Reassessing the Legislative Veto: The Statutory President, Foreign Affairs, and Congressional Workarounds

Forthcoming, Journal of Legal Analysis

53 Pages Posted: 12 Nov 2021

See all articles by Curtis Bradley

Curtis Bradley

University of Chicago Law School

Date Written: September 20, 2021

Abstract

There have long been complaints about the growth of presidential power. These complaints intensified during the Trump administration, and there are now calls for a host of separation-of-powers reforms designed to restore congressional authority. As some advocates for reform recognize, many of the controversial actions that presidents take are based on statutory authorization. For example, the Trump administration’s “travel ban,” its re-imposition of sanctions against Iran, and its shifting of funds to be used to construct the southern border wall were all based, at least principally, on statutory delegations rather than on claims of independent presidential authority. A chief reason that the President is insufficiently constrained when exercising such statutorily-delegated power, it is claimed, is the Supreme Court’s disallowance of legislative vetoes in its decision in INS v. Chadha, a claim that intensified during the Trump administration. This Article challenges this account, arguing that the availability of the legislative veto was less important before Chadha to congressional-executive relations than legal scholars commonly assume, and that, to the extent that the legislative veto was (or would have become) important for checking some exercises of statutorily-delegated authority, Congress has developed a host of effective workarounds in the years since Chadha. It illustrates this claim with case studies concerning war powers, arms sales, and emergency declarations. The Article also argues that the functional case for allowing legislative vetoes is more debatable than many critics of Chadha have acknowledged.

Keywords: Chadha, legislative vetoes, separation of powers, statutory president, delegation, emergency power, arms sales

Suggested Citation

Bradley, Curtis, Reassessing the Legislative Veto: The Statutory President, Foreign Affairs, and Congressional Workarounds (September 20, 2021). Forthcoming, Journal of Legal Analysis, Available at SSRN: https://ssrn.com/abstract=3927403 or http://dx.doi.org/10.2139/ssrn.3927403

Curtis Bradley (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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