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G.R. No. 166715

August 14, 2008

(ABAKADA GURO Party List, et al. v. Hon. Cesar V. Purisima,

et. al)
CONCURRING OPINION
TINGA, J.:
I join Justice Coronas lucid opinion one of the more legally
significant decisions of this Court of recent years because it
concludes for the first time that legislative vetoes are
impermissible in this jurisdiction. I fully concur with the
majoritys reasoning for declaring legislative veto as invalid.
Yet even as the ponencia aligns with most of my views, I write
separately to fully explain my viewpoint.
I.
The controversy rests on the so-called "legislative veto",
defined by Tribe as "measures allowing [Congress], or one of
its Houses or committees, to review and revoke the actions of
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federal agencies and executive departments." Our
Constitution specifically neither prohibits nor allows legislative
vetoes, unlike presidential vetoes, which are formally
authorized under Section 27, Article VI. Until today, Court has
likewise declined so far to pass judgment on the
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constitutionality of a legislative veto.
The Court is unanimous that a legislative veto, such as that
contained in Section 12 of Rep. Act No. 9335 is
unconstitutional. Such a ruling would be of momentous
consequence, not only because the issue has never been
settled before, but also because many of our statutes
incorporate a similarly worded provision that empowers
members of Congress to approve the Implementing Rules of
various particular laws. Moreover, the invalidation of
legislative vetoes will send a definite signal to Congress that its
current understanding of the extent of legislative powers is
awry.
Concededly, our ruling will greatly affect the workings of the
legislative branch of government. It would thus be
intellectually honest to also consider the question from the
perspective of that branch which is the branch most affected
by that ruling. Of course, the perspective of the executive
should be reckoned with as well since it has traditionally
inveighed against legislative vetoes. Still, if we are to consider
the congressional perspective of the question, there will
emerge important nuances to the question that should
dissuade against any simplistic analysis of the issue.
II.
I have previously intimated that the President, in chartering
the extent of his plenary powers, may be accorded a degree of
flexibility for so long as he is not bound by any specific
constitutional proscription. That same degree of deference
should be extended to Congress as well. Thus, I wish to inquire
into whether there is a constitutionally justifiable means to
affirm legislative vetoes.

The emergence of the legislative veto in the United States

coincided with the decline of the non-delegation doctrine,
which barred Congress from delegating its law-making powers
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elsewhere. Modern jurisprudence has authorized the
delegation of lawmaking powers to administrative agencies,
and there are resulting concerns that there is no constitutional
assurance that the agencies are responsive to the peoples
4
will. From that framework, the legislative veto can be seen as
a means of limiting agency rule-making authority by lodging
final control over the implementing rules to Congress. "But
instead of controlling agency policy in advance by laying out a
roadmap in the statute creating the agency, Congress now
proposes to control policy as it develops in notice-andcomment rulemaking, after the agencys expert staff and
interested members of the public have had an opportunity to
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assist in its formation." It is a negative check by Congress on
policies proposed by the agencies, and not a means for making
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policy directly.
From the perspective of Congress, the legislative veto affords
maximum consideration to the plenary power of legislation, as
it bolsters assurances that the legislative policy embodied in
the statute will be faithfully executed upon its
implementation. The faithful execution of the laws of the land
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is a constitutional obligation imposed on the President , yet as
a matter of practice, there could be a difference of opinion
between the executive and legislative branches as to the
meaning of the law. The clash may be especially telling if the
President and Congress are politically hostile with each other,
and it bears notice that the legislative veto in the United
States became especially popular beginning in the early 1970s,
when the ties between the Democratic-controlled Congress
and the Republican President Richard Nixon were especially
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frayed. More recently, the current U.S. President Bush has
had a penchant of attaching "signing statements" to legislation
he has approved, such statements indicating his own
understanding of the bill he is signing into law. The legislative
veto, as a practical matter, allows Congress to prevent a
countervailing attempt by the executive branch to implement
a law in a manner contrary to the legislative intent.
There is nothing obnoxious about the policy considerations
behind the legislative veto. Since the courts, in case of conflict,
will uphold legislative intent over the executive interpretation
of a law, the legislative veto could ensure the same judiciallyconfirmed result without need of elevating the clash before
the courts. The exercise of the legislative veto could also allow
both branches to operate within the grayer areas of their
respective constitutional functions without having to resort to
the judicial resolution of their potentially competing claims. As
the future U.S. Supreme Court Justice Stephen Breyer once
wrote:
The [legislative] veto sometimes offers a compromise of
important substantive conflicts embedded deeply in the
Constitution. How are we to reconcile the Constitutions grant
to Congress of the power to declare war with its grant to the
President of authority over the Armed Forces as their

