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72 Geo. L. J. 785 (1983-1984)
The Legislative Veto after Chadha

handle is hein.journals/glj72 and id is 793 raw text is: THE THOMAS F. RYAN LECTURE* The Legislative Veto After Chadha STEPHEN BREYER** The Supreme Court, in INS v. Chadha,I held the legislative veto unconstitu- tional. Early reports have described the opinion as changing the balance of power between Congress and the executive.2 Certainly, the decision is impor- tant; Congress or the courts will have to reexamine dozens of statutes to deter- mine whether an offending veto clause is severable or whether the entire statute falls with the clause.3 The balance of power consequences are more difficult to predict. Tonight, I shall begin a discussion of that subject by asking whether the old veto might reemerge in new legal clothes. Drawing on my experience on the Senate staff, I shall suggest it is just possible that there may be life after death for the legislative veto; but whether Congress will take the necessary steps is uncertain. One might also ask, Is such a resurrection desirable? Here, based upon my study of government regulation, I shall express skepticism. I Let me clear the undergrowth with three preliminary questions: What is the legislative veto; where did it come from; what does it do. What it is, essentially, is a clause in a statute, which says that a particular executive action (and by executive I mean to include the independent agen- cies) will take effect only if Congress does not nullify it by resolution within a specified period of time. Variations of detail are possible; the resolution might have to be passed by one House of Congress, both Houses, or simply by a committee.4 The action itself might take effect while Congress debates, or it might rest in limbo. Whatever the details, three elements are essential: * Delivered October 13, 1983, at the Georgetown University Law Center. The Thomas F. Ryan Lecture was established at the Georgetown University Law Center by Hugh A. Grant in memory of Thomas F. Ryan, a Georgetown University alumnus. ** Circuit Judge, United States Court of Appeals for the First Circuit. 1. 103 S. Ct. 2764 (1983). 2. N.Y. Times, June 24, 1983, at 1, col. 4; Wash. Post, June 24, 1983, at 1, col. 1; see Chadha, 103 S. Ct. at 2792-93 (White, J., dissenting); id at 2788 (Powell, J., concurring). 3. See Chadha, 103 S. Ct. at 2811-16 (appendix to opinion of White, J., dissenting) (listing examples of current statutes containing legislative veto provisions). 4. There are also various, more exotic arrangements. Many statutes condition executive actions not on the absence of a legislative veto, but on affirmative endorsement by a congressional resolution. See, e.g., Trade Expansion Act of 1962, 19 U.S.C. § 198 1(a)(2)(B) (1976); Energy Conservation and Produc- tion Act, 42 U.S.C. § 6834(c) (1976) (specific section repealed by Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, § 1041(b), 95 Stat. 357, 621 (codified at 42 U.S.C. § 6834 (1976 & Supp. V 1981))). Several statutes employ what has been labelled the one and one-half House veto, which gives one House the power to veto an executive action unless the other House affirmatively supports the executive. See, e.g., Comprehensive Environmental Response, Compensation, and Liability Act of 1980,42 U.S.C. § 9655(a)-(d) (1976 & Supp. V 1981); Omnibus Budget Reconciliation Act of 1981, 15 U.S.C. § 1276(a)-(d) (1982).

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