"There is always a philosophy for lack of courage."—Albert Camus

Thursday, May 18, 2017

Reviving the Legislative Veto

FROM:      Seth Barrett Tillman
                   Maynooth University Department of Law

TO:            NAME
                   [Think Tank]

DATE

RE:  Query: Why is a revived legislative veto over federal administrative regulations a good project for [Think Tank]? Answer: A legislative veto is good governance, but it would also be a powerful tool in the arsenal of those who support limited government

I sent you a paper laying out a legal defense for reviving congressional efforts to pass a constitutionally valid legislative veto, notwithstanding the decision of the U.S. Supreme Court in INS v Chadha, 462 U.S. 919 (1983). See Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3, 83 Tex. L. Rev. 1265 (2005).[1] That defense is part of the wider originalist project. You have asked me to lay out why such a legislative veto project would be of interest to [think tank]. The answer is simple: a legislative veto is good governance, but it would also be a powerful tool in the arsenal of those who support limited government.

Today, federal control over American life flows out of the New Deal regulatory state, where administrative regulations are issued by administrators, officers, and multimember commissions. These administrators are not elected. Presidential oversight and control of the administrative apparatus is frequently weak and, often, only indirect, through the appointments and removal process. A legislative veto (actually a legislative disapproval order or knockout resolution issued by a single-house of Congress) is a means by which Congress can claw back overbroad discretion exercised by administrators. A legislative disapproval resolution knocks out the administrator’s regulation, at least until the President publicly vetoes the disapproval resolution.[2]

In the current system, administrators can take action without the President having to take public responsibility. A legislative disapproval resolution forces the President’s hand. The President can keep the proposed administrative regulation, but to do so he must take responsibility for it in a public way by vetoing the legislative disapproval resolution, or he must let the proposed administrative regulation fail. If the President takes public responsibility for his administrator’s order by vetoing the legislative disapproval resolution, the regulation is no longer the edict of a mere non-elected administrator. It is now the President’s regulation (too). In such circumstances, we now have finely tuned public, democratic accountability for the particular administrative regulation. The President cannot hide—i.e., public, democratic accountability—that’s good government.

Alternatively, if the President allows the legislative disapproval resolution to knockout the proposed regulation, we now have limited government through congressional oversight. If the administrator’s regulation fails, that’s limited government. To put it another way, a legislative veto raises the cost to the President when the administrative state attempts to issue a new regulation. If the cost of issuing an administrative regulation goes up, it is fair to suggest that the President, his subordinates, and Executive Branch agencies will issue fewer such regulations. Divided government—such as we have at this juncture—is more likely to produce such legislative disapproval resolutions. That is why this project is timely now; that is why this is the time to sell this project on Capitol Hill (even if it takes effect after the next election).

The legislative veto project is a win-win.[3] It is a win for democracy, accountability, transparency, and good governance norms. It is also a win for limited government. One should only be opposed to a revived legislative veto if one supports the New Deal project of insulating so-called administrative expertise from both traditional democratic oversight and modern good governance norms. Rely-on-the-experts types would oppose the legislative veto, but libertarians and conservatives, alike, should support it.

Seth

Seth Barrett Tillman, Reviving the Legislative Veto, The New Reform Club (May 18, 2017, 12:54 PM), http://tinyurl.com/knt43xg 




[1] See also Gary Lawson, Comment, Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 Tex. L. Rev. 1373 (2005); Seth Barrett Tillman, The Domain of Constitutional Delegations Under the Orders, Resolutions, and Votes Clause: A Reply to Professor Gary Lawson, 83 Tex. L. Rev. 1389 (2005); cf. Sanford Levinson, Comment, Assuring Continuity of Government, 4 Pierce L. Rev. 201 (2006), 4 U.N.H. L. Rev. 201 (2006).
[2] Just as two-thirds of both houses of Congress can override the President’s veto of a statute, two-thirds of both houses of Congress can also override the President’s veto of a (single-house) disapproval resolution. See U.S. Const. art. I, § 7, cl. 3, incorporating by reference U.S. Const. art. I, § 7, cl. 2.
[3] As a matter of first impression, my view is that single-house legislative disapproval orders, resolutions, and votes cannot bind the States. Federal statutes (if supported by an enumerated power) can bind the States because they are “supreme.” See U.S. Const. art. VI, cl. 2 (Supremacy Clause). But the binding force of the Supremacy Clause is limited to provisions of the Constitution, to treaties, and to federal statutes (passed with bicameralism and presentment). See id. Single-house resolutions are outside the scope of the Supremacy Clause. Cf. Roger Pilon, Into the Pre-emption Thicket: Wyeth v. Levine, 2009 Cato Sup. Ct. Rev. 85, 96 (“Given those constitutional principles, ‘[c]ongressional and agency musings . . . do not satisfy the Art. I, § 7 requirements for enactment of federal law and, therefore, do not pre-empt state law under the Supremacy Clause.’” (quoting Wyeth v. Levine, 555 U.S. 555, 587–88 (2009) (Thomas, J., concurring in the judgment))). 

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