An Epic Court Decision

Out of an obscure case, a reshaping of the powers of Congress and President

If even no propensity had ever discovered itself in the Legislative body to invade the rights of the Executive, the rules of just reasoning. . . would of themselves teach us that the one ought not to be left at the mercy of the other.

—Alexander Hamilton, The Federalist, 1788

As Hamilton urged, the Constitution provided a presidential veto power so that no Executive would be left at the mercy of any Congress. The veto clause was, by John Adams' proud reckoning, one of eight such checks and balances in the Constitution, all meant to ensure that no one branch of Government (nor even a volatile citizenry) could ever impose a tyranny on its own. Thus Congress legislates, but the President may veto bills sent to him, and his veto can be overridden only by a two-thirds vote of Congress.

For nearly two centuries, this separation of powers has been celebrated and affirmed as a fundamental tenet of the U.S. democratic system. But it has not always worked out so neatly in the rough-and-tumble of Washington politics. During the past 50 years, the theoretically crisp lines of authority have become more blurred, due largely to a device called a "legislative veto." Under this controversial maneuver, Congress drafts a statute broadly but incorporates a provision calling for review of the Executive Branch's implementation of the law. The provision permits one or both houses of Congress—or even a single committee—to block any actions with which they disagree. Since 1932 one or more such provisions have been made part of 210 laws dealing with everything from foreign arms sales to rules about morticians' sales pitches. Explains Harvard Law Professor Laurence Tribe, a critic of the legislative veto: "Instead of going through the cumbersome and politically painful process of standing up and being counted, Congress says, 'Why don't we just give a blank check to the Executive agencies, and if we don't like the results, we'll say so.' "

Last week the U.S. Supreme Court bounced that congressional blank check. In a sweeping decision, the court declared the legislative veto to be an unconstitutional usurpation of power by Congress. Apparently any exercise of the legislative veto amounts to a new piece of legislation, said Chief Justice Warren Burger in a lucid, 39-page majority opinion; Article I of the Constitution dictates that "every Order, Resolution or Vote"—any legislative act—by Congress is subject to the President's approval. "It is obviously easier for action to be taken by one House without submission to the President," Burger wrote, "but it is crystal clear . . . that the Framers ranked other values higher than efficiency."