The Supreme Court's decision in Immigration and Naturalization Service v. Chadha struck a serious, if not fatal, blow to the constitutional acceptability of the legislative veto. In Chadha the Court held that a provision of the Immigration and Naturalization Act, which permitted one House of Congress to reverse a decision by the Attorney
General not to deport an alien, was a violation of the doctrine of separation of powers since it did not comply with the requirements of passage by both Houses of Congress and presentment to the President. In light of that decision, the constitutionality of nearly 200 statutes utilizing some form of the legislative veto is questionable.
The effect this decision may have on the balance of powers between Congress and the executive branch is of obvious significance. For those interested in the power of Congress over the public lands, the implications of the Chadha decision are of particular importance.
Under that portion of article IV of the Constitution known as the property clause, Congress is given the power “to dispose of and make all needful Rules and Regulations respecting” the public lands. Utilizing this authority, Congress has frequently reserved the power to review and reject decisions made by agencies delegated the authority to manage the public lands. These reservations of power are often stated in the terms of a legislative veto. That device has thus become a prominent feature of public lands legislation. If the Court's decision in Chadha renders unconstitutional such reservations of power under the property clause, considerable statutory revision will be necessary to preserve congressional control over public lands management.
This Article explores the question of whether legislative vetoes enacted under the article IV property clause power of Congress are subject to the same objections made by the Court to the legislation reviewed in Chadha. In Part I, this Article will briefly examine the Chadha decision and the Court's objections to the legislation involved in that case. Part II of the Article looks at case law that supports an argument that legislative veto provisions found in property clause legislation are not subject to the objections made by the Court in Chadha. In Part III, the Article measures the use of legislative vetoes in the property clause context against the purposes underlying the doctrine of separation of powers and concludes that such legislative vetoes may well be constitutional under Chadha. Finally, in Part IV, this Article suggests a limitation on that conclusion necessitated by the breadth of the property clause power.
Eugene R. Gaetke, Separation of Powers, Legislative Vetoes, and the Public Lands, 56 U. Colo. L. Rev. 559 (1985).