Season 2, Episode 9 | The Legislative Veto: Constitutional Check or Power Grab?

Can Congress say no after it already said yes? For more than 50 years, the legislative veto let Congress give power to the president, then yank it back when it didn’t like the results. It was a political safety net, a constitutional gray area, and a ticking time bomb.

In this episode, hosts Savannah Eccles Johnston and Matthew Brogdon unpack how this backdoor power worked, why it exploded in the landmark case INS v. Chadha, and what that means for modern government.

They trace its roots from tariff tweaks and emergency powers to immigration enforcement and massive presidential discretion. The Supreme Court said the legislative veto was unconstitutional. But here’s the twist: Congress’s sweeping delegations of power to the president stayed in place. So now we’re stuck with a powerful executive and no real legislative check.

In This Episode

• (00:00:02) Introduction and overview
• (00:00:16) Executive veto vs. legislative veto explained
• (00:02:25) Historical background of legislative veto
• (00:03:26) Types of legislative vetoes
• (00:04:24) INS v. Chadha case introduction
• (00:04:50) Details of the Chadha case
• (00:06:46) Judicial and due process concerns
• (00:09:09) Constitutional issues with legislative veto
• (00:11:36) Supreme Court ruling in INS v. Chadha
• (00:12:11) Impact on existing laws
• (00:13:52) Tariffs and legislative-veto example
• (00:15:01) Expansion of presidential power post-Chadha
• (00:17:04) Political and constitutional implications
• (00:19:20) Three options for addressing legislative veto
• (00:20:28) Supreme Court’s dilemma, possible solutions
• (00:27:18) Alternative legislative solutions

Notable Quotes

• [00:01:10] “Imagine Congress authorizes the President to tear down some of the hideous brutalist architecture in Washington, D.C., and put beautiful buildings, big, beautiful buildings in its place. Right. Which I'm in favor of.” — Matthew Brogdon

• [00:08:23] “If you had to pick any deliberative body to decide a question about your fate... no one would look at a congressional committee and go, that's the group I want deciding.” — Matthew Brogdon

• [00:12:38] "We live in a post-Chadha period now where presidents still have this delegated authority, but there is no congressional check."— "Savannah Eccles Johnston 

• [13:57] “So the Congress passed back in the early 1900s, something called the TWEA. And you know a good chunk about this. It's gives the President the capacity to have some discretion over certain tariffs and how Congress can respond to that then."— "Savannah Eccles Johnston 

• [00:17:38] “The legislative veto was actually a sort of incentive for Congress to delegate away absolutely way too much of its authority.” — Matthew Brogdon

• [00:19:25] “You can either say the legislative veto is necessary in modern government, we're going to overlook constitutional issues. Two, you can say the legislative veto is unconstitutional and deny it, but be okay with delegations of authority to the president continuing anyway."— Savannah Eccles Johnston 

• [00:16:37] "Did Congress intend to grant the President that level of unchecked tariff power where it's unquestionably a power of Congress to control tariffs in the Constitution? They've delegated some of this authority without the capacity to say, except we don't like it in this circumstance.— "Savannah Eccles Johnston 

• [00:21:03] “The legislative veto is pretty clearly unconstitutional. I mean, as a matter of constitutional structure, it's very hard to square it with Article 1, Section 7.” — Matthew Brogdon

Transcript

Intro

[0:02 - 0:08]:
We the people, do ordain and establish this Constitution.

Savannah Eccles Johnston
[0:12 - 0:15]:
Welcome to this Constitution. My name is Savannah Eccles Johnston.

Matthew Brogdon
[0:15 - 0:16]:
I'm Matthew Brogdon.

Savannah Eccles Johnston
[0:16 - 1:00]:
And today we are going to talk about the legislative veto. And I think we should probably start by explaining the difference between, like, the constitutional executive veto and a legislative veto. So, for example, an executive veto would be Congress passes a law that anyone over the age of 65 has their driver's license revoked and has to go back to a learner's permit. And the President says no, because the President is 80. Because the President vetoes it and sends it back to the House and the Senate, and they fail to override it because a good number of the House and the Senate are also over the age of 65. So this is an executive veto. It is perfectly constitutional. No problem with it.

