The legislative veto; What would Madison have thought?

James Madison, the Founding Father who had a major role in crafting the separation of powers theory, might have been baffled by the Supreme Court's reasoning in striking down the legislative veto recently. The majority held that efficiency was not the prime objective of democratic government.

Several constitutional experts argue, however, that the framers of the US Constitution, including Madison, were very concerned about governmental efficiency. In fact, says Arthur S. Miller, constitutional lawyer and professor emeritus of George Washington University, one of the main reasons they instituted a system of checks and balances was to boost the efficiency of government. They had had a disastrous experience with the Continental Congress.

That deliberative body suffered because it was performing a juggling act, writes Louis Fisher in his book ''President and Congress.'' Delegates tried to formulate, administer, and adjudicate the nation's laws. Delegates never had a focused agenda and debated so long ''that the most precious Moments pass unheeded away like vulgar Things,'' observed Gouverneur Morris. Various plans were tried - such as committees, which multiplied so quickly that John Adams was soon serving on nearly 90. Only the appointment of single executives to various departments worked with any success.

By the time the framers gathered for the 1787 Constitutional Convention in Philadelphia, there was virtual agreement that some separation of governmental functions was needed - not only to limit the authority of any one branch, but also to make the whole more efficient.

What was uncertain was how much overlap there should be. Madison argued long and hard at the convention for some blending of those functions. And a Constitution emerged that allowed the president to veto legislation, Congress to impeach the president, and the chief justice to preside over impeachment hearings.

By the time of debate over the Bill of Rights, Madison seemed to change position somewhat and was supporting a separation of powers clause. This was not a change of heart, writes Mr. Fisher, but Madison's attempt to preserve a careful balance, to keep the Constitution's porous walls of separation from caving in.

The separation clause never made it in the Bill of Rights because a team of congressional conferees, including Madison, trimmed it out.

Recently the Supreme Court added another chapter to the controversy. It struck down the legislative veto, which had allowed Congress to block specific actions of the president or executive agencies without going through the full legislative process. The court held that, however efficient it might be as a legislative mechanism, it violated constitutional requirements for separation of powers.

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