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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Chadha (5 of 9)
Box: 8
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WITHDRAWAL SHEET
Ronald Reagan Library
Collection: ROBERTS, JOHN G.: Files
Archivist: gcc/bcb
File Folder: JGR/Chada [5 of 9] OA 12658 12359
Date: 5/26/98
DOCUMENT
SUBJECT/TITLE
DATE
RESTRICTION
NO. AND TYPE
1. memo
John G. Roberts ro Fred F. Fielding re Draft State
7/28/83
PS
Department Q & A's on Legislative Veto (partial),
12/14/00
1p.
RESTRICTION CODES
Presidential Records Act [44 U.S.C. 2204(a)]
Freedom of Information Act [5 U.S.C. 552(b)]
P-1 National security classified information [(a)(1) of the PRA].
F-1 National security classified information [(b)(1) of the FOIA].
P-2 Relating to appointment to Federal office [(a)(2) of the PRA].
F-2 Release could disclose internal personnel rules and practices of an agency [(b)(2) of the
P-3 Release would violate a Federal statute [(a)(3) of the PRA].
FOIA].
P-4 Release would disclose trade secrets or confidential commercial or financial information
F-3 Release would violate a Federal statue [(b)(3) of the FOIA].
[(a)(4) of the PRA].
F-4 Release would disclose trade secrets or confidential commercial or financial information
P-5 Release would disclose confidential advice between the President and his advisors, or
[(b)(4) of the FOIA].
between such advisors [(a)(5) of the PRA].
F-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the
P-6 Release would constitute a clearly unwarranted invasion of personal privacy [(a)(6) of
FOIA].
the PRA].
F-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of
the FOIA].
C. Closed in accordance with restrictions contained in donor's deed of gift.
F-8 Release would disclose information concerning the regulation of financial institutions
[(b)(8) of the FOIA].
F-9 Release would disclose geological or geophysical information concerning wells ((b)(9) of
the FOIA].
THE WHITE HOUSE
WASHINGTON
July 13, 1982
MEMORANDUM FOR THE PRESIDENT
FROM:
FRED F. FIELDING 111
COUNSEL TO THE PRESIDENT
SUBJECT:
Applicability of War Powers Resolution
to the Situation in Lebanon
In anticipation of your meeting with Congressional leaders
this afternoon, we have prepared a synopsis of the War Powers
Resolution (attached at Tab A) as it applies to the situation
in Lebanon.
REQUIREMENTS OF THE WAR POWERS RESOLUTION
The Resolution imposes three types of duties upon the President:
1) Consultation: Section 3 of the Resolution requires
that the President "consult" Congress "in every possible
instance" before introducing the Armed Forces into
"hostilities or into situations where imminent involve-
ment in hostilities is clearly indicated by the circum-
stances" and regularly thereafter. As a practical
matter, consultation in such instances with more than a
select group of Congressional leaders has never been
attempted. In the instant case, informal consultation
has occurred.
2) Reporting: Relevant to Lebanon, section 4 of the
Resolution requests that the President "report" to
Congress within 48 hours after U.S. Armed Forces are
introduced:
"into hostilities or into situations where
imminent involvement in hostilities is clearly
indicated by the circumstances" [$4(a)(1)]; or
"into the territory, airspace or waters of a
foreign nation, while equipped for combat, except
for deployments" for supply, replacement, repair
or training [§4 (a) (2)].
-2-
3) Termination: The termination provisions of the
Resolution apply only to those situations involving
hostilities or the imminent threat of hostilities
[S 4 (a) (1) The Resolution requires that the President
must terminate the use of armed forces in those situa-
tions within 60 days after a report is submitted or
required to be submitted under $ 4 (a) (1) unless the
Congress i) has specifically authorized U.S. involvement
by statute or a declaration of war; ii) has extended by
law such 60-day period; or iii) is physically unable to
meet. (The President may obtain a 30-day extension of
the 60-day period by certifying to Congress that the
extension is needed to achieve the safe withdrawal of
U.S. Armed Forces.) If armed forces are actually engaged
in hostilities, Congress may order their removal by
concurrent resolution at any time. If troops are intro-
duced "equipped for combat, n absent "hostilities" or
"imminent threat of hostilities," [§ 4 (a) (2) the
termination provisions are not applicable.
RESOLUTION AS APPLIED TO LEBANON
In a letter to you dated July 6, 1982 (attached at Tab B),
House Committee on Foreign Affairs Chairman Clement Zablocki
concludes that because U.S. troops deployed to Lebanon would
be entering a situation involving hostilities or the imminent
threat thereof, you must report their deployment under $ 4 (a) (1)
of the Resolution. Zablocki fears that you will seek to avoid
the termination provisions of the Resolution by filing a re-
port under § 4 (a) (2) instead. While Congress might conceivably
invoke the termination provisions of the Resolution even if
you filed a report under § 4 (a) (2), the legal dispute that
might ensue creates a strong Congressional preference for
§ 4 (a) (1) reports in borderline situations where the presence
of "hostilities" or the "imminent threat" thereof can be legiti-
mately questioned.
The Executive Branch has consistently defined "hostilities"
and "imminent hostilities" more narrowly than Congress,
and has noted that both terms are "definable in a meaningful
way only in the context of an actual set of facts." Neither
term necessarily encompasses irregular , infrequent or
isolated violence which may occur in a particular area.
-3-
RECOMMENDATIONS
1. That you stress that our current efforts are being directed
to the development of a situation where hostilities are
not imminent.
2. That you respond to any Congressional inquiries to the
effect that the terms of U.S. participation in the Lebanon
situation and the circumstances prevailing at the time
will determine under which section of the War Powers
Resolution you report to Congress. No decision can be
made at this time, and we will continue to consult with
Congress as events occur.
[NSC concurs with these recommendations.]
Attachments
CC: Edwin Meese III
James A. Baker III
William P. Clark
Michael K. Deaver
4
WAR POWERS RESOLUTION
For Legislative History of Act, see P. 2316
PUBLIC LAW 93-14S; 87 STAT. 555
[H. J. Res. 542)
Joint Resolution concerning the war powers of Congress and the President.
Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled, That:
SHORT TITLE
Section 1. This joint resolution may be cited as the "War Powers
Resolution".
57. 13 U.S.C.L. I 712.
614
Nov. 7
WAR POWERS RESOLUTION
P.L. 03-148
PURPOSE AND POLICY
Sec. 2. (a) It is the purpose of this joint resolution to fulfill the
intent of the framers of the Constitution of the United States and
insure that the collective judgment of both the Congress and the
President will apply to the introduction of United States Armed
Forces into hostilities, or into situations where imminent involve-
ment in hostilities is clearly indicated by the circumstances, and to
the continued use of such forces in hostilities or in such situations.
(b) Under article I, section 8, of the Constitution, it is specifically
provided that the Congress shall have the power to make all laws
necessary and proper for carrying into execution, not only its own
powers but also all other powers vested by the Constitution in the
Government of the United States, or in any department or officer
thereof.
(c) The constitutional powers of the President as Commander-in-
Chief to introduce United States Armed Forces into hostilities, or
into situations where imminent involvement in hostilities is clearly
indicated by the circumstances, are exercised only pursuant to (1) a
declaration of war, (2) specific statutory authorization, or (3) a
national emergency created by attack upon the United States, its ter-
ritories or possessions, or its armed forces.
CONSULTATION
Sec. 3. The President in every possible instance shall consult with
Congress before introducing United States Armed Forces into hostili-
ties or into situations where imminent involvement in hostilities is
clearly indicated by the circumstances, and after every such introduc-
tion shall consult regularly with the Congress until United States
Armed Forces are no longer engaged in hostilities or have been re-
moved from such situations.
REPORTING
Sec. 4. (a) In the absence of a declaration of war, in any case in
which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involve-
ment in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation,
while equipped for combat. except for deployments which relate
solely to supply, replacement, repair, or training of such forces:
or
(3) in numbers which substantially enlarge United States
Armed Forces equipped for combat already located in a foreign
nation:
the President shall submit within 4S hours to the Speaker of the
House of Representatives and to the President pro tempore cf the
Senate a report. in writing. setting forth-
(.t) the circumstances necessitating the introduction of Unit-
cd States Armed Forces:
615
P.L. 93-148
LAWS OF 93rd CONG.-1st SESS.
Nov. 7
(B) the constitutional and legislative authority under which
such introduction took place: and
(C) the estimated scope and duration of the hostilities or
involvement.
(b) The President shall provide such other information as the
Congress may request in the fulfillment of its constitutional re-
sponsibilities with respect to committing the Nation to war and to
the use of United States Armed Forces abroad.
(c) Whenever United States Armed Forces are introduced into
hostilities or into any situation described in subsection (a) of this
section, the President shall, so long as such armed forces continue
to be engaged in such hostilities or situation, report to the Congress
periodically on the status of such hostilities or situation as well as
on the scope and duration of such hostilities or situation, but in no
event shall he report to the Congress less often than once every.
six months.
CONGRESSIONAL ACTION
Sec. 5. (a) Each report submitted pursuant to section 1(a) (1)
shall be transmitted to the Speaker of the House of Representatives
and to the President pro tempore of the Senate on the sanie calendar
day. Each report so transmitted shall be referred to the Committee
on Foreign Affairs of the House of Representatives and to the Com-
mittée on Foreign Relations of the Senate for appropriate action:
If, when the report is transmitted, the Congress has adjourned sine
die or has adjourned for any period in excess of three calendar
days, the Speaker of the House of Representatives and the President
pro tempore of the Senate, if they deem it advisable (or if petitioned
by at least 30 percent of the membership of their respective Houses)
shall jointly request the President to convene Congress in order that
it may consider the report and take appropriate action pursuant to
this section.
(b) Within sixty calendar days after = report is submitted or is
required to be submitted pursuant to section (a) (1), whichever is
earlier, the President shall terminate any use of United States
Armed Forces with respect to which such report was submitted (or
required to be submitted), unless the Congress (1) has declared war
or has enacted a specific authorization for such use of United
States Armed Forces, (2) has extended by law such sixty-day period,
or (3) is physically unable to meet as a result of an armed attack
upon the United States. Such sixty-day period shall be extended for
not more than an additional thirty days if the President determines
and certifies to the Congress in writing that unavoidable military
necessity respecting the safety of United States Armed Forces re-
quires the continued use of such armed forces in the course of bring-
ing about a prompt removal of such forces.
(c) Notwithstanding subsection (b), at any time that United
States Armed Forces are engaged in hostilities outside the territory
of the United States, its possessions and territories without a decla-
616
Nov. 7
WAR POWERS RESOLUTION
P.L. 03-148
tration of war or specific statutory authorization, such forces shall
be removed by the President if the Congress so directs by concur-
rent resolution.
CONGRESSIONAL PRIORITY PROCEDURES FOR
JOINT RESOLUTION OR BILL
Sec. 6. (a) Any joint resolution or bill introduced pursuant to
section 5(b) at least thirty calendar days before the expiration of the
sixty-day period specified in such section shall be referred to the
Committee on Foreign Affairs of the House of Representatives or the
Committee on Foreign Relations of the Senate, as the case may be,
and such committee shall report one such joint resolution or bill, to-
gether with its recommendations, not later than twenty-four calen-
dar days before the expiration of the sixty-day period specified in
such section, unices such House shall otherwise determine by the
yeas and nays.
(b) Any joint resolution or bill SO reported shall become the pend-
ing business of the House in question (in the case of the Senate the
time for debate shall be equally divided between the proponents
and the opponents), and shall be voted on within three calendar days
thereafter, unless such House shall otherwise determine by yeas and
nays.
(c) Such a joint resolution or bill passed by one House shall be re-
ferred to the committee of the other House named in subsection (a)
and shall be reported out not later than fourteen calendar days
before the expiration of the sixty-day period specified in section
5(b). The joint resolution or bill so reported shail become the pend-
ing business of the House in question and shall be voted on within
three calendar days after it has been reported, unless such House
shall otherwise determine by yeas and nays.
(d) In the case of any disagreement between the two Houses of
Congress with respect to a joint, resolution or bill passed by both
Houses, conferees shall be promptly appointed and the committee of
conference shall make and file a report with respect to such resolu-
tion or bill not later than four calendar days before the expiration
of the sixty-day period specified in section 5(b). In the event the
conferees are unable to agree within 48 hours, they shall report
back to their respective Houses in' disagreement. Notwithstanding
any rule in either House concerning the printing of conference rc-
ports in the Record or concerning any delay in the consideration of
such reports, such report shall be acted on by both Houses not later
than the expiration of such sixty-day period.
CONGRESSIONAL PRIORITY PROCEDURES FOR
CONCURRENT RESOLUTION
Sec. 7. (a) Any concurrent resolution introduced pursuant to
section 5(c) shall be referred to the Committee on Foreign Affairs
of the House of Representatives or the Committee on Foreign Re-
lations of the Senate, as the case may be, and one such concurrent
617
P.L. 93-148
LAWS OF 93rd CONG.-1st SESS.
Nov. 7
resolution shall be reported out by such committee together with its
recommendations within fifteen calendar days, unless such House
shall otherwise determine by the yeas and nays.
(b) Any concurrent resolution so reported shall become the pend-
ing business of the House in question (in the case of the Senate the
time for debate shall be equally divided between the proponents and
the opponents) and shall be voted on within three calendar days
thereafter, unless such House shall otherwise determine by yeas and
nays.
(c) Such a concurrent resolution passed by one House shall be
referred to the committee of the other House named in subsection
(a) and shall be reported out by such committee together with its
recommendations within fifteen calendar days and shall thereupon
become the pending business of such House and shall be voted upon
within three calendar days, unless such House shall otherwise deter-
mine by yeas and nays.
(d) In the case of any disagreement between the two Houses of
Congress with respect to a concurrent resolution passed by both
Houses, conferees shall be promptly appointed and the committee of
conference shall make and file a report with respect to such concur-
rent resolution within six calendar days after the legislation is re-
ferred to the committee of conference. Notwithstanding any rule in
either House concerning the printing of conference reports in the
Record or concerning any delay in the consideration of such reports.
such report shall be acted on by both Houses not later than six
calendar days after the conference report is filed. In the event the
conferees are unable to agree within 48 hours, they shall report back
to their respective Houses in disagreement.
INTERPRETATION OF JOINT RESOLUTION
Sec. 8. (a) Authority to introduce United States Armed Forces
into hostilities or into situations wherein involvement in hostilities
is clearly indicated by the circumstances shall not be inferred—
(1) from any provision of law (whether or not in effect be-
fore the date of the enactment of this joint resolution), includ-
ing any provision contained in any appropriation Act, unless
such provision specifically authorizes the introduction of United
States Armed Forces into hostilities or into such situations and
states that it is intended to constitute specific statutory author-
ization within the meaning of this joint resolution; or
(2) from any treaty heretofore or hereafter ratified unless
such trenty is implemented by legislation specifically author-
izing the introduction of United States Armed Forces into
hostilities or into such situations and stating that it is intended
to constitute specific statutory authorization within the meaning
of this joint resolution.
(b) Nothing in this joint resolution shall be construed to require
any further specific statutory authorization to permit members of
United States Armed Forces to participate jointly with members of
the armed forces of one or more foreign countries in the head-
618
Nov. 7
WAR POWERS RESOLUTION
P.L. 93-14S
quarters operations of high-level military commands which were
established prior to the date of enactment of this joint resolution and
pursuant to the United Nations Charter or any treaty ratified by the
United States prior to such date.
(c) For purposes of this joint resolution, the term "introduction
of United States Armed Forces" includes the assignment of members
of such armed forces to command, coordinate, participate in the
movement of, or accompany the regular or irregular military forces
of any foreign country or government when such military forces are
engaged, or there exists an imminent threat that such forces will
become engaged, in hostilities.
(d) Nothing in this-joint resolution—
(1) is intended to alter the constitutional authority of the
Congress or of the President, or the provisions of existing
treaties; or
(2) shall be construed as granting any authority to the
President with respect to the introduction of United States
Armed Forces into hostilities or into situations wherein involve-
ment in hostilities is clearly indicated by the circumstances
which authority he would not have had in the absence of this
joint resolution.
SEPARABILITY CLAUSE
Sec. 9. If any provision of this joint resolution or the application
thereof to any person or circumstance is held invalid, the remainder
of the joint resolution and the application of such provision to any
other person or circumstance shall not be affected thereby.
EFFECTIVE DATE
Sec. 10. This joint resolution shall take effect on the date of its
enactment.
Passed over Presidential veto Nov. T, 1973.
G19
*
DANTE FASCELL
BITUANING POSENTHAL N.T.
PAUL FINDLEY, ILL
LEE as MANILTON, INC.
LARRY WINN, JR., KANS,
COMATHAN B.,BINGHAM, N.Y.
SCHAMIN A. GILMAN, N.Y.
CARE TATRON, PA.
ROBERT J. LAGOMARSINO, CALIF.
STEPHEN do SOLARZ, N.Y.
WILLIAM F. GOODLING, PA,
Congress of the United States
DON BONKER, WASH.
JOEL PRITCHARD, WASH.
CERRY c. STUDOS, MASS.
MILLICENT FENWICK, Made
ANOY IRELAND, FLA
ROBERT K. DORNAN, CALIF.
DAN MICA, FLA.
JIM LEACH, IOWA
Cammittee mt Foreign Affairs
MICHAEL a BARNES, MO.
ARLEN ERDAHL MINN.
HOWARD WOLFE, MICH.
TODY NOTH, WIS.
cro. W. CROCKETT, JR., MICH.
OLYMPIA J. SNOWE, MAINE
House of Representatives
DOB SHAMANSKY, OMIO
JOHN LEBOUTILLIER, N.Y.
CAM GEJDENSON, COMM,
HENRY J. HYDE, ILL
MERVYN M. DYMALLY, CALIF.
Mashington, B.C. 20515
DONNES c. ECKANT, OHIO
TOM LANTOS, CALIF.
DAVID R. BOWEN, MISS.
JOHN + BRADY, JR.
July 6, 1982
CHIEF OF STAFF
The President
The White House
Washington, D.C. 20500
Dear Mr. President:
The Department of State informed me this morning of your willingness
in principle to provide U.S. troops to a multinational force in Beirut in
order to insure the orderly departure of the Palestine Liberation Organiza-
tion from the city.
While I applaud your intent to fully comply with the War Powers Resolu-
tion, I am disturbed to learn that you may file a report pursuant to section
4 (a) (2) of the Resolution rather than section 4 (a) (1).
Any common-sense assessment of the situation in Lebanon must conclude
that, if the United States agrees to participate in this multinational force,
it would be introducing its armed forces into hostilities or into a situation
where imminent involvement in hostilities is clearly indicated by the
circumstances.
Thousands of lives have already been lost since Israel entered Lebanon
on June 4. Several cities have been destroyed and countless ceasefires have
been broken. The city of Beirut is presently under siege. These conditions
clearly meet the section 4 (a) (1) test for reporting under the War Powers
Resolution should U.S. troops be sent to Beirut.
I trust that you, Mr. President, will report under section 4 (a) (1) if
the plan to send U.S. troops to Beirut is implemented. A report under section
4(a) (2) would not constitute full compliance with the War Powers Resolution
in these circumstances. Rather, it could only be interpreted as an attempt
to avoid capriciously the subsequent requirements of section 5 of the War
Powers Resolution. Such an action would have incalculable effects on executive-
legislative relations on a variety of foreign policy issues.
With best wishes, I am
Sincerely yours,
Jobbacki
Chairman
CJZ:gbi
WHITE HOUSE LAW LIBRARY
ROOM 528 OEOB
(202) 395-3397
Date 1/5/84
To John Roberts
Room
No.
From To Angie Nal Keep Chadha
file
To Borrow (Date Due
Per Your Request/Per Our
Conversation
FYI
Message: The discussion of
The legislative veto issue
begins opinion. on P. 140F the
FILED
OCT 20
U. S. CLAIMS COURT
In the United States Claims Court
No. 560-82L
CITY OF ALEXANDRIA,
*
Contract; breach of contract;
pleading and practice; summary
Plaintiff,
*
judgment; authority to con-
tract; congressional review;
V.
*
formation of contract; offer
and acceptance; implied-in-
THE UNITED STATES,
*
fact contract; congressional
veto; equitable estoppel.
Defendant.
*
Kenneth L. Adams, Washington, D.C., for plaintiff.
Judith E. Schaeffer, Dickstein, Shapiro & Morin, and Cyril
D. Calley, City of Alexandria, of counsel.
Lynn Rubinstein, Washington, D.C., with whom was
Acting Assistant Attorney General F. Henry Habicht, III,
for defendant. Terry Hart Lee, General Services
Administration, and Pauline H. Milius, Department of
Justice, of counsel.
OPINION
NETTESHEIM, Judge.
In this breach of contract action, plaintiff, the
City of Alexandria ("plaintiff" or the "City"), seeks the
difference between the price it paid for a parcel of sur-
plus government real property and a lesser price allegedly
agreed upon under a prior contract of sale for the same
parcel. Although arguing that this claim is not appropri-
ate for summary disposition due to contested issues of ma-
terial fact, the City takes the position that if the case
proceeds on summary judgment the Government should be
estopped from denying the existence of the earlier con-
tract or of an intervening contract, also for a lesser
price than the City finally paid. As a final alternative,
the City seeks interest on an earnest money deposit given
for the first contract.
This case is now before the court after argument on
defendant's motion for summary judgment on the issue of
the existence of an express contract, as opposed by plain-
tiff, and on plaintiff's motion for summary judgment on
the issue of estoppel, as opposed by defendant. Defendant
cross-moved on this issue in oral argument. Plaintiff al-
so moved orally, over opposition, for summary judgment
based on a contract implied in fact.
FACTS
In its opposition to defendant's motion for summary
judgment, the City identified twelve issues of allegedly
disputed facts which precluded summary judgment. Al-
though, as defendant argues, most of these issues are
either conceded or immaterial, the following recitation
considers all salient facts in the light most favorable to
the City, the non-moving party, and resolves all doubts
against the Government, as the movant. See Lehner V.
United States, 1 Cl. Ct. 408, 412 (1983) (NETTESHEIM, J.)
(citing cases).
The Invitation To Offer at $925,000
On November 8, 1977, the General Services Administra-
tion ("GSA") determined the King's Warehouse site ("the
lot") in Old Town Alexandria, Virginia, to be surplus gov-
ernment property. Section 203 (a) of the Federal Property
and Administrative Services Act of 1949, 63 Stat. 385
(1949) (codified as amended at 40 U.S.C. $484 (a) (1976))
empowers the Administrator of GSA to supervise and direct
sales of such property. The Administrator's authority to
dispose of surplus real property has been delegated to the
Federal Property Resources Service ("FPRS"), part of GSA's
central office, which, in turn, has delegated its authori-
ty to the regional administrators.
After an unsuccessful attempt to acquire the lot by a
historic preservation grant, the City informed GSA, on No-
vember 17, 1978, of its desire to purchase the lot by
negotiated sale pursuant to 40 U.S.C. $484 (e) (3) (H). 1/
Carlton Brooks ("Brooks"), Director, Real Property Divi-
sion of the FPRS, replied on November 30 informing plain-
1/ Section 484 (e) (3) provides in pertinent part:
Disposals and contracts for disposal
may be negotiated
[without public
advertising for bids]
if
- 2 -
tiff that "negotiated sales of suplus Federal real proper-
ty are based on the property's market value and subject to
Congressional review. We are proceeding to obtain the
necessary clearances within GSA and will send the City an
offer as soon as possible."
The clearances included both the GSA Administrator's
and the FPRS's approval of the National Capital Region's
(the "Regional Office") disposal plan for the lot. On May
16, 1979, the FPRS authorized the Regional Office to nego-
tiate a sale of the lot to the City at not less than the
lot's appraised value of $790,000. If such a price could
be negotiated, an explanatory statement was to be prepared
for the Administrator of GSA to submit to the Senate Com-
mittee on Governmental Affairs and the House Committee on
Government Operations (the congressional oversight commit-
tees), as required by 40 U.S.C. $484 (e) (6). 2/ According
to plaintiff, these advance clearances prove that if the
contract subsequently negotiated had been submitted to the
FPRS for review, it would have been approved.
On June 22, 1979, Regional Administrator Walter V.
Kallaur ("Kallaur") sent the City an invitation to offer,
pursuant to 41 C.F.R. $101-47.304-4 (1978), on a form
1/ (Cont'd from page 2.)
*
*
*
(H) the disposal will be to States,
Territories, possessions, political
subdivisions thereof, or tax-supported
agencies therein, and the estimated fair
market value of the property and other
satisfactory terms of disposal are
obtained by negotiation
2/ Section 484 (e) (6) provides in pertinent part:
[A] explanatory statement of the
circumstances of each disposal by nego-
tiation of any real or personal property
having a fair market value in excess of
$1,000 shall be prepared. Each such
statement shall be transmitted to the
appropriate committees of the Congress
in advance of such disposal
- 3 -
styled "Offer For Purchase" ("OFP"). The OFP identified
the City as the "offeror" in the transaction and recited
both that the offeror offered to purchase the lot for
$925,000 cash and that the "Offer for Purchase of Govern-
ment Property" was subject to the "General Terms Appli-
cable to Negotiated Sales" in the attached GSA Form 2041
and to special terms set forth in the OFP. Form 2041
contained a "Rescission" clause, which provided in part:
b. An explanatory statement
will be submitted to the appropriate
committees of the Congress
and the
offer probably will not be accepted by
the Government until after the proposed
disposal has been considered by such
committees
C. Any recission, [sic] pursuant to
a or b, above, will be without liability
on the part of the Government other than
to return the earnest money deposit
without interest.
In his June 22, 1979 cover letter, Regional Adminis-
trator Kallaur requested that the City "review the Offer
and, if it is acceptable to you, return two executed copies
together with the necessary resolutions and a 10 per cent
earnest money deposit." The City has characterized the
cover letter and the OFP as an offer by GSA to sell the
lot to plaintiff.
Negotiation of the Sale
On August 6, 1979, a meeting took place between
Kallaur and Brooks and city officials. At this meeting
Kallaur agreed to give plaintiff sufficient time to re-
spond to the OFP so that it could gain the City Council's
approval at the next council meeting on September 11. The
City expressed a desire to file another application to ac-
quire the lot free under a historic preservation grant.
Kallaur agreed by letter dated August 7, 1979, that if the
application were successful "or if the City wishes to with-
draw its offer before December 31, 1979, we will allow the
withdrawal. Otherwise, I will proceed with the sale of
the property to the City." Kallaur stated in deposition
that he did not mean that he would wait until December 31
to process the offer. "We would process it any time prior
to that date whenever they submitted it, if that is what
they indicated to us that that is what they wanted to do."
- 4 -
GSA's Handbook for Disposal of Surplus Property,
which contains instructions and procedures for the
disposal of surplus real property, provides in part:
If at the time of the submission of the
explanatory statement to the committees
the appraisal of the property would be
more than nine months old, the regional
office shall have that appraisal
updated
PBS P. 4000.1-113e (Apr. 19, 1977). This handbook was not
in the public domain. The appraisal on which the $925,000
price was based was due to expire on December 16, 1979,
under this guideline. At the meeting on August 6, 1979,
city officials were not told that the offer at $925,000 no
longer would be viable if the explanatory statement had
not been submitted to Congress by December 16. The GSA
officials, however, did advise city officials that the
current appraisal would expire in December and the price
might then go up, but that if plaintiff submitted the OFP
before the deadline the property would be sold to the City
for $925,000. The GSA officials stated that the sale was
subject to congressional review, although this was a
routine formality.
At the conclusion of the August 6 meeting, Kallaur
said that he had been pleased to make a deal (a statement
defendant terms unauthorized), and both sides left with
the understanding that a deal had been made subject only
to the City's compliance with GSA's formalities. A city
official requested confirmation by letter that if the City
Council approved the purchase the property would be sold
for $925,000. Kallaur supplied the requested letter on
August 7. Defendant disputes plaintiff's statement that
the letter was reviewed by the FPRS without negative com-
ment, but states that this is immaterial, because the
Regional Office's disposal plan had been approved. The
City contends that Kallaur's August 7 letter and represen-
tations at the August 6 meeting provide one basis to estop
the Government from denying a contract at $925,000. 3/
On September 11, 1979, the City Council passed a
resolution "That the
[OFP]
whereby the City
offers to purchase
[the lot]
is hereby ap-
3/ The City's motion is treated as so arguing.
- 5 -
proved and "That Mr. Douglas Harman is
hereby authorized to execute said Offer on behalf of the
City n (Emphasis added). On October 9, 1979, the
City delivered to GSA Real Property Division Director
Brooks the signed OFP, the earnest money deposit of
$92,500, and a copy of the City Council's resolution, to-
gether with a cover letter from City Manager Douglas
Harman requesting credit terms. City official Edward C.
