Legislative Vetoes Message to the Congress.

To the Congress of the United States:

In recent years, the Congress has strengthened its oversight of Executive Branch decisions. I welcome that effort. Unfortunately, there has been increasing use of one oversight device that can do more harm than good—the "legislative veto."

In the past four years at least 48 of these provisions have been enacted-more than in the preceding twenty years. This proliferation threatens to upset the constitutional balance of responsibilities between the branches of government of the United States. It represents a fundamental departure from the way the government has been administered throughout American history. Unnecessary and unwarranted legislative veto procedures obstruct the efforts of my Administration and most members of Congress to make the administrative process quicker and simpler and divert attention from our common task of improving Federal programs and regulations.

Since taking office, I have several times expressed my deep reservations about legislative veto provisions in bills presented to me for signature. Herbert Hoover and every subsequent President have taken this position. The purpose of this message is to underscore and explain the concern and to propose alternatives.

The legislative veto was first used in the 1932 statute which authorized the President to reorganize the Executive Branch. The provision was repeated in subsequent reorganization acts, including the statute in effect today. This kind of legislative veto does not involve Congressional intrusion into the administration of on-going substantive programs, and it preserves the President's authority because he decides which proposals to submit to Congress. The Reorganization Act jeopardizes neither the President's responsibilities nor the prerogatives of Congress.

As employed in some recent legislation, however, the legislative veto injects the Congress into the details of administering substantive programs and laws. These new provisions require the President or an administrator of a government agency to submit to Congress each decision or regulation adopted under a program. Instead of the decision going into effect, action is blocked for a set time—typically 60 congressional working days—while Congress studies it. A majority of both Houses, or either House, or even a single committee, is authorized to veto the action during that period.

Such intrusive devices infringe on the Executive's constitutional duty to faithfully execute the laws. They also authorize Congressional action that has the effect of legislation while denying the President the opportunity to exercise his veto. Legislative vetoes thereby circumvent the President's role in the legislative process established by Article I, Section 7 of the Constitution.

These are fundamental constitutional issues. The Attorney General is seeking a definitive judgment on them from the courts, but no immediate resolution is in prospect. Pending a decision by the Supreme Court, it is my view, and that of the Attorney General, that these legislative veto provisions are unconstitutional.

Moreover, the legislative veto raises serious, practical policy problems.

Federal agencies issue thousands of complex regulations each year. Many are adopted after months or years of hearings and are based on many volumes of evidence. To act responsibly under a typical legislative veto provision, Congress would have to examine all of this evidence, hold its own hearings, and decide whether to overrule the agency—all in a few weeks. This task would add an additional burden to Congress' legislative agenda.

The regulatory process is rightly criticized for being slow and for creating uncertainty which cripples planning by business, state and local governments, and many others. The legislative veto greatly compounds both problems. At best, it prolongs the period of uncertainty for each regulation by several months. At worst, it can mean years of delay. Under the legislative veto procedure, Congress can only block an agency's rules, not rewrite them. If the House and Senate agree that a regulation is needed but disagree with the agency or each other on the specifics, exercise of the veto can lead to indefinite deadlock.

This danger is illustrated by the regulations concerning President Nixon's papers. Three versions of these regulations were vetoed, and it took three years to reach agreement on them. Whatever the merits of the issues, this is clearly an unsatisfactory way to decide them. Such lengthy, expensive procedures could easily become commonplace under legislative veto statutes.

In addition to causing delay, legislative veto provisions can seriously harm the regulatory process. Regulators operating under such laws would seek to avoid vetoes. They would therefore tend to give more weight to the perceived political power of affected groups and less to their substantive arguments. Meetings of regulatory commissions could degenerate into speculation about how to write rules so they would escape future disapproval of future Congressional reviewers who are not present nor represented when the rules are being drafted. Many regulations would be evolved in negotiations between agency officials and Congressional staff members, subverting requirements in present law for public notice and comment and for decisions based on the record. Parties to regulatory proceedings, never knowing when a decision might be vetoed, would have to reargue each issue in Congress.

These problems would lead many regulators to reverse the constructive trend toward adopting uniform rules. They would revert to acting on a case-by-case basis, because the legislative veto cannot be applied to such decisions. This lack of uniformity would not reduce the scope of regulation, but it would reduce clarity and certainty. Those affected would have to determine how dozens of decisions on individual fact situations might apply to their own cases, instead of abiding by a single rule.

The most troubling problem, however, is that the legislative veto treats symptoms, not causes. The vast effort required to second-guess individual regulatory decisions could impede the crucial task of revising the underlying statutes.

Agencies issue regulations because Congress passes laws authorizing them, or—frequently—mandating them. Many of these laws have not been seriously reexamined for years and need change. This year, Congress is working on key bills to reform airline regulation, encourage public participation in the regulatory process, require lobbyists to work more openly, and adopt "sunset" procedures. Next year's agenda may be even fuller. We need legislation to speed up and simplify regulatory procedures, and we must reform a number of individual regulatory programs. We must deregulate where appropriate, make regulation easier to understand and to honor, and control the costs which regulations impose on our economy.

The President and the agency heads are responsible for improving the management of regulation, and we are doing so by administrative action encouraged by my Executive Order on improving the regulatory process. Only Congress through regulatory reform can deal with the underlying problems caused by a multitude of individual legislative mandates.

Regulation provides just one example of the problems caused by legislative vetoes; similarly severe problems arise in other areas of government. Thus, excessive use of legislative vetoes and other devices to restrict foreign policy actions can impede our ability to respond to rapidly changing world conditions. Reasonable flexibility is essential to effective government.

In sum, for both constitutional and policy reasons I strongly oppose legislative vetoes over the execution of programs. The inclusion of such a provision in a bill will be an important factor in my decision to sign or to veto it.

I urge Congress to avoid including legislative veto provisions in legislation so that confrontations can be avoided. For areas where Congress feels special oversight of regulations or other actions is needed, I urge the adoption of "report-and-wait" provisions instead of legislative vetoes. Under such a provision, the Executive "reports" a proposed action to Congress and "waits" for a specified period before putting it into effect. This waiting period permits a dialogue with Congress to work out disagreements and gives Congress the opportunity to pass legislation, subject to my veto, to block or change the Executive action. Legislation establishing "report-and-wait" procedures has been introduced. Even these procedures consume resources and cause delays, however, so they should be used sparingly.

As for legislative vetoes over the execution of programs already prescribed in legislation and in bills I must sign for other reasons, the Executive Branch will generally treat them as "report-and-wait" provisions. In such a case, if Congress subsequently adopts a resolution to veto an Executive action, we will give it serious consideration, but we will not, under our reading of the Constitution, consider it legally binding.

The desire for the legislative veto stems in part from Congress' mistrust of the Executive, due to the abuses of years past. Congress responded to those abuses by enacting constructive safeguards in such areas as war powers and the budget process. The legislative veto, however, is an overreaction which increases conflict between the branches of government. We need, instead, to focus on the future. By working together, we can restore trust and make the government more responsive and effective.

JIMMY CARTER

The White House,

June 21, 1978.