Congress won an important victory over the presidency last week in a constitutional power struggle that has been waged for a half-century.
The victory came in the U.S. Court of Claims, which upheld the "one-house veto" - a legislative device that enables either the Senate or the House to decide unilaterally whether any of a wide range of governmental actions will survive.
he one-house veto works this way: Congress passes a law allowing the executive or other agencies to take certain actions - such as issuing election regulations. But it includes in the law the proviso that if either the House or the Senate votes to disapprove the action, it is canceled.
Since this latter procedure short-circuits the conventional legislative procedure - passage by both houses and signature by the President - opponents have contented that it is unconstitutional.
The one-house veto is an element of some 300 provisions of about 200 laws and of potential congressional disaproval of programs under which 13 Cabinets department s and sectors of government spend billion of dollars annually.
"The implications of any judical decision invalidating the 'one-house veto' would be staggering," attorneys for the House of Representatives told the court in a brief filed last November.
In a little-noticed section of an opinion last Wednesday, the Court of Claims unheld the veto in rejecting a challenge brought by 140 U.S. Courts of Appeal and District Court judges.
The judges had gone to court seeking higher pay. They complained that over 6 1/2 years ending Oct. 1, 1975, the government had held their salaries constant but that inflation had eroded their real compensation by 34.4 per cent - thus violating the Constitution's ban on reductions in judges' pay.
One of the judges' two principal arguments involved the one-house veto provision of the Federal Salary Act of 1967. Under that law, President Nixon in March, 1974, recommended a 7.5 per cent judical pay increase in each of the fiscal years 1974 through 1976, for a total of 24.23 per cent.
The Senate alone blocked the increase, exercising a one-house veto. The judges contended that this was a use of executive power reserved by the Constitution for the President.
Former Supreme Court Justice Arthur J. Goldberg, who represented the judges, said that tey have not decided whether to ask the Supreme Court to review the Court of Claims' decision.
Starting with Herbert Hoover, all presidents and most attorneys general have denounced the one-house veto as an unconstitutional incursion into the executive domain, though they have embraced it at times to get specific powers they wanted from Congress.
In the Court of Claims. Assistant Attorney General Rex. E. Lee, <[WORDS ILLEGIBLE][TEXT ILLEGIBLE] by the court to submit friend-of-by court briefs. With the President under both "to take care that the laws be faithfully executed," the Justice Department's mission was to unhold the constitutionality of a law enacted by Congress and signed by the President, the lawyers said.
The lawyer - Eugene Gressman for the House. Cornelius B. Kennedy for the Senate - based their main defense on the constitutional provision authorizing Congress "to make all laws which shall be necessary and proper" for executing the powers vested in it.
In 1819, the Supreme Court, in the milestone decision in McCulloch vs. Maryland, defined the "necessary and proper" clause to give Congress the maximum possible discretion - within constitutional bounds - to decide how to do its job.
Since then, that definition has not been challenged. Yet the clause, "the core constitutional problem in this case . . . has yet to be mentioned by either" the judges or the department, Gressman said in a brief last Nov. 23.
But the Court of Claims agreed that "necessary and proper" congressional methods can include the one-house veto.
The unsigned opinion - by majority judges Wilson Cowen, Oscar H. Davis, Philip Nichols Jr. and Marion T. Bennett - was confined to the salary act, but upheld the one-house veto with language that seemingly would apply equality to numerous other laws containing the device. Here is how the majority dealt with key questions:
Does the veto violate the separation of powers by giving Congress a role in executing a law it passed? No: The Constitution intended that governmental powers be checked and balanced and, to some extent, even blended - not that the branches of government be hermetically sealed off from each other. Under the "necessary and proper" clause, the one-house veto "was a permissible accommodation of competing interests, reflecting both an appropriate check by Congress upon the executive and some check by the executive upon the action which could be taken by one house alone."
Does the veto conflict with the Constitution's vesting of all legislative powers not in the House or Senate, but in Congress? No: In voting to prevent a presidential recommendation for a judicial pay raise from taking effect automatically, the Senate was dealing with something having "only the potentiality of becoming law," not something requiring the concurrence of the other body.
Does the device usurp the President's constitutional right to have sole veto power over the laws? No: Nothing forced him to recommend a salary increase.