Garrity ("Garrity") told Brooks, however, that the City
would buy the property regardless of whether credit were
extended and that plaintiff had decided not to reapply for
a historic preservation grant. Brooks assured Harman that
the lot now would be conveyed to plaintiff for $925,000
since the City had done everything it was supposed to do
(the authorization to give such an assurance presenting a
legal question, according to defendant). The acceptance
page of the OFP is unsigned, 4/ although GSA cashed
plaintiff's check for $92,500.
Mishandling of the $925,000 Sale
A dispute lingers as to what, if anything, was done
about processing plaintiff's offer during the year between
its submission in October 1979 and November 1980. Follow-
ing the City's version of the facts, the court finds that
GSA failed altogether to process the offer and was negli-
gent, as stated by Kallaur in his December 5, 1980 letter
accompanying his explanatory statement submitted to the
FPRS. The record contains documentation that some action
4/ This section of the OFP reads in full:
ACCEPTANCE BY THE GOVERNMENT
The foregoing "Offer for Purchase of Government Property"
is hereby ACCEPTED by and on behalf of the UNITED STATES
OF AMERICA this
day of
, 19 .
UNITED STATES OF AMERICA
Acting by and through the
ADMINISTRATOR OF GENERAL SERVICES
By
D. CARLTON BROOKS
Director, Real Property Division
Federal Property Resources Service
- 6 -
was taken in 1980 to obtain FAA and flood plain clear-
ances. This action appears, however, to have been merely
preparatory to sending the City a new OFP based on an
updated appraisal. City official Garrity avers that in
November 1980 GSA's real estate specialist Jack Burrows
told him that the paperwork on the sale had been misfiled,
a version of events corroborated by Brooks. Nonetheless,
it is undisputed that nothing was done to process the sale
before the first appraisal expired in December 1979 and
that Burrows was reprimanded for his negligence.
City officials claim without contest from the Govern-
ment that they frequently contacted both Brooks and
Burrows throughout this period from October 1979 to Novem-
ber 1980 and were assured repeatedly that there was no
problem, that the sale was being processed, and that the
lot would be conveyed to the City for $925,000. Although
Brooks testified that he did not recall any such communi-
cations, defendant concedes that Burrows and Brooks assur-
ed the City that the sale was being processed. Garrity
avers that had the City been informed that the GSA was not
processing the offer, City officials "would have taken any
and all steps necessary to correct that situation." This
claim of reliance on assurances from GSA that the sale was
being processed forms a second basis of plaintiff's claim
that the Government should be estopped to deny a sale at
$925,000.
The $1,375,000 OFP
On November 19, 1980, at real estate specialist
Burrows' instigation, Kallaur sent the City a new OFP in-
viting an offer to purchase the lot for $1,375,000 based
on an updated appraisal. Kallaur acted under the misap-
prehension that the City had never returned the first OFP,
although defendant contends that Kallaur correctly stated
in his cover letter, "During the period between the sub-
mission of your original offer and your decision not to
seek to acquire the property under historic preservation
covenants, it became necessary to update the appraisal
upon which the original offer was made. Defendant
elsewhere admits that plaintiff informed GSA that it had
decided not to reapply for the historic preservation grant
at the same time that it delivered the first OFP on Octo-
ber 9, 1979.
When plaintiff received the second OFP and Kallaur's
November 19, 1980 cover letter, city official Garrity
telephoned GSA's Burrows to ask what was going on. De-
- 7 -
fendant disputes Garrity's averment that Burrows told him
the first OFP had been misfiled, yet admits that Garrity
went to see Burrows and delivered another copy of the OFP.
On November 21 Burrows wrote on a transmittal slip at-
tached to the second OFP, "Inoperative -- Hold action un-
til further notice from this office." Defendant questions
whether that note was legally authorized as a matter of
law.
The matter was then brought to the attention of FPRS
Director Brooks and Regional Administrator Kallaur.
Kallaur testified in deposition that he decided
that this had been an administrative er-
ror, a grotesque error, on the part of
the Regional Office, that we had failed
to discharge our responsibilities prop-
erly and that we were obligated to fol-
low through under the terms of the ori-
ginal agreement and to advise [the FPRS
and the Administrator] that we had made
this mistake and proceed to forward an
explanatory statement capturing the
error and our proposed correction.
Kallaur and Brooks decided that GSA could and should
process the sale at $925,000 and thus ratified Burrows'
putting a hold on the second OFP. Again, defendant
challenges the authority of Kallaur and Brooks to make
such a decision.
On December 5, 1980, Kallaur sent an explanatory
statement, pursuant to 41 C.F.R. $101-47.304-12 (a), (d),
5/ to the FPRS explaining what had happened. Kallaur
advanced his belief that the original offer was still
valid and recommended a sale at $925,000. Attached was a
GSA form signed by Kallaur requiring the signature of the
GSA Administrator below the legend,
5/ 41 C.F.R. $101-47.304-12 (1982), provides, as it
did in 1979-81, in pertinent part:
(a) Subject to the exceptions stated in $101-
47.304-12 (b), the disposal agency shall prepare an
explanatory statement, as required by section 203
(e) (6) of the Act, of the circumstances of each
proposed disposal by negotiation.
- 8 -
Authority granted to accept the offer
on or after 35 days from the date of the
letters [sent to the Chairmen of the
Senate and House Committees on Govern-
ment Operations] and thereafter to con-
summate the negotiated sale, unless
otherwise instructed or antitrust clear-
ance is required.
Defendant considers this form decisive on the issue of the
Regional Office's authority to accept the City's offer and
also interprets 41 C.F.R. $101-47.304-12(d), see supra
note 5, to require the Administrator's approval before an
offer may be accepted. 6/
Several days after the matter was brought to the at-
tention of Brooks and Kallaur, Brooks told the City's
Garrity that the second OFP (covered by Kallaur's November
19 letter) had been sent by mistake, and assured him the
$925,000 sale would be "put back on track." Defendant,
however, deems Brooks' authority to give such assurance a
question of law. Moreover, defendant disputes plaintiff's
5/ (Cont'd from page 8.)
* * *
(d) Each explanatory statement when prepared
shall be submitted to the Administrator of General
Services for review and transmittal by the Admin-
istrator of General Services by letters to the
Committees on Government Operations
....
* * *
(f) In the absence of adverse comment by an
appropriate committee
on the proposed nego-
tiated disposal, the disposal agency may consum-
mate the sale on or after 35 days from the date of
...
[submission of the explanatory statement].
6/ Although the Regional Office has delegated auth-
ority over the disposal of surplus realty, PBS 4000.1-
113e, provides in part: "No negotiated offer requiring
the submission of an explanatory statement to the appro-
priate committees of the Congress shall be accepted with-
out the prior approval of the Central Office.
"
- 9 -
contention that no one from GSA informed the City that a
$925,000 sale would violate statute or internal GSA rules.
Defendant cites the November 19 letter, which stated that
between October 9, 1979, when the offer was submitted, and
"your decision not to seek to acquire the property under
historic preservations covenants" (also on October 9,
1979), "it became necessary to update the appraisal upon
which the original offer was made
=
Of
course,
this
was the November 19 letter that GSA's Brooks told City of-
ficial Garrity had been sent by mistake. Defendant also
argues that the statutory requirement for sale at fair
market value was a matter of public notice and that the
alleged illegality of a sale based on an expired appraisal
rendered immaterial GSA's alleged failure to inform plain-
tiff that such a sale was illegal. In any event, it is
undisputed that GSA told plaintiff not to take action on
the second OFP. This forms the basis of plaintiff's at-
tempt to estop the Government from denying the existence
of a contract to sell at $1,375,000.
Failure of the $925,000 Sale
During 1980-81 the FPRS was headed by Commissioner
Roy Markon ("Markon"), who had approved the original dis-
posal plan in May 1979. This official refused to forward
Regional Administrator Kallaur's December 5, 1980 explana-
tory statement to Congress on the ground that it was based
on an expired appraisal. Defendant adds that the state-
ment also lacked the required clearances. Kallaur defen-
ded his view to GSA Acting Administrator Raymond A. Kline,
who, after receiving advice from General and Regional Coun-
sel, agreed with Kallaur and on March 19, 1981, ordered an
explanatory statement to be prepared proposing to sell the
lot for $925,000 and providing a rationale for deviating
from the requirement of GSA's internal guidelines that ex-
planatory statements be based on updated appraisals.
Markon renewed his attempts to convert Kline to his
viewpoint. On May 7, 1981, Kline discussed the case with
the Chairman of the House Committee on Government Opera-
tions and a staff member. The staff member later contact-
ed Kline, after having reviewed the file and, according to
Kline's deposition testimony, expressed doubt that the
committee would approve the sale if it were submitted for
review because the appraisal period had expired. Kline
then abandoned his plan to waive the internal guidelines,
concluding that the House committee would obstruct a
- 10 -
$925,000 sale. 7/ By June 1981 Gerald B. Carmen
("Carmen") had assumed office as Administrator of GSA, but
he directed Kline to continue handling the sale of the
lot. After again contemplating in late June 1981 submis-
sion of an explanatory statement based on the $925,000
price, despite the likelihood of congressional opposition,
on August 3, 1981, Kline finally ordered Markon to conduct
the sale based on a current appraisal according to the
guidelines.
On August 25, 1981, City officials met with Adminis-
trator Carmen and argued for a sale at the original price.
The GSA did not disclose its earlier decision not to pro-
ceed with a sale at $925,000. During a November 13, 1981
meeting, GSA informed the City that it would not convey
the lot for $925,000. GSA returned plaintiff's deposit
without interest on November 20 and sent plaintiff a new
OFP for $1.5 million on February 24, 1982. The City pur-
chased the property at that price, having first filed a
suit in federal district court seeking specific perfor-
mance of the $925,000 contract. The suit was transferred
to this court in November 1982.
DISCUSSION
The Express Contract Issue
Plaintiff argues that GSA had made the City an offer
to sell the property, based on instances in which GSA per-
sonnel referred to the Government's invitations to offer
as "offers", and that at the August 6, 1979 meeting the
parties achieved the requisite meeting of the minds. De-
fendant erects as barriers to formation of a contract
arguments that the OFP was an offer by the City, so that
it was not capable of acceptance by the City, and that the
GSA officials lacked authority to agree to a binding con-
tract. According to defendant, no contract came into
existence because, absent congressional review, GSA's of-
fer could not be accepted. The City contends that al-
though 41 C.F.R. $101-47.304-4 "does state that the GSA
issues 'invitations to make an offer,' this procedure is
not required by statute and, we submit, was not as a
7/ Kline testified, "After they reviewed the file
and it was communicated back to me what their conclusion
was, it was at that point that I thought it would be
useless to go up there and be shot down anyway."
- 11 -
matter of fact and substance followed in this case."
Plf's Reply at 19 (emphasis in original).
The regulatory scheme for disposals of surplus prop-
erty by negotiation is designed to give the greatest pro-
tection to the public coffers from disadvantageous bar-
gains struck by GSA. The quoted regulation does more than
state that the GSA issues such invitations, but prescrib-
es: "In all advertised and negotiated disposals, the dis-
posal agency shall prepare and furnish
written
invi-
tations to make an offer, which shall contain
all
the terms and conditions under which the property is of-
fered for disposal
(Emphasis added.)
Although the City presents several indications that
GSA made an offer, both the OFP and the City Council reso-
lution specified that the City was making an offer. These
unequivocal manifestations that an offer was being made by
the City, which were signed by authorized city officials,
preclude transforming that offer into an offer by GSA that
was accepted by the City. In Russell Corp. V. United
States, 210 Ct. Cl. 596, 537 F.2d 474 (1976) (per curiam),
cert. denied, 429 U.S. 1073 (1977), the Court of Claims
held that a contract did not come into existence in cir-
cumstances similar to this case. The GSA Administrator in
Russell Corp. had approved the sale, but no representative
of the Government had executed the acceptance page. That
the offer was not accepted by the authorized signature de-
feated a claim based on express contract. 210 Ct. Cl. at
608, 537 F.2d at 481-82; see Kellerblock V. United States,
219 Ct. Cl. 608, 611 (1979). See also Prevado Village
Partnership, Etc. V. United States, No. 156-82C, slip op.
at 8 n.3 (C1. Ct. Aug. 22, 1983) (LYDON, J.).
Plaintiff's argument that the Regional Office, per
Kallaur, had authority to contract does not change the
result. In the law of government contracts, no contract
can be created binding the Government absent actual auth-
ority of the Government's agents to bind the Government.
Federal Crop Insurance Co. V. Merrill, 332 U.S. 380, 384
(1947) ; accord, Prestex Inc. V. United States, No. 558-82C
slip op. at 8 (C1. Ct. Sept. 15, 1983) (LYDON, J.) (citing
8/ The discussion concerning lack of authority, see
infra at pp. 12-13, disposes of plaintiff's argument that
representations by GSA officials could convert the OFP to
an offer by the GSA.
- 12 -
cases). Thus, the factual issues eged by plaintiff as
to the parties' intentions, state f mind, and under-
standings do not present themselves 11 the lack of auth-
ority defense prevails.
Two impediments exist to a finding of authority here.
The first is that the applicable regulation, 41 C.F.R.
$101-47.304-12(d), quoted supra note 5, requires that the
Administrator review and transmit the explanatory state-
ment to the congressional oversight committees. 9/ After
Kallaur approved the sale at $925,000, Acting Administra-
tor Kline never transmitted the explanatory statements;
nor did he sign, or authorize to be signed, the OFP or
Kallaur's request for authority to accept the OFP. Thus,
Kallaur lacked authority to bind the Government. Although
Kline had authority to commit GSA, after his rebuff by the
House Committee Kline withdrew his assent by declining to
execute Kallaur's request or to continue processing the
$925,000 OFP. See Russell Corp., 210 Ct. Cl. at 608.
The second impediment to an authorized acceptance is
the requirement of congressional review itself. Congres-
sional comment is not a ministerial act, merely part of
the mechanics of processing the offer. The legislative
history cited by defendant reveals numerous instances
whereir proposed negotiated sales were stopped and prices
revised after congressional intervention. See H. Rep. No.
1763, reprinted in 1958 U.S. Code Cong. & Ad. News 2861,
2863-66. Although the City is correct that congressional
approval is not required -- at least technically -- notice
to Congress is required both by statute, 40 U.S.C. $484 (e)
(6), quoted supra note 2, and by regulation, 41 C.F.R.
$101-47-304-12, (a), (d), quoted supra note 5. Congres-
sional review is referred to explicitly in Form 2041,
which accompanied the OFP, although Form 2041 stated only
that acceptance "probably" would not occur until after
consideration by Congress. Under the procedure for con-
tracting in this case, as prescribed by statute and regu-
lation, congressional review is a step that must be com-
pleted before acceptance. See Empresas Electronicas
9/ This regulation is sufficient to charge the City
with notice of Kallaur's lack of authority finally to bind
the GSA. That GSA's more explicit requirement of the Ad-
ministrator's prior approval for acceptance, PBS 4000.1-
113e, quoted supra note 6, is unpublished therefore does
not diminish the chargeable notice.
- 13 -
Walser, Inc. V. United States, 223 Ct. Cl. 686, 688
(1980) ; Russell Corp., 210 Ct. Cl. at 609, 537 F.2d at
482.
The Implied-in-fact Contract Issue
In its briefs, and fairly noticed in its complaint,
the City advanced a claim based on contract implied in
fact. Judge Harkins has provided a full current discus-
sion on the parameters of this court's jurisdiction to en-
tertain such a claim. Pacific Gas & Electric Co., No.
182-80C, slip op. at 15-16 & nn.5-11 (Cl. Ct. Aug. 30,
1983) (citing cases) ; see Hargrove V. United States, 1 Cl.
Ct. 228, 230 (1982) (MILLER, J.). In brief, this court
will recognize as an implied-in-fact contract one founded
on the requisite meeting of the minds, which is inferred
from the parties' conduct in light of the surrounding
circumstances.
Although in an implied-in-fact contract the presence
of a manifestation of assent is the overriding factor, two
defects preclude a conclusion that a contract implied in
fact existed in the circumstances of this case. The first
is Kallaur's lack of authority, which has been treated
previously. See Prestex, Inc., slip op. at 8 (citing
cases); Hargrove V. United States, 1 Cl. Ct. at 230. The
second is that the parties were chargeable with knowledge
of additional actions under statute and regulation that
had to be accomplished before a contract could come into
existence. See Prevado Village Partnership, Etc., slip
op. at 7-9; Russell Corp., 210 Ct. Cl. at 612, 537 F. 2d at
483.
Plaintiff has failed to adduce any facts that would
require a trial on the existence of a contract implied in
fact.
The Constitutional Issue
Incident to oral argument, the court requested that
the parties address the applicability of INS V. Chadha,
103 S. Ct. 2764 (1983), to the case at bar. The statute
held unconstitutional in Chadha authorized a unicameral
veto of the Attorney General's decision, upon delegated
authority from Congress, to allow deportable aliens to re-
main in the United States. Chadha already has been exten-
ded to invalidate legislative vetoes of agency rulemaking.
Consumers Union of the United States, Inc. V. FTC, 691
F.2d 575 (D.C. Cir. 1982) (per curiam), aff'd mem., 51
- 14 -
U.S.L.W. 3935 (U.S. July 6, 1983); Consumer Energy Council
of America V. FERC, 673 F.2d 425 (D.C. Cir. 1982), aff'd
mem., 51 U.S.L.W. 3935 (U.S. July 6, 1983).
The pertinence of Chadha to this case is that defen-
dant has argued that because the congressional review pro-
cedure was not undertaken, consummation of a contract was
never authorized. On the other hand, Kline, GSA's Acting
Administrator, by ordering preparation of an explanatory
statement waiving the requirement of a current appraisal,
as recommended by Kallaur, manifested assent to the forma-
tion of a contract at $925,000. Kline thereby ratified
Kallaur's decision, communicated to the City by Brooks, to
proceed with consummating the sale. See Thomson V. United
States, 174 Ct. Cl. 780, 357 F.2d 683 (1966). Alterna-
tively, Kline was authorized to approve the explanatory
statement and thereby assent directly, not as a ratifier.
Kline was inhibited from submitting the explanatory state-
ment and expressly authorizing acceptance only by his ex-
pectation of congressional disapproval. The question thus
becomes whether congressional review was a valid prerequi-
site for contract formation.
Involved in Chadha was section 244 (c) (2) of the Immi-
gration and Nationality Act, 8 U.S.C. $1254 (c) (2) (1976)
which derived from Congress' authority under U.S. CONST.
art. I, §8, cl. 4 "To establish an uniform Rule of Natu-
ralization." Section 244 (c) (2) in substance allowed ei-
ther House of Congress to disagree by resolution with the
decision of the Attorney General not to deport an alien
and bound the Attorney General to the decision of either
House.
In this case the statute in question, 40 U.S.C. $484
(e) (6), quoted supra note 2, derives from Congress' ple-
nary authority over public lands in art. IV, $3, cl. 2,
and merely provides that prior to disposal by negotiation
of certain real property an explanatory statement must be
transmitted to the appropriate committees of Congress.
The implementing regulation, 41 C.F.R. $101-47.304-12 (a),
(d), (f), quoted supra note 5, requires submission of the
explanatory statement and permits GSA to consummate a sale
in the absence of adverse comment by an appropriate cong-
ressional committee or subcommittee. This case thus does
not involve an explicit veto by one House of Congress;
rather, a procedure established by statute, regulation,
and practice is presented whereby one committee of one
House of Congress can intervene in and stop a decision of
the Executive Branch to contract.
- 15 -
Compelling similarities between this case and Chadha,
however, are apparent. Here, GSA was required to submit
for congressional review a contract for a negotiated sale
of surplus property prior to consummating the transaction.
In practice, as GSA's then-acting administrator Kline tes-
tified, the proposed sale would not be consummated without
receiving the approval of the House oversight committee.
As Kline put it, after having received a preview of dis-
approval from a committee staff member, "I thought it
would be useless to go up there and be shot down anyway."
The Acting Administrator deemed himself bound by the re-
quirement of submitting a proposed sale for congressional
review to defer to the committee's decision, and GSA's
regulations so restricted him. 41 C.F.R. $101-47.304-
12 (f) (quoted supra note 5).
Assuming, however, that another GSA Administrator
were of a different view and regarded the comment of the
House committee as purely advisory, Congress would not
countenance GSA's going forward. The legislative history
to the 1958 amendments to the Federal Property Administra-
tive Services Act of 1949 reveals a number of instances
wherein Congress demonstrably viewed its role as one of
intervention for the purpose of objecting to proposed
sales, primarily due to disagreement with appraisal
values. H. Rep. No. 1763, 1958 U.S. Code Cong. & Ad News
at 2863-66. 10/ Congress' objections were honored in
these instances, and higher sales prices were obtained.
10/ The House Report also characterized the
requirement to report thusly:
Reporting is viewed merely as a pro-
cedure for informing Congress of devia-
tion from the customary method of pub-
licly advertised competitive disposal.
The function of the committee has not
been one of approving or disapproving
each negotiated sale submitted to Cong-
ress, but rather has been one of general
review and of registering objection when
it seems apparent that the proposed sale
is not in the best interest of the
Government.
Id. at 2867. The preceding portions of the House Report
to which citation is made in the text are in marked oppo-
sition to the quoted language.
- 16 -
Defendant also admits that GSA defers to the congressional
recommendation. Def's Reply at 12, 14. Finally, Kline
testified plausibly that the spectre of oversight hearings
dissuades independent action by the agency when congres-
sional approval is withheld. In practice, then, one House
of Congress, by committee, can veto a proposed sale by the
Executive Branch to which Congress, pursuant to art. IV,
$3, cl. 2 of the Constitution, has delegated its authority
to dispose of public property.
On September 23, 1983, the Department of Justice fil-
ed a brief through its Lands and Natural Resources Divi-
sion, the same arm of defendant involved in the case at
bar, in National Wildlife Federation V. Watt, Civ. No. 83-
2648 (D.D.C. filed Sept. 8, 1983). Plaintiff sought to
enjoin the Secretary of the Interior from issuing certain
coal leases after Congress, pursuant to section 204 (e) of
the Federal Land Policy and Management Act of 1976, Pub.
L. No. 94-579, 90 Stat. 2753 (codified at 43 U.S.C.A.
$1714 (e) (West Supp. 1983)), 11/ requested that the
11/ 43 U.S.C. $1714 (e) provides in full:
Emergency withdrawals; procedure applicable; duration
When the Secretary determines, or
when the Committee on Interior and Insu-
lar Affairs of either the House of Rep-
resentatives or the Senate notifies the
Secretary, that an emergency situation
exists and that extraordinary measures
must be taken to preserve values that
would otherwise be lost, the Secretary
notwithstanding the provisions of sub-
sections (c) (1) and (d) of this section,
shall immediately make a withdrawal and
file notice of such emergency withdrawal
with the Committees on Interior and In-
sular Affairs of the Senate and House of
Representatives. Such emergency with-
drawal shall be effective when made but
shall last only for a period not to ex-
ceed three years and may not be extended
except under the provisions of subsec-
tion (c) (1) or (d) of this section,
whichever is applicable, and (b) (1) of
this section. The information required
- 17 -
leases be withheld temporarily. The statute requires the
Secretary to withdraw a proposed lease upon notification
from a designated committee of either House of Congress
that an emergency exists and that extraordinary measures
must be taken to preserve values that otherwise would be
lost. The provision is similar to the statute, regula-
tion, and practice in this case, because it allows Cong-
ress to study a proposed action before final commitment
ensues. 12/
In National Wildlife Federation, the Government put
forth a position to which this court deems it bound in
arguing the constitutionality of review procedure in this
case: "The Chadha decision
requires
that
a
provi-
sion purporting to authorize a mere congressional commit-
tee to alter the duties of the Executive
be held un-
constitutional, even more so than it required the invali-
dation of a one-House veto provision
"
Govt's
Suppl. Br., filed Sept. 26, 1983, at 6. The Government
attacked the decision of the district court in Pacific
Legal Foundation V. Watt, 529 F. Supp. 982, 1004 (D. Mont.
1982), that the Secretary of the Interior's discretion to
modify the committee's action by dictating the scope and
duration of a lease withdrawal saved the constitutionality
of the veto provision. The Government argued that Pacific
Legal Foundation is invalid after Chadha: The Supreme
Court's decision "does not leave any room for such leger-
demain in statutory construction." Gov't Br., filed Sept.
11/ (Cont'd from page 17.)
in subsection (c) (2) of this subsection
shall be furnished the committees within
three months after filing such notice.
12/ Judge Oberdorfer granted preliminary injunctive
relief in National Wildlife Federation on nonconstitution-
al grounds and distinguished Chadha as not reaching the
exercise under art. IV of Congress' allegedly proprietary,
as opposed to legislative, role with respect to public
lands. National Wildlife Federation, No. 83-2648 (D.D.C.
Sept. 28, 1983) (order granting preliminary injunction).
This distinction would exempt legislation under art. IV,
$3, cl. 2 from the requirements of bicameralism and
presentment because Congress is deemed a custodian of all
public lands.
- 18 -
23, 1983, at 23. The Supreme Court in Chadha held that
the bicameral and presentment requirements of art. I, $1,
$7, cls. 2, 3 applied to Congress' exercise of its auth-
ority under art. I, §8 to establish a uniform rule of
naturalization. Defendant argued that the rationale is
applicable equally to Congress' exercise of its article IV
powers. The court agrees with the Government's position
in National Wildlife Federation.
Moreover, the Supreme Court's opinion in Chadha cer-
tainly did not bless the practice of unicameral interven-
tion in sales of surplus government property by refusal to
review a proposed sale or disapproval or withheld approval
of such a sale:
The Constitution provides Congress with
abundant means to oversee and control
its administrative creatures. Beyond
the obvious fact that Congress ultimate-
ly controls administrative agencies in
the legislation that creates them, other
means of control, such as durational
limits on authorizations and formal re-
porting requirements, lie well within
Congress' constitutional power.
103 S. Ct. at 2786 n.19. One of the two authorities cited
for this proposition, Javits & Klein, Congressional Over-
sight and the Legislative Veto: A Constitutional Analy-
sis, 52 N.Y.U.L. Rev. 455, 462 (1977), specifically dis-
cusses reports to Congress after an action has been taken:
Methods such as reporting requirements
and congressional committee investiga-
tions allow Congress to scrutinize the
exercise of delegated lawmaking authori-
ty, but they do not permit Congress to
retain any part of that authority once
it has been delegated. None of these
methods effectively enables Congress to
review executive proposals before they
take effect; none affords the
opportunity for ongoing and binding
expressions of congressional intent.
Javits & Klein, supra, at 461-62 (emphasis added). Kaiser,
Congressional Action To Overturn Agency Rules: Alterna-
tives to the 'Legislative Vetos, 32 Ad. L. Rev. 667
(1980), is to the same effect.
- 19 -
The Supreme Court in Chadha, however, did sanction
traditional "report and wait" provisions whereby Congress
reserves to itself the opportunity to review proposed ac-
tion before it becomes effective and to pass legislation
barring its effectiveness if the proposal is found objec-
tionable. 103 S. Ct. at 2776 n.9 (citing Sibbach V.
Wilson, 312 U.S. 1 (1944)). The statute, regulation, and
congressional and agency practice in this case do not sim-
ply reserve to Congress an opportunity to pass legislation
barring the proposed sale. What is reserved is the power
to disapprove or to withhold approval without passing leg-
islation. The statute, regulation, and practice are not
tantamount to a "report and wait" provision or practice.
This constitutional inquiry becomes pivotal because
Acting Administrator Kline testified that, if the City's
offer had not been waylaid before the first appraisal
expired, the proposed contract would have been processed
in the normal fashion and been approved administratively.
Kline has also testified that he would have approved an
explanatory statement recommending that the resurrected
offer be accepted. Hence, the sale, but for Kline's being
advised that the House committee would not approve it,
would have gone forward. Because the requirement of re-
view by Congress is unlawful, the obstacle to contract
formation disappears. Kline, the decision maker who had
authority to bind GSA, is no longer inhibited by the need
for congressional review and has manifested his assent,
thereby ratifying Brooks' advice to the City. The con-
tract, implied in fact, then can be enforced by the court.
The court has considered carefully defendant's argu-
ments 13/ and holds that the practice of a committee of
13/ The Chairman of the House Committee on Govern-
ment Operations did not seek to intervene in these proce-
edings after the court directed the parties to address the
applicability of Chadha in argument. The Chairman of the
House Committee on Interior and Insular Affairs intervened
in the National Wildlife litigation because the Justice
Department argued that 43 U.S.C. $1714 (e) was unconstitu-
tional. Although the Department of Justice's interest was
adverse to that of Congress with respect to the statutes
and regulations in the Chadha and National Wildlife cases,
the Department views the practice under the statute and
regulation in this case as not constitutionally offensive.