Matthew Brogdon
[1:00 - 1:02]:
James Madison would recognize it in a heartbeat.

Savannah Eccles Johnston
[1:02 - 1:07]:
Yes. Now give us an example of a legislative veto which is not constitutional.

Matthew Brogdon
[1:07 - 2:14]:
The legislative veto. Okay, so imagine Congress authorizes the President to tear down some of the hideous brutalist architecture in Washington, D.C. and put beautiful buildings, big, beautiful buildings in its place. Right. I'm in favor of big, beautiful buildings. I think the national capital should be full of them. But then they have a second thought. They think, what if we can't trust the President's good taste? Like, what if the President chooses to build big glass golden towers instead of big beautiful government buildings? The kind of thing we expected out of Art Deco in the early 20th century and classical Revival. Those are beautiful buildings, not something else hideous. So they don't trust the President, So they put in the bill. President's authorized to do this, but before actually embarking on the construction, he has to submit the plans to Congress. And if Congress disapproves what the President plans to do, they can pass a resolution disapproving it, and the President can't go forward. That's a legislative veto. The President makes the decision, Congress vetoes it.

Savannah Eccles Johnston
[2:14 - 2:15]:
So you're flipping the script.

Matthew Brogdon
[2:15 - 2:15]:
Yep.

Savannah Eccles Johnston
[2:15 - 2:21]:
Basically, It's in some sense, the President legislating and the Congress acting in the executive veto capacity.

Matthew Brogdon
[2:21 - 2:25]:
That's exactly how James Madison would describe this. 

Savannah Eccles Johnston
[2:25 - 4:24]:
Right. Okay, good. So where does this come from? This is actually a big trend in American politics between the 1930s and the 1980s, and a lot of it is in response to, on the domestic end, the Great Depression, and internationally, World War II, and the increase in the size of the presidency. So Congress begins passing statutes that grant authorities to the President to do certain emergency things, but that reserve to Congress the ability to override through a majority vote, individual actions taken by the President. And actually some of the earliest examples are tariffs. The President has a broader grant of authority to enact tariffs and then you can individually say, no, we don't like that tariff, or we don't like the increase in that tariff rate or the decrease in that tariff rate. So this goes on for 53 years. It allows a lot of flexibility for the President to do stuff, but Congress can overturn things that would never have made it through a regular legislative process. Now what's interesting is that these legislative vetoes had many different types. In some cases, these legislative vetoes could be enacted through just a majority vote in one chamber. So a majority vote resolution in just the House could say no to a tariff increase, or it could be a majority vote in a joint resolution, both the House and the Senate. And in some cases there were actually legislative vetoes that could come exclusively from one congressional committee. So this is very interesting. They all have lots of different types. But this comes to a head as the legislative veto begins to morph. It's not just about tariffs anymore. It's about vetoing regulations made by executive agencies and by independent agencies that you've granted them authority. So 1983, we get INS v. Chadha, which is going to put a stop to this 53 year history of legislative vetoes. So set the stage for us, what happens?

Matthew Brogdon
[4:24 - 4:50]:
Well, Chadha immigrates to the United States as a student, college student on a student visa. He winds up getting married while he's here, I think, sort of, you know, establishes a family, he finishes college. So a student visa is supposed to, you know, go away. But Congress had in the Immigration and Naturalization Act in the 70s, I guess INA was passed sometime in the 70s, right?

Savannah Eccles Johnston
[4:50 - 4:55]:
This is from 56, I think, or 65 that far back maybe. I'm getting mine. No, it's 65.

Matthew Brogdon
[4:55 - 6:35]:
There we go, 65. It's been around a little while. Congress had given the President the ability to grant waivers for people who overstayed their visa. So the President could, and this was, the Department of Justice is supposed to do this, identify people that normally would be deported because they had overstayed their visa and grant them a waiver, give them an exception. And these were individual, you had to name the individual. The Department of justice would say, you know, Jagdish Ray Chadha, he can stay. And this is not a suspension of the law because technically the person is still illegally present. The Justice Department has just said, but we're not going to deport you,  but Congress was afraid of an abuse of power by the executive, so they built in a legislative veto. They said the Department of Justice had to notify both houses of Congress with the list of people they'd granted waivers to. And if either house of Congress disagreed, they could take particular names off that list and disallow them. That is, veto the Justice Department's decision to give that person a waiver. So in this particular case, the list comes to Congress. I think it's the House of Representatives, a committee actually considers it, reports out a recommendation to the House and says, we think these names should be taken off, and these should stay on. The House passes a resolution by majority vote, which takes Chadha and some number of other people off the list, and so now he doesn't have a waiver anymore. So the Justice Department is supposed to deport him, notwithstanding their judgment that he should have stayed.

