Legislative Vetoes for Independent Agencies

Congress tried to claw back the FTC's powers in 1980 through a legislative veto, but Chadha rendered that "bargain" unconstitutional.

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:

Before Congress could clarify whether the FTC even had legislative rulemaking power, the D.C. Circuit opined that it indeed had such power all along. In National Petroleum Refiners Association v. FTC (1973), the court decided that the FTC had always had legislative rulemaking power—under Section 6 of the original FTC Act. . . . Eschewing that understanding of the law, the D.C. Circuit decided "liberally to construe the term 'rules and regulations'" and hold that Section 6(g) "permit[s] the Commission to promulgate binding substantive rules.

This ruling, Eli notes, was a vast expansion of the FTC's powers;

Commentators have criticized the decision as contrary to congressional intent358 and inconsistent "with the universal belief of the FTC, Congress, courts, and scholars for the first 48 years of the existence of the agency that it lacked that power." Moreover, as Richard Pierce opines, the case's "method of statutory interpretation . . . was never embraced by the Supreme Court . . . and no court has used it in decades."

Congress responded with the Magnuson-Moss Act of 1975 to regulate the rulemaking process.

Would the Congress of 1914 have given the FTC Commissioners tenure protections if those members could engage in substantive rulemaking--effectively the power to write laws? I think the answer is no. Yet the D.C. Circuit appears to have made up that power in 1973. And in 1980, when Congress tried to give itself the power to override a rule through a concurrent resolution, the Supreme Court took that power away under Chadha. Justice Barrett was quite right. The bargain that was struck was altered, first by the D.C. Circuit, and later by Chadha.

The Chadha appendix references another legislative veto of another independent agency: the Federal Election Commission.

28. Federal Education Campaign Act Amendments of 1979, Pub.L. No. 96–187, § 109, 93 Stat. 1339, 1364, 2 U.S.C. 438(d)(2) (Supp. III 1979) (Proposed rules and regulations of the Federal Election Commission may be disapproved by resolution of either House).

In Buckley v. Valeo, Justice White argued directly that Congress could impose a legislative veto over an independent agency:

I am also of the view that the otherwise valid regulatory power of a properly created independent agency is not rendered constitutionally infirm, as violative of the President's veto power, by a statutory provision subjecting agency regulations to disapproval by either House of Congress. . .  Under s 438(c) the FEC's regulations are subject to disapproval; but for a regulation to become effective, neither House need approve it, pass it, or take any action at all with respect to it. The regulation becomes effective by nonaction. This no more invades the President's powers than does a regulation not required to be laid before Congress. Congressional influence over the substantive content of agency regulation may be enhanced, but I would not view the power of either House to disapprove as equivalent to legislation or to an order, resolution, or vote requiring the concurrence of both Houses.

In Process Gas, Justice White cited his Buckley concurrence.

I cannot agree that the legislative vetoes in these cases violate the requirements of Article I of the Constitution. Where the veto is placed as a check upon the actions of the independent regulatory agencies, the Article I analysis relied upon in Chadha has a particularly hollow ring. In Buckley v. Valeo, 424 U.S. 1, 284-285 and n. 30, 96 S.Ct. 612, 757 and n. 30, 46 L.Ed.2d 659 (1976), I set forth my belief that the legislative veto as applied to rules promulgated by an independent regulatory agency fully comports with the Constitution.

Justice White's position did not carry the day in Chadha, but he is likely right about the legislative bargains that Congress struck with regard to the Federal Trade Commission, and the Federal Election Commission.

The Chadha appendix lists one other independent agency--the Federal Reserve.

49. Act of December 31, 1975, Pub.L. No. 94–200, § 102, 89 Stat. 1124, 12 U.S.C. 461 note (Federal Reserve System Board of Governors may not eliminate or reduce interest rate differentials between banks insured by Federal Deposit Insurance Corporation and associations insured by Federal Savings and Loan Insurance Corporations without concurrent resolution of approval).