- 20 -
the House of Representatives of intervening in and stop-
ping negotiated sales of surplus property proposed by the
GSA is an unconstitutional invasion of the separation of
powers. Without intervening and stopping a proposed sale,
the only way Congress could override the GSA disposal de-
cision would be by enacting further legislation. The
action of the House Committee on Government Operations es-
sentially was legislative in purpose and effect and thus
was subject to the procedural requirements of art. I, $7,
cls. 2-3 of the Constitution -- passage by a majority of
both Houses with presentment to the President. As a re-
sult of the foregoing, the court holds that GSA is bound
to a contract implied in fact to convey the subject
property to the City for $925,000.
Reaching the constitutional question is unavoidable.
The court is required to address the issue only because
the City fails in its claims based on express contract,
implied in fact contract -- not impacted by constitution-
ality, and estoppel. See New York City Transit Authority
V. Beazer, 440 U.S. 568, 582 (1979) ; Spector Motor Ser-
vice, Inc. V. McLaughlin, 323 U.S. 101, 105 (1944). The
court's disposition of the estoppel claims follows.
The Estoppel Issues
Plaintiff grounds its claim to estop defendant to
deny the existence of a $925,000 contract on two represen-
tations by the Government: 1) Kallaur's letter of August
7, 1979, and related representations, advising the city
that if it submitted the necessary documents he would pro-
ceed with the sale, see supra note 3; and 2) Brooks' and
Burrows' representations to city officials during the
13/ (Cont'd from page 20.)
Interestingly, the Chairman, as intervenor in National
Wildlife, argued: "[I]f Section 204 (e) were viewed as a
means of sharing the administration of the wilderness and
public lands with the executive on an ongoing basis, the
Ninth Circuit's Chadha decision would mandate a finding
that section 204 (e) was unconstitutional.
"
Inter-
venor's Memo in Support of Summary Judgment, filed Sept.
27, 1983, at 7. A shared administration of the disposal
by negotiated sale of surplus government property is a
precise description of Congress' and the GSA's interaction
in this case.
- 21 -
period October 1979 to November 1980 that the $925,000 OFP
was being processed. Estoppel as to the $1,375,000 con-
tract is based on realty specialist Burrows' advice to the
City, endorsed by Brooks and Kallaur, not to take any
further action to complete and submit the second OFP
because the $925,000 OFP was still viable.
The doctrine of equitable estoppel also has been
explicated recently by Judge Harkins in Pacific Gas &
Electric Co., slip op. at 17-18 & nn.12-15 (citing cases) ;
see Biagioli V. United States, 2 Cl. Ct. 304, 308 (1983)
(NETTESHEIM, J.). In order to estop the Government, the
conduct or representations relied upon must be made by
government officers acting within the scope of their auth-
ority. Jackson V. United States, 216 Ct. Cl. 25, 41, 573
F.2d 1189, 1197 (1978) ; Emeco Industries, Inc. V. United
States, 202 Ct. Cl. 1006, 1015, 485 F.2d 652, 657 (1973)
(citing cases). Kallaur's lack of authority, which was
fatal to plaintiff's claim for a contract implied in fact,
similarly dooms any estoppel to deny that GSA accepted the
City's offer or that a contract otherwise existed based on
his letter and other representations of similar effect.
E.g., Prestex, Inc., slip op. at 12; see Pacific Gas &
Electric Co., slip op. at 18-19. In Manloading & Manage-
ment Associates, Inc. V. United States, 198 Ct. Cl. 628,
635, 461 F.2d 1299, 1302 (1972), relied on by plaintiff,
the contracting officer was authorized expressly to bind
the Government in the manner that plaintiff sought to bind
it by estoppel.
As to the other leg of the estoppel claim on the
$925,000 OFP -- the misrepresentations concerning ongoing
processing -- defendant has conceded that the representa-
tions were authorized. As to the estoppel based on
Burrows' instruction not to proceed on the $1,375,000 OFP,
defendant has failed to adduce any evidence that the
instruction was unauthorized. 14/ Although Burrows was
not authorized to accept or reject an OFP, he had implied
14/ Because an estoppel based on representations by
Kallaur is defeated by lack of authority, it becomes
unnecessary to consider the City's argument that it acted
in reliance thereon and suffered detriment by submitting
the OFP and deposit and later believing the Brooks/Burrows
representations that the OFP was being processed. The
court considers these arguments to be sufficiently dealt
with by the discussion infra at pp. 23-25.
- 22 -
authority to give the City instructions regarding the for-
malities and paperwork involved in concluding the trans-
action. Such authority was inherent in his job as the
agent responsible for processing the transaction. The
authority question evaporates because Brooks and Kallaur,
Burrows' superiors, determined to press forward with the
$925,000 OFP when they learned why the $1,375,000 OFP had
been sent, and Brooks informed the City of this decision.
These officials were authorized, at a minimum, to sponsor
(as opposed to accept) an OFP, even one flawed by an ex-
pired appraisal.
Four additional elements are necessary for equitable
estoppel: (1) The party to be estopped must know the
facts; (2) he must intend that his conduct shall be acted
on or must so act that the party asserting the estoppel
has a right to believe it is so intended; (3) the latter
must be ignorant of the true facts; and (4) he must rely
on the former's conduct to his injury. Emeco Industries,
Inc., 202 Ct. Cl. at 1015, 485 F.2d at 657. The second
element is sometimes expressed as a requirement that the
party asserting estoppel have changed his position in re-
liance on the conduct or acquiescence of government offi-
cers, see Russell Corp., 210 Ct. Cl. at 614, 537 F.2d at
485, or have had a reasonable right to act in reliance on
defendant's actions or inactions. United States V.
Georgia-Pacific Co., 421 F.2d 92, 98 (9th Cir. 1970)
Emeco Industries, Inc., 202 Ct. Cl. at 1017, 485 F.2d at
658.
An inquiry therefore must be made whether plaintiff,
having shown the requisite authority, satisfies the other
four requirements to perfect an estoppel as to either the
$925,000 or $1,375,000 OFP.
With respect to the $925,000 OFP, the City has failed
to show that it acted to its injury based on the represen-
tations of Brooks and Burrows that the OFP was being pro-
cessed. The City, as the party urging estoppel, must show
that it reasonably relied on the representations to its
detriment in order to satisfy the fourth element.
Because city officials were misinformed that the
offer was being processed, the City argues that it for-
feited the opportunity to telephone the GSA officials and
have the processing of the OFP put back on track before
the first appraisal expired in mid-December 1979 or to
institute a lawsuit under the Administrative Procedure
Act, 5 U.S.C. $551 (1976), to require the GSA to act with-
- 23 -
in a reasonable time. The City also claims loss of the
use of its $92,500 earnest money deposit, as well as the
lost opportunity to purchase at $925,000, as a consequence
of defendant's representations.
The first two alleged detrimental consequences are
speculative. Even assuming, arguendo, that the City could
have prodded GSA or secured judicial relief through legal
action before the appraisal expired, speculation is invit-
ed as to the OFP's fate in the congressional review pro-
cess. The record is replete with GSA officials' best
guesses that congressional review based on a current ap-
praisal would be a mere formality. These opinions qualify
as neither admissions nor expert opinions. Congressional
action in this case simply is not capable of prediction,
even if it could be shown that Congress has acted habit-
ually in a certain fashion. The House Report itself dem-
onstrates that Congress does not always deem current ap-
praisals of estimated fair market value to be reliable.
As to the $92,500 earnest money deposit, Russell
Corp. gives some comfort to plaintiff regarding the claim
based on the failure to return the deposit "promptly after
it was recognized that the deal could not go forward."
See 210 Ct. Cl. at 614, 537 F.2d at 485. Defendant re-
joins that the City insisted, after learning the fate of
the $925,000 OFP in November 1980, that its offer at that
figure continue to be considered and therefore should not
be heard to complain. Suffice it to say that the City's
deposit was not returned promptly when the 1981 efforts to
resuscitate the original OFP floundered. Nonetheless,
lost use of this sum is not considered a detriment because
an earnest money deposit implies by its purpose uncertain-
ty as to whether there will be a contract at all and ac-
ceptance of the concomitant risk that one may lose the use
of one's money.
Finally, loss of "a good piece of business" does not
constitute detriment. Russell Corp., 210 Ct. Cl. at 614,
537 F.2d at 485. The City apparently contends that the
loss of the more favorable contract at $1,375,000
constitutes detriment on that claim. This claim fails for
the same reason.
In most of the cases cited by plaintiff, the parties
incurred considerable expenses acting in reliance on gov-
ernment conduct. See Broad Avenue Laundry & Tailoring V.
United States, 681 F.2d 746 (Fed. Cir. 1982) (increased
wages paid to employees by contractor); United States V.
Georgia-Pacific Co., 421 F.2d 92 (plaintiff improved
- 24 -
forest land relying on Government's abandonment of claim
thereto) ; Merchant's National Bank V. United States, 689
F.2d 181 (Ct. C1. 1982) (bank financed sale of buoys to
Government, relying on buoys having passed government in-
spection) ; Emeco Industries, Inc., 202 Ct. Cl. 1006, 485
F.2d 652 (expenses incurred preparatory to performance un-
der contracts with Government); Dana Corp. V. United
States, 200 Ct. Cl. 200, 470 F.2d 1032 (1972) (extra ex-
pense incurred in packaging equipment furnished Govern-
ment) ; Manloading & Management Associates, Inc. V. United
States, 198 Ct. C1. 628, 461 F.2d 1299 (same as Emeco) ;
Pacific Far East Lines V. United States, 184 Ct. Cl. 169,
394 F.2d 990 (1968) (unprofitable contract entered into in
reliance on Government's previous inclusion of such con-
tracts in excess profit calculations under subsidy con-
tract with Government); Branch Banking & Trust Co. V.
United States, 120 Ct. Cl. 72, 98 F. Supp. 757, cert.
denied, 342 U.S. 893 (1951) (contract performed
fully) 15/
The court concludes that no detriment was suffered
because of the uncertainty of receiving congressional
approval and because the lost use of the earnest money
deposit and the loss of the contract do not constitute
sufficient detriment in the circumstances of this case.
The City therefore cannot succeed on its claims for
equitable estoppel.
CONCLUSION
Defendant's motion for summary judgment on the
existence of an express contract is granted, but is moot;
plaintiff's motion for summary judgment based on estoppel
15/ Several of the cases cited by plaintiff do not
conform to the pattern. Corniel-Rodriguez V. INS, 532
F.2d 301 (2d Cir. 1976) ; United States V. Wharton, 514
F.2d 406 (9th Cir. 1975) ; Brandt V. Hickel, 427 F.2d 53
(9th Cir. 1970). These cases recognize as detriment seri-
ous or manifest injustice as a consequence of the Govern-
ment's conduct. Although Wharton has superficial similar-
ity on the facts, plaintiffs there stood to lose the farm
on which they had lived for 50 years. The City ultimately
lost only a prospective acquisition. As shown by the
cases discussed in the text, the Court of Claims adopted a
more stringent standard for detrimental reliance to which
this court deems itself bound. See Biagioli, 2 Cl. Ct. at
308.
- 25 -
is denied, and defendant's cross-motion is granted, but is
moot. Plaintiff's oral motion for summary judgment based
on a contract implied in fact is granted, and the Clerk of
the Court shall enter judgment for plaintiff in the amount
of $575,000. 16/
IT IS so ORDERED.
Costs to the prevailing party. 17/
October 20, 1983
Christine Cl nettesheim Cook Nettesheim
Judge
16/ Plaintiff's claim for interest on the earnest
money deposit must fall before the prohibition of 28
U.S.C. $2516 (a) (1982). See Pacific Coast Medical
Enters., Inc. V. United States, 3 Cl. Ct. 140, 145 (1983)
(NETTESHEIM, J.) (citing cases), appeal docketed, No.
83-1426 (Fed. Cir. Sept. 27, 1983).
17/ By its amended complaint, the City did not ask
for attorneys' fees. Although this court does not intend
to foreclose plaintiff from making an application pursuant
to 28 U.S.C. $2412 (d) (Supp. IV 1980), assuming that
plaintiff qualifies, the foregoing strongly indicates that
the Government's litigating position was reasonable in
light of all the pertinent facts. See Gava V. United
States, 699 F.2d 1367, 1370 (Fed. Cir. 1983). The
dispositive Supreme Court decision was brought to the
parties' attention only after briefing was completed.
- 26 -
Congressional
Digest
ANNUIT COEPTIB
THE GREAT SEAL
NOVUS ORDO SECLORUM STATES
OF THE UNITED
December 1983
WHITE HOUSE AND LIBRARY
RESEARCH CENTER
Controversy Over The
Legislative Veto
Pro & Con
Washington, D.C.
The Legislative Veto
He Who Decides a Case Without Hearing the Other Side
Tho He Decide Justly, Cannot Be Considered Just-SENECA
FOREWORD=
A number of statutes require that an affirmative
L
EGISLATIVE OVERSIGHT is a standard function of the
action be taken by the Congress before certain Execu-
law-making process. Hearings are conducted to
tive Branch actions may take effect. The process may
monitor the performance of laws and how they are ad-
involve two-House; one-House; two-House committee;
ministered. Some statutes, however, contain provi-
or one-House committee approval action, similar to the
sions, popularly called "legislative vetoes," authorizing
disapproval procedures. They also vary as to the time in
Congress to take direct action on Executive Branch ad-
which action must be completed.
ministration of the law.
In some instances the statutes require a process of
The type of legislative veto varies and some statutes
informal consultation and notification between the
provide for more than one kind.
Congress and the Executive Branch.
A legislative veto may be exercised through the nega-
An arrangement made by President Hoover in 1932,
tive vote of both Houses, one House, or their commit-
whereby if the Congress did not agree with his executive
tees, as specified in the statute affected.
agencies reorganization plan it could nullify it, is gener-
A vote by both Houses of Congress, known as the
ally considered to be the origin of the legislative veto.
"two-House veto," can disapprove Executive Branch
The device was used sparingly until well after World
proposals by passing a concurrent resolution, which
War II, when the growth of the Federal government
does not require a Presidential signature. Most two-
accelerated.
House veto provisions provide that unless such a resolu-
Some supporters of the legislative veto see it as a
tion is passed by both Houses within a specified period
method of controlling the proliferation of bureaucratic
of time, the proposal will become effective at the end of
regulations, which were a product of the laws expand-
that period. A common deferral period for Congres-
ing the scope of the Federal government. Presidents
sional review is 60 days.
have seen it as an intrusion on the powers of the Execu-
The "one-House veto" authorizes either the House or
tive Branch. Its use was expanded in the time of strong
Senate to reject a specified Executive Branch proposal
Congressional policy disputes with President Nixon,
by the passage of a simple resolution. Generally a pro-
and proliferated under President Carter, who also op-
posal must be submitted in advance to both Houses,
posed its usage.
which will take effect unless rejected by either House
On June 23, 1983, the U.S. Supreme Court declared
during a stated period, frequently 60 days.
unconstitutional the one-House veto provision of an im-
A combination procedure employed in some statutes
migration law. It cited the separation of powers princi-
enables the rejection of an Executive Branch proposal
ple and the "presentment clause" whereby legislative
by a one-House veto, providing such veto is not disap-
acts must be presented to the President for his consider-
proved by the other House.
ation. There is some disagreement over the impact of
In some cases authority is provided to specific com-
the decision on other statutes containing legislative veto
mittees to disapprove executive actions. This involves a
provisions. but it is generally regarded to be consider-
committee in one or both Houses in a procedure similar
able. The debate in Congress over what should be done
to the one-House and two-House vetoes.
regarding legislative vetoes is underway.
290
Congressional Digest
The Supreme
The
Legislative
Court Decision
Veto
T
HE U.S. SUPREME COURT, in a decision handed down
of separation of powers, and accordingly directed the
on June 23, 1983, in the case of Immigration and
Attorney General to cease taking any steps to deport
Naturalization Service V. Chadha et al, ruled by a vote
Chadha based upon the House Resolution.
of seven to two that the one-House legislative veto con-
Held:
tained in a section of the Immigration and Nationality
Act, is unconstitutional.
1. This Court has jurisdiction to entertain the INS's
A syllabus (headnote) of the decision was released at
appeal.
the time the opinion was issued. The syllabus states
2. Section 244(c)(2) is severable from the remainder
that it constitutes no part of the opinion of the Court
of $244. Section 406 of the Act provides that if any par-
"but has been prepared by the Reporter of Decisions
ticular provision of the Act is held invalid, the remain-
for the convenience of the reader. Following are ex-
der of the Act shall not be affected. This gives rise to a
cerpts from the syllabus:
presumption that Congress did not intend the validity
of the Act as a whole, or any part thereof, to depend
Section 244(c)(2) of the Immigration and Nationality
upon whether the veto clause of 244(c)(2) was invalid.
Act (Act) authorizes either House of Congress, by res-
This presumption is supported by §244's legislative his-
olution, to invalidate the decision of the Executive
tory. Moreover, a provision is further presumed sever-
Branch, pursuant to authority delegated by Congress to
able if what remains after severance is fully operative as
the Attorney General, to allow a particular deportable
a law. Here, §244 can survive as a "fully operative" and
alien to remain in the United States. Appellee-respon-
workable administrative mechanism without the one-
dent Chadha, an alien who had been lawfully admitted
house veto.
to the United States on a nonimmigrant student visa,
3. Chadha has standing to challenge the constitu-
remained in the United States after his visa had expired
tionality of 244(c)(2) since he has demonstrated "in-
and was ordered by the Immigration and Naturaliza-
jury in fact and a substantial likelihood that the judicial
tion Service (INS) to show cause why he should not be
relief requested will prevent or redress the claimed in-
deported. He then applied for suspension of the depor-
jury."
tation, and, after a hearing, an Immigration Judge,
4. The fact that Chadha may have other statutory
acting pursuant to $244(a)(1) of the Act, which autho-
relief available to him does not preclude him from chal-
rizes the Attorney General, in his discretion, to suspend
lenging the constitutionality of §244(c)(2), especially
deportation, ordered the suspension. and reported the
where the other avenues of relief are at most specula-
suspension to Congress as required by §244(c)(1).
tive.
Thereafter, the House of Representatives passed a Res-
5. The Court of Appeals had jurisdiction under
olution pursuant to $244(c)(2) vetoing the suspension,
§106(a) of the Act, which provides that a petition for
and the Immigration Judge reopened the deportation
review in a court of appeals "shall be the sole and exclu-
proceedings. Chadha moved to terminate the proceed-
sive procedure for the judicial review of all final orders
ings on the ground that 244(c)(2) is unconstitutional,
of deportation
made against aliens within the
but the judge held that he had no authority to rule on its
United States pursuant to administrative proceedings"
constitutionality and ordered Chadha deported pursu-
under 242(b) of the Act.
ant to the House Resolution. Chadha's appeal to the
6. A case or controversy is presented by these cases.
Board of Immigration Appeals was dismissed, the
7. These cases do not present a nonjustifiable politi-
Board also holding that it had no power to declare
cal question on the asserted ground that Chadha is
$244(c)(2) unconstitutional. Chadha then filed a peti-
merely challenging Congress' authority under the Nat-
tion for review of the deportation order in the Court of
uralization and Necessary and Proper Clauses of the
Appeals, and the INS joined him in arguing that
Constitution. The presence of constitutional issues with
244(c)(2) is unconstitutional. The Court of Appeals
significant political overtones does not automatically
held that $244(c)(2) violates the constitutional doctrine
(Continued on page 314)
December, 1983
291
Supreme Court Decision
From page 291
invoke the political question doctrine. Resolution of lit-
igation challenging the constitutional authority of one
of the three branches cannot be evaded by the courts
simply because the issues have political implications.
8. The congressional veto provision in 244(c)(2) is
unconstitutional.
(a) The prescription for legislative action in Art. I,
§1-requiring all legislative powers to be vested in a
Congress consisting of a Senate and a House of Repre-
sentatives-and §7-requiring every bill passed by the
House and Senate, before becoming law, to be pre-
sented to the President, and, if he disapproves, to be
repassed by two-thirds of the Senate and House—rep-
resents the Framers' decision that the legislative power
of the Federal Government be exercised in accord with
a single, finely wrought and exhaustively considered
procedure. This procedure is an integral part of the
constitutional design for the separation of powers.
(b) Here, the action taken by the House pursuant
to 244(c)(2) was essentially legislative in purpose and
effect and thus was subject to the procedural require-
ments of Art. I, §7, for legislative action: passage by a
majority of both Houses and presentation to the Presi-
dent. The one-House veto operated to overrule the At-
torney General and mandate Chadha's deportation.
The veto's legislative character is confirmed by the
character of the congressional action it supplants; i.e.,
absent the veto provision of §244(c)(2), neither the
House nor the Senate, or both acting together, could
effectively require the Attorney General to deport an
alien once the Attorney General, in the exercise of legis-
latively delegated authority, had determined that the
alien should remain in the United States. Without the
veto provision, this could have been achieved only by
legislation requiring deportation. A veto by one House
under 244(c)(2) cannot be justified as an attempt at
amending the standards set out in $244(a)(1), or as a
repeal of $244 as applied to Chadha. The nature of the
decision implemented by the one-House veto further
manifests its legislative character. Congress must abide
by its delegation of authority to the Attorney General
until that delegation is legislatively altered or revoked.
Finally, the veto's legislative character is confirmed by
the fact that when the Framers intended to authorize
either House of Congress to act alone and outside of its
prescribed bicameral legislative role, they narrowly and
precisely defined the procedure for such action in the
Constitution.
314
.
Scope of Veto
The
Legislative
Provisions
Veto
A
NUMBER OF LAWS containing legislative veto provi-
Surveys of Watershed Areas for Flood Prevention,
sions have expired, while others have recently
1962
been enacted or are in the legislative process. Follow-
(One committee approval)
ing is a compilation made from Congressional studies
Trade Expansion Act of 1962
of some statutes in effect in June 1983 with legislative
(Two House approval)
veto provisions. Some statutes have more than one
Naval Petroleum and Oil Shale Reserves, 1962
such provision or have had them modified by amend-
(Consultation with two committees)
ments adopted since the original law was enacted.
Agricultural Trade Development and Assistance Act
Irrigation on Indian Reservation Projects, 1936
Amendments, 1964
(Two House approval)
(One committee disapproval)
Strategic Materials Stockpiling Act Amendments,
Authorization of Construction, Repair and Preserva-
1946
tion of Certain Public Works, 1966
(Two House approval)
(Two committee approval)
Government Printing and Binding Amendment, 1949
Postal Revenue and Federal Salary Act of 1967
(Joint Committee on Printing approval)
(Disapproval by one House or enactment of law)
Federal Civil Defense Act of 1950
National Traffic and Motor Vehicle Safety Act
(Two House disapproval)
Amendments 1970
Immigration and Nationality Act of 1952
(Two House approval)
(One House disapproval)
Defense Production Act of 1950, Amendment, 1970
Atomic Energy Act of 1954
(Two House disapproval)
(Two committees may waive waiting period)
Federal Pay Comparability Act of 1970
Watershed Protection and Flood Prevention Act
(One House approval)
Amendment, 1956
Indian Claims Judgments Funds, 1973
(One committee disapproval)
(Two committee approval and one House disap-
Small Reclamation Projects Act Amendment, 1957
proval)
(One committee disapproval)
War Powers Resolution, 1973
Atomic Energy Act Amendment, 1957
(Continued use of armed forces subject to approval
(Two committees may waive waiting period)
by enactment of law, or removed by concurrent reso-
Immigration and Nationality Act Amendments, 1957
lution.)
(One House disapproval)
Amendments to the Mineral Leasing Act of 1920, 1973
Atomic Energy Act Amendment, 1958
(Two House disapproval)
(Two House disapproval)
Department of Defense Authorizations, 1974
National Aeronautics and Space Act of 1958
(One House disapproval)
(Two House disapproval)
District of Columbia Self-Government Act, 1973
Defense Reorganization Act
(Two House disapproval; and one House disap-
(One House disapproval)
proval)
Public Buildings Act of 1959
Public Works, Rivers and Harbors and Flood Control
(Two committee approval)
Authorization, 1974
Foreign Assistance Act of 1961
(One committee disapproval)
(Two House disapproval)
Congressional Budget and Impoundment Control Act
Government-Owned Utilities Used for Bureau of In-
of 1974
dian Affairs, 1961
(One House disapproval)
(Two committee approval)
Department of Defense Authorizations for 1975
Restoration to Indian Tribes of Unclaimed Payments,
(Two House disapproval)
1961
Atomic Energy Act Amendments, 1974
(Two committee approval)
(Two House disapproval)
292
Congressional Digest
Education Amendments, 1974
International Security Assistance Act of 1977
(One committee disapproval; and two House disap-
(Two House disapproval)
proval)
Wartime or National Emergency Presidential Powers,
Conveyance of Submerged Lands to Guam, Virgin Is-
1977 (Two House disapproval)
lands and American Samoa, 1974
Department of Energy Act of 1978-Civilian Applica-
(Notification by two committees)
tion (One House disapproval; and approval by two
Federal Election Campaign Act Amendments of 1974
Houses)
(One House disapproval)
Nuclear Non-Proliferation Act of 1978
Atomic Energy Act Amendments, 1974
(Two House disapproval)
(Two House disapproval)
Outer Continental Shelf Lands Act Amendments of
Foreign Assistance Act of 1974
1978 (One House disapproval; and two House disap-
(Two House disapproval)
proval)
Federal Nonnuclear Research and Development Act of
Civil Service Reform Act of 1978
1974
(Two House disapproval)
(One House disapproval)
Airline Deregulation Act of 1978
Federal Rules of Evidence 1948
(One House disapproval; and two House approval)
(One House disapproval)
Full Employment and Balanced Growth Act of 1978
Trade Act of 1974
(Two House modification)
(One and two House approval and disapproval; and
Education Amendments of 1978
consultation with committees)
(Two House disapproval)
Export-Import Bank Amendments
Surface Transportation Assistance Act of 1978
(Two House approval)
(Two House approval)
Amendment to Social Security Act Child Support Pro-
Natural Gas Policy Act of 1978 (Two House disap-
visions
proval and approval; and one House disapproval)
(One or two House disapproval)
Emergency Interim Consumer Product Safety Stan-
Board for International Broadcasting Authorization
dard Act of 1978 (Two committee approval)
for Fiscal Year 1976
Federal Trade Commission Improvements Act of 1980
(Two House disapproval)
(Two house disapproval)
Sinai Early Warning System Agreement, 1976
Department of Education Organization Act, 1979
(Two House disapproval)
(Two House disapproval)
International Development and Food Assistance Act
Export Administration Act of 1979
of 1975
(Two House approval and disapproval)
(One House disapproval; two House approval; and
Energy Security Act
two committee approval)
(21 separate legislative veto provisions)
Energy Policy and Conservation Act
District of Columbia Retirement Reform Act, 1979
(One House disapproval; and two House approval)
(One House disapproval)
Home Mortgage Disclosure Act of 1975
Multiemployer Pension Plan Amendments Act, 1980
(Two House approval)
(Two House disapproval)
Naval Petroleum Reserves Production Act, 1976
Marine Protection Research and Sanctuaries Act Au-
(One House disapproval)
thorization, 1980 (Two House disapproval)
International Security Assistance and Arms Export
Farm Credit Act Amendments of 1980
Control Act of 1976
(Two House disapproval)
(Two House disapproval)
Comprehensive Environmental Emergency Response,
National Emergencies Act, 1976
Compensation, and Liability Act, 1980
(Two House approval)
(Two House disapproval or one House disapproval
Federal Land Policy and Management Act of 1976
that is not disapproved by the other House)
(Two House disapproval)
Veterans' Rehabilitation and Education Amendments
Emergency Unemployment Compensation Extension
of 1980 (Approval by Director of the Office of Tech-
Act of 1977
nology Assessment)
(Two House approval)
National Historic Preservation Act Amendments of
International Navigational Rules Act of 1977
(Two House disapproval)
(Continued on page 314)
December, 1983
.
293
Scope of Veto Provisions
From page 293
1980 (Two House disapproval)
International Security Development Cooperation Act
of 1980
(Two House disapproval)
Coastal Management Improvement Act of 1979
(Two House disapproval)
Federal Insecticide, Fungicide and Rodenticide Exten-
sion Act, 1980 (Two House disapproval)
Health Planning Amendments of 1979
(Consultation with two committees)
Omnibus Reconciliation Act of 1981
(One House disapproval; two committee approval;
and disapproval by two Houses or disapproval by
one House that is not rejected by the other House)
Department of Defense Authorization Act, 1982
(Two House disapproval)
Agriculture and Food Act of 1981
(Two House committee approval)
Appropriations-Department of the Interior, 1981
(Two House committee approval)
International Security and Development Cooperation
Act of 1981 (Two House disapproval)
Urgent Supplemental Appropriations Act, 1982
(Two House committee approval)
Department of Housing and Urban Development-In-
dependent Agencies Appropriation Act, 1983
(Two House committee approval)
Department of Housing and Urban Development-In-
dependent Agency Appropriation Act, 1983
(Two House committee approval)
Continuing Appropriations, Fiscal Year 1983
(Two House committee approval)
Further Continuing Appropriations, 1983
(Two House approval)
Department of the Interior and Related Agencies Ap-
propriation Act, 1983
(Two House committee approval)
Nuclear Waste Policy Act of 1982
(One House disapproval)
Following are laws recently enacted which contain
legislative veto provisions:
Department of Housing and Urban Development-
Independent Agencies Appropriation Act, 1984.
