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Legislative veto (administrative state)

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What is the legislative veto?

The legislative veto is a type of legislative oversight that allows legislatures to block or modify executive actions or agency regulations without passing a new law or executive approval. The legislative veto can be a provision in a bill that allows a resolution by one legislative chamber, both chambers, or a legislative committee veto to nullify or amend a rule, regulation, or executive order. Unlike other forms of legislative oversight, it also enables legislative chambers or committees to disapprove agency actions they consider improper or beyond the agency’s authority. The legislative veto is part of the legislative control pillar of Ballotpedia's administrative state coverage, as it allows legislatures to check executive agencies’ rulemaking and enforcement powers in the context of administrative law.[1]

Why does it matter?
This tool provides lawmakers with a direct mechanism to influence administrative decisions without enacting new legislation or requiring executive approval, raising questions about the separation of powers. Its use raises constitutional questions about the separation of powers and the proper balance of authority between the legislative and executive branches.

What are the key arguments?
Supporters of the legislative veto argue that it serves as a check on executive power, ensuring agencies adhere to legislative intent and remain accountable. They view it as a safeguard against regulatory overreach and executive actions contradicting policy goals. Additionally, some argue that it fosters cooperation between the executive and legislative branches by encouraging dialogue on administrative decisions.[1]

Opponents contend that the legislative veto violates the separation of powers by allowing the legislature to perform executive functions. They argue that it bypasses constitutional requirements for lawmaking, such as bicameralism and presentment, creates legal uncertainty, and encourages excessive legislative involvement in administrative decisions. Courts have generally ruled that Congress must pass new laws, rather than use vetoes, to modify agency rules.

What's the background?
The legislative veto first appeared in federal law in the Economy Act of 1932, signed by President Herbert Hoover. It granted the president authority to reorganize the executive branch, but either Congressional chamber could nullify a presidential executive order within 60 days. The oversight mechanism became more prominent in the 1970s and 1980s.[1]

In 1983, the U.S. Supreme Court declared the legislative veto unconstitutional at the federal level in Immigration and Naturalization Service (INS) v. Chadha. The Court held that it violated the separation of powers by allowing Congress to nullify executive actions without adhering to the legislative process, specifically bicameralism and presentment. Despite this ruling, Congress has continued to include legislative veto provisions in some laws, and presidents have occasionally signed them, sometimes issuing statements declaring them unconstitutional and non-binding.[1] [2]

Legislative vetoes exist at the state level. Some state courts have upheld legislative vetoes, while others have struck them down, leading to legal variability across states. For more information on state legislative vetoes, click here.

Dive deeper

Background: History of the legislative veto

See also: Executive branch reorganization authority

The legislative veto originated in the early 1930s under President Herbert Hoover (R), who developed the mechanism in order to facilitate his reorganization plan for the executive branch. Hoover envisioned the legislative veto as a means for Congress to delegate reorganization authority to the executive branch while maintaining the authority to disapprove of certain reorganization provisions. In this way, Hoover's reorganization plan could move forward through executive action without the threat of potential hindrance through congressional amendments or committee stagnation.[1]

The Economy Act of 1932 included the first legislative veto provision, which allowed Hoover to reorganize the executive branch subject to a one-house congressional veto. Hoover issued his reorganization plan through 11 executive orders in December 1932, one month after losing his presidential re-election campaign to Franklin D. Roosevelt (D). The U.S. House of Representatives in January 1933 exercised the first legislative veto on all of Hoover's reorganization proposals.[1]

Legislative veto provisions proliferated in subsequent laws over the next several decades. Legislative vetoes took the form of single-chamber vetoes, bicameral vetoes, and committee vetoes. Congress was not required to present legislative vetoes to the president for approval. By the 1970s, Congress had added legislative vetoes to both statutes delegating regulatory authority and statutes governing other executive branch responsibilities, including war powers, national emergencies, and presidential papers.[1]

