On Dec. 23, while signing a budget bill, President Barack Obama raised constitutional objections about committee vetoes. Does he understand their history and purpose? Probably not.
This type of legislative control has been around for more than seven decades. It helps the two branches reach political accommodations that satisfy both executive and legislative interests. Agencies do their best when requesting funds for the next fiscal year but cannot anticipate everything. Once the year begins, they may want to move money to emerging needs and away from what they initially asked for.
To keep faith with Congress, they notify committees of these changes and, in some cases, seek committee approval. This is one of many informal practices that permit the government to function.
Obama said in his signing statement: “Numerous provisions of this bill purport to condition the authority of executive branch officials to spend or reallocate funds on the approval of congressional committees.” Those procedures, he claimed, “are constitutionally impermissible forms of congressional aggrandizement in the execution of the laws.”
He announced his administration would merely notify relevant committees before acting, treating their recommendations with “appropriate and serious consideration.” It would then do as it pleased. Spending decisions “shall not be treated as dependent on the approval of congressional committees.”
This argument is abstractly presented. It is also seriously misguided.
For constitutional support, Obama and his legal advisers rely on the Supreme Court’s 1983 decision in INS v. Chadha, which struck down the legislative veto. In the future, the court said, if Congress wants to control agency decisions, it must comply with the full lawmaking process: action by both chambers and submission of a bill to the president for his signature or veto. Nothing in the court’s opinion demonstrated any understanding or awareness of the kind of committee vetoes that Obama and other presidents have objected to.
In the 1940s, executive officials and Congressional committees reached an agreement that allowed agencies to shift money during a fiscal year to respond to new and pressing needs. They could reallocate funds if they notified and, in some cases, gained the approval of review committees. It is far-fetched and inaccurate for Obama to call this kind of executive-legislative accord “Congressional aggrandizement.” Both branches recognized agencies need greater flexibility in spending money. That process worked well before Chadha; it continues to function after it.
In 1984, an appellate court reviewed a statute that required a federal agency to submit a proposed action to a Congressional committee. The court found no constitutional problem: “Indeed, our separation of powers makes such informal cooperation much more necessary than it would be in a pure system of parliamentary government.”
The court cited Justice Robert Jackson’s language in Youngstown Sheet & Tube Co. v. Sawyer, the 1952 Steel Seizure Case. The art of governing under the U.S. Constitution, he said, “does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.” Although the Constitution diffuses power to protect individual liberty, “it also contemplates that practice will integrate the dispersed powers into a workable government.”
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.