Monday, January 16, 2006

Binding congress and legislative veto: a connection?

Consider fast-track legislation, which binds congress to an up-or-down vote on certain pre-defined future bills or proposed treaties. Of course you can always kill the fast-track rule itself, but with certain political costs, and then you can't use the process when your guy is in power.

How is this different from a legislative veto?
Under a fast track scheme, Congress can let the president (or an administrative agency) make the initial policy decision, the implementation of which is conditioned on passage of an administration-drafted confirmatory statute via an expedited up-or-down vote. Under fast track the legislature must still affirmatively endorse the executive's chosen policy, but the special procedure guarantees that the measure comes up for a vote quickly, thus overcoming the procedural roadblocks that beset the ordinary legislative process. An effective fast track regime thus reduces the inertia that stands in the path of passing a law. In terms of congressional effort, approving the confirmation statute when it automatically comes up for a vote is not that much more burdensome than refraining from adopting a legislative veto resolution - or, at any rate, approving the fast track confirmation statute is certainly easier than passing normal legislation - and so fast track and the legislative veto approach a rough equivalence.
So the two can have similar effects, but fast-track satisfies bicameralism and presentment, while it might run more afoul of future-binding problems. Hmmmmmm. The above paragraph from Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J. L. & Politics 345.


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