Savannah Eccles Johnston
[6:35 - 6:36]:
So classic legislative veto.

Matthew Brogdon
[6:36 - 6:46]:
Classic legislative veto and a mixture of issues.  So we're dealing with executive discretion. We're dealing with immigration, which was not uncontroversial in the 1980s.

Savannah Eccles Johnston
[6:46 - 6:51]:
No. Can I ask a question real quick? What did they have against Chadha in this case?

Matthew Brogdon
[6:52 - 7:38]:
Well, one of the things that the court kind of takes up in the case, and I'm trying to remember all the deliberations. There are multiple opinions here. But I think Justice Powell kind of gets into this deliberation process. The committee had sort of looked through the list. Seemed like they'd given some attention to who the people were and what the justifications were, and then reported it out. There was no debate in the House. The House just took what the committee recommended. So one of the problems that Justice Powell has in this case is he says, gosh, this looks like an exercise of judicial power to me. This committee in Congress just basically looked through all these particular individual cases and decided the law should apply to you, it shouldn't apply to you, made a recommendation, and Congress adopted it. That sounds like the sort of thing you do in, like, a court of law.

Savannah Eccles Johnston
[7:38 - 7:40]:
It seems deeply arbitrary as well.

Matthew Brogdon
[7:41 - 8:18]:
And arbitrary because normally a court of law would have all kinds of procedures to ensure that the individual could actually sort of make their case, could respond. In this case, it's just a committee proceeding that no one's really got access to. You don't really know what procedures or criteria guide it. It could be arbitrary. And so that's one of the objections to this, but that's not really the principal objection. But one objection people raise is these processes seem to be sort of all over the map. And at least when it involves, like, the fate of an individual, no one in America wants their fate decided by a congressional committee.

Savannah Eccles Johnston
[8:20 - 8:22]:
Right. There's due process for a reason.

Matthew Brogdon
[8:22 - 8:39]:
Well, if you had to pick any deliberative body to decide a question about your fate, whether you're gonna keep your job, whether you can stay in the country, anything, your guilt, innocence, a lawsuit, no one would look at a congressional committee and go, that's the group I want deciding.

Savannah Eccles Johnston
[8:39 - 8:41]:
That's a bastion of fairness and justice.

Matthew Brogdon
[8:41 - 8:51]:
This is not what it's made to do. I mean, this is not a knock on. Congressional committees are made to deliberate, taking into consideration the interests of all the members and their constituents.

Matthew Brogdon
[8:51 - 8:53]:
That is not what a court does.

Savannah Eccles Johnston
[8:53 - 9:09]:
So you have this serious judicial concern. But the big issue is the very idea that a committee, or even just one chamber of Congress, could say no to these individual kinds of exemptions. These deferrals from the Attorney General might.

Matthew Brogdon
[9:09 - 9:33]:
Even think about the potential constitutional defects. Like, I mean, there are actually a number of ways this might be unconstitutional. I've laid out the sort of vaguest one, like the one that's hardest to establish, but you pointed out it could be one house of Congress. That's a little bit of a problem because the Constitution speaks of Congress acting, except in a few very specific cases, as a bicameral body.

Savannah Eccles Johnston
[9:33 - 10:00]:
Right. And this is exactly what the Supreme Court points out is they say this violates the presentment clause. This violates the bicameral nature of Congress. The idea that you could do it through one chamber, though, they do say, okay, you can't do this as one chamber, and that violates the bicameral process. But even two chambers is unacceptable because that's still a violation of the presentment clause because it needs to go to the President, who can then veto and then you can override.

