Can Congress apply ''legislative vetoes'' to bureaucratic decisions?
Can a Congress-created bureau, like the Federal Trade Commission (FTC), require every used-car dealer in America to put a sticker on the window of every used car on the lot, disclosing any defects the dealer is aware of?
Congress says ''Yes'' to the first question, ''No'' to the second.
More than 200 separate ''legislative veto'' provisions are now on the books. It boils down to whether Congress can first grant power to an agency it creates, and then take it away again by veto. Is it an interference with the constitutional division of power?
Now dramatically comes a new test case. It is a triple whammy.
1. The FTC ordered used-car window stickers describing known defects.
2. However, House and Senate have reserved the right to override the FTC requirement.
3. The top judges of the District of Columbia circuit court now say that Congress doesn't have the veto power. The House and Senate are defendants in the case and they may appeal.
Now a Supreme Court decision is expected. The high court will hear arguments in another pending legislative-veto case in December.
Consumer groups affiliated with Ralph Nader want used-car buyers to have the sticker information. Car sellers' groups, on the other hand, declare it would be vastly expensive.
The public is almost unaware of the ''legislative veto,'' and yet it may be the outstanding puzzle in America's complicated system of constitutional division of powers.
Every president since Herbert Hoover has opposed the legislative veto. Congress slapped down President Nixon's desire to impound funds (in other words, to defy Congress by not using appropriated money). President Carter, in turn, rejoiced when an appeals court decision in December 1980 struck down a legislative veto which Congress had relied upon for years to overturn executive decisions on deportation cases. Mr. Carter hailed the rebuff to Congress as having ''perhaps the most profound significance constitutionally of anything that's happened in my four years.''
The problem in the latest case is as follows: Congress wants to grant power to the executive branch and other agencies and yet have a say in what they decide. It can do this by retaining certain types of power over the bureaus' decisions - it may make the validity of a decision dependent on approval by one or both of houses of Congress, or by a single committee. (Example: In 1978 and 1979 Congress attached to an appropriation bill a prohibition on the use of any funds by the Bureau of Alcohol, Tobacco, and Firearms to implement a proposed regulation that members feared would lead to gun control).
In 1980, after the Carter administration declared that legislative vetoes over four regulations issued by the Department of Education were unconstitutional and nonbinding, Congress inserted language in appropriation bills to neutralize the administration's position not only in education but in other areas.