The government yesterday asked the Supreme Court to eliminate the "legislative veto" Congress now wields selectively over a broad variety of administrative and regulatory decisions.
Solicitor General Rex E. Lee, making the broadest possible attack on the device used by Congress to ride herd on the bureaucracy, asked the court to rule that there is only one way for Congress to do business--by votes of both houses and submission to the president for his signature--and that anything short of that is unconstitutional.
Lawyers for the House and Senate asked the court to stay out of the dispute, which they characterized as a "political" struggle between the legislative and executive branches.
Lee's plea came during oral arguments on a challenge to a "legislative veto" provision in the nation's immigration laws, which allows either the House or Senate to overrule deportation decisions made by the attorney general. In 1975, the House used the provision to overrule an executive branch action allowing Jagdish Ray Chadha, a native of Kenya, to remain in the United States because of "hardships" he might face if deported. Chadha successfully attacked the provision in the lower courts.
The one-house veto provision at issue yesterday is similar to one-house and two-house veto provisions built into more than 200 other laws covering everything from elections to energy to the environment. The Court of Appeals for the District of Columbia, in a broad ruling issued two weeks ago, declared unconstitutional a legislative veto provision included in federal energy laws.
Lee's argument yesterday was broad enough to cover any and all variations of the legislative veto, including Congress' veto over procedural decisions made by the judiciary's policy-making arm, the Judicial Conference.
"The only way Congress can act is by legislation," Lee told the court yesterday. "If it is not legislation, then Congress lacks the authority to do it."
Alan B. Morrison, representing Chadha, said the framers of the Constitution specified this procedure "because they were fearful of the tyranny" that could prevail with a concentration of power in one branch of government. He said his client had felt the full weight of the "tyranny" when Congress "meted out a summary reversal" of the executive decision saving him from deportation.
The House and the Senate were represented separately yesterday in defense of the legislative veto. In their briefs, they argued that the separation of powers between branches of the government should not be interpreted so strictly as to forbid cooperative oversight ventures.
But yesterday, they concentrated on convincing the court that the judiciary shouldn't even have considered the legislative veto dispute. In the immigration laws, as well as in all the other laws involved in the controversy, Congress and the president jointly agreed to the legislative veto provisions, said Michael Davidson, representing the Senate. It was a "bargain" the executive branch now seeks to undo, he said.
"The ultimate question," Davidson said, "is the role of the courts . . . . The court has historically deferred" to the other branches of government in such matters.
"To which branch are we supposed to defer this time?" asked Justice William H. Rehnquist, capturing the court's dilemma in Immigration and Naturalization Service Vs. Jagdish Rai Chadha, et al.
The court is expected to act by late June.