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9 Admin. L. News 1 (1983-1984)

handle is hein.journals/admreln9 and id is 1 raw text is: ADMINISTRATIVE LAW NEWS Fall 1983 Published by the Section of Administrative Law, American Bar Association Volume 9, Number I The Congressional Responses to Chadha By Stephen L. Babcock* Our distinguished Past Chairman William H. Allen opened the Chairman's Message in the most recent issue of the Administrative Law Review (Vol. 35, No. 3, Summer 1983) with the question: What are we going to do now that we won't have the legislative veto to rail at any more7 Well, one thing we can do is talk about the various alternatives to the legislative veto that are now being proposed. An article on legislative vetoes, coming as it does more than three months after the Supreme Court's decision in Chadha, is not exactly a new idea. Indeed, the creation of articles, seminars, and other forms of agitation on the subject has become the undisputed-champion cottage industry of the year in administrative law at the federal level. But, while it may well be that supply in this general area has already overtaken demand, Section members may be inter- ested in one particular aspect of the legislative veto discussion that has as yet received less attention: the intracongressional allocation-of-power implications of those proposals advanced in reaction to Chadha that would give Congress control over specific agency regulations. Proposals advanced in reaction to Chadha have, of course, taken many forms. This Section has long ad- vocated establishing a means for systematic analysis by the Department of Justice of all newly proposed legislative delegations. o'f'power to agencies with a view to narrowing those delegations at the outset. Some have talked of using enforcement of particular rules. The adoption of general legislation requiring agencies to report all proposed rules to Congress, and to wait to see whether Congress enacts legislation disapproving the rule, has also been urged, The crea- tion'of a new executive branch agency with powers to review and disapprove rules proposed by both ex- ecutive and independent agencies has been suggested. Other reactions include renewed calls for the enact- ment of the familiar Bumpers amendment'and for the *Deputy Newsletter Editor Copyright © 1983 American Bar Association general use of Sunset provisions in agency rules. Con- gressman Levitas, one of the principal defendez of the legislative veto, has even suggested a Super Sunset law that would automatically repeal all outstanding agency regulations six months after the law's enact- ment unless a joint resolution approving each of them had been enacted in the meantime. A common feature of these proposals is that none of them are direct substitutes for the practice actually prohibited by Chadha: that of giving the Houses of Congress a direct vote on a particular rule after it has been formulated by an agency. Three suggestions that would create more direct substitutes have been made; these will be set out below. Before doing so, it should be noted that, despite Chadha, the legislative veto remains alive and well as a tool for congressional control over particular funding decisions. It has also been used for such well-known purposes as war powers, impoundment control and government reorganization. But the most pervasive use of the device at the present time, and certainly the most particularized, is in the form of congressional decisions, many involving hundreds of millions of dollars. A large number of appropriation acts now routinely provide, and have for some time, that speci- fied spending decisions cannot be made without ad- vance committee (usually Appropriations Committee) approval. At the end of August of this year, Mr. Louis Fisher of the Congressional Research Service prepared a list of seventeen separate committee veto provisions contained in five separate statutes that had been en- acted in the two months since the Supreme Court an- nounced the Chadha decision. These many spending vetoes are central to the argument of this article, and we will return to them later. First, however, the recent- ly developed legislative veto substitutes designed spe- cifically to control agency rulemaking should be described. The two most prominently suggested direct re- (continued on next page) Produced by the ABA Press

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