Legislative veto ruled unconstitutional in INS v. Chadha

See also: Immigration and Naturalization Service (INS) v. Chadha

Under Section 244(c)(2) of the Immigration and Nationality Act of 1952 (INA), Congress had authorized either chamber to invalidate deportation rulings of the United States Attorney General through a legislative veto. In 1975, the United States House of Representatives voted to deport Kenyan-born graduate student Jagdish Rai Chadha and five others. Chadha sued both houses of Congress and the Immigration and Naturalization Service (INS). The case eventually reached the Ninth Circuit Court of Appeals, which held that the legislative veto provision Congress used to order Chadha's deportation was unconstitutional. Although the INS had joined Chadha in arguing that Section 244(c)(2) was unconstitutional, the agency appealed the circuit court's decision to the United States Supreme Court.[3][4][5]

Writing for the court, Chief Justice Warren Burger argued that the one-house legislative veto established under the INA violated the separation of powers doctrine and circumvented the framers' intended structure of government. The court held that the legislative veto was an exercise of Congress' legislative authority and, therefore, was unconstitutional because the action was not approved by both houses of Congress and signed into law by the president.[6]

Impact of INS v. Chadha on the legislative veto

Following the U.S. Supreme Court's ruling in INS v. Chadha, Congress amended a number of statutes to delete legislative veto provisions and replace them with joint resolutions. In other statutes, such as the Nuclear Nonproliferation Act of 1978, legislative vetoes have remained in the law but are no longer exercised.[1]

Despite the court's ruling in INS v. Chadha, Congress has continued to pass legislative veto provisions, and presidents have continued to sign them into law, though often accompanied by statements declaring that the provisions are unconstitutional and non-binding. For example, upon signing the Treasury-Postal Service and General Government Appropriations Act of fiscal year 1992, President George H.W. Bush (R) stated that the bill's legislative veto provisions "constitute legislative vetoes similar to those declared unconstitutional by the Supreme Court in INS v. Chadha. Accordingly, I will treat them as having no legal force or effect in this or any other legislation in which they appear."[1][7]

From the time of the court's ruling in Chadha through 2005, Congress enacted more than 400 new legislative vetoes, according to the Congressional Research Service (CRS). The majority of these legislative vetoes require committee approval of executive agency actions. Non-statutory committee vetoes also function as informal understandings between Congress and executive agencies, most often concerning committee oversight of agency spending. While presidents have effectively ignored legislative veto provisions since INS v. Chadha, executive agencies have continued to operate closely with their respective congressional oversight committees and honor committee veto provisions.[1][8]

Louis Fisher, a separation of powers specialist with the CRS, provided the following summary of INS v. Chadha's impact on legislative vetoes—particularly committee vetoes—in a 2005 report to Congress:[8]

“ Chadha put an end to one-house and two-house legislative vetoes but it has had little effect on the legislative vetoes that operate at the committee and subcommittee level. Executive agencies and congressional committees have developed a variety of voluntary accommodation procedures over the years that result in a standard quid pro quo; Congress agrees to delegate substantial discretion to executive agencies if they accept a system of review and control by the committees of jurisdiction. These provisions remain an important mechanism for reconciling legislative and executive interests.[8][9] ”

Legislative Veto Timeline

The following timeline details key events in the history of the legislative veto:

How does the legislative veto work?

A legislative veto is a resolution by a legislative body, distinct from other types of legislative oversight of executive agencies because it does not need a presidential or gubernatorial signature to invalidate an action by the executive branch. Practically, the legislative veto refers to a resolution by one house of Congress, both houses of Congress, or a congressional committee that nullifies an executive action.[2]

Other types of legislative oversight

The legislative veto is distinct from other types of legislative oversight of executive agencies. A legislative veto does not need joint approval by Congress or presidential approval. Rather, a legislative veto could be issued by one or both houses of Congress or a congressional committee and results in nullifying the executive action. The following are other, distinct, types of legislative oversight of executive agencies:[2]

  • The REINS Act. This is a legislative proposal at the federal and state levels that would require legislative approval of agency actions that incur an annual cost above a certain monetary threshold.
  • The Congressional Review Act. This is a federal law passed in 1996 that created a review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a new federal agency rule and block the issuing agency from creating a similar rule in the future.