Matthew Brogdon
[10:00 - 10:12]:
Yeah. And this presentment clause, this is Article 1, Section 7 of the Constitution. We actually went through the motions of reading this whole long, detailed provision in our episode on the executive veto.

Savannah Eccles Johnston
[10:12 - 10:13]:
Oh, yeah.

Matthew Brogdon
[10:13 - 10:24]:
And we noted then that it is a very specific, detailed provision. I mean, it goes down to the level of not just saying the president can veto a law, but if the President approves a law, he shall sign it.

Matthew Brogdon
[10:24 - 11:00]:
If he does not approve it, he shall return it to the House in which it originated with his objections, after which Congress can Reconsider it and try to override it. So you've got a provision in the Constitution that is very detailed. It lays out specifically that after a law shall pass both houses of Congress, it shall be presented to the President for his signature. There's actually a provision we didn't read which was the provision after that  says any other act, order, or resolution that should require the consent of both houses of Congress has to be presented to the President in the same fashion.

Matthew Brogdon
[11:00 - 11:06]:
So there's cut Congress off from being like, well, this is not actually a law, it's just a resolution.

Matthew Brogdon
[11:07 - 11:22]:
The framers just cut that off at its origin and said, no way. If it requires both houses to act, it goes to the President for a signature. The only exception to this is constitutional amendments because that process is laid out completely separately in Article 5.

Savannah Eccles Johnston
[11:23 - 11:53]:
So it's very, very clear. It has to involve both chambers, the bicameral nature of Congress, then it must go to the President, who must have the opportunity to veto it, and only then can you override. That's the only way we do things, whether it be a resolution, whether it be a law. That's the only way we do things. So this is the clear constitutional case against the legislative veto. And the Supreme Court says in INS  vs Chadha, can't do it. This is unconstitutional. The legislative veto is out on multiple grounds.

Matthew Brogdon
[11:53 - 12:05]:
On multiple grounds here. One house can do it. That's a violation by cariberalism. It didn't go back to the President for his signature, which it would be weird to send a veto of the President's action for the President's approval.

Matthew Brogdon
[12:06 - 12:08]:
That's obvious how that'll turn out.

Matthew Brogdon
[12:08 - 12:10]:
So you've got multiple violations.

Savannah Eccles Johnston
[12:11 - 12:44]:
So as we were discussing before this episode, what this means is that there's over 200 laws that involve some kind of legislative veto, and those provisions are dead now. The laws aren't dead. The laws that grant presidents this delegation of authority aren't dead. That's really significant. But the legislative vetoes contained within them that check that Congress thought they would have on this delegation of authority, that those are dead. So, we live in a post Chadha period now where presidents still have this delegated authority, but there is no congressional check.

Matthew Brogdon
[12:45 - 13:06]:
Yeah. And the court is responsible for that state of affairs. In fact, this is the principal dissent in the case, this is what they hang their hat on, is that you're invalidating a specific provision of like 200 federal laws that Congress never would have passed if they didn't think they had the legislative veto. And so the dissent wants to say, you've got two options. You can either uphold this as just an accommodation between the executive branch and the legislature. It's just something Congress and the President have worked out. They're happy with it, we should be happy with it. And if you think it's unconstitutional nonetheless, then you've got to strike down the whole law. So that means all 200 of these statutes are then unconstitutional. And you've got no right to identify some one little part of the law and go, well, we'll just pull that piece out. Like, we'll pull that Lego out of the House and leave the rest of it in place.

Savannah Eccles Johnston
[13:42 - 13:52]:

Because otherwise it's going to cause serious mischief. And let's give an example of that mischief. So tariffs. We now live in the area.

Matthew Brogdon
[13:52 - 13:53]:
You're talking about tariffs.

Savannah Eccles Johnston
[13:54 - 13:56]:
I know they're very. No one talks about them anymore.

Matthew Brogdon
[13:56 - 13:57]:
Nobody cares about tariffs.

Savannah Eccles Johnston
[13:57 - 14:16]:
So the Congress passed back in the early 1900s, something called the TWEA. And you know a good chunk about this. It's gives the President the capacity to have some discretion over certain tariffs and how Congress can respond to that then.

