Administrative State
Five Pillars of the Administrative State
•Agency control •Executive control •Judicial control •Legislative control • Public Control
Click here for more coverage of theadministrative state on Ballotpedia.
Click here to accessBallotpedia's administrative state legislation tracker.

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 thelegislative control pillar of Ballotpedia's administrative state coverage, as it allows legislatures to check executive agencies’ rulemaking and enforcement powers in the context ofadministrative 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 PresidentHerbert 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 inImmigration 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, specificallybicameralism andpresentment. 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

• Timeline of key events in the history of the legislative veto
• Background: History of the legislative veto andINS v. Chadha
• How does the legislative veto work?
• State-level legislative vetoes
• Arguments about the legislative veto

Background: History of the legislative veto

See also:Executive branch reorganization authority

The legislative veto originated in the early 1930s under PresidentHerbert 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 delegatereorganization 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 toFranklin D. Roosevelt (D). TheU.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 inINS v. Chadha

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

Under Section 244(c)(2) of theImmigration and Nationality Act of 1952 (INA), Congress had authorized either chamber to invalidate deportation rulings of theUnited 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 theNinth 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 theUnited States Supreme Court.^[3][4][5]

Writing for the court, Chief JusticeWarren Burger argued that the one-house legislative veto established under the INA violated theseparation 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 byboth houses of Congress and signed into law by the president.^[6]

Impact ofINS v. Chadha on the legislative veto

Following theU.S. Supreme Court's ruling inINS 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 inINS 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, PresidentGeorge H.W. Bush (R) stated that the bill's legislative veto provisions "constitute legislative vetoes similar to those declared unconstitutional by the Supreme Court inINS 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 inChadha through 2005, Congress enacted more than 400 new legislative vetoes, according to theCongressional Research Service (CRS). The majority of these legislative vetoes require committee approval ofexecutive agency actions. Non-statutory committee vetoes also function as informal understandings between Congress andexecutive agencies, most often concerning committee oversight of agency spending. While presidents have effectively ignored legislative veto provisions sinceINS v. Chadha, executive agencies have continued to operate closely with their respective congressional oversight committees and honor committee veto provisions.^[1][8]

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

Legislative Veto Timeline

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

• June 23, 1983: The legislative veto was declared unconstitutional at the federal level by theUnited States Supreme Court inImmigration and Naturalization Service (INS) v. Chadha.^[2]
• January 19, 1933: The first legislative veto was exercised by theU.S. House of Representatives in response to a series ofexecutive orders by PresidentHerbert Hoover (R) to reorganize the executive branch.^[1]
• June 30, 1932: PresidentHerbert Hoover (R) signed the Economy Act of 1932, which granted authority to the president to reorganize the executive branch and subjected the reorganization action to a legislative veto by theU.S. Senate or theU.S. House of Representatives.^[1]
• January 1929: The legislative veto was first proposed by PresidentHerbert Hoover (R) in an effort to authorize "the President to submit proposals subject to a congressional veto, instead of requiring Congress to present a bill to the President for his approval or rejection." The reason for the proposal was based on a request for presidential authority to reorganize the executive branch.^[1]

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]

• TheREINS 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.
• TheCongressional Review Act. This is a federal law passed in 1996 that created a review period during whichCongress, by passing ajoint 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 theNational 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:

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]

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]

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 forumJust Security, arguing in favor of legislative vetoes to control executive power:^[15]

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 inINS v. Chadha have resulted in legislative vetoes being unnecessary:^[16]

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 andseparation of powers outlined in theU.S. Constitution. Chief JusticeWarren Burger, writing for the court inINS 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]

See also

• Immigration and Naturalization Service (INS) v. Chadha
• United States Supreme Court
• Executive agency
• Separation of powers
• Congressional Review Act
• REINS Act

