DRAFT DOJ REPORT ON S.J.RES. 135 PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES FOR THE ESTABLISHMENT OF A LEGISLATIVE VETO.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP95B00895R000200070002-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 13
• Document Creation Date: December 21, 2016
• Document Release Date: December 1, 2008
• Sequence Number: 2
• Publication Date: May 9, 1984
• Content Type: MEMO

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- //Oll Dui
EXECU I IVE OFFICE OF THE PRESIDEN i
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.G. 20503
May 9, 1984
LEGISLATIVE REFERRAL MEMORANDUM
TO: LEGISLATIVE LIAISON OFFICER
lE ISIATIVE LIAISON
0200_Z
SUBJECT: Draft DOJ report on S.J.Res. 135, "proposing an amendment
to the Constitution of the United States for the establish-
ment of a legislative veto."
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its .relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than
COB Tuesday, May 15, 1984
Direct your questions to Branden Blum (395-3802), the legislative
attorney in this office.
James C. Murr for
Assistant Director f>; 'r
Legislative Reference
cc: B. Bedell
M. Horowitz
F. Fielding
E. Strait
J. Hill
M. Uhlmann
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-U.N. Department Justice
Office of Legislative Affairs
Honorable Strom Thurmond
Chairman, Committee on the
Judiciary
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
This letter is in response to your request for the views
of the Department of Justice on S.J. Res. 135, "proposing an
amendment to the Constitution of the United States for the
establishment of a legislative veto." The Department of
Justice believes that the constitutional amendment proposed
by this resolution would substantially eliminate the carefully
drawn checks on the exercise of legislative power that were
included in the basic constitutional framework of our Nation,
and would drastically and unnecessarily alter the existing
relationships between the three coordinate Branches of the
federal government. Consequently, the Department of Justice
recommends against adoption of S.J. Res. 135 and transmittal
of it to the states for ratification. =
The language of the constitutional amendment proposed
by S.J. Res. 135 reads as follows:
Section 1. Executive action under
legislatively delegated authority may be
subject to the approval of one or both
Houses of. Congress, without presentment
to the President, if the legislation that
authorizes the executive action so provides.
The clear intent of the proposed amendment is to abrogate the
Supreme Court's decision in INS v. Chadha, 103 S. Ct. 2764
(1983), holding "legislative veto" devices to be unconsti-
tutional. In Chadha, the Court made clear that under the
"carefully designed limits" imposed by the Framers on the
powers of the coordinate Branches, Congress must exercise
its legislative power in strict conformity with the require-
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ments of Art. I, 55 1 and 7 of the Constitution: passage
by a majority of both Houses and presentment to the President
for approval or veto. 103 S. Ct. at 2786-87. S.J. Res. 135
would nullify the Chadha decision by amending the Constitution
to allow Congress to take action that alters the authority
of the Executive to exercise statutorily delegated responsi-
bilities by vote of either one or both Houses, without
presentment to the President. 1/
We believe that the proposed constitutional amendment
would be a wholly unwarranted and unwise alteration of the
"enduring" and "carefully designed limits" imposed by the
Framers on the powers of the coordinate Branches, INS v.
Chadha, 103 S. Ct. at 2787. As the Court emphasized in
Chadha, those limits were no accident of history. The
berms surrounding adoption of the Constitution leave no
doubt that the procedure established in that document for
the exercise of legislative power was not a mere formality
or unintended limitation on legislative authority. To the
contrary, the constitutional requirements that power be
divided among the Legislative, Executive, and Judicial
Branches, and that all measures having the effect of a law
must receive the concurrence of both Houses and must be
presented to the President for approval or disapproval were
intended to be fundamental checks against oppressive,
improvident, or precipitate action by the Legislative
Branch and encroachment by that Branch upon the Executive.
The legislative process devised by the Framers in
Article I of the Constitution reflects three underlying
structural components: separation of powers, bicameralism,
and presentment. As discussed below, each of these components
is vitally important to the functioning of our constitutional
system.
