The Legislative Veto and the Limits of Public Choice Analysis

Abstract

Contemporary public choice theorists have become among the most prolific scholars of public law.1 Those at the forefront of this recent development claim that non-normative, rational-choice theories of political institutions are capable of delivering novel insights about significant legal issues. 2 In particular, scholars have used these theories to give guidance to judges engaged in separation of powers jurisprudence, as well as to journalists and political scientists engaged in analyzing the workings of American political institutions. Public choice theorists have gone so far as to contend that Justice Byron White's dissent in INS v. Chadha, the landmark case in which the Supreme Court struck down the legislative veto as unconstitutional, reflects a better understanding of constitutional structure than the