Committee Controls of Agency Decisions
CRS Report for Congress
Committee Controls of Agency Decisions
November 16, 2005
Louis Fisher
Senior Specialist in Separation of Powers
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Committee Controls of Agency Decisions
Summary
Congress has a long history of subjecting certain types of executive agency
decisions to committee control, either by committees or subcommittees. Especially
with the beginning of World War II, the executive branch agreed to committee
controls as an accommodation that allowed Congress to delegate authority and funds
broadly while using committees to monitor the use of that discretionary authority.
These committee-agency arrangements took the form of different procedures: simply
notifying the committee, obtaining committee approval, "coming into agreement"
understandings, and using the congressional distinction between authorization and
appropriation to exercise committee controls.
By the 1930s, the White House and the Justice Department began to object to
committee-approval arrangements as an encroachment into executive duties and a
violation of separation of powers. Litigation in the 1970s, supported by the
Administration, resulted in the Supreme Court’s decision INS v. Chadha (1983),
striking down every form of legislative veto: two-house, one-house, committee,
subcommittee, and chairman. The Court ruled that whenever Congress intends to
exercise control over any action outside the legislative branch, it must comply with
the regular constitutional requirements for lawmaking: action by both houses
(bicameralism) and submission of a bill or joint resolution to the President for his
signature or veto (Presentation Clause).
Notwithstanding this decision, agencies continue to fashion accommodations
that settle some decisions at the level of committees and subcommittees. This type
of arrangement is seen frequently in reprogramming procedures, where agencies seek
committee/subcommittee approval before shifting certain types of funds within an
appropriations account. A number of committee vetoes are also used outside the
reprogramming process.
This report explains how and why committee vetoes originated, the
constitutional objections raised by the executive branch, the Court’s decision in
Chadha, and the continuation of committee review procedures since that time. For
a brief six-page treatment, see CRS Report RS22132, Legislative Vetoes After
Chadha, by Louis Fisher. This report will be updated as events warrant.
Contents
The Presentation Clause.............................................1
Nineteenth Century Exceptions...................................2
Early Twentieth Century........................................2
Constitutional Disputes.........................................3
“Come into Agreement” Provisions....................................3
Presidential Objections.........................................5
Congressional Override Debate...................................6
Committee Veto Resurfaces.....................................8
Accommodations Under Eisenhower...................................9
Authorization-Appropriation Distinction...........................10
“Imperative Needs”...........................................10
Attorney General Opinion......................................11
Committee Vetoes Persist......................................12
Legal Objections.............................................13
Presidents Take Aim..............................................13
Johnson Draws the Line........................................14
Congressional Rulemaking Provision .............................15
Carter’s Challenge............................................16
Some Exceptions Allowed......................................16
Litigation .......................................................18
Lower Court Action...........................................18
INS v. Chadha...............................................19
Elected Branch Response...........................................19
Statutory Fixes...............................................20
Resort to Congressional Rules...................................21
Notification .................................................21
Nonstatutory Understandings........................................21
NASA Accommodation........................................22
Transferring AID Funds........................................23
The “Baker Accord”...........................................23
Continued Litigation..............................................24
D.C. Area Airports............................................24
GSA Notification.............................................25
Reprogramming of Funds..........................................25
Origin of Reprogramming......................................26
Defense Reprogramming.......................................26
Other Committee Procedures....................................29
Conclusions .....................................................31
Committee Controls of Agency Decisions
This reports explains the origin, growth, and persistence of committee controls
over executive agency decisions in the face of repeated legal and constitutional
objections by various Administrations. By reviewing the origin of committee
controls six to seven decades ago, one is better able to understand how and why these
committee-agency relationships were forged, and why some committee-veto
provisions have survived after the Supreme Court, in INS v. Chadha (1983), declared
the legislative veto unconstitutional. What is interesting about the continuation of
committee review procedures after Chadha is that they appear not merely in statutory
provisions (objected to regularly by Presidents in their signing statements) but in
agency budget manuals as well. That is, despite constitutional objections raised by
Presidents and the Justice Department, executive departments and agencies have
found it both practicable and necessary to submit certain proposals to designated
committees for their review and approval.
The Presentation Clause
A committee veto requires an executive agency to submit a proposed action to
designated committees before placing the program in operation. This procedure
obviously departs from the customary route of having Congress pass a bill and
present it to the President. Article I, Section 7, of the Constitution provides that
“every Order, Resolution, or Vote to which the Concurrence of the Senate and House
of Representatives may be necessary (except on a question of Adjournment)” shall
be presented to the President for his signature or veto. Legislative actions short of
a public law have included various types of legislative vetoes: two-house (concurrent
resolution), one-house (simple resolution), and committee/subcommittee controls.
Even before the development of legislative vetoes, the Constitution permitted
some exceptions to the Presentation Clause. Congress adopted constitutional
amendments in the form of resolutions and referred them directly to the states (rather
than through the President) for ratification. The procedure, following the language
of Article V of the Constitution, was sanctioned by the Supreme Court in 1798.1
Also from an early date, Congress passed simple and concurrent resolutions for
internal housekeeping matters. Since these were not regarded as “legislative in
effect,” there was no need to submit them to the President. Many of them were
adopted pursuant to congressional powers under Article I to determine procedural
rules in each house and to punish or expel Members of Congress. Committee
subpoenas and the power of either house to hold an executive official in contempt are
other actions not considered to be legislative in effect.
1 Hollingsworth v. Virginia, 3 Dall. 378 (1798).
Nineteenth Century Exceptions
A Senate report in 1897 concluded that “legislative in effect” depended not on
the mere form of a resolution but on its substance. If it contained matter that was
“legislative in its character and effect,” it had to be presented to the President.2
However, executive officials at times recognized that the legislative effect of such
resolutions could be changed fundamentally by having their use sanctioned in a
public law. In 1854 Attorney General Caleb Cushing stated that a simple resolution
could not coerce a department head “unless in some particular in which a law, duly
enacted, has subjected him to the direct action of each; and in such case it is to be
intended, that, by approving the law, the President has consented to the exercise of
such coerciveness on the part of either House.”3
For example, legislation in 1867 placed the following restriction on
appropriations for public buildings and grounds: “To pay for completing the repairs
and furnishing the executive mansion, thirty-five thousand dollars: Provided, That
no further payments shall be made on any accounts for repairs and furnishing the
executive mansion until such accounts shall have been submitted to a joint committee
of Congress, and approved by such committee.”4 President Andrew Johnson could
have objected that the lawmaking process established by the Constitution requires
action by both chambers and submission of a bill to the President for his signature
or veto. However, he may have concluded that obtaining approval from a joint
committee would be easier than getting legislation through the entire Congress.
Early Twentieth Century
Attorney General Cushing’s opinion covered certain types of one-house and
two-house actions used to direct executive officials. In 1903, Congress resorted to
simple resolutions to direct the Secretary of Commerce to make investigations and5
to issue reports. Two years later, Congress relied on concurrent resolutions to direct
the Secretary of War to make investigations in rivers and harbors matters.6 In 1920,
President Woodrow Wilson vetoed a bill because it provided that no government
publication could be printed, issued, or discontinued unless authorized under such
regulations prescribed by the Joint Committee on Printing. He objected that
Congress had no right to endow a joint committee or a committee of either House
“with power to prescribe ‘regulations’ under which executive departments may
operate.”7
Other Presidents were willing to agree to committee controls if Congress would
transfer to them additional authority. In 1929, President Herbert Hoover proposed
2 S. Rept. No. 1335, 54th Cong., 2d Sess. 8 (1897).
3 6 Ops. Att’y Gen. 680, 683 (1854).
4 14 Stat. 469 (1867).
5 32 Stat. 829, § 8 (1903).
6 33 Stat. 1147, § 2 (1905). See 2 Hinds’ Precedents §§ 1593-94.
7 17 A Compilation of the Messages and Papers of the Presidents 8846 (1925 ed.).
to Congress that it delegate to him the authority to reorganize executive agencies,
subject to the approval of a joint committee of Congress.8 When Congress passed
legislation for reorganization authority in 1932, it allowed either house to disapprove
a presidential proposal.9
Constitutional Disputes
Administrations objected to committee involvement in certain kinds of
executive matters. In 1933, Attorney General William Mitchell issued an opinion
that regarded as unconstitutional a bill that authorized the Joint Committee on
Internal Revenue to make the final decision on any tax refund that exceeded
$20,000.10 Previous legislation had allowed the committee to decide all tax refunds
over $75,000. Apparently executive officials had lived with the higher threshold
without objection. By lowering the amount, a political accommodation was
somehow transformed into unconstitutional interference with executive decisions.11
Despite Mitchell’s opinion, Congress continues to require the Treasury
Department to notify the Joint Committee on Taxation of refunds above a certain
level. Prior to 2000 the amount was $1,000,000.12 In 2000 Congress increased the
amount to $2,000,000.13 It would be possible for a President or administration
official to raise a constitutional objection that the committee’s disapproval of a
refund beyond the statutory ceiling would be merely advisory and not binding, but
the political cost of that position might well exceed any perceived benefits of a pure
version of separated powers.
“Come into Agreement” Provisions
A unique type of committee veto emerged during World War II to handle
military construction and the acquisition of land by the military services.
Administration officials raised some constitutional questions about this involvement
of Congress in executive decisions, but political accommodations were worked out
between the branches. Because of the magnitude of wartime construction, it was
considered impracticable to follow the customary practice of having Congress
authorize each defense installation or public works project. Discretion had to be
granted to executive officials, but Congress was also intent on establishing effective
legislative controls.
