Excerpts from yesterday's Supreme Court opinion on legislative vetoes, together with Justice Byron R. White's dissent:
Chief Justice Warren E. Burger delivered the opinion of the court:
Explicit and unambiguous provisions of the Constitution prescribe and define the respective functions of the Congress and of the executive in the legislative process . . . .
The records of the Constitutional Convention reveal that the requirement that all legislation be presented to the president before becoming law was uniformly accepted by the Framers. Presentment to the president and the presidential veto were considered so imperative that the draftsmen took special pains to assure that these requirements could not be circumvented . . . .
The decision to provide the president with a limited and qualified power to nullify proposed legislation by veto was based on the profound conviction of the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed. It is beyond doubt that lawmaking was a power to be shared by both houses and the president . . . .
The president's role in the lawmaking process also reflects the Framers' careful efforts to check whatever propensity a particular Congress might have to enact oppressive, improvident or ill-considered measures . . . .
The bicameral requirement of Art. 1 . . . was of scarcely less concern . . . and indeed the two concepts are interdependent . . . . The president's participation in the legislative process was to protect the executive branch from Congress and to protect the whole people from improvident laws. The division of the Congress into two distinctive bodies assures that the legislative power would be exercised only after opportunity for full study and debate in separate settings. The president's unilateral veto power, in turn, was limited by the power of two-thirds of both houses of Congress to overrule a veto, thereby precluding final arbitrary action of one person . . . .
The Constitution sought to divide the delegated powers of the new federal government into three defined categories, legislative, executive and judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted . . . .
To accomplish what has been attempted by one house of Congress in this case requires action in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both chambers and presentment to the president.
The veto authorized by Sect. 244 (c)(2) doubtless has been in many respects a convenient shortcut; the "sharing" with the executive by Congress of its authority over aliens in this manner is, on its face, an appealing compromise. In purely practical terms, it is obviously easier for action to be taken by one house without submission to the president; but it is crystal clear from the records of the Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency . . . .
The choices we discern as having been made in the Constitutional Convention impose burdens on government processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. There is no support in the Constitution or decisions of this court for the proposition that the cumbersomeness and delays often encountered in complying with explicit constitutional standards may be avoided, either by the Congress or by the president . . . . With all the obvious flaws of delay, untidiness, and potential for abuse, we have not found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.
We hold that the congressional veto provision in Sect. 244(c)(2) is . . . unconstitutional.
Justice White, dissenting.
Today the court not only invalidates 244(c)(2) of the Immigration and Nationality Act, but also sounds the death knell for nearly 200 other statutory provisions in which Congress has reserved a "legislative veto." For this reason, the court's decision is of surpassing importance. And it is for this reason that the court would have been well-advised to decide the case, if possible, on the narrower grounds of separation of powers, leaving for full consideration of the constitutionality of other congressional review statutes operating on such varied matters as war powers and agency rulemaking, some of which concern the independent regulatory agencies.
The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central means by which Congress secures the accountability of the executive and independent agencies. Without the legislative veto, Congress is faced with Hobson's choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its lawmaking function to the executive branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role. Accordingly, over the past five decades, the legislative veto has been placed in over 200 statutes. The device is known in every field of governmental concern: reorganization, budgets, foreign affairs, war powers, and regulation of trade, safety, energy the environment and the economy . . . .
It is an important if not indispensable political invention that allows the president and Congress to resolve major constitutional and policy differences, assures the accountability of independent regulatory agencies, and preserves Congress' control over lawmaking. Perhaps there are other means of accommodation and accountability, but the increasing reliance of Congress upon the legislative veto suggests that the alternatives to which Congress must now turn are not entirely satisfactory.
The history of the legislative veto also makes clear that it has not been a sword with which Congress has struck out to aggrandize itself at the expense of the other branches--the concerns of Madison and Hamilton. Rather, the veto has been a means of defense, a reservation of ultimate authority necessary if Congress is to fulfill its designated role under Article I as the nation's lawmaker.
While the president has often objected to particular legislative vetoes, generally those left in the hands of congressional committees, the executive has more often agreed to legislative review as the price for a broad delegation of authority. To be sure, the president may have preferred unrestricted power, but that could be precisely why Congress thought it essential to retain a check on the exercise of delegated authority.
For all these reasons, the apparent sweep of the court's decision today is regrettable. The court's Article I analysis appears to invalidate all legislative vetoes irrespective of form or subject. Because the legislative veto is commonly found as a check upon rulemaking by administrative agencies and upon broad-based policy decisions of the executive branch, it is particularly unfortunate that the court reaches its decision in a case involving the exercise of a veto over deportation decisions regarding particular individuals. Courts should always be wary of striking statutes as unconstitutional; to strike an entire class of statutes based on consideration of a somewhat atypical and more-readily indictable exemplar of the class is irresponsible . . . .
The power to exercise a legislative veto is not the power to write a new law without bicameral approval or presidential consideration. The veto must be authorized by statute and may only negative what an executive department or independent agency has proposed. On its face, the legislative veto no more allows one house of Congress to make law than does the presidential veto confer such power upon the president . . . .
I regret that I am in disagreement with my colleagues on the fundamental questions that this case presents. But even more I regret the destructive scope of the court's holding. It reflects a profoundly different conception of the Constitution than that held by the courts which sanctioned the modern administrative state. Today's decision strikes down in one fell swoop provisions in more laws enacted by Congress than the court has cumulatively invalidated in its history . . . . I must dissent.