When the Supreme Court on Thursday outlawed the legislative veto, one wire service in its lead paragraph described the action as a "shattering blow to congressional power."
Reporters who must interpret an event within minutes of its happening can be forgiven a hasty judgment. But this particular judgment certainly qualifies as premature. A better guess is that, in the long run, the Supreme Court decision will prove to be a shattering blow to executive power.
Which branch won, however, is not the important consideration. The crucial point is that the court--if its ruling turns out to be as sweeping as it at first appears--has destroyed an ingenious device that has been worked out, usually cooperatively, by practical people in both the legislative and executive branches to overcome the conflict that is inherent in a government of separate and independent branches.
The court in its decision took some pride in defending and preserving the separation of powers written into our governmental structure by the Founding Fathers 200 years ago. One need not second-guess the court in divining what the Fathers had in mind. The court majority is, in all probability, quite right in its interpretation of 18th-century political philosophy. But it is a pity that that philosophy could not in this instance have somehow been made to accord with the practical experience of politicians and administrators in trying to fulfill the responsibilities of government in 20th-century America.
The fundamental problem, in trying to make the government of the United States work effectively, is not to preserve the separation of powers but to overcome it. For anything of consequence to be accomplished, the executive and legislative branches must be brought from confrontation into a reasonable degree of harmony. The legislative veto is a device that has served that purpose, providing even in cases of severe disagreement and distrust a framework wherein decisions can still be made expeditiously and actions taken. Insofar as this device of accommodation is now rendered unavailable, the two branches are condemned that much more often to the confrontation, stalemate and deadlock that so frequently leave the government of the United States impotent to cope with complex problems.
The first and longest use of the legislative veto is as good a case as any to illustrate the utility of the device. Fifty years ago Congress, recognizing that the departments of the government need to be reorganized from time to time to keep abreast of changing responsibilities, reached the obvious conclusion that Congress would not and could not do that job. To make all the necessary organizational changes through the legislative process was just too tedious, difficult and complicated--requiring hearings, committee consideration and floor debate in both houses, and House-Senate conference committees whenever the houses disagreed. Given this procedure, reorganization questions tended not to be considered at all; the structure of the government remained essentially frozen while its responsibilities grew and changed. One answer would have been to let the president, as the head of the executive branch, organize it as he pleased. Yet Congress was unwilling to give any president carte blanche to create and dissolve agencies and move them from department to department. So the legislative veto was invented: let the president reorganize the executive branch, but subject to the right of Congress to veto any scheme before it took effect. Under this arrangement, which has been satisfactory to both Congresses and presidents alike for half a century, the structure of the government has generally been kept abreast of the times. Now and then Congress rejects a presidential reorganization plan, but most of the plans have been allowed to take effect, and the laborious and--for this purpose--ineffective legislative process has been circumvented.
Since its invention in the 1930s, the legislative veto has been used over and over again, by now more than 200 times. In my judgment, it has been overused, applied more frequently than it should have been. But each case has been a matter of executive-legislative negotiation, in the course of hammering out one or another practical compromise, and most have been mutually acceptable. In fact, in many cases, the legislative veto has been the means of achieving historic compromises that have resolved central constitutional questions over which the two branches have quarreled for decades. One such example is the War Powers Resolution of 1973--passed over President Nixon's veto, to be sure--which, until last Thursday, had settled the question of the extent to which the president may engage in military operations without a declaration of war by Congress. Another is the Congressional Budget and Impoundment Control Act of 1974, which was welcomed by President Nixon as the resolution of the acrimonious dispute over whether the president could refuse to spend money Congress had appropriated. In both cases, the president is given a limited delegation of authority: he may act, but Congress can reverse him if it disagrees.
The supposition that the court decision strikes "a shattering blow" at congressional power rests on the premise that in the absence of the veto the president will receive, instead of restricted grants of authority, unrestricted grants. But there is no reason whatever to believe that Congress will behave that way. In most circumstances where Congress has demanded a veto as the condition for granting power to the executive, it will simply retain the power in itself--which, constitutionally, it has every right to do..It will tell the president to recommend instead of giving him a contingent right to act.
In the case of reorganization, for example, it has never given a president unrestrained authority except during war emergencies--either before or after the legislative veto was invented. We can safely conclude it will not do so in the future. So, as a practical matter, the court has returned the country to the old days; if the government is to be reorganized in any significant respects, it will have to be done by statute-- which means it will rarely be reorganized at all.
In the case of impoundment of appropriated funds, where the president and Congress have been routinely deferring expenditures under the simple legislative veto procedure, a blanket authorization to the president is likewise not conceivable. So deferrals will have to be enacted by statute, which can only mean that they will be fewer and more money will be spent. In these and many other matters, presidents and executive agencies will have less, not more, real delegation of authority.
Besides simply refusing to grant discretion in the first place, Congress has many other means of forcing the executive branch to behave as the legislators wish. Executive actions now subject to legislative vetoes can be barred through riders on appropriations and authorization bills. Those procedures are, compared with the legislative veto, clumsy and cumbersome--but they have been, and can be, totally effective. Assuming that Congress will continue to be jealous of its powers and suspicious of presidents and their subordinates--surely a safe assumption-- the court's decision can be expected to increase friction between the branches, load an already overloaded Congress with more responsibilities that it is ill-equipped to handle, replace simple with complex processes of congressional control and, on occasion, tie the government in knots, without reducing congressional power in the least.
But there is one saving thought. In the process of amending the Constitution, the executive branch plays no formal part, either in the federal government or in the states. Amendments are proposed by Congress, with no need for approval by the president, and they are ratified by the state legislatures, with no approval by the governors. So, if legislators desire to restore the legality of the device they have invented and fostered--and if executives as a matter of principle resist--the constitutional amendment process is stacked heavily in favor of the legislators. The "shattering blow," if such it be, can be recouped with the executive branch merely a bystander in the process.