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Ronald Reagan Presidential Library
Digital Library Collections
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Collection: Roberts, John G.: Files
Folder Title: JGR/Chadha (2 of 9)
Box: 8
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SUPREME COURT OF THE UNITED STATES
Nos. 80-1832. 80-2170 AND 80-2171
IMMIGRATION AND NATURALIZATION SERVICE,
APPELLANT
80-1832
v.
JAGDISH RAI CHADHA ET AL.
ON APPEAL FROM THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES HOUSE OF REPRESENTATIVES,
PETITIONER
80-2170
v.
IMMIGRATION AND NATURALIZATION
SERVICE ET AL.
UNITED STATES SENATE, PETITIONER
80-2171
2.
IMMIGRATION AND NATURALIZATION
SERVICE ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 23, 1983]
JUSTICE POWELL, concurring in the judgment.
The Court's decision, based on the Presentment Clauses,
Art. I, §7, cl. 2 and 3, apparently will invalidate every use of
the legislative veto. The breadth of this holding gives one
pause. Congress has included the veto in literally hundreds
80-1832. 80-2170 & 80-2171-CONCUR
2
INS v. CHADHA
of statutes, dating back to the 1930s. Congress clearly
views this procedure as essential to controlling the delegation
of power to administrative agencies.¹ One reasonably may
disagree with Congress' assessment of the veto's utility,2 but
the respect due its judgment as a coordinate branch of Gov-
ernment cautions that our holding should be no more exten-
sive than necessary to decide this case. In my view, the case
may be decided on a narrower ground. When Congress
finds that a particular person does not satisfy the statutory
criteria for permanent residence in this country it has as-
sumed a judicial function in violation of the principle of sepa-
ration of powers. Accordingly, I concur in the judgment.
I
A
The Framers perceived that "[t]he accumulation of all pow-
ers legislative, executive and 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." The Federalist No. 47, p. 324 (J.
Cooke ed. 1961) (J. Madison). Theirs was not a baseless
fear. Under British rule, the colonies suffered the abuses of
unchecked executive power that were attributed, at least
popularly, to an hereditary monarchy. See Levi, Some As-
1 As JUSTICE WHITE'S dissenting opinion explains, the legislative veto
has been included in a wide variety of statutes, ranging from bills for exec-
utive reorganization to the War Powers Resolution. See post, at 3-9.
Whether the veto complies with the Presentment Clauses may well turn on
the particular context in which it is exercised, and I would be hesitant to
conclude that every veto is unconstitutional on the basis of the unusual ex-
ample presented by this litigation.
See Martin, The Legislative Veto and The Responsible Exercise of
Congressional Power, 68 Va. L. Rev. 253 (1982); Consumer Energy Coun-
cil of America v. FERC, U.S. App. D. C. , - 673 F. 2d 425,
475 (1982).
80-1832, 80-2170 & 80-2171-CONCUR
INS L'. CHADHA
3
pects of Separation of Powers, 76 Colum. L. Rev. 369, 374
(1976); The Federalist No. 48. During the Confederation,
the States reacted by removing power from the executive
and placing it in the hands of elected legislators. But many
legislators proved to be little better than the Crown. "The
supremacy of legislatures came to be recognized as the su-
premacy of faction and the tyranny of shifting majorities.
The legislatures confiscated property, erected paper money
schemes, [and] suspended the ordinary means of collecting
debts." Levi, 76 Colum. L. Rev., at 374-375.
One abuse that was prevalent during the Confederation
was the exercise of judicial power by the state legislatures.
The Framers were well acquainted with the danger of sub-
jecting the determination of the rights of one person to the
"tyranny of shifting majorities." Jefferson observed that
members of the General Assembly in his native Virginia had
not been prevented from assuming judicial power, and
""[t]hey have accordingly in many instances decided rights
which should have been left to judiciary controversy.":
The Federalist No. 48, p. 336 (J. Cooke ed. 1961) (emphasis
in original) (quoting T. Jefferson, Notes on the State of Vir-
ginia 196 (London edition 1787)). The same concern also was
evident in the reports of the Council of the Censors, a body
that was charged with determining whether the Pennsylva-
'Jefferson later questioned the degree to which the Constitution insu-
lates the judiciary. See D. Malone, Jefferson the President: Second Term,
1805-1809, pp. 304-305 (1974). In response to Chief Justice Marshall's
rulings during Aaron Burr's trial, Jefferson stated that the judiciary had
favored Burr-whom Jefferson viewed as clearly guilty of treason-at the
expense of the country. He predicted that the people "will see and amend
the error in our Constitution, which makes any branch independent of the
nation." Id., at 305 (quoting Jefferson's letter to William Giles). The
very controversy that attended Burr's trial. however, demonstrates the
wisdom in providing a neutral forum, removed from political pressure, for
the determination of one person's rights.
80-1832. 80-2170 & 80-2171-CONCUR
4
INS v. CHADHA
nia Legislature had complied with the state constitution.
The Council found that during this period "[t]he constitu-
tional trial by jury had been violated; and powers assumed,
which had not been delegated by the Constitution.
[C]ases belonging to the judiciary department, frequently
[had been] drawn within legislative cognizance and deter-
mination." Id., at 336-337.
It was to prevent the recurrence of such abuses that the
Framers vested the executive, legislative, and judicial pow-
ers in separate branches. Their concern that a legislature
should not be able unilaterally to impose a substantial depri-
vation on one person was expressed not only in this general
allocation of power, but also in more specific provisions, such
as the Bill of Attainder Clause, Art. I, § 9, cl. 3. As the
Court recognized in United States V. Brown, 381 U. S. 437,
442 (1965), "the Bill of Attainder Clause was intended not as
a narrow, technical
prohibition, but rather as an imple-
mentation of the separation of powers, a general safeguard
against legislative exercise of the judicial function, or more
simply-trial by legislature." This Clause, and the separa-
tion of powers doctrine generally, reflect the Framer's con-
cern that trial by a legislature lacks the safeguards necessary
to prevent the abuse of power.