Matthew Brogdon
[14:16 - 14:18]:
And had, like a procedure.

Savannah Eccles Johnston
[14:18 - 14:19]:
And had a procedure.

Matthew Brogdon
[14:19 - 14:23]:
It said, like the President could consult with this tariff commission.

Savannah Eccles Johnston
[14:23 - 14:24]:
Right.

Matthew Brogdon
[14:24 - 14:36]:
And they would tell the President if there was a mismatch in the cost of production somewhere else and the cost of production in America, and then they would give him a recommendation on the amount by which the tariff ought to be raised or lowered. And that was within a range.

Savannah Eccles Johnston
[14:36 - 14:37]:
Right.

Matthew Brogdon
[14:37 - 14:44]:
So this was a fairly narrow grant, scope of discretion to the President.

Savannah Eccles Johnston
[14:44 - 14:58]:
Right, yeah. Okay, excellent. Thank you. Then in 1977, Congress passed the IEEPA, which basically. Yeah, I guess that I don't know. I've never heard it said out loud.

Matthew Brogdon
[14:58 - 15:02]:
Like a little Latin pronunciation, like a I don't know.

Savannah Eccles Johnston
[15:03 - 16:01]:
So what this does is this grants the President the power to enact tariffs under certain international emergencies. But what's interesting is IEEPA was actually constructed to pull back the reins on presidential discretionary tariffs. Why? Because it included a legislative veto. The IEEPA included a legislative veto. Congress could say this is an example of a tariff for national security or an international emergency situation. We don't like it. Veto that. But that provision gets struck down by Chadha. So now you have a legislative veto, lists grant or delegation of authority to the President, which has been used in kind of a phenomenal capacity just these past couple of months. In the beginning of Trump's second I was about to say semester, second semester.

Matthew Brogdon
[16:01 - 16:03]:
We're in the thick of teaching right now.

Savannah Eccles Johnston
[16:03 - 17:03]:
This is so. For example, the CRS Congressional Research Service, who are excellent, published a report before the beginning of the second administration saying, look, this bill, though a broad grant of authority, has never been used to place tariffs on a specific country or on just broad general tariffs on imported goods into the country. That's never been done. But now it's being interpreted broadly enough to include the capacity to slap tariffs on an entire country, for example, Canada or Mexico. Did Congress intend to grant the President that level of unchecked tariff power where it's unquestionably a power of Congress to control tariffs in the Constitution? They've delegated some of this authority without the capacity to say, except we don't like it in this circumstance. They never intended that grant of authority without the legislative veto. Now the legislative veto is gone and that delegation of authority remains. This is mischief.

Matthew Brogdon
[17:03 - 18:26]:
Yeah, yeah. It's quite a serious question. I mean, it raises a question about the institutional relationship between the executive and Congress. Sort of a political question. And then there's some constitutional questions that come out of it too. But maybe on the political end, if Congress can hand over power and maintain this kind of oversight. Right, sure. Build your new buildings in Washington. We just want to sign off on the plans before you get started. Then they're much more likely to give away a lot of that discretion. And so you could argue the legislative veto was actually a sort of incentive for Congress to delegate away absolutely way too much of its authority and in ways that they never would have done if they couldn't keep this kind of check in their own hands in terms of the veto. I mean, the other way to look at it is that maybe these delegations were essential. It might be the case that modern government is just so complex and so far reaching that Congress just doesn't have the capacity to make policy in all of these areas. They need to hand off substantial realms of discretion in a lot of these policy areas. But the safest way to do that is to make sure that the executive's not going to go off the reservation. Just do whatever he sees fit.

Matthew Brogdon
[18:26 - 18:43]:
And so the legislative veto seems like a suitable settlement. In fact, the defense of the legislative veto is actually that Congress crafted this compromise. We'll hand you more discretion. We keep the veto, and executives like it because both parties in this deal think this is a pretty good deal.

Matthew Brogdon
[18:44 - 18:52]:
It wasn't actually the presidency that challenged the legislative veto. It was an individual that was negatively affected.

Matthew Brogdon
[18:52 - 19:00]:
The executive branch was like, no, don't get rid of the legislative veto, because then Congress might not give us enough discretion to do the things we need to do.

