Congressional Oversight and the Legislative Veto

This article appeared in the OGC Adviser, Vol. 4, Issue 2, Spring/Summer 1980. The legislative veto is one method on which the Congress relies to continue congressional control over the subject matter of legislation after its enactment. The legislative veto requires the President or other executive branch official to present actions proposed pursuant to a law to either or both Houses of Congress or to specific committees before the proposed action becomes effective. A mechanism such as this is said to be necessary to permit Congress to exercise oversight control over the executive at a time when the complexity of the objects of legislation requires that the Congress delegate more and more power to the executive. These provisions have generally been opposed by recent Presidents as unconstitutional. One form of legislative veto, the one-House veto requires action by either House of Congress to disapprove a proposed executive action. The constitutional challenge of the legislative veto is usually based on four provisions of the Constitution: separation of powers, presentment, bicameralism, and incompatibility. Few of the mechanisms have actually been challenged in court; however, some of the legislative veto mechanisms have received support from the judical branch. In a recent case, the Court of Claims held constitutional the one-House veto provision in the Federal Salary Act. It ruled that the devise neither conflicted with the constitutional powers and obligations of the Congress as a whole acting through both Houses, nor invalidly intruded on the constitutional sphere of the President. The court pointed out that the underlying Act was presented to the President, the recommendations under the Act are formulated by the President, and together these were sufficient to prevent legislative encroachment on the power of the executive. The Constitution makes specific grants of authority to a single House alone. The court concluded that both Houses need not act every time a legislative power or function is exercised or authorized. The court was of the opinion that approving regulations did not constitute administration of the laws. It is doubtful that the courts will rule on the constitutionality of the legislative veto generally, but will rule narrowly on the specific provisions. The legislative veto will continue to be used by Congress in an effort to increase its oversight role.