External links

• Search Google News for this topic

Footnotes

v • e The Administrative State Main The Administrative State Project main page •Administrative State Project Index •Glossary of administrative state terms •Quotes about the administrative state •Administrative state •Rulemaking •Deference •Adjudication •Nondelegation doctrine •Ballotpedia's administrative state legislation tracker Pillars Agency control •Executive control •Judicial control •Legislative control •Public control Reporting Changes to the Federal Register •Completed OIRA review of federal administrative agency rules •Federal agency rules repealed under the Congressional Review Act •Historical additions to the Federal Register, 1936-2016 Laws Administrative Procedure Act •Antiquities Act •Civil Service Reform Act •Clayton Antitrust Act •Communications Act of 1934 •Congressional Review Act •Electronic Freedom of Information Act •Federal Food, Drug, and Cosmetic Act of 1938 •Federal Housekeeping Statute •Federal Reserve Act •Federal Trade Commission Act of 1914 •Freedom of Information Act •Government in the Sunshine Act •Independent Offices Appropriations Act of 1952 •Information Quality Act •Interstate Commerce Act •National Labor Relations Act •Paperwork Reduction Act •Pendleton Act •Privacy Act of 1974 •Regulatory Flexibility Act •REINS Act •REINS Act (Wisconsin) •Securities Act of 1933 •Securities Exchange Act of 1934 •Sherman Antitrust Act •Small Business Regulatory Enforcement Fairness Act •Truth in Regulating Act •Unfunded Mandates Reform Act Cases Abbott Laboratories v. Gardner •A.L.A. Schechter Poultry Corp. v. United States •Association of Data Processing Service Organizations v. Camp •Auer v. Robbins •Chevron v. Natural Resources Defense Council •Citizens to Preserve Overton Park v. Volpe •Federal Trade Commission (FTC) v. Standard Oil Company of California •Field v. Clark •Food and Drug Administration v. Brown and Williamson Tobacco Corporation •Humphrey's Executor v. United States •Immigration and Naturalization Service (INS) v. Chadha •J.W. Hampton Jr. & Company v. United States •Lucia v. SEC •Marshall v. Barlow's •Massachusetts v. Environmental Protection Agency •Mistretta v. United States •National Federation of Independent Business (NFIB) v. Sebelius •National Labor Relations Board v. Noel Canning Company •National Labor Relations Board v. Sears, Roebuck & Co. •Panama Refining Co. v. Ryan •Securities and Exchange Commission v. Chenery Corporation •Skidmore v. Swift & Co. •United States v. Lopez •United States v. Western Pacific Railroad Co. •Universal Camera Corporation v. National Labor Relations Board •Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council •Wayman v. Southard •Weyerhaeuser Company v. United States Fish and Wildlife Service •Whitman v. American Trucking Associations •Wickard v. Filburn •Wiener v. United States Terms Adjudication (administrative state) •Administrative judge •Administrative law •Administrative law judge •Administrative state •Arbitrary-or-capricious test •Auer deference •Barrier to entry •Bootleggers and Baptists •Chevron deference (doctrine) •Civil servant •Civil service •Code of Federal Regulations •Codify (administrative state) •Comment period •Compliance costs •Congressional Record •Coordination (administrative state) •Deference (administrative state) •Direct and indirect costs (administrative state) •Enabling statute •Ex parte communication (administrative state) •Executive agency •Federal law •Federal Register •Federalism •Final rule •Formal rulemaking •Formalism (law) •Functionalism (law) •Guidance (administrative state) •Hybrid rulemaking •Incorporation by reference •Independent federal agency •Informal rulemaking •Joint resolution of disapproval (administrative state) •Major rule •Negotiated rulemaking •Nondelegation doctrine •OIRA prompt letter •Organic statute •Pragmatism (law) •Precautionary principle •Promulgate •Proposed rule •Publication rulemaking •Regulatory budget •Regulatory capture •Regulatory dark matter •Regulatory impact analysis •Regulatory policy officer •Regulatory reform officer •Regulatory review •Rent seeking •Retrospective regulatory review •Risk assessment (administrative state) •Rulemaking •Separation of powers •Significant regulatory action •Skidmore deference •Statutory authority •Substantive law and procedural law •Sue and settle •Sunset provision •Unified Agenda of Federal Regulatory and Deregulatory Actions •United States Code •United States Statutes at Large Bibliography "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008) Agencies Administrative Conference of the United States •United States Civil Service Commission •U.S. Government Accountability Office •U.S. Office of Information and Regulatory Affairs •U.S. Office of Management and Budget