The MacNeil/Lehrer Report; Congressional Veto Killed

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ROBERT MacNEIL [voice-over]: War powers, foreign arms sales, executive reorganization, energy policy, public works, nuclear energy regulation, education, transportation. In all, some 200 acts of Congress may be affected by a sweeping Supreme Court decision.

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MacNEIL: Good evening. The Supreme Court threw a real spanner into the workings of Congress yesterday, and constitutional experts and politicians are still trying to figure out just what it means. Will the Court's sweeping rejection of the legislative veto profoundly alter the balance of power between the White House and Congress or not? Will it release the president from the restrictions of the War Powers Act? Will it reduce the power of special interest groups to hamstring the regulatory agencies? Does it restore the proper working of legislature and executive as envisioned by the drafters of the Constitution? Those are the questions buzzing around Washington today. The judgment by a 7-2 majority of the Court grew out of a simple appeal by a Kenyan student against the congressional ruling saying he couldn't stay in the country. But the verdict on his case is seen as the broadest and most important constitutional judgment in many years. Tonight, what does abolishing the legislative veto mean in principle and in practical application? Jim?

JIM LEHRER: Robin, Congress simply created its right of legislative veto in 1932 when President Herbert Hoover said he wanted to reorganize the government. Congress said, "Fine, as long as we can kill the reorganization plan if we don't like it." The Hoover plan later went through without even a veto vote, but the process was established. But it wasn't until the 1970s, during the Vietnam and Watergate days of the so-called imperial presidency, that Congress really began to exercise it by attaching the veto provision to many specific laws ranging from the right to use U.S. troops and sell arms abroad to matters involving the Federal Trade Commission and other agency rulings and regulations. It bugged President Hoover in 1932, and it's bugged all presidents of all political parties and philosophies ever since. As the current holders of the executive branch's power and prerogatives, the officials of the Reagan administration rejoiced over yesterday's decision. Here to explain their joy and the implications from that point of view is the number-two man in the Reagan Justice Department, the deputy attorney general, Edward Schmults. Mr. Attorney General, why is this decision so important to presidents, Mr. Reagan and all others who've come before it and, I assume, all who will follow him?

Atty Gen. EDWARD C. SCHMULTS: Well, it is of great importance. Let me say that this is truly a decision of historic proportions. It really doesn't deal with the invalidity or the validity of a used-car rule. Any time you have the Supreme Court deciding the relative roles and powers of two of the three branches of government, you've got a very, very important decision. What this decision said, and the reason why it's so important, is that if the Congress were going to take a legislative act, it had to do so in the manner spelled out in our Constitution.Now, why is this important? And why do we rejoice in this? And, incidentally, I don't think this is anything for the executive branch to rejoice in or for the legislative branch to take sorrow about. I think the real winners here are the American people, because this is going to improve our system of government.

LEHRER: How is it going to improve the system?

Atty Gen. SCHMULTS: Well, what our Framers were concerned about, and indeed the whole reason for our Constitution, is freedom and liberty. And they were concerned that all government power not fall in one branch of government. The logic of the legislative veto was that the Congress could empower one house, and indeed one committee, or even one chairman, to nullify the acts of the president or any of the officials of the executive branch. This would concentrate executive and legislative power in the Congress, and it's one of the reasons why our Constitution is so carefully set up with a system of checks and balances, and with a separation of powers. I think what people forget is that to take a legislative act it's required that it pass both houses of Congress. The Framers thought that this would provide deliberation and care. They didn't want one house acting on sort of -- with spur-of-the-moment factors in mind. I think another extremely important point that people often forget is that the president of the United States is an integral part of the legislative process. Bills that pass both houses of Congress have to be submitted to the president. What the legislative veto did was to provide that one house could take a legislative act and the president didn't get to perform his function in the legislative act. So that we had one house of Congress acting. The Constitution provides a mechanism if Congress wants to act alone, legislatively, without presidential participation: they can override his veto, but that takes a two-thirds vote of both houses. Lastly, and I think this is one of the most fundamental points, it's the president's duty to take care that the laws are faithfully executed. What we found in the legislative veto was that Congress would tell presidents after they had passed a law that they could or could not do things. This was Congress getting involved in the president's business. The president's ability to, or power to execute the laws is not delegated from the Congress, it's provided in the Constitution. And so, when we look at the great sweep of our history, we see that at least in the last 15 years there has been an accretion of power through the Congress at the expense of the presidency. We elect presidents and then we don't give him the tools to do the job.I think what this decision means is that presidents will be able to carry out their duties under the Constitution. They will be able to manage the executive branch, and I think we're going to provide for a much more effective government.It's a great decision.

