During oral argument in Trump v. Slaughter, Justice Barrett asked Solicitor General Sauer a series of questions about the relationship between the legislative veto and independent agencies. Barrett recalled that Justice Gorsuch had raised Chadha during the oral argument in the tariff case. (I suspect Barrett is also considering a draft opinion that Gorsuch may have circulated.) Gorsuch said that Congress delegated power to the executive branch through IEEPA, subject to a legislative veto. But Chadha wiped out that check, leaving the executive with even broader authority. Would Congress have delegated such broad powers in the first place absent the veto? Probably not. Gorsuch suggested that Chadha changed the legislative "bargain."
Here, Barrett asked about whether a legislative veto may have also been part of the legislative bargain for the FTC and other independent agencies. In other words, she said, "part of the reason Congress was willing to infuse agencies with a lot of the broad powers" was because of the availability of the veto. She asked if the original 1935 FTC Act had a legislative veto, and if so whether that veto was "part of the bargain." If there was such a veto, Barrett suggested, Congress would have retained "some measure of congressional control," though short of removal. Barrett said, "And if you had a legislative veto, even if Congress wasn't exerting itself the authority to fire . . . a member [of] a multi-member board, it could override decisions that the agency made." (I think Bowsher would prohibit Congress from having any power over removal, other than impeachment, but that is another matter.)
After Chadha, however, the "bargain was changed." Barrett said, Congress "having lost that check, maybe these independent agencies have become something that Congress didn't intend or anticipate even at the point that it set it up." Barrett then connected this case back "the point that Justice Gorsuch made in the tariff argument with respect to IEEPA."
Solicitor General Sauer replied that the original 1914 FTC Act did not have a legislative veto. He added, with some hesitation, "I believe the FTC Act, I'm not aware of it having a legislative veto at any point in its history. I could be wrong about that."
I was curious, and checked the appendix from Chadha which lists the statutory provisions with legislative vetos. Item 34 is directly on point:
34. Federal Trade Commission Improvements Act of 1980, Pub.L. No. 96–252, § 21(a), 94 Stat. 374, 393 (to be codified in 15 U.S.C. 57a–1) (Federal Trade Commission rules may be disapproved by concurrent resolution).
I think Sauer was correct that the 1914 FTC Act did not have a legislative veto. But Congress added a legislative veto over the FTC in 1980.
Justice White's Chadha dissent specifically referenced the FTC:
In the trade regulation area, the veto preserved Congressional authority over the Federal Trade Commission's broad mandate to make rules to prevent businesses from engaging in "unfair or deceptive acts or practices in commerce."FN9
FN9: Congress found that under the agency's
"very broad authority to prohibit conduct which is 'unfair or deceptive' … the [Federal Trade Commission] FTC can regulate virtually every aspect of America's commercial life…. The FTC's rules are not merely narrow interpretations of a tightly drawn statute; instead, they are broad policy pronouncements which Congress has an obligation to study and review." 124 Cong.Rec. 5012 (1978) (statement by Rep. Broyhill).
A two-House legislative veto was added to constrain that broad delegation. Federal Trade Commission Improvements Act of 1980, § 21(a), 94 Stat. 374, 393, 15 U.S.C. § 57a–1 (Supp. IV 1980). The constitutionality of that provision is presently pending before us. United States Senate v. Federal Trade Commission, No. 82–935; United States House of Representatives v. Federal Trade Commission, No. 82–1044.
Justice White referenced two pending cases that challenged the legislative veto of the FTC. In both cases, the D.C. Circuit found the vetoes were unconstitutional. About two weeks after Chadha was decided, the Court decided a case called Process Gas Consumers Group v. Consumer Energy Council of America. This case summarily affirmed the FTC appeals. Justice White dissented once again:
In United States Senate v. Federal Trade Commission, the Court of Appeals struck down § 21(a) of the Federal Trade Commission Improvements Act of 1980, which provides that an FTC trade regulation rule shall become effective unless both Houses of Congress disapprove it. The Act authorizes the Commission to issue trade regulation rules which define unfair or deceptive acts or practices in or affecting commerce. 15 U.S.C. § 57a(1)(B) (Supp. IV 1980). For three years, Congress debated the breadth of the Commission's rulemaking authority, noting that the FTC could, pursuant to the Act, "regulate virtually every aspect of America's commercial life." 124 Cong.Rec. 5012 (1978) (Rep. Broyhill). The two-House veto provision was settled upon as a means of allowing Congress to study and review the broad and important policy pronouncements of the Commission.
I scanned through the legislative history of this bill (start at Page 5011), and found similar statements. Representative Risenhoover, for example, said:
Our most effective control would be to have review and veto over the rules and regulations which are imposed daily upon the people of this representative democracy by a bunch of faceless, nameless bureaucrats. And of all the agencies which are running amok, the Federal Trade Commission is the absolute worst example. . . . I believe the elected Representatives of the people should review these rules and that, as Representatives, we should be able to say "no." The people in my district and the business people of this country deserve that additional chance to talk back to the bureaucrats.
Indeed, Representative Eckhardt tied the expansion of the FTC's powers to the expanded rulemaking authority:
I think there is no agency in the entire Government which is more needing and more deserving of having a congressional veto than the Federal Trade Commission, because with the broad mandate it has and the broad rulemaking power, the broad legislative power it has exercised to this date, we as Congressmen, as elected officials, have abrogated our responsibility. 124 Cong.Rec. 5014.
The FTC did not have this rulemaking power in 1914 and it did not have this power when Humphrey's Executor was decided. But the D.C. Circuit bestowed broader power on the FTC in 1973. Several years later, Congress determined the FTC had acquired too much power, and tried to claw back that power through a legislative veto. Justice Barrett didn't know this sort of veto existed, but her intuition was exactly on point. I think Justice White's position is consistent with Barrett's question in Slaughter, as well as Justice Gorsuch's question in the tariff case. Indeed, until this moment, I hadn't really considered how White's Chadha dissent may have affected his future clerk's understanding of the bargain and the non-delegation doctrine. Gorsuch has extremely well-developed thoughts on this point.
I think we can speculate that veto was added in recognition of how much the FTC has evolved from the agency at issue in Humphrey's Executor. Eli Nachmany's excellent article, which was cited in the briefing traces the FTC's history, leading up to this 1980 change. In particular, the FTC's powers over rulemaking were vastly expanded by the D.C. Circuit in the 1970s. Eli explained:
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