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the-fact" is something that can be completely self-defined and therefore can furnish a basis for absolute distinction, when actually it is something that cannot be removed or separated from the facts of process and interaction and therefore can furnish only a basis for relative distinction. Thus, the differences between the veto and Congress' other oversight weapons can be matters only of degree, not quality, and the "before-the-fact"-"after-the-fact" distinction cannot furnish a basis for striking down the veto, however useful it may be analytically to approach governmental decision-making in static terms.78

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Third, the logic of the "before-the-fact" argument against the veto accomplishes too much. To rule out congressional involvement in the administrative process before the exercise of granted authority militates against the use of any of Congress' oversight weapons until the period of authorization has expired or, in the case of indefinite authorizations, until the very possibility of action under

78 A similar point applies to objections to the appropriations form of the veto. This argument centers on the point that veto control interferes with granted appropriation power before that power is exercised. However, is the type of control instituted by the veto really qualitatively different from the type instituted by other conditions, limitations, or contingencies stipulated in annual appropriation acts in response to past administrative action? Take the case of the provision in the Mutual Security Appropriation Act for 1961 which stipulated that none of the money granted in a certain area could be used for projects which had not been justified to the appropriation committees. The effect of this was to force administrators to hold off on certain projects which they otherwise might have undertaken until they could go back to the committees and specify the projects as included among those contemplated for action. See 74 Stat. 776 (1960).

Morcover, is there any real difference in terms of effect on administration between stipulating that no appropriation shall be made for a certain purpose until some further form of congressional assent is obtained and stipulating that none of the funds appropriated for a certain purpose shall be used until some further form of congressional assent is obtained? Nonetheless, many critics of the veto accept the constitutionality of the former while rejecting the constitutionality of the latter because it is "before-the-fact." Yet does this not illustrate that a formal distinction between interference before and after appropriation cannot be erected into an absolute basis of deciding what is and what is not legitimate? For if the distinction cannot demonstrate that the type of interference effected by one approach is different in nature from that effected by the other, why should one be approved and the other disapproved?

79 This point also applies to the appropriations aspect of the argument. If veto restrictions on the use of appropriated funds are unconstitutional because they interfere in a "before-the-fact" manner with the exercise of granted appropriation power, it must also be true that veto restrictions on the making of appropriations are unconstitutional because they interfere in a "before-the-fact" manner with the exercise of granted authority under a program. The tendency of critics of the veto is to emphasize Congress' power over appropriations in the latter instance and to ignore it in the former instance. Yet Congress has just as much right to attach conditions governing the use of funds as it has to attach conditions governing the making of appropriations. If the veto is unconstitutional in the former case because it interferes with administration in a "before-the-fact" manner, so must it be in the latter case. In either case the argument must be that Congress cannot use its legitimate powers in an unconstitutional manner.

the program has become non-existent. For, given the fact that decisions are related to those that come before them, any involvement before this constitutes interference with the exercise of, granted authority. To be sure, in a sense this reduces the "before-the-fact" argument to absurdity. But it is precisely because opponents of the veto apply the argument only to the veto that the general implications of the argument must be pointed out and emphasized.

Having disposed of the interference argument and the "before-thefact" argument, there remains but one further objection to the veto that may be raised in terms of a procedural approach. That is, that the veto is unconstitutional because it is necessarily controlling, leaving administrators no choice but to obey Congress. In other words, the argument is that the veto is unconstitutional because it constitutes an assumption of power, whereas Congress' other weapons merely check or oversee the executive's exercise of power. Yet, in truth, this argument is dependent for its persuasiveness on assumptions concerning inherent "executive" functions and "before-the-fact" control. When these assumptions are undermined, it loses much, if not all, of its impact.

Since there is nothing inherently "executive" about decisions subjected to veto restrictions, there is no reason why Congress should not control them.80 Also, since the manner in which veto control pperates is not qualitatively distinguishable from Congress' other oversight weapons on a "before-the-fact"-"after-the-fact" basis, there is little reason for supposing that the device is objectionable because it forces administrators to bow to Congress. Control over certain matters through appropriations limitations or amendatory legislation forces administrators to bow to Congress on these matters no less than the veto. If it is argued that these weapons are distinguishable because the veto does not take the form of regular legislation, it should be remembered that use of the veto requires an enabling act. Hence, since the veto exists as a provision in an enabling act-and since the "before-the-fact" argument fails to provide the basis of discrimination claimed for it-the veto can be seen as a condition which governs the exercise of executive discretion under its act in the same way that stipulations in appropriation or authorization acts are seen to exist as

80 Those who have criticized the veto on grounds herein called procedural do not realize that, if decisions cannot be seen as inherently "legislative" or "executive," the logic of their argument strikes down veto usages which they approve, e.g., the vetocs in the Reorganization Acts, as well as veto usages which they disapprove, e.g., vetoes over disposals of government business facilities.

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conditions governing the exercise of executive discretion under their acts. In addition, though control or domination of administrators through weapons such as investigations, criticism on the floor, and informal contacts is not assured, but rather depends on the situation and the relative power of the Congressmen and administrators concerned; it is also true that the success of control through the veto is contingent rather than assured. It depends or can depend, initially, on the ability to muster a majority or even a two-thirds vote in both Houses in favor of including a veto provision in the enabling act. Subsequently, at least under the one- and two-House negation forms, it depends on the ability to muster a majority or two-thirds vote in either or both Houses. Needless to say, the success of such actions also depends on the situation and the relative power of the Congressmen and administrators most vitally concerned.