Beginning with an informal system in 1942, all proposals for acquisition of land
and lease arrangements were submitted in advance to committees of jurisdiction.
8 Public Papers of the Presidents, 1929, at 432.
9 47 Stat. 413-15, §§ 401-08 (1932).
10 37 Ops. Att’y Gen. 56 (1933).
11 See 76 Cong. Rec. 2448 (1933).
12 26 U.S.C. § 6405(a) (1994).
13 Pub. L. No. 106-554, 114 Stat. 2763A-634, § 305(a) (2000); 26 U.S.C. § 6405(a) (2000).
During House debate on February 23, 1943, Representative Melvin J. Maas of the
Naval Affairs Committee said there “has been a growing apprehension relative to the
military services going into the real-estate business.” The committee felt “while we
must allow discretion to the Navy in the selection of sites, that at least we should
know what they are doing.”14 The bill therefore required the Secretary of the Navy
to report to the House and Senate Naval Affairs Committees on all prospective
acquisitions of land, by lease or otherwise.15
In a letter of February 17, Secretary of the Navy Frank Knox wrote to
Representative Carl Vinson, chairman of the House Naval Affairs Committee, about
concerns that had been expressed with respect to the proposed construction of certain
facilities for the development of the naval air transport services. It was Knox’s
understanding that the committee accepted the need for these projects and that “when
the details have been worked out they will be discussed with the committee before
final commitments are made. This arrangement is satisfactory to me.”16 Would the
Navy Department merely report to the committees, in advance, and then proceed with
its plans? Some legislators thought that the committees would have to first grant
their approval to the specific projects. As one Member noted, the department would
have “to come back to the committee for further approval.”17 Other lawmakers
believed that if the committees objected to the proposed projects, Congress as a
whole would have to disapprove by regular legislation.18
Secretary Knox clarified the situation with another letter to the House Naval
Affairs Committee, this one dated February 22. Concerning the bill language
requiring the Secretary of the Navy to report to the Naval Affairs Committees on all
prospective acquisitions of land, by lease or otherwise, Knox explained the political
accommodation that would eliminate the need for Congress to vote on each specific
acquisition:
It is my understanding that this amendment has been proposed in order to
avoid the necessity of having specific legislative authorization for each
individual acquisition of land. I understand further that the committee
understands from the wording of the amendment that the Department will come
into the agreement with the Naval Affairs Committees of the House and Senate
with respect to acquisitions before final commitments are made. This procedure19
is acceptable to me.
That informal system was replaced by statutory directives in a 1944 statute
governing the construction of public works for the Navy. The statute provided:
“prior to the acquisition, by lease or otherwise, of any land under authority of this act,
the Secretary of the Navy shall report to the Senate and House Naval Affairs
14 89 Cong. Rec. 1218 (1943).
15 Id.
16 Id. at 1219.
17 Id. (remarks by Rep. Cole).
18 Id. at 1218 (remarks by Rep. Maas); id. at 1220 (remarks by Rep. Maas).
19 Id. at 1229.
Committees all such prospective acquisitions.”20 The committees would therefore
know in advance of pending actions and could register their approval or disapproval.
A few months later Congress tightened the statutory language, replacing the merely
“report” language to mutual agreement between the Secretary of the Navy and the
naval committees. The new language read:
prior to the acquisition or disposal, by lease or otherwise, of any land acquired
for naval use under the authority of this, or any other Act, the Secretary of the
Navy shall come into agreement with the Naval Affairs Committees of the Senate
and of the House of Representatives with respect to the terms of such prospective
acquisitions or disposals; and recital of compliance with this proviso in any
instrument of conveyance by the Secretary of the Navy under authority of this or
any other Act shall be conclusive evidence of the Secretary’s compliance with21
this proviso as to the property conveyed.
In return for the Administration’s agreement to abide by committee objections,
Congress consented to enact general authorization statutes providing lump-sum
amounts rather than trying to specify individual projects. Both sides found it a
reasonable compromise.
Additional “come into agreement” provisions were added in 1949 and 1951,
requiring the approval of the Armed Services Committees for acquisition of land and22
real estate transactions. In a January 6, 1951 statute authorizing military and naval
construction, Congress stated in Section 407 that the military services “may not grant
or transfer to another Government department or agency other than a military
department or to any other party any land or buildings of a permanent nature . . .
except as authorized by an Act of Congress enacted subsequent to the date of
enactment of this Act.”23
Presidential Objections
Nine days after signing the January 6, 1951 statute, President Harry Truman sent
a special message to Congress objecting that the language in Section 407 “may
seriously impede our mobilization effort by causing unnecessary and unwarranted
delay in the transfer for other governmental uses of property excess to the needs of24
the military departments.” He cautioned Congress to avoid getting involved in the
details of management: “it seems to me unwise at a time when the Congress will be
fully concerned with matters of greatest national importance, to go through the
process of reviewing in detail, transaction by transaction, the sale or disposition to
the general public of such few pieces of property as may be determined to be surplus
20 58 Stat. 8 (1944).
21 Id. at 190.
22 63 Stat. 66 (1949); 65 Stat. 365, § 601 (1951).
23 64 Stat. 1223, § 407 (1951).
24 Public Papers of the Presidents, 1951, at 107.
to the needs of the government as a whole.”25 He urged Congress to repeal the
section.
Congress did repeal Section 407, but in its place adopted a committee-control
mechanism. On May 15, 1951, President Truman vetoed the bill, objecting that it
would require the Army, Navy, Air Force, and Federal Civil Defense Administration
“to come into agreement with the Committees on Armed Services of the Senate and
House of Representatives with respect to the acquisition or disposal of real property,
including leases involving an annual rental in excess of $10,000, and including
transfers of real property between the military departments or to other Federal
agencies, or to States, with certain minor exceptions.” He acknowledged that
“Congress or its members have a special interest in a number of real estate
transactions by the Executive Branch of the Government,” and that “full information
with respect to those transactions has in the past and will in the future be made
readily available to the interested Committees of the Congress.” However, he said
that a legal requirement to submit real estate transactions to congressional
committees “would result in the imposition of a severe and unnecessary
administration burden on the Department of Defense.”26 Subjecting administrative
proposals to committee review might cause serious delays on agency execution and
planning. In addition, he argued, rather than have real estate transactions handled
largely in the field, they would have to be centralized in the Pentagon, leading to
potential waste of time and money.
The points raised by President Truman concerned administrative, not
constitutional, problems. Yet he also expressed his concern “by what appears to me
to be a gradual trend on the part of the legislative branch to participate to an even
greater extent in the actual execution and administration of the laws.” Under the U.S.
Constitution “it is contemplated that the Congress will enact the laws and will leave
their administration and execution to the executive branch.” The delays he identified
in the vetoed bill “testify to the wisdom of that constitutional policy.” He regarded
it as “particularly inappropriate to depart from that policy in the field of military
emergency when expeditious action may be vital to the survival of our nation.”27
Congressional Override Debate
The House overrode the veto handily by a vote of 312-68.28 Representative Carl
Vinson explained that the bill had passed his committee on Armed Services
unanimously, had passed the House unanimously, and had passed the Senate with the
change of a single word. The purpose of the bill, he said, was to take the April 4,
25 Id.
26 Public Papers of the Presidents, 1951, at 280-81.
27 Id. at 282.
28 97 Cong. Rec. 5444-45 (1951).
Committees, and to extend the same principle to the Army and the Air Force.29 All
35 members of the House Armed Services Committee recommended that the veto be
overridden. 30
Representative Vinson also disputed the charge that the bill would lead to
excessive delays or heavy administrative burdens on the Defense Department.
Experience over the previous nine years –– two years by informal agreement and
seven by statutory requirement –– had not revealed such problems. Substantial sums,
he said, had been saved as a result of close committee review. Moreover, “there was
no objection from the Department of Justice as to the constitutionality of this
question of [committee] veto.”31
Ironically, Vinson looked for support to the work done by Truman in 1944 when
he headed a Senate investigation committee, uncovering “many injustices” by the
War Department in acquiring hotels. Senator Truman compared those problems with
the experience of the Navy Department, which “advises the legislative committees
of its real estate acquisitions in advance and keeps those committees advised of its
situation.”32
Vinson said that when the Armed Services Committee held a hearing on the
draft bill in 1951, a general from the Corps of Engineers, representing the Defense
Department, objected that the bill would cause too much trouble and delay. The
committee told him: “General, you can write the bill to suit yourself.” He exempted
rivers and harbors and flood control projects and exempted leases on agricultural
grazing permits. As to the balance of the bill that he drafted, Vinson said “of course
he is against it because all departmental officials are against Congress knowing what
goes on.”33
As an example of savings realized through the committee review process,
Representative Vinson described a $30,000,000 proposal by the Navy Department
to construct a new plant to manufacture aircraft engines. After House Armed
Services asked the Navy to make a further investigation and survey, it withdrew the
proposal because it found existing facilities suitable to do the work.34 Vinson offered
this advice:
If any man in this House that is sent here to exercise this responsibility will go
back home and tell your people that you are sent to Washington only to
appropriate money that the Department of Defense wants and you know nothing
about it until the time comes to foot the bill, I guarantee if you make that kind of
29 Id. at 5435.
30 Id.
31 Id. at 5436.
32 Id.
33 Id.
34 Id
a statement they will send a man with a little more inquisitive mind to35
Washington.
