Legislative Veto

ADMIN EXERCISE NO. 5: THERE ARE A MULTITUDE OF PHILIPPINE LAWS WHICH PROVIDE FOR A LEGISLATIVE VETO. ASSUME THAT THE CONSTITUTIONALITY OF THE LEGISLATIVE VETO IS BROUGHT BEFORE THE SUPREME COURT. PRETEND THAT YOU ARE THE CHIEF JUSTICE AND HAVE BEEN TASKED TO PEN THE DECISION FOR ALL POSTERITY TO STUDY. PLEASE PEN YOUR DECISION.

FACTS

In light of the longstanding debate regarding the constitutionality of legislative veto, this Court finds it imperative to finally put this persistent issue to rest. A legislative veto is a mechanism which allows for the legislative branch of government to repeal certain presidential actions. For those who subscribe to a rigid concept of separation of powers among the three co-equal branches of government, this is immediately problematic--for a legislative veto logically entails a delegation of power of a primary source to a recipient--placing in question the legitimacy of this conveyance of authority. As put forth in the article by William West and Joseph Cooper--

"Legislative vetoes have thus been employed across a broad range of substantive policy areas, and have been used to control a variety of administrative actions. The veto mechanisms themselves vary along several dimensions. One form of review provides Congress with an opportunity to disapprove executive decisions before they take effect; another form requires explicit congressional approval; and another merely establishes a mandatory waiting period (during which Congress may block proposed actions through the normal legislative process). Authority for approval or disapproval may be vested in either house, both houses, a committee or committees from either house, relevant committees from both houses, or some combination of houses and committees (1983: 286)."

The concept of absolute nondelegation of powers was first articulated by John Locke in his writings wherein he subscribed to a strict separation of authority between the branches, such that the executive could not, at all, wield legislative power. A strict construction of such concept would necessarily require that Congress be thorough and comprehensive in its policy determinations. Later on, however, James Madison sought to temper this rigid stance by stating that what the Constitution prohibits is only the exercise by one branch of the whole power of another. This has been echoed by the decisions of the Supreme Court of the United States which required not an absolute nondelegation of powers, just compliance with a standards requirement in order that such delegation may be upheld. Indeed, it has been observed that a strict construction of the nondelegation doctrine is one which is hardly practicable to implement. Hence, the legitimacy of executive discretion has repeatedly been allowed and recognized. To explain further, Congress retains control over primary policy determination and it only delegates discretionary authority to government agencies who, in turn, effectuate these policy choices in the form of more detailed subordinate rules. What has been brought to the attention of this Court, however, is that the Supreme Court has increasingly become lax in the enforcement of standard requirements. Consequently, this has resulted in an upsurge in Congress' delegation of legislative power to the executive branch to which the legislative veto has proved to be quite instrumental.

In the landmark U.S. case of INS v. Chadha et al., the Court had occasion to rule that the congressional veto was invalid. Subject of this case was Section 244 of the Immigration and Nationality Act which authorized the Immigration and Naturalization Service (INS) to suspend deportation of aliens in the United States when the Attorney General, in his discretion, found that deportation would result in extreme hardship. After such a finding, a report would be transmitted to Congress pursuant to the said law, and either house of Congress had the authority to veto the Attorney General's determination. The Court, in its decision, characterized the legislative veto as an exercise of legislative power. What was remarkable with the decision in the said case was that it reflected a shift in the Court's stance with regard to the delegation of authority - from a practical and relaxed approach to one which strictly presumes absolute nondelegation. As propounded in the Yale Law Journal Article, "Chadha and the Nondelegation Doctrine: Defining a Restrictive Legislative Veto," the said reasoning used by the Court which subscribed to a strict nondelegation was not compatible with, first, the Court's historical approach to the issue of delegation, and, second, with the doctrine which characterizes the administrative state, specifically that which grants the executive discretion in the implementation of legislative initiatives (McMahon 1985: 1503).

Critics of legislative veto have argued that it promotes standardless delegations. It is viewed as a mechanism under which members of Congress pass on the responsibility of determining policy onto agency officials whose accountability to the public is not as direct as for those voted into office. Furthermore, it has been said that this facilitates Congress' avoidance of making difficult policy choices. It has been advanced that the Chadha decision now provides a disincentive for members of Congress to delegate because of their diminished control over the decisions of agency officials. On the other hand, it has been argued that the legislative veto actually enforces the standards requirement especially in instances where standards are not feasible. Given the existence of unforeseeable circumstances, and granted that Congress may lack the time and expertise crucial to effective policymaking, the veto actually fulfills the standards requirement by empowering Congress by vesting in it the ultimate control in policymaking which had earlier been delegated.

The concept of a restricted legislative veto has restrained us from interpreting the concept of legislative veto in the extreme. Such necessitates setting parameters or restrictions within which legislative veto can be exercised without setting forth the evils its critics have identified. These restrictions ought to fulfill the standards requirement and should be reasonably restricted. It has been said that congressional policymaking can be encouraged through the elimination of what is called as a negative-form of legislative veto. A veto is said to be in its negative form where "agency action pursuant to a grant of discretionary authority took effect after a specified time unless Congress passed a resolution of disapproval." Consequently, Congress need not specifically articulate its policy when delegating authority because Congress "can