Separation of Powers
The powers of the national government were deliberately
divided by the Framers among three coordinate Branches,
1/ The proposed amendment would authorize legislative vetoes
by action of one or both Houses, but would not authorize
approval or disapproval of Executive actions by one or more
congressional committees. Accordingly, we would not read
the proposed amendment to alter the effect of the Chadha
decision insofar as committee approval, disapproval, or
waiver mechanisms are concerned.
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because they considered the concentration of governmental
power to be the greatest threat to individual liberty. "The
Framers regarded the checks and balances that they had built
into the tripartite Federal Government as a self-executing
safeguard against the encroachment or aggrandizement of
one branch at the expense of the other." Buckley v. Valeo,
424 U.S. 1, 122 (1976). The principle of separation of
powers is based on the premise that if one Branch of govern-
ment could, on its own initiative, merge legislative, executive,
or judicial powers, it could easily become dominant and
tyrannical. In such circumstances, it would not be subject
to the checks on governmental powers that the Framers considered
a necessary protection of freedom. The three Branches of the
Government are not "watertight compartments" acting in isolation
of each other. Springer v. Government of the Philippine
Islands, 277 U.S. 189, 211 (1928) (Holmes, J., dissenting);
see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635
1952 (Jackson, J., concurring). Rather, the Framers
conceived of national government as involving the dynamic
interaction between the three Branches, with each "checking"
the others and "balancing" the powers conferred on the others
with its own assertions of power.
The separation of powers principle, intended to be a
"vital check against tyranny," 2/ and "essential to the
preservation of liberty," 3/ is a bedrock principle of our
constitutional system, and should not be disregarded. At
the core of the principle is the precept that no single
Branch can usurp or arrogate to itself the essential functions
of other Branches. Since the brilliant men who created our
Constitution believed that the concentration of power in
any one individual or group was the very definition of
tyranny, we would regard any alteration in this separation
of powers, mandated by the Constitution, to be a very
serious departure from the principles that have guaranteed
our liberties for nearly two hundred years.
2/ Buckley v. Valeo, 424 U.S. 1, 121 (1976); see, e.g.,
The Federalist No. 47 (J. Madison), at 324.
3/ The Federalist No. 51 (J. Madison), at 348; see Youngstown
Sheet & Tube Co. v. Sawyer, 348 U.S. 579, 635 (1952) (Jackson, J.,
concurring).
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Bicameralism
Despite the careful separation of powers between the
three Branches, the Framers recognized that the Legislature,
with the authority to make all laws and to appropriate all
money, was the Branch with the greatest potential powers.
The Framers were acutely aware that "[i]n republican government
the legislative authority, necessarily, predominates." The
Federalist No. 51 (J. Madison), at 350. While there was
general agreement that the Legislative Branch should set
policy, there was also agreement that an internal check was
necessary on the power of the Legislature. One of the
checks the Framers fashioned against this potential was to
require that legislative action receive the approval of
both Houses of Congress. James Wilson, later a Justice of
the 'Supreme Court, observed during the debates of the
Constitutional Convention:
Despotism comes on mankind in different
shapes. Sometimes in an Executive, sometimes
in a military, one. Is there no danger of a
Legislative despotism? Theory and practice
proclaim it. If the Legislative authority
be not restrained, there can be neither
liberty nor stability; and it can only be
restrained by dividing it within itself,
into distinct and independent branches. In
a single house there is no check, but the
inadequate one, of the virtue & good sense
of those who compose it.
1 M. Farrand, The Records of the Federal Convention of 1787
254 (1966) (emphasis added). Madison, expounding upon
the necessity of the Senate, noted "the propensity of all
single and numerous assemblies, to yield to the impulse of
sudden and violent passions, and to be seduced by factious
leaders, into intemperate and pernicious resolutions." The
Federalist No. 62 (J. Madison), at 418. This__propensity
would be checked, he maintained, by providing a greater
opportunity for due deliberation in the course of considera-
tion by the two differently constituted Houses. Id. at 417-
19. See also The Federalist No. 63 (J. Madison), at 426-27.
The dangers posed by a Congress comprised of a single House
were thus clearly apparent to the Framers. Alexander
Hamilton warned that, were the Constitution to provide for
only one legislative organ:
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we shall finally accumulate, in a single
body, all the most important prerogatives
of sovereignty, and thus entail upon our
posterity one of the most execrable forms
of government that human infatuation ever
contrived. Thus we should create in reality
that very tyranny which the adversaries of
the new Constitution either are, or affect
to be, solicitous to avert.
