Bradley Tidwell has posted Recovering the Legislative Veto: Toward a Unified Theory of the Separation of Powers on SSRN. Here is the abstract:
America is in a separation of powers crisis. This Article argues that it stems from the Supreme Court’s decision in INS v. Chadha which invalidated the legislative veto, causing the branches to spin out of equilibrium towards disaster. In response, this Article makes an originalist case for the legislative veto based on its usage at the founding, and more broadly argues that the recovery of the once great tool can help resolve our myriad separation of powers problems and bring balance back to the branches.
Since the 1980s, as the Executive Branch has grown in its authority, Congress has found itself in a predicament. Having historically delegated many powers to the Executive Branch, it lacks the ability to claw back its control. Any amendment or revocation of a statutory delegation would require a supermajority of support in Congress or the President himself to concede his own authority. As a result, the Court has attempted to fill in the breach, employing doctrines like nondelegation, major questions, and others, the Court has devised its own methods of resolving the delegation problem. But each of these tools reinforce the power of the judiciary, instead of empowering Congress.
This Article makes the case for why recovering the legislative veto is the best tool to balance the Branches, but also to enable Congress to act as the people’s representatives again. In doing so, this Article contends that the Court in INS v. Chadha wrongly declared the legislative veto as requiring presentment to the President and bicameralism under Article I, Section 7. This Article disproves Chadha by relying on historical evidence of usage of the legislative veto at the founding to show the lack of need for presentment or bicameralism. Part I makes the historical case for the legislative veto, focusing on the administration of petition claims and territorial governance. In each area, Congress delegated authority and used proto-legislative vetoes to negate final decisions made by executive officers. Together, these areas of history reflect the deep, entrenched, settled, and liquidated view of the founders concerning the constitutionality of the legislative veto.
Part II makes the pragmatic case for the legislative veto as a flexible solution to our separation of powers problems. First, it considers the legislative veto as the best solution to various balancing issues such as democratic accountability, runaway Presidents, the decline of Congress, and others. Part II also examines the role of the legislative veto in balancing key delegations that shape executive power, and how its inclusion in many delegations was required for passage. Altogether, this Article sets out the legislative veto as the centerpiece of a unified theory of the separation of powers that hopes to rebalance the federal government and restore Congress.
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