5. FORM AND FUNCTION IN CHADHA
The reasoning of the Court in Chadha is, for the most part, highly formalistic—relying, for example, on notions of what is "essentially legislative" (462 U.S. at 952), and discounting arguments grounded in efficiency, or in the historical practice of interbranch relations concerning the veto. Commentators have often criticized the decision's formalism, and have argued that the decision is problematic when considered on functional grounds.
This article's principal response to that argument is descriptive—that Chadha had less of an impact on congressional control over statutory delegations than is commonly assumed. This Section explains why, even if the decision were more consequential, the decision's functional desirability would still be subject to reasonable debate. Section 1 points out shortcomings in some of the standard functional critiques of Chadha, and Section 2 describes some of the ways in which legislative veto mechanisms can potentially undermine good governance.
To be clear, this Section makes no claim that the costs of having enforceable legislative vetoes would outweigh the benefits. Such an assessment, assuming it were feasible, would almost certainly require additional empirical information. In addition, as indicated earlier, any assessment of the effect of Chadha on our separation-of-powers system would need to consider difficult counterfactual questions about how congressional-executive relations would have evolved if the Supreme Court had come out the other way (or if it had abstained from deciding). Such an assessment would also ideally consider the effect of legislative vetoes on a system-wide basis and not merely based on a select number of instances in which such mechanisms appear to be either useful or harmful. The goal of this Section is much more modest—simply to explain how it might be possible, despite the formal nature of the Court's reasoning in Chadha, to develop a functional defense of the decision.
5.1 Standard Functional Critiques of Chadha
Critics of Chadha have claimed that the Supreme Court neglected to give sufficient weight to the positive role that legislative veto mechanisms can play in the modern regulatory state. This section highlights weaknesses in some of the standard critiques.
5.1.1 Undermining the "Balance" Between the Branches?
One common critique of Chadha is that it undermined a proper "balance" of authority between the branches. The claim is that the substantial delegations of authority required by the rise of the administrative state shifted a lot of authority to the executive branch, and that legislative vetoes were a necessary adjustment to maintain a balance of authority.
The central problem with this argument is that, as others have pointed out, we have no agreed-upon baseline for assessing the proper balance of authority between the branches. Even if one adopts an originalist methodology (and many critics of Chadha are not in fact originalists), this is unlikely to produce any clear sense of an appropriate balance. Moreover, even if there were an agreed-upon baseline, legislative-executive relations have evolved in numerous conflicting directions since the Founding, and since Chadha, and assessing the overall impact of these many changes on some sort of balance is an impossible task. As Liz Magill has cogently observed, "we do not know what balance means, how to measure it, or how to predict when it might be jeopardized" (Magill 2001, p. 605). Nor is there a coherent theory about which developments that might affect institutional balance merit legal responses, as Eric Posner has pointed out (Posner 2016, pp. 1709–10).
This is not to argue, of course, that our separation of powers system is working well. The Madisonian idea that each branch would have sufficient tools and incentives to resist encroachments on its constitutional authority, to the extent that it ever made sense, has been substantially undermined by the rise of hyper-partisanship. The incentives of members of Congress often do not line up with the long-term institutional prerogatives of the legislative branch. To the extent that Congress imposes checks on executive authority, these checks often depend more on partisan disagreement than on institutional loyalty. Moreover, even without regard to partisanship, Congress faces a host of collective action problems that make it difficult for it to oppose unilateral executive actions. But these problems are all unrelated to Chadha's disallowance of legislative vetoes. Moreover, while legislative vetoes—especially of the one-house or committee variety—might reduce some of the collective action problems, they might also, as discussed below in Section 2, exacerbate problems of partisan gridlock.
5.1.2 Allowing Drift from the Enacting Congress's Preferences?
Another functional critique of Chadha, made most prominently by William Eskridge and John Ferejohn (1992), is that the legislative veto mechanism helps ensure that the executive branch does not stray too far away from the median preferences of the Congress that originally delegated the statutory authority. Using spatial models, they describe how agency policies are likely to drift away from median congressional preferences and how legislative veto mechanisms could in some instances limit such drift. As they explain, "agency lawmaking can sometimes result in drastic shifts in policy from one Presidency to the next," whereas "[t]he introduction of a two-house legislative veto has the effect of moving policy outcomes back toward those that would occur under the original understanding" (pp. 538, 543).
This argument is unpersuasive for several reasons. First, as a number of commentators have noted, it gives insufficient attention to the likelihood of congressional drift. When there are shifts in congressional party alignment and divided government, the legislative veto is itself likely to result in deviations from the enacting Congress's median preferences. Party control of the houses of Congress shifts more frequently than party control of the White House, and divided government is more common in recent decades than unified government. Moreover, in the regulatory context, there is at least an administrative law check on agency drift from a statutory regime, a check that does not apply to exercises of the legislative veto.