Matthew Brogdon
[19:01 - 19:14]:
And so if Congress and the president both agree this is a suitable arrangement and it's necessitated by the demands of modern administration, then maybe we should just overlook the constitutional problems.

Matthew Brogdon
[19:15 - 19:21]:
That's the defense of the legislative veto. That is actually the exact defense that the dissent makes in the case.

Savannah Eccles Johnston
[19:21 - 19:43]:
So what you're saying is there are three options here. You can either say the legislative veto is necessary in modern government, we're going to overlook constitutional issues. Two, you can say the legislative veto is unconstitutional and deny it, but be okay with delegations of authority to the president continuing anyways. Number two seems completely untenable to me in this situation.

Matthew Brogdon
[19:43 - 19:50]:
And then,because if you have that much of a problem with the legislative veto, then you should also have a problem with legislative delegates.

Savannah Eccles Johnston
[19:50 - 19:51]:
Exactly.

Savannah Eccles Johnston
[19:51 - 20:39]:
And then number three is the legislative veto is unconstitutional, and those delegations of authority go beyond the scope of what the legislature can actually delegate to the president. You get rid of both. It seems to me the answer has to be one or it has to be three. Either legislative vetoes have to be accepted and we have to kind of wink, wink, nod, nod, forget the Constitution. Or number three, you've got to get rid of both the legislative veto and the 200 laws that include delegations to authority to the President. What the Supreme Court has done is left us in this really weird middle ground. And I love finding new reasons to be mad at the Supreme Court. Here's yet another one, as they've left us in this middle ground where there are delegations of authority which are not questioned, but no adequate check from the legislature.

Matthew Brogdon
[20:39 - 20:41]:
But they're in a vice too.

Savannah Eccles Johnston
[20:41 - 20:44]:
I mean, oh, don't defend the Supreme Court. It's no fun.

Matthew Brogdon
[20:44 - 20:54]:
No, I'm gonna defend the court over this. I think. I think I'm gonna defend the court over this. Because striking down 200 laws that span 75 years all in one fell swoop.

Savannah Eccles Johnston
[20:55 - 20:55]:
53 years.

Matthew Brogdon
[20:55 - 21:01]:
53 years. Okay. All right. Feels pretty momentous, right?

Matthew Brogdon
[21:02 - 21:07]:
Yeah. On the other hand, the legislative veto is pretty clearly unconstitutional.

Savannah Eccles Johnston
[21:07 - 21:07]:
Yeah.

Matthew Brogdon
[21:07 - 21:39]:
I mean, as a matter of constitutional structure, it's very hard to square it with Article 1, Section 7, without doing some really creative things with the text of the Constitution that are not really warranted. So you've got a clearly unconstitutional practice, but that you've tolerated for half a century. It creates a real problem. Now there is a constitutional solution to this and I'm actually curious what would happen. Some people have proposed amending the Constitution to allow the executive veto in certain instances.

Savannah Eccles Johnston
[21:40 - 21:41]:
That would solve the issue.

Matthew Brogdon
[21:42 - 22:30]:
Yeah. Actually the most interesting source of this proposal was the Constitution drafting project. That's what it was called that the National Constitution  Center put together a few years ago. You got these teams of scholars. They sort of had team progressive, team libertarian, team traditionalist conservative, sort of prominent legal scholars in each of these areas. They sat them down and they told them, each team, to draft what they thought would be an improvement of the Constitution. If you could hold a constitutional convention right now and alter the Constitution, what would you do? And they all sort of came up with their own things and they had some surprising areas of agreement and then they produced this common document where they said, well, here's a list of constitutional amendments we all agree on.

Savannah Eccles Johnston
[22:30 - 22:31]:
Was the legislative veto on the list?

Matthew Brogdon
[22:31 - 22:33]:
The legislative veto I think was in the list.

Savannah Eccles Johnston
[22:34 - 22:34]:
Oh, that's fascinating.

Matthew Brogdon
[22:34 - 22:46]:
Things that all three teams agreed on. Maybe we just need to sort of bite the bullet and do this. There's also some language actually authorizing sort of the administrative state in some ways, like constitutionalizing it to some extent.

