Chadha’s Mistakes and the Diminished Congress

Though this may seem unbelievable to younger readers, at the end of the twentieth century many commentators were arguing that Congress was the most powerful and influential branch of government. One author chronicled The Decline and Resurgence of Congress, suggesting that the middle of the 1970s marked a revival of congressional authority. By the end of the 1980s, conservative commentators at The Heritage Foundation and the Claremont Institute were lamenting the Imperial Congress, not the irrelevant Congress.

What happened? How did Congress go from an “imperial” institution in a period of “resurgence” to a crippled branch in just a few decades? While the causes are numerous and complex, two Supreme Court decisions in the middle of the 1980s undoubtedly contributed. One of these, Chevron v. Natural Resources Defense Council (1984), is notorious. The other, INS v. Chadha (1983), has received less attention (though it is well known to constitutional law scholars).

Though their relationship is not immediately apparent, there’s a reason that Chevron and Chadha were decided within a year of each other. Chevron declared that courts should defer to agencies’ reasonable interpretations of the statutes the agencies administer. Chadha declared that the legislative veto, which enabled Congress to reverse administrative decisions, was unconstitutional. Chevron strengthened the President’s hand and Chadha diminished Congress’s.

The Court has revisited and overturned Chevron. It should reconsider Chadha as well.

Legislative vetoes were not uncommon or new when the Supreme Court handed down its decision in Chadha. The Northwest Ordinance of 1789, the First Congress’s re-enactment of the famous Northwest Ordinance of 1787, authorized the governor and judges of the territory to “adopt and publish…such laws…as may be necessary and best suited to the circumstances of the district…unless disapproved of by Congress.” Congress, in essence, delegated its lawmaking power over the territory to the governor and judges, but reserved the authority to disapprove of any laws they made.

Congress held on to its authority more tightly in the century and a half following the Constitution’s ratification. In two later periods, however, Congress revived the legislative veto to grant authority to the executive branch while retaining some control over how that authority was exercised.

The first period involved executive reorganization. First used in 1932 at the end of the Hoover administration, executive reorganization statutes authorize the President to submit plans for reorganizing the executive branch to Congress. Some of these statutes allowed only one house of Congress to disapprove of the reorganization plan, thus preventing it from taking effect.  

The second period involved delegations of regulatory authority. Legislative vetoes were used widely in regulatory statutes Congress passed in the 1960s and 1970s, helping Congress protect its policy goals from hostile presidents. The 1975 Energy Policy and Conservation Act contained provisions governing policy decisions relating to such matters as the Strategic Petroleum Reserve Plan and Average Fuel Economy Standards for passenger automobiles. Under the law, either house of Congress could overturn any “energy action” by passing a disapproval resolution within a 15-day window. The Trade Act of 1974, Federal Land Policy Act of 1976, Federal Trade Commission Improvement Act of 1980, and a host of other statutes contained similar provisions. The National Emergencies Act of 1976, which authorizes the President to declare a national emergency and trigger statutory authority under the International Emergency Economic Powers Act of 1977, allowed Congress to repeal the President’s emergency declaration by a resolution that was not subject to the President’s veto. Scholars estimate that somewhere between 200-300 legislative veto provisions existed when Chadha was decided – most of them enacted in the previous few decades.

In summary, Congress delegated significant lawmaking power to the executive branch, believing that the legislative veto was in place to maintain Congress's control over how that power was used. Congress’s delegations relied on the existence of the legislative veto.  

Chadha came along and swept aside those legislative veto provisions. The case involved a provision in the Immigration and Nationality Act which authorized immigration judges to suspend deportation of aliens, subject to a one-house legislative veto. An immigration judge suspended Jagdish Rai Chadha’s deportation, and the House passed a resolution disapproving of the suspension, thus reinstating Chadha’s deportation.

Chadha appealed to the Supreme Court, which determined that the legislative veto provision of the Act was unconstitutional, because it was an “essentially legislative” decision that was made without following Article I, section 7’s Bicameralism and Presentment requirements (which require all laws to be passed by both houses of Congress and presented to the President for signature).

The Court’s decision, as Justice White noted in dissent, was “the death knell for nearly 200 other statutory provisions” that bore resemblance to the legislative veto contained in the Immigration and Nationality Act. Most agreed that the Court’s reasoning in Chadha imperiled the other legislative veto provisions Congress had enacted over the years, and Congress actually changed many laws in response to the decision. For example, Congress modified the National Emergencies Act after Chadha to require a joint resolution, subject to the President’s veto, for Congress to terminate a national emergency.

The Court’s decision and reasoning in Chadha resulted from several mistakes, all of which were devastating for Congress. One mistake was the Court’s basic reasoning, which adopted a paradoxical, selective formalism. It argued that the decision to reinstate Chadha’s deportation was legislative in effect because it “had the purpose and effect of altering the legal rights, duties, and relations of persons.”  Legislative decisions, of course, can only be made under Article I, section 7’s procedures, and the legislative veto did not follow those procedures.

But the Court skirted the obvious problem: the enormity of decision-making authority Congress has granted to the executive to “alter[] the legal rights, duties, and relations of persons” without going through both houses of Congress. The Court has refused to enforce the nondelegation doctrine to require Congress to enact those decisions into law. But when Congress attempts to overturn those decisions, the Court applies a formalist requirement that it had declined to impose when Congress initially delegated authority.

The prospects of getting the Court to resolve this paradoxical formalism the right way – by enforcing a real nondelegation doctrine – are remote. The Court could resolve it in the suboptimal way by reversing Chadha. It could be said that, if Congress is allowed to delegate broad legislative power to the administrative state in the first place, authorizing legislative powers to be exercised without bicameralism and presentment, then it is allowed to exercise those powers itself without going through those requirements. Even this solution, however, is highly unlikely.

Chadha’s final mistake was straightforward, and could be remedied more easily. Most members of Congress, the Reagan Administration, and D.C. commentators assumed that Chadha entailed the demise of the legislative veto. But Justice Rehnquist’s dissent emphasized the connection between Congress’s delegation of authority and the existence of the legislative veto. The statutes that delegated power to the administrative state, Rehnquist argued, related to the authority Congress retained to reverse the administrative state’s decisions. Congress would not have intended to pass the statute without legislative veto provisions in place. If the legislative veto provisions are unconstitutional, then the statutes must be struck down entirely. The Court could not sever those legislative veto provisions from the provisions granting authority in the first place.

Rehnquist’s invitation has largely gone ignored by courts since Chadha was decided. As a result, the legislative veto has become weaker, taking forms, such as notification requirements and the use of joint resolutions (that the President can veto).

Chadha was both part of, and a contributor to, the rising presidentialism that swept through the administrative state in the 1980s. It is no coincidence that the landmark decision for deference to the executive, Chevron itself, followed a year later. But the consequences for Congress have been profound. Correcting Chadha’s mistakes would mightily contribute to current efforts to revive Congress as a genuine counterweight to executive dominance in our constitutional system.

Joseph Postell is a contributing editor to Civitas Outlook and is an Associate Professor of Politics at Hillsdale College.