To Vinson, Congress had every right to scrutinize real estate transactions by
executive agencies, especially on the transfer of government land and buildings:
“[w]hy should we permit the Department of Defense, whenever it makes up its mind,
to sell this piece of property or sell that piece of property? It is Government property,
and Congress should have some control over Government property.”36
Several Members of the House, including Abraham Multer, Boyd Tackett, Chet
Holifield, and Wright Patman argued that Congress had no right to administer the
laws that it enacts. Some of these objections came from Members who thought that
the Armed Services Committee was encroaching upon the jurisdiction of their own
committees, such as Expenditures in Executive Departments and Banking and
Currency.37 After the House overrode President Truman’s veto, the Senate tabled the
President’s message and did not take it up again.38
Committee Veto Resurfaces
Having failed to override Truman’s veto, lawmakers decided to write a new bill
and included within it the disputed “come into agreement” provision. The bill
became law on September 28, 1951. Instead of the earlier dollar threshold of
$10,000, the new language increased it to $25,000 for five specified categories.39
President Truman signed the bill and did not make a separate signing statement
commenting on the committee veto.
House and Senate debate sheds some light on the compromise language and the
determination of Congress to vest control in the Armed Services Committees
notwithstanding constitutional objections about the separation between the branches.
Representative Vinson, managing the bill in the House, explained that the authority
given to the Armed Services was so necessary that it was incorporated in the pending40
bill. The “come into agreement” procedure was included as Section 601, adopting
in two subsections the same $10,000 threshold as the bill that President Truman had4142
vetoed. Three subsections had no dollar threshold at all. The bill passed 353 to 5.
In the Senate, Section 601 was amended by increasing $10,000 to $25,000 and
35 Id.
36 Id. at 5437.
37 Id. at 5437-43.
38 Id. at 5490.
39 65 Stat. 336, 365, § 601 (1951).
40 97 Cong. Rec. 9816 (1951).
41 Id. at 9834.
42 Id. at 9956.
making the higher threshold apply to all five subsections.43 In conference, the House
accepted the Senate substitute with the exception of a single word in subsection (d).44
President Truman signed the bill into law.45
In his last year in office, President Truman had one more opportunity to voice
his objection to committee vetoes. Congress passed a bill authorizing the Postmaster
General to lease quarters for Post Office purposes. The legislation required every
lease-purchase agreement negotiated under authority of the bill to receive the
approval of the House and Senate Committees on Post Office and Civil Service and
the House and Senate Committees on Public Works. Congress adjourned sine die on
July 7, 1952, for the second session of the 82d Congress. The bill reached Truman
two days later. In a pocket veto, he questioned “the propriety and wisdom of giving
Committees veto power over executive functions authorized by the Congress to be
carried out by executive agencies.”46
There appeared to be no Administration objection that final year to placing veto
power not merely with a committee but with a committee chairman. A supplemental
appropriation bill, enacted on July 15, 1952, established procedures for making
changes in Bureau of the Budget Circular A-45, dated June 3, 1952. The statute
provided that the circular could be amended or changed during the current fiscal year
“by the Director of the Budget with the approval of the chairman of the Committee
on Appropriations of the House of Representatives.”47
Accommodations Under Eisenhower
During the presidency of Dwight D. Eisenhower, on several occasions
administration officials raised constitutional objections to the sharing of
administrative decisions with political groups outside the executive branch. On May
25, 1954, President Eisenhower vetoed a bill providing for the conveyance of lands
within a military camp in Florida. In agreeing to the general purpose of the bill, he
objected to a provision that authorized the State of Florida to dispose of “interests or
rights in land by lease, license, or easement or by contract of sale of timber or timber
products” upon the condition that in the case of federal lands –– and within nine
months after enactment of the bill –– the state and the Secretary of the Army agreed
on how to dispose of the revenues from such operations. Eisenhower supported
cooperative action between federal and state governments, but drew the line at a
provision that required the state and the Secretary to then “come into agreement”
with the Armed Services Committee. To give the committee joint control over such
decisions “would violate the fundamental constitutional principle of separation of
powers prescribed in Articles I and II of the Constitution which place the legislative
43 Id. at 10968.
44 Id. at 11529 (Amendment 30).
45 65 Stat. 365, § 601 (1951).
46 Public Papers of the Presidents, 1952-53, at 488.
47 66 Stat. 661, § 1413 (1952).
power in the Congress and the executive power in the Executive branch.”48 The
making of a contract or agreement on behalf of the United States “is a purely
executive or administrative function.”49 He recommended that the bill be modified
by requiring executive agencies to submit reports to Congress on actions taken. The
modified bill became law on July 14, 1954, without the coming-into-agreement
provision.50
Authorization-Appropriation Distinction
Congress responded with a different mechanism for assuring committee control.
Legislation enacted on July 22, 1954 amended the Public Buildings Act to authorize
the Administrator of General Services to acquire title to real property and to provide
for the construction of certain public buildings by executing purchase contracts.
With the Administration blocking the coming-into-agreement provision, the General
Services Administration (GSA) statute provided as follows:
No proposed purchase contract agreement shall be executed under this section
unless such agreement has been approved by the Director of the Bureau of the
Budget, as evidenced by a written statement of such officer to the effect that the
execution of such agreement is necessary and is in conformity with the policy of
the President. No appropriations shall be made for purchase contract projects
which have not been approved by resolutions adopted by the Committees on
Public Works of the Senate and House of Representatives, respectively, within51
three years after the date of enactment of this Act.
President Eisenhower did not object to this procedure. During debate on the
bill, lawmakers explained that they had checked with the Parliamentarians of the two
houses and were satisfied that the procedure was an appropriate and constitutional
methods of “retain[ing] the authorization power in the hands of the Congress . . . .”52
If an appropriation should be proposed that lacked the approval of the Public Works
Committees, the appropriation would be subject to a point of order.53
“Imperative Needs”
A year later, Congress placed a committee veto in the defense appropriations
bill. No part of the funds appropriated in that bill “may be used for the disposal or
transfer by contract or otherwise of work that has been for a period of three years or
more performed by civilian personnel” of the Defense Department unless justified
to the Appropriations Committees at least ninety days in advance of such disposal or
transfer, “that its discontinuance is economically sound and the work is capable of
performance by a contractor without danger to the national security: Provided, That
48 Public Papers of the Presidents, 1954, at 508.
49 Id.
50 68 Stat. 474 (1954).
51 68 Stat. 519 (1954).
52 100 Cong. Rec. 10016 (1954) (remarks by Sen. Case).
53 Id. (remarks of Sen. Holland).
no such disposal or transfer shall be made if disapproved by either committee within
the nine-day period by written notice to the Secretary of Defense.”54
In signing the bill, President Eisenhower said he did so because the funds “are
urgently needed.” Except for that “imperative need,” he would have withheld his
approval because Attorney General Herbert Brownell had advised him that the
committee veto “constitutes an unconstitutional invasion of the province of the
Executive.”55 Congress had “the power and the right” to grant or deny an
appropriation, but once the funds are provided they must be “administered by the
executive branch of the Government alone, and the Congress has no right to confer
upon its committees the power to veto Executive action or to prevent Executive
action from becoming effective.”56 He stated that his approval of the bill was not
intended to acquiesce to the procedure, and to the extent the Appropriations
Committees exercised a veto, “such section will be regarded as invalid by the
executive branch of the Government in the administration [of the bill] unless
otherwise determined by a court of competent jurisdiction.”57 No litigation resulted
from this statute. The statement that the provision would be regarded as invalid left
it in the hands of the Administration, and particularly the Secretary of Defense,
whether to honor or defy a committee veto. If the Administration chose the latter
course, it could have expected legislative sanctions of one form or another.
Attorney General Opinion
On the same day as Eisenhower’s signing message, Attorney General Brownell
released a six-page opinion entitled “Authority of Congressional Committees to
Disapprove Action of Executive Branch.” He concluded that the committee-veto
provision in the defense appropriations bill “engrafts executive functions upon
legislative members and thus overreaches the permitted sweep of legislative
authority. At the same time, it serves to usurp power confided to the executive
branch.”58 Congress “as a whole” retains the right to legislate on contractual
authority, but “it is quite clear that committees of the Congress do not have the legal
capacity to enact legislation.”59
Brownell reviewed the provisions of Articles I and II of the Constitution and
cited previous cases by the Supreme Court on the doctrine of separation of powers.
He denied that the provision in the defense appropriations bill could be sustained as
a proper condition to an appropriation. He acknowledged that Congress may
“impose conditions with respect to the use of the appropriation, provided always that
the conditions do not require operation of the Government in a way forbidden by the
Constitution.” Invalid conditions, he warned, would place “the separability of the
54 69 Stat. 321, § 638 (1955).
55 Public Papers of the Presidents, 1955, at 688.
56 Id. at 689.
57 Id.
58 41 Ops. Att’y Gen. 230, 231 (1955).
