Dead Letter, Live Practice: How Congress Still Says No
What the quiet survival of the legislative veto reveals about power, politics, and Congress
In a previous post, I explained how I had come to rethink the 1983 Chadha decision. I used to believe it was the original sin in the architecture of national emergency law, striking down Congress's preferred mechanism for checking executive power. But after five years working on emergency powers reform—testifying before Congress, consulting with offices across both chambers, and building coalitions around the ARTICLE ONE and REPUBLIC Acts—I now see the failure differently. The problem wasn't that the Supreme Court ended the legislative veto. It was that Congress had failed to use it effectively before the Court ruled.
And here’s the surprising part: the legislative veto never really disappeared. Yes, Chadha struck it down. Presidents began issuing signing statements objecting to it. But Congress kept writing versions of it into law. And in practice, the most important of these—the so-called “committee vetoes”—still work.
One major factor in changing my thinking was a book by University of Colorado at Denver Professor of Political Science Michael Berry. His work builds on the foundational insights of Louis Fisher, whose scholarship has long documented how Congress adapted after Chadha. In his 1993 article, "The Legislative Veto: Invalidated, It Survives," Fisher showed how practices like report-and-wait provisions and coded language such as "notification" allowed Congress to continue exercising control even without formal statutory vetoes. Everyone working in this space is building on Fisher's analysis.
Berry picks up this thread in his book The Modern Legislative Veto: Macropolitical Conflict and the Legacy of Chadha. Berry shows in great detail how the practice endured in Congress, especially through the muscle of appropriations and defense policy committees.
How? Not by constitutional argument. Not through statute. But through power: the institutional, political, and procedural muscle of key congressional committees, especially Appropriations and Armed Services.
Take the Defense Department. A 1985 GAO report found that in the three years before Chadha, the Pentagon submitted about 40 reprogramming requests per year to Congress, requiring committee approval to shift money across accounts. In the three years after Chadha? Nearly 70 per year. The ruling didn't stop the practice. If anything, it expanded.
Congressional oversight of these requests didn’t require a vote on the House or Senate floor. Instead, committee chairs and ranking members could approve or block them behind closed doors. No public record. No judicial challenge. But very real power. Berry describes this as a system where committee leaders routinely gave or withheld approval without formal deliberation, though members could intervene if they caught wind of something controversial.
This practice evolved into a highly routinized system. Some agencies even developed dedicated forms for complying with committee veto requirements. Defense, State, USAID, Energy, and others baked this approval process into their operations. Despite presidential protests—Reagan threatened to ignore committee approval provisions and even provoked a standoff with NASA over it—Congress kept writing these controls into law, and agencies kept obeying.
As recently as 2020, a Heritage Foundation report called for reforms to speed up the defense reprogramming process, but acknowledged that "Congress" in this context means the Appropriations and Armed Services Committees—and that their approval remains essential to how the system functions. Despite its frustration with delays, the report did not challenge the underlying legitimacy of committee control.
All of this challenges a certain legal formalism—the view that power flows from legality. In the post-Chadha regime, the opposite often proves true: legality follows power, and power follows action. Congressional constraints survived not because the courts protected them, but because members asserted them—because they made compliance the cost of doing business.
What Berry calls “soft vetoes” and Fisher frames as a legacy of legislative control amount to a playbook for institutional resilience. These norms don’t just live in statute. They live in repetition, in expectations, in the backstage negotiations that keep the separation of powers alive.
So what do we make of this?
First, Chadha wasn’t a clean break. It was a moment of judicial redefinition that Congress partially absorbed through practice. Some powers were lost. Others were reasserted. The legal story is incomplete without the political one.
Second, the persistence of these committee vetoes reveals something profound: congressional power doesn’t just rest on constitutional design or statutory clarity. It depends on political will and institutional practice. Committees with leverage—especially those controlling money or national security—can still shape executive behavior, even when the legal tools seem to have been taken away.
Third, congressional power doesn’t come from laws passed in earlier eras. It is preserved through ongoing use. Where Congress acts with regularity and resolve, its influence endures. Where it declines to act, its authority erodes. That means today’s Congress retains more power than it thinks. It just has to use it—not through magical statutory design, but through willful engagement: by claiming oversight powers, leveraging appropriations, and forcing public confrontation.
Fourth, it reminds us that action often precedes structure. When Congress acts with consistency, it builds its own legitimacy. When it abdicates, it weakens its claims—even to powers it technically holds. That’s the deeper lesson from Chadha, and from what came after.
Fifth, sometimes it matters that Congress is seen to be doing something. Matt Yglesias has popularized the concept of “secret Congress,” where much of the real work happens behind closed doors through negotiated consensus. And that’s often true. When stakeholders—agencies, industry, and advocates—align off the front pages, governance can proceed. But “secret Congress” doesn’t always work, especially when the core dispute is about the separation of powers or contested national priorities. As Philip Wallach argues in Why Congress, one essential function of the institution is public, theatrical deliberation. Visibility isn’t a flaw. It’s part of the function.