Derek Clinger (University of Wisconsin Law School) & Miriam Seifter (University of Wisconsin Law School) have posted Unpacking State Legislative Vetoes on SSRN. Here is the abstract:
This report unpacks state legislative vetoes and aims to prompt renewed conversation on this largely overlooked state governance tool. Evaluating the significance, legality, and desirability of legislative vetoes must start with an understanding of the existing legal landscape, including the wide array of state law provisions and court decisions across the country. The report focuses primarily on state legislative vetoes in the regular administrative rulemaking process, where these mechanisms are most commonly found, though it also discusses the recent COVID-related uptick in the enactment and use of these devices to curb gubernatorial emergency declarations.
The report offers two primary findings. First, state legislative veto systems are widespread but varied. This report broadly classifies 24 states as having a legislative veto over administrative rulemaking. And among the other 26 states, 11 have a system of legislative involvement in the rulemaking process that goes beyond ordinary lawmaking but does not qualify as a legislative veto. Within these broad classifications, there are several types of legislative oversight, ranging from a strong-form legislative veto resembling the model rejected by the U.S. Supreme Court in Chadha to an approach in which a legislative body’s objection halts the rulemaking process until the executive
branch responds. Even within these categories, significant differences exist, both in design and in practice: For example, North Dakota provides for a strong-form two-house veto, but mandates tight timelines for its use, whereas a Wisconsin legislative committee blocks rules for years through repeated impositions of “temporary” suspensions. There are likewise various models in states that lack strong-form legislative vetoes. And adding further to the variety, legislatures often augment their powers through adoption of multiple oversight models. The end result of all these choices is that virtually no two state legislatures have the exact same system of oversight over agency rulemaking. Thus, the common instinct to discuss “the” legislative veto is inapt in the states.
Second, legislative vetoes’ prevalence nationwide belies a more complicated legal story: Most state courts to consider legislative vetoes have reached the same bottom line as federal courts, deeming them unconstitutional. In reaching these rulings, states courts have based their holdings on a wide array of provisions of their state constitutions. Some of these rulings have been superseded by constitutional amendment or statutory adjustment. In other states, direct litigation over the mechanism seems not to have occurred. As an added twist, in a handful of states, current legislative practice seems to disregard key features of state judicial holdings, raising questions about the law’s stability—and calling into question the force that state constitutional holdings have in the absence of significant attention from the legal community.
This report proceeds in three parts. Part I provides a 50-state survey of which states have various types of legislative vetoes and other mechanisms of legislative oversight. Because these mechanisms share both similarities and differences, the report organizes states into a broad taxonomy while also highlighting key design choices within each category. Part II addresses the constitutionality and durability of legislative vetoes in the states, charting their journey through the courts and examining how the mechanisms continue to persist despite a large body of case law declaring them unconstitutional. And Part III analyzes a more recent trend in legislative vetoes fueled by the COVID-19 pandemic: their use to curb gubernatorial emergency declarations.