The Federalist No. 22 (A. Hamilton), at 135, quoted in INS v.
Chadha, supra, 103 S. Ct. at 2783.
Presentment
Yet another check fashioned by the Framers against the
possibility of encroachment by the Legislative Branch upon
the independence of the Executive was the requirement of
Art. I, S 7, that all legislative measures be presented to
the President for approval or disapproval. The Presentment
Clauses were intended by the Framers as a "self-executing
safeguard" against abuse of legislative power, 4/ and as a
"guard[) against ill-considered and unwise legislation." 5/
As the Court pointed out in Chadha, presentment to the
President and the presidential veto were considered so
imperative that the draftsmen took special pains to assure
that these requirements could not be circumvented. See
2 M. Farrand, supra, at 301-02, discussed in INS v. Chadha,
103 S. Ct. at 2782.
There was virtual unanimity at the Constitutional
Convention that the President should participate in the
legislative process by exercising a veto over proposed
legislation. The purpose was threefold. First, presentment
to the President would check, as Chief Justice Burger stated
in INS v. Chadha, "whatever propensity a particular Congress
might have to enact oppressive, improvident, or ill-considered
4/ Buckley v. Valeo, 424 U.S. 1, 122 (1976). See The Federalist
No. 51, supra, at 350; see also The Federalist No. 73 (A. Hamilton)
at 497; The Federalist No. 66 (A. Hamilton), at 445-46; 1 M. Farrand,
supra, at 97-106; id. at 139-40 (remarks of George Mason).
5/ The Pocket Veto Case, 279 U.S. 655, 678 (1929); see also id.
at 677-78 n.4; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 587 (1952); United States v. Rumely, 345 U.S. 41, 46 (1953).
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measures." 6/ Second, it would ensure that the legislative
process included a national perspective. As the Supreme
Court aptly noted in Myers v. United States, 272 U.S. 52
(1926):
The President is a representative of the
people just as the members of the Senate
and of the House are, and it may be, at
some times, on some subjects, that the
President elected by all the people is
rather more representative of them all
than are the members of either body of
the Legislature whose constituencies are
local and not countrywide . . .
272 U.S. at 123, quoted in INS v. Chadha, supra, 103 S. Ct.
at 2782-83. 7/ Third, the presentment requirement is
necessary to enable the President to defend the powers of
the Executive from legislative encroachments. Without the
veto power, as Alexander Hamilton observed, the President
"would be absolutely unable to defend himself against the
depredations of the [Legislative Branch.] He might gradually
be stripped of his authorities by successive resolutions,
or annihilated by a single vote." The Federalist No. 73
(A. Hamilton), at 494.
The protections of bicameralism and presentment to the
President, derived from the underlying principle of separa-
tion of powers, were thus no accident of history or lightly-
considered procedural requirements, but rather a "finely
wrought and exhaustively considered procedure" intended to
serve what the Framers believed to be essential constitutional
functions. INS v. Chadha, 103 S. Ct. at 2784. While compliance
with this procedure may result in some inefficiencies or -
inconveniences, see id. at 2781, those inefficiencies and
6j INS v. Chadha, 103 S. Ct. at 2782; The Federalist No.'73
(A. Hamilton), at 495-96; see generally 1. J. Story, Commentaries
on the Constitution of the United States, SS 884-893; at 6L4-21
(3d ed. 1858).
7/ See also INS v. Chadha, 103 S. Ct. at 2784; II Elliot's
Debates on the Federal Constitution 448 (1836).
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inconveniences are a small price to pay for maintaining an
appropriate balance between the coordinate Branches of the
Government. The Court's observations in Chadha are particularly
relevant:
The choices we discern as having been
made in the Constitutional Convention impose
burdens on governmental processes that often
seem clumsy, inefficient, even unworkable,
but those hard choices were consciously
made by men who had lived under a form of
government that permitted arbitrary govern-
mental acts to go unchecked. There is no
support in the Constitution or decisions of
this Court for the proposition that the
cumbersomeness and delays often encountered
in complying with explicit Constitutional
standards may be avoided, either by the
Congress or by the President. See Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
72 S. Ct. 863, 96 L.Ed. 1153 (1952). With
all the obvious flaws of delay, untidiness,
and potential for abuse, we have not yet
found a better way to preserve freedom than
by making the exercise of power subject to
the carefully crafted restraints spelled
out in the Constitution.
