The Power of Congress

Chapter 3

The Power of Congress

Mistrust of centralized authority was an overarching influence upon the nation’s founding and has been a significant factor in the Constitution’s evolution. Early constitutional case law focusing upon congressional authority reflects this concern. In McCulloch v. Maryland (1819), for instance, the Court addressed the issue of whether congressional power should be limited strictly to what the Constitution specified or allowed for action that enabled Congress to exercise its authority more effectively. In ruling for a broader definition of congressional power, the Court set a principle and tone that favored development of a national identity. Separation of power controversies typically arise from disputes over which branch of government should exercise authority in a particular context. Separation of power concerns are not limited, however, to conflict between branches. As federal powers have expanded over the course of the twentieth century in particular, Congress has initiated efforts to increase the efficacy and efficiency of governmental operations. Its ability to delegate legislative authority to administrative agencies, charged with responsibility to manage increasingly complex social and economic problems and needs within Congress’s scope of responsibility, generally has been upheld since the middle of the twentieth century. Other structural efficiencies, such as the legislative veto reviewed in Immigration and Naturalization Service v. Chadha (1983), have not survived constitutional scrutiny. Additionally, the Court must interpret statutory language in order to determine the extent of the Congressional power being asserted. In King v. Burwell (2015), the Court ruled that certain language in the controversial Affordable Health Care Act, which language appeared on its face to limit tax credits to individuals seeking insurance in State run health care exchanges, in fact also allowed tax credits to individuals seeking insurance in Federal health care exchanges in cases where a State had declined to establish a health care exchange.

Immigration and Naturalization Service v. Chadha

Citation: 462 U.S. 919.

Issue: Whether Congress may authorize one house to veto administrative regulations.

Year: 1983.

Outcome: No. The “one-house veto” violates the concept of separation of powers.

Author of Opinion: Chief Justice Warren Burger.

Vote: 6-3.

Since the constitutional crisis of the 1930s, which led to a dramatic shift in the United States Supreme Court’s approach to federal power, federal administrative power has grown so dramatically that some now refer to the administrative bureaucracy as a “veritable fourth branch of government.” Not only has there been a significant increase in the number of administrative agencies, but those agencies now create a large quantity of law in the form of administrative regulations. Although Congress has searched for ways to rein in administrative power, none has proved effective.

Immigration and Naturalization Service v. Chadha involves one attempt by Congress to rein in administrative power through the use of the so-called one-house veto. The case arose in a deportation proceeding involving Chadha. Although Chadha conceded that he was deportable because he had overstayed his visa, he applied for a suspension of deportation. An immigration judge agreed to suspend the deportation. Under the governing statute, which allowed either house of Congress to overturn the suspension order, Congress reversed the decision of the immigration judge. Thereupon, Chadha challenged the law on constitutional grounds.

Ultimately, the United States Supreme Court agreed with Chadha. The Court noted that the Constitution requires that all legislation be passed by both houses of Congress and that it then be presented to the President for signature or veto. The Court regarded this “presentment” power as extremely important: “The decision to provide the President with a limited and qualified power to nullify proposed legislation by veto was based on the profound conviction of the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed.” The presidential function “in the lawmaking process also reflects the Framers’ careful efforts to check whatever propensity a particular Congress might have to enact oppressive, improvident, or ill-considered measures.”

The Court also rejected the one-house veto under the bicameralism requirement of Art. I, § 1, cl. 7. That clause requires that, in order to pass legislation, it must be passed by both houses of Congress. The Court concluded that the one-house veto was exercised in a “legislative” manner and that it could act only bicamerally: “Neither the House of Representatives nor the Senate contends that, absent the veto provision in § 244(c)(2), either of them, or both of them acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise of legislatively delegated authority, had determined the alien should remain in the United States.” The Court concluded that, when the Constitution authorizes one house of Congress to act unilaterally, it stated that power explicitly. The Court concluded that the Constitution provided for unilateral action in only four situations: “(a) The House of Representatives alone was given the power to initiate impeachments. Art. I, § 2, cl. 6; (b) The Senate alone was given the power to conduct trials following impeachment on charges initiated by the House and to convict following trial. Art. I, § 3, cl. 5; (c) The Senate alone was given final unreviewable power to approve or to disapprove presidential appointments. Art. II, § 2, cl. 2; (d) The Senate alone was given unreviewable power to ratify treaties negotiated by the President. Art. II, § 2, cl. 2.” Otherwise, the Court concluded, Congress must act in a bicameral manner and must present the legislation to the President for his signature or veto.

While the Court agreed that the one-house veto provided a “convenient shortcut” by which Congress could assert authority over the Executive branch, and thereby share power with it, the Court held that “the records of the Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency.”

Justice Byron White dissented noting that the Court’s decision “strikes down in one fell swoop provisions in more laws enacted by Congress than the Court has cumulatively invalidated in its history.” He went on to express concern that “it will now be more difficult ‘to insure that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people, . . . I must dissent.”