In addition, Eskridge and Ferejohn overstate the ability of the executive branch to operate near the presidential veto override threshold without congressional resistance or correction. In practice, Congress has a number of ways to resist presidential action without triggering a presidential veto. For example, Congress can use omnibus bills and appropriations legislation to package provisions in a way that makes it less likely that they will be vetoed. Perhaps in part for that reason, presidential vetoes have been relatively rare during the last several administrations—less than two vetoes per year. And sometimes Congress is able to overcome a presidential veto.
5.1.3 Upsetting an Institutional Bargain?
Another critique of Chadha, made most prominently by Aziz Huq (2014), suggests that it upset an institutional bargain between the legislative and executive branches—one that both institutions found to be useful for modern governance.
Huq contends that bargains between government institutions "are often (if not always) a desirable means of resolving constitutional ambiguities, adapting to changed conditions, and realizing new policy goods" (p. 1686). Under his account, if the legislative and executive branches want to trade away some of their authority, courts should generally allow the trade. Although the President normally has the authority to block legislative changes through the Article I, Section 7 process, Huq suggests that the courts should have allowed the President to give up some of that authority by accepting legislative veto provisions. Huq quotes with approval the Supreme Court's statement in NLRB v. Noel Canning that judges should "hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached" (p. 1602).
This institutional bargain argument may be persuasive for some issues, but it is less so for legislative vetoes. A close examination of the history of the legislative veto does not reveal any institutional agreement about its desirability, let alone its legality. As noted earlier, presidents and their legal advisers frequently objected to legislative veto provisions from the very beginning of the practice during the Hoover administration, a point that the Court noted in Chadha. While presidents have not always been consistent in their objections, it is difficult to see in the historical practice a genuine institutional agreement, especially one that should bind presidential successors. Moreover, by the time of Chadha, the veto landscape had shifted dramatically, as Congress during the 1970s had greatly expanded the number of veto provisions and had inserted them into sensitive areas of foreign affairs. So even if there had been an earlier institutional bargain (for example, for the issue of executive reorganization), it is not clear that it continued to apply in light of the changed circumstances.
It can be argued, of course, that if presidents found the legislative veto provisions objectionable, they should have vetoed the bills containing them. But it is difficult to treat a decision by a president not to do so as evidence of a genuine institutional agreement about the desirability or legality of the provision. The modern practice of constitutional signing statements arose in part so that presidents could signal their doubts about particular provisions without blocking legislation, and presidents routinely have used such statements to object to legislative veto provisions.
This institutional bargain argument is also in tension with the common claim that, as a practical matter Congress has no choice but to delegate broad discretionary authority to the executive branch. This is the "Hobson's Choice" argument that Justice White made in his dissent in Chadha. If it has no choice, then there is no reason for the executive branch to compromise and accept a legislative veto mechanism. There is no genuine bargain to be had. Nor, in any event, did Chadha prevent inter-branch bargaining over the control of statutorily-delegated authority. As we have seen, the decision left substantial room for the branches to develop workarounds, which have flourished in the wake of the decision.
Finally, it is worth remembering that not all things that the branches agree to are good for governance. Increasing the veto points in Congress and further empowering committees and individual members of Congress may not be good for governance, especially given how partisan and non-institutional Congress has become. When individuals or private firms are bargaining, we assume that they are aiming to maximize their own welfare, but this assumption is harder to maintain about Congress. Therefore, any analogy to private party bargains (which Huq acknowledges is imperfect (pp. 1603, 1655) has limited value when applied to the separation of powers.
5.1.4 Reduced Transparency?
Yet another functional critique of Chadha is that it reduced the transparency of congressional action. Neal Devins and Louis Fisher (2015) have contended that, "[i]n many cases, the Court's decision [in Chadha] simply drove underground a set of legislative and committee vetoes that used to operate in plain sight" (p. 127). Others have echoed this claim, usually just citing back to Devins and Fisher.
It is difficult to evaluate this claim because unfortunately neither Devins and Fisher, nor anyone else, has attempted to document it. Without more evidence, skepticism is warranted. As Chadha itself illustrates, the legislative veto mechanism was not a model of transparency. The suspension of Chadha's deportation occurred without any public discussion or recorded vote. Moreover, the informal veto regime that has flourished after Chadha also existed before Chadha. As discussed above in Section 3.1, the veto was not used frequently in practice, so any influence it had was largely informal. Devices like informal holds on arms sales predated Chadha. And the informal incentives that the executive branch has had since Chadha to accommodate congressional wishes, such as concerns about the renewal of appropriations, certainly existed prior to the decision. In fact, studies of the effect of the legislative veto prior to Chadha suggested that it resulted in significant, non-transparent interactions with administrative agencies.
In short, whatever "underground" there is in terms of congressional-executive relations does not appear to be the result of Chadha, and more evidence would be needed to establish that Chadha exacerbated the situation. It is also worth keeping in mind that at least some of the workarounds appear to have increased congressional engagement and transparency.
6. CONCLUSION
It has been nearly forty years since the Supreme Court decided Chadha, and it is time, this article argues, for a reassessment of the decision and its effects.