The constitutional amendment proposed by S.J. Res. 135
would substantially eliminate these carefully drawn checks on
the exercise of legislative power and would drastically --
and unnecessarily -- alter the existing relationships between
the Executive and Legislative Branches. We believe strongly
that any fundamental alteration of these limits would amount
to seriously ill-advised tampering with the carefully constructed
and tested constitutional scheme.
Even aside from our grave concerns about the wisdom of
making fundamental changes in our constitutional structure
governing the lawmaking and lawexecuting processes, we fear
that authorization of one- and two-House legislative vetoes
would have a substantial adverse impact on both the Legislative
and Executive Branches and would in fact impede, rather than
facilitate, the making and execution of laws. Granting one
or both Houses of Congress the authority to veto Executive
Branch decisions would inevitably introduce additional -- and
often excessive -- delay into the decisionmaking process,
would place a massive new burden on already scarce congressional
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and Executive Branch resources and would decrease the impact
of public participation and political accountability in the
decisionmaking process. In addition, in those cases in which
judicial review is available for particular Executive decisions,
a provision for congressional approval or disapproval would
introduce considerable uncertainty into the carefully structured
relationship between administrative decisionmaking and judicial
review, because the courts would be faced not only with
administrative judgments, based on statutory criteria, but
political judgments of Congress -- judgments courts have been
generally reluctant to review. See, e.g., Perkins v. Lukens
Steel Co., 310 U.S. 113, 130 (1940); Panama Canal Co. v.
Grace Lines, 356 U.S. 309, 318-19 (1958); Kansas City Power
& Light Co. v. McKay, 225 F.2d 924, 930-31 (D.C. Cir. 1955),
cert. denied 350 U.S. 884 (1955).
We see little merit to the argument that has generally
been advanced in support of legislative veto authority --
that such devices are necessary to maintain a proper balance
between the Executive and Congress in the face of the vast
delegation of policymaking power that has accompanied the
phenomenon of modern regulation. Even if the premise were
correct that Congress cannot, through legislation, deal
with the many details of modern regulatory schemes, we
see no reason to believe that Congress's inability to
master detail through the formal legislative process would
disappear if Congress were faced with the task of reviewing
agency rules and the thousands of other Executive Branch
decisions. The review by Congress of detailed rules, policies,
and decisions made on a daily basis by the Executive Branch
may well in practice be avoided for the same reasons that
Congress tends to avoid enactment of detailed legislation,
resulting in Congress's giving piecemeal attention to particu-
larly sensitive or visible decisions, an approach that would
be destructive of the stability and fairness of the laws and
would be vulnerable to special interest political pressure. _
This danger has been apparent since the earliest days
of the Republic. In a letter in August 1787 regarding the
proposed structure of the national government, Thomas Jefferson
described the problem in these terms:
Nothing is so embarrassing nor so mischievous,
in a great assembly, as the details of execution.
The smallest trifle of that kind occupies as
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long as the most important act of legislation
and takes the place of everything else. Let
any man recollect, or look over, the files of
Congress; he will observe the most important
propositions hanging over, from week to week,
and month to month, till the occasions have past
them, and the thing never done. I have ever
viewed the executive details as the greatest
cause of evil to us, because they in fact place
us as if we had no federal head, by diverting
the attention of that head from great to small
subjects . . . . "
6 T. Jefferson, The Writings of Thomas Jefferson 228 (A. Bergh,
ed. 1903) (letter to E. Carrington, Aug. 4, 1787).
Furthermore, S.J. Res. 135 would authorize legislation
giving one or both Houses the power to veto actions taken by
the President pursuant to statutory power which deeply impli-
cates the President's conduct of the foreign policy of our
Nation. Such power would have the predictable impact of
preventing the President from implementing a coherent foreign
policy that could be depended upon for its consistency, by
friend and foe alike.
