3166

VETOES

determination which the opinion said is a judicial
function and therefore exclusively within the judicial
branch of state government. Since the Attorney General
concluded that the legislature could not perform a
judicial function as a body, he held it could not
lawfully delegate such review power to one of its
committees.

"The Attorney General's opinion has been criticized as
being based on fallacious reasoning even under the
strictest doctrines of separation of powers. It is
said the opinion assumes that the legislature would
exercise the same mental process under its review power
as a court would in the exercise of judicial power. It
can as well be said that officers in the executive
branch are exercising "judicial" power every time one
decides to enforce a law because the reasoning process
is the same i.e., interpretation of a statute and
decision of its applicability to the facts of a given
case. For further comments see Howe, "Legislative
Review of Administrative Rules." supra, pp. 220-224."

See also, Schwartz, supra, 1042-1043, (who expressly
viewed such conclusions as stemming from "a perverted
construction of the separation—of—powers doctrine");
Note, Congressional Veto of Administrative Action; The
Probable Response to a Constitutional Challenge, 1976
Duke L. J. 285; J. Wm. Rehnquist, supra.

APPENDIX ONE

RESTORING THE BALANCE:
NINE RECOMMENDATIONS

In recognition of the need for a process of legislative
review of regulations in every state, NCSL's Legislative
Improvement and Modernization Committee has offered a set of
nine recommendations in its report, "Restoring the Balance:
Legislative Review of Administrative Recommendations."
Following is the committee's summary of those
recommendations.

1. Because of the proliferation of agency
regulations and the possibility of promulgation of
regulations which violate legislative intent or exceed
statutory authority, the committee strongly recommends that
legislatures establish priorities for reviewing all agency
rules and regulations promulgated with the force of law
under authority granted by the legislature, whether or not
they are covered by the administrative procedures act.
These review procedures should be as strong as the