LEGISLATIVE VETO AFTER CHADHA

THURSDAY, NOVEMBER 10, 1983

HOUSE OF REPRESENTATIVES,

COMMITTEE ON RULES,
Washington, D.C.

The committee met, pursuant to call, at 10 a.m., in room H-313, the Capitol, Hon. Joe Moakley (member of the committee) presiding.

Present: Representatives Pepper, Long, Moakley, Derrick, and Beilenson.

Mr. MOAKLEY. The Committee on Rules will now come to order. Today we will be hearing from the Honorable Elliott Levitas and the Honorable Mo Udall. We will have a panel of Dean Joseph Cooper of Rice University; Dr. Louis Fisher, Congressional Research Service; Dr. Charles O. Jones, University of Virginia; Dr. Morris Ogul, chairman, department of political science, University of Pittsburgh; and Dr. Norman Ornstein, American Enterprise Institute for Public Policy Research.

The committee is privileged to have with us this morning as the leadoff witness the Honorable Mo Udall.

STATEMENT OF HON. MORRIS K. UDALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA

Mr. UDALL. Thank you very much, Mr. Chairman. Reading your list of witnesses impelled me to say you will have in this one room more academic clout at any time since Gillis Long dined alone.

Mr. Chairman, I think this is an excellent move on the part of the Rules Committee. I am just delighted you are going to proceed, and I will do everything I can to help come to the right recommendations as we deal with one of the most serious matters before the country and the Congress.

I would emphasize the views today are mine and not necessary the views of other Interior Committee members.

I am concerned about the implications of the Chadha decision in terms of both existing and future legislation. Over the years, the legislative veto has proven to be a convenient and effective tool.

Our committee, like many other committees of the House, has relied upon the legislative veto as a check against administration action and also as a means of securing broader support for legislative initiatives.

While legal scholars are still debating the scope of the recent Supreme Court decision in Immigration and Naturalization Service v. Chadha, it is clear that a constitutional cloud now hangs over all legislative vetoes.

The loss, or potential loss, of the legislative veto authority poses a great problem for this House and the other body. It casts a pall over as many as 200 statutes and raises serious questions about the future of the relationship between the legislative and executive branches.

For that reason, I think it is important that we seek further clarification of the Chadha decision and its reach, as well as two lower court decisions recently upheld by the Court. I should also note that a suit is presently pending in the U.S. District Court for the District of Columbia challenging former Secretary Watt's decision to proceed with the sale of Government leases in the Fort Union area of North Dakota and Montana-despite a House Interior Committee vote barring such immediate action.

I will talk more about this case later in my testimony, but this court action, and others that will follow, will help to better define what is, and what is not, constitutionally permissible.

It is my hope, and it is only a hope, that the Supreme Court will act quickly in resolving pending legal challenges and giving clearer definition to the Chadha decision.

I am not suggesting, however, that we can wait indefinitely for further judicial clarification. It could be several years before all the constitutional questions are resolved. I think it is incumbent upon Congress to do its part in resolving this constitutional quandary, and to do so in a way that is both responsible and timely.

In that regard, I want to commend this committee and you, Mr. Chairman, for your decision to hold hearings on this subject. Let me make a few general observations.

First, I think we should avoid broadbrushed or so-called general solutions. The use of the legislative veto, has evolved over several decades.

In so doing, it has taken on several forms, including a one-House veto, a two-House veto and a committee veto. Various refinements also have been made, including the report and wait approach that I will talk about briefly.

In each instance, the veto power has been carefully tailored to meet various objections and satisfy various concerns. In areas involving highly technical matters or routine appointments, the veto often has been exercised by committee.

In other instances, where this House or the other body has expressed a particularly strong interest in an action, a one-House veto has been set up. In areas less sensitive or important, a twoHouse veto requirement has been established.

Experience suggests that for legislative vetoes, like shoes, one size does not fit all. The same principle will apply, I think, when we seek to replace unconstitutional legislative vetoes with constitutionally acceptable substitutes.

Second, in whatever approach or approaches we choose, I hope we will rely in large part upon the expertise of the committee or committees responsible for the drafting of the original legislative veto authority.

Again, I think legislative veto questions involve highly complex considerations best handled by those most acquainted with the action that may be subject to veto. As long as the constitutional guidelines are clear, they can best fashion an appropriate remedy.

That is not to say that this committee should not play a highly significant role in coordinating House action in this area; I think it should. It can best start by determining the scope of the problem and evaluating the strengths and weaknesses of the various alternatives.

At some point, it may become necessary for the House to act in concert on the legislative veto problem. There are several possible approaches.

One possible course would be for this committee with the assistance of other House committees to compile a list of all statutes containing legislative vetoes that may be constitutionally infirm, along with a catalog of possible options.

Upon completion of that list, this committee could direct the other committees of the House to recommend remedial changes in some or all of the statutes within their jurisdiction. In turn, those committee recommendations could be drawn together by this committee and presented to the floor as a package under a closed or modified closed rule.

A similar process is already used in this House for budget reconciliation.

While a reconciliation approach may someday be needed, at the moment it is premature. For the moment, I think we should seek further judicial clarification, either through test cases or through the normal judicial appeals process.

Now, before I close, I want to discuss briefly one avenue that the Committee on Interior and Insular Affairs has used that has notat least so far-been held unconstitutional. It represents a type of report and wait approach.

Under the Federal Land Policy and Management Act-or FLPMA-the House Interior and Insular Affairs Committee and the Senate Energy and Natural Resources Committee are empowered to direct the Secretary of the Interior to withdraw public lands from the application of the mineral leasing laws when an emergency situation is determined to exist.