Legislative Branch Appropriations, 1984.
National Aeronautics and Space Administration
Authorization for FY83.
Supplemental Appropriation Act of 1983.
Department of Transportation and Related Agen-
cies Appropriations Act, 1983.
Congressional Digest
Recent Action
The
Legislative
in the Congress
Veto
T
HE IMPACT OF THE SUPREME COURT DECISION on the
then have to override an almost certain presidential
legislative veto is under study in the Congress. Ac-
veto.
tivity has centered largely on certain major laws, each
involving intricate questions.
War Powers Resolution
The War Powers Resolution (see "The War Powers
Arms Sales
Act Controversy, Pro and Con," the November 1983
One area where Congress has had great influence in
issue of The Congressional Digest) has two provisions
recent years, has been in the Arms Export Control Act.
which may require examination in light of the new de-
Amended in 1976 as Public Law 94-329, the law per-
cision. Section 5(c) provides that "at any time that
mits Congress to veto most foreign arms sales through
U.S. Armed Forces are engaged in hostilities outside
a concurrent resolution within 30 days of receiving a
the territory of the United States, its possessions and
Presidential report. The veto provision "applies to in-
territories without a declaration of war or specific stat-
dividual weapons or military equipment worth $14
utory authorization, such forces shall be removed by
million or more." Congress has never vetoed an arms
the President if the Congress so directs by concurrent
sale, although attempts to block sales to Saudi Arabia
resolution." Because a concurrent resolution does not
occurred in 1978 and 1981. Because the veto has be-
require the signature of the President, it appears to
come an integral part of the Arms Export Control Act,
some to be invalidated under the reasoning applied by
there is concern that the Supreme Court's decision
the Court's decision.
would render the act invalid.
Section 5(b) of the War Powers Resolution requires
the President to "terminate the use of armed forces re-
Byrd Bill
ported or required to be reported under Section 4(a)(1)
Last April, Senate Minority Leader Robert C. Byrd,
after 60 days unless Congress declares war, extends the
West Virginia, Dem., introduced S. 1050 prohibiting
period for 30 days, or enacts a specific authorization
"the President from making foreign arms sales valued
for such use." Since this declaration would be made by
at $200 million or more unless Congress approves by
a joint resolution of Congress or a separate bill requir-
passing a joint resolution." Congressional sources sug-
ing the signature of the President, it should not be af-
gest that the Byrd
"
proposal might avoid the con-
fected by the Chadha decision.
stitutional questions raised by the Supreme Court's
The War Powers Resolution also contains a "sepa-
decision because it would require action by both the
rability clause" in Section 9, which states that "if any
President and Congress on arms sales." In effect, the
provision of the resolution is held invalid, the remain-
Supreme Court may have told Congress that it could
der of the joint resolution and the application to any
not veto an action-such as an arms sales-without
other circumstances shall not be affected." On July 20,
first passing a bill or joint resolution which would be
1983, Edward Schmults, Deputy Attorney General, re-
submitted to the President for his signature or veto.
ported to the House Committee on Foreign Affairs,
According to one critic, the Byrd proposal would
that "the Supreme Court's decision does not affect any
"cause even greater practical problems for the Presi-
of the procedural mechanisms contained in the War
dent than the existing legislative veto. By banning
Powers Resolution other than that procedure specified
large arms sales unless Congress passed a joint resolu-
in Section 5(c), which purported to authorize Congress
tion approving them, the proposal would in effect cre-
to effectively recall our troops from abroad by a resolu-
ate a one-house veto: if either House of Congress failed
tion not presented to the President for his approval or
to pass such a resolution, a proposed arms sale would
disapproval."
be killed." Another alternative being considered
would permit the President to make arms sales unless
Reagan Administration Position
Congress should pass a joint resolution to block it. In
Deputy Secretary of State Kenneth W. Dam also
effect, this proposal would need a two-thirds majority
stated that the reporting and consultation provisions
from both Houses to block the sale. Congress would
of the War Powers Resolution would not be affected by
294
Congressional Digest
the Supreme Court's decision in the Chadha case. and
would not require the President's signature. Florio
the Reagan Administration does not intend to change
noted that the Levitas amendment would turn Federal
its practice under them. He stated that "the provision
agencies into mere advisory bodies which would allow
asserting a right of Congress by concurrent resolution
business lobbyists to kill any rule they desired through
to order the President to remove troops was clearly un-
congressional inaction. Florio called the amendment
constitutional, but would have no significant impact
"a great opportunity for all the special interests to stop
on the conduct of the policy." In his view, the issue of
regulations from taking effect. You will be politicizing
the time limit set on President's use of troops abroad
the rule-making process, when the whole justification
did not fall within the scope of the Supreme Court's
(for regulatory agencies) is for the expertise of the
decision.
agency to come into play."
Chairman Clement J. Zablocki, Wisconsin, Dem., of
Countering, Levitas called the vote "an isolated de-
the House Committee on Foreign Affairs, said after
feat," stating "I'm satisfied that when the issue re-
the Court handed down its decision that the War
turns
those of us who think elected officials ought
Powers Resolution might be remedied by replacing the
to make these decisions will prevail." Florio also noted
concurrent resolution veto provision with a joint reso-
that the Congress does not have either the time nor the
lution. He also noted that a President would almost
ability to act as a Federal regulatory agency. But Levi-
certainly veto any joint resolution calling for him to
tas said that he would limit the veto to approximately
withdraw U.S. military forces abroad. Congress would
200 rules each year dealing with economic issues. He
then be forced to find the two-thirds majority in both
said that "special interests also have great influence
Houses to be able to enact such a resolution, overrid-
with agency rule-makers."
ing his veto.
The full effect of the Supreme Court's decision on
Federal Trade Commission
the War Powers Resolution will remain in question un-
The next battle likely to take place will be whether
til it is further tested by the courts. The Resolution
to subject the Federal Trade Commission (FTC) to a
comes under a different category than immigration
legislative veto. The Supreme Court in July had thrown
legislation, which prompted the Supreme Court's deci-
out an earlier veto of a controversial FTC rule related
sion. The War Powers Resolution deals with a particu-
to used-car sales. In 1980, Congress included a veto
lar situation in which the Constitution gives Congress
provision in the FTC authorization (Public Law 96-
specified powers-in particular to declare war and
252), allowing it to block any regulation of the agency
raise an army and navy; and the President other speci-
if both Houses passed a resolution of disapproval. The
fied powers: in particular, to be Commander-in-Chief.
only FTC rule to be so vetoed was in 1982, a proposal
The Senate Foreign Relations Committee held hear-
requiring used-car dealers to disclose information on
ings on the future of the War Powers Resolution in
auto defects before a sale. Last year, the constitution-
light of the Chadha decision on September 29.
ality of the used-car rule veto was challenged. On Oc-
tober 22, 1982, the United States Court of Appeals for
Hazardous Waste
the District of Columbia overturned the veto. The Sen-
On November 3, the House voted 204 to 189 against
ate has appealed the decision to the Supreme Court.
an amendment sponsored by Elliott H. Levitas, Geor-
gia, Dem., to the Resource Conservation and Recovery
Expiring Authority
Act. The Levitas amendment would have required
Congress is now allowing certain authority to expire
congressional approval for various hazardous-waste
which had been previously delegated to the President,
regulations. The Levitas amendment provided an "ap-
subject to a legislative veto. A number of recently in-
proval veto," under which proposed Federal rules
troduced reauthorization bills, instead of renewing
would not take effect unless they were to be approved
that delegated authority, would require the President
by both Houses of Congress and the President. The op-
to submit legislation if he intends to take actions that
position, led by Rep. James J. Florio, New Jersey,
he otherwise could have taken earlier under the expir-
Dem., has sought a "disapproval resolution," which
ing delegated authority.
December, 1983
295
Act Now to
Legislative Veto?
CON
by Hon. Wendell H. Ford
United States Senator, Kentucky, Democrat
From an address delivered on the floor of the United States Senate on July 19,
1983.
A
S THE SENATE COMMERCE COMMITTEE is the authorizing committee for many
of the regulatory agencies, the members of the committee have been faced
with the controversy over the legislative veto for a number of years. The issue,
from this perspective, is not how to rein in the executive branch and the Presi-
dent through the War Powers Act or the Budget Act; rather, the issue has been
I have been an
how to control unelected, unaccountable Federal officials in a constitutional
outspoken opponent of
and effective manner. Viewing the issue from this perspective as chairman and
the legislative veto
"
then ranking Democrat of the Commerce Committee's Consumer Subcommit-
tee, I have been an outspoken opponent of the legislative veto, as I believed this
procedure to be not only unconstitutional but also ineffective.
Therefore, I am pleased that on July 6, 1983, the Supreme Court gave further
breadth to its earlier June 23, 1983, ruling in the INS against Chadha case de-
claring the legislative veto unconstitutional. This latest Court action, affirming
lower court decisions striking a one-House veto provision in the Natural Gas Pol-
icy Act of 1978 and a two-House legislative veto in the Federal Trade Commis-
sion Improvements Act of 1980-hereinafter FTC Act of 1980-dooms all such
legislative vetoes.
In Chadha, the Court rejected out of hand many of the theories put forward
by my colleagues in arguing that the veto was necessary to control the agencies.
The Court said that the efficiency, convenience, or utility of such devices in fa-
"The Court decided that
cilitating the functions of Government were insufficient bases for the veto in the
the use of the veto was
face of explicit and unambiguous provisions prescribing the separate and dis-
a lawmaking action and
tinct functions of the branches.
must conform to the
The Court decided that the use of the veto was a lawmaking action and must
traditional lawmaking
"
conform to the traditional lawmaking process provided by article I, section 7 of
process
the Constitution to insure the separation of powers. The Court discussed the
importance of passage of legislation by both Houses of Congress, stating that
bicameralism assures careful consideration by the Nation's elected officials,
satisfies the "need to divide and disperse power in order to protect liberty," and
protects the respective interests of the small and large States.
But it was the Court's discussion of the presentment clause that spelled the
death knell for the FTC two-House veto, a veto that would have survived the bi-
cameralism requirement alone. The majority opinion said that presentment of
legislation to the President for his approval or disapproval provides a defensive
weapon against potential legislative intrusions on the powers of the Executive
or on ill-considered measures. It allows the presence of a national perspective
that might be provided by the one official elected by a national constituency.
As Senate floor manager of the FTC authorization in 1980, I stated during
(Continued on page 299)
December, 1983
297
CON
FORD, cont. from page 297
that debate on the legislative veto issue: "The only way Congress can be assured
that this agency-or, for that matter, any agency-is following through, is
through regular and vigorous oversight. If it is determined that Congressional
intent is not being met, then [legislative] steps must be taken to put the agency
back on the proper course."
Though the two-House legislative veto was finally attached to the FTC Act of
1980, I continue to believe there is no substitute for more carefully considered
statutes. I recognize this process imposes more work, some delay, and may be
politically more difficult. But let me offer as an example of just such a legislative
there is no substitute
approach the effort to define the term "unfair" in the FTC Act. The FTC has
for more carefully
had authority since the Wheeler-Lea amendment to the FTC Act in 1938 to pro-
considered statutes. "
tect consumers against "unfair or deceptive acts or practices." The Congress
had, through broad, ambiguous language, given five Commissioners the sweep-
ing power to regulate anything they believed to be, in their discretion, unfair,
but Congress became increasingly concerned in the 1970's about some FTC ac-
tions under this broad mandate. My distinguished colleague from Missouri,
Senator Danforth. and I wrote to request the FTC to develop a statutory defini-
tion of "unfair" to put boundaries around this term. The Senate Commerce
Committee collected outside views on the issue, held extensive hearings, and
proposed statutory language to better clarify and define the term. The commit-
tee also determined, through this process, to decline to further define the term
"deceptive acts or practices," since case law had placed limits on the term which
were deemed appropriately specific.
Though it is now almost 5 years since this process began, I feel certain that
the next FTC authorization bill to become law will contain this definition of "un-
fair." I am also pleased to note that Commissioners are already applying this
proposed analysis to form their opinions as to what is an unfair act, such as with
the recently considered credit practices rule.
"I am convinced that we
I contrast this slower, admittedly more tedious approach of reasoned law-
must refrain from a
making to that of the unconstitutional FTC congressional veto procedure. That
reactionary response to
procedure provided no opportunity for amendment, simply an up or down vote
the Supreme Court's
on a rule. Congress could find some aspects of a rule it liked and some it disliked
decision
but would be forced to weigh its likes and dislikes in an absolute way. Congress
could say no to what the agency did but could not take upon itself to say what
the agency should have done.
With the Supreme Court's recent decisions, Congress must revisit the issue
of its role in insuring responsible regulatory agencies. Finding a remedy for the
frustrations of a large and often times ineffective Federal Government is an im-
portant challenge.
I am convinced that we must refrain from a reactionary response to the Su-
preme Court's decision as we look at individual agency authorizations and at
proposed omnibus regulatory reform bills. Rather, we must focus our efforts on
strengthening the authorization process. Nor can we reasonably attempt the
task of reviewing each and every regulation for sufficient evidence. That is the
task of the courts.
The Supreme Court noted in the Chadha decision that provisions which re-
quired agencies to report to Congress and wait before implementing proposed
(Continued on page 301)
December, 1983
299
CON
FORD, cont. from page 299
actions are constitutional. The other restriction adopted by the House during
the CPSC debate provided such a report and wait provision-no agency rule
could take effect for a certain period of days. In this time, Congress could fol-
low a formalized procedure to enact a joint resolution of disapproval. Although
I will work to insure
this procedure, like the veto, provides only for an up or down vote, it passes
that any new agency proce-
Constitutional muster by requiring a Presidential signature. This process per-
dures enacted in response
mits Congress to focus its attention on those matters that are truly controversial
to the recent Supreme
or that constitute an abuse of authority.
Court decisions strikes a
As the Senate considers authorization legislation for the FTC and the CPSC
proper balance
in the next few months, I will work to insure that any new agency procedure en-
acted in response to the recent Supreme Court decisions strikes a proper bal-
ance between improved agency accountability while the traditional regulatory
process is maintained. However, any legislative response must be coupled with
regular and periodic oversight of the agencies, for there simply can be no legis-
lative substitute for this congressional responsibility.
by Hon. Neal Smith
United States Representative, Iowa, Democrat
From remarks delivered on the floor of the U.S. House of Representatives on
June 27, 1983.
I
AM SURPRISED BY THE REACTION that the news media and some Members of
Congress have given to the Supreme Court's decision declaring the legislative
veto unconstitutional. It should not have surprised anyone and the decision
does not have the importance that has been attached to it.
"The legislative veto is a
I always thought it was rather elementary that it was unconstitutional
rather sterile tool
"
because a provision in a bill permitting the Congress to veto executive depart-
ment action either means: First, that legislative power was delegated; or sec-
ond, exercising the veto would be an usurpation of executive power. Those who
defended the constitutionality and logic of the legislative veto who were not
caught on one argument, were caught on the other.
The legislative veto is a rather sterile tool anyway because time constraints
are so great that it makes it impossible for Congress to exercise the veto power
on thousands of executive actions effectively, and it has not been effective. It
has been used only a very few times.
The decision did not shift power significantly as has been indicated because
the legislative veto was of little importance compared to the power of the purse
which still remains in Congress. By attaching limitations to appropriations
bills limiting the use of Federal funds in appropriations bills that the President
must sign to secure money he wants for programs, rules, regulations, and ac-
tions by departments can be rendered null by denying the use of any money for
the next year to administer them. Appropriations which originate in the House
(Continued on page 303)
December, 1983
301
CON
SMITH, cont. from page 301
of Representatives are for 1 year at a time. Therefore, even if a department puts
a rule or regulation into effect, it could be used only until the next appropria-
tions bill is passed and some of the limitations have applied to prevent regula-
tions being put into effect during the period the rule is being considered and
the power of the
before it is effective. As an example of effectiveness of limitations on an appro-
purse not only has been
priations bill and the power of the purse, I personally have sponsored amend-
the principle tool to
ments to three different appropriations bills which killed three embargoes.
control excesses in the
Those amendments prohibited the use of funds to administer the embargoes,
executive branch of the
so they were effectively dead. There are hundreds of other examples passed
Government but also still
with the concurrence of the majority of the House and Senate each year. I am
remains that principle
very surprised that the news media and some Members of Congress seemed to
effective tool.
have completely missed this perspective and overlooked the fact that the power
of the purse not only has been the principal tool to control excesses in the execu-
tive branch of the Government but also still remains that principal effective
tool.
by Hon. John J. Moakley
United States Representative, Massachusetts, Democrat
From an address presented on the floor of the U.S. House of Representatives
on June 29. 1983.
T
HE SWEEPING SUPREME COURT decision in Chadha against INS. invalidating
all forms of the legislative veto deals with a matter so focused at the inner
the decision is a
subtleties of relations between the executive and legislative branches, that it is
significant one and will
hardly surprising that much public, official, and media discussion has substan-
force some very funda-
tially distorted both the significance and the effect of the decision. In some
mental changes in the
respects, the Chadha decision means a good deal more than has been recog-
manner in which our
nized yet and, in others that have caused undue alarm, may mean a good deal
Government operates. "
less.
Although my position has been characterized in opposition to the legislative
veto, I think it is very important to understand that no one is really an opponent
of the veto; Members have simply had honest differences on how and where it
should be applied. Every President since Herbert Hoover has argued that the
veto is unconstitutional, yet each of them has proposed a veto at one point of
another.
The question for Members has been the application of the veto in particular
contexts. And I suspect that every Member has voted for and against the con-
cept. So the Supreme Court decision should delight no one. Certainly the deci-
sion is a significant one and will force some very fundamental changes in the
manner in which our Government operates. But assertions that the decision
strikes a devastating blow to the Congress as regards its power relative to the
President misgauges the long range effects of the way Congress will handle this
new balance in future legislation. But it also misjudges even the immediate con-
(Continued on page 305)
December, 1983
303
CON
MOAKLEY, cont. from page 303
sequences of what the decision really means with respect to about 300 statutes
touched by it.
The legislative veto has been in use for over 50 years and both Congress and
the President have found the device convenient. Typically the way the device
has come into being is that Congress and the President reach an agreement that
the executive will be granted a specific power, which would not exist except for
the enactment of the law, and Congress ties a limitation to that delegation-that
the executive decision will be subject to a form of congressional nullification. It
"Increasingly
there
is important to note that the legislative record is rather clear that all adminis-
has been alarm about the
trations, notwithstanding their official posture of opposition to the veto, have
proliferation in the uses to
been the authors of such compromises nearly as often as Congress.
which the legislative veto
In general, the approach is rather convenient. The President obtains some
has been put. "
political advantage in that the fundamental principle of legislative physics-in-
ertia-is turned to his advantage. Instead of sending up a recommendation and
waiting for the whole process of enactment to run its course through subcom-
mittees, committees, and the floor in each House and through conference, the
executive issues a proposed regulation-or some other form of executive action
-and, if any step of the nullification process falters during a set number of
days, the matter becomes effective as the functional equivalent of law. Con-
gress, for its part, retains roughly the same degree of control it would have had
in the normal legislative process but structures the situation, where speed or
flexibility is needed, to compensate for its own institutional weaknesses.
In this context, the veto works best when it is enacted as part of a negotiated
agreement between the branches to improve management flexibility or
response to emergency situations. The best examples of the former are laws
which have given the executive authority to temporarily defer spending or im-
plement less than departmental reorganizations, subject to congressional nulli-
fication. The War Powers Act is the best and strongest example of the latter.
in the past few years,
Historically, the courts have been very reluctant to intervene in these kinds of
congressional exuberance
with the device has led
political agreements between the other branches. Indeed, as recently as 1978,
the Supreme Court allowed to stand a lower court ruling which affirmed a law
to the birth of proposals
which had allowed the President to adjust Federal pay scales annually, subject
for a generic legislative
veto
to a legislative veto.
Increasingly, however, there has been alarm about the proliferation in the
uses to which the legislative veto has been put. The veto is on weakest grounds
when foisted by Congress for its own convenience or inability to face hard
choices. And such uses have become disturbingly more common in recent years
than the cautious power sharing agreements between the branches which gave
birth to the device.
And suddenly, in the past few years, congressional exuberance with the
device has led to the birth of proposals for a generic legislative veto-a pro-
posed law which would give Congress the power to review and nullify each regu-
lation issued by the entire Government, about 7,000 a year. The issue reach a
head last year when the Senate passed the proposal 69 to 25. A similar House
proposal, which was not acted on, was cosponsored by a substantial majority of
the House.
The results of such a proposal could have been disturbing and the potential
(Continued on page 307)
December, 1983
305
CON
MOAKLEY, cont. from page 305
for genuine paralysis in entire, important segments of the regulatory process
was the great risk posed by a broad, generic veto.
And, unlike the hundreds of specifically linked agreements enacted since
1932, a generic veto, I believe, is nothing more or less than an unconstitutional
effort to turn the entire process of National Government on its head, trans-
ferring to each branch the functions for which it has the least expertise and
legitimacy.
generic veto
is
It was becoming increasingly clear that the use of the legislative veto was a
nothing more or less than
runaway train and there was increasing doubt of any ability to restrain the
an unconstitutional effort
device to its traditional and accepted uses. It was in response to this trend, I
to turn the entire process
feel, that the Supreme Court has now been forced to intervene in a matter it had
of National Government
successfully sought to avoid deciding for a generation.
on its head
In this regard, the decision should not be viewed as a disaster or as a victory
for anyone. Congress, admittedly, has lost a tool which has, in its better appli-
cations, proved useful and efficient. But, by restraining Congress from immers-
ing itself in every item of regulation and adjudication, the court has saved Con-
gress from drowning in detail it lacks the institutional capacity to manage, and
freed it to act within the scope of its legitimate role for shaping national policy.
Clearly, the Chadha decision will force vast institutional adjustments to be
made by Congress to prepare itself to work effectively under this new arrange-
ment but I sincerely believe the long term effects could be salutory for Con-
gress, the President and the Nation.
In the long run, the Congress will be strengthened in relation to the Presi-
dent, the bureaucracy, and the courts. It will be forced to write laws with greater
specificity. Far less substance will be left for regulatory or judicial interpreta-
tion and powers of a legislative character will be delegated with narrower limi-
tation both as to scope and duration.
But, I believe that initial discussion of the decision has even more significantly
"In the long run, the
misjudged the short-term effects. The specific decision of the court applies to a
Congress will be strength-
single provision of the immigration laws and is correctly characterized as having
ened in relation to the
found that provision unconstitutional. To the extent that it is interpreted as hav-
President, the bureaucracy,
ing shifted power from the legislative branch to the executive, however, that is
and the courts.
correct only because the Court was able, in this case, to make two findings; the
operative language of the ruling is, "We hold that the Congressional veto provi-
sion in section 244(c)(2) is severable from the Act and that it is unconstitutional."
The grounds on which the Court held the veto unconstitutional are so broad
as to make clear the intention of the Court that its decision would govern lower
courts in the review of more than 300 provisions of law that have used the de-
vice-a review that will probably take a decade or more.
It seems doubtful that any of these 300 laws will survive subsequent chal-
lenge; in the Chadha decision, the Supreme Court has left itself and the lower
courts almost no room to maneuver on that matter.
As the courts begin to sort out the 300 remaining laws, Chadha will turn out
to have been a rather exceptional case and the finding of severability will be im-
possible in the majority of cases.
Under a 1967 law, previously noted, Congress gave the President authority to
revise the Federal pay schedules annually, subject to congressional disapproval.
(Continued on page 309)
December, 1983
307
CON
MOAKLEY, cont. from page 307
On the same constitutional basis on which Chadha was later decided, a group
of Federal jurists sued for a pay raise proposed by the President but disap-
proved by Congress. The court ruled that it was inconceivable that Congress
would have given the President the power to adjust pay if the determination
were not subject to congressional review. The court was able to rule that the two
matters were not severable and, if the veto of the President's authority was un-
constitutional, that authority would fall with it. As a result, it was possible to
hold that no claim existed without reaching the constitutional merits and, on
"I think that this model
appeal, the Supreme Court declined to review the case.
is likely to be repeated
I think that this model is likely to be repeated in most court reviews stemming
in most court reviews
from the Chadha decision. And the manner in which it is repeated will satisfy
stemming from the
no one.
Chadha decision.
At the end of the last session, an appropriation was made for the MX missile
but it could be spent only if Congress subsequently approved the release of the
money. The method by which that approval was made is clearly overturned by
the Chadha decision and the history of the law is that the appropriation would
not have been made in the absence of the review. The review provision was
adopted as an amendment that rejected a straight appropriation. And so the
only proper legal course open to the President at this moment to handle MX
funding is to come to Congress again for an appropriation everyone already
thought he had.
The same situation will hold equally true for agencies and other intrumental-
ities of the Federal Government who now may think the Chadha decision frees
them from congressional interference.
Those who would argue that the power of the D.C. City Council to make laws
is severable from the congressional review of those laws will find little comfort in
the legislative history of the enactment of home rule legislation and will find
that issue further complicated by a specific constitutional requirement that
Congress "exercise exclusive legislation in all cases whatsoever, over such
"The severability of a
District
"
veto
leaves little
Undoubtedly some cases will be discovered where it will be possible to find
doubt that congressional
delegations severable from the congressional review mechanism applicable to
authority to overrule
determination under the delegation. But even in such cases, the effect of such
regulations of the Federal
shifts of power are likely to be smaller than expected.
Trade Commission was
A clear example would be the Federal Trade Commission. The severability of
voided by Chadha.
a veto, adopted in the context of a routine 1980 authorization, for an agency
established in 1914, leaves little doubt that congressional authority to overrule
regulations of the Federal Trade Commission was voided by Chadha.
But neither is there any question that the ability of the Commission to issue
rules at all, and indeed the very existence of the FTC beyond September 30,
depends entirely on the enactment of a pending authorization to which any
change in the Federal Trade Act is probably germane.
Likewise, the nuclear waste bill, adopted last year, authorized the Secretary
of Energy to fix a tax on nuclear generation of electricity to be placed in a trust
fund for the development of a nuclear waste repository, subject to a legislative
veto. During consideration of that bill, an amendment was adopted which re-
quired Congress to act by law, rather than a veto, to overturn State objections
(Continued on page 311)
December, 1983
309
CON
MOAKLEY, cont. from page 309
to siting decisions; the legislative history of the bill confirms that this change
was made in response to constitutional reservations about the veto. That
history, combined with an unequivocal severability clause, will probably permit
the tax to stand without congressional review. But, although the delegation of
taxing powers to the Executive is an extraordinary precedent, I am inclined to
believe that Congress will find it has lost rather little power. The Executive wins
freewheeling authority to tax utilities and deposit the proceeds in a trust fund.
But any expenditure from that fund remains totally subject to the congressional
I am inclined to
authorization and appropriation process and to any requirements-including
believe that Congress will
alterations in the tax-which Congress may choose to place in such bills.
find it has lost rather
In fashioning institutional remedies to the current situation, I would hope
little power.
that all branches of government have registered a valuable lesson to be learned
from Chadha. The process of government is-and quite legitimately-a politi-
cal one. And the Nation is best served when that process is allowed to work,
even with some tensions, with flexibility and a fair regard by each branch for
the legitimate role of the others.
Throughout their history, the appropriations committees have handled
routine adjustments during a fiscal year through a process known as repro-
gramings. The system is clearly not sanctioned by the Chadha decision, but
that does not matter because the system is beyond the reach of the courts as
long as both branches operate in good faith. Slightly simplified, the process is
that, if the administration wants to transfer money from one purpose to a
related one within the same appropriation, a letter is sent to the relevant sub-
committees of the House and Senate Appropriation Committees. The commit-
tees vote on the matter and the administration abides by the decision. The com-
mittees are aware that the administration is under no statutory obligation to
comply with arbitrary instructions and the administration is aware that appro-
"In 1974, Congress
responded to the constitu-
priations run for only a year and are usually revised to reflect any difficulties the
committees have noted during the prior appropriation. But there is no rule of
tional threat by extin-
Congress nor any Federal law on the subject for any court to review. It is simply
guishing impoundment
an accommodation based on restraint and a decent respect by each branch for
powers and replacing them
the responsibilities and privileges of the other.
with the comparatively
Where understood practices and comities between the branches are stretched
cumbersome congressional
beyond their understood terms, the branch damaged must be expected to re-
budget process.
spond with all the powers within its reach. The survival of our constitutional
system requires that self-defense.