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Commander in Chief? The War Powers Act approaches the

problem, in part, by declaring that the President cannot
maintain an armed conflict for longer than ninety days if both
Houses of Congress enact a resolution of disapproval. Similar
vetoes are embedded in laws authorizing the President to
exercise various economic powers during times of "national
emergency". To take another example, how are we to
reconcile article Is grant to Congress of the power to
appropriate money with article IIs grant to the President of
the power to supervise its expenditure? Must the President
spend all that Congress appropriates? Congress has addressed
this conflict, authorizing the President to defer certain
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expenditures subject to a legislative veto.
There are practical demerits imputed as well to the legislative
veto, such as the delay in the implementation of the law that
may ensue with requiring congressional approval of the
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implementing rules. Yet the question must ultimately rest
not on the convenience or wisdom of the legislative veto
device, but on whether it is constitutionally permissible.
In 1983, the United States Supreme Court struck a decisive
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blow against the legislative veto in INS v. Chadha , a ruling
which essentially held the practice as unconstitutional. It
appears that the foremost consideration of the majority
opinion in Chadha were the issues of bicameralism and
presentment, as discussed by the Chief Justice in his Separate
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Opinion in Macalintal v. COMELEC . The twin issues of
presentment and bicameralism would especially come to fore
with respect to the Joint Congressional Oversight Committee
under Rep. Act No. 9335, composed as it is by seven Members
from the Senate and seven Members from the House of
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Representatives.
Chadha emphasized that the bills passed by the U.S. Congress
must be presented for approval to the President of the United
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States in order that they may become law. Section 27(1),
Article VI of our Constitution imposes a similar presentment
requirement. Chadha also noted that a bill must be concurred
in by a majority of both Houses of Congress. Under our
Constitution, Congress consists of a House of Representatives
and a Senate, and the underlying uncontroverted implication
is that both Houses must concur to the bill before it can
become law. Assuming that the approval of the Implementing
Rules to Rep. Act No. 9335 by seven Members from each
House of Congress is a legislative act, such act fails either the
presentment or bicameralism requirement. Such approval is
neither presented to the President of the Philippines for
consent, nor concurred in by a majority of either House of
Congress.
Yet with respect to the implications of Chadha on the principle
of separation of powers, there are critical informed comments
against that decision. Chadha involved the statutory authority
of either House of Congress to disapprove the decision of the
executive branch to allow a deportable alien to remain in the
United States. The majority had characterized such
disapproval as a legislative act, since it "had the purpose and

effect of altering the legal rights, duties and relations of

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persons". Yet that emphasis "on the labels of legislative,
executive and judicial" was criticized as "provid[ing] the
rhetorical ammunition for a variety of cases seeking judicial
reassessment of the constitutionality not only of the great
number of statutes that have incorporated some kind of
legislative veto mechanism, but of regulatory statutes in
general that sought to delegate legislative, executive and
judicial power, and various combinations thereof, to the
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unelected officials that run the various federal agencies."
Fisher presents a veritable laundry list of criticisms of
the Chadha reasoning, replete with accusations that the
analysis employed on separation of powers detracted from
the intent of the Framers, resulting in giving the "executive
branch a one-sided advantage in an accommodation that was
meant to be a careful balancing of executive and legislative
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interests". He further observed:
The Courts misreading of history and congressional
procedures has produced some strange results. Its theory of
government is too much at odds with the practices developed
over a period of decades by the political branches. Neither
administrators nor congressmen want the static model
proferred by the Court. The conditions that spawned the
legislative veto a half century ago have not disappeared.
Executive officials still want substantial latitude in
administering delegated authority; legislators still insist on
maintaining control without having to pass another law. The
executive and legislative branches will, therefore develop
substitutes to serve as the functional equivalent of the
legislative veto. Forms will change but not power relationships
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and the need for quid pro quo.
And Tribe himself finds flaw in the Chadha analysis of what
constituted a legislative act:
And why, precisely, did the veto of the suspension of Chadhas
deportation have to be deemed legislative? It was "essentially
legislative," according to the Court, because it "had the
purpose and effect of altering the legal rights, duties and
relations of persons outside the legislative branch". Without
Congress exercise of the legislative veto in his
case, Chadha would have remained in America; without the
veto provision in the immigration statute, the change
inChadhas legal status could have been wrought only be
legislation requiring his deportation. The difficulty with this
analysis is that the same observations apply with equal validity
to nearly all exercises of delegated authority, whether by a
House of Congress or by an executive department or an
administrative agency. Both through rule-making and through
case-by-case adjudication, exercises of delegated authority
change legal rights and privileges no less than do full-fledged
laws.
There was perhaps less need than the Court perceived to
squeeze the legislative veto into one of the three pigeonholes
envisioned by the Framers. Even if Congress action had been
deemed "executive" in nature, it presumably would have been