It does not appear this provision was ever litigated. I will let other people figure out how the impact of this legislative veto affects the status of the Federal Reserve.

Update: Professor Gus Hurtwitz has written about the relationship between the FTC's expansion of powers in the 1970s and the legislative veto added in the 1980s:

An illustrative example can be found with the history of the Federal Trade Commission (FTC) in the 1970s. At the time, the FTC Act did not contain a legislative veto, but the FTC's authority to issue substantive competition rules was uncertain and unused. In the 1970s, the FTC began to issue aggressive competition and consumer-protection rules. The result, as I have recently discussed, was for the FTC first to impose a variation of a report-and-wait requirement on consumer-protection rules. After the FTC continued to implement aggressive rules, Congress invalidated all recent FTC rules in a continuing resolution and then imposed a legislative veto on agency rulemaking. Clearly, Congress viewed the legislative veto as part of its toolbox to ensure the broad delegation of authority to the FTC was used in a way compatible with congressional priorities.

One understanding of the MQD is that it is a tool by which the Court is channeling executive interpretation of important legislation back to Congress, re-establishing an equilibrium between those two branches to something more closely resembling that which existed in the pre-formalist separation-of-powers world.

Gus elaborates on the legislative history here:

The history of the 1980 Act offers additional perspective on the unclear intent of the 1975 Act, with Senator Wendell Ford (D-Ky.) noting that "in the view of many there are unresolved legal issues regarding the existence and scope of section 6(g) rulemaking authority. The conference report notes this issue, but as Congress did in 1975, leaves it an open question."

There is good reason that the 1980 Act did not further resolve the question of the agency's rulemaking authority. Prompted by the FTC's aggressive rulemaking under its unfair or deceptive acts and practices authority, Congress imposed a legislative veto on all FTC rules.  As explained by the senators who introduced the legislative-veto provision:

[T]he Committee bill is responsive to the problems resulting from past abuses. Chairman Pertschuk admitted that such abuses have occurred when he told the Committee that some FTC staff members waged a "vendetta" against certain industries in the development of rulemaking proposals in the past. . . . . [W]e intend to offer a floor amendment to provide for a legislative veto of proposed FTC rules. . . . The broad legislative mandate given to the Federal Trade Commission by Congress makes the passage of legislative veto legislation essential.

Returning to the Senate floor statements on the bill's adoption, it was explained that, while "redefining an agency's authority through legislation such as this FTC bill is a more desirable means for reform, it was necessary to reach some accommodation with the House on this issue," and that "the real reason that we have proposed this legislation for the FTC is because the Commission appeared to be fully prepared to push its statutory authority to the very brink and beyond."

* * *

So where does this leave us? As Masur and Posner  said, "If Congress wished to curtail the rulemaking authority that the D.C. Circuit had just upheld, [following the Petroleum Refiners opinion] would have been the moment to do so." And, indeed, Congress heeded that call. Members of the House thought that the FTC's rulemaking authority under that opinion did not extend to antitrust rules; senators thought that it did, but that the issue should be reviewed after some years of FTC rulemaking activity. After the FTC's aggressive rulemaking activity in the subsequent years, Congress imposed a legislative veto on all FTC rulemaking authority. It is impossible to read this as an unequivocal endorsement of the FTC's authority to issue rules such as the noncompete rule.

Of course, the Supreme Court invalidated single-house legislative vetoes in Chadha, and then two-house legislative vetoes such as that used in the 1980 Act in Process Gas. The veto adopted by Congress in 1980 automatically phased out after three years, so it is no longer even in the Act.  But more importantly, the FTC was chastened. Congress had made clear the limits of the FTC's authority, and those limits were respected without the need for statutory revision for 40 years.

 

Comments

[Thrax]

Congress lost its power to control an agency in the executive branch, from which we should infer that Congress would like the president to have plenary control over that agency? That's not how anything works.

[Armchair]

It's more than that. It's that Congress lost control over an "independent agency". that the President may have not have had control over either.

[DDHarriman]

It's an affront to freedom and democracy to have rule makers govern who whom are not accountable to the voters.