Presidential impoundment powers had actually proven useful tools for fiscal
flexibility which served the purposes of both branches for a generation, under a
variety of Democratic and Republican Presidents and Democratic and Repub-
lican congressional chambers. But President Nixon dramatically abused the sys-
tem. Indeed, it is not unreasonable to characterize his actions as an attempt to
use impoundment to give the Presidency something the Constitution had delib-
erately denied it-an item veto of appropriation. In 1974, Congress responded
to the constitutional threat by extinguishing impoundment powers and replac-
ing them with the comparatively cumbersome congressional budget process.
The development of the War Powers Resolution is a case of obviously similar
retrenchment of an informal system stretched too far.
(Continued on page 313)
December, 1983
311
CON
MOAKLEY, cont. from page 311
The legislative veto, likewise, proved a useful and effective tool to both
branches to provide comparable administrative and regulatory flexibililty. But
the zealousness with which Congress attempted to toss it onto a variety of laws
began to shift the constitutional balance in such a manner that the Supreme
Court was forced to rule more sweepingly than it might have wanted, on an
issue I suspect it would have preferred not to address at all. Indeed, the record
is rather clear that in 1978 the Supreme Court "ducked" a case that presented
an opportunity to rule on the identical issue posed by the Chadha case.
"I am not distraught over
I am not distraught over the current situation, for reasons I think I have out-
the current situation, for
lined clearly. But as we survey the results of the Chadha decision, it is rather
reasons I think I have
clear that the courts' attempts to sidestep the issue in previous years was wise
outlined clearly.
and that the interests of neither the President nor Congress have been advanced
by this definitive constitutional resolution of the issues.
The immediate task involves all three branches and will be facilitated by the
greatest possible caution and restraint by each. I am not prepared, at this junc-
ture, to put forward specific recommendations.
No single committee of Congress can undertake these next steps. They in-
volve the entire institution, and I am aware of no committee which does not
have some law within its jurisdiction touched by Chadha. It is not necessary
that all these laws be repealed or modified by Congress, nor that most of them
become subject to judicial rulings.
In some cases, resolution will be forced on Congress. For example. at some
point an individual will appear before the District of Columbia courts, charged
with a matter which would not be a crime save that the previous Congress over-
turned revision of a certain D.C. criminal ordinance. The individual's attorneys
will argue his case on constitutional grounds. Under Chadha, the congressional
"The immediate task
review mechanism is likely to fall, although there are constitutional peculiarities
involves all three branches
unique to that veto which could separate the case. Whether the courts strike
and will be facilitated by
down only the veto or the entire home rule delegation, the Committee on the
the greatest possible
District of Columbia will face an inescapable responsibility to fashion a legisla-
caution and restraint by
tive remedy.
each."
In many cases, a decision will be made deliberately to avoid any clarification.
It is possible that Congress and the President will simply decide, for example,
to observe all the procedures of title X of the Congressional Budget and Im-
poundment Control Act, as a political accommodation. As I have stated, I ex-
pect that the congressional review of deferrals under title X would be struck
down under the Chadha decision. But the nonseverability of Presidential defer-
ral authority is sufficiently clear that neither branch has any incentive to test
the law. So long as both branches operate with some comity, and avoid any ef-
fort to use the deferral section to deal with entitlements, I am inclined to doubt
that their accommodation can ever come within reach of the courts.
The genius of our constitutional system is that the Presidency and Congress
will always exist and have to work together. In the resolution of any confronta-
tion, even one as sweeping as Chadha, the question is whether the two, in reach-
ing accommodations that replace the veto, have learned the lessons of recent
history and can apply them with common-sense.
December, 1983
313
Should Congress
PRO
Preserve The
by Hon. Dennis DeConcini
United States Senator, Arizona, Democrat
From an address presented on the floor of the United States Senate on July 27.
1983, on the occasion of his introduction of S.J. Res. 135, a joint resolution pro-
posing a Constitutional amendment for the establishment of a legislative veto.
A
S A LEGISLATOR, I am troubled by Chadha. I am troubled because Chadha
erodes the fundamental position of the legislative branch as the lawmaker
of our Government. We, the Members of Congress, must act to retain our power
to make the laws in this Nation.
My proposed amendment will restore congressional power over the lawmak-
ing functions of Government by enabling Congress to oversee the manner in
"We
must act to
which the executive branch uses any legislative power which Congress had dele-
retain our power to make
gated to it. My proposed amendment will allow Congress to exercise a one House
the laws in this Nation.
or two House legislative veto.
The text of this proposed amendment is very clear and concise. It states: "Ex-
ecutive action under legislatively delegated authority may be subject to the ap-
proval of one or both Houses of Congress, without presentment to the President,
if the legislation that authorizes the executive action so provides."
The amendment permits Congress to select a one or two House legislative
veto. Congress merely has to specify in the enabling legislation which sort of
veto it believes is appropriate.
Under this amendment, Congress would sanction independent and depart-
mental agency actions taken by the executive branch of our Government. Con-
gress would express these sanctions by a vote of approval or disapproval.
"Under this amendment,
This amendment would not permit Congress to veto actions constitutionally
Congress would sanction
assigned as executive functions. For example, a legislative veto on an inherently
independent and
executive function, such as that of initiating prosecutions, would not be per-
departmental agency
missible under the provisions of this amendment. Only executive action taken
actions taken by the
under power which was delegated from Congress to the executive branch would
executive branch of our
be subject to a legislative veto.
Government."
The amendment essentially restores the status quo which existed before the
Chadha decision.
In Chadha, the Supreme Court limited the doctrine of separation of powers,
as embodied in the Constitution, to the interaction of the bicameral and pre-
sentment clauses. That is the fundamental basis of my disagreement with the
Court's decision. I do not agree with the Supreme Court's interpretation that
these clauses of the Constitution incorporate the doctrine of separation of pow-
ers as the framers of the Constitution intended that doctrine to be interpreted
and employed.
I consider the spirit of the doctrine of separation of powers to flow through-
out the Constitution as a whole. To understand the constitutionality of any law,
we must look not only to the written words of the Constitution, but also to the
spirit which that document embodies.
(Continued on page 298)
296
Congressional Digest
PRO
DECONCINI, cont. from page 296
The requirement of presentment of legislative action to the President and the
process of bicameral action was founded upon the framers' fear of a concentra-
tion of power in one branch of the Government at the expense of another branch.
The framers perceived that the accumulation of all powers, be they legisla-
tive, executive, or judiciary, in the same hands, whether of one, a few or many,
and whether hereditary, self-appointed, or elective, may justly be pronounced
the very definition of tyranny. When the framers formed the Constitution, they
"It is the checks and
put into effect measures which they believed would curb abuses of power by
balances aspect of the
our Government.
doctrine of separation of
The framers created a three-branch Government to oversee our Nation's busi-
powers which the Chadha
ness. The judicial branch was created with the power to interpret our laws. The
decision so grievously
executive branch was empowered to enforce our laws. And the congressional
violates.
branch was deemed to be the lawmaking body within our Government.
The purpose of separating the authority of government is to prevent unneces-
sary and dangerous concentration of power in one branch. For that reason, the
framers saw fit to divide and balance the powers of government, so that each
branch would be checked by the others. Virtually every part of our constitutional
system bears the mark of this judgment. It is the checks and balances aspect of
the doctrine of separation of powers which the Chadha decision so grievously
violates. To understand this violation, we must review the development of our
Government during this century.
This Nation has entered a modern industrial and technological age. Problems
and needs of a national scope have required a congressional response. From the
end of the last century, with the establishment of the first independent agen-
cies, through the period of the Great Depression, with the creation of agencies
under Franklin Roosevelt's New Deal, to the post-Vietnam era, with the forma-
tion of consumer and environmental agencies, Congress has met the challenges
"For every statute
of the modern epoch.
Congress passes, the
Especially since the time of the New Deal, the modern bureaucracy has mush-
bureaucracies have put
roomed. Congress wisely recognized that many modern problems which required
out 18 regulations.
a response were in fact so complex in scope that only the creation of a special
administrative body could adequately address the situation. Consequently, Con-
gress delegated more and more of its legislative authority to Federal agencies.
The escalating growth of Federal agencies reveals itself in the statistics con-
cerning our Government. Between 1930 and 1939, a total of 154 Federal agen-
cies were created. This contrasts with 552 agencies created between 1970 and
1979. In 1939, agency regulations filled 5,007 pages of the Federal Register. In
1979, this number had increased to 77,468 pages. In 1982, Federal agencies
drafted approximately 105,000 pages of regulations.
For some time, the sheer amount of law made by agencies has surpassed in
quantity the lawmaking engaged in by Congress through the traditional legis-
lative process. For every statute Congress passes, the bureaucracies have put
out 18 regulations.
There is no question but that agency rulemaking is lawmaking in any func-
tional or realistic sense of the term. When agencies are authorized to prescribe
law through substantive rulemaking, the administrator's regulation is not only
due deference, but is accorded "legislative effect." These regulations bind courts
(Continued on page 300)
298
Congressional Digest
PRO
DECONCINI, cont. from page 298
and officers of the Federal Government. They may preempt State law. They
can grant rights to and impose obligations upon the public. In sum, they have
the force of law.
There have been approximately 300 veto provisions placed in legislation over
the past 50 years. The majority were enacted since 1970. It is not surprising that
the number of veto provisions has grown proportionally with the growth of
the agencies.
The history of the legislative veto makes it clear that it has not been a sword
"There have been approx-
which Congress has used to aggrandize itself at the expense of the other branches.
imately 300 veto provisions
Rather, the veto has been a means of defense. The veto reserves the ultimate au-
placed in legislation over
thority necessary if Congress is to fulfill its designated role as the Nation's law-
the past 50 years.
maker. The legislative veto is commonly seen to be a check upon rulemaking
by administrative agencies and upon broad-based policy decisions by the exec-
utive branch.
The legislative veto is more than efficient, convenient, and useful. It is an im-
portant, if not indispensable political invention that allows the President and
Congress to resolve major constitutional and policy differences. It preserves Con-
gress control over lawmaking.
The loss of the legislative veto means the reconsideration of hundreds of exist-
ing statutes. I foresee a trend toward more specific laws, granting very detailed
authority. Committee scrutiny will increase. The progress of needed legislation
will be slowed.
The absence of the legislative veto opens a battleground between Congress
and the President. We will nip-and-tuck over the appropriation of Federal
funds. We will do battle with an extensive use of riders to appropriation bills.
Confrontation will erupt over the deferral of appropriated funds.
Such extensive ramifications demonstate that this body needs to approve an
"The Constitution does
amendment to overturn the decision in Chadha. We must reinstate the legisla-
not contemplate total
tive veto as an effective congressional tool. We need the power to attach a legis-
separation of the three
lative veto to the broad delegation of powers which modern-day government re-
branches of government." "
quires. I believe that the doctrine of the separation of powers is violated by a
scheme of government which allows the delegation of legislative power to the
President and the departments under his control, but forbids a check on the
exercise of that power by Congress. I believe that the legislative veto is a mecha-
nism by which our elected representatives preserve their voice in the governance
of the Nation. It is consistent with the purposes of article 1 and the principles
of the separation of powers, which are reflected in that article and throughout
the Constitution.
The history of the separation of powers doctrine is a history of accommoda-
tion and practicality. The Constitution does not contemplate total separation of
the three branches of government.
A legislative veto over agency actions is a necessary check on the expanding
power of the agencies, both executive and independent, as they engage in exer-
cising authority delegated by Congress. As President Reagan suggested when
he was a candidate, it is the legislative veto which presents a way to check the
excesses in the Federal bureaucracy.
The Court's decision in Chadha, that all "lawmaking" must be shared by Con-
(Continued on page 302)
300
Congressional Digest
PRO
DECONCINI, cont. from page 300
gress and the President, ignores the fact that legislative authority is routinely
delegated to the executive branch and to the independent agencies. If congres-
sional action under the legislative veto technique is "legislative" action that must
"This amendment allows
be shared, why is the same true of executive or administrative promulgation of
Congress to reserve a
orders, rules, and regulations, which the legislative veto attempts to control.
check on legislative power
This amendment allows Congress to reserve a check on legislative power for
for itself.
itself. Absent the veto, the agencies receiving delegations of legislative power
may issue regulations having the force of law without bicameral approval and
without the President's signature.
The fact that the Supreme Court has handed down its opinion that the veto is
unconstitutional does not alter or dilute the original rationale which persuaded
Congress to adopt and utilize the legislative veto in the first place. The crux of
the issue is this: Who shall be responsible for the laws of the land?
In a democracy, it is the elected legislators which the electorate holds account-
able. I fear that without a legislative veto, fundamental policy decisions in our
society will be made not by the body elected by the people to make the laws, but
by appointed officials, not answerable to the public.
"The legislative veto
The legislative veto offers the means by which Congress could confer addi-
offers the means by which
tional authority, while preserving its own constitutional role. Under my amend-
Congress could confer
ment, the President would retain his power initially to approve or disapprove
additional authority, while
the delegation of the power which has a legislative veto attachment. Congress
preserving its own
could make a wholesale delegation of power to the executive branch, or it could
constitutional role.'
attach a veto provision to any delegation. Such policies would have to be worked
out between the President and the Congress.
This amendment would restore the ability of Congress and the President to
determine the best method to control the actions of the Executive and indepen-
dent agencies. Only within the last half century has the complexity and size of
the Federal Government's responsibilities grown so greatly that the Congress
must rely on the legislative veto as the most effective, if not the only means, to
insure their role as the Nation's lawmakers.
by Hon. James T. Broyhill
United States Representative, North Carolina, Republican
From an address presented on the floor of the U.S. House of Representatives
on June 29. 1983, in the course of a colloquy under previous order of the House
on the subject of the Supreme Court's Chadha decision concerning the legisla-
tive veto.
O
N THURSDAY, JUNE 23. 1983, the Supreme Court, in Immigration and Natural-
ization Service against Chadha, held the one-House veto unconstitutional
on the theory that the Congress legislated a result at variance with the decision
by the Attorney General on a deportation case in violation of the bicameralism
and presentment clauses of article I of the Constitution.
(Continued on page 304)
302
Congressional Digest
PRO
BROYHILL, cont. from page 302
Because of the Court's broadly written opinion, it is generally believed that
all legislative veto mechanisms, which are estimated to appear in approxi-
mately 200 Federal laws, are in jeopardy and will, in short order, be found to be
unconstitutional.
Indeed, a preliminary analysis of the statutes which fall under the jurisdic-
tion of the Committee on Energy and Commerce indicates that there are at least
24 statutes which contain some form of legislative veto.
As a strong proponent of the use of legislative veto as a means of curbing the
I feel that the leg-
excesses of overzealous bureaucrats, I feel that the legislative veto served as an
islative veto served as an
important device for Members of Congress to assure themselves and their con-
important device for
stituents that the laws enacted by the Congress were being carried out in a man-
Members of Congress
"
ner consistent with congressional intent.
Many important issues remain up in the air as a result of the Supreme Court's
decision. For example, what is the status of the congressional veto of the Federal
Energy Regulatory Commission's incremental pricing rule on natural gas? On
May 20, 1980, Congress disapproved by a vote of 369 to 34 a rule promulgated
by the Federal Energy Regulatory Commission which expanded the application
of incremental natural gas pricing from industrial boiler fuel users, the only in-
dustrial users of natural gas now covered by incremental pricing, to all indus-
trial facilities which use natural gas.
If incremental pricing is expanded to all industrial users of natural gas, this
could cost industries millions of dollars in increased energy costs. Those indus-
tries that can, may well switch to other fuels. If they do, this will increase the
fixed costs that residential natural gas consumers must bear, and increase oil
imports. The uncertainty facing industrial natural gas users is, itself, disrupt-
ing their ability to plan.
To cite another example, the question arises as to the status of the Federal
Trade Commission's used-car rule which both House of Congress overwhelm-
I doubt the effect of
ingly disapproved last Congress. Will the Federal Trade Commission simply
this opinion will go unan-
implement the rule despite the clear and unequivocable knowledge of congres-
swered by the Congress.'
sional intent on this particular issue? I hope not, but if the Federal Trade Com-
mission decides to act in this manner, legislative veto, as we know it, will not be
available to resolve the matter.
The Commission's used-car rule was disapproved by the Congress on the basis
that it did not comport with congressional intent in the Magnuson-Moss Act. It
is this very problem that the legislative veto was designed to deal with.
Indeed, an interesting theoretical question to ponder is whether the Federal
Trade Commission-or any other regulatory agency-will in the future be more
severely restricted in its mandate in the aftermath of the Supreme Court's deci-
sion in Chadha than it was before?
Some are interpreting the decision as significantly diminishing the power of
the Congress. I do not dispute this analysis. However, I doubt the effect of this
opinion will go unanswered by the Congress.
As those of us in the Congress continue to analyze this Court opinion, we
must search, in the interim, for an appropriate response to assure that author-
ity delegated by the Congress is exercised in a manner consistent with the will of
this representative body.
(Continued on page 306)
304
Congressional Digest
PRO
BROYHILL, cont. from page 304
Should we pull back on the amount of authority that has previously been del-
egated to the independent regulatory agencies and the executive branch? Or
should we try to limit our response to making the legislative veto pass constitu-
tional muster?
"Whatever course we take,
Another question comes to mind. Will the Democratic leadership inevitably
I believe a legislative
regret the new House rule respecting riders on appropriations bills that was insti-
response is necessary and
tuted at the beginning of this Congress? Without the authority to reverse execu-
proper."
tive decisions or agency rulemakings, Congress could well become increasingly
frustrated with their lack of ability to insure that congressional intent is followed
through the use of limiting language on appropriations measures. The House
rule which makes this avenue of approach practically impossible may well be-
come a deeply regretted one by its proponents.
It appears to me that the key question is, how should we, as elected officials,
respond to the elimination of this review. Whatever course we take, I believe a
legislative response is necessary and proper.
The ramifications of this decision are enormous. Congress must fully explore
alternative mechanisms to check the exercise of unbridled regulatory authority.
In the weeks and months ahead, I intend to participate fully in the debate as these
questions are explored and an appropriate answer is formulated.
All of our colleagues, of course, are aware of what has happened and there
"I have been a strong pro-
has been general discussion of this for the last several days. And because of this
ponent of the legislative
decision, it means that some 200 Federal laws, where we have inserted the legis-
veto
as a means of
lative response to agency actions, are in jeopardy and apparently have been ruled
curbing the excesses of
as unconstitutional.
overzealous bureaucrats."
I have been a strong proponent of the legislative veto. I have been a strong
supporter of this as a means of curbing the excesses of overzealous bureaucrats.
I do feel that the legislative veto has served as a most important device for Mem-
bers of Congress to respond to those agency and departmental decisions that
are made that affect our constituents to assure ourselves and our constituents
that the laws that we have enacted are being carried out in a manner that is con-
sistent with congressional intent.
by Hon. Elliott H. Levitas
United States Representative, Georgia, Democrat
From an address presented on the floor of the U.S. House of Representatives
on June 29, 1983, in the course of a colloquy on the subject of the Supreme
Court's legislative veto decision.
I
TAKE THIS TIME AS THE FIRST OPPORTUNITY since the Supreme Court decision in
the case of Immigration and Naturalization versus Chadha dealing with the
legislative veto to address some very important matters that have been thrust
upon us as a result of that decision. I am sorely tempted to describe and discuss
and comment on the merits or demerits of the decision itself. I will simply say
(Continued on page 308)
306
Congressional Digest
PRO
LEVITAS, cont. from page 306
that I commend to my colleague a careful reading of the dissenting opinion of
Justice White, whose opinion I believe, like many of the great dissents of Justice
Holmes and Brandeis, will one day become the law.
I will not comment on the merits of the majority opinion. That is, for the time
"The legislative veto
being, the position of the Court, and I view this rather as a player in a baseball
system evolved over a
game who has seen the umpire call out one of his teammates on a bad call, and
number of years and even
everybody in the stands saw that it was a bad call, but nevertheless the call was
predated the Constitution
out and it stands. That player cannot stand around for the rest of the game com-
of the United States in
plaining about the bad call.
the English parliamentary
What he does do is go forward and do his best and find other ways to win the
system.
ball game.
And that is what I think we must do and I think that is the juncture that we
are presently at.
The legislative veto system evolved over a number of years and even predated
the Constitution of the United States in the English parliamentary system.
But the system was simply a mechanism by which the Congress was enabled
to delegate to the President or to the executive branch of Government or to in-
dependent agencies, discretion to take certain actions, do certain things, with
the understanding that Congress, in the exercise of its plenary legislative power
under Article I of the Constitution, would be able to look at that action, made
pursuant to the delegation of authority, and if the Congress decided that that
action was excessive or contrary to the intent of Congress or arbitrary or oppres-
sive or, if you will, just plain stupid, it was within the province of the elected
branch of Government, Congress, to reject that action.
Beginning with the latter days of the Hoover administration when President
Hoover wanted to reorganize the Government, and proposed reorganization
"The bureaucrats, the
plans to the Congress to change the structure of Government, it was agreed to,
unelected officials in
provided there was a legislative veto.
Washington are not ac-
And over the course of the last 50 years this mechanism has increased.
countable to the people. "
Let me say that I am not at all sure that this has necessarily resulted in bet-
ter government.
It has, in some instances, resulted in Congress delegating powers which per-
haps it should not have delegated as broadly as it did, or even at all. But at least
the system was working in the sense that there was a balance between the powers
that were delegated on the one hand and those that were retained to the Con-
gress on the other hand.
The American people look to their elected Representatives and hold them
accountable for their government. The bureaucrats, the unelected officials in
Washington are not accountable to the people. They are in most instances not
even known by the people and have never suffered the inconvenience of running
for public office and do not have to stand for election every 2 or 6 years in order
to be evaluated on their performance.
So, it was with the Congress that this power lay. And in one fell swoop this Su-
preme Court decision has abolished this mechanism which, indeed, was work-
ing, and was retaining power for the people and in one fell swoop, eliminated
almost 200 laws that had been put on the books in the last 50 years.
Now, we find ourselves in a position where our system of government as it
(Continued on page 310)
308
Congressional Digest
PRO
LEVITAS, cont. from page 308
evolved is involved in a train wreck of government. And we now have the respon-
sibility to pick up the pieces and structure some new way of going forward in or-
der to balance off the powers of the respective branches of government and to
preserve for the American people their rights in elected government.
Now, what can be done? And what must we do?
Well, I think in the short term we are going to have to look at some very new
approaches to dealing with this problem. We are going to have to be innovative
in the last analysis
and imaginative because in the last analysis Congress cannot lose in this strug-
Congress cannot lose in
gle because we are the legislative branch of Government.
this struggle because we
So, some of the things we are going to have to do will, henceforth, be much
are the legislative branch
more circumspect and specific and restrained in delegating any authority, and
of Government."
we must be very careful that we keep the agencies and the executive branch on a
short leash.
The end result of this whole matter could very well be, that the Presidency,
not this President, but the Presidency itself and the agencies of government,
will end up with much more limited power and much more limited discretion
because Congress simply cannot afford to make broad delegations of authority
without some check upon it.
So, in the short term we are going to have to be very careful at looking at certain
specific pieces of legislation cutting back delegations already made and being
careful about some of those in the future and in some instances forego it altogether.
We are going to have to keep these agencies on short leash and under short
rations as far as appropriations are concerned so if they get out of hand they
cannot be out of hand for too long before they have to come back to Congress
"The end result of this
for their budgets.
whole matter could very
There are mechanisms available, one of which was demonstrated today, where
well be that the Presidency
in some instances, and obviously it would not apply in all instances, there could
and the agencies of
be a requirement that in order for a regulation or a rule to take effect it must be
government, will end up
adopted as legislation, itself, by the Congress.
with much more limited
And obviously if that is done and one House of Congress fails to pass the joint
power and much more
resolution, we have in effect exercised a legislative veto. There are problems
limited discretion.
with that which we may have to address. And there are circumstances when it
could work, particularly in the case of major rules. It might be a feasible way.
Another system would be to utilize the rules of the House of Representatives
and to change the rules of the House of Representatives in conjunction with leg-
islation, legislation which would provide for a report-and-wait period, where an
agency action is taken by the executive branch or one of the agencies and a rule
or regulation is issued and they report to the Congress and wait some period of
time before it goes into effect. Then under changed rules of the House we would
provide that any committee that has jurisdiction over the agency issuing that
rule or over the legislation creating that authority, would have the right to con-
sider, and, if they so desire, report a resolution of disapproval to the House of
Representatives.
And the House of Representatives, if it adopted that rule, would provide,
again, by the rules of the House, that no appropriation could be made or would
be in order that would fund a regulation disapproved or action disapproved un-
der this procedure.
(Continued on page 312)
310
Congressional Digest
PRO
LEVITAS, cont. from page 310
That does not affect the validity of the rule; it is not legislation; but it goes to
the purse strings which the Supreme Court, the same Supreme Court in deci-
sions has said are exclusively the province of the Congress, to decide and we will
have made the decision not to fund the regulation or the action in question.
There are many ways to skin this cat. There are other procedures that we can
look at and other avenues we can follow. The report-and-wait mechanism itself
can be expanded into broader usage.
someone will propose
But, in the last analysis, someone will propose, and I think perhaps correctly,
that we must consider
that we must consider even a constitutional amendment to provide the Congress
even a constitutional
with the authority to exercise its legislative control over the agency in a manner
amendment to provide
that preserves for the American people their rights and privileges through their
the Congress with the
elected Representatives.
authority to exercise its
And one last observation I would make at this point is this: I really believe we
legislative control
"
are at a crossroads, a critical crossroads in the evolution of our governmental
system as a result of this Supreme Court decision which has brought about this
train wreck of government. We are not going to solve this problem or sort out or
restructure our system in the next three or four weeks or three or four months
and I am afraid perhaps not even in the next three or four years. It is going to
take a long time to sort this out and get the government back on the right track.
I therefore would propose that in cooperation with the President we convene
a conference on sharing of powers, or separation of powers, a conference that
would bring together leaders from the administration, leaders in the Congress,
some of the great academic minds in the universities around this Nation, people
at the think tanks in this Nation such as the American Enterprise Institute or
the Brookings Institution; representatives from labor and business, and public
"
the Supreme Court's
interest groups, all of whom have an interest and a stake in this.
decision, however
We should bring the best thinking together and to bear on how we sort out a
destructive it may have
system which will retain control to the people through their elected representa-
been, is not the last word
tives without the intrusion, inappropriately, into the discretions that are neces-
on this subject.'
sary in the Presidency and the agencies of Government.
But this we must do. The Supreme Court's decision, however destructive it
may have been, is not the last word on this subject. And it now befalls us. as a
Congress, and it befalls the administration, representing the Presidency, and it
befalls the people of this country a means of coming back and sorting it out, be-
cause if we do not, we will simply see chaos and confrontation and government
that is not only bad, but simply does not work.
The legislative veto is no longer available to the Congress as it had been previ-
ously. It is now our responsibility, on behalf of the American people, to see that
we put in place mechanisms which will achieve the purposes that were sought to
be achieved by the legislative veto before the Supreme Court's decision.
I hope that the Court-although I have little expectation-will give it consid-
eration and provide a further opportunity to review this matter.
It is very likely that Congress has delegated too much power to the executive
branch and to the agencies, and we have probably done it very sloppily and poorly
when we have done it on many occasions.
If nothing else, the Supreme Court decision may force us to do a better job of
legislating, and for that, regardless of what else, we may give them thanks.