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unconstitutional, since Congress may make, but not execute

the laws. And if the legislative veto had been deemed
"judicial," it would still have violated the separation of powers,
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as Justice Powell recognized in his concurring opinion.
The majority in Chadha did not address the reality that the
U.S. Congress had relied on the legislative veto device for over
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five decades , or for that matter, the valid concerns over the
executive usurpation of legislative prerogatives that led to the
invention of the veto as a countervailing measure. Justice
Byron White relied extensively on these concerns in his
dissenting opinion in Chadha.
Nonetheless, the invalidation of the legislative veto
in Chadha has caused serious discussion as to alternative
constitutional means through which Congress could still
ensure that its legislative intentions would not be
countermanded by the executive branch. On one extreme, a
Republican congressman, Nick Smith of Michigan, filed a bill
requiring that significant new regulations adopted by
administrative agencies be approved by a joint resolution of
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Congress before they would become effective. Less
constitutionally controversial perhaps were the suggestions of
Justice Breyer in remarks he made after Chadha was decided.
He explained that "Congress unquestionably retains a host of
traditional weapons in its legislative and political arsenal that
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can accomplish some of the vetos objectives."
These include the power to provide that legislation delegating
authority to the executive expires every so often. To continue
to exercise that authority, the executive would have to seek
congressional approval, at which point past agency behavior
that Congress disliked would become the subject of serious
debate. Moreover, Congress might tailor its statutes more
specifically, limiting executive power. Further, Congress can
require the President, before taking action, to consult with
congressional representatives whose views would carry
significant political weight. Additionally, Congress can delay
implementation of an executive action (as it does when the
Supreme Court promulgates rules of civil procedure) until
Congress has had time to consider it an to enact legislation
preventing the action from taking effect. Finally, each year
Congress considers the agencys budget. If a significant group
of legislators strongly opposes a particular agency decision, it
might well succeed in including a sentence in the
appropriations bill denying the agency funds to enforce that
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decision.
I raise these points because even with the invalidation of the
legislative veto, Congress need not simply yield to the
executive branch. The invalidation of the legislative veto can
be mistakenly perceived as signal by the executive branch that
it can, in the guise of rule-making power, adopt measures not
authorized or even forbidden in the enabling legislation. If that
happens, undue weight will be shifted to the executive branch,
much like what had happened when former President Marcos
exercised both executive and legislative powers. One might
correctly argue that the judicial branch may still exercise

corrective relief against such unauthorized exercise by the

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executive , yet the relief may not come for years to come,
considering the inherently deliberative judicial process.
I do believe that there is a constitutionally sound mechanism
through which Congress may validly influence the approval of
a laws Implementing Rules. Section 12 of Rep. Act No. 9335
may not be such a means, but I maintain that it would be
highly useful for the Court to explain how this can be
accomplished. In this light, I submit the following proposed
framework for invalidating the legislative veto while
recognizing the pre-eminent congressional prerogative in
defining the manner how legislation is to be implemented.
III.
We can consider that in the enactment and implementation of
a law, there is a legislative phase and an executive phase. The
legislative phase encompasses the period from the initiation of
a bill in Congress until it becomes effective as a law. On the
other hand, the executive phase begins the moment the law is
effective and falls within the capacity of the executive branch
to enforce.
Notably, as such, it is only upon the effectivity of the statute
that legal rights and obligations become available to those
entitled by the language of the statute. Now, subject to the
indispensable requisite of publication under the due process
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clause, the determination as to when a law takes effect is
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wholly the prerogative of Congress. As such, it is only upon
effectivity that the law may be executed, and the executive
branch acquires the duties and powers to execute that law.
Before that point, the role of the executive branch, particularly
the President, is limited to signing or vetoing the law. All other
powers of government that attach to the proposed law are
exercised exclusively by Congress and are hence, legislative in
character. In fact, the United States Supreme Court, speaking
through Justice Black, has gone as far as to hold that the
Constitution "limits [the Presidents] functions in the
lawmaking process to the recommending of laws he thinks
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wise and the vetoing of laws he thinks bad."
It is viable to hold that any provision of law that empowers
Congress or any of its members to play any role in the
implementation or enforcement of the law after the execution
phase has begun violates the principle of separation of powers
and is thus unconstitutional. Under this principle, a provision
that requires Congress or its members to approve the
Implementing Rules after the law has already taken effect is
unconstitutional, as is a provision that allows Congress or its
members to overturn any directive or ruling made by those
members of the executive branch charged with the
implementation of the law.
This time or phase demarcation not only affords a convenient
yardstick by which to assess the constitutionality of a
legislated role for Congress vis--vis a law, it also hews to the
proper allocation of governmental powers. Again, the exercise
of executive powers relative to a statute can only emanate