LEHRER: As a practical matter, what happens now from your perspective? What do you think should happen? Do you agree with this figure, 200 laws that are now on the books that have some form of legislative veto in them?

Atty Gen. SCHMULTS: Yes. That's about the right figure now.

LEHRER: All of them need to be changed?

Atty Gen. SCHMULTS: Well, I think what we have to do and what we'll certainly be doing in the executive branch, is inventorying these laws, setting up some sense of importance here, which ones should be looked at first. And then I think we will be consulting within the executive branch, certainly at the Department of Justice, with the White House, and I think there ought to be consultations with the Congress and take great care to look at these laws, law by law. Most of them are going to stand. What we will find, I think, for the most part -- and this is only a preliminary judgment -- is that the legislative veto provisions will be stricken from those laws. The test is, would Congress have intended the rest of the law to stand alone if the legislative veto provision is stricken? And I think we're going to find that most of those laws will stand, and I don't see any crisis in government arising from this decision, only benefits.

LEHRER: Do you see this as a lengthy process, to cleanse these laws in accordance with the Supreme Court ruling?

Atty Gen. SCHMULTS: Well, in a sense the Supreme Court has cleansed those laws in that the legislative veto provisions will no longer be operative.I think what we have to do is be very careful, look at the laws, law by law, and see if they can continue to stand. Of course, if Congress wants to change those laws, it can do so by a legislative act. And so I think this will be an orderly process, and I don't see any disruption at all of any consequence.

LEHRER: Thank you. Robin?

MacNEIL: On the other side is one of the leading champions of the congressional or legislative veto, Republican Senator Charles Grassley of Iowa. As chairman of the subcommittee on legislative procedures and practices, the Senator plans to hold hearings soon on the impact of the ruling and the options for Congress.Senator, what is your general reaction to the ruling?

Sen. CHARLES GRASSLEY: Well, my general reaction is that this is a great victory for the unelected bureaucrat and a big loss for the taxpayers. That's at least short term. Long term, I would argue with Mr. Schmults that probably the president's going to be the loser in the long run. I don't mean President Reagan, I mean the presidency. Because I think, where there has been a cooperative arrangement between the Congress and the presidency for the last 50 years, where we would delegate some authority but keep somestrings attached through use of the congressional veto, that long term we're going to have to be much more careful in our writing of statutes, and not delegate if at all, and if we do, then very carefully, because we don't have that string attached.

MacNEIL: Well, what's wrong with Congress being much more specific in writing its legislation, not delegating loose authority to the executive branch, but also not retaining any strings?

Sen. GRASSLEY: Well, for instance, let's look at the ability of the president to sell arms overseas. Over $25 million, he's got to be subject to review by the Congress. There's that leeway in there to give the president, as our chief negotiator, an opportunity to be head of state and to negotiate those instruments. But yet not the willingness for the Congress to go full overboard with the process, so keep some check on it.

MacNEIL: Does this mean that in your view the president will now be empowered to sell whatever arms and in whatever quantities he likes without a congressional restraint?

Sen. GRASSLEY: Yes, the same way with the War Powers Act. Present limitations on the length of time that the president might send troops into an area without the express approval of the Congress for leaving them there. Now, you know, that follows notification, and beyond the notification Congress would not have any sort of opportunity to participate.Consequently I don't know whether we would be as willing to give that authority in the future. And maybe that's good.Maybe there's been too much authority delegated. But we can't just allow the president to send troops wherever he wants to.

MacNEIL: What about the point, the constitutional point the Deputy Attorney General has just made, that the Framers of the Constitution didn't intend that Congress should be involved in executing the laws. He said for the last 10 or 15 years you've been meddling in the president's business.

Sen. GRASSLEY: Well, of course I have to accept the judgment of the courts. I'm sworn to uphold the Constitution. If we don't like it what we can do is amend it to provide for the congressional veto. And that's an option -- that's not a very viable option. I think what we have to do is, through the subcommittee hearings that you said I'm going to have, we're going to have to assess what the situation is. We're going to have to review what the situation is with each one of these 200 laws that are on the books, and then we're going to have to find if there is any other way of doing it. But the last analysis is if we don't want to delegate authority we don't have to, and that means that the president's not going to have as much freedom, and from that standpoint I think we're not going to have as viable a presidency as before. I think, frankly, this president -- the presidency may be ahead, but I don't see how President Reagan is ahead because, you know, he campaigned in 1980 in Youngstown, Ohio, in support of the congressional veto. As a private citizen he wrote and spoke in favor of it in 1979. It was a part of the Republican platform, and I would expect this president to stick by his campaign promises and help us work this out so that he will have the sort of control over the unelected bureaucrats as a president that he campaigned for when he was a candidate.