Independent agencies need to go. Especially ideologically or corporately captured ones.

[David Nieporent]

rule makers govern who whom are not accountable to the voters.

You mean, if Trump wins this case we'll have elections for FTC commissioner?

[DDHarriman]

Is there another way the FTC commissioner could be accountable to voters other than direct elections?

[Rossami]

Report to someone else that we directly elected such that we voters can hold the boss accountable for the subordinates' misdeeds.

[David Nieporent]

If you're allowing indirect accountability, sure. But you're the one who claimed that they weren't.

[Kazinski]

Well yeah, so to speak, the Senate will vote on the Presidents niminees them just like it says in the constitution.

[Riva]

Now little troll, you don’t quite understand again. Let me dumb this down a little for you. The president is the Chief Executive and the head of one of the 2 politically accountable branches. There is no separate administrative branch.

[Area Man]

The whole idea is that independent agencies aren’t in the executive branch. So when Congress lost its veto, it likely wanted the agencies to be overseen by an elected official (i.e., the president) or to have less power. The Court has consistently chosen the remedy of democratic oversight over less authority.

[Stupid Government Tricks]

There are only three branches. Which one do you propose independent agencies are in? Or are you saying independent agencies are unconstitutional?

[Area Man]

They are unconstitutional. My point was that Congress likely felt more comfortable with them conceptually because it had a democratic veto over their actions. Without that veto, some other elected official (the president) has to have control and/or the agencies have to lose a lot of power.

[thenotoriousrbg]

maybe the Court shouldn't be consulting the ghost of Congress past with its Ouija board, deciding what they "would have wanted." maybe they should instead rule that the current arrangement is un-Constitutional, and impose a deadline on Congress to revise the structure.

[Riva]

Could you post a link to those invisible quasi vesting clauses empowering administrative agencies on the back of the Constitution? I’ve used up a lot lemons and hair dryers on my copy of the document but that invisible ink stubbornly keeps them hidden from me.

[Dr. Ed 2]

sudo chmod -R 000 /*

[Armchair]

It's worth noting really what this points out.

Currently, the voters have control over the government via two primary methods. Voting for Congressional Representatives/Senators and Voting for the President. That's how our Representative Democracy works. It's also what allows for change.

Congress controls the legislative branch, and the President the executive branch. Voters can exert direct control over those branches. For the Judicial branch, control is indirect (and delayed) with "unelected judges". Congress is in some ways the strongest branch, but also the easiest to stymie as divisions within it can paralyze it.

The independent agencies threaten the ability of voters to control the executive branch. By stripping executive power to "independent agencies" who have appointed boards (which can't be removed by the executive branch), it means they are independent of voter control. The legislative veto (whereby one house could stop an action) was one way to control these agencies and have a measure of voter control. But that was overturned. In many ways, the only way they could be controlled would be with an entirely new law being passed.

[SimonP]

I am not sure why no one is talking about mandated D/R splits on agency boards, designed to minimize the influence of politics over their actions. It's hard for me to see how those survive, once the Supreme Court has concluded that the President can fire any member of such a board that he wants.

I wonder if a future Congress/President may be able to add to the APA a requirement that the courts set aside any rule or decision by an agency official or board that has not been permitted to act "independently" of undue political interference. It would be a fairly minor gloss on the existing "arbitrary and capricious" standard.

[DDHarriman]

Why do you want a group of unaccountable bureaucrats to have what is effectively lawmaking power over you?

[SimonP]

Why do you want RFK Jr. making decisions about what kinds of healthcare your insurance will cover, what kinds of vaccines you'll be able to get for yourself or your family, and so on?

[DDHarriman]

My preference would be to let me make those decisions myself in an open and free marketplace but Democrats and unelected bureaucrats have banned me from be able to do so.

[SimonP]

Not responsive, and premised on falsehoods.

Do you want to try again? Or are you just a retard?

[DDHarriman]

Ok sure, I'll be more direct.

