and it may be the most significant constitutional ruling in decades. Associate Justice Byron White, who entered an acerbic, almost bitter dissent, acknowledged the decision's "surpassing importance." But he described the majority opinion as "irresponsible" and of "destructive scope." Even Associate Justice Lewis Powell, who agreed with the majority that in this case the legislative veto was unconstitutional, complained that "the breadth of this holding gives one pause."

Indeed, the breadth, and not the ruling itself, was what surprised most observers, especially given the quirky particulars of the case being litigated. The court was ruling on the deportation case of a student from Kenya. In 1975 the House of Representatives had used its legislative veto to reverse a Justice Department ruling that the student, Jagdish Chadha, could stay in the U.S. An appellate court overruled Congress in 1980 and the Supreme Court affirmed that decision last week.

The court's ruling was unambiguous. Its effect, however, is clear only in the most general terms. It gives a President greater leeway, and thus greater power. Most experts inside and outside the Government agreed with the Chief Justice that this was what the framers intended. "The genius of our system is that no act may go unchecked," said Peter Rodino of New Jersey, chairman of the House Judiciary Committee. "I think [the decision] is right on target. It's been a long time coming."

While the decision augurs a new era in relations between the White House and Capitol Hill, there were predictions that it will take years to sort out its myriad implications and bring Congress into full compliance. At least 110 laws are still on the books containing legislative veto provisions, and they cover the gamut of Executive Branch functions. Procedural questions also remain unresolved. Most important is the issue of "severability": Which of the affected laws can be cleansed of their unconstitutional veto clauses, as the court last week ruled was permitted in the immigration law, and which laws must now be thrown away along with their veto provisions? The high court and the lower federal courts, in order to refine last week's basic edict, will surely now face a surge of test cases.

More than a few members of Congress adhered to Justice White's contention that the modern Government is vast and powerful beyond the imaginations of the founding fathers, and so requires a fetter like the legislative veto. If this view prevails, the long-term effect of the court's decision, ironically, might be to encourage Congress to seek even more power than it wielded before, by passing hundreds or thousands of narrow, specific prescriptions on presidential prerogatives. "The court's decision," said G.O.P. Senator Charles Grassley of Iowa, "has catapulted Congress into years of complex, cumbersome legislative activity to repossess our original powers." Georgia Democrat Elliott Levitas, who for years has been the House's leading proponent of the legislative veto, was more vivid. "We've got a real governmental train wreck on our hands," he said, "and we've got to get it back on track."

Wrecked or merely switched onto another line, the Government's operations in virtually every realm are potentially altered by the landmark decision.

Perhaps the most significant law that may be affected is one already prompting considerable debate: the 1973 War Powers Resolution. Passed at the end of the Viet Nam War and designed to prevent similar foreign adventures, the resolution places a 60-day time limit on involvement of U.S. combat troops in an undeclared war, unless Congress grants an extension. Experts not only in the Administration and the Senate but outside Government generally agree that this central feature remains in force. Such a limit, established in advance, seems crucially different from a legislative veto, since it does not need to be triggered by a special congressional vote. The court may have to decide this question next year in the case of Crockett vs. Reagan, a War Powers suit brought by 29 members of Congress; it seeks the withdrawal of several dozen U.S. military advisers who have already been in El Salvador for two years.

The court has also thrown into confusion the pending bills that seek to limit the Administration's "covert" aid to antigovernment guerrillas fighting in Nicaragua. For months Congressmen and White House aides had been crafting compromise legislation that would have consisted of little beyond a legislative veto provision, giving Congress the right to cut off such aid.

Among other major areas of legislation affected by the court's ruling:

Regulatory Agencies. All Federal Election Commission regulations have been subject to unilateral veto by either the House or Senate. Any Federal Trade Commission ruling could be disapproved by majority vote of both houses. Last year Congress was persuaded by intense lobbying to veto an FTC regulation that required used-car dealers to tell customers about defects.

The Economy. Either house could veto agricultural-loan regulations. The Federal Reserve needed specific approval to change interest rates favorable to savings and loan institutions. Whole swaths of 1983 funding bills were subject to congressional veto.

Social Programs. The Administration's recommended Social Security standards and unemployment pay scales could be vetoed by either house. Any Department of Education regulation could be vetoed by a vote of both House and Senate.