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after the effectivity of the law, since before that point, said
law cannot be executed or enforced. Until a law becomes
effective, there are no executive functions attached to the
law.
Of course, following this rationale, Section 12 of Rep. Act No.
9335 will have to be invalidated. To cite one outstanding
example of what else would be invalidated as a result is the
Joint Congressional Power Commission established in the
EPIRA (Rep. Act No. 9136), where the Commission composed
of several members of Congress exercises a continuing role in
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overseeing the implementation of the EPIRA. The functions
of the Joint Congressional Power Commission are exercised in
the execution phase, and thus beyond the pale of legislative
power. There are many other provisions in our laws, such as
those similar to Section 12 of Rep. Act No. 9335, that will
similarly not pass muster after this ruling, and the Court will
have to reckon with the real problem as to whether this
decision effectively nullifies those provisions as well.
Nonetheless, the Court need not invalidate those provisions in
other laws yet and await the appropriate cases to do so,
similar to the approach previously taken on the invalidation of
municipalities created by the President in Pelaez v. Auditor
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General.
IV.
I seriously disagree with Justice Carpios assertion that the
power to formulate or adopt implementing rules inheres in
the executive function. That power is a legislative function
traditionally delegated by Congress to the executive branch.
The ponencia satisfactorily asserts this point through its
Footnote No. 63, and I need not belabor it.
One option for congressional control over executive action is
to be very specific and limiting in the delegation of power to
agencies, so that their rulemaking power will in turn be
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limited. The power to make rules and regulation is that kind
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of legislative power which may be delegated. In practice, the
United States Congress has engaged frequently in broad
delegations that in effect require agencies to make specific
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sub-rules i.e., to exercise legislative power. This practice
has drawn some criticism that power is now concentrated in
the executive branch and that it is thus necessary to restore
33
Congress to its original status of preeminence. The growth of
an enormous national bureaucracy, operating for the most
part within the executive branch, may have fundamentally
altered the original constitutional framework and requires
some sort of response if the original constitutional concerns
34
are to be satisfied.
Section 12 of Rep. Act No. 9335, or any other provision of law
granting components of the executive branch the power to
formulate implementing rules, is a delegation of legislative
power belonging to Congress to the executive branch.
Congress itself has the power to formulate those particular
rules and incorporate them in the law itself. What I believe
Congress is precluded from doing is to exercise such power
after the law has taken effect, in other words, after the

execution phase has begun. Unless such a limitation were laid

down, there would ensue undue encroachment by Congress in
the exercise of legislative power.
This delegable rule-making power may be classified into two
types: (1) rules intended to regulate the internal management
of the agencies themselves; and (2) rules supplementing a
statute and intended to affect persons and entities outside the
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government made subject to agency regulation. Either case,
the power of the executive branch to promulgate such rules
springs from legislative delegation. In the Philippines, the
power of executive officials to enact rules to regulate the
internal management of executive departments was
specifically allocated to them by a statute, the Administrative
Code of 1987, promulgated by President Aquino in the
exercise of her then extant legislative powers. With respect to
supplementary rules to particular legislation, the power of
executive officials to formulate such rules derives from the
legislation itself. But in no case does such power emanate
actually from inherent executive power.
The rule need not be hard and fast. We may as well pay heed
to Blackstones practical observation that the "manner, time
and circumstances of putting laws in execution must
frequently be left to the discretion of the executive
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magistrates". But by and large, any problem left by the
absence of clear and explicit statutory language is avoided in
turn by the statutory delegation of legislative power to
executive officials to vest them sufficient discretion to fill in
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the details.
We thus cannot detract from the fundamental principle that
rule-making power is legislative in character and exercised by
executive officials only upon a statutory delegation of
legislative power. As Fisher summarizes the peculiar dynamic:
Presidents are obligated under the Constitution to take care
that the laws be "faithfully executed." The often conflicting
and ambiguous passages within a law must be interpreted by
executive officials to construct the purpose and intent of
Congress. As important as intent is the extent to which a law is
carried out. President Taft once remarked, "Let anyone make
the laws of the country, if I can construe them."
To carry out the laws, administrators issue rules and
regulations of their own. The courts long ago appreciated this
need. Rules and regulations "must be received as the acts of
the executive, and as such, be binding upon all within the
sphere of his legal and constitutional authority. Current law
authorizes the head of an executive department or military
department to prescribe regulations "for the government of
his department, the conduct of its employees, the distribution
and performance of its business, and the custody, use, and
preservation of its records, papers, and property.
These duties, primarily of a "housekeeping" nature, relate only
distantly to the citizenry. Many regulations, however, bear
directly on the public. It is here that administrative legislation
must be restricted in its scope and application. Regulations