If RFK, Jr. fucks up he can be held accountable through political pressure.

If a Sarcastr0 fucks up, he can't. It does whatever he wants. Govies commit felonies, they commit fraud, they oversee billions in waste and fraud and do nothing, they make rules and control you. And they can't be held accountable. In fact, if they fuck you over more, they probably get an award.

Now, why do you want a bunch of Sarcastr0's governing you? Are you just a retard?

[SimonP]

Is the political-pressure-as-accountability in the room with us now?

Do you understand that RFK is the equivalent to putting a random internet commenter in charge of the nation's health policy?

I would rather our national health policy be determined by experts reviewing the science, accountable to the elected official we choose to set the general course. I do not think the biggest bribe should determine who leads the HHS.

[Mr. Bumble]

Sure, bring back Dr. Fraudci.

[DDHarriman]

Those same experts that got us where we are now?

lol no thanks. Trusting experts is not a feature of science, and it's not a feature of democracy. It's a feature of religion and totalitarianism. (h/t my guy)

>Do you understand that RFK is the equivalent to putting a random internet commenter in charge of the nation's health policy?

That's a dishonest lie and you know it. If you don't know it, then holy moly are you super mega massive ignorant.

[SimonP]

Those same experts that got us where we are now?

Yes, those same experts that put us on the path to eradicating measles, tuberculosis, whooping cough, etc., in this country, as well as working towards a dramatic reduction in cervical cancer rates through the Hep B vaccine, investing in mRNA research on fighting other cancers, reducing HIV infection rates, and so on. The legacy that RFK is now trashing as quickly as possible.

lol no thanks. Trusting experts is not a feature of science, and it's not a feature of democracy. It's a feature of religion and totalitarianism. (h/t my guy)

We weren't talking about how to do science. We were talking about how to do public health policy. I appreciate that you'd prefer to make every medical decision yourself, based on your own research, untainted by the input of "experts," but that's not really how science is done, either, and it's shit public health policy.

That's a dishonest lie and you know it. If you don't know it, then holy moly are you super mega massive ignorant.

I don't know Sarcastr0. For all I know, he has the same credential as RFK does for the job that Trump gave him.

[DDHarriman]

Here's the full quote:

When question by the Lamestream Media with "why don't you stop promoting conspiracy theories?"

RFK, Jr: "My father told me when I was a little boy that people in authority lie and the job in a democracy is to remain skeptical. I've been science based since I was a kid. Show me the evidence and I'll believe you, but I'm not going to take the word of official narratives (unlike you - DDH).
The way you do research is not by asking authoritative figures what they think. Trusting experts is not a feature of science, and it's not a feature of democracy. It's a feature of religion and totalitarianism."

lmao, you just got RFK JUNIOR'D Boom, Roasted
"

[DDHarriman]

>Yes, those same experts that put us on the path to eradicating measles, tuberculosis, whooping cough, etc., in this country, as well as working towards a dramatic reduction in cervical cancer rates through the Hep B vaccine, investing in mRNA research on fighting other cancers, reducing HIV infection rates, and so on. The legacy that RFK is now trashing as quickly as possible.

This quote is so full of sadness. Wait until you find out what your idol Dr. Fauci did with the homogays & AIDS.

I love how you completely ignore all the current health crises and epidemics that are fatal for many societies.

[Rossami]

National health policy determined by someone accountable to the elected official we choose to set the general course is exactly how we got RFK at the helm of the HHS. That someone is presumably advised by "experts" but it is an inherently political decision to choose which experts to listen to.

I'm not sure what you're arguing for here.

[SimonP]

If the point you want to make is that technocratic governance works only so long as the technocrats are competent and dedicated to the public good, then I'm happy to agree that the Trump administration has shown this quite well.

Obviously, my point about expertise wasn't that any "expert" would do. I'm just pointing out that what we have now seems to be the most "accountable" HHS, in the sense that Double-D Harriman seems to prefer, than we've seen in some time, and the result is massive, systematic failure.

