Getting it backwards: the legislative veto

At Hot Air, Ed Morrissey writes about the efforts of the Republican minority in the Senate to defeat the Environmental Protection Agency’s efforts to gain via regulation what the environmental left couldn’t achieve via legislation: a cap-and-trade system and other onerous, economy killing “environmental” regulations. Their strategy involves the use of a little known procedure created in the 90s, called the Congressional Review Act. Ed quotes from a Politico article; see if you can spot the problem:

The law lets sponsors skip Senate filibusters, meaning Republicans don’t have to negotiate with Majority Leader Harry Reid (D-Nev.) for a floor vote or secure the tricky 60 votes typically needed to do anything in the Senate.

The House doesn’t have the same expedited procedures, but it’s assumed the GOP majority would have little trouble mustering the votes needed to pass disapproval resolutions.

A spate of contentious EPA rules that are soon to be finalized could be prime targets, including the national air quality standard for ozone, toxic emission limits for industrial boilers and a pending decision about whether to regulate coal ash as hazardous waste.

We’re not going to let EPA regulate what they’ve been unable to legislate. And if I’m chairman, we’re going to have a very aggressive, proactive schedule,” Rep. Fred Upton (R-Mich.), the likely incoming chairman of the Energy and Commerce Committee, told POLITICO.

Note the highlighted portions. What’s being described is a legislative veto, a controversial procedure that was never envisioned in the Constitution by the Framers. Let’s back up a minute for some groundwork. Article 1, section 1 of the US Constitution reads:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The power to disapprove laws, the veto, is not part of the powers assigned to Congress: it is assigned to the President (oddly, via Article 1) and is considered an Executive power. Several court cases (such as INS v Chadha), have held that the legislative veto is unconstitutional because it violates separation of powers by encroaching on the Executive’s turf. At the same time, Congress, the lawmaking body, has ceded to the EPA, a part of the Executive Branch, the authority to write regulations (effectively laws; you can be punished for violating them) subject to Congress’ disapproval.

This is a role reversal that violates the Constitution both by ceding too much legislative power* to an unelected body (the EPA) and by blurring the separation of powers by claiming a veto** for the legislature. It upends the intent behind the Constitution and does violence to democratic governance by giving an unelected bureaucracy the upper hand over the elected representatives of the People.

I’m certainly not saying that all regulations are unconstitutional; it’s perfectly reasonable that, within the bounds of  enabling legislation that does not cede too much congressional authority, an administrative agency should write regulations needed to implement Congress’ will. Nor am I saying Congress shouldn’t, at this time, take advantage of the Review Act to rein in an EPA that threatens to go on a regulatory rampage.  But, if a Executive bureaucratic agency has claimed so much power that it has crossed into the realm of legislative usurpation and, because of that, the legislature feels it needs veto authority, then something constitutional is way out of whack.

This resort to the questionably constitutional legislative veto reveals a serious problem in our democracy: unelected, bureaucratic, and largely unaccountable agencies have claimed too much power from the elected representatives of the people. Once this mess with the EPA is sorted out, the next Congress (as if it doesn’t already have enough to do) should look at either amending the enabling legislation for agencies to limit their power or, if need be, eliminating altogether those that no longer serve a useful purpose. It is Congress’ job to make the laws, not to veto a bureaucrat’s diktats.

*The War Powers Act of 1973 has a similar constitutional problem.

**Here, too.

(Crossposted at Sister Toldjah)

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2 Responses to Getting it backwards: the legislative veto

  1. KingstonJW says:

    Informative and helpful. Would it be an appropriate tactic to simply defund rogue agencies to an extent that clearly shows a lack of confidence in the agency and compelling change?

    • Phineas Fahrquar says:

      Thanks. Defunding is certainly an option. Congress could also fund, but specify “No moneys appropriated shall be spent for…”
      Mind you, I’m not averse to using the Repeal Act to fix a problem happening right now. I just think the larger problem of bureaucratic aggressiveness needs to be dealt with, soon.

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