Savannah Eccles Johnston
[22:46 - 22:47]:
Yeah.

Matthew Brogdon
[22:47 - 23:06]:
Which makes sense partly because I think the conservatives and libertarians thought, okay, we're not going to get rid of this. The court is not actually going to get rid of the administrative state. So let's put some constitutional limits on it. Like if we actually put it in the Constitution, then you have the hope of limiting it instead of treating it like some sort of emergency necessity that exists outside the constitutional structure. That's worse.

Savannah Eccles Johnston
[23:06 - 23:14]:
Well, that seems wise. But let's get back to these three options. And I get why you're defending the court. They're in a difficult situation, but I'm going to stay grumpy with them.

Matthew Brogdon
[23:14 - 23:16]:
So you think they should have struck down all 200 laws?

Savannah Eccles Johnston
[23:17 - 23:24]:
Either strike down all 200 laws or don't touch the legislative veto. It can't be the middle ground. That's my position on that.

Matthew Brogdon
[23:24 - 23:55]:
Well, they could have found a factual ground out. Actually the out here was provided by, I talked about Powell to start with. I think Powell gave him the out, which was based on make it a fact bound decision. In cases like Chadhas where the legislative veto is exercised over an individual, like you're deciding the fate of a person and their legal status, that's not an appropriate thing for the legislature to do. We don't actually allow the legislature. It's a violation of separation of powers. Some very fundamental principles for the legislature to make individualized legislation.

Savannah Eccles Johnston
[23:55 - 23:59]:
So kicking the can down the road basically rules against this in a specific way.

Matthew Brogdon
[23:59 - 24:09]:
Well, it would have put them on warning, would've said, well, this is questionable, but in this case we can say legislative veto is inappropriate because Congress is performing what amounts to a judicial or executive function.

Matthew Brogdon
[24:09 - 24:15]:
They're deciding the application of the law to a particular individual. That's never the legislature's job.

Matthew Brogdon
[24:15 - 24:20]:
They're not well suited for it. They're not designed for it. And actually it's a real threat to liberty to do that.

Savannah Eccles Johnston
[24:20 - 24:21]:
Okay.

Matthew Brogdon
[24:21 - 24:32]:
They could have decided on that basis. That would have put them on notice. The legislative veto is in peril. You'd better either constitutionalize it or figure out an alternative like Congress pass a fix for these bills.

Matthew Brogdon
[24:33 - 24:50]:
Some sort of omnibus fix that went wherever we've got a legislative veto, we're going to do this instead. I don't know if that's even feasible, but yeah, it would have kicked the can down the road and given Congress and the executive notice that they needed to craft a different solution. Or we might have to declare all these bills constitutional unconstitutional at some point.

Savannah Eccles Johnston
[24:50 - 24:51]:
Okay, so of these three, then if Chief Justice Roberts had been on the court in 1984, he would have kicked the can down the road.

Savannah Eccles Johnston
[24:54 - 25:08]:
Yes.  That's very true. Okay, but  let's go back to these three options then.The court is now forced to make the decision. There's no individual getting out of this situation because this is actually a constitutional question we have to answer.

Matthew Brogdon
[25:08 - 25:08]:
Yeah.

Savannah Eccles Johnston
[25:09 - 25:31]:
Which of the three answers do you like? Do you keep the legislative veto and say it's necessary for modern government? Do you get rid of the legislative veto but continue to allow these delegations of power, allow the 200 laws, or do you number three, say, eh, legislative veto down at the 200 laws we have to reconceive delegation of power. Which one do you not take the case?

Matthew Brogdon
[25:31 - 25:31]:
Case.

Savannah Eccles Johnston
[25:31 - 25:38]:
You're not on the Supreme Court here. You're just answering a constitutional question.

Matthew Brogdon
[25:38 - 25:38]:
I see.

Savannah Eccles Johnston
[25:38 - 25:43]:
That's all you're doing here. I would never be so rude as to put you on the court.