B
The Constitution does not establish three branches with
precisely defined boundaries. See Buckley V. Valeo, 424
U. S. 1, 121 (1976) (per curiam). Rather, as Justice Jackson
wrote, "[w]hile the Constitution diffuses power the better to
secure liberty, it also contemplates that practice will inte-
grate the dispersed powers into a workable government. It
enjoins upon its branches separateness but interdependence,
autonomy but reciprocity." Youngstown Sheet & Tube Co.
V. Sawyer, 343 U.S. 579, 635 (1952) (concurring opinion).
The Court thus has been mindful that the boundaries be-
tween each branch should be fixed "according to common
80-1832, 80-2170 & 80-2171-CONCUR
INS v. CHADHA
5
sense and the inherent necessities of the governmental co-or-
dination." J.W. Hampton, Jr. & Co. V. United States, 276
U. S. 394, 406 (1928). But where one branch has impaired
or sought to assume a power central to another branch, the
Court has not hesitated to enforce the doctrine. See Buck-
ley V. Valeo, supra, at 123.
Functionally, the doctrine may be violated in two ways.
One branch may interfere impermissibly with the other's per-
formance of its constitutionally assigned function. See
Nixon V. Administrator of General Services, 433 U. S. 425,
433 (1977); United States V. Nixon, 418 U. S. 683 (1974). Al-
ternatively, the doctrine may be violated when one branch
assumes a function that more properly is entrusted to an-
other. See Youngstown Sheet & Tube Co. V. Sawyer, supra,
at 587 (1952); Springer V. Philippine Islands, 277 U. S. 189,
203 (1928). This case presents the latter situation.
II
Before considering whether Congress impermissibly as-
sumed a judicial function, it is helpful to recount briefly
Congress' actions. Jagdish Rai Chadha, a citizen of Kenya,
stayed in this country after his student visa expired. Al-
though he was scheduled to be deported, he requested the
Immigration and Naturalization Service to suspend his de-
portation because he met the statutory criteria for perma-
nent residence in this country. After a hearing,⁵ the Service
The House and the Senate argue that the legislative veto does not pre-
vent the executive from exercising its constitutionally assigned function.
Even assuming this argument is correct. it does not address the concern
that the Congress is exercising unchecked judicial power at the expense of
individual liberties. It was precisely to prevent such arbitrary action that
the Framers adopted the doctrine of separation of powers. See, e. g., My-
ers v. United States, 272 U. S. 52. 293 (1926) (Brandeis. J., dissenting).
5 The Immigration and Naturalization Service, a division of the Depart-
ment of Justice, administers the Immigration and Naturalization Act on
behalf of the Attorney General, who has primary responsiblity for the Act's
80-1832. 80-2170 & 80-2171-CONCUR
6
INS v. CHADHA
granted Chadha's request and sent-as required by the res-
ervation of the veto right-a report of its action to Congress.
In addition to the report on Chadha, Congress had before it
the names of 339 other persons whose deportations also had
been suspended by the Service. The House Committee on
the Judiciary decided that six of these persons, including
Chadha, should not be allowed to remain in this country.
Accordingly, it submitted a resolution to the House, which
stated simply that "the House of Representatives does not
approve the granting of permanent residence in the United
States to the aliens hereinafter named." 121 Cong. Rec.
40800 (1975). The resolution was not distributed prior to the
vote,6 but the Chairman of the Judiciary Committee ex-
plained to the House:
"It was the feeling of the committee, after reviewing 340
cases, that the aliens contained in the resolution did not
meet [the] statutory requirements, particularly as it re-
lates to hardship; and it is the opinion of the committee
that their deportation should not be suspended." Ibid.
(remarks of Rep. Eilberg).
Without further explanation and without a recorded vote, the
House rejected the Service's determination that these six
people met the statutory criteria.
On its face, the House's action appears clearly adjudica-
enforcement. See 8 U. S. C. § 1103. The Act establishes a detailed ad-
ministrative procedure for determining when a specific person is to be de-
ported, see § 1252(b), and provides for judicial review of this decision, see
§ 1105(a); Foti V. INS, 375 U. S. 217 (1963).
"Normally the House would have distributed the resolution before act-
ing on it, see 121 Cong. Rec. 40800 (1975), but the statute providing for the
legislative veto limits the time in which Congress may veto the Service's
determination that deportation should be suspended. See 8 U. S. C.
§ 1254(c)(2). In this case Congress had Chadha's report before it for ap-
proximately a year and a half, but failed to act on it until three days before
the end of the limitations period. Accordingly. it was required to abandon
its normal procedures for considering resolutions, thereby increasing the
danger of arbitrary and ill-considered action.
80-1832, 80-2170 & 80-2171-CONCUR
INS 2. CHADHA
7
tory. The House did not enact a general rule; rather it
made its own determination that six specific persons did not
comply with certain statutory criteria. It thus undertook
the type of decision that traditionally has been left to other
branches. Even if the House did not make a de novo deter-
mination, but simply reviewed the Immigration and Natural-
ization Service's findings, it still assumed a function ordi-
narily entrusted to the federal courts. See 5 U. S. C. § 704
(providing generally for judicial review of final agency ac-
tion); cf. Foti V. INS, 375 U. S. 217 (1963) (holding that
The Court concludes that Congress' action was legislative in character
because each branch "presumptively act[s] within its assigned sphere."
Ante, at 31. The Court's presumption provides a useful starting point, but
does not conclude the inquiry. Nor does the fact that the House's action
alters an individual's legal status indicate, as the Court reasons, see ante,
at 32, that the action is legislative rather than adjudicative in nature. In
determining whether one branch unconstitutionally has assumed a power
central to another branch, the traditional characterization of the assumed
power as legislative, executive, or judicial may provide some guidance.
See Springer V. Philippine Islands, 277 U. S. 189, 203 (1928). But rea-
sonable minds may disagree over the character of an act and the more help-
ful inquiry, in my view, is whether the act in question raises the dangers
the Framers sought to avoid.
