THERE WAS A good deal of clucking around town a while back when a group of federal judges filed suit in the Court of Claims to get a pay increase out of Congress. It ranged from the comment that the case was a bad public relations gimmick to the argument that the judges didn't have a legal leg to stand on. Well, that court decided against the judges the other day but we may not have heard the end of it. The vote was 4 to 3 and the issue on which the court split is an extremely difficult one - the constitutionality of the "one-house veto." It may well be that the judges' pay case will become the vehicle for a definitive ruling on that matter.
The "one-house veto," as you may recall, is a mechanisim that Congress began to use some 35-plus years ago to save itself work. It is an arrangement under which Congress delegates power to the executive branch to promulgate rules but directs that those rules not go into effect if one house (or, sometimes, one committee) votes them down.
The legitimacy of this procedure has been under attack ever since it was first dreamed up and every President since Herbert Hoover has contended it is unconstitutional. But hte procedure has continued in use because it is convenient. And it has remained immune from judicial scrutiny because Congress usually uses it in situations where a legal challenge is difficult to raise. That is where the judges' pay case comes in. It challenged a particular one-house veto in such a way that the Court of Claims had to produce an answer. Because the judges would have gotten a pay increase in 1974 except for the veto by the Senate of recommendations made by President Nixon, this aspect of the case is a simple claim for back pay illegally withheld.
The majority of the Court of Claims, in upholding the veto arrangement, cast its opinion as narrowly as possible and tied its approval of this particular arrangement to the close attention Congress has always paid to pay rates. But the impact of its ruling is bound to be greater than that. Proponents of the "one-house veto" are likely to seize it as a demonstration that they have been right all along and thus urge Congress to make more extensive use of it. Before that happens, and because the issue is so difficult to bring into court in other contexts, it would be useful for the judges to seek further review of their case. This is one of those issues on which a definitive answer from the courts is needed and this case provides one of the relatively few ways of getting it.