Matthew Brogdon
[25:44 - 26:50]:
That would be unkind. Well, I think saying get rid of all the bills sounds. I think I would get rid of the laws, but that sounds more extreme than it is because I actually think many of the policies could have been crafted in a way that were more specific. That is Congress could have actually made the policy it wanted and then charged the President with enforcing it instead of just handing over the delegation. So to say I'd strike down the laws is not to say I don't think the laws themselves should exist in some form, but that Congress ought to have been. Congress ought to have had its hand slapped over this much sooner. Yeah, the court did sort of hit the brakes with some of this, with, in the case of the National Industrial Recovery act, which was the centerpiece of the most important piece of legislation in the New Deal. But we don't know that much about it because it didn't survive because the court declared it unconstitutional, because the court unanimously said, you've just ignored the separation of powers. You just handed the executive branch policymaking authority over the economy.

Matthew Brogdon
[26:50 - 27:09]:
And Congress just checked out. Congress said, we can't do this. You handle it. And the court unanimously thought that was a huge problem. They could have actually gone further sooner in making clear this legislative veto thing's a problem too. Congress is going to have to sit down and make a policy.

Matthew Brogdon
[27:10 - 27:18]:
And then we wouldn't have had 50 years of legislative vetoes as a means of Congress ducking its responsibilities.

Savannah Eccles Johnston
[27:18 - 28:28]:
Well, let’s give an example of a law Congress could pass that would pass muster in terms of the legislative veto—the Congressional Review Act. So, the Congressional Review Act is a way by which both chambers of Congress can strike down a regulation from the executive branch—from an executive agency or an independent agency. It requires a majority vote from both chambers. It then goes to the President, who can veto, and then it can go back for an override.

Now, remember, one of the reasons the legislative veto became so problematic is because you had either one chamber of Congress, both chambers, or just a committee striking down regulations coming out of the administrative state without any kind of presentment clause procedure. The Congressional Review Act does the same thing, but it follows the presentment clause procedure. You can still review an act from an agency. They haven’t done it very often—I think it’s been used 20 times since its inception—but it has to go to the President for a veto and then for an override. So, you can actually construct these kinds of bills in a way that does not violate the presentment clause.

Matthew Brogdon
[28:28 - 28:39]:
Yeah. There’s an even more muscular version of that—one that tries to draw a line between major regulations and minor ones, regulations that constitute new policy.
But a more muscular version of this draws a line between minor regulations that an executive agency might pass—which wouldn’t necessarily need to go back to Congress or could go through the Congressional Review Act process if they wanted—and then major policy changes, which would actually not be made effective upon passage or promulgation by the executive agency. Instead, they’d be proposed to Congress and would not take effect unless Congress passed those regulations and made them law.

So, this sort of turns executive agencies, in part, into a kind of advisory commission that’s proposing to Congress that they pass certain laws—which is not outside the bounds of the executive branch. Actually, anybody can send Congress a bill and say, "I think you should make this law." So, there’s nothing stopping executive agencies from saying, "We think this is a necessary regulation. We’ve held hearings on it. We think this is a good idea. Here’s how we’d shape it." Send it to Congress, and then require Congress to pass it if they want it to be law. And if they don’t, then it’s not law.

Savannah Eccles Johnston
[29:46 - 30:28]:
Okay, this is another very interesting workaround for the legislative veto problem. So, we’ve presented the three big options—you’ve given your opinion—but I’d actually love to see comments from listeners on this. I want to know which option they would have preferred the Court to take—or just Matthew making decisions for the entire country to have decided on.

So, if you’re watching this on YouTube, drop a comment—we want to know what you think. If you’re just listening in your car, put a comment under the… I don’t know, can you do that on Apple Podcasts? Drop a comment somewhere—send us a DM or an email. I’d like to hear what you think about this.

Matthew Brogdon
[30:30 - 30:32]:
Yeah, I would too. Curious where people stand.

Outro
[30:34 - 31:15]:
The Constitution is more than parchment under glass at the National Archives. It’s a blueprint for American self-government that shapes every part of our civic life—from the rights we cherish to the laws we live under. We explore the ongoing battle over the meaning and relevance of America’s founding document. This Constitution will equip you to engage the most pressing political questions of our time. Join us every two weeks as we hash out constitutional questions together.

This podcast is ordained and established by the Center for Constitutional Studies at Utah Valley University—the home of Utah’s Civic Thought and Leadership Initiative.