59 Id.
branches of Government . . . in the gravest jeopardy.”60 Brownell regarded the
committee-veto provision as “separable from the remainder of the act and, if viewed
as imposing an invalid condition, does not affect the validity of the remaining
provisions.”61
Committee Vetoes Persist
In 1956, President Eisenhower confronted two other committee vetoes. On July
One section of the bill, relating to the Talos missile, provided that none of the
authorizations “shall be effective until the Secretary of Defense shall have come into
agreement” with the Armed Services Committees. Another section provided that
notwithstanding any other provision in the bill, or any other law, no contract shall be
entered into by the United States for the construction or acquisition of military family
housing units unless the Defense Department “has come into agreement” with the
Armed Services Committees. He objected to those provisions as “a serious departure
from the separation of powers as provided by the Constitution.”62 Congress made no
attempt to override the veto and repassed the bill without the coming-into-agreement
clauses.63 The new legislation provided for notification and semiannual reports to the
Armed Services Committees.64
On August 6, 1956, President Eisenhower signed a small reclamation project
bill into law, but offered comments in his signing statement. He described a section
as “seriously faulted” because it provided that the Secretary of the Interior could
execute contracts during a 60-day period only if neither of the designated committees
adopted a committee resolution disapproving the project within the waiting period.
Only if both committees approved the project proposal could the Secretary proceed
to execute the contract. If either committee disapproved, the Secretary could not
proceed further unless the entire Congress approved the project.65 Eisenhower
explained that he signed the bill because Congress had adjourned and could not
receive and act upon his veto message. He said he had been assured that the
committees of jurisdiction would take action to correct the deficiencies he identified
in the next session of Congress.66
A statute of June 5, 1957, amended the disputed section by removing the
committee veto but adopted a substitute procedure that provided essentially the same
legislative control. The statute provided that no appropriation for a small reclamation
project could be used prior to 60 calendar days from the date that the Secretary of the
60 Id. at 233.
61 Id. at 235. This opinion is reprinted as “Separation of Powers: Executive and Legislative
Branches,” 60 Dick. L. Rev. 1 (1955).
62 Public Papers of the Presidents, 1956, at 597.
63 70 Stat. 991 (1956).
64 Id. at 1012, § 302; id. at 1016, § 408(c); id. at 1018, § 416.
65 Public Papers of the Presidents, 1956, at 649.
66 Id. For statutory language, see 70 Stat. 1045, § 4(c) (1956).
Interior submitted the project to Congress “and then only if, within said sixty days,
neither the House nor the Senate Interior and Insular Affairs Committee disapproves
the project proposal by committee resolution.”67 This looked like the same kind of
committee veto, but it was directed not at the Secretary but at the Appropriations
Committees. In that sense, it was a committee veto within Congress and not directly
between the branches. It was modeled after the July 22, 1954, statute on public
buildings, previously discussed. Eisenhower signed the bill after Brownell assured
him that this procedure –– based on the authorization-appropriation distinction ––
was within Congress’s power.68
Legal Objections
Acting Attorney General William P. Rogers issued a legal analysis, “Authority
of Congressional Committees to Disapprove Action of Executive Branch,” dated
August 8, 1957. In reviewing a statute with a come-into-agreement provision, he
objected that this type of committee veto “permits organs of the legislative branch to
take binding actions having the effect of law without opportunity for the President
to participate in the legislative process, [and] also permits mere handfuls of members
to speak for a Congress which is given no opportunity to participate as a whole.”69
Rogers reviewed the occasions where Presidents had expressed their opposition to
committee vetoes, either in veto messages or signing statements.
In 1959, Congress again used the authorization-appropriation process to
constrain the Executive. Legislation enacted on September 9 continued the
committee veto in the Public Buildings Act. No appropriation could be made to
construct any public building or acquire any building to be used as a public building
involving an expenditure in excess of $100,000 and no appropriation could be made
to alter any public building involving an expenditure in excess of $200,000 “if such
construction, alteration, or acquisition has not been approved by resolutions adopted”
by the House and Senate Committees on Public Works.”70 President Eisenhower
made no comment in signing the bill.
Presidents Take Aim
Presidents Truman and Eisenhower had expressed many objections to
committee vetoes, and the opposition from the Justice Department and the White
House continued to mount. In veto messages and signing statements, President
Lyndon B. Johnson challenged a number of these provisions. On December 31,
1963, he signed the Public Works Appropriations Act, although it contained a
provision stipulating that “[n]o real property or rights to the use of real property, or
activity shall be disposed of or transferred by license, lease, or otherwise except to
67 71 Stat. 49, § (d) (1957).
68 Joseph P. Harris, Congressional Control of Administration 230-31 (1964).
69 41 Ops. Att’y Gen. 300, 301 (1957).
70 73 Stat. 480, § 7 (1959).
another agency of the United States Government unless specifically approved by the
appropriate legislative committees of the House and Senate.”71 Pointing to previous
opinions by Attorneys General, he agreed that it was proper for committees of
jurisdiction to request information, and for the two branches to engage in
consultation, but announced his intention to treat the committee-veto provision “as
a request for information and to direct that the appropriate legislative committees be
kept fully informed with respect to disposal and transfer actions taken by the Panama
Canal Company.”72 With this language he attempted to exercise a revisory veto,
altering bill language to make it conform with his constitutional interpretation. A
more practical question was what would happen when the designated committees
objected? Would the Panama Canal Company ignore the committees’ position?
In similar fashion, on July 17, 1964, President Johnson signed the Water
Resources Research Act.73 It did not contain express language for a committee veto,
but it was his understanding that one provision “in effect” required the Secretary of
the Interior to obtain the approval of House and Senate committees for each water
research grant or contract: “Although this legislation is so phrased that it is not
technically subject to constitutional objection, it violates the spirit of the
constitutional requirement of separation of powers between the executive and
legislative branches.”74
Johnson Draws the Line
A year later, on June 5, 1965, President Johnson vetoed the Pacific Northwest
Disaster Relief Act because it contained a provision that prohibited an appropriation
for certain actions unless the Committees on Public Works had first granted their
approval by resolution.75 This type of committee veto had been accepted by the
Eisenhower Administration because it was internal to Congress, but to Johnson it
“seriously violates the spirit of the division of powers between the legislative and
executive branches.”76 He was advised by the Attorney General that the procedure
was “clearly a ‘coming into agreement’ with a congressional committee
requirement.”77
A new bill, without the dispute provision, was quickly drafted.78 Several
Members of the House strongly objected to the legal analysis that had been presented
to President Johnson. They thought that the requirement for approval by the Public
Works Committees was appropriate because it involved a new program of an
71 77 Stat. 847 (1963).
72 Public Papers of the Presidents, 1963-64, I, at 104.
73 78 Stat. 329 (1964).
74 Public Papers of the Presidents, 1963-64, II, at 862.
75 111 Cong. Rec. 12669 (1965).
76 Id.
77 Id.
78 Id. at 12671-73, 12725-26.
unknown nature that the Office of Emergency Planning would present.79 However,
given the pressing need to deal with disaster relief, the House accepted the stripped-
down bill.80 President Johnson signed this revised bill.81
On August 21, 1965, President Johnson vetoed the military construction
authorization bill because Section 611 provided that no military camp, post, station,
base, yard, or other installation or facility could be closed, abandoned, or
substantially reduced in mission until 120 days after reports of the proposed actions
were made to the Armed Services Committees. Such reports could be submitted only
between January 1 and April 30 of each year. If Congress were to adjourn sine die
before the 120 days passed, the Administration would have to resubmit the report to
the next regular session of Congress. Johnson objected that the procedures “could
seriously interfere with and adversely affect the administration of our military
program.” He refused to sign into law “a measure which deprives him of power for
eight months of the year even to propose a reduction of mission or the closing of any
military installation . . . .”82 Congress rewrote the bill, deleting the offending
language, and it became law the following month.83
As another example of Johnson’s determination to curb committee power, on
October 26, 1965, he signed the omnibus rivers and harbors bill. Section 201(a)
incorporated the familiar procedure of forbidding an appropriation unless the Public
Works Committees had passed resolutions of approval.84 Johnson’s signing
statement said: “I do not plan to implement section 201(a) of this legislation.”85 It
was a curious threat, because it was not an executive matter. If one of the authorizing
committees failed to pass a resolution of approval, and a point of order was
successfully raised against an appropriation, the control would be in Congress, not
the presidency.
Congressional Rulemaking Provision
A different position was taken during the Nixon presidency. On May 28, 1972,
President Richard M. Nixon signed the Second Supplemental Appropriations Act,
commenting on two provisions. He pointed out that the Public Buildings Act
provided that no appropriations may be made for projects until the Public Works
Committees had approved GSA’s prospectuses for the buildings. He wrote: “The
Congress regards this ‘no appropriation may be made’ provision . . . as internal
Congressional rulemaking not affecting the executive branch, and this Administration
79 Id. at 13692.
80 Id. at 13690-97.
81 Public Papers of the Presidents, 1965, II, at 664; 79 Stat. 131 (1965).
82 Public Papers of the Presidents, 1965, II, at 907.
83 79 Stat. 793 (1965).
84 79 Stat. 1073,§ 201(a) (1965).
85 Public Papers of the Presidents, 1965, II, at 1082.
has acquiesced in that construction.”86 On the other hand, he objected to a provision
in the bill that required the GSA to seek approval from the committees. This
procedure, he said, was unconstitutional.87 In signing the Public Buildings
Amendments of 1972, he again accepted the “no appropriation may be made”
provision as appropriate internal congressional rulemaking.88
President Gerald Ford objected to a number of committee-veto provisions in
bills he signed. A defense appropriations bill required approval from the
Appropriations and Armed Services Committees of the House and Senate.