States with legislative vetoes

Some state governments allow for legislative vetoes in certain cases, but the extent of the authority varies. An analysis by the National Conference of State Legislatures identified two main types of state-level legislative vetoes across 28 states: (1) enactment through statute or (2) passage of a resolution. Thirteen states allow for a legislative veto through statutory enactment and fifteen states allow for a legislative veto through the passage of a resolution, according to their findings.[10][11][12]

The State Democracy Research Initiative at the University of Wisconsin Law School, in a white paper authored by Derek Clinger and Miriam Seifter, identified two different types of state legislative vetoes: strong-form legislative vetoes and temporary suspensions.

A strong-form legislative veto, according to Clinger and Seifter, most closely resembles the federal legislative veto by authorizing a legislative entity to veto a rule that the executive branch had approved. The following 15 states have strong-form legislative vetoes:

  • Arkansas
  • Connecticut
  • Georgia
  • Idaho
  • Illinois
  • Iowa
  • Louisiana
  • Montana
  • Nevada
  • New Jersey
  • North Carolina
  • North Dakota
  • Ohio
  • South Dakota
  • Wisconsin


Temporary suspensions and other forms of legislative oversight that allow state legislatures to delay or suspend rules also qualify as legislative vetoes, according to Clinger and Seifter. In some cases, this related form of legislative oversight exists in addition to a strong-form legislative veto. The following 15 states have some form of a temporary suspension legislative veto:[13]

  • Alabama
  • Georgia
  • Iowa
  • Michigan
  • Minnesota
  • Montana
  • New Hampshire
  • North Carolina
  • Oklahoma
  • Pennsylvania
  • South Carolina
  • South Dakota
  • Tennessee
  • Virginia
  • Wisconsin


Clinger and Seifter identified additional mechanisms that function similarly to legislative vetoes, such as requiring legislative ratification of a proposed rule or authorizing objections to proposed rules that require an executive branch response.[13]

Advisory power

In states that do not allow legislative vetoes, state legislatures may possess advisory power. Advisory power allows the legislature to suggest amending or blocking certain executive actions, but does not require the executive branch to act on the suggestion.[11]

Major arguments about legislative vetoes

The following section provides a selection of policy arguments about the legislative veto:

Arguments supporting legislative vetoes

Legislative vetoes restore checks and balances

This argument suggests that legislative vetoes are necessary to provide a check on executive branch authority. Former state Rep. Ron Ryckman (R-Kan.) argued in 2021 for the necessity of restoring checks and balances through a legislative veto process at the state level:[14]

“ Unfortunately over time a fourth branch of government has arose and that’s government bureaucracy. ... What the attorney general’s bringing forward today is something that restores the checks and balances and allows the people of Kansas to have a say in how to regulate.[14][9] ”


Legislative vetoes curb excessive presidential power

This argument suggests that legislative vetoes are necessary to prevent an overreach of presidential power by authorizing the legislative branch to veto certain actions. Geoffrey Manne and Seth Weinberger published an article in 2019 on the forum Just Security, arguing in favor of legislative vetoes to control executive power:[15]

“ Bringing back the legislative veto would be a reasonable, if imperfect, way to mitigate this problem. Members of Congress must set aside their myopic tendency to expand presidential power when it suits their needs and to oppose it when it does not. From here on out, every congressperson and president that permits the status quo to operate is complicit in the abuse of executive power on a grand scale — whether it serves their narrow political preferences or not.[15][9] ”


Arguments opposing legislative vetoes

Legislative vetoes are unnecessary because Congress has other methods for checking executive authority