'The Court reasons in response to this argument that the one-house
veto exercised in this case was not judicial in nature because the decision of
the Immigration and Naturalization Service did not present a justiciable
issue that could have been reviewed by a court on appeal. See ante, at
36-37, n. 21. The Court notes that since the administrative agency de-
cided the case in favor of Chadha, there was no aggrieved party who could
appeal. Reliance by the Court on this fact misses the point. Even if re-
view of the particular decision to suspend deportation is not committed to
the courts, the House of Representatives assumed a function that gener-
ally is entrusted to an impartial tribunual. In my view, the legislative
branch in effect acted as an appellate court by overruling the Service's
application of established law to Chadha. And unlike a court or an admin-
istrative agency, it did not provide Chadha with the right to counsel or a
hearing before acting. Although the parallel is not entirely complete, the
effect on Chadha's personal rights would not have been different in princi-
ple had he been acquitted of a federal crime and thereafter found by one
House of Congress to have been guilty.
80-1832, 80-2170 & 80-2171-CONCUR
8
INS 2'. CHADHA
courts of appeals have jurisdiction to review INS decisions
denying suspension of deportation). Where, as here, Con-
gress has exercised a power "that cannot possibly be re-
garded as merely in aid of the legislative function of Con-
gress," Buckley V. Valeo, 424 U. S., at 138, the decisions of
this Court have held that Congress impermissibly assumed a
function that the Constitution entrusted to another branch,
see id., at 138-141; cf. Springer V. Philippine Islands, 277
U. S., at 202.
The impropriety of the House's assumption of this function
is confirmed by the fact that its action raises the very danger
the Framers sought to avoid-the exercise of unchecked
power. In deciding whether Chadha deserves to be de-
ported, Congress is not subject to any internal constraints
that prevent it from arbitrarily depriving him of the right to
remain in this country.' Unlike the judiciary or an adminis-
trative agency, Congress is not bound by established sub-
stantive rules. Nor is it subject to the procedural safe-
guards, such as the right to counsel and a hearing before an
impartial tribunal, that are present when a court or an
agency 10 adjudicates individual rights. The only effective
9 When Congress grants particular individuals relief or benefits under its
spending power, the danger of oppressive action that the separation of
powers was designed to avoid is not implicated. Similarly, Congress may
authorize the admission of individual aliens by special acts, but it does not
follow that Congress unilaterally may make a judgment that a particular
alien has no legal right to remain in this country. See Memorandum Con-
cerning H. R. 9766 Entitled "An Act to Direct the Deportation of Harry
Renton Bridges," reprinted in S. Rep. No. 2031, pt. 1, 76th Cong., 3d
Sess., 8 (1940). As Attorney General Robert Jackson remarked, such a
practice "would be an historical departure from an unbroken American
practice and tradition." S. Rep. No. 2031, supra, at 9.
10 We have recognized that independent regulatory agencies and depart-
ments of the Executive Branch of ten exercise authority that is "judicial in
nature." Buckley V. Valeo, 424 U. S. 1, 140-141 (1976). This function,
however, forms part of the agencies' execution of public law and is subject
to the procedural safeguards, including judicial review, provided by the
80-1832, 80-2170 & 80-2171-CONCUR
INS V. CHADHA
9
constraint on Congress' power is political, but Congress is
most accountable politically when it prescribes rules of gen-
eral applicability. When it decides rights of specific per-
sons, those rights are subject to "the tyranny of a shifting
majority."
Chief Justice Marshall observed: "It is the peculiar prov-
ince of the legislature to prescribe general rules for the gov-
ernment of society; the application of those rules would seem
to be the duty of other departments." Fletcher V. Peck, 6
Cranch 87, 136 (1810). In my view, when Congress under-
took to apply its rules to Chadha, it exceeded the scope of its
constitutionally prescribed authority. I would not reach the
broader question whether legislative vetoes are invalid under
the Presentment Clauses.
Administrative Procedure Act. see 5 U.S. C. § 551 et seq. See also n. 5,
supra.
SUPREME COURT OF THE UNITED STATES
Nos. 80-1832, 80-2170 AND 80-2171
IMMIGRATION AND NATURALIZATION
SERVICE, APPELLANT
80-1832
v.
JAGDISH RAI CHADHA ET AL.
ON APPEAL FROM THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES HOUSE OF REPRESENTATIVES,
PETITIONER
80-2170
v.
IMMIGRATION AND NATURALIZATION
SERVICE ET AL.
UNITED STATES SENATE, PETITIONER
80-2171
v.
IMMIGRATION AND NATURALIZATION
SERVICE ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 23, 1983]
JUSTICE WHITE, dissenting.
Today the Court not only invalidates 244(c)(2) of the
Immigration and Nationality Act, but also sounds the death
knell for nearly 200 other statutory provisions in which Con-
gress has reserved a "legislative veto." For this reason, the
80-1832, 80-2170 & 80-2171-DISSENT
2
INS v. CHADHA
Court's decision is of surpassing importance. And it is for
this reason that the Court would have been well-advised to
decide the case, if possible, on the narrower grounds of sepa-
ration of powers, leaving for full consideration the constitu-
tionality of other congressional review statutes operating on
such varied matters as war powers and agency rulemaking,
some of which concern the independent regulatory agencies.¹
The prominence of the legislative veto mechanism in our
contemporary political system and its importance to Con-
gress can hardly be overstated. It has become a central
means by which Congress secures the accountability of exec-
utive and independent agencies. Without the legislative
veto, Congress is faced with a Hobson's choice: either to re-
frain from delegating the necessary authority, leaving itself
with a hopeless task of writing laws with the requisite speci-
ficity to cover endless special circumstances across the entire
policy landscape, or in the alternative, to abdicate its law-
making function to the executive branch and independent
agencies. To choose the former leaves major national prob-
lems unresolved; to opt for the latter risks unaccountable
policymaking by those not elected to fill that role. Accord-
ingly, over the past five decades, the legislative veto has
been placed in nearly 200 statutes.² The device is known in
I As JUSTICE POWELL observes in his separate opinion, "the respect due
[Congress'] judgment as a coordinate branch of Government cautions that
our holding should be no more extensive than necessary to decide the
case." Ante, at 2. The Ninth Circuit Court of Appeals also recognized
that "We are not here faced with a situation in which the unforeseeability
of future circumstances or the broad scope and complexity of the subject
matter of an agency's rulemaking authority preclude the articulation
of specific criteria in the governing statute itself. Such factors might
present considerations different from those we find here, both as to the
question of separation of powers and the legitimacy of the unicameral de-
vice." 634 F. 2d, at 433.