312
Congressional Digest
WHITE HOUSE LAW LIBRARY
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THE SUPREME COURT DECISION IN INS V. CHADHA
AND ITS IMPLICATIONS FOR CONGRESSIONAL
OVERSIGHT AND AGENCY RULEMAKING
HEARINGS
BEFORE THE
SUBCOMMITTEE ON ADMINISTRATIVE LAW AND
GOVERNMENTAL RELATIONS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
NINETY-EIGHTH CONGRESS
FIRST SESSION
ON
THE SUPREME COURT DECISION IN INS V. CHADHA AND ITS IMPLICA-
TIONS FOR CONGRESSIONAL OVERSIGHT AND AGENCY RULEMAKING
JULY 18 AND 21, 1983
Serial No. 18
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
25-103 0
WASHINGTON : 1983
CONTENTS
HEARINGS
Page
July 18, 1983
1
July 21, 1983
197
WITNESSES
Bruff, Harold, professor, University of Texas School of Law
214
Prepared statement
218
Cogan, Neil H., professor of constitutional law, Southern Methodist Universi-
ty
234
Prepared statement
237
Dam, Hon. Kenneth W., Deputy Secretary of State, prepared statement
119
Dooling, John J., counsel, Committee on Rules
245
Eckhardt, Hon. Robert C., former Representative in Congress from Texas
168
Prepared statement
169
Moakley, Hon. John Joseph, a Representative in Congress from Massachu-
setts
245
Prepared statement
255
Morrison, Alan, director of litigation, Public Citizen
142
Prepared statement
143
Schmults, Hon. Edward C., Deputy Attorney General, Department of Justice
2
Letters from, dated August 16, 1983, to:
Hon. Sam B. Hall, chairman, Subcommittee on Administrative Law
and Governmental Relations
114
Hon. Clement R. Zablocki, chairman, Committee on Foreign Affairs
116
Prepared statement
8
Smith, Richard B., chairman, Coordinating Group on Regulatory Reform,
American Bar Association
197
Prepared statement
200
APPENDIXES
Appendix 1:
Bailey, Patricia P., Commissioner, Federal Trade Commission, excerpt
from the statement of
284
Hearing on July 13, 1983, excerpts from transcripts of
294
Leighton, Richard, attorney, excerpt from the statement of
294
Miller, James C., Chairman, Federal Trade Commission, excerpt from the
statement of
283
Pertschuk, Michael, Commissioner, Federal Trade Commission, excerpt
from the statement of
286
Scanlon, Terrence M., Vice Chairman, Consumer Product Safety Commis-
sion, statement of
290
Sloan, Edith Barksdale, Commissioner, Consumer Product Safety Com-
mission, letter from, dated July 12, 1981, to Hon. Peter W. Rodino, Jr
293
Statler, Stuart M., Commissioner, Consumer Product Safety Commission,
letter from, dated July 8, 1983, to Hon. Peter W. Rodino, Jr
291
Steorts, Nancy Harvey, Chairman, Consumer Product Safety Commission,
excerpt from the statement of
287
Zagoria, Sam, Commissioner, Consumer Product Safety Commission,
statement of
288
Appendix 2: American Bar Association, 1983 annual meeting in Atlanta, Ga.,
Monday, August 1, 1983
301
(III)
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Charlha
1983 DUKE LAW JOURNAL
789
(Sept.
1983)
file
WAS THERE A BABY IN THE BATHWATER?
A COMMENT ON THE SUPREME
COURTS LEGISLATIVE VETO
DECISION*
PETER L. STRAUSS**
Examining the Supreme Court's recent decisions in the legislative
velo case, Professor Strauss stresses the importance of a distinction no
Justice observed between use of the veto in matters affecting direct, con-
tinuing, political, executive-congressional relations, and use of the veto
in a regulatory context Only the latter, he argues, had to be reached by
the Court; and only the latter presents the constitutional difficulties that
troubled the Court. The utility of the veto in the political context makes
the opinions' sweep regrettable.
The Supreme Court's decisions in the legislative veto cases' at-
tracted headlines and public commentary rarely experienced by the
Court. Written following what was evidently a difficult internal pro-
cess,2 the Chief Justice's majority opinion in the principal case, Immi-
gration and Naturalization Service V. Chadha,3 seems intended to sweep
all of the 200-plus legislative veto provisions from the statute books, in
addition to the one provision necessarily before the Court in the case.
That impression is confirmed by subsequent summary actions affirming
unanimous opinions of the District of Columbia Circuit striking down
legislative vetoes affecting regulatory agency rulemaking,4 as well as by
Copyright © 1983 by Peter L. Strausa.
Professor of Law, Columbia University. A.B. Harvard 1961; LL.B. Yale 1964. Many
friends and colleagues have made helpful suggestions on early drafts of this paper; 1 want
especially to thank Bruce Ackerman, Owen Fiss, Heary Monaghan and Benno Schmidt.
1. The principal decision, in which the Court wrote at length. was Immigration and Natu-
ralization Serv. V. Chadha, 103 S. Ct. 2764 (1983). At the end of its term, the Court also summarily
decided two cases involving legislative veloes of rules adopted by regulatory agencies. See Process
Gas Consumers Group V. Consumer Energy Council of America, 103 S. Ct. 3556 (1983). aff's
Consumer Energy Council of America V. FERC, 673 F.2d 425 (D.C. Cir. 1982); United States
Senate V. FTC, 103 S. Ct. 3556 (1983), off Consumers Union V. FTC, 691 F.2d 575 (D.C. Cir.
1982) (en banc).
2. The Chadha case was first argued in the October 1981 term of Court, and then set for
reargument during the last term. Reargument is ordered rarely; in this case, two dissents from the
reargument order on the ground that the Court was ready to decide the case suggest a high level of
dispute. See 102 S. Cl. at 3507 (1982) (Brennan and Blackmun, JJ., dissenting).
3. 103 S. CI. 2764 (1983).
4. Process Gas Consumers Group V. Consumer Energy Council of America, 103 Ct. 3556
(1983). offs Consumer Energy Council of America V. FERC, 673 F.2d 425 (D.C. Cir. 1982);
789
790
DUKE LAW JOURNAL
[Vol. 1983:789
Vol. 1983:789]
LEGISLATIVE VETO DECISION
791
the disapproval evident in three separate opinions in Chadha.⁵ The
immediate and pained response of Congress suggested as well the un-
Control and Impoundment Act, disapproving a minute proportion of
derstanding that it had been deprived, in all contexts, of a valued legis-
the alterations regularly made by the President in the budget and ap-
lative tool.
propriations legislation Congress enacts yearly; 24 disapproved a few of
This comment looks closely at the opinions in the Chadha case, so
the many reorganizations the President proposed in the internal organi-
far as they concerned the legislative veto issues, to assess their reason-
zation of the federal government. Of the 30 remaining legislative ve-
ing and the warrant for so embracive an approach. It concludes that
toes exercised, some concerned foreign relations, international
both opinions suggesting an overall approach to the issues, the majority
commerce or defense, issues also dominated by presidential initiative
opinion and Justice White's dissent, fail in their analysis by approach-
and high political interest; only the remainder dealt with the regulatory
ing the legislative veto as if the issues it presented were always the
matters that may have loomed most important in the Court's
same, and as if Congress were far more limited in its function and in its
consideration.
relationship with those who execute the nation's laws than in fact it is.
Faced with uses of the legislative veto that allowed the President
Legislative vetoes have been used in a variety of settings, though
and Congress to resolve directly constitutional and policy differences
perhaps less universally than the press excitement over the Chadha de-
on issues of high political and small legal moment, uses that accommo-
cision would lead one to believe.⁷ According to figures supplied by the
date a necessarily continuing dialogue between Congress and the Presi-
Congressional Research Service, Congress had exercised a total of 230
dent on matters internal to government (its budget and structure), uses
legislative vetoes between 1930 and 1982: III of these terminated pro-
for deciding questions of individual status such as deportability, and
posed suspensions of deportation for 229 individual aliens under the
uses for oversight of agency conduct such as public rulemaking directly
immigration and naturalization laws (the remainder of the 5701 sus-
affecting obligations of the public, the Court might have been expected
pensions proposed took effect); 65 were exercised under the Budget
to distinguish among these uses or, at least, to decide in a way that
reserved consideration of those uses not presented in Chadha. The
United States Senate V. FTC, 103 S. Ct. 3556 (1983). aff's Consumers Union V. FTC, 691 F.2d 575
Court did not do so; the argument of this essay is that the Court's ac-
(D.C. Cir. 1982) (en banc).
tions would have been far more acceptable, reaching precisely the same
5. Justice Powell, concurring on a rationale specific to the case, and Justices White and
Rehnquist in dissent, underscored the breadih already apparent in the majority opinion by the
result in the matters before it, had it attended to the multiplicity of
settings in which the veto has been used.
attention they gave it. See 103 S. C1. at 2788-92 (1983) (Powell. J., dissenting); 103 S. Ct. at 2792-
2816 (1983) (White, J., dissenting); 103 S. Ct. at 2816-17 (1983) (Rehnquist, J., dissenting).
Such an argument may seem like just another assertion of the law
6. Shortly after the decision, the House overwhelmingly adopted a bill that would replace
the requirement that rules adopted by the Consumer Product Safety Commission be subject to the
professor's preference for neatness and modesty in judicial action or,
possibility of a legislative veto with alternative equivalents: that no rule would become effective
worse yet, an arid exercise of 20-20 hindsight, unaccommodating to the
until enacted by Congress in statutory form (thus essentially depriving the Commission entirely of
political realities of reaching decision on a pressured, busy Court. I
its rulemaking authority): and that proposed rules could not take effect for a prolonged period (90
"legislative days") during which Congress can enact a statute of disapproval. See 129 CONG. REC.
believe there is more. The importance of measures like the reorganiza-
H4738-84 (daily ed. June 29, 1983) (proceedings related to H.R. 2668, 98th Cong., Ist Seas.
tion acts does not lie in whether Congress should reserve a veto, how-
(1983)). Of course only one of these measures can be expected to appear in any ultimate statute.
ever infrequently such a veto is exercised, but in whether, in the
The effect of the vote was to underscore what might have been expected. and was indeed recog-
absence of the veto power, Congress would permit such an efficient
nized in the majority opinion, namely that Congress would insist on strong continuing oversight of
regulatory rulemaking, whether or not the legislative veto remained an available option for
mechanism for the President's construction of lines of coordination and
achieving that end. Midsummer hearings in both the Senate and the House were characterized by
control for those whose performance of duty he is constitutionally
statements of resolution, at least on the part of the participating congressmen. that the close over-
obliged to oversee, rather than insist on the use of ordinary legislative
sight of executive branch activity suggested by the veto will continue; and acceptance by executive
branch spokesmen that it properly would continue. Sev, a.g., Congress Digs in After Legislative
processes. Seen in this light, the use of legislative veto provisions may
Veto, N.Y. Times, July 31, 1983, at EA, col. 3.
empower the President as much as Congress. Use of the veto as an
7. Although the approximately 200 current legislative veto provisions attest Congress' recent
instrument of the continuing political dialogue between President and
regard for the technique, they affect only a small proportion of the authority Congress has dele-
Congress, on matters having high and legitimate political interest to
gated to government agencies. Legislative proposals on the brink of enactment during the past
few Congresses would have extended the veto to all agency rulemaking, and were widely and
accurately regarded as portending a major expansion in use of the device.
8. Smith & Struve, Aftershocks of the Fall of the Legislative Veto, 69 A.B.A. J. 1258, 1258
(1983).
[Vol. 1983:789
Vol. 1983:789]
LEGISLATIVE VETO DECISION
793
792
DUKE LAW JOURNAL
both, and calling for flexibility for government generally, does not pres-
finding, but under that section the immigration judge's conclusion that
the same problems as its use to control, in random and arbitrary
they are present does not end matters.¹ Reflecting the prior practice of
ent fashion, those matters customarily regarded as the domain of adminis- have
granting all such relief through private bills, the statute provides that
trative law. That none of the disputants before the Court may
any finding favoring suspension must be transmitted to Congress, and
found it in their interest to argue for such distinctions and that the
takes effect only if neither House repudiates it by resolution during the
Court itself did not suggest them, only, illustrates once more the
following two sessions. 12 In Mr. Chadha's case, the House of Repre-
problems presented by the Court's limited capacity to entertain and
sentatives voted such a resolution at the last moment, without printed
decide issues of national importance, and the resulting temptation to
text, debate, or significant explanation. The ostensible purpose of the
make doctrine governing the future, rather than decision of the pend-
resolution was to restore the effectiveness of the order of deportation
previously entered against him and five other immigrants. After sur-
ing case the centerpiece of the Court's effort.
mounting a number of procedural obstacles not important to this tale,
Mr. Chadha's claim to a constitutional right not to be deported in this
I. THE SETTING
manner reached the Supreme Court. The principal argument there con-
taining his British Commonwealth passport, he came to the United For
Jagdish Chadha is an East Indian. Brought up in Kenya, but re-
cerned the validity of the "legislative veto," which might best be de-
scribed as the condition Congress had attached in conferring on
States on a student visa, and then stayed beyond its expiration.
immigration judges the authority to suspend deportations-that the
that reason he was deportable, but Kenya would not receive him back
suspension would not become final if, during a limited time, it was dis-
(he having declined an opportunity to elect Kenyan citizenship) and had
approved by a simple resolution of either house."
other Indians of Kenyan birth holding Commonwealth passports
Seven Justices, in two opinions, agreed that the legislative veto was
encountered difficulty in being admitted to Great Britain. An immigra-
unconstitutional. Chief Justice Burger, for himself and five others,
tion judge of the Department of Justice's Immigration and Naturaliza-
wrote a sweeping indictment of legislative vetoes; Justice Powell con-
tion Service-a civil servant strongly protected against political
curred, although he would have decided the case on narrower grounds
interference in his judgment9-found that these and other factors es-
applicable principally to the immigration statute. Justice White, in dis-
tablished Mr. Chadha's claim to a compassionate suspension of depor-
sent, vigorously objected to the breadth of the majority's approach, and
tation under section 244 of the Immigration and Nationality Act.¹⁰
concluded that section 244 met constitutional standards. Finally, Jus-
That section defines the factors that must be present to support such a
tice Rehnquist dissented on the nonconstitutional ground that the
Court could not appropriately sever the provisions authorizing suspen-
Although neither statutory administrative law judges nor judges are bound (in terms) V. Bonds. by
sion of deportation from the legislative veto aspect of the statutory
Administrative 9. Procedure Act, 5 U.S.C. 66 551-559. §§ 701-706 (1976). of Marcello the more
scheme; accordingly, even if Mr. Chadha were right about the legisla-
the U.S. 302, 309-10 (1955) (the particular provisions of the Immigration Act supersede immigra-
349 provisions of the Administrative Procedure Act on which they were modelled). which
tive veto, the relief provisions must also fall and Mr. Chadha thus
general serve under statutes and well-established rules and administrative arrangements to be taken
could not gain from the outcome.
non judges equivalent safeguards against political oversight; their decisions are required IMMIGRA-
provide "only upon a record." 8 U.S.C. @ 1252(b) (1982); 1A C. GORDON & H. ROSENFIELD.
his spouse, parent or child, who is a citizen of the United States or an alien lawfully
TION LAW AND PROCEDURE I 5.7 (1982); 2 Id 6 12(b) (1983).
admitted for permanent residence.
10. 8 U.S.C. I 1254 (1982). The section provides:
8 U.S.C. I 1254(a) (1982).
the Attorney General may. in his discretion, suspend deportation and adjust the status to
11. A finding that they are absent is subject to judicial review. See 8 U.S.C. 1 1252 (1982).
that of an the alien is deportable for reasons not listed in (2) and has been such physically period he
alien lawfully admitted for permanent residence.
12. 8 U.S.C. @ 1254(c) (1982).
(1) (when in the United States for seven years) and proves that during all of would.
13. As in so many legal matters, how one characterizes the legislative scheme under discus-
present of good moral character: and is a person whose deportation his
sion tends to ordain the results reached. The Chief Justice's majority opinion treats the immigra-
was and is a person of the Attorney General, result in extreme hardship to the alien or admit- to
in spouse, the opinion parent, or child. who is a citizen of the United States or an alien lawfully
tion law judge's action and the House resolution as distinct legal acts as y the suspension were
a final act, then reversed by the resolution. Justice White's dissent takes a more integrated view:
ted for permanent the alien residence; is deportable or for reasons relating to criminal or subversive commission activity
the suspension is conditional, and cannot be regarded apart from the possibility of legislative
(2) when been physically present in the United States for ten years since the of
oversight. Neither characterization is obviously "right"; in a process that prides itself on rational-
and such has acts) and proves that during all of such period be has been and is a person of the
ity, the reasoning ought to display consciousness of this fact, and to include an effort to explain the
of moral character, and is a person whose deportation would. in the opinion alien to
outcome on other grounds.
good Attorney General. result in exceptional and extremely unusual hardship to the or
Vol. 1983:7891
LEGISLATIVE VETO DECISION
795
DUKE LAW JOURNAL
[Vol. 1983:789
794
branch;"¹⁸ that purpose and effect, according to the majority of the
II. THE MAJORITY OPINION
Court, in itself establishes the action's legislative character.
Chief Justice's opinion for the majority turns on a characteri- the
This "altering
legal rights" inquiry presents numerous diffi-
zation The of the House resolution as a "legislative action" subject to
culties. It is no measure of legislative activity in the functional sense.
formal requirements of article I of the Constitution. The formal not re-
Judicial activity also "alter[s]
legal rights, duties and relations of
persons
outside the
branch." Executive activity also has this
quirements, set out in some detail in the text of the opinion,14 Senate are act-
controversial: legislation is to be enacted by the House and
effect, at least if rulemaking and administrative adjudication by the ex-
in concert; and "every" such exercise of their legislative the powers Presi-
ecutive departments may still be authorized. An exercise of the author-
ing culminate in the presentment of the enacted matter to
ity of government is not, ipso facto, an exercise of the particular slice of
must dent for his possible veto.¹³ No one doubts that these requirements affirma-
that authority central to the acting branch; although Article III courts
be met before Congress can adopt some new statement of The
act judicially in a formal sense when they adopt rules of procedure or
must live principle as law, binding upon the citizenry or government. different:
naturalize a citizen (that is, they are judges acting), they are not thereby
action at issue in this case, however, was at least arguably action, a
adjudicating a case or controversy, performing the central judicial
standardless, contentless expression of disapproval of executive of
function employing prototypical judicial procedures. The functional
taken under circumstances that permitted neither the possibility ex-
requirements are central for Congress as well. Even when it acts bi-
pressing more than a simple negative nor any impact beyond the order. reso-
camerally and with presentment, Congress will not be permitted to act
lution's fact-specific effect on Mr. Chadha's existing deportation
in ways that alter legal rights if a court finds Congress' actions not to be
The problem for the Court was whether the formalities of legislation
legislative in character.¹⁹ Indeed, the House has unquestioned author-
ity to act in some ways that alter legal rights and duties of persons
properly apply to such an action.
outside the branch, without resorting to bicameral action or requiring
Although noting that "[n]ot every action taken by either House the is
presentation to the President. In both the investigation of possible fu-
subject to the bicametalism and presentment requirements,"16 The
ture legislation and the exercise of oversight functions, the House has
Chief Justice essentially overcomes this problem by assertion.
authority to command the presence of witnesses, official and unofficial,
question, he says, is whether the action "is properly to be regarded as
and to attach consequences to their failure to cooperate.²⁰ Where stat-
legislative in its character and effect."17 That question, in turn, appar- meant
depends on the identity of the actor and whether the actor action
18. Id at 2784.
ently actions to have force. Because, under the statute, the House Mr.
19. See United States V. Brown, 381 U.S. 437. 441-46 (1965) (framers of the Constitution
its to defeat the executive's conditional authority to suspend the
adopted the bills of attainder clause to prevent the legislature from overstepping the bounds of its
operates Chadha's deportation, it "had the purpose and outside effect of the altering legislative
authority by performing the functions of other departments): Barenblatt V. United States, 360 U.S.
109, 111-12 (1959) ("Since Congress may only investigate into those areas in which it may poten-
legal rights, duties and relations of persons
tially legislate or appropriate. it cannot inquire into matters which are within the exclusive prov-
ince of one of the other branches of the Government."); United States V. Loveu, 328 U.S. 303, 315
S. Ct. at 2780-84. The framers were much less careful in defining the manner difference in
(1946)(") legislative acts, no matter what their form, that apply either to named individuals or to
14. 103 President or the Supreme Court would exercise the power vested in them. a Cf. G.
easily ascertainable members of a group in such a way as to inflict punishment on them without a
which the indication of the extent to which they feared legislative hegemony. the legisla-
judicial trial are bills of attainder prohibited by the Constitution."): of Nixon V. Administrator of
Gen. Servs., 433 U.S. 425. 471 ("[The bill of attainder clause does not] limit Congress to the choice
readily taken as an AMERICA 128-29 (1981) (the structure of the Constitution, placing supremacy).
WILLS, ture before EXPLAINING the executive and judiciary, reflects a hierarchy consistent with legislative of the
of legislating for the universe, or legislating only benefits, or not legislating at all."); Ely. Legisla-
live and Administrative Motivation in Constitutional Law. 79 YALE L.J. 1205, 1308-12 (1970) (dis-
U.S. CONST. art. 1, H 1, 7. Justice White concurred in the lengthy portion of
cussing scope of Congress' investigative authority).
majority formal opinion requirements of presentment and bicameralism. See 103 S. self-defense against
15. See that describes, in general terms, the history and power-dispersing Ct. at 2792 purposes (White, J.,
20. To be sure, judicial enforcement is customarily provided, but only as a matter of conven-
ience rather than constitutional necessity. See Anderson V. Duan, 19 U.S. (6 Wheat.) 204. 227-28
these These purposes include: providing the President with a means of a against
dissenting). (and through the President, providing the people with protection providing
(1821). In any event, the judicial inquiry is not de novo; in contrast to the enforcement of subpoe-
nas for executive agencies, a court enforcing a congressional finding of contempt reviews a deter-
a runsway Congress to be expected if any one branch of government should achieve hegemony): for a legis-
mination that an offense has already been committed. See Barenblatt V. United States, 360 U.S.
the lyranny the enactment of improvident or ill-considered measures: and providing 2782-84.
109, 116 (1959); McGrain V. Daugherty, 273 U.S. 135, 161 (1927): 2 U.S.C. @ 192 (1982). The
Intive checks process against that would produce distilled visions of the national good. 103 S. Ct. at
result of judicial enforcement is a penalty, not a further opportunity to comply: thus, the legal
16. Id at 2784.
obligation is mature when Congress acts.
17. Id (citing S. REP. No. 1335, 54th Cong., 2d Sess. 8 (1897)).
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utes have previously so authorized, the request of a committee, al-
it worries in a lengthy footnote that its reasoning might be seen as cast-
though less than the full House, imposes a legal obligation on agencies
ing some doubt on rulemaking or other forms of agency action.²⁷ Al-
to conduct investigations,21 or to cooperate with an investigation by
though, "to be sure,
rulemaking
may resemble
congressional functionaries,22 a mechanism not readily distinguished
'lawmaking,' """-indeed, the end product of rulemaking resembles
from the legislative veto on the formal grounds the Court chose. None
lawmaking far more than did the House Resolution here-the Court
of these investigatory powers are addressed in the Constitution. In this
concludes that no such inconsistency is presented. Why? In part the
respect, the argument that "when the Framers intended to authorize
Court again appears to rely on either simple assertion, or some equiva-
either House of Congress to act alone and outside of its prescribed bi-
lence between the identity of the House and the character of its action,
cameral legislative role, they narrowly and precisely defined the proce-
when it quotes Justice Black's troubling opinion in Youngstown Sheet &
dure for such action,"2 is insufficient.²⁴ Finally, and most importantly,
Tube Co. V. Sawyer29: " The President's power to see that the laws are
to characterize what the House did in Mr. Chadha's case as "altering
faithfully executed refutes the idea that he is to be a lawmaker.' "30 Of
legal rights" begs the question. Under the statutory scheme as
course, the President and the agencies are lawmakers, in any conven-
Congress enacted it, Mr. Chadha's technical right to remain in the
tional sense of the term, when they engage in rulemaking pursuant to
country could not be conferred by the INS alone; it is conferred only if
constitutional or statutory authorization." However one might label
the INS acts and then only if neither house of Congress acts. To say that
what the Department of Justice and the House did in considering the
he has acquired a right which the House is now purporting to take
cancellation of Mr. Chadha's deportation for compassionate reasons,
away is to assert a conclusion, not to support it by reasoning.
the action of each seems to have been of the same nature and to have
The Chadha decision would be less important-as the result in the
had precisely the same kind of legal effect on Mr. Chadha's rights. De-
case is the right one23-if it did not call into question so much that had
pending on the characterization employed, one could say either that the
been thought established about the dispersal of governmental author-
Department effected a suspension of an individual deportation order
ity. The opinion repudiates the now deeply engrained proposition that
which the House cancelled, or that, between the two, the conditions for
Congress' legislative authority may be exercised conditionally; yet that
cancellation of a deportation order were not met. The Court does not
proposition was the initial engine by which delegation of "legislative
adequately explain why one actor is regarded as behaving "legisla-
powers" was effected, with the conditions, in this instance, supervised
tively," and the other is not. The Court seems to make the Youngstown
by the courts. The Court recognizes the possible inconsistency when
passage mean that the "President does not act legislatively because he
is the chief executive; the House does, because it is part of Congress.
21. See Humphrey's Ex'r V. United States, 295 U.S. 602, 628 (1935).
What the President does is ipso facto executive; what Congress does,
22. 31 U.S.C. # 712(4). 716(a) (1976 & Supp. V 1981).
legislative."
23. Chadha, 403 S. C1. at 2786.
24. The cases supporting congressional investigatory power describe it as a necessary and
Whether an action is "legislative in character and effect" might
inevitable adjunct of the legislative process. see, e.g., McGrain V. Daugherty, 273 U.S. 135. 174
have been thought a function of its characteristics, rather than the iden-
(1927): the legislative veto, as an oversight technique. may not seem to central. Yet. under the
tity of the actor. This approach would have led the Court to consider
Constitution. Congress is made the principal judge of what is "necessary and proper for carrying
into Execution the foregoing Powers and all other Powers vested by this Constitution in the gov-
the arguable differences between "legislative" and "adjudicative" ac-
ernment of the United States, or in any Department or Officer thereof." U.S. CONST an. 1. 8 8.
Absent other factors, that empowerment would seem to extend to the legislative veto as well as to
arising out of the execution of statutes relating to trade and commerce with other nations"): The
the issues of investigation. My purpose here is not to suggest that those other factors do not exist:
Brig Aurora, II U.S. (7 Cranch) 382, 388-89 (1813) (Congress may exercise its power
in many cases they do But the issue does not seem capable of being settled by simple textual
conditionally).
analysis.
27. Chadha, 103 S. Ct. at 2785 n.16.
25. See infra notes 49-59 and accompanying text.
26. See, es. J. W. Hampton, Jr. & Co. V. United States, 276 U.S. 394. 409 (1928) ("If Con-
28. Id.
gress shall lay down by legislative act an intelligible principle to which the person or body author-
29. 343 U.S. 579 (1957).
ized to As such rates is directed to conform, such legislative action is not a forbidden delegation of
30. Id at 587, quosed in Chadha, 103 S. Cl. at 2785 n.16.
legislative power."); Field V. Clark, 143 U.S. 649, 691 (1892) ("in the judgment of the legislative
31. Note the striking insistence on the accuracy of that characterization in Chrysler Corp. V.
branch of the government. it is often desirable, if not essential for the protection of the interests of
Brown, 441 U.S. 281, 295 (1979), where the Court insists on clear statutory authorization for what
our people. against the unfriendly or discriminating regulations established by foreign govern-
administrative lawyers describe as "legislative rulemaking." that is, rulemaking with statute-like
ments, in the interests of their people. to invest the President with large discretion in matters
effect, just because of its clearly legislative character.
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tion. This question has much bedeviled administrative law theorists.32
The Court also gives a reason with some functional bite for its
Furthermore, it seems to underlie the Court's interpretation of the Con-
want of concern with rulemaking: the Department's actions are au-
stitution's prohibitions of inappropriate legislative action-the bills of
thorized, and consequently limited, by a statute; that fact, with the at-
attainder and ex post facto clauses.³³ From these familiar perspectives,
tendant processes of judicial review, makes the bicameral and
one generally describes "legislation" in terms of its future effect, its ap-
presentment processes unnecessary as a check.37 But this, too, may
plication to an indeterminate class, its character as a statement of posi-
prove too much. The House's action was also authorized and limited
tive law intended to govern future proceedings, and the contemplation
by a statute, could occur only within its terms, and no doubt was sub-
that there will be such proceedings for its application, requiring the
ject to judicial correction if these terms were exceeded. That the
application of judgment. "Adjudication." in contrast, is characterized
House's judgment within those bounds did not have to be explained and
by its impact on events already transpired, its immediate application to
was not open to review suggests other bases on which the statutory
named parties before the tribunal, and the subordinate (in relative
mechanism could be questioned. In addition to the attainder questions
terms) character of the lawmaking function. The distinction is, to be
already suggested, the Court has strongly hinted that the absence of
sure, imperfect; legislatures have long granted boons to particular indi-
judicial control or other participatory procedures to protect one whose
viduals, and the restrictions on their inflicting particularized harms for
interests are at risk raises constitutional questions, especially when in-
past (mis)conduct are uncertain of application.34 Whether the prospec-
dividual liberty in its most elementary sense is at stake.³ Yet it is hard
tive, lawmaking function of courts is merely an accident of their au-
to understand how these difficulties turn the House's exercise of its very
thority to decide or rather a fundamental aspect of their function is,
limited options into a "legislative" act. One might as well note, as the
increasingly, a matter in dispute.35 Yet, had the Court taken this tack,
Court did,40 that the judgment suspending Mr. Chadha's deportation
it would have found it difficult to describe the House Resolution that
order was equally free of the possibility of review (unless in Congress,
affected Mr. Chadha as properly "legislative." The Resolution applies
pursuant to the act), even if entered in an entirely unauthorized man-
only to named persons, on the basis of determinations made by the
ner.41 But the Court did not for that reason find it to be legislative.42
House about facts already fixed; it creates no general principle for fu-
ture application, and the proceeding envisioned is one in which only
tively established; significant procedural protections are required. however, in administrative pro-
ministerial tasks are to be performed. Indeed, the majority noted, but
cass for deciding whether an individual is in the described group).
