THE SUPREME COURT has issued the most important judicial decision of this term, and perhaps of this decade. In a stunning and sweeping opinion, the court struck down the legislative veto, a device used by Congress to overturn executive branch actions. Almost 200 statutes contain a legislative veto provision, including those governing war powers, federal pay raises, trade regulation and home rule for the District of Columbia. The decision greatly strengthens the executive branch and fundamentally changes the options available to Congress in delegating powers to executive and administrative agencies.
Legislative veto provisions began to appear in federal statutes in 1932, but the device has been most frequently used in recent years. It enables Congress to enact laws that delegate substantial implementing powers to executive agencies, while preserving a right to overrule those executive decisions by a vote of one or both houses. This procedure, writes the chief justice, is inconsistent with the Constitution, which requires that legislation be passed by both houses and signed by the president, or passed by a two-thirds vote over his veto. This literal and straightforward reading of the Constitution invalidates what Justice White, in dissent, calls "an important if not indispensable political invention that allows the president and Congress to resolve major constitutional and policy differences, assures the accountablilty of independent regulatory agencies, and preserves Congress' control over lawmaking."
True, the legislative veto was a convenient way for Congress to give authority and retain it at the same time, but it is not indispensable to the effective operation of government. As another federal court pointed out in a similar case, the simple alternative to the legislative veto is a statute enacted in the manner prescribed by the Constitution. "If Congress has given away too much power, it may, by statute, take it back," wrote Judge Malcolm R. Wilkey. "Congressional unwillingness to use its constitutional powers cannot be deemed a sufficient reason for inventing new ways to act."
In the future, legislators will have to be more careful about what functions they delegate; compromises and boundaries will have to be clearly understood before bills are sent to the White House; and special interest groups, which have fought executive branch decisions with this device, will have to develop new tactics. The lines separating the powers of the three branches of government have been clearly reaffirmed by this decision. That is far more important than the fact that the work of one branch, the legislature, will be more difficult--even more risky--after today.