Regarding the provision as unconstitutional, instead of vetoing the entire bill he said
he would treat the committee-approval requirement as “a complete nullity.”89 He
made a similar comment when signing the Foreign Assistance and Related
Appropriations Act on July 1, 1976. One provision conditioned the availability of
appropriated funds “upon the acquiescence of the Appropriations Committees of each
House of Congress.” He decided that the provision was severable from the balance
of the bill.90
Carter’s Challenge
The major critique of legislative vetoes came from President Jimmy Carter. In
a message to Congress on June 21, 1978, he objected to the proliferation of this type
of congressional control. He said that in the previous four years “at least 48 of these
provisions have been enacted –– more than in the preceding twenty years.”91 He
regarded as unconstitutional all forms of the legislative veto: two-house, one-house,
and committee. The only exception he regarded as permissible was the one-house
veto over reorganization proposals submitted by the President.92 He said that he
would treat existing legislative vetoes, or those he must sign in the future, as “report-
and-wait” provisions.93 The Administration would report certain proposals to
Congress and its committees, wait a certain amount of time, and then carry out the
law regardless of whether committees disapproved or failed to approve.
Some Exceptions Allowed
The Carter challenge to legislative vetoes contained a few exceptions. An
opinion by Attorney General Griffin Bell in 1977 attempted to justify the one-house
veto in the reorganization statutes. The Administration wanted to keep this
procedure, despite some constitutional doubts, because it offered a number of
86 Public Papers of the Presidents, 1972, at 627.
87 Id. at 628.
88 Id. at 687.
89 Public Papers of the Presidents, 1976-77, I, at 242.
90 Public Papers of the Presidents, 1976-77, II, at 1935-36.
91 Public Papers of the Presidents, 1978, I, at 1146.
92 Id. at 1147.
93 Id. at 1149.
advantages to the executive branch: Congress had to act on a presidential proposal
(it could not bottle it up in committee or fail to act) and no amendments were
permitted. Congress had to act up or down within a fixed time period.
In justifying this type of legislative veto (and no other), Attorney General Bell
reasoned that the procedures for legislative action prescribed in Article I, § 7, “are not
exclusive.”94 He found most legislative vetoes unconstitutional because they did not
respect the constitutional checks on legislative power and threatened to shift the
balance of power to Congress “and thus permitting the legislative branch to dominate
the executive.”95 However, if statutory procedures did not affect the constitutional
balance between the branches –– “that is, the power of presidential veto is effectively
preserved and the principle of bicameralism is respected –– the fact that the
procedure is not explicitly authorized by the language of Article I is not enough to
render the statute constitutional.”96
What Bell drew from this analysis was the fact that a congressional one-house
veto of a reorganization plan did not alter executive-legislative relations or the law.
If one house decided to disapprove the President’s reorganization plan, the structure
of government remained as before. The reorganization process allowed the President
to retain control. The President “will submit to Congress only plans which he
approves and rather than be forced to accommodate the demands of Congress as to
the shape of the plan, he can decide to submit no plan at all.”97
In Bell’s judgment, presidential control over other legislative vetoes was not the
same. If one house or both houses decided to disapprove an agency regulation or a
reprogramming of funds within an appropriations account, the matter was closed.
Bell was also concerned that those legislative vetoes involved Congress in the
administration of continuing programs. By contrast, the reorganization statute “does
not involve creation of a new substantive program or congressional interference with
authorized administrative discretion in an ongoing program. The doctrine of
separation of powers is not violated.”98
On the day that President Carter issued his statement regarding legislative vetoes
as unconstitutional, two officials from his Administration appeared at a press
conference to explain the scope of his policy. Reporters wanted to know how
Carter’s position applied to the procedure governing arms sales, which Congress,
under law, could veto by concurrent resolution. Attorney General Bell was asked
whether President Carter would feel bound if Congress, by a two-house veto,
disapproved the pending Mideast arms sales package. Bell replied: “He would not
be bound in our view, but we have to have comity between the branches of
government, just as we have between nations. And under a spirit of comity, we could
94 43 Ops. Att’y Gen. 71, 73 (1977).
95 Id.
96 Id.
97 Id.
98 Id. at 74.
abide by it, and there would be nothing wrong with abiding by it. We don’t have to
have a confrontation every time we can.”99 Presidential Assistant Stuart Eizenstat
added:
I think the point the Judge is making is that we don’t concede the
constitutionality of any of [the legislative vetoes] yet, but that as a matter of
comity with certain of these issues where we think the Congress has a legitimate
interest, such as the War Powers Act, as a matter of comity, we are willing to
forego the specific legal challenge and abide by that judgment because we think100
it is such an overriding issue.
Eizenstat’s remarks were significant because they moved away from the
unyielding opposition of President Carter to legislative vetoes (with the exception of
reorganization authority) and signaled that constitutional concerns could be waived
depending on the presence of “an overriding issue.” That is, room was left for
ordinary political accommodations. Eizenstat referred to the War Powers Act
because it provides for a concurrent resolution of disapproval to force the President
to withdraw U.S. forces engaged in hostilities. Opening the door to areas where
Congress “has a legitimate interest,” however, left no clear legal or constitutional
boundaries.
Litigation
President Carter’s decision to confront Congress on the legislative veto came
at a time when this form of congressional control was being actively litigated in
federal court. Congress had begun to apply the legislative veto to agency rulemaking:
a one-house veto over General Services Administration regulations on Nixon’s
papers, a two-house veto over regulations issued by the Commissioner of Education,
a two-house veto over passenger restraint rules by the National Highway Traffic
Safety Administration, a one-house veto over Federal Election Commission
regulations, a one-house veto to disapprove incremental pricing regulations proposed
by the Federal Energy Regulatory Commission, and a two-house veto for Federal
Trade Commission rules.101 The Justice Department was prepared to confront
legislative vetoes in court.
Lower Court Action
Federal courts initially limited their holdings to the specific statute before them
and often avoided, on procedural grounds, any decision at all. The incremental, case-
by-case approach ended in 1982 when the D.C. Circuit struck down the one-house
veto of FERC regulations, the two-house veto of FTC regulations, and a committee
99 Office of the White House Secretary, Briefing by Attorney General Griffin B. Bell, Stuart
E. Eizenstat, Assistant to the President for Domestic Affairs and Policy, and John Harmon,
Office of Legal Counsel, Department of Justice, June 21, 1978, at 4.
100 Id.
101 Louis Fisher, Constitutional Conflicts Between Congress and the President 149 (4th ed.
veto of Housing and Urban Development Department reorganizations. The broad
basis of these rulings implied that all legislative vetoes, of whatever character, were
unconstitutional because they failed to follow the established course of lawmaking:
passage of a bill by both houses and submission of the bill to the President for his
signature or veto.102
INS v. Chadha
In 1983, the Supreme Court ruled that the one-House legislative veto in the
Immigration and Nationality Act was unconstitutional because it violated both the
principle of bicameralism and the Presentation Clause. Whenever congressional
action has the “purpose and effect of altering the legal rights, duties, and relations of
persons” outside the legislative branch, Congress must act through both houses in a
bill presented to the President.103 The mere fact that a law or procedure is “efficient,
convenient, and useful in facilitating functions of government, standing alone, will
not save it if it is contrary to the Constitution. Convenience and efficiency are not the
primary objectives –– or the hallmarks –– of democratic government.” It was not
enough that the legislative veto might be a “convenient shortcut” or an “appealing
compromise.”104
Elected Branch Response
The conditions that created the legislative veto over the years did not change
with the Court’s opinion in Chadha. Executive officials still wanted substantial
latitude in administering delegated authority; legislators still insisted on maintaining
control without having to pass another statute. It could be expected that the
executive and legislative branches would develop substitutes that served as the
functional equivalent of the legislative veto. Instead of exercising a one-house veto
over executive reorganization proposals (now invalid under Chadha), Congress could
insist on a joint resolution of approval, which is what it did in 1984 to comply with
the Court’s decision.105 A joint resolution of approval satisfied the twin tests of
bicameralism and presentment, but it required the President to obtain the support of
both houses within a specified number of days. If one house withheld support the
practical effect was a one-house veto. The new procedure was deemed so onerous
102 Clark v. Valeo, 559 F.2d 642, 650 n.10 (D.C. Cir. 1977), aff’d sub nom., Clark v.
Kimmitt, 431 U.S. 950 (1977); Atkins v. United States, 556 F.2d 1028, 1059, 1963-65 (Ct.
Cl. 1977), cert. denied, 424 U.S. 1009 (1978); Chadha v. INS, 634 F.2d 408, 433 (9th Cir.
Consumers Union, Inc. v. FTC, 691 F.2d 575 (D.C. Cir. 1982); AFGE v. Pierce, 697 F.2d
303 (D.C. Cir. 1982). See Fisher, Constitutional Conflicts Between Congress and the
President, at 150-52.
103 INS v. Chadha, 462 U.S. 919, 952 (1983). A few weeks later the Court affirmed the
opinions of the D.C. Circuit striking down the FERC and FTC legislative vetoes; 463 U.S.
104 INS v. Chadha, 462 U.S. at 944, 958-59.
105 98 Stat. 3192 (1984).
that the Reagan Administration decided not to request a renewal of reorganization
authority after it expired.
