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

handle is hein.journals/admreln9 and id is 1 raw text is: ADMINISTRATIVE


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
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
The two most prominently suggested direct re-
(continued on next page)

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