3150

VETOES

presented once again is whether the power of the Committee
to disapprove a rule temporarily, or that of the Houses to
do so permanently by joint resolution, is the equivalent of
enacting law.

The case for a contravention of the presentment clauses
has been forcefully put by R. W. Ginnane in his article

entitled The Control of Federal Administration by

Congressional Resolutions and Committees, 66 Harv. L. Rev.,
569 (1953). Ginnane's view is that a disapproval is the
equivalent of a policy decision, and therefore constitutes
legislation. He reaches this conclusion by means of the
following deduction:

"Since the Constitution plainly requires
presidential participation in the exercise of
legislative power, a power must be classified as
non—legislative to justify its exercise by
Congress or one of its branches in a way other
than that prescribed." Ginnane, supra, at 59 3.

The contrary view is stated by Geoffrey S. Stewart,
supra. His analysis is essentially three—fold:

(1)    The veto power is supposed to protect the
executive from legislative encroachment, rather than
make the executive an arbiter of the legislature's
wisdom.

(2)    A disapproval does not permit the Legislature to
set standards; neither does it require affirmative
action by either the Executive or the Judiciary in
their respective functions of executing and
interpreting the law; hence it is not law making.

(3)    The Executive initially had the opportunity to
veto the legislation which established the legislative
veto mechanism.

Stewart, supra.. A similar analysis is developed in Cooper &
Cooper, supra, who view the Legislative intent, as expressed
in a committee disapproval, as a condition upon which the
delegation of power to the agency depends in the first
instance, i.e., the disapproval is not new legislation, but
a guarantee that the original policy is fulfilled. This
same view is adopted in Schwartz, Legislative Control of
Administrative Rules and Regulations, 30 N.Y.U. L. Rev.
1031 (1955).""

On balance, we find the latter view to be more
persuasive. The very language of Article II, Sec. 17,
confirms that its role is to protect the Executive, but not
to grant it an enlarged role in the system of governance.
Secondly, the disapproval vehicle is conditioned on meeting
existing policy as delegated, rather than on changing that