Statutory Fixes
Congress also replaced several legislative vetoes in the District of Columbia
Home Rule Act with a joint resolution of disapproval.106 This form of action puts the
burden on Congress to stop a District of Columbia initiative. Three statutes in 1985
removed legislative vetoes from statutory procedures. The concurrent resolution
governing national emergencies was replaced by a joint resolution of disapproval.107
The same approach was used on legislation concerning export administration.108 A
number of legislative vetoes had been used in the past to deal with federal pay
increases. Congress converted those to a joint resolution of disapproval.109
After Chadha, some Members of Congress introduced legislation to change the
War Powers Act of 1973 to remove the concurrent resolution and replace it with a
joint resolution of disapproval.110 As finally enacted, however, it became a
freestanding and alternative legislative procedure that is available to force a vote to
order the withdrawal of troops.111 The Nuclear Non-Proliferation Act of 1978
included a two-house veto (concurrent resolution) over certain agreements for
cooperation.112 In response to Chadha, that procedure was changed in 1985 to
provide for a joint resolution of disapproval.113
Legislation in 1974 gave Congress a one-house veto to disapprove presidential
proposals to defer (delay) the spending of appropriated funds.114 Even before
Chadha, Congress had begun to disapprove deferrals by inserting language in bills
passed through the regular legislative process, and continued to do that after Chadha
was announced. In 1986, however, when the Reagan Administration turned to
deferrals to satisfy the deficit targets in the Gramm-Rudman-Hollings Act, affected
parties went to court to contest the legality of presidential proposals. They argued
that if the one-house veto was invalid under Chadha, the President’s deferral
authority was inextricably tied to the unconstitutional legislative veto. According to
the argument of plaintiffs, Congress would not have delegated the deferral authority
to the President unless it knew it had a one-house veto to maintain control. If one
part of the statute fell, so did the other. The federal courts accepted that argument,
106 98 Stat. 1945, 1974, § 131 (1984).
107 99 Stat. 405, 448, § 801 (1985).
108 99 Stat. 120, 160, § 301(b) (1985).
109 99 Stat. 1322, § 135(e) (1985).
110 129 Cong. Rec. 28406-08, 28673-74, 28683-84, 28686-89 (1983).
111 Id. at 33395-96 (1983); 97 Stat. 1062, § 1013 (1983); 50 U.S.C. § 1546a (2000).
112 92 Stat. 120, 139-41, § 308 (1978).
113 99 Stat. 160, § 301(b) (1985); 42 U.S.C. §§ 2159(b)-(f) (2000). See also Cranston v.
Reagan, 611 F.Supp. 247, 251 (D.D.C. 1985).
114 88 Stat. 297, 335, § 1013(b) (1974).
holding that the deferral authority and the one-house veto were inseverable.115
Congress promptly converted the judicial doctrine into statutory law.116 The effect
was to limit the President to routine, managerial deferrals and prohibit the use of
deferral authority to delay the spending of funds simply because the President
disagreed with the budget priorities enacted into law.
Resort to Congressional Rules
Internal House and Senate rules offered another alternative. Congress could
require that funds be appropriated only after an authorizing committee passed a
resolution of approval. If an agency adopts a regulation that offends Congress,
legislators can attach language to an appropriations bill denying the use of funds to
implement the regulation. Since the President would rarely veto an appropriations
bill because it contained an objectionable rider, the practical effect may be viewed
as a two-house veto. Because of House-Senate comity, the effect in many instances
will be more like a one-house veto.
Notification
Statutes can require that designated committees be notified before an agency
implements a program. Notification does not raise a constitutional issue, since it falls117
within the report-and-wait category already sanctioned by court rulings. But
“notification” also can be a code word for a committee veto. Only in highly unusual
circumstances would an agency defy the expressed wishes of an authorization or
appropriation committee.
Nonstatutory Understandings
Congress continued to use the legislative veto in the years following Chadha.
Most of the legislative vetoes require agencies to obtain the approval of the
Appropriations Committees. Presidents regularly sign them into law, objecting that
they are invalid under Chadha and thus a legal nullity. These signing statements
interpret the statutory language to require only that designated committees by notified
of a pending agency action.118 The extent to which the statutory language actually
functions as a committee veto depends on committee-agency relations and a
willingness to develop informal understandings. Chadha may have the effect of
limiting statutory provisions; it does not touch nonstatutory arrangements.
115 City of New Haven, Conn. v. United States, 809 F.2d 900 (D.C. Cir. 1987); City of New
Haven, Conn. v. United States, 634 F.Supp. 1449 (D.D.C. 1986).
116 101 Stat. 754, 785, § 206 (1987).
117 Sibbach v. Wilson & Co., 312 U.S. 1, 14-15 (1941); INS v. Chadha, 462 at 935 n.9.
118 E.g., 40 Weekly Comp. Pres. Doc. 3013 (December 23, 2004), statement on signing
communications legislation; id. at 2453 (October 18, 2004), statement on signing the
Department of Homeland Security Appropriations Act, 2004; id. at 2454 (October 18, 2004),
signing the District of Columbia Appropriations Act, 2005.
NASA Accommodation
When President Reagan signed an appropriations bill in 1984, he objected to the
presence of seven provisions that required executive agencies to seek the prior
approval of the Appropriations Committees.119 In stating that he would implement
legislation “in a manner consistent with the Chadha decision,”120 he implied that
committee-veto provisions would be regarded by the Administration as having no
legal effect. After notifying the committees, apparently agencies could do as they
liked without obtaining the committees’ approval.
The House Appropriations Committee responded by reviewing a procedure that
had worked well with the National Aeronautics and Space Administration (NASA)
for about four years. Statutory ceilings (caps) were placed on various NASA
programs, usually at the level requested in the President’s budget. NASA could
exceed those caps only if it received permission from the Appropriations
Committees. Because the Administration now threatened to ignore the committee
controls, the House Appropriations Committee said that it would repeal both the
committee veto and NASA’s authority to exceed the caps.121 If NASA wanted to
spend more than the caps allowed, it would have to do what the Court mandated in
Chadha: have a bill passed by both houses and presented to the President.
NASA did not want to obtain a new public law every time it found it necessary
to exceed spending caps. To avoid that burden, NASA Administrator James M.
Beggs wrote to the Appropriations Committees and suggested a compromise. Instead
of putting the caps in a public law, he recommended that they be placed in the
conference report that explains how Congress expects a public law to be carried out.
He then pledged that NASA would not exceed any ceiling identified in the
conference report without first obtaining the prior approval of the Appropriations
Committees:
Without some procedure for adjustment, other than a subsequent separate
legislative enactment, these ceilings could seriously impact the ability of NASA
to meet unforeseen technical changes or problems that are inherent in
challenging R&D programs. We believe that the present legislative procedure
could be converted by this letter into an informal agreement by NASA not to
exceed amounts for Committee designated programs without the approval of the
Committees on Appropriations. This agreement would assume that both the
statutory funding ceilings and the Committee approved mechanisms would be
deleted from the FY 1985 legislation, and that it would not be the normal
practice to include either mechanism in future appropriations bills. Further, the
agreement would assume that the future program ceiling amounts would be
identified by the Committees in the Conference Report accompanying NASA’s
annual appropriations act and confirmed by NASA in its submission of the
annual operating plan. NASA would not expend any funds over the ceilings
119 Public Papers of the Presidents, 1984, II, at 1056.
120 Id. at 1057.
121 H. Rept. No. 916, 98th Cong., 2d Sess. 48 (1984).
identified in the Conference Report for these programs without the prior approval122
of the Committees.
NASA continued to abide by this agreement, which is permissible under
Chadha.123 While not legally bound by the agreement set forth in the letter, NASA
knows that violations of trust would likely provoke the Appropriations Committees
to reinsert caps in the public law and compel the agency to seek a separate law each
time it finds it necessary to exceed the spending ceilings.
Transferring AID Funds
For about a decade, Congress required the Agency for International
Development (AID) to obtain the prior, written approval of the Appropriations
Committees before transferring funds from one appropriations account to another.
In 1987, OMB Director James Miller III advised Congress that the committee veto
violated the constitutional principles announced in Chadha. The House
Appropriations Committee threatened to repeal both the committee veto and the
transfer authority, forcing the agency to do what the Supreme Court asked: come to
Congress and follow bicameralism and presentment for each transfer action.
Representative David R. Obey, chairman of the Appropriations subcommittee
handling foreign assistance, reportedly remarked: “To me, that [OMB letter] means
we don’t have an accommodation any more, so the hell with it, spend the money like
we appropriated it. It’s just dumb on their part.”124
In the face of the committee’s response, the Administration agreed to acquiesce
to the committee veto.125 When Miller repeated the constitutional objection the next
year, Congress followed through on its threat and deleted both the committee veto
and the transfer authority. In 1989, the two branches adopted compromise language
that allowed AID to transfer funds provided it adhered to “regular notification
procedures.”126 AID would notify the Appropriations Committees about proposed
transfers and wait 15 days. If the committees objected during that period, AID would
proceed only at great peril. Ignoring committee objections could result in the loss of
transfer authority.
The “Baker Accord”
Another example of an informal agreement that permitted committee control
over agency activities involved the “Baker Accord” of 1989. In the early months of
the Bush I Administration, Secretary of State James A. Baker III decided to give four
122 Letter from James M. Beggs, Administrator of the National Aeronautics and Space
Administration, to Rep. Edward P. Boland, chairman of the Subcommittee on HUD-
Independent Agencies of the House Committee on Appropriations, Aug. 9, 1984.
123 E.g., 139 Cong. Rec. 23351 (Oct. 4, 1993).
124 Edward Walsh, “OMB Objection Raises House Panel’s Hackles,” Washington Post,
Aug. 13, 1987, at A13.