37. See Chadha, 103 S. Cl. at 2785 n.16.
declined to decide, a question whether an order to deport Mr. Chadha
38. If, for example, the House had sought to act after the statutory time had expired. or to
enacted by both houses and signed by the President-thus fulfilling all
attach a condition to Mr. Chadha's right to remain in the country. it seems clear that habcas
the formal requisites of legislation-would have been proper, for just
corpus would have relieved him of any deportation order and established his right to permanent
residence.
this reason.³⁶
39. See Chadha, 103 S. Ct. at 2785 n.16; Northern Pipeline Constr. Co. V. Marathon Pipe
Line Co., 102 S. Cl. 2858, 2870 a.23 (1982): of. Landon V. Plasencia, 103 S. Ct. 321. 329 (1983)
32. 2 K. DAVIS, ADMINISTRATIVE LAW TREATISE § 7:2 (2d ed. 1979).
(resident alien temporarily outside the United States entitled to due process protections).
33. U.S. CONST. art. 189, see supra note 19.
40. Chadha, 103 S. Cl. al 2787 n.21. Curiously, the Court seemed to take reassurance from
34. Compare New Orleans V. Dukes, 427 U.S. 297. 306 (1976)(city ordinance grandfathering
the fact that the most lawless of acts by the INS suspending an otherwise valid deportation order
two established pushcart vendors over all competitors upheld against equal protection challenge)
would not be subject to correction in any forum.
with United States V, Brown, 381 U.S. 437, 461 (1965) (disqualification of identified group from
41. For example, the agency might act in response to a bribe, or, less dramatically, it might
union office is bill of attainder); see also Nixon V. Administrator of Gen. Servs., 433 U.S. 425, 468-
act without considering one of the required factors or consider an irrelevant one.
42. Doubts expressed by the majority and Justice White as to whether Congress could consti-
84 (1977).
35. Compare P. BATOR, P. MISHKIN, D. SHAPIRO & H. WECHSLER, HART & WECHSLER'S
tutionally have provided for review, seem misplaced, or at best the product of the particular statu-
FEDERAL COURTS AND FEDERAL JURISDICTION 81 (2d ed. 1973) with Fiss, Foreword The Forms
tory arrangements chosen in this case. It is, of course, commonplace that a disappointed
of Justice. 93 HARV. L. REV. 1. 2 (1979).
intervenor might be able to seek such review (e.g., an environmental organization seeking review
36. Chadha. 103 S. Ct. at 2776 n.8, 2785 n.17. This was the basis of Justice Powell's concur-
of a decision to authorize construction of a power plant) and where a government agency partici-
rence. That Congress grants relief to individuals through private bills hardly establishes the ap-
pating in the administrative bearing is not identical with the agency that is making the decision,
propriateness of is determining whether an individual now in line for some administrative relief
appeals by the interested agency are not constitutionally problematic. See. e.g., United States V.
ought to be denied that relief in light of his conduct or situation; the bills of attainder clause might
Nixon, 418 U.S. 683, 693 (1974); Secretary of Agriculture V. United States, 347 U.S. 645, 647
prohibit this mode of action. But of Artukovic V. INS. 693 F.2d 894. 897 (9th Cir. 1982) (statute
(1954). United States V. FMC, 694 F.2d 793, 799-810 (D.C. Cir. 1982). Thus, the Secretary of
forbidding further stays of deportation for alleged Nazi war criminals is neither bill of attainder
Labor is authorized to seek review of adverse determinations on policy issues by the Occupational
por ex post facto legislation; deportation is not punishment and grounds for it may be retroac-
Safety and Health Review Commission. an independent agency within his Department. 29 U.S.C.
800
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Perhaps nowhere in the opinion is the essentially assertive charac-
sense much more closely statutory than the result of the House's action
ter of the majority's analysis clearer than in its final footnote.4 The
in Mr. Chadha's case. The latter creates no deposit on the law, gives no
footnote seeks to address Justice White's argument in dissent-namely
binding instructions to those who must continue to administer the law;
that, viewed as a whole, the legislative scheme, involving the House,
it governs the individual's case alone. Although that, in itself, may be
Senate, and Department of Justice, satisfies all the functional values of
the source of objection, it makes speaking of the House's action as "leg-
bicameralism and presentment because suspension of the deportation
islative" curious indeed.
order cannot occur without the concurrence, in effect, of all three enti-
Perhaps one should take seriously the notion that whatever is done
ties; and that the ability of one house to block suspension by passing a
by the House or Senate is definitionally legislative, not because of the
resolution of disapproval under the current legislation is not different
characteristics of what is done but because of the identity of the body
in any realistic way from the ability of one house to block suspension
acting. The same propositions would then apply to the President and
under the prior arrangements by refusing to enact a private bill. The
the Supreme Court; their actions would, of necessity, be "executive" or
Court's response is to state that the private bill approach provides "an
"judicial," respectively. Some suggestion that the Court intends that
opportunity for deliberation and debate. To allow Congress to evade
approach is found in a repeated "presumption" that a governmental
the strictures of the Constitution and in effect enact Executive propos-
body is acting within its intended sphere.47 What follows, however, is
als into law by mere silence cannot be squared with Art. 1."44" Because
that there is then no magic in the word "legislative" to aid in determin-
the recommendation for suspension is presented to both houses, it is
ing whether the House and/or Senate are acting constitutionally. Be-
difficult to see how the opportunity for "deliberation and debate" is
cause the House and Senate often act outside the structure of
any less present than it previously was; if anything, inertia favors the
presentment and bicameralism, and in fact use it only when enacting
private person seeking relief from deportation under the present re-
laws, one must have reasons not supplied by the label "legislative" for
gime, instead of under a regime in which success depends upon having
insisting upon that structure, or for otherwise finding constitutional
both houses enact a proffered bill. In terms of enactment "by mere
fault with the legislative scheme. That observation triggers the kind of
silence," this mechanism is not readily distinguishable from the mecha-
functional inquiry that Justices White and Powell undertook, but the
nism, approved by the Court in Chadha,43 by which such measures as
majority appeared to eschew.48
the Federal Rules of Civil Procedure are adopted; the Rules lay before
both houses of Congress for a period, and become law unless, within a
III. JUSTICE POWELL'S CONCURRENCE
stated period, a blocking statute is enacted. Indeed, every rulemaking
authorization provides means which "in effect enact Executive propos-
Justice Powell, in his solitary concurrence, sought a less sweeping
als into law by mere silence," and the Court plainly meant to protect
means of resolving the case, finding Congress to have "assumed a judi-
those authorizations from question. Those rules become "law" in a
cial function in violation of the principle of separation of powers"
when it undertook to review determinations that particular persons are
## 656, 661 (1976). The issue appears to be one strictly of jural identity, readily manipulated by
eligible for suspension of deportation orders. His opinion draws both
statute, not a constitutional prohibition on government officers seeking judicial review of decisions
on the history of concerns that led to adoption of the bills of attainder
favorable to private claims. Indeed, one way of stressing the independence of immigration law
clause and the nature of the decision made, "that six specific persons
judges within the Department of Justice would have been to make their judgments judicially
did not comply with certain statutory criteria,"49 in reaching the con-
reviewable at the Attorney General's behesi. It is certainly imaginable that the Attorney General
would disagree with some policy or even factual determination made by such a judge, and the
applicant's assurance of objectivity in the proceedings is precisely that the Attorney General is
47. Chadha, 103 S. CL at 2784.
afforded no internal, bureaucratic controls over the determination. The result is a situation no
48. Such an inquiry also seems present in the Court of Appeals for the District of Columbia
different from what obtains when the government is disappointed in the outcome of a trial. Al-
Circuit's thoughtful opinion in Consumer Energy Council V, FERC, 673 F.2d 425 (D.C. Cir.
though government appeals from judgments of acquittal in criminal trials may be constitutionally
1982). which was subsequently affirmed by the Supreme Court. 103 S. Ct. 3556 (1983). in Con-
objectionable. this is for reasons of fairness, rather than concern for whether there could exist a
summer Energy, the court understood the particular veto as necessarily altering the scope of discre-
"case or controversy."
tion delegated to an agency, finding this more objectionable because unexplained 673 F.2d at
43. Chadha, 103 S. Ct. at 2787 n.22.
465. That characterization has force only if discretion must be structured-that is, where the dele-
44. Id
gation doctrine would require "law to apply." and not in the predominantly political setting that
45. 103 S. Ct. at 2776 n.9.
characterized early use of the veto. See infra notes 78-93 and accompanying taxt.
46. 28 U.S.C. I 2072 (1976).
49. Chadha, 103 S. Ct. at 2791.
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802
clusion that the House had here assumed a function of the kind ordina-
istic of the House Resolution in Chadha that brings those restrictions
rily entrusted to courts or other adjudicatory bodies. To be sure, as
into play. This response is not wholly satisfactory: the line between
both the majority and Justice White noted, courts do not ordinarily
benefit and burden is elusive at the margins; the fact that a benefit has
review agency decisions favoring citizens against government, at least
been conferred may raise questions sounding in equal protection. This
absent a conflict with the claims of other individuals. Putting aside the
is particularly true where (as often enough occurs in connection with
question whether such a function could be conferred on federal courts
economic legislation) the conferring of a benefit on one individual or
consistent with the case or controversy requirement,50 however, the
group cannot easily be separated from the disadvantaging of another;55
determinations to be made are nonetheless characteristically judicial.
and the deportation context, rightly or wrongly, has long been viewed
They involve the determination of historical facts concerning particular
as involving regulation rather than punishment. Yet Justice Powell's
individuals and the application of preexisting policy to those facts.
distinction corresponds well with core notions of the legislative func-
Such determinations are, as Justice Powell noted, "generally
en-
tion. Congress has in fact regularly rid itself of private bill functions,
trusted to an impartial tribunal" in our model of government;51 the ab-
including this one. Particularly in light of established practice, the bills
sence of the ordinary accoutrements of a hearing in the process that led
of attainder and ex post facto clauses stand as testimony to the impor-
to the House resolution underscored the objectionable nature of the
tance of the distinction.
procedure. The Immigration and Naturalization Service, although en-
Justice Powell's argument about appropriate legislative function
joying broad discretion in the details of the procedures it employed,
ought not to be confused with the separation of powers issues most
could not make a determination adverse to the interests of a resident
commonly raised in recent litigation. In recent cases the issue consid-
alien free of the constraints of the due process clause applicable to "ad-
ered has been "the extent to which [the challenged legislative arrange-
judications," as they might be judicially interpreted." That the House
ments] prevent [some other branch] from accomplishing its
could adopt this measure without being subject to checks-whether in-
constitutionally assigned functions,"57 and whether the complainant,
ternal constraints, procedural safeguards, or the possibility of effective
real or imaginary, has been a member of the offended branch. Justice
external review-demonstrated that the dangers feared by the Framers
Powell does not contend that section 244 infringes judicial power; that
had matured."
is, he does not assert that it is objectionable for what it does to the
Perhaps the greatest difficulty with Justice Powell's view lies in
authority of judges, although the other opinions seem so to regard his
Congress' traditional practice of making individual determinations
claim.⁵ His argument, rather, stresses the unfairness to the claimant,
through the mechanism of the private bill, whether for the satisfaction
Mr. Chadha, of having to submit to the possibility of disability result-
of damage claims against the United States, or the granting of admis-
ing from a negative congressional judgment about the historical facts of
sion to residence or citizenship. These acts, too, are functionally judi-
cial, in the sense that they apply to particular, named persons, rely on
55. The Supreme Court has occasionally found state economic legislation that favored a
determinations of individual, often historical facts, establish no general
closed class unconstitutional on equal protection grounds, see Morey V. Doud, 354 U.S. 457, 469
principle for future application, and foresee no subsequent proceedings
(1957); cf. Railway Express Agency V. New York, 336 U.S. 106, 112 (1949) (Jackson, 1., concur-
ring). but has regularly sustained against such challenges statutes conferring monopolies or con-
in which their application must be determined. Justice Powell's re-
taining grandfather clauses, perhaps the most common form of such legislation. See Morey. 354
sponse is to look to the reasons for the restriction: "when the Congress
U.S. at 467 12; New Orleans V. Dukes, 427 U.S. 297, 306 (1976) (overruling Doud in a grandfa-
grants particular individuals relief or benefits under its spending
ther clause context); see also Nixon V. Administrator of Gen. Servs., 433 U.S. 425, 471 (1977) (bills
of attainder clause not to be interpreted as "a variant of equal protection").
power, the danger of oppressive action that the separation of powers
56. The court in Artukovic V. INS, 693 F.2d 894, 897 (9th Cir. 1982), rejected on this basis a
was designed to avoid is not implicated."54 It is the denying character-
challenge to a statute terminating the Attorney General's authority to suspend deportation of
aliens guilty of Nazi war crimes; the statute evidently applied to past actions of a limited class of
individuals, and so might have seemed fairly open to CX post facto/bills of attainder challeoge.
50. See supra note 42 and accompanying text.
Congress had provided in that statute, however, that the judicial function of determining whether
51. Chadha. 103 S. Ct. at 2791 n.8.
52. P. BATOR, P. MISHKIN, D. SHAPIRO & H. WECHSLER. supra note 35. at 350-53: of Lan-
a given individual was among the described class was to be performed by an administrative of-
don V. Plasencia. 103 S. Ct. 321. 330 (1982): Anukovic V. INS, 693 F.20 894. 897 (9th Cir. 1982).
ficer, employing significant procedural protections, this feature of the statutory scheme seemed of
53. Justice Powell joined the summary affirmance in United States Senate V. FTC. 103 S. Ct.
singular importance to, and was enforced by, the court.
57. Nixon V. Administrator of Gen. Servs, 433 U.S. 425, 443 (1977).
3556 (1983). without opinion.
58. See 103 S. Cl. at 2787 n.21 (Burger, C.J.); 103 S. Ct. at 2810 (White, J., dissenting).
54. Chadha, 103 S. Ct. at 2792 n.9.
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his particular case. Justice Powell thus directly invokes the values of
That perspective seems to require, as Justice White argues at length,
citizen protection against governmental tyranny that underlie both the
that the impact of the legislative veto here be considered for its ten-
separation of powers notion generally and the attainder prohibition in
dency to rearrange power. In other words, the statutory scheme must
particular.39 Whether the courts' (or the President's) continuing capac-
be viewed as a whole.⁶³
ity to function is thus impaired-the characteristic focus of recent sepa-
For Justice White, the legislative veto "has become a central
ration of powers inquiries-has at best secondary importance.
means by which Congress secures the accountability of executive and
independent agencies"-"an important if not indispensable political
IV. JUSTICE WHITE'S DISSENT
intervention that allows the President and Congress to resolve major
Justice White's intellectual approach to the legislative veto ques-
constitutional and policy differences, assures the accountability of in-
tion, although flawed, seems more consistent with the Court's recent
dependent regulatory agencies, and preserves Congress' control over
analyses of separation of powers/checks and balances issues than the
lawmaking."65 In light of the relatively limited use of the device to
majority's approach. Before the Chief Justice expressed concern in his
date, one wonders if he does not overstate the case.66 His judgment is
opinion about "hydraulic pressures" bursting the boundaries that sepa-
particularly questionable respecting use of the veto for regulatory over-
rate the branches of government,60 the Court had seemed to be moving
sight; at least until recently, enhancing the accountability of independ-
away from the idea of "air-tight" categories and toward a Madisonian
ent regulatory agencies and preserving congressional control over
view, stressing function rather than formality. Under the latter view,
public rulemaking were not significant uses for the legislative veto, in
the central issues would be the tendency of a challenged device to place
either actual or political terms.
a given branch beyond effective control by others61 or to create an "un-
necessary and dangerous concentration of power in one branch," or to
A. The Political Uses of Legislative Vetoes.
interfere with a core function of another branch, to a degree unwar-
ranted by "overriding need" to accomplish some other objective.⁶²
The political uses of legislative vetoes warrant special analysis.
Justice White's detailed account of the history of the legislative veto
59. See Note, The Bounds of Legislative Specification: A Suggested Approach to the Bill of
reflects its initial use in reorganization acts, and subsequent expansion
Attainder Class, 72 YALE LJ. 330, 343-48 (1962) (John Hart Ely's note discussing separation of
to problems of national security and foreign affairs. In these contexts it
powers and the bill of attainder clause).
seems proper to characterize the veto, as he does, as a means by which
60. Chadha, 103 S. Ct. at 2784.
61. Id at 2786.
Congress could "transfer greater authority to the President
while
62. Buckley V. Valeo, 424 U.S. 1, 120-23 (1976). The functional approach suggested by the
preserving its own constitutional role."67 Withdrawals of federal
Coun in Buckley was not restricted to application in presidential power cases arising out of the
lands,68 international agreements and tariffs, pay adjustments, war
Nixon presidency, Nixon V. Administrator of Gen. Servs. 433 U.S. 425, 441-43 (1977): United
powers, national emergency legislation, and the impoundment issue
States V. Nison, 418 U.S. 683, 707 (1974) ("In designing the structure of our Government and
dividing and allocating the sovereign power among three co-squal branches, the Framers of the
Constitution sought to provide a comprehensive system, but the separate powers were not in-
Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1365 (1953). But
tended to operate with absolute independence."). but seemed to be paralleled by analytic develop-
of Wechsler, The Court and the Constitution, 65 COLUM. L. REV. 1001. 1005 (1965) ("I see no bars
monts in other contexts in which the structural constraints of the Constitution were the central
for this view (prohibiting alteration of appellate jurisdiction motivated by hostility to decisions of
issue. Thus, debate over the tenth amendment, revived by the Court's decision in National League
the Court) and think it antithetical to the plan of the Constitution for the courts-which was quite
of Cities V. Usery, 426 U.S. 833 (1976). resolved into near unanimity as to the statement of rele-
simply that the Congress would decide from time to time how far the federal judicial institution
vant inquiry (if not its application): whether a challenged measure threaters the integrity of the
should be used within the limits of the federal judicial power.").
states in the constitutional scheme. See EEOC V. Wyoming. 103 S. Ct. 1054 (1983): Hodel V.
63. This is closely related but not identical to the severability question. Although Justice
Virginia Surface Mining & Recl. Ass'a., 452 U.S. 264, 283-93 (1981). Allocation of authority
White agreed with Justice Rehnquist that the congressional review provisions were not properly
between state and nation, like that between executive and legislature. can be understood as a
severable from the suspension provisions, one could defensibly reach the opposite view as a matter
means of protecting individuals from overwhelming government; deciding what is required to
of statutory interpretation and still conclude that the impact of the veto provision could only be
preserve that protection for citizens, rather than a cataloguing of activities inherent to the states
assessed appropriately by considering the scheme as a whole.
qua states, has characterized the recent judicial debates. The same may also be suggested for the
64. Chadha, 103 S. Ct. at 2793.
public debate-not yes captured in litigation-over whether the Constitution constrains Congress'
65. Id at 2795.
authority to make exceptions to the appellate jurisdiction of the Supreme Court What would
66. See supra notes 7-8 and accompanying text.
prevent the judicial branch from accomplishing its constitutionally assigned functions is widely
67. Chadha, 103 S. Ct. at 2793 (emphasis added).
accepted as the appropriate inquiry to be made. See Hart, The Power of Congress 10 Limit the
68. See United States V. Midwest Oil Co., 236 U.S. 459 (1915).
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each concern chiefly public measures, primarily related to the internal
B. The Regulatory Uses of Legislative Vetoes.
organization of government and affecting the interests of private per-
sons only indirectly; they reflect areas of direct presidential initiative
Article Congress' accomplishment of its own "designated role only under
terms bly those of bearing on the regulatory context, where it speaks nota- in
At other points Justice White's dissent is far less persuasive,
and responsibility. In these contexts, too, the veto represents an accom-
modation between the branches, often mutually desired as Justice
White demonstrated, on matters of legitimate interest to each. Reor-
I as the nation's lawmaker," independent of any relational
ganization acts, measures concerned with budgetary adjustment (im-
concerns. The legislative veto did not begin to appear with fre-
poundment), foreign relations, and war (matters of the character Chief
quency in that context until the 1970's. In that setting, Justice any White's
Justice Marshall long ago referred to as "[q]uestions in their nature
the assertion that the legislative veto should be understood as a check
political"69) rarely appear in a form likely to attract or, more impor-
veto regime, one of the principle engines of his analysis, is at best
President corresponding to the bicameral legislature/presidential on
tantly, to justify judicial review. They may all be described fairly as a
setting for horse-trading between the President and Congress: the au-
to direct President is not the delegate under these statutes and his authority
the tionably relevant. The difficulties arise for two reasons: first, ordinarily ques-
thority subject to the veto will be that of the President himself; no alter-
native means of control is obvious; precise congressional standard-
setting or structural arrangements are probably inadvisable; and a shar-
controversial; second, even if he were the delegate, reservation of best,
the proceedings over which the veto is reserved is, at
ing of political authority is warranted by Congress' legitimate interests
unconditional congressional negative would not protect Congress' an
in the subject matter and the consequent desirability of committing
"designated role
Congress to support of the action to be taken. They evoke Justice Jack-
is difficulties is the burden of the following paragraphs. To observe them
as the nation's lawmaker." Illuminating these
son's more enduring analysis in Youngstown Sheet & Tube Co. V. Saw-
to suggest a possibility for discrimination among various of
yer ⁷⁰ that the power of government is at its peak when the President
legislative veloes that neither Justice White nor the majority seemed types to
and Congress work supportively of each other's authority." To the ex-
wish to entertain.
tent Justice White speaks of the legislative veto in terms of Congres-
Thus, one premise of Justice White's argument is that, as the Presi-
sional accommodation directly with a powerful President requiring
dent is the source of the action subject to the veto, the effect of the
more power-as a means of preserving balance while accomplishing
needed delegation to that other potential tyrant-his dissent is
that tion; the agreement of all three actors is in any event required, and ac- in
mechanism is merely to invert the ordinary processes of legislative
persuasive."²
way the essentials of the constitutional scheme are preserved. That
69. Marbury V. Madison, 5 U.S. (I Cranch) 137, 170 (1803).
premise will not always be true; some proposals subject to legislative
70. 343 U.S. 579; 587 (1952).
veloes come from the President, but others come from rulemakers
71. My colleague Benno Schmidt observes that this alliance between Congress and the Presi-
dent may permit a Congress, spurred perhaps by self-interest in avoiding responsibility for diffi-
tion. acting "on the record," and thus also not subject to presidential direc-
subject to direct presidential control or, as here, administrative judges not
cult decisions, excessively to evade its responsibility, as occurred in the Gulf of Tonkin
Resolution. and in effect to confer 100 much authority on the President. Professor Schmidt's ob-
are In particular, congressional delegations of regulatory authority
servation is not an easy one to answer. "Delegation" may remain a viable issue. even in the
-whether executive branch or independent regulatory commission. 75
most often made not to the President, but to some agency or official
political arena, for issues of the largest moment. Cf. infra note 79. For the settings that chiefly
concern me, where the President and Congress must deal continuously with each other on a series
of matters of middling importance, that problem-certainly not one that appeared to concern the
73. Chadha, 103 S. CL. at 2795-96
Court-is not presented.
72. In a detailed review of the history of political dispute over the legislative veto Issue.
74. See supra notes 9-10 and accompanying text.
Justice White seeks to show that Presidents have most frequently objected to veto provisions that
empowered mere committees of Congress to act. 103 S. Ct. at 2793 n.S. He does not address these
ecutive especially agencies; indeed, at points he goes out of his way to suggest commissions legislative and ex-
75. branch Justice White draws no distinction between independent regulatory
committee vetoes, but strongly hints be would disapprove. Even for measures characterizable as
trol. His dissents important for the former, because they are not subject to presidential vetoes are
committee vetoes, however, it may be possible to suggest similar differentiations. See infra notes
note I, underscore from this proposition. the Court's summary affirmances in the two regulatory supervisory cases, see supra con-
92-102 and accompanying text.
appointments I. (1976). The majority opinion in that case had placed within the Valeo, 424 U.S.
284-85 This aspect & n.30 of his position has its roots in his separate opinion in Buckley V.
laws of the United clause in article II of the Constitution any officer of reach of the
States in relation to its cilizens-independent regulatory government commissions administering along the
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The legal authority to act is then that of the delegate, and even for
indisputably executive agencies the President's power of direction ap-
act. The drafters of the Constitution meant the shaping of legislation to
pears limited in ways that make it difficult to characterize him as the
be done by Congress; and that adjustment seems important to the over-
delegate.⁷⁶ It is, then, a question, rather than a matter for easy asser-
all scheme. Unlike the political contexts in which legislative vetoes
were first developed, agency rulemaking results in what are unmistaka-
tion, whether a provision for legislative veto of proposed agency action
merely rearranges the preexisting authority of the three political
government. bly laws unmistakably constraining the conduct of persons outside
branches while preserving the checks each is intended to possess
against the actions of the others. The more difficult Congress makes it,
To be sure, the constitutional design has suffered considerable ero-
in its original delegation, for the President to participate and instruct,
sion. Even absent the legislative veto, Congress' work has frequently
the greater the reason to suspect that the legislative veto does in fact
been wanting. We permit Congress to delegate notably open-ended
operate as a device for evasion of the President's participation in gov-
rulemaking authority to agencies, subject only to the now limited con-
ernance rather than the simple redressing of an imbalance created by
straints of the delegation doctrine: that the authority has been clearly
the practical need to delegate.
delegated;78 and that the authority be described with clarity sufficient
to permit a court to assess whether it has been exceeded. Even so, and
The second difficulty with the "functional equivalency" argument
in the regulatory context is that presidential (or agency) shaping of
putting aside the question whether the courts are not now, and prop-
erly, reinvigorating these controls, use of the legislative veto to control
rules followed by an up-or-down congressional "veto" is not the
agency rulemaking-the generation of statute-like prescriptions bind-
equivalent of the Article I legislative process. The possibility that any
ing upon the citizenry-aggravates the delegation problem rather than
one of the three political arms of government can prevent the enact-
ameliorates it. Congress may have been encouraged by the availability
ment of legislation is only part of the constitutional scheme. Of at least
of the veto both to employ vague standards of delegation to proxy stat-
equal significance is that, where legislation is to be created, the oppor-
ute-shapers, and to respond to its proxies' "excesses" with unexplained,
tunities for shaping and constructive change are to be focused in two of
ad hoc negatives rather than with the construction of revised statutory
them, the House and the Senate. Congress does not act as a lawmaker
prescriptions.79 For these reasons, the authority of Congress to bestow
when it leaves to other entities all possibility of shaping and accommo-
rulemaking power on agencies (subject to judicial check) need not be
dating that go into the drafting of a rule, reserving for itself only the
found to imply authority to reserve a legislative veto. The latter in-
possibility of an unconditional negative;" it then serves the same func-
volves the assertion of a right to act without finality in a manner likely
tion as the President does respecting the legislation Congress does en-
78. Chrysler Corp. V. Brown, 441 U.S. 281, 317-19 (1979).
with what are more traditionally regarded as executive branch agencies -thus resurrecting the
79. Cf. Consumer Energy Council V. FERC, 673 F.2d 425, 465-70 (D.C. Cir. 1982). aff'd sub
question to what extent or in what circumstances the President can be excluded. See Nathanson,
nom Process Gas Consumers Group V. Consumer Energy Council of America, 103 S. a 3556
Separation of Powers and Administrative Law: Delegation, the Legislative Veto, and the "Independ-
(1983) ("[T]be effect of a congressional veto is to alter the scope of the agency's discretion. in this
one" Agencias, 75 Nw. U.L. REV. 1064 (1981); Strause, Separation of Powers and the Fourth Branch
case. the practical effect probably was to withdraw the discretion altogether
in other cases,
The Place of Agencies in Government (forthcoming). One would think the arguments supporting
exercise of the legislative veto may enable one house of Congress effectively to dictate that a
the veto are much weaker in circumstances in which the proposal subject to it can no longer fairly
specific type of rule be promulgated."). Tying the analysis to the delegation issue, as the District
be characterized as the President's, and indeed the suggestion can be made that Congress bas
of Columbia Circuit suggested but the Court did DOL, suggests that a different outcome might be
found a way around the President's own participation in the legislative process and the constitu-
appropriate where "delegation" issues would not ordinarily be thought a concern. Cf. Curran V.
tional requirement of a unitary executive.
