State lawmakers worry that court ruling may curb their veto powers
San Antonio — State lawmakers across the nation are concerned that their governmental reins are being shortened. They are particularly disquieted by a United States Supreme Court ruling that overturns the legislative veto - the power of Congress to block specific actions that the President or a federal agency takes to carry out authority that Congress has delegated.
Although the ruling doesn't directly apply to state legislatures, many lawmakers expect it to curb - or even end - their authority to influence actions of state regulatory boards and commissions.
Illinois state Sen. Prescott E. Bloom (R) forecasts that state courts will interpret the ruling ''as a signal to further weaken the state legislative branch.'' This comes at a time when lawmakers in many states already ''lack the strength to hold their own with the executive branch,'' he observes.
Such sentiments are shared by a cross section of legislators - Democrats and Republicans alike - interviewed during the National Conference of State Legislatures (NCSL) convention here. Oklahoma state Rep. Ben Brown (D) says the current balance of power in Oklahoma could be in jeopardy. Currently, either the state Senate or the House can veto an executive-agency regulation.
Of the 41 states where there is some measure of legislative review over agencies' rules and regulations, most place authority in both lawmaking chambers.
For example, in Illinois there is a 16-member body with an equal number from each house and from both political parties. It provides ''continuing, systematic oversight of all proposed and existing rules,'' says Senator Bloom. Operative since 1977, it has expanded its advisory functions to embrace a limited veto authority, he says. The veto, which became law in 1980, ''has worked well,'' the Illinois lawmaker maintains. By law, the committee is empowered to suspend adoption of particular rules and to require passage of a resolution by both houses of the Illinois General Assembly to make the rejection stick.
But L. Harold Levinson of Vanderbilt University Law School says legislative-veto powers in states were in jeopardy long before the Supreme Court decision. An expert on administrative law, Professor Levinson told the NCSL conferees that during the past several years, state courts in Alaska, New Hampshire, New Jersey, and West Virginia ''lined up on the same side'' as the nation's high court. If there is to be lawmaker involvement in the regulatory powers, he says, such involvement should be written into law, he says.
At least 19 of the states that have some type of legislative-veto power do not require that rejection of an agency's regulation be presented to the governor. This omission, Levinson says, makes a veto-power statute particularly vulnerable.
Of the all the states, Connecticut has a veto law that appears least likely to be challenged. Last November voters approved a constitutional amendment empowering a legislative committee to suspend an agency's regulations without the consent of the full General Assembly or the governor. Voters in Missouri turned down a similar measure last fall.
Besides an amendment to the state constitution, another approach is to provide that those regulations with which lawmakers disagree be enacted only temporarily, Levinson suggests. Such regulations would automatically expire after a specified period of time, unless the legislature authorizes a continuance, he says. Colorado and Tennessee have such a system. And West Virginia lawmakers must give advance authorization before a regulation by an executive agency can be put in place. Seven other states providing for some type of lawmaker vetoes through statutes include Alaska, Iowa, Minnesota, Nebraska, South Dakota, Wisconsin, and Wyoming.
Three others - Alabama, Georgia, and South Carolina - allow legislative vetoes through joint resolution of both chambers. The governors in those states must be notified of any veto over actions by regulatory agencies.
Professor Levinson suggests that state lawmakers could exercise indirect control over agency rulemaking through creation of an executive-branch ''superagency,'' similar to one in California, which approves all regulations of other state agencies.
It would be ''easier for legislatures to breathe down the necks of a single, top-level, rule-approving panel than to deal with a lot of separate boards and commissions,'' he says.
Besides California, the only states which do not have some type of legislative veto or legislative review are Delaware, Indiana, Massachusetts, Mississippi, New Mexico, Rhode Island, and Utah. However, a move has been under way in Massachusetts to provide such a setup. Prospects have diminished in light of the US Supreme Court decision, observes state Rep. John E. Murphy Jr. (D).