125 Id.; 101 Stat. 1329-155, § 514 (1987).
126 103 Stat. 1219, § 514 (1989).
committees of Congress a veto power over the fractious issue of funding the
Nicaraguan Contras. Given the interbranch confrontation over the Iran-Contra affair,
institutional trust was at a low point. In return for receiving $50 million in
humanitarian aid for the Contras, Baker reportedly agreed that a portion of the funds
could be released only with the approval of certain committees and party leaders.127
According to newspaper accounts, White House Counsel C. Boyden Gray objected
to this level of involvement by Congress in foreign policy, especially through what
appeared to be an unconstitutional legislative veto.128 Former judge Robert H. Bork
regarded the Baker Accord as “even more objectionable” than the legislative veto
struck down in Chadha, because it permitted control by mere committees instead of
by a one-house veto.129
However, the informal nature of the Baker Accord was not prohibited by
Chadha and Baker accepted the compromise. In a letter to Congress, he agreed that
the Contras would not receive financial assistance after November 30, 1989, unless
he received letters from “the Bipartisan Leadership of Congress and the relevant
House and Senate authorization and appropriations committees.”130 Four Members
of Congress sued the President and the Secretary of State for entering into this “side
agreement” with Congress, claiming that it represented a forbidden legislative veto.
A federal district court dismissed the lawsuit on the grounds that the plaintiffs had
no standing and that the case constituted a question of national defense and foreign
policy committed to the elected branches.131
Continued Litigation
After Chadha, several statutory provisions were reviewed in the courts to
determine their consistency with the principles established by the Court. Statutes that
seemed to put lawmakers too much in the center of agency decision making were
struck down. Other statutes, relying on informal agreements between committees
and agencies, survived.
D.C. Area Airports
In 1986, Congress passed legislation creating a board of review (composed of
nine Members of Congress) and gave it veto power over decisions made by a regional
authority responsible for two airports serving the Washington, D.C. metropolitan
area. The Supreme Court held that the legislative veto power violated the doctrine
127 John Felton, “Bush, Hill Agree to Provide Contras With New Aid,” CQ Weekly Report,
March 25, 1989, at 656.
128 David Hoffman & Ann Devroy, “Bush Counsel Contests Contra Aid Plan,” Washington
Post, March 26, 1989, at A5.
129 135 Cong. Rec. 6528 (1989).
130 Letter from Secretary of State James A. Baker, III, to Speaker Jim Wright, April 28,
131 Burton v. Baker, 723 F.Supp. 1550 (D.D.C. 1989).
of separation of powers.132 Congress then reconstituted the board, giving it the power
to recommend but not veto. The new statute authorized Congress to pass a joint
resolution of disapproval to reject actions by the regional authority. Joint resolutions
satisfy the Chadha requirements of bicameralism and presentment, but the courts
found the new arrangement unconstitutional. The D.C. Circuit held that the board
of review acted as an agent of Congress and that the power to make
“recommendations” was in fact the power to coerce.133 If the board adopted
congressional recommendations, its proposals would take effect immediately. If it
did not adopt the recommendations, it would have to transmit them to Congress for
a 60-legislative day review period. Depending on the calculation of legislative days,
the delay could last six months. Because of the time-sensitive nature of decisions for
major airports, postponements of that magnitude had a coercive effect.134
GSA Notification
Federal courts recognize less coercive instruments used by congressional
committees. A case decided after Chadha involved a statute that required the
General Services Administration (GSA) to notify appropriate committees of
Congress in advance of a negotiated sale of surplus government property in excess
of $10,000. GSA regulations further provided that in the “absence of adverse
comment” by the review committees, the disposal agency might sell the property on
or after 35 days.135 The U.S. Claims Court found the procedure to be tantamount to
committee disapproval and therefore unconstitutional under Chadha.136 The U.S.
Court of Appeals for the Federal Circuit reversed, finding nothing unconstitutional
about the decision of agencies to voluntarily bind themselves by regulation to defer
to committee objections: “There is nothing unconstitutional about this: indeed, our
separation of powers makes such informal cooperation much more necessary than it
would be in a pure system of parliamentary government.”137
Reprogramming of Funds
An area where committee and subcommittee controls over agency actions persist
after Chadha is reprogramming. Reprogramming consists in moving funds within
an appropriation account. Since the money remains within the account, there is no
legal violation, unless some provision of law makes it so. To move the funds outside
the account to another account, an agency must receive specific statutory authority.
This type of shift of funds is called transfers. The terms “reprogramming” and
132 Wash. Airports v. Noise Abatement Citizens, 501 U.S. 252 (1991).
133 Hechinger v. Metro. Wash. Airports Authority, 36 F.3d 97 (D.C. Cir. 1994), cert. denied,
134 Id. at 101-05.
135 40 U.S.C. § 484(e)(6); 41 C.F.R. § 101-47.304-12(f).
136 City of Alexandria v. United States, 3 Ct.Cl. 667, 675-78 (1983).
137 City of Alexandria v. United States, 737 F.2d 1022, 1026 (C.A.F.C. 1984).
“transfers” are sometimes used interchangeably, but they describe very different
activities.
Although it is the practice of Congress to appropriate in large, lump-sum
amounts, it is the understanding of the appropriations and authorizing committees
that the money will be spent in accordance with the original departmental budget
justifications, as amended by committee and congressional action. Agency officials
are expected to keep faith with Congress and respect the integrity of budget
estimates. Congressional committees and executive agencies recognize that it is
often necessary and desirable to depart from budget justifications, prepared months
and sometimes years in advance of the actual obligation and expenditure of funds.
Origin of Reprogramming
The term “reprogramming” does not appear in committee reports and committee
hearings until the mid-1950s. Prior to that time, however, essentially the same kind
of budgetary practice had been carried out under different names, such as “transfers,”
“adjustments,” and “interchangeability.” An article by Arthur W. Macmahon in 1943
describes a subcommittee process that allowed the Bureau of the Census to spend
money that had been appropriated for a somewhat different purpose.138 A committee
report in 1940 contains an understanding that permitted the Forest Service to
reallocate appropriations “irrespective of any earmarking that may have been set up
in the Budget.”139 Elias Huzar wrote about a World War II “gentlemen’s agreement”
requiring the War Department to “notify, and get the approval of, the military
appropriations subcommittees before it effected transfers.”140
Defense Reprogramming
Congress consented to this shifting of funds during World War II as a necessary
emergency measure. As the practice persisted, however, members of the
Appropriations Committees grew restive and began to reassert legislative spending
prerogatives. This attitude was particularly pronounced in 1949 when Congress
adopted the concept of the “performance budget,” which endorsed a trend toward
lump-sum appropriations. The National Security Act Amendments of 1949
authorized the Secretary of Defense to prepare the budget estimates in such form and
manner “so as to account for, and report, the cost of performance of readily
identifiable functional programs and activities . . . .”141 Subsequent reductions in the
number of appropriations accounts for the Defense Department increased executive
spending flexibility.
138 Arthur W. Macmahon, “Congressional Oversight of Administration: The Power of the
Purse” (Part 2), 58 Pol. Sci. Q. 380, 404 (1943).
139 Id. at 404.
140 Elias Huzar, The Purse and the Sword (Ithaca, N.Y.: Cornell University Press, 1950), at
141 63 Stat. 586, § 403 (1949).
In response, Congress began to require the Defense Department to report on a
regular basis on reprogramming activities and, eventually, to seek prior approval of
selected items from designated committees. From 1948 to 1955, the number of
appropriations accounts for the Defense Department was cut by half: from 104
accounts in 1948 to 48 by 1955.142 This shift of responsibility to committees
coincided with the development of other forms of committee vetoes during this
period, including the “come into agreement” procedure.
The first specific legislative guideline appeared in 1954. In reporting out the
defense appropriations bill, the Senate Appropriations Committee identified areas in
which economies were believed possible. To the extent that reductions could not be
accomplished in the areas suggested “without detrimental effect, adjustments should
be made in such areas as will not impair the program. The committee directs,
however, that in no instance shall a project within an appropriation exceed the
amount of the original budget estimate.”143 The conference report on the 1954
defense bill further defined the authority of the Defense Department to shift funds
within an appropriation:
. . . it is agreed by the managers that such transfers [reprogrammings] shall be
effective only with respect to those specific projects which were reduced by the
House and made the subject of appeal for restoration to the Senate and only upon
prior approval of the Appropriations Committees of the Senate and the House of144
Representatives for the Department of Defense.
During hearings in 1955 on the defense budget, Representative John Taber
remarked that every year there were at least 10 to 15 Defense Department
reprogramming requests asking the House Appropriations Committee to approve a
change in some items from the original justifications. Requests were submitted to
the chairman and ranking member of the defense subcommittee for their
consideration. DOD Comptroller Wilfred J. McNeil, acknowledging that some
diversions took place without the committee’s knowledge, maintained that clearance145
was obtained from the Appropriations Committees on all important matters. In a
committee report in 1955, the House Appropriations Committee warned that it had
never been its intention to permit the military departments to have “unrestricted
freedom in reprogramming or shifting funds from one category or purpose to another146
without prior notification or consent of the Committee.” In addition to this process
of notification and approval over selected items, the committee now requested
semiannual tabulations for all reprogramming actions by the Defense Department.
The Pentagon responded by issuing a set of instructions that defined the scope of
142 Louis Fisher, “Reprogramming of Funds by the Defense Department,” 38 J. Pol. 77, 80
(1974).
143 S. Rept. No. 1582, 83d Cong., 2d Sess. 1-2 (1954).
144 H. Rept. No. 1917, 83d Cong., 2d Sess. 8 (1954).
145 House Committee on Appropriations, hearings on “Department of Defense
Appropriations for 1956,” 84th Cong., 1st Sess. 562-63 (1955).