Laird, 420 F.2d 122, 129-31 (D.C. Cir. 1969) (en banc) (no delegation problem existed where
76. See United States V. Nixon, 418 U.S. 683, 695-96 (1974) (departmental regulation freed
the court stated:
legislation providing for a reserve Best committed management of it to agency discretion) where
special prosecutor from direction by President in prosecutorial choices, a quintessentially execu-
tive activity). Sierra Club V. Costle, 657 F.2d 298, 407-08 (D.C. Cir. 1981) (discussion of Presi-
That the matter before us for consideration lies in the special zones of the exceptions,
dent's involvement in rulemsking). la this case, in particular, Mr. Chadha would doubtless have
rather than the ordinary area of judicial reviewability. is established by several cardinal
had a telling complaint if the President had called the Attorney General on the telephone and
aspects of the issues. The case involves decisions relating to the conduct of national
instructed him to sell the sitting immigration law judge that Chadha's deportation order was not to
nations flexibility in management of defense resources; and the particular usues call for determi-
defense; the President has a key role: the national interest contemplates and requires
be suspended, because the President had concluded that the statutory criteria were not met, the
sibility that lie outside sound judicial domain in terms of aptitude, facilities and respon-
governing statute requires that judgment be made "oo the record." 8 U.S.C. I 1252(b) (1982). see
(Ojur decision does not involve personal rights and liberties, does not
supea note 9.
that qualifies what would otherwise be non-reviewable discretion.
involve constitutional claims. and does not involve a right expressly granted by statute
n. See Kurland, The Imposence of Reticence, 1968 DUKE L.J. 619, 629.
80. Chadha, 103 S. Ct. at 2802.
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to be harmful, not helpful, to Congress' "designated role."81 It evokes
untempered the fears of arbitrary political action by Congress that so
hance the aggressiveness of political oversight by congressmen or con-
strongly prompted the Framers' efforts to design institutions that would
gressional committees. In sum, the existence of a legislative veto in a
avoid the threat of legislative tyranny. In contrast, a Congress grant-
regulatory statute may look much more like political self-aggrandize-
ing to agencies what, from its perspective, is a final authority to make
ment than "a means of defense" against the Imperial Presidency.
rules may be encouraged by that prospect to more precision in stan-
The record of the exercise of legislative vetoes in the regulatory context,
dard-setting. Such precision is desirable both to facilitate judicial re-
although infrequent, is not reassuring, either as to its impact on Con-
view and to protect the citizen against arbitrary action. Additional
ical accommodation."
gress' primary function of legislating or as to its use as a means of polit-
protection may be derived if the actual rulemaker is obliged to act on
ostensibly rational, apolitical grounds, freed to some extent from the
Both these difficulties with the "functional equivalency" argument
directory, political influence of the President or Congress.83 Room thus
might also be raised with respect to three devices which the majority
exists at least for suspicion that legislative vetoes will produce less care-
did not seem to intend to call into question: the lay-before technique
ful initial drafting by providing a mechanism whereby difficult issues
for rulemaking, by which the judiciary's own procedural rulemaking is
can be cheaply revisited. The threat of their exercise may also en-
accomplished, in which proposed rules are laid before Congress and
become effective only if not disapproved by statute within a stated
81. To be sure, the "Lockean principle that the grant of legislative power is one 'only to make
riod; congressional use of appropriations lines, essentially insulated pe-
laws, and not to make legislators' has fallen before the inexorable momentum of the administra-
from presidential disapproval by his inability to effect an item veto, to
tive state." Monaghan, Marbury and Administrative Law, 83 COLUM. L. REV. 1, 25 (1983).
control particular agency endeavors; and congressional delegation of
Authority finally conferred may be executed, however, with an assurance and subject to an exter-
asi check that authority granted in conditional form may not. To put the same argument in a
rulemaking authority to a body, such as an independent regulatory
somewhat different way, Congress may be seen more fully to have acted "10 make legislators"
commission, ostensibly placed beyond the President's usual executive
when the authority is confers is subject to its own informal controls and, perhaps. removed from
branch oversight. Each of these devices may effectively defeat present-
executive controls.
82. G. WILLS. EXPLAINING AMERICA 213-14, 260-64 (1981): see Consumer Energy Council V.
ment of the agency's development of law while maintaining substantial
FERC, 673 F.2d 425. 464 (D.C. Cir. 1982). aff'd, sub nom Process Gas Consumers Group V.
congressional controls. In this way, each might be characterized as an
Consumer Energy Council of America, 103 S. Ct. 3556 (1983)
end run around the President's veto power. At least the first two also
83. The to some extent" is advertent. judge-like insulation of the rulemaker would be inap-
seem to provide Congress with an effective technique by which to es-
propriate. Rulemaking, in my view, properly continues to be performed "off the record." in a
technical sense; its very focus on policy-making warrants provision for political oversight in some
cape any need for statutory precision. Congress remains able to enact
form, see Strause, Disqualification of Decisional Officials in Rulemaking, 80 COLUM. L. REV. 990,
vague standards subject to its own subsequent, ad hoc correction.
995 (1980). alboit subject to what might be described as Marquis of Queensbury rules. Cf. District
These are troublesome observations, but the result may be to call into
of Columbia Fed'n of Civic Asson's V. Volpe, 459 F.2d 1231, 1246 (D.C. Cir. 1971) (rulemaker's
decision would be invalid if based in whole or in part on pressures emanating from certain Con-
question these techniques as well. Short of that, one may remark
greasmen) care denied. 405 U.S. 1030 (1972). For policy-making intended to influence planning
that, unlike the legislative veto, each device contains significant self-
choices (major purchases and other compliance activities by the public at large), the alternative of
corrective or limiting factors. Lay-before statutes require Congress to
remitting all control to the random. episodic, party-distorted. and necessarily long delayed world
surrender substantially greater control than the legislative veto and to
of judicial review is unsustainable. One might note in this respect the constitutional responsibility
for oversight inherent in the President's authority to demand "the Opinion, in writing. of the
that extent encourage initial drafting precision. In creating independ-
principal Officer in each of the executive Departments, upon any Subject relating to the duties of
ent agencies, Congress also relinquishes substantially more control
their respective Offices," U.S. CONST. art. II. $2, cl.1, as well as Congress' yearly, and intended,
control over agency priorities through the appropriations process.
84. The logislative veto provision at issue in Consumer Energy Council V. FERC, 673 2d
with the statute, or of the justification for the rule under the statute, occurred. Instead. the
425, 437 (D.C. Cir. 1982). aff'd sub nom Process Gas Consumers Group V. Consumer Energy
had exercised been its veto because it was convinced that the original statutory authorization for House
Council of America, 103 S. Cl. 3556 (1983). is a case in point. The Federal Energy Regulation
in error and that the program FERC was implementing. entirely faithfully rulemaking so far as
anyone was concerned, ought never to have been adopted.
Commission (FERC) had adopted a rule, with bigh financial consequences for the energy indus-
85. Chadha, 103 S. Ct. at 2796 (White, J., dissenting).
try, in compliance with a directive in President Carter's energy legislation. The reservation of a
legislative veto substantially resulted from the fact that the legislation had been highly controver-
sial and difficult to pass and because authorization of this particular rulemaking had been espe-
in return for accretions to the President's own power has no application in this context.
86. Understandably, Justice White's history of presidential bargaining for legislative veloes
87. See supra note 84 and accompanying text.
cially controversial. When the rule was adopted by FERC and forwarded to Congress for its
consideration of the legislative veto insue, no substantial discussion of the compliance of FERC
meal (forthcoming).
88. See Strauss, Separation of Powers and the Fourth Branch: The Place of Agencies in Gover-
812
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LEGISLATIVE VETO DECISION
813
than it could retain with the legislative veto. Finally, appropriations
Committees on Appropriations."93 Provisos such as these are neither
measures are episodic, politically linked with other matters, and impre-
uncommon, nor counted in totaling up the number of legislative veto
cise in their impact. More generally, to uphold any of these devices it
provisions or the frequency of their exercise. Presumably the Congress
need not be conceded that Congress can validly exclude the President
enacting such a proviso is not yet prepared to appropriate funds for the
from political oversight of activities for which Congress maintains its
stated purpose, and the measure reflects a compromise with an execu-
own political connections.
tive seeking added flexibility that Congress is not required to afford.
Even without such provisos, it is commonplace for an agency subjected
V. PRESERVING THE POLITICAL VETO
to a line-item budget, and uncertain about its authority or wishing to
reallocate its funds, to call the relevant appropriations committee and
This consideration of the "functional equivalency" argument sug-
explain its plan; with committee approval, or perhaps absent objection,
gests a broad distinction between use of the legislative veto as a check
the changed expenditures can be made within the limits established by
on the chief executive, and use of the legislative veto as a check on any
the overall appropriation. The enforcement of budgetary limitations is
agency to which power has been delegated. The New Jersey Supreme
almost wholly internal to the political branches of government, and a
Court, in a pair of recent decisions, drew just such a distinction. It
matter of intense and appropriate congressional interest. Judicial con-
struck down a provision for general legislative veto of proposed agency
trols could be invoked only with great difficulty and the provisions
rules, while upholding a specific provision establishing legislative veto
rarely if ever implicate private claims of right. So long as the line-item
procedures for projects proposed by the state's building authority that
budget is employed-and it is hard to construct either the argument
would require long-term leases by state agencies. In the former setting,
that Congress must enact an aggregate budget for each agency or the
the court thought the legislative veto threatened both to impair the bal-
belief that, as a political matter, it soon will95-it is useful to both sides
ance of power within state government and to diminish the quality of
to have an informal technique for adjustments of expenditure within
initial legislative efforts.90 The latter measure concerned essentially
the overall aggregate appropriation to a given agency.
political accommodations, with no diminution of gubernatorial control;
The District of Columbia Circuit's opinion, rendered prior to
the legislature's opportunity to disapprove a proposal could be thought
Chadha, finds the proviso offensive, both as a departure from the bi-
of as creating a form of moral obligation to make the future appropria-
cameral-presentment requirements of "legislative action" and as a
tions meet the proposal's terms. In this respect, the New Jersey court
"means for Congress to control the executive without going through the
evidently believed. that the opportunity for a legislative veto was not
full lawmaking process, thus unconstitutionally enhancing congres-
merely unobjectionable, but in fact served a positive function in the
arrangements of state government.
93. Department of Housing and Urban Development-Indepandent Agencies Appropriation
A recent panel opinion in the United States Court of Appeals for
Act. 1983, Pub. L. No. 97-272, 96 Stat. 1160, 1164 (1982).
the District of Columbia Circuit, American Federation of Government
94. In most circumstances, the interest involved in enforcing a required limitation on expend-
Employees V. Pierce,92 may suggest the difficulties in failing to make
itures of governmental funds would be a "generalized grievance" about governmental adherence
such distinctions. The case involved an annual appropriations bill for
to law insufficient to sustain constitutional standing. in American Fed'n of Gov's Employees, 697
F.2d at 305, however, the court held that only a member of the House of Representatives Appro-
the Department of Housing and Urban Development which had pro-
priations Committee had a sufficient personal stake and then only because of its relationship to the
vided, in part, that none of the funds it made available "may be used
Committee's authority.
prior to January 1, 1983, to plan, design, implement, or administer any
95. Indeed, il seems likely that Congress will learn to substitute appropriations controls for
reorganization of the Department without the prior approval of the
the legislative veto; the Chadha court was quite explicit in reaffirming the continuing power of the
purse. Those who drafted the Constitution believed that ultimate control inevitably lay with Con-
gress because it possessed the power of the purse. See, e.g., THE FEDERALIST No. 78, at 522-23 (A.
Hamilton) (1. Cooke ed. 1961); of. G. WILLS, supra note 82. at 128, 135 (Congress is given what
89. General Assembly V. Byrne, 90 N.J. 376, 379, 448 A.2d 438, 439 (1982): Enourato V. N.J.
might be called "shoot-out" power, the weapons for a final showdown with both other branches.).
Building Authority, 90 NJ. 396, 401-02, 448 A.2d 449, 451-52 (1982).
In this respect, those who see in the legislative veto decisions added power for the executive in its
90. Byrne. 90 N.J. at 395-96, 448 A.2d at 448-49.
relations with Congress seem certain to be disappointed; and that will likely be more, rather than
91. Enourato, 90 N.J. at 401, 405, 448 A.2d at 451, 453.
less, the case if the appropriations authority cannot itself be rendered flexible by mechanisms like
92. 697 F.2d 303 (D.C. Cir. 1982).
committee approvals.
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sional power at the expense of executive power."⁹⁶ Nothing in Chadha
cess,99 and hence violative of separation of powers, is questionable on
suggests a need to reconsider this judgment. Yet, if one considers the
budgetary process as a whole, neither of these characterizations is, or at
these facts and, in addition, apparently insufficient. The full legislative
least need be," apt. Appropriations measures originate with the Presi-
process is used at least annually; although the "one bite at the apple"
theory invoked by Justice White in general defense of the legislative
dent and must be signed by him; his Office of Management and
veto raises problems when applied to measures of indefinite duration
Budget, with but few exceptions, controls both the initial submissions
and broad authority, it seems less problematic in the budgetary context.
and requested alterations. Housing and Urban Development Secretary
The District of Columbia Circuit panel's characterization of such
Pierce is unlikely to have taken the steps that brought about the lawsuit
measures as involving "enhanced control" rather than "enhanced flex-
in American Federation of Government Employees without the initial as-
ibility," "enhanced precision," or "enhanced executive authority"
surance of presidential backing, as he would not have sought commit-
seems at the least to depend on a careful understanding of the particu-
tee approval for the otherwise forbidden expenditures without that
lar context in which control will be exercised. It seems doubtful that
assurance.9 The limited duration of appropriations measures and the
Congress would be willing to make the questioned appropriation ab-
practical difficulty the President in any event faces in exercising his
sent some technique for later assuring itself, or its trusted agents, that
veto authority over such measures also suggest a presentment issue far
an appropriation that now seems unjustified has in fact become war-
less substantial than that involved when an agency is authorized, for an
ranted by intervening events. If that is so, it is hard to treat these meas-
indefinite term and without presidential participation, to adopt rules as
ures as if only Congress gains in power and the President necessarily
binding as statutes on the public at large, rules which are then made the
loses. As already noted, 100 the Court's recent separation of powers
subject of legislative veto procedures.
cases make threat to core function, not marginal enhancement of polit-
Similarly, viewing such practices as means for enhancing congres-
ical clout in a necessarily fluid relationship, central in any event. Even
sional control over the executive without use of the full legislative pro-
if such measures enhanced Congress' control, it is impossible to make
that assessment unless one can show (as was not urged here) a general-
ity of use and impact. As Judges Wald and Mikva suggested in the
96. American Fed'n of Govt Employees, 697 F.2d at 306.
course of explaining, sua sponte, their unavailing wish to set the case
97. Imagine a situation in which an independent regulatory commission has secured "condi-
tional" authority to spend, albeit with the post-appropriations approval of its appropriations com-
for argument en banc, the government gains in flexibility when ar-
missee. sums which the President did not request. The President has had the chance to approve
rangements such as these can be made. 101 Indeed it is difficult to un-
the condition. as he could have had an unconditional appropriation for this unwanted expendi-
derstand how these arrangements present the risks of one-branch or
ture; about the possibility of a line-item veto, either is at best a crude instrument of control
Perhaps it could be argued in such a case that Congress had evaded the functional equivalent
even one-house hegemony, of government out of control, that initially
of presentment inherent in the presidential budget process and the presidential Office of Manage-
produced the allocation of governmental authority that characterizes
our Constitution.
ment and Budget's controls over agency budget proposals and requests for funding. Or. at some
point, the very thickness of a forest of conditional appropriations might persuade one that Con-
gress had passed over from enhancing executive flexibility at the price of congressional participa-
99. It might be remarked that use of hearings and other oversight measures are also means
tion, to attempting to seize the reins of control more firmly than the appropriations authority
already envisages. The distinction here might not be unlike that that permits the courts to swallow
for enhancing congressional control over the executive without use of the full legislative process,
most delegations, but caused them to pause before the sweeping empowerment of the National
although in this instance the obligation of the executive to respond is marked by political expedi-
ency rather than legal constraints. I do not mean to ignore that difference. Yet one must avoid the
Industrial Recovery Act, Pub. L. No. 73-67, 48 Stat. 195. 196 (1933). see Schechter Poultry Corp.
attitude, which might be taken from the Court's opinion, that congressional controls over execu-
V. United States. 295 U.S. 495, 539-42 (1935): or that permits substantial federal regulation of state
live agencies are undesirable-that it suffices to leave all control in the hands of the courts. Put-
concerns, but not to the point of extinguishing state control of essential functions. See supra note
ting aside that any such proposition is infected with a disqualifying degres of self-interest in the
62.
courts, judicial controls ATC simply incapable of providing timely oversight or invoking political
98. The case arose out of an alleged disobedience of the statutory provision, when the Secre-
responsibility in the exercise of discretion within the law. cf. Sierra Club. V. Costle, 657 F.2d 298,
tary announced a reduction in force in the Department. effective before January 1. 1983. and
410 (D.C. Cir. 1981) ("Cases like this highlight the critical responsibilities Congress has entrusted
apparently signated that funds had been expended to design and implement a departmental reor-
to the courts in proceedings of such length, complexity and disorder.") The expectation. indeed
ganization: the only plaintiff found to have standing to sue was a member of the House Appropri-
the purpose of those who drafted the Constitution was to assure that the political branches con-
ations Committee asserting that his statutory claim to approval had been defeated. and he was
stantly checked one another; that there may be excesses in the process that threaten to undo the
then met with a determination that that claim was unconstrutional. See American Fed'n of Gov's
balance the Constitution sought is not to be mistaken for disapproval of the continuing struggle.
Employees. 697 F.2d at 305-06.
100. See supra note 62 and accompanying text.
101. American Fed'n of Gov't Employees, 697 F.2d at 308-09.
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With two exceptions, measures such as these seem precisely paral-
President and the Congress. Yet for the cases it did not have to decide,
lel to the earliest delegation cases, cases in which Congress set tariff
but seemed to Justice White's premises seem stronger than the
levels and then permitted the President to vary them if he found that
majority's."
specified conditions had been met. Those legislative actions were up-
held despite their conditional character. The two exceptions are, first,
VI. CONCLUSION
that Congress did not set forth standards for the congressional commit-
tees' exercise of the releasing authority that it granted; and, second, that
The argument that a legislative veto can be the functional
a part of the legislature, rather than the executive, determined whether
equivalent of "normal" constitutional processes-or, perhaps more
or not the conditions had been met. If the lack of adequate standards
properly, works no threatening rearrangement of initiative and author-
threatened public interests as, for example, it seems to do for legislative
ity-is persuasive for the settings in which the device was earliest and
vetoes of agency rulemaking,102 that would provide a basis for distinc-
most commonly used:
tion. "Delegation" has continued bite in that context. But an excep-
- where the President himself takes or directs the action subject to
tional measure for freeing the executive branch to spend funds within
the legislative veto;
general appropriation limits for purposes not otherwise authorized is
- where the subject matter principally concerns the internal ar-
hard to characterize as presenting such a threat to the public; its internal
rangements of government rather than rules of conduct applicable to
implications, as already suggested, are at the least a function of context.
the public, and judicial consideration at any stage is unlikely;
That a congressional committee, rather than the President or some
- where both the President and Congress have an important in-
agency, determines whether the conditions have been satisfied, simi-
terest in the subject matter of the action to be taken, and congressional
larly, seems important for some contexts but unexceptionable in the
participation through the veto may prompt less grudging recognition of
world of continuing executive-legislative interaction that characterizes
the President's participation and/or a sense of moral commitment to
the budget process. In such a continuing relationship, limiting one par-
provide fiscal or other support for the resulting arrangements.
ticipant to episodic, formal, even clumsy acts is likely to produce rigid-
The argument is far less persuasive, however, in the regulatory set-
ity and a covetousness about power that will hamper the effective
ting, where, on the other hand:
conduct of government and may weaken the presidency far more than
- the President ordinarily is not a direct participant, and may
the alternative. The same is true for reorganization acts; in a govern-
even be excluded from direct participation;
ment premised on the selection of a single executive as its head, it is
- -judgments affecting individual interests or obligations are to be
internally sensible and externally non-threatening for the President to
made, and judicial review of agency action is readily available;
be the prime shaper of the internal structures of government, subject to
- permitting use of the legislative veto may tempt Congress to
congressional disapproval.
believe that it can easily correct the excesses of a careless formula gov-
Obviously, there could be disagreements about particular meas-
erning the obligations of the public, and correct them without the need
ures, but the general utility of the New Jersey court's approach seems
to articulate a fresh or limiting principle; and
evident. One wishes the Court had limited itself to the particular meas-
- the justification offered for use of the veto is framed not in
ures before it, or that it or Justice White had shown some sensitivity in
terms of political accommodation between a Congress and President,
addressing the variety of settings in which legislative vetoes might be
employed. In the three cases it had to decide, the Court reached a
103. It is disappointing that, while Justice White deplores the majority's failure to find a mid-
sound result: Congress has no business determining that the individual
die ground and makes several intriguing suggestions for future development. be himself takes an
circumstances of a particular alien warrant his deportation; and in the
apparently uncompromising position. Perhaps Justice White's most intriguing suggestion is for a
regulatory rulemaking context, especially as it concerns the independ-
statutory direction to courts to regard legislative resolutions of disapproval as relevant legislative
history. Chadha, 103 S. Ct. at 2796 n.il. The new Model State Administrative Procedure Act
ent regulatory commissions, the legislative veto does seem to exclude
embodies a provision of this character as a substitute for legislative veto; adoption of the legisla-
the President rather than mediate a continuing dialogue between the
live resolution deprives the agency action of any presumption of validity. requiring the agency
affirmatively to demonstrate its authority for the measure adopted. See MODEL STATE ADMINIS-
TRATIVE PROCEDURE ACT # 3-203, 3-204 and Commissioner's Comments, 14 U.L.A. 97-101
102. See supra notes 78-87 and accompanying text.
(Supp. 1983).
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819
both interested in the premises, but only in terms of Congress' perform-
ance of its own legislative function.
Neither the majority opinion nor Justice White's dissent seem to
found likely verbal hook for the accomplishment of modification is most
If opportunities for reconsideration do occur, perhaps the
leave much room for accommodations of this character. Perhaps the
determining whether challenged action is "legislative" or not. For test for
in the majority's stress on "altering legal rights" as the to be
Court's opinion will, over the years, be confined to its facts. In the late
1920's, the Court heard argument and then reargument in a much pub-
reasons already suggested, that inquiry does not make much the
licized dispute over the President's right to fire a postmaster without
in means of determining "legislative" character. If it could be sense as a
senatorial approval. A divided Court, in lengthy and seemingly cate-
tinction slightly different terms, however, it could provide the basis understood for dis-
gorical opinions, upheld the President's authority on sharply stated sep-
rights, duties and relations of persons
like that suggested above. As framed ("altering the a legal
aration of powers grounds. 104 Many sensible arrangements of
government, most notably, the fixed term of office given some officers,
branch") of it seems to extend to the political, largely outside infra-governmental the legislative
such as regulatory commissioners, seemed to have been called into
zens. The President is a person, as are the other actors in cabinet de-
uses the legislative veto as well as to those that directly affect citi-
question. Ten years had not passed before a unanimous Court easily
found its way to the conclusion that, that decision notwithstanding,
Congress could provide protected terms of office for regulatory com-
zation relations" might be affected by legislative veto of a proposed
partments and government agencies whose "legal rights, duties and
missioners. 105 One may hope for a similar outcome here.
or impoundment. It would take rather little readjustment reorgani- in lan-
Looking back at the majority opinion to see how that might be
guage, however, and perhaps none in meaning, to read the test
achieved, one must begin with some pessimism as to whether the op-
that forbidding legislative vetoes only of those sorts of government action as
portunity will soon arise. As the popular press reported, and Justices
duties have as their principal purpose and effect "altering the legal
and relations of persons" outside government. The altered rights,
Powell and White decried, the majority seems bent on eliminating the
legislative veto device in all its forms. The formal approach the major-
but still could not be viewed as a measure of what is or is not "legislative"; test
ity took does not readily yield to the functional distinctions here sug-
gested. The strength of the Court's language will discourage
would be a far more satisfactory rendering of the conjoined overall, of
that is not the issue. The results of such an approach,
challenges. Perhaps more important, the political settings for which
characterize our Constitution.
governmental flexibility, role dispersal, and citizen protection purposes that
use of the legislative veto seems most justified seem also to be the least
likely to produce sustainable litigation. 107 Thus, future judicial oppor-
tunities to examine these issues seem likely to be infrequent at best.
104. Myers V. United States. 272 U.S. 52 (1926)
105. Humphrey's Ex'r V. United States, 295 U.S. 602, 626-30 (1935). Humphrey's Ex'r em-
ployed a highly formalistic analysis. highly misleading in my view and since displaced by the
reasoning in Buckley. 424 U.S. I. 118-43 (1976). The result. however, was plainly the right one.
106. Those distinctions do not. in my view, deny meaning to the requirements of bicameralism
and presentment for the enactment of laws. The problem. again, is whether to regard the exercise
of a legislative veto as the enactment of law. The burden of the preceding discussion is that, first.
there is no necessary reason to do so and, second. that there is good reason not to do so. Some
veloes adequately preserve the President's role while also serving proper congressional interests
and. most importantly. equally serving citizens' interests in enjoying a government of adequate
strength and flexibility which yet tends to be held in check by the natural and continuing competi-
tion for political authority among its parts.
107. Reorganization, the exercise of authorities subject to the War Powers Resolution. 87 Stat.
555, 556-57 (1973) (codified at 50 U.S.C. 8 1544 (1976)). impoundment. see, e.g., Congressional
Budget and Impoundment Control Act of 1974, 88 Stat. 297. 334-35 (1974) (codified at 31 U.S.C.
# 1403 (1976)). and the like will not, in my judgment. often produce justiciable controversies be-
tween parties with standing to seek their resolution. Cf. American Fed'n of Gov'l Employees V.
Pierce, 697 F.2d 303, 305 (D.C. Cir. 1982) (Congressman did not have standing as legislator. but
did have standing as member of House Appropriations Committee).
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
July 28, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Draft State Department Q & A's
on Legislative Veto
OMB is in the process of clearing State Department Q & A's
on legislative veto, and has asked for the views of Justice,
Defense, and NSC by noon August 1. The Q & A's review all
of the major statutes in the area of foreign affairs contain-
ing legislative vetoes (War Powers Resolution, Foreign
Assistance Act, Arms Export Control Act, Nuclear
Non-Proliferation Act, Atomic Energy Act, Jackson-Vanik
Amendment) and concludes with respect to each that the
legislative veto is unconstitutional and severable. The
President's powers and the report and wait provisions thus
survive. The draft answers stress the executive branch's
commitment to close consultation with Congress in developing
and implementing a bipartisan foreign policy. The answers
also oppose the various proposals that have been advanced to
bar executive actions in the absence of affirmative
Congressional authorizations as a substitute for legislative
vetoes.
The Q & A's on sections 669 and 670 of the Foreign
Assistance Act note that prior to the 1981 amendments, the
statute provided for a joint resolution veto of Presidential
waivers. The 1981 amendments substituted concurrent
resolution vetoes. The draft answer states: "Since the
1981 change is not valid, it is my view that the joint
resolution veto provision is reinstated."
This is absurd. The judicial invalidation of amendments by
no means operates to resurrect those provisions repealed by
the amendments. If the law specifies A, Congress repeals A
and substitutes B, and B is declared unconstitutional, A is
not suddenly the law once again. It has been repealed and
can only become law by re-enactment.
Congress can overturn a Presidential waiver under section
669 or 670 by a joint resolution, but recognition of that
fact is far different from saying that the pre-1981 "joint
resolution veto provision is reinstated." I would strike
the last sentence of these draft answers and substitute the
following: "If Congress strongly disagrees with a Presiden-
tial waiver it can always attempt to overturn it through a
joint resolution."
THE WHITE HOUSE
WASHINGTON
July 28, 1983
MEMORANDUM FOR RONALD PETERSON
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Clearance of Department of State Draft
Q & A's Concerning Legislative Veto
Counsel's Office has reviewed the proposed State Department
Q & A's on legislative vetoes, and objects to the draft
answers to questions on sections 669 and 670 of the Foreign
Assistance Act. The draft answers note that prior to 1981,
these sections provided for a joint resolution veto of
Presidential waivers. The 1981 amendments substituted
concurrent resolution vetoes invalid under Chadha. The last
sentence of both draft answers states: "Since the 1981
change is not valid, it is my view that the joint resolution
veto provision is reinstated."
There is no legal support for the proposition that the
judicial invalidation of an enacted amendment operates to
resurrect the provision repealed by the amendment. In no
sense are the joint resolution veto provisions of sections
669 and 670 "reinstated" by the invalidation of the concur-
rent resolution veto provisions substituted for them in
1981. We recommend striking the last sentence of both of
these answers and substituting the following, or something
like it: "If Congress strongly disagrees with a Presidential
waiver it can always attempt to overturn it through a joint
resolution."
CC: Theodore B. Olson
FFF:JGR:aw 7/28/83
CC: FFFielding
JGRoberts
Subj.
Chron