Undoubtedly the veto interferes with and controls administrative decision-making. But interference in the administrative process is the price of legislative oversight and the veto is not so different in this regard, either in terms of the kind or effect of its interference, to be singled out and condemned as unconstiutional. To be sure, the veto is different in mode. However, a mere formal difference should not be allowed to rule out the veto, given the indispensable contribution legislative oversight makes to the modern democratic state and Congress' need for newer, more effective oversight weapons in certain areas.81 Congress' need for more effective oversight mechanisms will be developed in the concluding section of this article. At this point it is necessary only to emphasize that effect in terms of tying an administrator's hands should not be equated or confused with effectiveness. The fact that weapons, such as appropriations, force administrators to bow to Congress just as much as the veto, does not mean that these weapons provide effective control in all situations. Given the complexity and scope of the discretion which Congress has been forced to delegate to the exccutive, not all situations are such that Congress can reach the matters or decisions it wants to control through its traditional weapons. Similarly, the fact that the veto can provide more effective control in certain areas does not mean that its

81 For a discussion of the role of legislative oversight see Maass, System Design and the Political Process: A General Statement, in Maass, Hufschmidt, et al., Design of Water Resource Systems 565, 577-80 (1961). With regard to administrative immunity from legislative oversight, it has been noted that, "There are few situations where administrators are constitutionally immune from Congressional interference. Newman and Keaton, Congress and the Faithful Execution of Laws-Should Legislators Supervise Administrators? 41 Calif. L. Rev. 565, 570-71 (1953).

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effect in terms of tying an administrator's hands is basically different from what is accomplished through a weapon such as appropriations.

C. Assumption of Executive Office.

There remains the executive office argument, an argument which the discussion of the inherent function and procedural approaches has gone far to meet, but which still requires further consideration. The problem is: Does exercise of the veto by Congress violate section 6 of Article I of the Constitution?

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Opponents of the veto extend the meaning of "Office" until it is so broad that it includes the exercise of functions or duties which are "executive" in nature. Having done so, they argue that the veto is unconstitutional because it vests Congressmen with an executive office contrary to the prohibition established in the last clause of the paragraph.82 Almost invariably they cite the Supreme Court's decision in Springer v. Philippine Islands to bolster their argument. That decision declared invalid provisions of acts of the Philippine Legislature which set up committees consisting of the President of the Philippine Senate, the Speaker of the House, and the Governor General for the purpose of electing the directors and managing agents of corporations in which the Philippine government owned a controlling interest. The Court was not directly confronted with the question of what constitutes an executive office. But it did strike down the legislation. in question because it engrafted "executive duties upon a legislative office" and made executive agents out of members of the legislature.8* Despite the Springer case, the executive office argument is far less convincing than its supporters recognize.

It is clear from the record of debates at the Convention that the

82 See, eg, Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv. L. Rev. 569, 593 n.108, 605-09 (1953). 83 277 U.S. 189 (1928).

84 Id. at 202-03. Though the case involved only the interpretation of the Philippine Organic Act, 39 Stat. 545 (1916), the opinion of the Court analogized the Organic Act to the Constitution and proceeded in general terms supposedly applicable to both.

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prohibitions included in section 6 of Article I were designed to prevent corruption of the legislative branch.85 The framers were trying to avoid a pattern of politics in which the executive manipulated the legislature through its patronage resources or the legislature multiplied the number or increased the salaries of public offices for the benefit of its own members. These fears were based on the framers' view of the operation of British government under George III and on experience with some of the state legislatures. Understanding this, it may be understood why the framers' concept of office, as revealed in the debates and in the wording of the initial clauses of the paragraph in question, differs from the concept of office advanced by the opponents of the veto. The problem the framers had in mind was corruption and their conception of office is accordingly defined in concrete and limited terms, including such attributes as tenure, duration, and emoluments. It may be concluded that office may be defined in terms which do not make exercise of the veto by Congress equivalent to the assumption of an executive office, and that such an interpretation is in harmony with the intention of the framers and the spirit of the prohibitions contained in the Constitution. Contrary to the impression conveyed by the opponents of the veto, the prohibitions concerning office need not be read as if their necessary meaning is to establish an impenetrable wall separating legislators from the executive side of government. Indeed, to do so is to call into question such historic practices as the use of Congressmen to represent the United States on international commissions or at international conferences.$8

There is, of course, another and more basic objection to extending the concept of office to include "executive" duties or functions. This objection concerns the fallaciousness of the claim, whether advanced on inherent function or procedural grounds, that certain decisions can be identified as properly "executive" as distinct from "legislative." This point has already been treated at length and need not be elaborated upon here. However, it might be appropriate to add a few words concerning the Springer case since it is relied on so heavily by those who object to the veto.

85 Madison, The Debates of the Federal Convention of 1787, 24, 93-94, 96, 127-28, 150-55, 173-74, 333, 340, 395-401, 502, 504-06, 547, 562 (Hunt & Scott ed. 1920).

80 See Corwin, The President: Office and Powers 84-85 (1948). Note also the definition of office given in United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868): "An office is a public station, or employment, conferred by the appointment of government. It embraces the ideas of tenure, duration, emolument, and duties."