A selected list and brief description of these provisions is appended to
this opinion.
80-1832, 80-2170 & 80-2171-DISSENT
INS v. CHADHA
3
every field of governmental concern: reorganization, bud-
gets, foreign affairs, war powers, and regulation of trade,
safety, energy, the environment and the economy.
I
The legislative veto developed initially in response to the
problems of reorganizing the sprawling government struc-
ture created in response to the Depression. The Reorga-
nization Acts established the chief model for the legislative
veto. When President Hoover requested authority to reor-
ganize the government in 1929, he coupled his request that
the "Congress be willing to delegate its authority over the
problem (subject to defined principles) to the Executive"
with a proposal for legislative review. He proposed that the
Executive "should act upon approval of a joint committee of
Congress or with the reservation of power of revision by
Congress within some limited period adequate for its consid-
eration." Pub. Papers 432 (1929). Congress followed Presi-
dent Hoover's suggestion and authorized reorganization sub-
ject to legislative review. Act of June 30, 1932, ch. 314,
§ 407, 47 Stat. 382, 414. Although the reorganization au-
thority reenacted in 1933 did not contain a legislative veto
provision, the provision returned during the Roosevelt Ad-
ministration and has since been renewed numerous times.
Over the years, the provision was used extensively. Presi-
dents submitted 115 reorganization plans to Congress of
which 23 were disapproved by Congress pursuant to legis-
lative veto provisions. See Brief of U.S. Senate on
Reargument, App. A.
Shortly after adoption of the Reorganization Act of 1939,
54 Stat. 561, Congress and the President applied the legisla-
tive veto procedure to resolve the delegation problem for na-
tional security and foreign affairs. World War II occasioned
the need to transfer greater authority to the President in
these areas. The legislative veto offered the means by
which Congress could confer additional authority while pre-
80-1832, 80-2170 & 80-2171-DISSENT
4
INS v. CHADHA
serving its own constitutional role. During World War II,
Congress enacted over thirty statutes conferring powers on
the Executive with legislative veto provisions.³ President
Roosevelt accepted the veto as the necessary price for ob-
taining exceptional authority.
Over the quarter century following World War II, Presi-
dents continued to accept legislative vetoes by one or both
Houses as constitutional, while regularly denouncing provi-
sions by which Congressional committees reviewed Execu-
tive activity.5 The legislative veto balanced delegations of
'Watson, Congress Steps Out: A Look at Congressional Control of the
Executive, 63 Calif. L. Rev. 983, 1089-1090 (1975) (listing statutes).
The Roosevelt Administration submitted proposed legislation contain-
ing veto provisions and defended their constitutionality. See e. g., Gen-
eral Counsel to the Office of Price Administration, "Statement on Constitu-
tionality of Concurrent Resolution Provision of Proposed Price Control Bill
(H. R. 5479), reprinted in Price-Control Bill: Hearings Before the House
Comm. on Banking and Currency on H. R. 5479, Part 1, 77th Cong., 1st
Sess. 983 (1941).
Presidential objections to the veto, until the veto by President Nixon
of the War Powers Resolution, principally concerned bills authorizing com-
mittee vetoes. As the Senate Subcommittee on Separation of Powers
found in 1969, "an accommodation was reached years ago on legislative ve-
toes exercised by the entire Congress or by one House, [while] disputes
have continued to arise over the committee form of the veto." S. Rep. No.
549. 91st Cong., 1st Sess., p. 14 (1969). Presidents Kennedy and Johnson
proposed enactment of statutes with legislative veto provisions. See Na-
tional Wilderness Preservation Act: Hearings Before the Senate Comm. on
Interior and Insular Affairs on S. 4, 88th Cong., 1st Sess., p. 4 (1963)
(President Kennedy's proposals for withdrawal of wilderness areas); Presi-
dent's Message to the Congress Transmitting the Budget for Fiscal Year
1970, 5 Weekly Comp. Pres. Doc. 70, 73 (Jan. 15, 1969) (President John-
son's proposals allowing legislative veto of tax surcharge). The adminis-
tration of President Kennedy submitted a memorandum supporting the
constitutionality of the legislative veto. See General Counsel of the De-
partment of Agriculture, Constitutionality of Title I of H. R. 6400, 87th
Cong., 1st Session (1961), reprinted in Legislative Policy of the Bureau of
the Budget: Hearing Before the Subcomm. on Conservation and Credit of
the House Comm. on Agriculture, 89th Cong., 2d Sess. 27, 31-32 (1966).
80-1832, 80-2170 & 80-2171-DISSENT
INS v. CHADHA
5
statutory authority in new areas of governmental involve-
ment: the space program, international agreements on nu-
clear energy, tariff arrangements, and adjustment of federal
pay rates.6
During the 1970's the legislative veto was important in re-
solving a series of major constitutional disputes between the
President and Congress over claims of the President to broad
impoundment, war, and national emergency powers. The
key provision of the War Powers Resolution, 50 U. S. C.
§ 1544(c), authorizes the termination by concurrent resolution
of the use of armed forces in hostilities. A similar measure
resolved the problem posed by Presidential claims of inherent
power to impound appropriations. Congressional Budget
and Impoundment Control Act of 1974, 31 U. S. C. § 1403.
In conference, a compromise was achieved under which per-
manent impoundments, termed "rescissions," would require
approval through enactment of legislation. In contrast, tem-
porary impoundments, or "deferrals," would become effec-
tive unless disapproved by one House. This compromise
provided the President with flexibility, while preserving ulti-
mate Congressional control over the budget.' Although the
During the administration of President Johnson, the Department of Justice
again defended the constitutionality of the legislative veto provision of the
Reorganization Act, as contrasted with provisions for a committee veto.
See Separation of Powers: Hearings Before the Subcomm. on Separation of
Powers of the Senate Comm. on the Judiciary, 90th Cong. 1st Sess. 206
(1967) (testimony of Frank M. Wozencraft, Assistant Attorney General for
the Office of Legal Counsel).
