The Legislative Veto Decision: A Law by Any Other Name
![handle is hein.journals/hjl21 and id is 7 raw text is: ARTICLE
THE LEGISLATIVE VETO DECISION: A LAW
BY ANY OTHER NAME?*
LAURENCE H. TRIBE**
In INS v. Chadha, the Supreme Court decided that the one-House
legislative veto was unconstitutional. The Court held that the veto under-
mined the separation of powers and violated the bicamerality and pres-
entment requirements. In this Article, Professor Tribe examines the rea-
soning behind the Court's decision and the potential impact of the decision
on Congress and the lower courts. Professor Tribe challenges the Court's
premise that Congress's veto decision in Chadha was necessarily a legis-
lative action and questions the general principle that Congress cannot
delegate power to itself. Nevertheless, he argues that the Chadha result
may be defensible on narrower bill of attainder or usurpation-of-judicial-
futnction grounds. Finally, Professor Tribe agrees with the majority's hold-
ing that the legislative veto provision was severable from the rest of the
delegation of power. He proposes a test for severability that avoids the
traditional focus on hypothetical legislative intent and that itill pernit the
survival of most of the existing statutes containing legislative veto
provisions.
I. THE JUDICIARY'S RENEWED ASSERTION OF STRUCTURAL
CHECKS ON CONGRESSIONAL INNOVATION
In the past seven years, the Supreme Court has not been very
receptive to Congress's more innovative assertions of authority.
Three major decisions, the most recent of which is the legislative
veto case, INS v. Chadha,I have undermined Congress's asser-
tions of control on separation of powers and/or federalism
grounds. The first two of those decisions-Buckley v. Valeo,2
dealing with the Appointments Clause, and National League of
* Copyright © Laurence H. Tribe, 1983. This article is a pre-publication of material
to be released as part of L. TRIBE, AMERICAN CONSTITUTIONAL LAW, 1978-84 (Foun-
dation Press) (forthcoming). For research assistance in connection with earlier (unpub-
lished) versions of this analysis, I am indebted to Brian Koukoutchos, J.D., Harvard
Law School, 1983, and to Thomas Rollins, J.D., Harvard Law School, 1982.
** Tyler Professor of Constitutional Law, Harvard Law School.
1 103 S. Ct. 2764 (1983).
2 424 U.S. 1, 140 (1976) (per curiam) (holding the Federal Election Commission to be
composed in a manner violative of U.S. CONST. art. II, § 2, cl. 2, and of the separation
of powers, insofar as some of the Commission's voting members were appointed by the
Speaker of the House and by the President pro tempore of the Senate rather than by
the President .... the Courts of Law, or... the Heads of Departments). See infra
note 68; L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 4-8 (1978) [hereinafter cited as
L. TRIBE, ACL]. Throughout this Article, references to Buckley deal only with this
holding-not with that decision's substantive rulings with respect to campaign finances.](ViewImageLocal?handle=hein.journals/hjl21&div=6&collection=journals&method=preview&ext=.png&size=3)
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The Legislative Veto Decision: A Law by Any Other Name
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