The Secretary is required to make the withdrawal immediately for a period not to exceed 3 years. Before the withdrawal can be revoked, he must submit a comprehensive report to the committee. Then he may proceed if he determines that the withdrawal is no longer necessary.

The point of this process is that it allows an administrative action to be temporarily forestalled while further information is developed and it gives the Congress some time to take such further legislative action as it may deem appropriate.

So far, our committee has used this authority on two occasions. Both times the Court has been urged to find this an unconstitutional congressional veto, but in neither instance has the Court so ruled.

The last one was Fort Union, when Secretary Watt announced the sale of some coal leases in that area. We moved on a stop-andwait resolution. I think within a few months we will be back to better know how to proceed.

Of course, the case for the validity of our FLPMA authority is buttressed by the special constitutional prerogative of Congress over public lands.

I mention this example not because it will answer all of the problems of the legislative veto issue, but because it indicates that the courts may be looking for a reasonable exercise of this important check on Executive power.

I mention it to further make my point that Congress should not rely upon a single, generic solution to the legislative veto problem. I repeat, I think we should not try to find one single boilerplate solution. I think we should find three or four different approaches depending on the subject matter in the statute.

Thank you for the opportunity to attend this morning.

Mr. MOAKLEY. Actually, I agree with you on the generic situation. It is my feeling that the Supreme Court that so ably ducked ruling on the legislative veto almost had no choice because of the ground swell for generic legislative veto which would give us some kind of nullification process over every piece of legislation.

I think then the Supreme Court felt we were going too far and they had to send a signal. On that pay raise matter in 1978, they ducked it.

I think they just felt we really were overzealous in our quest to have oversight over everything that happened after we passed it on to the executive branch.

Mr. UDALL. We have a rule in pipelines. You talk about congressional veto. This is a committee veto.

That is carrying it about as far as you can. I hate to bring up pipelines in the light of our recent experience up here. But if a pipeline has worked out all of its problems, they can simply file with the committee their proposed action on it. If we don't do anything in 60 days, it takes effect right away.

Mr. MOAKLEY. That is in the committee.

Mr. UDALL. Yes. I have always thought it is the weakest of all of these kinds of vetos, simply to say one committee of one House by a one-vote margin can undo, slow down, or change previous action by the Congress.

Mr. MOAKLEY. I am sure there are many of those accommodations, like in the Appropriations Committee. But as long as they never reach the court level, they are honored by both parties. As long as a comity exists, I don't think we run into any trouble. Congressman Long?

Mr. LONG. Thank you, Mr. Chairman.

I had a little bit of a sense of relief with the Chadha decision, to tell you the truth about it, for a little different reason than what you and Mr. Moakley are discussing, but I think it all fits in.

We are very concerned about this institution. I am concerned about its ability to operate. It appeared to me that with the application of an extreme type of legislative veto-as an example, your illustration of the pipeline-we were turning ours from an institution that was supposed to be a broad policymaking institution with respect to the problems of the country and its relationship to the world, into merely a city council that overlooks the running of the store every day.

All of us know that when that occurs, those things that start itching get scratched and we don't consider those things that require deep thought and major action.

I do think that we need to come back toward some sort of balance, because I think the veto is an effective tool that can be used if there is an abuse on the other side of something diametrically opposed to what was intended by the statute itself.

But I worry that our concern about an error on that side being translated into a matter of policy of the Government leaves us vulnerable, going to the extreme where I really think it does great harm to this institution.

You have been, pretty well all of your career here, an institutionally oriented man who tries to protect the prerogatives of the legislative branch-tries to make changes in it so that it can more effectively meet the problems of the day.

Some of us have been very frustrated in that attempt, as you know, and have not succeeded nearly to the degree we would like. Mr. UDALL. The whole history of the Congress and the struggle between the executive branch and the Congress has been the history of the pendulum. I used to tell my students, Woodrow Wilson wrote a book in the 1880's called, "Congressional Government." His complaint was that the Executive was powerless, that the powerful committee chairmen in the Congress were riding roughshod over public policy. Then the pendulum went back the other way in World War II and the Depression, where if Roosevelt wanted a bill, "We will give it to him this afternoon."

It was not until we came out of World War II that people began to look around and see that we had gone too far in favor of the Executive power and it ought to be curbed a little bit.

And a lot of the reforms you and I have worked on have headed in that direction.

Mr. LONG. Thank you.

Mr. MOAKLEY. Going along with the subject that Gil brought up, that we have become a city council, I think what the legislative veto does is turn the process on its head. It gives both branches, the regulatory agencies and the Congress, the power to deal with things that they have the least expertise.

They make us regulators and make the regulators lawmakers. I think people forget what we set the regulatory agencies up for.

We just made policies up here, and we let them dot the "i's" and cross the "t's," and put them into being. But, of course, I think it is Congress fault. I think Congress is not blameless in this matter because we make our legislation so wide and varied in order that we can get it out of committee and then we give it to a panel downtown to determine what we meant by it. We then criticize them when they come up with the regulation that we felt that that is not what we meant, but we really don't know ourselves.

So I think what this is going to do is make Congress write laws more specific and delegate in a much narrower sense.

Mr. LONG. May I add to that?

Of course, all of us recognize the expertise that Dick Bolling had in this field. Last summer, Dick and I talked about this whole problem while we were on vacation. Dick was making the point that if we look at the quality of legislation, in just the 9 years I have been on the Rules Committee and not the time period he had been on, that the quality of the writing of legislation had continually dete