National Aeronautics and Space Act of 1958, Pub. L. No. 85-568,
§ 302, 72 Stat. 426, 433 (space program); Atomic Energy Act Amendment
of 1958, Pub. L. No. 85-179, $4, 72 Stat. 276, 277 (cooperative nuclear
agreements); Trade Expansion Act of 1962. Pub. L. No. 87-794, $ 351, 76
Stat. 872, 899, 17 U.S. C. 1981 (tariff recommended by Tariff Commission
may be imposed by concurrent resolution of approval): Postal Revenue and
Federal Salary Act of 1976, Pub. L. No. 90-206, § 255(i)(1), 81 Stat. 613,
644.
The Impoundment Control Act's provision for legislative review has
80-1832, 80-2170 & 80-2171-DISSENT
6
INS 2. CHADHA
War Powers Resolution was enacted over President Nixon's
veto, the Impoundment Control Act was enacted with the
President's approval. These statutes were followed by oth-
ers resolving similar problems: the National Emergencies
Act, § 202, 90 Stat. 1255, 50 U. S. C. § 1622 (1976), resolving
the longstanding problems with unchecked Executive emer-
gency power; the Arms Export Control Act, § 211, 90 Stat.
729, 22 U. S. C. § 2776(b)(1976), resolving the problem of for-
eign arms sales; and the Nuclear Non-Proliferation Act of
1978, §§ 303, 304(a), 306, 307, 401, 92 Stat. 120, 130, 134, 137,
139, 144-145, 42 U. S. C. §§ 2160(f), 2155(b), 2157(b), 2158,
2153(d) (Supp. IV. 1980), resolving the problem of exports of
nuclear technology.
In the energy field, the legislative veto served to balance
broad delegations in legislation emerging from the energy
crisis of the 1970's.8 In the educational field, it was found
that fragmented and narrow grant programs "inevitably lead
to Executive-Legislative confrontations" because they in-
aptly limited the Commissioner of Education's authority. S.
Rep. No. 763, 93d Cong., 2d Sess. 69 (1974). The response
been used extensively. Presidents have submitted hundreds of proposed
budget deferrals, of which 65 have been disapproved by resolutions of the
House or Senate with no protest by the Executive. See Appendix B to
Brief on Reargument of U.S. Senate.
"The veto appears in a host of broad statutory delegations concerning
energy rationing, contingency plans, strategic oil reserves, allocation of
energy production materials, oil exports, and naval reserve production.
Naval Petroleum Reserves Production Act of 1976, Pub. L. No. 94-258,
§ 201, 90 Stat. 303, 309, 10 U. S. C. 7422(c)(2)(C) (naval reserve produc-
tion): Energy Policy and Conservation Act, Pub. L. No. 94-163, §§ 159,
201, 401(a). and 455, 89 Stat. 871, 886, 890, 941, and 950 (1975), 42 U. S. C.
6239 and 6261, 15 U. S. C. 757 and 760a (strategic oil reserves, rationing
and contingency plans, oil price controls and product allocation); Federal
Nonnuclear Energy Research and Development Act of 1974. Pub. L. No.
93-577. $ 12, 88 Stat. 1878, 1892-93, 42 U. S. C. 5911 (allocation of energy
production materials): Act of November 16, 1973. Pub. L. No. 93-153, § 10,
87 Stat., 576, 582. 30 U. S. C. 185(u) (oil exports).
80-1832, 80-2170 & 80-2171-DISSENT
INS 2: CHADHA
7
was to grant the Commissioner of Education rulemaking au-
thority, subject to a legislative veto. In the trade regulation
area, the veto preserved Congressional authority over the
Federal Trade Commission's broad mandate to make rules to
prevent businesses from engaging in "unfair or deceptive acts
or practices in commerce."
Even this brief review suffices to demonstrate that the leg-
islative veto is more than "efficient, convenient, and useful."
Ante, at 23. It is an important if not indispensable political
invention that allows the President and Congress to resolve
major constitutional and policy differences, assures the
accountability of independent regulatory agencies, and pre-
serves Congress' control over lawmaking. Perhaps there
are other means of accomodation and accountability, but the
increasing reliance of Congress upon the legislative veto sug-
gests that the alternatives to which Congress must now turn
are not entirely satisfactory. 10
9 Congress found that under the agency's
"very broad authority to prohibit conduct which is 'unfair or deceptive'
the [Federal Trade Commission] FTC can regulate virtually every aspect
of America's commercial life
The FTC's rules are not merely narrow
interpretations of a tightly drawn statute; instead, they are broad policy
pronouncements which Congress has an obligation to study and review."
124 Cong. Rec. 5012 (1978) (statement by Rep. Broyhill). A two-House
legislative veto was added to constrain that broad delegation. Federal
Trade Commission Improvements Act of 1980, § 21(a), 94 Stat. 374. 393, 15
U.S.C. §§ 57a-1 (Supp. IV 1980). The constitutionality of that pro-
vision is presently pending before us. United States Senate V. Federal
Trade Commission, No. 82-935; United States House of Representatives V.
Federal Trade Commission, No. 82-1044.
10 While Congress could write certain statutes with greater specificity, it
is unlikely that this is a realistic or even desirable substitute for the legisla-
tive veto. "Political volatility and the controversy of many issues would
prevent Congress from reaching agreement on many major problems if
specificity were required in their enactments." Fuchs, Administrative
Agencies and the Energy Problem 47 Ind. L. J. 606, 608 (1972); Stewart,
Reformation of American Administrative Law, 88 Harv. L. Rev. 1667.
80-1832, 80-2170 & 80-2171-DISSENT
8
INS v. CHADHA
The history of the legislative veto also makes clear that it
has not been a sword with which Congress has struck out to
aggrandize itself at the expense of the other branches-the
concerns of Madison and Hamilton. Rather, the veto has
been a means of defense, a reservation of ultimate authority
necessary if Congress is to fulfill its designated role under
Article I as the nation's lawmaker. While the President has
1695-1696 (1975). For example, in the deportation context, the solution is
not for Congress to create more refined categorizations of the deportable
aliens whose status should be subject to change. In 1979, the Immigration
and Naturalization Service proposed regulations setting forth factors to be
considered in the exercise of discretion under numerous provisions of the
Act, but not including § 244, to ensure "fair and uniform" adjudication
"under appropriate discretionary criteria." 44 Fed. Reg. 36187 (1979).