Moreover, there is considerable and compelling evidence
that legislative-vetoes-simply have-not served the purposes
for which they were intended, and have, in fact, been counter-
productive. 8/ Rather than fostering more participation in
the policymaking process by members of Congress, legislative
vetoes have provided Congress with a convenient excuse for
excessive, overly-broad delegations of authority, have
fostered nonaccountable decisionmaking and evasion of poli-
tically controversial decisions by the Legislative Branch,
and have tended to undermine respect for the rule of law in
that Congress may appear to use its authority in an arbitrary
and capricious manner.
The fundamental problem that has given impetus to legis-
lative veto provisions in the past is not that the allocation
of power under our Constitution is skewed in favor of the
8/ See, e.g., American Bar Association Commission on Law and
The Economy, "Federal Regulation: Roads to Reform" (1979);
Antonin Scalia, "The Legislative Veto: A False Remedy for
System Overload" Regulation (November/December 1979).
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Executive, but rather that the statutory standards pursuant
to which the Executive Branch -- particularly the regulatory
agencies -- operate are in many cases not well-defined, are
too broad, and provide only limited guidance to the Executive
in its execution and enforcement of the laws. In many cases
Congress has asked the Executive Branch to make basic, vitally
important policy choices that, at least in theory,-are more
properly for the legislature to make. This underlying problem
would not in reality be addressed by giving Congress a "second
shot" at reviewing Executive actions through a legislative veto
process; the problem can only be fully addressed by Congress's
giving the Executive Branch clear and precise guidance as to
how, and to what ends, discretion should be exercised.
Finally, we see no compelling need for use of legislative
veto devices to oversee or restrain Executive Branch decisions.
Through Executive Order 12291, the President has been able to
maintain oversight over the process of rulemaking by the non-
independent Executive Branch agencies, both to ensure that the
agencies scrutinize carefully the legal and factual basis for
major rules in order that those rules maximize social benefits
and minimize costs to the extent permitted by law, and to ensure
a consistent, well-reasoned, Administration-wide approach to
policies for which the Executive Branch is responsible. In
addition, there are many effective and fully constitutional
oversight and law-making mechanisms whereby Congress can
carry out its constitutional functions. Particularly in the
domestic area, Congress can limit its need to review the
Executive's execution-of the law by placing more specific and
precise limits on the authority, for example, of agencies to
issue rules. Congress,_with_participation by the President,
can override unwise, inappropriate, or excessively burdensome
rules or decisions made pursuant to statutorily delegated
authority, by enactment of legislation. The use of expediting
mechanisms for consideration of such legislation could facilitate
speedy review, and would not have to be tied to the legislative
veto devices with which they have so often been associated.
Congress can also adopt_sunset_provisions that require agencies
to return to Congress periodicially for reenactment of generic
authority. Congress can hold oversight hearings, at which ,
members of Congress may demand explanations for Executive
Branch decisions. Congress can adopt resolutions expressing
views, which may not be legally binding upon the Executive
Branch, but which may be useful from a policy standpoint in
the Executive Branch's implementation of the law. Ultimately,
Congress can exercise the power of the purse, through the
appropriations process, to shape Executive action, although
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that process should be viewed as one of last resort because
it often bypasses or fails to make maximum use of Congress's
full expertise on a particular issue and it overburdens an
already complex appropriations process.
The Administration is deeply interested in addressing
concerns about the sharing of power within the federal govern-
ment, and the need to improve or reform the process by which
laws are made and executed -- concerns that are not necessarily
new, but that have reemerged in the wake of the Chadha decision.
However, we do not believe that a constitutional amendment to
allow for legislative vetoes would either address those concerns
adequately or would avoid a real danger of paralysis in the
decisionmaking process in both the domestic and foreign affairs
arenas. Even more importantly, we do not believe the Chadha
decision should be the occasion for a fundamental alteration
of the constitutionally mandated legislative process.
Accordingly, the Department of Justice opposes adoption
of S.J. Res. 135 and transmittal of it to the states for
ratification.
The Office of Management and Budget has advised this Depart-
ment that there is no objection to the submission of this report
to Congress and that it is in accord with the program of the
Administration.
Sincerely,
ROBERT A. McCONNELL
Assistant Attorney General
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