MacNEIL: Well, thank you. Jim?

LEHRER: There are those who argue the demise of the legislative veto is a victory for the general public over the interests of the special public -- those who can influence Congress. Among the holders of that position is Alan Morrison, director of Ralph Nader's public litigation group. Mr. Morrison was one of the original attorneys in the immigration case which led to yesterday's decision, and he argued that case before the Supreme Court. How will this thwart the power of special interest groups, Mr. Morrison?

ALAN B. MORRISON: I think the best example is what happened in the Federal Trade Commission used-car rule last year. In that situation the Federal Trade Commission, after lengthy proceedings heard from all industry representatives, issued a very, very modest rule saying if a car dealer knows about defects in a car, it has to put a warning label on the car. And the Congress then was besieged by used-car dealers from all around the country who, with their campaign chests and campaign contributions, put tremendous pressure on the Congress, and the Congress said, "Yes, we'll veto that. We'll say no." And it's always easier to say no than it is to say yes, and that's the genius of the veto from the point of view of special interests.

LEHRER: But you heard what the Senator said. He would say why let that authority rest in the unelected bureaucrats at the Federal Trade Commission rather than in Congress? Why shouldn't Congress make that decision?

Mr. MORRISON: Congress can make any decision it wants about used-car rules, anything else, provided that it goes through the constitutional means of doing so. And the Constitution is not simply a formal document, a series of hurdles to leap over. The three parts of the lawmaking process are important because they represent different interests. And the Framers were very concerned about the necessary checks and balances to be sure we didn't have precipitous legislation, that we thought through our laws before they were passed. One-house or two-house vetoes don't allow for the full opportunity for legislative debate. They have the real possibility of unthought-through action.Congress right now is unable to do the job it's supposed to do of passing laws. It is simply incapable of taking on the added burden of reading through rules and regulations that agencies have spent months of looking over, had hundreds and thousands of pages of testimony. And for Congress to sit down and say yes, no, up, down, maybe -- it's like the Roman Forum. It has no rational basis. And I don't -- I never understood why Congress wanted to do it, just as I can't understand today why Senator Grassley is now saying that the poor executive branch, which for 50 years has been trying to get rid of the veto, was somehow mistaken, and that the presidency is going to be worse off.

LEHRER: Well, you heard his argument, that Congress is now going to react to the demise of the legislative veto by passing much more restrictive legislation. Those rules on used cars may never even get done in the first place. Done? Is that -- I think I used the wrong verb, but go ahead. You understand what I mean, I think, right?

Mr. MORRISON: The Congress of course could do that, but then it would be responsible to the American people for not taking the requisite action when time and events show that action is required. If Congress hamstrings the executive agencies, it's going to be responsible. Now, I think there are areas where it ought to put a little more leash on the executive branch, but I don't think that's true across the board.I would also point out that I don't think that the president has right now the unabashed authority to sell arms in excess of $25 million. I think, as Deputy Attorney General Schmults pointed out, that may well be one of those cases in which the underlying authority to sell arms vanished when the authority of Congress to veto came up.

Sen. GRASSLEY: We won't.

Mr. MORRISON: Well, I hope so. I also hope that we will have an orderly process which the Congress, the executive branch and people in the public who are concerned about it can sit down and try [audio interruption] conciliation of all of these bills, see if it will work something out.

LEHRER: Well, that's what we're doing tonight, Mr. Morrison. Robin?

MacNEIL: One special interest group disappointed by the ruling is the National Federation of Independent Business. It lobbies on behalf of more than half a million small businesses. Mike McKevitt, former Republican congressman from Colorado, heads the Federation. Mr. McKevitt, how will this affect small businesses?

MIKE McKEVITT: I think it'll have a dramatic effect, Robin, for this reason.Our place to get help is the Congress. Parkinson's Law, for example, the old textbook on how to build a bigger and better bureaucracy, a spoof book, is really a textbook in this town. The bureaucrats in this city over the last 10 years have certainly not been sympathetic or understanding to the problems of small business, and we've had to resort to members of Congress on the Republican and Democratic sides of the aisle to seek relief from burdensome regulations from the Department of Commerce, from the IRS, from the Department of Treasury and the Department of Labor. And the way we've gotten results is by going to members of Congress rather than going to the agencies.