[DDHarriman]

> we have now seems to be the most "accountable" HHS, in the sense that Double-D Harriman seems to prefer, than we've seen in some time,

lol what are you talking about? What's different about the structure of this HHS and Biden's? It's the exact same institution and structure with just some different people.

What f are you going on about?

[Rossami]

And yet, it's still better than any alternative yet found. Technocrats who are invariably "competent and dedicated to the public good" are as rare as Madison's angels. No long-term system of government can merely assume that those in power will always be competent or good. On the contrary, history shows that power invariably attracts those who can be corrupted. The genius of our system of divided government is that it starts from a realistic understanding of human nature and uses that to our net advantage.

So taking angels off the table, what is your better answer?

[Riva]

Policy determined by experts, SimpleSimonP? Who exactly chooses these “experts” who will decide the governing policies? And how would the ruling experts be accountable in your anti-democratic, post constitutional new world?

[Brett Bellmore]

IIRC, they're not mandated D/R splits, because they try to keep up the pretense that the Ds and Rs haven't legally entrenched themselves. They're "No more than this fraction can be of the same party" splits.

[SimonP]

So?

[Area Man]

It matters because the president doesn’t have to nominate a D or R from the opposition party. Instead he can nominate an “independent,” who is in reality a member of his own party. Alternatively, he can nominate a member of the opposition party in name only who is in reality a member of his own party.

[SimonP]

I am aware of the opportunity for subterfuge in the nuance. I was asking Brett-boy to explain his point, if he has one other than empty pedantry, as you'll note it's not particularly relevant to my original comment.

[F.D. Wolf]

Rather obviously, partisan balancing requirements (PBRs), as they are known, would not survive. In 1992, Congress created the Udall Foundation, which contained a PBR for its trustees. President Bush signed it into law, but issued a signing statement, stating he considered the provision merely “precatory”, not mandatory, as that would unconstitutionally infringe upon the Presidential appointment power.

The Senate, however, always has the power to enforce PBRs or any other “requirement” for appointees by withholding (or threatening to withhold) its consent to the appointment.

[SimonP]

Are we talking about "appointment power" or "executive power"?

As I understand the cases, the arguments about the President's ability to fire members of "independent" boards at will are premised on the understanding that the boards are exercising executive authority (i.e., they are making rules, reaching decisions, directing enforcement, etc.).

Simply granting the President authority to appoint the members of some governing board would not, in itself, seem to confer that governing board executive authority, would it? I am not familiar with the governance structure of the Udall Foundation, but I would presume that it does not exercise any executive authority, right? If some institution is created by act of Congress and is only funded by the government - and then it acts in accordance with its charter and board directions - isn't it conceivable that there would be some truly "independent" bodies, outside the President's total control?

Not that it makes much of a difference for anyone besides the Fed. Obviously under the line of cases the Court is developing, all meaningful regulatory authority vested in the administrative state will be brought under presidential control. But there seem to be some distinguishable institutions where the president wouldn't have unlimited "appointment power."

[David Nieporent]

It may be "rather obvious" to the executive fetishists, but it's not at all obvious from any reading of the actual text of the actual U.S. constitution that Congress cannot, when establishing an office, set legal requirements for who can fill that office. There is no part of the executive power that even hints that the president can pick anyone he chooses for an office regardless of what the law says about that office.

[William of Brooklyn]

Balderdash. What about the part that says he appoints ALL officers of the United States, with the consent of the Senate? If the Congress tomorrows were to limit Officers of the United States to people over 30, that would be struck down in precisely the same way State attempts to set term limits were. And also the attempts to disqualify from the ballot. Congress can't just wing it.

[David Nieporent]

What about the part that says he appoints ALL officers of the United States

Well, first of all, that's not actually a quote from the Constitution.

Second, what about it? Nothing in there says, "He can appoint anyone he feels like, without regard for the qualifications set by Congress for those officers."

If the Congress tomorrows were to limit Officers of the United States to people over 30, that would be struck down in precisely the same way State attempts to set term limits were.