The Environment. Offshore oil-tract leasing procedures and toxic-substance regulations could be overruled by House or Senate. Any federal sale of land parcels larger than 2,500 acres could be scotched. In 1981 Interior Secretary James Watt was stopped by a House committee from leasing mineral rights to 1.5 million acres of Montana wilderness.

Defense and Foreign Policy. Any Pentagon contract worth more than $25 million could be vetoed by either house. Any arms sale could be stopped by concurrent House and Senate votes; it was just such a legislative veto that nearly prevented the sale of AWACS radar planes to Saudi Arabia in 1981.

Virtually every President from Herbert Hoover to Ronald Reagan has conspired, if a bit reluctantly, to validate the legislative veto. From its first use, in a Government reorganization bill signed 51 years ago this week, it has been a bargaining chip: in exchange for a small concession of power, a President gets the legislation he wants.

Congress has grown dependent on the bargain for several reasons. In the case of a technical field, such as environmental safety, it makes some sense to leave the drafting of specific standards to agency experts. But the veto has also abetted legislative sloppiness and, perhaps even more, political cowardice, by letting Congressmen and Senators reach easy consensus and pass broad-brush laws that offend nobody. "The problem with the legislative veto," says David Martin, a University of Virginia law professor, "was that it allowed Congress to say no to what agencies would sometimes do, but never really take it upon itself to say what the agencies actually should have done."

A more legitimate motivation has been a desire to curb perceived Executive Branch excesses. It is no coincidence that legislative veto provisions have grown common since the New Deal, as Government has become sprawling and unwieldy. Until 1950 veto clauses were included in one or two laws a year. During the 1960s (when Presidents Kennedy and Johnson included veto provisions in bills without even being asked) the figure rose to five a year. In the 1970s, with Watergate an acute reminder of Executive willfulness, the annual rate doubled to ten.

The tactic has had proponents of every stripe. During his presidential campaign, Ronald Reagan endorsed the legislative veto as a means of controlling Big Government bureaucrats. Since taking office, however, Reagan has lost all enthusiasm for a device that interfered with his own exercise of power, and his Justice Department filed an amicus brief against it in last week's Supreme Court case.

Despite the President's flipflop, many conservatives in particular still endorse the veto as a way of curbing bureaucracy. "There has been an enormous ceding of power to people who are not elected," says FTC General Counsel John Carley. "People like us pass what amount to laws."

In practice, the legislative veto has only modestly constrained the Executive Branch. Part of its leverage was latent. The veto, according to Federal Communications Commission Counsel Bruce Fein, "was always a threat Congress held over us." Others argue that even the threat was insubstantial, giving an impression of congressional oversight and control that was largely illusory. Says California Representative Don Edwards of the veto clauses: "They just don't work." One reason, argues Peter Schuck, professor of administrative law at Yale, is that management of policy is simply not what legislatures are equipped to do. Says Schuck: "Congress is best at identifying problems and articulating general responses. It is very poor at dealing with implementation difficulties."

There is general agreement in Congress that both houses, from now on, will be obliged to draft more carefully considered statutes. "We're going to have to shape up and write our laws narrowly," Edwards says. Agrees University of Chicago Law Professor Philip Kurland: "Congress needs to use a rifle instead of a shotgun." If this imposes on the system new burdens of complication and delay, Burger's opinion was clear that the constitutional freedoms at stake are more than worth it.

On the other hand, Justice White's stern dissent--parts of which he read aloud from the bench, in a rare departure--concluded that with the loss of the legislative veto, "Congress is faced with a Hobson's choice." It can either fail at the "hopeless task of writing laws with requisite specificity," he said, or "abdicate its lawmaking function to the Executive Branch and independent agencies."

Among the 535 men and women in the House and Senate, surely not many would describe the possibilities before them in such bleak, no-win terms. Their system has shown itself, above all, to be resilient. No doubt the day-to-day work will be more painstaking and frustrating, sometimes riskier. But it also looks as if Congressmen will find it harder to dissemble, and some might even find that political courage comes a little easier. Business as usual may have been comforting, but running Government by the book could be bracing.

--By Kurt Andersen.

Reported by David S. Jackson and Neil MacNeil/Washington

With reporting by David S. Jackson, Neil MacNeil This file is automatically generated by a robot program, so viewer discretion is required.