MacNEIL: Isn't that because you hold a sanction over members of Congress that you don't hold over the regulatory agencies? In other words, that you and your members and their political action committees can contribute to Congress through the re-election of Congressmen?

Mr. McKEVITT: You can look at it that way, Robin, or you can look at it this way. First of all, they're more responsive because of the fact that they have to get re-elected. We are a large constituency. For example, small business makes up 10 million businesses in this country, and it hires millions and millions of employees. If the agencies don't understand us, if they're not going to respond to us, if they have this steroid attitude about growth or about the burdensome aspects of regulations and paperwork, which is one of our biggest problems, then we're going to turn to Congress.

MacNEIL: What do you say of the example that you just heard from Mr. Morrison of what happened with the warning about defects in used cars?What's your opinion of the way the system worked that time?

Mr. McKEVITT: I feel this way. First of all, I think it was oversimplified by Mr. Morrison so far as the scope of the regulation by FTC, number one. Number two, I think that they love to play on the used-car syndrome -- it's sort of like a wolf in sheep's clothing -- covering a bigger and broader problem, and that is the fact that the bureaucracy in action. And if the people of this country do not care for the vote of the members in the House or the Senate on the used-car rule, then then can vote no or they can vote them out.

MacNEIL: You're a former congressman yourself. You think that the legislative veto by one house or even one committee or, as the Deputy Attorney General said, perhaps even one chairman, is the right way to run the system?

Mr. McKEVITT: Well, the system working its way through both the House and the Senate through Congressman Levitas in the House and Senator Grassley in the Senate really is a two-House veto. And, frankly, having served as a former member and having served formerly in the Department of Justice as assistant attorney general, and the White House -- having seen the bureaucracy in action, I'd much rather leave it in the powers of Congress. And ironically, not only President Ronald Reagan supported this provision prior to his election, but so did President Jimmy Carter.

MacNEIL: Can you give us an example from maybe one of the businesses you represent of where this is really going to impact on consumers?

Mr. McKEVITT: Well, where it'll impact on consumers is the basic fact that they pay around $2,400 a year for regulations and paperwork. It's a factor that's passed on in costs by business if they can afford to do it -- that's usually the larger businesses. For small businesses, we don't have the expertise to watch the Federal Register, and as a result we usually get stuck with it. And oftentimes it can close businesses as well as make it more costly for our customers.

MacNEIL: Thank you. Jim?

LEHRER: Mr. Morrison, do you have any sympathy at all for Mr. McKevitt's position on behalf of small business?

Mr. MORRISON: Well, in recent years Congress has passed two statutes, not through the legislative veto but through the regular statutory method, designed in part to help small business -- the Paperwork Reduction Act and the Regulatory Flexibility Act, both in large part enacted to help small business. That's perfectly proper, and I agree that small business ought to go and see the members of Congress. But the members of Congress ought to be able to act only through our Constitutional system and not through what Chief Justice Burger called "a convenient shortcut," the legislative veto.

LEHRER: Senator Grassley, what's your view? You've heard what these two gentlemen have said, that the argument about which is the most responsive, Congress or the regulatory -- which is the best way to get the best government?

Sen. GRASSLEY: The bureaucracy isn't responsive at all to public opinion.That's not their job. Their job is to carry out policy established by the Congress through law, through regulation writing.You know, they aren't to respond. It's our job to respond to that.

LEHRER: He's right, is he not, Mr. Attorney General?

Atty Gen. SCHMULTS: Well, he certainly is right, and I think that's the answer. I'd like to hit this point about the bureaucracy right on the head. Congress has tremendous power to control the bureaucracy, and I think what this decision says is they ought to exercise it in the way contemplated by the Constitution. Congress has the right to pass laws; Congress has the right to amend laws; Congress has the right to appropriate money; Congress has extraordinary powers --

LEHRER: In other words, if they don't like what an agency is doing --

Atty Gen. SCHMULTS: They can change it in the way the Constitution provides, which says that the president has to play a part in that process. What they've done here is Congress, by the legislative veto, has had two bites at the apple, and the president has had only one. That contravenes our Constitution, and -- which was not designed, as Alan Morrison said, for a quick fix, for an expedited, convenient way. The Framers of our Constitution took care to provide a careful legislative process to better assure our freedom and liberty, and that's what's involved here.

