Getting it backwards: the legislative veto

At Hot Air, Ed Morrissey writes about the efforts of the Republican minority in the Senate to defeat the Environmental Protection Agency’s efforts to gain via regulation what the environmental left couldn’t achieve via legislation: a cap-and-trade system and other onerous, economy killing “environmental” regulations. Their strategy involves the use of a little known procedure created in the 90s, called the Congressional Review Act. Ed quotes from a Politico article; see if you can spot the problem:

The law lets sponsors skip Senate filibusters, meaning Republicans don’t have to negotiate with Majority Leader Harry Reid (D-Nev.) for a floor vote or secure the tricky 60 votes typically needed to do anything in the Senate.

The House doesn’t have the same expedited procedures, but it’s assumed the GOP majority would have little trouble mustering the votes needed to pass disapproval resolutions.

A spate of contentious EPA rules that are soon to be finalized could be prime targets, including the national air quality standard for ozone, toxic emission limits for industrial boilers and a pending decision about whether to regulate coal ash as hazardous waste.

“We’re not going to let EPA regulate what they’ve been unable to legislate. And if I’m chairman, we’re going to have a very aggressive, proactive schedule,” Rep. Fred Upton (R-Mich.), the likely incoming chairman of the Energy and Commerce Committee, told POLITICO.

Note the highlighted portions. What’s being described is a legislative veto, a controversial procedure that was never envisioned in the Constitution by the Framers. Let’s back up a minute for some groundwork. Article 1, section 1 of the US Constitution reads:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The power to disapprove laws, the veto, is not part of the powers assigned to Congress: it is assigned to the President (oddly, via Article 1) and is considered an Executive power. Several court cases (such as INS v Chadha), have held that the legislative veto is unconstitutional because it violates separation of powers by encroaching on the Executive’s turf. At the same time, Congress, the lawmaking body, has ceded to the EPA, a part of the Executive Branch, the authority to write regulations (effectively laws; you can be punished for violating them) subject to Congress’ disapproval.

This is a role reversal that violates the Constitution both by ceding too much legislative power* to an unelected body (the EPA) and by blurring the separation of powers by claiming a veto** for the legislature. It upends the intent behind the Constitution and does violence to democratic governance by giving an unelected bureaucracy the upper hand over the elected representatives of the People.

I’m certainly not saying that all regulations are unconstitutional; it’s perfectly reasonable that, within the bounds of enabling legislation that does not cede too much congressional authority, an administrative agency should write regulations needed to implement Congress’ will. Nor am I saying Congress shouldn’t, at this time, take advantage of the Review Act to rein in an EPA that threatens to go on a regulatory rampage. But, if a Executive bureaucratic agency has claimed so much power that it has crossed into the realm of legislative usurpation and, because of that, the legislature feels it needs veto authority, then something constitutional is way out of whack.

This resort to the questionably constitutional legislative veto reveals a serious problem in our democracy: unelected, bureaucratic, and largely unaccountable agencies have claimed too much power from the elected representatives of the people. Once this mess with the EPA is sorted out, the next Congress (as if it doesn’t already have enough to do) should look at either amending the enabling legislation for agencies to limit their power or, if need be, eliminating altogether those that no longer serve a useful purpose. It is Congress’ job to make the laws, not to veto a bureaucrat’s diktats.

*The War Powers Act of 1973 has a similar constitutional problem.

**Here, too.

(Crossposted at Public Secrets)

Carlos says:

December 1, 2010 at 7:17 pm

With all the bowing to precedent, and with all the activist judges that believe and rule like the Constitution is theirs to change at will, we may never get back to what is constitutionally allowed, proscibed and demanded.

Frankly, even if “constitution”-loving Repubs were to take over both houses of Congress and the presidency, I can’t see them having enough backbone to go for it. There’s way too much pork and power involved for even them to try.

Ike says:

December 1, 2010 at 8:35 pm

Any attempt to delegate law-making authority – whether you call it “rule-making” or “regulation-writing” or picking daisies with your teeth – is a violation of the Constitution. If it is unconstitutional for the legislature to effectively veto an action by the executive – without any clear exclusion in the Constitution of such legislative act – it is plainly and certainly unconstitutional for any law passed by Congress to pretend to delegate law-making authority to the Executive Branch. Consequence? Without exception, all rules, regulations, standards, writings by any executive agency claiming to have the force and effect of laws passed by Congress are unconstitutional. Any chance that the agencies are going to be trimmed back in this exercise of legislative authority? Two chances: extremely slim and none.

LIVE AT FIVE – 12.02.10 : The Other McCain says:

December 2, 2010 at 5:03 am

[…] of Mischief” BLOGS & STUFFMoe Lane: “Compromise”? On Raising Taxes?Sister Toldjah: Getting It Backwards – The Legislative VetoMarginal Revolution: A Simple Theory Of WikiLeaksVerum Serum: Ted Strickland’s Advice To Dems […]

J in StL says:

December 2, 2010 at 7:51 am

Solution is simple but difficult.

Simple: Every proposed regulation that carries the weight of law has to be approved by congress. EPA wants to add CO2 to dangerous emission list? It has to be voted on by people who are accountable to the voters. In addition to the usual public hearing period (which should apply to ALL proposed laws, but that’s a different story) the proposed rule has to pass both houses of Congress. The benefit constitutionally is that ANY law/regulation/whatever that is imposed on the People has been approved by both Legislature and Executive.

Difficult: The cowards in Congress often throw regulatory powers over the fence to the Executive so they can say they voted for something but don’t want to take responsibility for the results. And the Executive, and I mean any of them, is always all too willing to accumulate more power.

Roland says:

December 2, 2010 at 8:37 am

The only rational argument that regulators writing regulations (laws) can be Constitutional has to be based on the existence of the “legislative veto.”

Since the Courts are okay with the idea of regulators writing laws, it seems we should be fighting to defend the legislative veto.

In this case two wrongs might not make a right, but it certainly comes a whole lot closer to right than just the one really ugly wrong.

Wayne says:

December 2, 2010 at 9:49 am

The other way that laws can be vetoed is by jury nullification. However, since many of the laws created by regulatory bodies never see the inside of a court room, that can’t happen either. The FTC holds it’s on courts, and most people don’t fight regulations.

On top of that most people don’t even know about jury nullification. When a jury sets a legal precedent to let off someone even when the evidence convicts them it weakens the law, if it occurs often enough it becomes an unenforceable law, and might as well just not exist. In this manor the common man was to be a check and balance on the legislative branch. There’s a jury responsibility they won’t explain to you at the courthouse!