146 H. Rept. No. 493, 84th Cong., 1st Sess. 8 (1955).
reporting requirements and established criteria as to what would constitute a “major
reprogramming” action.147
By 1959, House Appropriations reported that semiannual tabulations, while
helpful, had not been sufficiently timely. Moreover, the practice of having military
services advise the committee of major reprogrammings had become “virtually
inoperative.” The committee directed the Pentagon to report periodically –– but in
no case less than 30 days after departmental approval –– the approved
reprogramming actions involving $1 million or more in the case of operation and
maintenance, $1 million or more for research, development, test, and evaluation
(RDT&E), and $5 million or more in the case of procurement. The Pentagon
prepared new instructions to comply with the committee’s policy.148
In hearings in 1961, House Appropriations discovered that the Navy had
reprogrammed $584 million in shipbuilding funds to start construction on five
additional Polaris submarines, without first seeking and obtaining the approval of the
Appropriations Committees.149 The committee responded by adopting four changes
to tighten up reprogramming procedures. In a letter to Defense Secretary Robert S.
McNamara, dated March 20, 1961, chairman George H. Mahon asked that specific
committee approval be required for the following categories of reprogramming: (1)
procurement of items omitted or deleted by Congress; (2) programs for which
specific reductions in the original requests were made by Congress; (3) programs
which had not previously been presented to or considered by Congress; and (4)
quantitative program increases proposed above the programs originally presented to
Congress.150 Secretary McNamara accepted the first two points but not the last two.
The department was worried that committee prior approval would come to include
the Armed Services Committees, because of the trend toward annual authorizations
(Section 412) that began in 1959.151
Mahon wrote to McNamara on April 26, 1961, agreeing to the more modest
reprogramming procedures, “at least for a trial period.” The new DOD understanding
on reprogramming included review not only by the Appropriations Committees but
by the Armed Services Committees as well.152 Current DOD directives continue the
147 Reprinted in Senate Committee on Government Operations, hearings on “Budgeting and
Accounting,” 84th Cong., 2d Sess. 113-19 (1956).
148 H. Rept. No. 408, 86th Cong., 1st Sess. 20 (1959); Department of Defense Instruction,
“Reprogramming of Appropriated Funds –– Report on,” No. 7250.5 (October 23, 1959).
149 House Committee on Appropriations, hearings on “Department of Defense
Appropriations for 1962” (Part 1), 87th Cong., 1st Sess. 105-06, 109 (1961).
150 House Committee on Appropriations, hearings on “Department of Defense
Appropriations for 1962” (Part 3), 87th Cong., 1st Sess. 578 (1961).
151 Id. at 579-80. Section 412(b) of the Military Construction Act of 1959 provided that no
funds could be appropriated for the procurement of aircraft, missiles, or naval vessels unless
first authorized by Congress; 73 Stat. 322 (1959).
152 Harold W. Stoneberger, “An Appraisal of Reprogramming Actions,” Student Research
Report No. 159, Resident School Class of 1968 (Washington: Industrial College of the
(continued...)
practice of making semiannual reports, obtaining prior approval on selected items
and programs, and making prompt notification on others. Under certain
circumstances, approval is needed from Appropriations and Armed Services but also
the Intelligence Committees.153
Other Committee Procedures
The Defense Department regularly produces the most detailed instructions on
reprogramming and the procedures and thresholds for notifying committees and
receiving their approval. Other agency documents are less elaborate. The Budget
Execution Manual for the Department of Energy explains that congressional controls
over reprogramming depend on the “approved program baseline and are generally
delineated in the department’s base table and related documentation.” Congress
requires the department to “ensure that the appropriate committees are promptly and
fully notified whenever a necessary change to the approved program baseline is
required.” Notifications of such changes are provided to Congress through
submission of formal reprogramming proposals, “and the Department shall comply
with subsequent directions in the responses from the Congressional committees.”154
Stated here is the requirement to not merely notify the committees but to comply with
their directions. Failure to follow this understanding “will not only violate the trust
and latitude granted the Department, but could translate into stringent statutory
constraints and limitations imposed on the Department by Congress.”155
Energy’s budget manual also emphasizes that the department is expected to
comply with both the specific numbers and provisions included in the law and in
nonstatutory sources. Reprogrammings result from any departure from a program
baseline described in the Department’s base table “and amplified in Congressional
reports (House, Senate, or Conference) accompanying authorization and
appropriations acts.”156
Reprogramming instructions from the Department of Transportation are explicit
about committee prior-approval: “Reprogrammings submitted to Congress must not
be implemented until DOT is officially notified to proceed with the proposed actions
by both the House and Senate Appropriations Subcommittees.”157 Similar language
appears in the budget manual for the Treasury Department. Adjustments to the
financial plan are considered normal and expected, but Congress “has established
limitations on amounts and major program changes that can be reprogrammed
152 (...continued)
Armed Forces), at 48-50.
153 Department of Defense, “Reprogramming of DOD Appropriated Funds,” DOD Financial
Management Regulation, Vol. 3, Ch. 6 (August 2000).
154 U.S. Department of Energy, Budget Execution Manual, DOE M 135.1-1 (9-30-95), at
V-1, para. 1a(1).
155 Id. at V-2, para. 1a(2).
156 Id. at V-3, para. 3a.
157 U.S. Department of Transportation, Reprogramming Guidance, May 2005, at 1, para. 3.
without formal approval by the Appropriations Subcommittees.”158 Dollar thresholds
are spelled out to indicate the type of reprogrammings that require subcommittee
approval.159 A sample letter from the Treasury Department to an appropriations
subcommittee begins: “This letter requests approval for a reprogramming in . . . .”160
Committee or subcommittee approval may be implied in some cases. The
budget manual for the U.S. Geological Survey provides that reprogramming
proposals submitted to the Appropriations Committee “for prior approval shall be
considered approved after 30 calendar days if the Committee has posed no
objection.”161 It appears in many cases that if the agency does not hear within the
prescribed period of time it does not move forward. Instead, it will contact the
committee or subcommittee and ask whether there are any objections. Often, the
proposed reprogramming is not implemented until explicit committee approval is
granted.
Committee vetoes over Veterans Affairs (VA) activities are currently vested in
the Appropriations Committees (regarding reprogramming), but earlier statutes gave
the authorizing committees a veto role. Prior to 1992, it was not in order in either
house to consider a bill, resolution, or amendment that would make an appropriation
for any fiscal year for a major VA medical facility project or a major VA medical
facility lease unless “the project or lease has been approved in a resolution adopted
by the Committee on Veterans’ Affairs of that House.”162 This provision, Section
5004 of Title 38, was renumbered Section 8104 in 1991.163 The next year, the
provision for a committee veto exercised through a resolution of approval was
deleted.164
Current VA procedures for reprogramming explain that any shift of funds within
an appropriations account for a purpose other than that contemplated at the time of
appropriation “is generally preceded by consultation between the Federal agencies
and the appropriate Congressional committees. It involves formal notification and,
in some instances, opportunity for disapproval by Congressional Committees.”165 All
reprogramming actions “will adhere to the requirements of the Committee on
Appropriations.”166 No obligation of funds for which reprogramming authorization
158 Treasury Department, Strategic Management Manual, March 29, 2001, Chapter 6-30,
at 1.
159 Id., Ch. 6-32, at 1.
160 Id. at 5.
161 U.S. Geological Survey Manual, March 6, 1998, 327.1 –– Funds Control, at 6, para.
162 38 U.S.C. § 5004(a)(2) (1988).
163 105 Stat. 238, § 402(b)(1) (1991).
164 106 Stat. 1984, § 301(a) (1992).
165 Department of Veterans Affairs, Reprogramming, at 1.
166 Id., para. 1.
is required “shall be made before approval is obtained from OMB and the
appropriation committees.”167
The appropriations subcommittees cite four types of reprogrammings that
require prior notification: (1) reprogramming of funds in excess of $500,000 between
programs, activities, and elements; (2) any reprogramming that changes an agency’s
funding requirement in future years; (3) any reprogramming that changes the funds
for programs or projects specifically cited in a committee report, and (4) any
reorganization of offices, programs, or activities.168 Upon approval by the
department, the subcommittees “must be informed prior to implementation.”169 As
to the type of action that must be approved by the Appropriations Committees, details
are set forth in the joint statement of managers in the annual appropriations
conference report. Dollar thresholds are specified. In addition, the conferees expect
the Appropriations Committees to be promptly notified of all reprogramming actions
below the thresholds. If the actions would have the effect of significantly changing
an agency’s funding requirements in future years, or if programs or projects
specifically cited in the statement of the managers or accompanying reports of the
House and Senate are affected by the reprogramming, the reprogramming “must be
approved” by the Appropriations Committees regardless of the amount proposed to
be moved.170
Conclusions
Committee controls over agency actions have a long history. They have proved
to be a helpful device in permitting the delegation of discretionary authority to the
agencies while at the same time retaining close legislative review. The Supreme
Court’s decision in Chadha, striking down all types of legislative vetoes (including
committee vetoes), has not eliminated the types of committee-agency agreements that
guide the reprogramming process and other executive actions. Moreover, these
committee vetoes have not been litigated and subjected to judicial review and
possible invalidation, nor is there any indication that someone is likely to gain
standing to bring these committee vetoes into court.
167 Id., para. 4.
168 Id. at 1-2.
169 Id. at 2.
170 150 Cong. Rec. H10824 (daily ed. Nov. 19, 2004).