The Supreme Court yesterday altered the balance of power within the U.S. government by striking down the "legislative veto" power of Congress to block presidential actions in hundreds of areas from rule-making to deploying American troops abroad.
Chief Justice Warren E. Burger's majority opinion, in a case originating in the uncelebrated attempt of a Kenyan to avoid deportation after his student visa ran out, invalidated or seriously jeopardized legislative veto provisions in at least 200 laws. Five other justices joined Burger in the majority.
The decision "strikes down in one fell swoop provisions in more laws enacted by Congress than the court has cumulatively invalidated in its history," Justice Byron R. White wrote in a fervent dissent.
The chief justice wrote that the separation of powers provisions of the Constitution prescribe only one way for Congress to exercise legislative authority: both houses must approve a bill and submit it to the president for his signature. The legislative veto improperly leaves out the president, Burger said.
The decision expressly nullified provisions authorizing vetoes by a single house. That eliminates the power of the House or the Senate alone to independently block budget impoundments, election law rules, many Social Security and energy-related regulations, and deportation actions, which were at issue in yesterday's case.
The opinion implicitly prohibited two-house vetoes contained in legislation passed by Congress that allows the president to take action unless both houses object to it. Burger said there are a few exceptions to the rule that the president must pass on congressional actions. One of them is impeachment. But he said nothing resembling the two-house veto was among these exceptions.
White, Justice Lewis F. Powell Jr., who declined to join the broad opinion, and Attorney General William French Smith, who applauded it, said the action forecloses any form of legislative veto.
By a two-house veto, the House and Senate acting together could, among other things, block U.S. military participation in undeclared wars; sales of arms to foreign powers; transfers of nuclear fuel to foreign countries, and Federal Trade Commission restrictions, such as the recently vetoed requirement that dealers disclose the flaws in used cars.
"I have not spoken orally in dissent in many years," White said from the bench yesterday. "But this is no ordinary case. It is probably the most important case the court has handed down in many years."
" . . . I fear it will now be more difficult 'to insure that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people,' " White said, quoting the late Justice John Marshall Harlan.
Burger, in an unusual courtroom exchange, then spoke up. White neglected to mention one thing, the chief justice said. "The Constitution is a document to assign and separate the powers of government and to limit them . . . . Its draftsmen knew how to make exceptions" when they wanted to, he said.
Justice William H. Rehnquist wrote a separate, brief dissent. Powell said he agreed only that the immigration law at issue yesterday was unconstitutional, saying it intruded on judicial authority.
"The court's decision . . . apparently will invalidate every use of the legislative veto," Powell wrote. "The breadth of this holding gives one pause."
Joining Burger in the majority were Justices William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun, John Paul Stevens and Sandra Day O'Connor.
In a statement late yesterday, Attorney General Smith praised the court for reaffirming "the vital and important role under our Constitution of the principle of separation of powers." He said that "once a law is passed, the president is given the constitutional power to execute the laws and Congress may not act to reverse or invalidate such executive action except through subsequent legislation."
Smith's interpretation is crucial. His department will be advising the president and the agencies where to go from here and how much authority they now have to ignore congressional vetoes, should they be exercised.
At the very least, the decision yesterday will require a complete congressional reexamination of all the laws containing veto provisions. A corollary but important question is whether an entire law is invalidated or just the veto provision.
Some of the laws--such as the War Powers Resolution, which allows the two houses to block deployment of troops overseas--consist of virtually nothing but the veto. Others are part of much broader laws.
Further guidance is expected when and if the court acts on two related cases, currently before the court, involving two-house vetoes.
Yesterday, Burger appeared to leave Congress few loopholes. He said there is "only one way" to exercise legislative power. He defined legislative power broadly, to include even the relatively obscure decision to deport a single individual. Calling a bill something other than a bill, he said, citing James Madison, will not "evade" the Constitution's requirements.
Legislative veto provisions have generally arisen as accommodations between the White House and Congress. Congress agreed to give the president broad authority in an important area and, in return, the president gave Congress a convenient check on the use of that authority that could be exercised without the cumbersome requirement of bills, hearings, extensive floor debates and roll-calls. The provisions themselves are approved by both houses and signed by the president.
The first major provision was incorporated into a government reorganization bill sought in 1929 by President Hoover. The heyday of the legislative veto came during the Nixon years, in fights over the Vietnam war and impoundment and over control of the expanding bureaucracy.
"Only within the last half century," White said, "has the complexity and size of the federal government's responsibilities grown so greatly that the Congress must rely on the legislative veto as the most effective if not the only means to insure their role as the nation's lawmakers."
Yesterday's case, Immigration and Naturalization Service vs. Chadha, stemmed from a 1952 provision giving either house of Congress a veto power over decisions by the attorney general allowing otherwise deportable aliens to remain in the United States.
The House, which had rarely used the authority, applied it in 1976 at the urging of then-Rep. Joshua Eilberg to require the deportation of Jagdish Rai Chadha, a Kenya-born East Indian who held a British passport, and five other non-citizens. Chadha and his lawyers, including Washington attorney Alan B. Morrison, attacked the deportation by challenging the veto power successfully in the 9th U.S. Circuit Court of Appeals in California.
Burger upheld that court yesterday, dealing swiftly with relatively minor jurisdictional issues and then turning to two parts of the Constitution, one involving "presentment" of bills to the president and the other "bicameralism," the two-house requirement.
The Constitution says every bill "shall" go to the president, Burger said, and every resolution "shall" be presented to the president. These are "integral parts of the constitutional design for the separation of powers," he said. They were designed with the "profound conviction" that congressional powers had to be circumscribed.
What the House did in the Chadha deportation "involves determinations of policy that Congress can implement in only one way: bicameral passage followed by presentment to the president," Burger said. Legislative power must be "exercised in accord with a single, finely wrought and exhaustively considered procedure."
"Clearly, when the draftsmen sought to confer special powers on one house, independent of the other house, or of the president, they did so in explicit, unambiguous terms."
"The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable," Burger concluded in his 39-page opinion, "but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary government acts to go unchecked . . . . "