The chairman sent me a note and asked me if the professor was from Harvard Law School. He is not from Harvard Law School. He is from Harvard. The professor has written a book, and a section on legislative veto should be made available to the committee.

Mr. MAASS. The book is available for purchase, published by Basic Books, 1983.

Mr. MOAKLEY. I have one. You gave me yours.

The CHAIRMAN. Professor, if you have no objection, we will incorporate, following your testimony, that chapter of your book.

Mr. MOAKLEY. I will make the chapter available. Thank you very much.

Your testimony was very interesting.

Mr. DERRICK. Thank you very much.

The CHAIRMAN. Professor, I would like to ask you a question or two.

There are some of us at least who strongly agree with the position taken by Mr. Justice White in the Chadha case. We think the Court rather precipitously acted in a matter, as he said, it struck down more acts of Congress in one decision than has been invalidated in all of the history of the Court and all of the history of the country.

I have a feeling that the Court had a general sense that the legislative veto was being abused, was subject to abuse, and they should just strike it down.

Now, you engage in serious matters when you do that. For example, what is the status of the War Powers Act? In view of the sweeping nature of that decision, is the War Powers Act will in effect? Does it mean anything or not? It is a tremendously important matter to our country.

I feel that as the Court has done in many other cases, the Court will in time modify that decision. As new situations arise, as new deeds develop perhaps, generally new circumstances appear. Therefore, I do not think it is wrong for the Congress to enact legislation that contains continuing use of a legislative veto or appropriate alternative to the veto in instances where, first, the Congress feels conscientiously it can only dutifully exercise its power by the exercise of the veto.

And, second, we make some distinctions, for example, we put in the bill that this bill is not separable. They use the separability clause, as you know, very effectively in that decision.

If Congress had put in the bill, and we have exercised the legislative veto after giving great consideration to the matter, and because we feel it is necessary to the exercise of our legislative function and, furthermore, we do not include consciously a severability clause in this legislation. That would present a different technical situation from what was presented in the Chadha case. Let it go up through the mill. Let the court of appeals look at it and let the Supreme Court consider it. They might want to change or moderate their previous decision. They may limit somewhat the broad language they used. Two of the Justices thought they might well do that.

I would appreciate it if you think that is a wrongful course on the part of Congress to approach the matter in that way.

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Mr. MAASS. In a sense, my proposal that Congress use a special form of the legislative veto, the waiting period tied to the appropriation process, is just such a challenge to the Court. I think you would get back before the Court and the Court would have to decide whether or not Congress can use the legislative veto when it derived from its internal rules governing the appropriation process. I am suggesting that you try this.

The CHAIRMAN. It was suggested to me when you said the Congress might-either House express an opinion about a rule of some Executive action and then let the Appropriations Committee act upon that resolution even if it were one.

Mr. MAASS. That is what I am suggesting and it is, in a sense, a challenge to the Court. I am sure it would get back before the Court in some manner. And I would hope, like you, that the Court would be willing to take another long and sober look at the subject in the light of the inpact of its previous opinion.

The CHAIRMAN. We are tremendously indebted to you for your consideration.

Mr. MOAKLEY. I believe the Supreme Court never wanted to rule on the legislative veto. It was only because that they saw what was happening in Congress with the generic legislative vote. I think it really turned the balance of power around and, in my opinion, that is what precipitated the Supreme Court in acting the way it did. Mr. MAASS. They are not supposed to act on their estimates of future conditions.

Mr. MOAKLEY. They see a legislative veto in the House with 260 Members on it. I think it is time they sounded that warning bell before we get ourselves in more severe trouble.

Mr. MAASS. Certain critics of the veto, and I think you have been among them in this regard, have argued that Congress could fall into a habit of opting for future control by means of the veto in place of present control by means of legislation. Presumably that could have happened. But if you examine the record, the facts are clear that it did not happen. And I do not think there are reasons to believe that Congress was likely to use the veto to avoid its duty. Mr. MOAKLEY. It would be transferring the duties to the regulatory agencies, and we would both be doing the work we are least able to do. We would have to put people on our staff reading every report in the Federal Register. By our nonaction we would be approving all these things coming through the regulatory agencies, and that would cause a great deal of problems.

Mr. MAASS. As I look down the Halls of Congress, I see that there are already more than enough people on your staffs to do that. Quite apart from that, you need focus on only the important actions of the regulatory agencies.

Mr. MOAKLEY. Congressman Derrick believes, too, there are enough people around.

Mr. DERRICK. I also need one more.

