The Carter administration has set up legal confrontation with Congress by telling the Department of Education it can ignore a recent congressional veto of four of its regulations.
It has long been the position of the executive branch that Congress has no constitutional power to block department regulations, but a decree yesterday by Secretary of Education Shirley M. Hufstedler is believed to be the first time the administration has decided to desregard such congressional action entirely.
In yesterday's memo to her senior staff, Hufstedler said she was acting on the basis of a formal opinion issued Thursday by Attorney General Benjamin R. Civilettti, which said "you are entitled to implement the regulations in question in spite of Congress' disapproval."
An aide to Rep. Carl D. Perkins (D-Ky.), chairman of the House Education and Labor Committee, who led the floor attack on the four ED regulations in mid-May, said of Civiletti's opinion: "That and a quarter will get you a cup of coffee. It's not legally binding on Congress. It looks like it's going to end up in court."
In recent years legislation containing authority to disapprove executive branch rules has proliferated, along with Congress' antiregulation mood.
There have been dozens of legislative vetoes, covering such issues as energy and Federal Election Commission rules, but in past cases the affected agency has chosen not to challenge Congress.
Justice department attorneys who worked on the opinion for Civiletti said the key in those instances was that the executive branch angency -- not Congress -- had the final word in deciding whether to change a regulation after a veto. The vetoes "were regarded as advisory -- not legally binding -- and something was worked out informally," an official said.
Betsy Levin, ED's general counsel, said yesterday that the department considers Civiletti's opinion binding as an expression of the administration's position. "The issue finally will have to be resolved by the courts," she said.
The Justice Department has been waiting two years for the 9th U.S. Circuit Court of Appeals to decide a legislative veto case involving the status of Jagdish Chadha, an Asian from Kenya who was permitted to stay in the United States because of the political climate in his country, until the House reversed the action.
"We look forward to a court test with Congress so we can get the Supreme Court to rule on this important question," said a Justice lawyer involved in the issue.
President Carter sent a message to Congress in June 1978, outlining his position that such legislative vetoes were unconstitutional because they upset the constitutional balance between the separate branches of government.
"Such intrusive devices infringe on the executive's constitutional duty to faithfully execute the laws," Carter said. "They also authorize congressional action that has the effect of legislation while denying the president the opportunity to exercise his veto."
The way for Congress to express displeasure with department regulations is to amend the laws, the president argued. In the meantime, pending a court decision, the executive branch will give congressional vetoes serious consideration but will not consider them legally binding.
In his opinion to Hufstedler Thursday, Civiletti laid the legal basis for making the same points. "Your recognition of these concurrent resolutions as legally binding would constitute an abdication of the responsibility of the executive branch . . . to preserve the integrity of its functions against constitutional encroachment. I therefore conclude that you are authorized to implement these regulations."
Congressional feeling about the validity of its position is equally strong. In the floor debate leading to disapproval of the ED regulations, Perkins cited Article I of the Constitution as the basis for the veto and said the department had not listened to his complaints that the regulations exceeded the intent of the laws.
Other members spoke in support of Perkins and took the opportunity to lash out at the executive branch for long-winded rulemaking. For instance, Perkins and John H. Buchanan (R-Ala.) noted that a bill authorizing law-related education programs covered one page of 375 words, while the regulations took up 10 pages and 4,400 words and contained provisions never contemplated in the law.
Rep. William Goodling (R-Pa.) joined the battle on May 21, when the House vetoed the fourth regulation dealing with educations grants to states. "This is just another indication of an agency that decided to rewrite the legislation after we thought we did a pretty good job of writing it in the first place," he said.