Committee Controls of Agency Decisions

Order Code RL33151

CRS Report for Congress

Received through the CRS Web

Committee Controls of Agency Decisions

November 16, 2005

name redacted

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 (name redacted). 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).

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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 and

to issue reports.5 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.).

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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).

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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 procedure

is acceptable to me.19

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.

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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 with

this proviso as to the property conveyed.21

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 and

real estate transactions.22 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 of

the military departments.”24 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.

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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,

1944 statute requiring the Navy to “come into agreement” with the Naval Affairs

25

Id.

26

Public Papers of the Presidents, 1951, at 280-81.

27

Id. at 282.

28

97 Cong. Rec. 5444-45 (1951).

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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

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a statement they will send a man with a little more inquisitive mind to

Washington.35

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 pending

bill.40 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 had

vetoed. Three subsections had no dollar threshold at all.41 The bill passed 353 to 5.42

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.

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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).

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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, within

three years after the date of enactment of this Act.51

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).

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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.

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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

16 he vetoed a bill authorizing certain construction projects at military installations.

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).

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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).

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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.

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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 strippeddown 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.

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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 “reportand-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.

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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.

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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 think

it is such an overriding issue.100

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, caseby-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

101

Id.

(name redacted), Constitutional Conflicts Between Congress and the President 149 (4th ed.

1997).

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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.

1980); Consumer Energy Council of America v. FERC, 673 F.2d 425 (D.C. Cir. 1982);

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.

1216 (1983).

104

INS v. Chadha, 462 U.S. at 944, 958-59.

105

98 Stat. 3192 (1984).

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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).

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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 falls

within the report-and-wait category already sanctioned by court rulings.117 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.

CRS-22

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).

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identified in the Conference Report for these programs without the prior approval

of the Committees.122

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 HUDIndependent 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).

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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,

1989, reprinted in (name redacted),

American Constitutional Law 206 (6th ed. 2005).

131

Burton v. Baker, 723 F.Supp. 1550 (D.D.C. 1989).

CRS-25

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,

513 U.S. 1126 (1995).

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).

CRS-26

“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

352.

141

63 Stat. 586, § 403 (1949).

CRS-27

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 of

Representatives for the Department of Defense.144

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 clearance

was obtained from the Appropriations Committees on all important matters.145 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 another

without prior notification or consent of the Committee.”146 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

(name redacted), “Reprogramming of Fundsthe

by 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).

CRS-28

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...)

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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.

CRS-30

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.

12B(4).

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.

CRS-31

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).

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