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11/15/2021

Curtis Bradley: Reassessing the Legislative Veto
Michael Ramsey

Curtis Bradley (University of Chicago Law School) has posted Reassessing the Legislative Veto: The Statutory President, Foreign Affairs, and Congressional Workarounds (forthcoming, Journal of Legal Analysis) (53 pages) on SSRN.  Here is the abstract:

There have long been complaints about the growth of presidential power. These complaints intensified during the Trump administration, and there are now calls for a host of separation-of-powers reforms designed to restore congressional authority. As some advocates for reform recognize, many of the controversial actions that presidents take are based on statutory authorization. For example, the Trump administration’s “travel ban,” its re-imposition of sanctions against Iran, and its shifting of funds to be used to construct the southern border wall were all based, at least principally, on statutory delegations rather than on claims of independent presidential authority. A chief reason that the President is insufficiently constrained when exercising such statutorily-delegated power, it is claimed, is the Supreme Court’s disallowance of legislative vetoes in its decision in INS v. Chadha, a claim that intensified during the Trump administration. This Article challenges this account, arguing that the availability of the legislative veto was less important before Chadha to congressional-executive relations than legal scholars commonly assume, and that, to the extent that the legislative veto was (or would have become) important for checking some exercises of statutorily-delegated authority, Congress has developed a host of effective workarounds in the years since Chadha. It illustrates this claim with case studies concerning war powers, arms sales, and emergency declarations. The Article also argues that the functional case for allowing legislative vetoes is more debatable than many critics of Chadha have acknowledged.

This is an interesting question of institutional design.  I think Chadha was correctly decided as a matter of original meaning, but I'm inclined to agree with critics who say it is bad policy (especially in given a large, complex administrative federal administrative state).  The President and the agencies have too much unchecked power to implement policies pursuant to claimed statutory delegations (whether those delegations were intended or not).  One could use a revived nondelegation doctrine to redress some of that problem, if the Supreme Court could find the votes to do it.  But a structural way to provide a stronger check (if Chadha didn't foreclose it) would be for Congress to have a way to disapprove executive/agency action under delegated power that was not subject to a presidential veto.  But maybe not, as this article argues.