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are not supposed to be a substitute for the general

policymaking that Congress enacts in the form of a public
law. Although administrative regulations are entitled to
respect, the authority to prescribe rules and regulations is
not an independent source of power to make laws. Agency
rulemaking must rest on authority granted directly or
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indirectly by Congress.
The Courts rightful rejection of Justice Carpios premise that
the power of the President of promulgate Implementing Rules
and Regulations is inherently executive provides a necessary
clarification that is critical to the understanding of the Courts
ruling today. Had Justice Carpios position been adopted by
the Court, the result would have been a presidency much
stronger than the Constitution envisioned. Acceding to the
President the power to craft Implementing Rules to legislation
even if Congress specifically withholds such power to the Chief
Executive would have upset the finely measured schematic of
balanced powers, to the benefit of the President. Fortunately,
with the disavowal of that theory, greater consideration is
accorded to legislative prerogatives without compromising the
important functions of the presidency.
V.
Thusly, there is nothing inherently unconstitutional in
congressional participation in the formulation of implementing
rules of legislation since that power is legislative in character.
Yet there still are multiple roadblocks impeding a
constitutionally valid exercise of that prerogative by Congress.
The matters of bicameralism and presentment, as expounded
in Chadha, are hurdles which I submit should bind the
Philippine Congress as it exercises its legislative functions.
Section 12 of Rep. Act No. 9335 can be struck down on that
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ground alone. Moreover, imposing a rule barring a legislative
role in the implementation of a law after the statutes
effectivity will sufficiently preserve the integrity of our system
of separation of powers.
At the same time, the concerns of Congress that may have
animated the rise of the legislative veto should not be
disrespected by simply raising formalistic barriers against
them. In practice, the legislative veto is an effective check
against abuses by the executive branch. The end may not
justify unconstitutional means, yet we should leave ample
room for Congress to be able to address such concerns within
broad constitutional parameters.
There are a myriad of creative ways by which Congress may
influence the formulation of Implementing Rules without
offending the Constitution. If there are especially problematic
areas in the law itself which Congress is not minded to leave
any room for interpretative discretion by executive officials,
then the provision involved can be crafted with such specificity
to preclude alternative interpretations. At the same time,
commonly, legislators and their staffs may lack the expertise
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to draft specific language. Speaking from my own legislative
experience, it is in the drafting of the Implementing Rules,
rather than in the statute itself, that the particular expertise of

the agency officials and experts tasked with

implementation of the law become especially vital.

the

Also, Congress can dictate which particular executive officials

will draft the implementing rules, prescribe legal or factual
standards that must be taken into account by such drafters, or
otherwise impose requirements or limitations which such
drafters are bound to comply with. Again, because the power
to draft implementing rules is delegated legislative power, its
exercise must be within the confines of the authority charted
by Congress.
And because executive functions cannot commence until after
the effectivity of the law, Congress may very well adopt
creative but constitutional measures that suspend the
effectivity of the law until implementing rules to its liking are
crafted. There is nothing unconstitutional with suspending the
effectivity of laws pending the occurrence of a stipulated
condition. "[I]t is not always essential that a legislative act
should be a completed statute which must in any event take
effect as a law, at the time it leaves the hands of the legislative
department. A statute may be conditional, and its taking effect
41
may be made to depend upon some subsequent event."
The requirements of bicameralism and especially presentment
may pose insurmountable hurdles to a provision that plainly
suspends the effectivity of a law pending approval by Congress
42
or some of its members of the implementing rules. At the
same time, it should be recognized that Congress does have
the prerogative to participate in the drafting of the rules, and
if it finds a means to do so before the execution phase has
begun, without offending bicameralism or presentment, such
means may be upheld.