• Video

Why Is a Legislative Veto Unconstitutional?

Professor Ilan Wurman uses the example of INS v. Chadha to discuss the distinct roles of the three branches of government. A decision of the Attorney General, who works for the executive branch, was overturned by the House of Representatives. The Supreme Court decided that the House acted improperly because it was not using its legitimate legislative power but rather exercising an executive power or possibly a judicial power. https://youtube.com/watch?v=TGWQS9Pt6uY


INS v. Chadha teaches us something very interesting about the separation of powers. It shows that in the hard and contested cases it can be very difficult to define legislative, executive, and judicial power. INS v. Chadha was essentially a deportation case. The law that existed at the time allowed the Attorney General to suspend the deportation of particular individuals like Jadish Chadha if they met certain statutory requirements for good character. In the Chadha case, the Attorney General made this finding and suspended the deportation, stopped the deportation of Chadha from the United States. This statute however, had provision that required the Attorney General to submit his findings, to submit his decision to a committee of the United States House of Representatives. And in this case the House of Representatives vetoed the Attorney General's decision. In other words, the executive branch of government, the Attorney General made a decision that was then countermanded by the U.S. House or Representatives pursuant to this legislative veto mechanism. The Supreme Court in INS v. Chadha held that when Congress acts or when the House of Representatives acts, it's presumptively acting in it's legislative capacity. But to enact legislation, Congress must pass a bill that goes through presentment and bicameralism, in other words, it needs the approval, a bill needs the approval of both houses of Congress and also the President before it can become a law. Here the House of Representatives tried to undertake a legislative act without going through bicameralism or presentment, without the approval of the Senate or the President. This was a violation of the procedural requirements for the exercise of legislative power in the Constitution. Most scholars think that Congress was actually trying to execute the law improperly. Even if Congress was exercising executive power that too would be unconstitutional because under our constitutional system, only the President and the Executive branch can exercise executive power, not Congress. A third view is that Congress was exercising judicial power. This was the view of Justice Powell in his concurrence. In this case, the judicial power and the executive power look awfully similar, but even if this was an exercise of judicial power, the holding of Chadha would still have been correct because again Congress does not have the judicial power except maybe in cases of impeachment. The judicial power belongs to the courts, not to the Congress.

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