The proposed rule was canceled in 1981, because "[t]here is an inherent
failure in any attempt to list those factors which should be considered in
the exercise of discretion. It is impossible to list or foresee all of the ad-
verse or favorable factors which may be present in a given set of circum-
stances." 46 Fed. Reg. 9119 (1981).
Oversight hearings and congressional investigations have their purpose,
but unless Congress is to be rendered a think tank or debating society,
they are no substitute for the exercise of actual authority. The "laying"
procedure approved in Sibbach V. Wilson, 312 U. S. 1, 15 (1941), while sat-
isfactory for certain measures, has its own shortcomings. Because a new
law must be passed to restrain administrative action. Congress must dele-
gate authority without the certain ability of being able to check its
exercise.
Finally, the passage of corrective legislation after agency regulations
take effect or Executive Branch officials have acted entail the drawbacks
endemic to a retroactive response. "Post hoc substantive revision of leg-
islation, the only available corrective mechanism in the absence of post-
enactment review could have serious prejudicial consequences; if Congress
retroactively tampered with a price control system after prices have been
set, the economy could be damaged and private interests seriously im-
paired; if Congress rescinded the sale of arms to a foreign country, our re-
lations with that Country would be severely strained; and if Congress re-
shuffied the bureaucracy after a President's reorganization proosal had
taken effect, the results could be chaotic." Javits and Klein, Congres-
sional Oversight and the Legislative Veto: A Constitutional Analysis, 52
N. Y. U. L. Rev. 455, 464 (1977).
80-1832. 80-2170 & 80-2171-DISSENT
INS l'. CHADHA
9
often objected to particular legislative vetoes, generally
those left in the hands of congressional committees, the Ex-
ecutive has more often agreed to legislative review as the
price for a broad delegation of authority. To be sure, the
President may have preferred unrestricted power, but that
could be precisely why Congress thought it essential to retain
a check on the exercise of delegated authority.
II
For all these reasons, the apparent sweep of the Court's
decision today is regretable. The Court's Article I analysis
appears to invalidate all legislative vetoes irrespective of
form or subject. Because the legislative veto is commonly
found as a check upon rulemaking by administrative agencies
and upon broad-based policy decisions of the Executive
Branch, it is particularly unfortunate that the Court reaches
its decision in a case involving the exercise of a veto over de-
portation decisions regarding particular individuals. Courts
should always be wary of striking statutes as unconstitu-
tional; to strike an entire class of statutes based on consider-
ation of a somewhat atypical and more-readily indictable ex-
emplar of the class is irresponsible. It was for cases such as
this one that Justice Brandeis wrote:
"The Court has frequently called attention to the 'great
gravity and delicacy' of its function in passing upon the
validity of an act of Congress
The Court will not
'formulate a rule of constitutional law broader than is re-
quired by the precise facts to which it is to be applied.'
Liverpool, N. Y. & P. S. S. Co. V. Emigration Commis-
sioners, supra." Ashwander V. Tennessee Valley Au-
thority, 297 U. S. 288, 347 (1936) (concurring opinion).
Unfortunately, today's holding is not so limited."
11 Perhaps I am wrong and the Court remains open to consider whether
certain forms of the legislative veto are reconcilable with the Article I re-
80-1832. 80-2170 & 80-2171-DISSENT
10
INS L'. CHADHA
If the legislative veto were as plainly unconstitutional as
the Court strives to suggest, its broad ruling today would be
more comprehensible. But, the constitutionality of the leg-
islative veto is anything but clearcut. The issue divides
scholars." courts, 13 attorneys general," and the two other
quirements. One possibility for the Court and Congress is to accept that a
resolution of disapproval cannot be given legal effect in its own right, but
may serve as a guide in the interpretation of a delegation of lawmaking
authority. The exercise of the veto could be read as a manifestation of
legislative intent. which. unless itself contrary to the authorizing statute,
serves as the definitive construction of the statute. Therefore, an agency
rule vetoed by Congress would not be enforced in the courts because the
veto indicates that the agency action departs from the Congressional
intent.
This limited role for a redefined legislative veto follows in the steps of
the longstanding practice of giving some weight to subsequent legislative
reaction to administrative rulemaking. The silence of Congress after con-
sideration of a practice by the Executive may be equivalent to acquiescence
and consent that the practice be continued until the power exercised be re-
voked. United States V. Midwest Oil Co., 236 U. S. 460, 472-473 (1914).
See also Zemel V. Rusk, 381 U. S. 1, 11-12 (1965) (relying on Congres-
sional failure to repeal administration interpretation): Haig V. Agee 453
U.S. 280 (1981) (same): Bob Jones University V. United States, - U.S.
(1983) (same), Merrill Lynch, Pierce, Fenner & Smith V. Curran,
456 U. S. 353. 384 (1982) (relying on failure to disturb judicial decision in
later revision of law).
Reliance on subsequent legislative reaction has been limited by the fear
of overturning the intent of the original Congress and the unreliabil-
ity of discerning the views of a subsequent Congress. Consumer Product
Safety Commission V. GTE Sylvania. 447 U.S. 102, 117-118 (1980);
United States V. Price, 361 U. S. 304, 313 (1960). These concerns are not
forceful when the original statute authorizes subsequent legislative review.
The presence of the review provision constitutes an express authorization
for a subsequent Congress to participate in defining the meaning of the
law. Second, the disapproval resolution allows for a reliable determina-
tion of Congressional intent. Without the review mechanism. uncertainty
over the inferences to draw from subsequent Congressional action is un-
derstandable. The refusal to pass an amendment, for example, may indi-
cate opposition to that position but could mean that Congress believes the
amendment is redundant with the statute as written. By contrast. the ex-
[Footnote 12 is on page 11]
[Footnotes 13 and 14 are on page 12]
80-1832. 80-2170 & 80-2171-DISSENT
INS l'. CHADHA
11
branches of the National Government. If the veto devices so
flagrantly disregarded the requirements of Article I as the
Court today suggests, I find it incomprehensible that Con-
gress, whose members are bound by oath to uphold the Con-
stitution, would have placed these mechanisms in nearly 200
separate laws over a period of 50 years.
ercise of a legislative veto is an unmistakable indication that the agency or
Executive decision at issue is disfavored. This is not to suggest that the
failure to pass a veto resolution should be given any weight whatever.