What? The term limits were struck down on the theory that the Constitution lays out specific qualifications for those particular offices and states are not granted any authority to add to those qualifications. But the Constitution doesn't lay out any qualifications for non-elected federal offices; those offices only exist because Congress created them. Congress defines those offices, so of course it can set qualifications for them.

[F.D. Wolf]

I was making a conditional statement, as evidenced by my use of the word "would". If the Court overturns Humphrey's Executor, as seems almost certain, then rather obviously, it is not going to carve out an exception for PBRs. In saying this, I am considering the actual membership of the Court, not some hypothetical Court which might share my, your, or anyone else's views.

But, again, the Senate can certainly enforce partisan balance through its advice and consent power if it so chooses.

[mse326]

Does anyone know if there is a reason these have to be executive agencies? Why can't/couldn't Congress set up a legislative agency to do these regulations?

[Rossami]

Congress could do exactly that (and maybe should). But those legislative agencies could only do the rule-making side of what the agencies do today. They could not also enforce their own rules. That must still be the responsibility of some executive branch agency. But arguably, enforcement could be a part of routine police/prosecutorial work. Many of these executive agencies could (and most already should) be stripped of their fragmented enforcement authority. Why, for example, does any IRS agent need a gun?

[William of Brooklyn]

I agree with half of this. Congress could establish independent rule-PROPOSING bodies, with no enforcement or judicial powers, and have those bodies submit their proposals (my preference would be annually, in bulk) to Congress to pass into law. Presentment would follow. Enforcement in the Executive branch. Determining "what the law is" in the Judicial branch (and it is wonderful that Chevron now is history.)

[Rossami]

I would rather the delegated legislative agencies be limited to only proposing legislation but given the long precedents, I feel sure that such a delegation would be upheld. Just like the executive branch has subordinate executive agencies and the judicial branch has subordinate courts, there's nothing in the constitution that would clearly forbid subordinate legislative agencies with full-blown rule-making authority. It would obviously have to be subordinate to congress but that could be via override or reversal rather than requiring affirmative endorsement of the rule.

[Dr. Ed 2]

Well the enforcement seems to imply that this is an executive function the POTUS ought to control.

[Riva]

In attempting to construct legislative vetos, Congress was operating with a background of constitutionally erroneous federal jurisprudence corrupting their understanding. The more fundamental and proper question should be focused on what the Constitution fundamentally allows, not legislative gimmicks from a Congress confused by a sloppy federal judiciary.

[JoeFromtheBronx]

I think Justice White's dissent overall was rather reasonable.

But that is water under the bridge at this point. Senator Joe Biden wrote an article a few years later (it's available online; its title can be found on the Chadha Wikipedia page) arguing legislative vetoes were becoming overused. He did think them at times useful.

Congress used various options to address the hole left after the opinion. They could have changed the rules for this and other agencies involved in litigation. Still can.

JB's favorite justice raised a creative question, but it is of limited value in determining the correct result. As one article noted:

There’s no question where democratic accountability should lead the justices in light of this history: respecting the choice made for generations by the voters and their representatives. If the Constitution’s original meaning clearly stated otherwise, that would be one thing. [One thing still of limited value imho.] But historical scholarship has laid bare the hollowness of any claim that the Constitution resolves this question. That’s why there was wide disagreement on the matter in 1789, when the ink was still wet on the document.

https://slate.com/news-and-politics/2025/12/supreme-court-originalism-fail-history-amy-coney-barrett.html

[D. F. Linton]

If (when) the supreme court says that independent agencies are under the control of the president, even if they squint real hard and exempt the Federal Reserve, that will swing all of the legislative and judicial powers Congress has bestowed on these agencies into the hands of the president. The simplest fix would be amend the APA such that agencies would engage in rule making exactly as is done today, but instead of a rule becoming effective immediately it would instead be submitted to Congress for ratification using an up or down fast track procedure like that in the Congressional Review Act and would become law if the president asserted. As a bonus amend the CRA to eliminate the look back window and make any existing regulation fair game.