THE ONE-HOUSE VETO was an effort by Congress to have it both ways. It could delegate authority, yet keep some control. By the time the Supreme Court declared the device unconstitutional in 1983, such vetoes had been placed in more than 200 statutes.
Without a veto, the political balance in all these statutory areas was upset, and in some cases there have been lawsuits. If you're striking down the veto, fairness requires that you strike down the rest of the statute of which the veto is a part; that is what those who had come to look to the vetoes for protection say. The instinct of the courts, however, has been in the opposite direction: to save as much of the underlying statutes as they can. The theory is that, if the laws need retuning, that's Congress' job.
Normally, that's a good rule. Now, however, a judge in one such case has agreed that a whole law ought to go. The case is an important one, involving the president's deferral power -- his right to put off expenditure of appropriated funds. Judge Thomas P. Jackson took as his test this question: Would Congress have granted the president the power to defer without keeping the one-house veto as a check on his use of it? His answer was no, that the veto was an integral part of the power. He stripped away the deferral power (while also staying his own order pending appeal). We think he was right.
The deferral power was spelled out in the Budget Control and Impoundment Act of 1974. The new law said there were only two ways a president could fail to carry out an appropriation -- ask Congress to rescind it, or propose deferral. The right to defer would be his unless either house objected within so many days.
When the veto was struck down, it was not clear how deferral might work, and the White House and Congress worked out an informal truce. The president would use the power only for housekeeping purposes, not to cram policy down Congress' throat. Congress for its part would leave the power on the books. But this year the truce broke down. The White House tried to use deferral to quash some housing and community development appropriations; members of Congress and recipient groups sued. They pointed out that an uncontrolled power to defer would be the same as the line-item veto that the president wants and Congress has refused to give him.
What should happen now? Assuming Judge Jackson's decision survives on appeal, the best result may be the simplest: no one-house veto, no special deferral power either. If the president wants to defer an expenditure, let him send up such a bill like any other. It's clumsy, but as the Supreme Court reminded us in the one-house veto case, that's how the system is supposed to work.