12 For commentary generally favorable to the legislative veto see
Abourezk. Congressional Veto: A Contemporary Response to Executive
Encroachment on Legislative Prerogative, 52 Ind. L. J. 323 (1977); Cooper
& Cooper, The Legislative Veto and the Constitution, 30 Geo. Wash. L.
Rev. 467 (1962): Dry, The Congressional Veto and Constitutional Separa-
tion of Powers, in the Presidency in the Constitutional Order 195 (J.
Bessette & J. Tulis eds.): Javits & Klein, Congressional Oversight and the
Legislative Veto: A Constitutional Analysis, 52 N. Y. U. L. Rev. 455
(1977): Miller & Knapp. The Congressional Veto: Preserving the Constitu-
tional Framework. 52 Ind. L. J. 367 (1977): Nathanson. Separation of Pow-
ers and Administrative Law: Delegation, The Legislative Veto, and the
"Independent" Agencies, 75 Nw. U. L. Rev. 1064 (1981); Newman &
Keaton, Congress and the Faithful Execution of Laws-Should Legislators
Supervise Administrators?, 41 Calif. L. Rev. 565 (1953); Pearson, Over-
sight: A Vital Yet Neglected Congressional Function, 23 U. Kan. L. Rev.
277 (1975); Rodino, Congressional Review of Executive Actions, 5 Seton
Hall L. Rev. 489 (1974); Schwartz, Legislative Veto and the Constitution—
A Reexamination, 46 Geo. Wash. L. Rev. 351 (1978): Schwartz, Legislative
Control of Administrative Rules and Regulations: I. The American Experi-
ence, 30 N. Y. U. L. Rev. 1031 (1955); Stewart. Constitutionality of the
Legislative Veto, 13 Harv. J. Legis. 593 (1976).
For Commentary generally unfavorable to the legislative veto. see J.
Bolton, The Legislative Veto: Unseparating the Powers (1977): Bruff &
Gellhorn, Congressional Control of Administrative Regulation: A Study of
Legislative Vetoes, 90 Harv. L. Rev. 1369 (1977); Dixon, The Congres-
sional Veto and Separation of Powers: The Executive On a Leash?, 56
N. C. L. Rev. 423 (1978): Fitzgerald, Congressional Oversight or Congres-
sional Foresight: Guidelines From the Founding Fathers. 28 Ad. L. Rev.
429 (1976): Ginaane, The Control of Federal Administration by Congres-
sional Resolutions and Committees, 66 Harv. L. Rev. 569 (1953); Henry,
80-1832. 80-2170 & 80-2171-DISSENT
12
INS L'. CHADHA
The reality of the situation is that the constitutional ques-
tion posed today is one of immense difficulty over which the
executive and legislative branches-as well as scholars and
judges-have understandably disagreed. That disagree-
ment stems from the silence of the Constitution on the pre-
cise question: The Constitution does not directly authorize or
prohibit the legislative veto. Thus, our task should be to de-
termine whether the legislative veto is consistent with the
purposes of Art. I and the principles of Separation of Powers
which are reflected in that Article and throughout the Con-
stitution. 15 We should not find the lack of a specific constitu-
The Legislative Veto: In Search of Constitutional Limits, 16 Harv. J.
Legis. 735 (1979): Martin. The Legislative Veto and the Responsible Exer-
cise of Congressional Power, 68 Va. L. Rev. 253 (1982); Scalia, The Legis-
lative Veto: A False Remedy For System Overload. Regulation, Nov.-Dec.
1979. at 19; Watson. Congress Steps Out: A Look at Congressional Control
of the Executive, 63 Calif. L. Rev. 983 (1975); Comment, Congressional
Oversight of Administrative Discretion: Defining the Proper Role of the
Legislative Veto, 26 Am. U. L. Rev. 1018 (1977): Note, Congressional
Veto of Administrative Action: The Probable Response to 2 Constitutional
Challenge, 1976 Duke L. J. 285; Recent Developments, The Legislative
Veto in the Arms Control Act of 1976, 9 Law & Pol'y Int'l Bus. 1029 (1977).
13 Compare Atkins V. United States, 556 F. 2d 1028 (Ct. Claims 1977),
cert. denied, 434 U. S. 1009 (1978), (upholding legislative veto provision in
Federal Salary Act, 2 U. S. C. §§ 351 et seq. (1976)) with Consumer En-
ergy Council of America V. FERC, 673 F. 2d 425 (CA DC 1982), appeals
and petitions for cert. pending, Nos. 81-2008. 81-2020, 81-2151. 81-2171,
82-177 and 82-209. (holding unconstitutional the legislative veto provision
in the Natural Gas Policy Act of 1978, 15 U. S. C. §§ 3301-3342 (Supp. III
1979)).
"See, e. g., 6 Op. Att'y Gen. 680. 683 (1854); Department of Justice,
Memorandum re Constitutionality of Provisions in Proposed Reorganiza-
tion Bills Now Pending in Congress, reprinted in S. Rep. No. 232. 81st
Cong., 1st Sess. 19-20 (1949): Jackson. "A Presidential Legal Opinion," 66
Harv. L. Rev. 1353 (1953): 43 Op. Att'y Gen. No. 10, at 2 (1977).
13 I limit my concern here to those legislative vetoes which require either
one or both Houses. of Congress to pass resolutions of approval or disap-
proval. and leave aside the questions arising from the exercise of such pow-
ers by committees of Congress.