The CHAIRMAN. May I observe also, professor, it seemed to me the Court went too far in limiting the capacity of the Congress to function. They held that the only way that the Congress can function is in full dress, white tie, joint resolution submitted to the President-that they have no authority to function in their capacity as a Congress.

I made the illustration—it may not be apt--but the only function they can perform is to have a baby.

The other thing they said was that the only way we can act at all is by a joint resolution submitted to the President. They do not have to tell us that we can do that. That is our legislative power. So they did away with any function that we could exercise of an oversight character except passing another law to counteract one we do not really favor.

Mr. MAASS. That is correct except, of course for the nonstatutory means which are not binding.

In that context, I do not think the Court's decision was at all realistic in terms of legislative and executive relations. Congress has every right to develop new techniques to try to keep some sort of influence and control over governmental programs. Short-term authorizations is one such technique. Many years ago, most programs were authorized without limit of time. That is no longer the case. The legislative veto is another one. I happen to think it is a terribly useful technique, and I would like to, in some way, have its advantages preserved even though the Court has said you cannot now use it.

The CHAIRMAN. You have been very helpful. Thank you very much.

[The chapter from Professor Maass' book on legislative veto, referred to earlier, follows:]

11

The Legislative Veto

IN RECENT YEARS Congress has developed a new technique, the legislative veto, for controlling public policy. By this means Congress enacts authorizing legislation that gives discretion to the President to take certain actions -greater discretion in many cases than it would be willing to approve otherwise-and reserves the right to subsequently approve or veto these actions. Congress, that is, subjects the President's use of the discretion granted to a further legislative check. A familiar example is the law that authorizes the President to prepare plans to reorganize the executive bureaus-to consolidate agencies and shift bureaus from one department to another. These reorganization plans are submitted to Congress, and they go into effect unless either the House or the Senate votes to veto them within a short period of time that is specified in the law-sixty days, for example. Congress can either accept the President's plans by failing to act on them within the prescribed period or reject them if either House adopts a veto resolution. It cannot amend them, however, and there is good reason for this. If Congress could amend the President's plans, it could, in effect, legislate without the President having an opportunity to use his constitutionally provided right of veto. Also, the reorganization law, like all laws that use the legislative veto, amends normal parliamentary procedure, providing that if a resolution of disapproval is introduced in either House, that House will have the opportunity to vote on it before the fixed time expires. If this were not the case, friends of the President would be able to filibuster and use other tactics to delay congressional action until the plans had gone into effect.

The reorganization law, adopted initially in 1939, was an early use of the legislative veto. Beginning in the 1950s, Congress began to elaborate and

perfect the technique for several purposes, and since then it has provided for use of the veto in legislation authorizing a number of major programs-for example, disposal of government-owned synthetic rubber-producing plants (1953), atomic energy (1954), space (1958), railroad reorganization (1973), war powers of the President (1973), sale of arms to foreign nations (1974), impoundment of appropriated funds (1974), rules and regulations of certain agencies, including but not limited to those of the Department of Education (1974), Federal Elections Commission (1975), Department of Energy concerning oil allocations, allotments, and other matters (1970s), Federal Trade Commission (1980). A survey by Joseph Cooper and Patricia A. Hurley has identified 273 veto provisions enacted between 1932 and 1976. Fifty-eight percent of these were passed between 1970 and 1976, eighty-three of them in the two-year period 1974-1975, which was in part a legislative response to Watergate. These provisions for congressional review of executive actions. covered a broad range of policy areas. Of those enacted between 1970 and 1976, approximately 23 percent related to energy and natural resources programs, 17 percent to national defense and military construction, 15 percent to foreign affairs, 11 percent to education and research, 11 percent to public works and transportation, and the remainder to several other areas of public policy.1

Forms of the Legislative Veto

The veto has several forms. In the negative form Congress authorizes the President to prepare and submit plans. The President initiates. The plans go into effect in x days, depending on the specific law, unless Congress vetoes them. The law can provide that the veto be in the form of a concurrent resolution of disapproval to be voted on by both Houses-a two-House veto; a House or Senate resolution to be approved by a simple majority (or in a few cases a constitutional majority) of either House-a one-House veto; a House or Senate resolution to be approved by a simple majority of one House, unless the other House votes to approve the President's plan-a modified one-House veto; or committee resolutions of disapproval to be voted by committees that have jurisdiction over the subject matter in both the House and Senate-a two-committee vetoor by the committee in either House-a one-committee

veto.

In the affirmative form Congress authorizes the President to prepare and