LEHRER: Mr. McKevitt, is that what's involved here?

Mr. McKEVITT: I think if Thomas Jefferson were alive today he would be dumbfounded by the growth of this bureaucracy. I think we have to look at it in the pragmatics.

LEHRER: But he says Congress can do something about the bureaucracy.

Mr. McKEVITT: Well, there's 435 members, and you look at the normal workday of a member of Congress and it's very, very difficult. I found it very frustrating when I served in Congress. I found it even more frustrating, Ed, when I served at Justice, because I had bureaucrats in my own department say, "Look, you're a presidential appointee. You'll be here for anywhere from one to four years. I'll be here for 10 to 15 years, and I'm going to do what I want to do." And that prevails through many of the agencies in this city.

Sen. GRASSLEY: Could I clear up -- the inference from the two friends over here is that somehow the legislative veto is foreign to the way we do government or do the business of government in this country. Some 35, almost 40 states, I think, have a form of legislative veto. It is a process of government in most of our laboratories of democracy, at the state level. I think we have to accept the fact that -- what the Court said because obviously that's our federal constitutional law. But still remember that this isn't something abnormal to the process of government.

LEHRER: What about the point Mr. Morrison made, that there is no way Congress is equipped to do this job of going through these rules and regulations and overseeing all this sort of thing, and doing it in a way that does not make them overly responsive to special interests?

Sen. GRASSLEY: Well, first of all, if the congressional veto had been upheld and we had been able to review legislation, even if we could broaden it beyond what it is today, because we had last year passed the Senate -- hopefully get it through both houses this year -- a more sweeping congressional veto.I think that sort of a instrument of government, of oversight, would dampen the normal, innate drive of the unelected bureaucrat to write so many regulations in the first place. Secondly, that they won't go away from the mainstream of what Congress intended quite as easily as they will now.

LEHRER: Mr. Morrison?

Mr. MORRISON: If regulations are being written too often or too badly, the courts are the proper place to take -- for people to go and to take them to. The Supreme Court today just said that the attempt to repeal the seatbelt and airbag standard was invalid because the regulation writers didn't do the job properly. There are countless cases where regulations have been set aside. If Congress thinks too many regulations are being written, don't fund the agencies so much and don't let them write so many regulations. Cancel their authorities. There are lots of things Congress can do, as long as it goes through the constitutional means.

LEHRER: Robin?

MacNEIL: Mr. Schmults, and briefly, does this put the imperial presidency, so-called, back in business? Let's take the example of Central America, which is very alive at the moment. Does this now give President Reagan a free hand to do whatever he likes in Central America?

Atty Gen. SCHMULTS: Well, let me say first of all that the President has very carefully stated that he has absolutely no intention of sending combat troops down there, so that regardless of what this decision may mean to any one of our vast number of laws dealing with foreign policy, the President's been very clear about that.

MacNEIL: I understand.

Atty Gen. SCHMULTS: I think what we've got to look at and what I said earlier is we really have to look at each of these laws and see what the effect of this decision is. I am a little concerned as we talk about used-car rules and government regulations here that we not lose sight of the fact this is a decision of great constitutional sweep. We've been concerned about the powers of our presidency and the gridlock that's taken place in our government, at least prior to the Reagan administration, and so we've had proposals like six-year terms for the president; we've had proposals to go to a parliamentary system. I think one of the big contributors to that problem has been the legislative veto, and now our government will be free to function as the Framers envisioned. I think this is a great benefit.

MacNEIL: Senator Grassley, you think that this does free the president to do much more as he pleases, free of congressional restraint in foreign affairs, arms sales, for example.

Sen. GRASSLEY: Yes, I think that people like Tip O'Neill and the people at the liberal end of the political continuum in this country ought to be scared to death at this Supreme Court decision, because I think that it's just going to give the president an undue amount of power in a lot of areas where the legislative veto has been used by liberals to curb the president's authority. And the War Powers Act, the sale of arms overseas are just two examples where Tip O'Neill ought to be very concerned about this Supreme Court decision.

MacNEIL: Well, gentlemen, Mr. Schmults, Senator Grassley, Mr. Morrison, Mr. McKevitt, we have to end it there. Thank you very much. Good night, Jim.

LEHRER: Good night, Robin.

MacNEIL: That's all for tonight. We will be back on Monday night. I'm Robert MacNeil. Good night.