Chadha is an extremely important decision because it invalidates Congress’s attempt to gain control over the administrative bureaucracy through the mechanism of the one-house veto. After Chadha, Congress was forced to search for alternate methods for reining in the growth of administrative lawmaking.


Chief Justice BURGER delivered the opinion of the Court.

. . . Although not “hermetically” sealed from one another, the powers delegated to the three Branches are functionally identifiable. When any Branch acts, it is presumptively exercising the power the Constitution has delegated to it. When the Executive acts, it presumptively acts in an executive or administrative capacity as defined in Art. II. And when, as here, one House of Congress purports to act, it is presumptively acting within its assigned sphere.

Beginning with this presumption, we must nevertheless establish that the challenged action . . . is of the kind to which the procedural requirements of Art. I, § 7 apply. Not every action taken by either House is subject to the bicameralism and presentment requirements of Art. I. Whether actions taken by either House are, in law and fact, an exercise of legislative power depends not on their form but upon “whether they contain matter which is properly to be regarded as legislative in its character and effect.”

Examination of the action taken here by one House . . . reveals that it was essentially legislative in purpose and effect. In purporting to exercise power defined in Art. I, § 8, cl. 4 to “establish an uniform Rule of Naturalization,” the House took action that had the purpose and effect of altering the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the legislative branch. . . . The one-House veto operated in this case to overrule the Attorney General and mandate Chadha’s deportation; absent the House action, Chadha would remain in the United States. Congress has acted and its action has altered Chadha’s status. . . .

The nature of the decision implemented by the one-House veto in this case further manifests its legislative character. After long experience with the clumsy, time consuming private bill procedure, Congress made a deliberate choice to delegate to the Executive Branch, and specifically to the Attorney General, the authority to allow deportable aliens to remain in this country in certain specified circumstances. It is not disputed that this choice to delegate authority is precisely the kind of decision that can be implemented only in accordance with the procedures set out in Art. I. Disagreement with the Attorney General’s decision on Chadha’s deportation—that is, Congress’ decision to deport Chadha—no less than Congress’ original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.

Finally, we see that when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action. . . .

Clearly, when the Draftsmen sought to confer special powers on one House, independent of the other House, or of the President, they did so in explicit, unambiguous terms. These carefully defined exceptions from presentment and bicameralism underscore the difference between the legislative functions of Congress and other unilateral but important and binding one-House acts provided for in the Constitution. These exceptions are narrow, explicit, and separately justified; none of them authorize the action challenged here. . . .

Since it is clear that the action by the House under . . . was not within any of the express constitutional exceptions authorizing one House to act alone, and equally clear that it was an exercise of legislative power, that action was subject to the standards prescribed in Article I. The bicameral requirement, the Presentment Clauses, the President’s veto, and Congress’ power to override a veto were intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps. To preserve those checks, and maintain the separation of powers, the carefully defined limits on the power of each Branch must not be eroded. To accomplish what has been attempted by one House of Congress in this case requires action in conformity with the express procedures of the Constitution’s prescription for legislative action: passage by a majority of both Houses and presentment to the President.

Justice WHITE, dissenting.

Today the Court not only invalidates § 244(c)(2) of the Immigration and Nationality Act, but also sounds the death knell for nearly 200 other statutory provisions in which Congress has reserved a “legislative veto.” For this reason, the Court’s decision is of surpassing importance. And it is for this reason that the Court would have been well-advised to decide the case, if possible, on the narrower grounds of separation of powers, leaving for full consideration the constitutionality of other congressional review statutes operating on such varied matters as war powers and agency rulemaking, some of which concern the independent regulatory agencies.

The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central means by which Congress secures the accountability of executive and independent agencies. Without the legislative veto, Congress is faced with a Hobson’s choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its law-making function to the executive branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role. Accordingly, over the past five decades, the legislative veto has been placed in nearly 200 statutes. The device is known in every field of governmental concern: reorganization, budgets, foreign affairs, war powers, and regulation of trade, safety, energy, the environment and the economy. . . .


Greene, Abner S. “Checks and Balances in an Era of Presidential Lawmaking.” University of Chicago Law Review 61 (1994): 123, 126.

Lively, D., P. Haddon, D. Roberts, R. Weaver, and W. Araiza. Constitutional Law: Cases, History, and Dialogues. 2nd ed. Cincinnati, OH: Anderson Publishing, 2000, 428.

Wheeler, Darren A. “Actor Pregerence and the Implementation of INS v. Chadha.” BYU Journal of Public Law 23 (2008): 83.

King v. Burwell

Citation: 576 U.S. ___.

Issue: Whether the Affordable Health Care Act extended tax credits to individuals seeking health care insurance under federal exchanges as well as those created by the states, despite language in the Act that appears to limit the tax credits to those seeking insurance only under state exchanges.

Year: 2015.

Outcome: Yes. The Affordable Health Care Act extended tax credits to individuals seeking health care insurance under federal exchanges as well as those created by the states.

Author of Opinion: Chief Justice John Roberts.

Vote: 6-3.