4096

VETOES

Finally, and most importantly, "to guard against hasty or
partial legislation and encroachment of the legislative
department upon the coordinate executive and judicial
department," Article II, Section 17 of the Constitution provides
for a power of gubernatorial veto. The provision is unusual in
making explicit the purposes of the provision: not merely policy
review but also protecting the executive and judicial branches
against encroachment upon their powers.

This concern is as old as Jefferson's Notes on Virginia
quoted by Madison in the Federalist, No. 48 cautioning against a
condition in which "all the powers of government, legislative,
executive and judicial, result to the legislative body ... 173
despots would surely be as oppressive as one."

The dangers which may arise from the legislative veto are
magnified in instances such as that presented by the present bill
in which the veto is reposed in a single committee. As pointed
out by Attorney General Rogers in 41 Opinions of the Attorney
General No. 47 (1957): the committee veto "may well be the most
inimical to responsible government" since it permits "mere
handfuls of members to speak for a Congress which is given no
opportunity to participate as a whole."

The objections to this sort of legislative veto may be
briefly summarized: by delaying the effectiveness of regulations
it increases delay in the implementation of programs found
necessary by the legislature and the Governor. It significantly
increases the workload of both executive agencies and legislative
committees by leading the General Assembly to a belief that it
retains a check upon regulations adopted by the Executive and
constitutes an invitation to broad and careless delegation of
powers. By according a limited number of legislators undue
influence over the implementation of important policies adopted
by the Governor and legislature as a whole, it invites subrosa
procedures. Procedural of proposals for legislative veto also is
to detract from the rationale and procedural regularity of the
rule-making process. Instead of the ultimate form of rules being
determined by compliance with the procedures for rule adoption
set forth in the Administrative Procedure Act and by subsequent
judicial review, the final form of rules would be determined
without reference to these procedures by a process which would
frequently involve ex parte approaches to particular legislative
committee members and in absence of public hearings or hearings
on the record. A further possible consequence of these
legislative veto provisions would be an increased tendency on the
part of agencies to exercise power by means of decisions in
particular cases rather than by rule-making, not a desirable
consequence.

The General Assembly has the power to pass legislation to
override any regulation and current law provides adequate
authority for the AELR Committee to review proposed regulations.