Congress should scrap every law that contains a "legislative veto" and rewrite them more narrowly, the House general counsel told the Foreign Affairs Committee yesterday, but committee Chairman Clement J. Zablocki (D-Wis.) replied that it could not be done.
Last week the committee's foreign aid bill for fiscal 1984, which contained a legislative veto provision on aid to El Salvador, became the season's first casualty of the Supreme Court ruling against legislative vetoes. The Rules Committee, declining to pass the aid bill on to the House floor, sent it back to Foreign Affairs for repair.
Yesterday, committee members wanted to know how the legislative veto decision would affect foreign policy legislation. General Counsel Stanley Brand told them that Congress faces a "Hobson's choice:" it must try to write, or rewrite, laws in minute detail or face the loss of its power to the executive branch and independent rule-making agencies.
At least 16 foreign policy laws have been thrown into question because they contain some form of legislative veto, Zablocki said. These include the War Powers Act and laws governing arms sales, foreign aid and export of nuclear materials.
The legislative veto, which has been used by Congress for more than 50 years, is a means of granting authority to the executive branch while writing into the law the right to veto any use of that authority that one or both houses do not like.
On June 23, the Supreme Court struck down the legislative veto in sweeping language, writing that if Congress wanted to effect such curbs on the executive it should do it by altering the legislation.
"It is my view," said Brand, who argued Congress' case before the Supreme Court, "that Congress is better served by wholesale repeal of the delegations of power effected by these statutes and a return to what lawyers call the status quo ante, or in everyday parlance, 'the way we were.' "
Zablocki, who praised Brand's presentation, said he did not think the committee could take his advice.
"While this approach may be the logical theoretical answer to the problem," Zablocki said, "it does not address the practical problems that will arise . . . . If Congress is forced to promulgate every administrative regulation, I'm afraid its workload would proliferate to an unacceptable level."
Rep. Dante B. Fascell (D-Fla.) said that even if Congress tried to repeal all laws containing a legislative veto the president would be sure to veto the repeals.
Much of yesterday's discussion centered on the legal issue of "severability," the question of what happens to the rest of a law when its legislative veto provisions are voided.
The War Powers Act of 1973, for example, grants the president the right to send troops abroad, but says the troops must be withdrawn if Congress fails to approve their use within 60 days. It also says Congress may "veto" their continued use at any time.
Brand said this veto provision is clearly invalid in light of the Supreme Court's holding, but that the rest of the bill's status is unclear. Brand called for repealing the act and writing a new one.
He said Congress' alternatives are:
* To grant broad authority to the president and give up any prospect of reviewing his decisions.
* To grant only narrow authority on a case-by-case basis.
* To grant general authority under a "report and wait" provision, requiring the president to ask for legislative approval of each executive act under that authority.
* To control the power of the executive through the appropriations process by refusing to fund actions it does not like.