March 13, 2020 10:25AM

Are Congressional Democrats Warming Up to the Legislative Veto?

Congressional Democrats seem to be warming up to the legislative veto. If so, it would mark a welcome breakthrough in regulatory politics.

But first: What’s a legislative veto?

Basically, it’s a way for Congress to stop a regulation in its tracks. From 1932 to 1975, Congress included 292 of these veto provisions in laws that created regulatory agencies. These vetoes came in many flavors. Sometimes, it took a majority of both the House and Senate to kill a regulatory action. Other times it took passage in only one of the chambers. Less frequently, a legislative veto could be imposed by a single congressional committee.

Though employed infrequently, these provisions operated as “a central means by which Congress secure[d] the accountability of [regulatory] agencies,” according to Supreme Court Justice Byron White. Regulatory agencies feared the legislative veto and, therefore, honored objections registered by lawmakers.

Alas, the Supreme Court nixed the legislative veto in 1983.The problem, according to a majority of Justices, was that these measures had the effect of law, yet they didn’t result from the legislative process set forth in the Constitution—that is, passage by both chambers and the president’s signature.

Thirteen years later, Congress revived the concept, albeit in a lesser form, when President Clinton signed the Congressional Review Act (“CRA”). Under the act, lawmakers have a window of time to vote down new regulations. Unlike the original legislative veto, however, CRA “resolutions of disapproval” require the president’s signature.

Obviously, a sitting president is unlikely to sign a law that repeals one of his or her administration’s own rules. The upshot is that the modern legislative veto is most effective when there’s been a changeover in the party that occupies the presidency—typically, the new boss is eager to overturn rules passed by the old boss. During the first months of Trump’s term, for example, the Republican‐​controlled Congress vetoed 15 rules issued late in Obama’s second term.

This is not to say that the CRA is useless for the party that doesn’t occupy the Oval Office. To the contrary, passing a CRA sends a powerful political message. It concentrates the president’s attention—and, by extension, that of the media and public—on the regulatory measure at issue. In a time when most policy flows from an alphabet soup’s worth of regulatory agencies, a CRA resolution serves the salutary purpose of forcing elected officials to pay attention to the rules being churned out by non‐​elected officials.

Congressional Republicans understand this. President Obama had to veto at least five CRA resolutions of disapproval during the 114th Congress (S.J. Res. 8, S.J. Res. 22, S.J. Res. 23, S.J. Res. 24, & H.J. Res. 88). At least three more legislative vetoes were passed by a Republican‐​controlled House or Senate. (H.J. Res. 37, H.J. Res. 118, & S.J. Res. 28). And GOP lawmakers introduced many more throughout Obama’s tenure.

Congressional Democrats, by contrast, have been far less willing to employ the Congressional Review Act against a Republican president. According to my review of the Thomas database, a Democrat‐​controlled House or Senate passed only one legislative veto during the George W. Bush administration. That measure, moreover, was politically anodyne—it passed the Senate on a voice vote. Simply put, Democrats never played hardball with the legislative veto, unlike Republicans.

The Democrats’ inaction is puzzling, given that the legislative veto cuts both ways. Put differently, CRA resolutions apply just as readily to de-regulatory action as they do to regulatory action. Why would Democrat lawmakers reject an effective check?

In an insightful article from last Summer, congressional scholar Philip Wallach offered an answer. According to Wallach, Republicans have foolishly branded the legislative veto as anti‐​regulation, which leads to two results. First, Democrats deny themselves use of the Congressional Review Act. Second, and more generally, it’s “significantly harder to fashion bipartisan compromises that favor the first branch.”

I mostly agree with Wallach, though I’m a bit more bipartisan in my fault‐​finding. I think our contemporary politics are so impossibly Manichean that either side’s knee‐​jerk reaction is to do the opposite of what the other side is doing, even if such a reflexive response is counterproductive.

That’s the bad news. Now for the good news: Progressive lawmakers seem to be getting over their illogical rejection of the legislative veto. In late January, the House passed H.J. Res. 76, which would block a controversial student‐​aid rule promulgated by the Education Department.

The White House took note—last week, it “strongly” objected and promised to veto H.J. Res. 76 were it to reach the president’s desk. By my count, this is the first time a Democrat‐​controlled chamber of Congress has played rough with the legislative veto. I’m not saying I favor the Democrats’ policy ends, but I love their means.

There are other encouraging signs. Twice, Senate Democrats have forced roll call votes on divisive CRA resolutions during Trump’s first term. (S.J. Res. 63S.J. Res. 50). Many more such resolutions have been introduced.

Admittedly, it’s too early to tell whether congressional Democrats are truly embracing the full arsenal of legislative checks on executive action. I am, nevertheless, hopeful these examples reflect a trend.

There is precedent for Democrat leadership doing an about‐​face on an institution that they once had spurned (mistakenly) as anti‐​regulatory. In 1981, President Reagan unilaterally created a powerful management tool over the administrative state, known as White House “regulatory review.” For years, progressives were upset, because they believed that such review must be inherently de-regulatory. Yet many progressives changed their mind in 2001, when then‐​professor (and current Supreme Court Justice) Elena Kagan wrote a blockbuster article describing how the Clinton White House had leveraged regulatory review for progressive ends. Kagan’s key insight was that both parties can play the game.

Let’s all hope that congressional Democrats are coming to a similar realization about the legislative veto. The Framers separated the powers of government to protect individual liberty from an overbearing state. For too long, Congress has remained passive while the president achieves an unhealthy concentration of power over domestic policymaking. It’s well past time for Congress to reassert itself and re‐​balance the separated powers. To this end, it would be a welcome start if congressional Democrats overcame their irrational distaste for the legislative veto.