This argument suggests that Congress has methods for constraining executive authority and maintaining a balance of powers. Law professor Curtis A. Bradley argued that the methods that have been developed since the decision in INS v. Chadha have resulted in legislative vetoes being unnecessary:[16]

“ [T]o the extent that the legislative veto was important (or would have become important) for checking some exercises of statutorily-delegated authority, Congress has developed a host of formal and informal workarounds in the years since Chadha, and there are numerous additional steps that Congress could take to constrain the statutory President other than using legislative vetoes. Critics of Chadha have been unduly focused on statutory overrides of presidential action, neglecting the many other ways in which Congress retains control over statutory delegations.[16][9] ”


Legislative vetoes grant too much authority to the legislative branch

This argument suggests that legislative vetoes result in the legislative branch having an excess of power, which does not align with the three-part structure of government and separation of powers outlined in the U.S. Constitution. Chief Justice Warren Burger, writing for the court in INS v. Chadha, argued that the one-house legislative veto established by the Immigration and Nationality Act violated the separation of powers doctrine and circumvented the framers' intended structure of government:[17]

“ Since it is clear that the action by the House under § 244(c)(2) was not within any of the express constitutional exceptions authorizing one House to act alone, and equally clear that it was an exercise of legislative power, that action was subject to the standards prescribed in Art. I. The bicameral requirement, the Presentment Clauses, the President's veto, and Congress' power to override a veto were intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps. To preserve those checks, and maintain the separation of powers, the carefully defined limits on the power of each Branch must not be eroded. To accomplish what has been attempted by one House of Congress in this case requires action in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both Houses and presentment to the President. ... We hold that the congressional veto provision in § 244(c)(2) is severable from the Act, and that it is unconstitutional. Accordingly, the judgment of the Court of Appeals is Affirmed.[17][9] ”

See also

External links

Footnotes

  1. ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 Law and Contemporary Problems, "The Legislative Veto: Invalidated, it Survives," 1993
  2. ↑ 2.0 2.1 2.2 2.3 Legal Information Institute, "Legislative veto," accessed September 18, 2018
  3. ↑ Legal Information Institute, "INS v. Chadha," accessed October 23, 2017
  4. ↑ The New York Times, "Faces Behind Famous Cases," June 19, 1985
  5. ↑ Legal Information Institute, "Legislative Veto," accessed October 24, 2017
  6. ↑ The New York Times, "Supreme Court, 7-2, Restricts Congress's Right to Overrule Actions by Executive Branch," June 24, 1983
  7. ↑ The New York Times, "IN SPITE OF THE COURT, THE LEGISLATIVE VETO LIVES ON," 1983
  8. ↑ 8.0 8.1 8.2 Congressional Research Service, "Legislative Vetoes after Chadha," May 2, 2005
  9. ↑ 9.0 9.1 9.2 9.3 9.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  10. ↑ National Conference of State Legislatures, "Separation of Powers: Legislative Oversight," November 17, 2022
  11. ↑ 11.0 11.1 Wayne State University, "Checks and Balances in Action: Legislative Oversight across the States," July 8, 2019
  12. ↑ Wisconsin Legislative Council, "Powers of the Joint Committee for Review of Administrative Rules," January 2021
  13. ↑ 13.0 13.1 State Democracy Research Initiative at the University of Wisconsin Law School, "Unpacking State Legislative Vetoes," October 13, 2023
  14. ↑ 14.0 14.1 Cite error: Invalid <ref> tag; no text was provided for refs named kansas
  15. ↑ 15.0 15.1 Just Security, "Time to Rehabilitate the Legislative Veto: How Congress Should Rein in Presidents' 'National Emergency' Powers," March 13, 2019
  16. ↑ 16.0 16.1 Journal of Legal Analysis, "Reassessing the Legislative Veto: The Statutory President, Foreign Affairs, and Congressional Workarounds," 2021
  17. ↑ 17.0 17.1 Justia, "INS v. Chadha, 462 U.S. 919 (1983)," accessed March 13, 2023
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