CONGRESSIONAL reaction to the Supreme Court's decision banning the legislative veto has been characterized by a lot more heat than light. At first blush, many legislators seem to believe they have been stripped of all power and that the nation will be governed "by the tyranny of the bureaucracy." One member of the House even lamented that henceforth Congress would have no say in deciding important national policy questions. How justified are these fears?
Let us begin by emphasizing that it is Congress that makes the rules in this country--and controls the purse strings as well. The executive branch simply carries out those directives. For 50 years or so, Congress has used the legislative veto--a process by which one or both houses overturns an executive branch decision without enacting a law--because it has been a convenient way to control those executive decisions. Certainly it has been more convenient than using the procedures set out in Article I of the Constitution, which requires that both houses approve a law and that the president sign it or that his veto be overridden by a two-thirds vote of each house. But convenience is not to be equated with power, and, as one government attorney said after the decision was announced: "In a battle for power, Congress will always win."
Highway safety regulations can be used to illustrate the options that Congress still retains. The secretary of transportation is authorized to promulgate regulations for programs to reduce accidents, injuries and deaths on the highway. Until Thursday's decision, these regulations--mandating air bags, for example-- could be vetoed by a single house of Congress. Auto makers who opposed the regulations simply had to convince a majority of the senators or House members present on any given day to overturn them. This legislative veto can no longer be employed, but the basic authorizing legislation remains in place, including the provision requiring that proposed regulations be submitted to Congress for review. Even without the power to exercise a one-house veto, Congress still has alternatives for controlling the executive. (Note, incidentally, that an attempt by the administration to scuttle air bag rules was vetoed yesterday--by the Supreme Court).
A statute can be passed prohibiting DOT from requiring air bags. The statute authorizing highway safety regulation can be repealed or amended. A rider can be attached to the department's appropriation bill prohibiting the expenditure of money to enforce any air bag regulation. A law can be passed requiring that no proposed DOT regulations go into effect unless affirmatively enacted as law by the Congress. Sunset provisions can be added to the authorizing legislation. Congress or either house can pass a resolution expressing disapproval of the regulations. While such a resolution would not have the effect of law, can anyone who has lived in this city more than two weeks doubt its political effect on an administration that must come before Congress on a daily basis? Oversight hearings often have a similarly intimidating effect. The agency within DOT issuing the regulations can be abolished or restrained by statute. Appointments requiring Senate confirmation can be held up.
Does all this add up to the picture of an impotent Congress? Obviously not.