80-1832. 80-2170 & 80-2171-DISSENT
INS 2: CHADHA
13
tional authorization for the legislative veto surprising, and I
would not infer disapproval of the mechanism from its ab-
sence. From the summer of 1787 to the present the govern-
ment of the United States has become an endeavor far be-
yond the contemplation of the Framers. Only within the last
half century has the complexity and size of the Federal Gov-
ernment's responsibilities grown so greatly that the Con-
gress must rely on the legislative veto as the most effective if
not the only means to insure their role as the nation's law-
makers. But the wisdom of the Framers was to anticipate
that the nation would grow and new problems of governance
would require different solutions. Accordingly, our Federal
Government was intentionally chartered with the flexibility
to respond to contemporary needs without losing sight of fun-
damental democratic principles. This was the spirit in which
Justice Jackson penned his influential concurrence in the
Steel Seizure Case:
"The actual art of governing under our Constitution does
not and cannot conform to judicial definitions of the
power of any of its branches based on isolated clauses or
even single Articles torn from context. While the Con-
stitution diffuses power the better to secure liberty, it
also contemplates that practice will integrate the dis-
persed powers into a workable government." Youngs-
town Sheet & Tube Co. V. Sauyer, 343 U.S. 579, 635
(1952).
This is the perspective from which we should approach the
novel constitutional questions presented by the legislative
veto. In my view, neither Article I of the Constitution nor
the doctrine of separation of powers is violated by this mech-
anism by which our elected representatives preserve their
voice in the governance of the nation.
III
The Court holds that the disapproval of a suspension of de-
80-1832, 80-2170 & 80-2171-DISSENT
14
INS v. CHADHA
portation by the resolution of one House of Congress is an ex-
ercise of legislative power without compliance with the pre-
requisites for lawmaking set forth in Art. I of the Constitu-
tion. Specifically, the Court maintains that the provisions of
§ 244(c)(2) are inconsistent with the requirement of bicameral
approval, implicit in Art. I, §1, and the requirement that all
bills and resolutions that require the concurrence of both
Houses be presented to the President, Art. I, §7, cl. 2 and
3.¹⁶
I do not dispute the Court's truismatic exposition of these
clauses. There is no question that a bill does not become a
law until it is approved by both the House and the Senate,
and presented to the President. Similarly, I would not hesi-
tate to strike an action of Congress in the form of a concur-
rent resolution which constituted an exercise of original law-
making authority. I agree with the Court that the Presi-
dent's qualified veto power is a critical element in the
distribution of powers under the Constitution, widely en-
dorsed among the Framers, and intended to serve the Presi-
dent as a defense against legislative encroachment and to
check the "passing of bad laws through haste, inadvertence,
16 I agree with JUSTICE REHNQUIST that Congress did not intend the
one-House veto provision of § 244(c)(2) to be severable. Although the gen-
eral rule is that the presence of a savings clause creates a presumption of
divisibility. Champlin Rfg Co. V. Commission, 286 U. S. 210, 235 (1931), I
read the savings clause contained in $ 406 of the Immigration Act as pri-
marily pertaining to the severability of major parts of the Act from one an-
other. not the divisibility of different provisions within a single section.
Surely, Congress would want the naturalization provisions of the Act to be
severable from the deportation sections. But this does not support pre-
serving $ 244 without the legislative veto any more than a savings provi-
sion would justify preserving immigration authority without quota limits.
More relevant is the fact that for forty years Congress has insisted on
retaining a voice on individual suspension cases-it has frequently rejected
bills which would place final authority in the Executive branch. It is clear
that Congress believed its retention crucial. Given this history, the
Court's rewriting of the Act flouts the will of Congress.
80-1832, 80-2170 & 80-2171-DISSENT
INS v. CHADHA
15
or design." The Federalist No. 73, at 458 (A. Hamilton).
The records of the Convention reveal that it is the first pur-
pose which figured most prominently but I acknowledge the
vitality of the second. Id., at 443. I also agree that the bi-
cameral approval required by Art. I, §§1, 7 "was of scarcely
less concern to the Framers than was the Presidential veto,"
ante, at 28, and that the need to divide and disperse legisla-
tive power figures significantly in our scheme of Govern-
ment. All of this, the Third Part of the Court's opinion, is
entirely unexceptionable.
It does not, however, answer the constitutional question
before us. The power to exercise a legislative veto is not the
power to write new law without bicameral approval or presi-
dential consideration. The vetó must be authorized by stat-
ute and may only negative what an Executive department or
independent agency has proposed. On its face, the legisla-
tive veto no more allows one House of Congress to make law
than does the presidential veto confer such power upon the
President. Accordingly, the Court properly recognizes that
it "must establish that the challenged action under § 244(c)(2)
is of the kind to which the procedural requirements of Art. I,
§7 apply" and admits that "not every action taken by either
House is subject to the bicameralism and presentation re-
quirements of Art. I." Ante, at 31.
A
The terms of the Presentment Clauses suggest only that
bills and their equivalent are subject to the requirements of
bicameral passage and presentment to the President. Arti-
cle I, §7, cl. 2, stipulates only that "Every Bill which shall
have passed the House of Representatives and the Senate,
shall before it becomes a Law, be presented to the President"
for approval or disapproval, his disapproval then subject to
being overridden by a two-thirds vote of both houses. Sec-
tion 7, cl. 3 goes further:
80-1832. 80-2170 & 80-2171-DISSENT
16
INS l'. CHADHA
"Every Order, Resolution, or Vote to which the Concur-
rence of the Senate and House of Representatives may
be necessary (except on a question of Adjournment) shall
be presented to the President of the United States; and
before the same shall take Effect, shall be approved by
him, or being disapproved by him, shall be repassed by
two-thirds of the Senate and House of Representatives,
according to the Rules and Limitations prescribed in the
Case of a Bill.
Although the Clause does not specify the actions for which
the concurrence of both Houses is "necessary," the proceed-
ings at the Philadelphia Convention suggest its purpose was
to prevent Congress from circumventing the presentation re-
quirement in the making of new legislation. James Madison
observed that if the President's veto was confined to bills, it
could be evaded by calling a proposed law a "resolution" or
"vote" rather than a "bill." Accordingly, he proposed that
"or resolve" should be added after "bill" in what is now clause
2 of § 7. 2 M. Farrand, The Records of the Federal Conven-
tion of 1787 301-302. After a short discussion on the subject,
the amendment was rejected. On the following day, how-
ever, Randolph renewed the proposal in the substantial form
as it now appears, and the motion passed. Id., at 304-305; 5
Elliot's Debates 431 (1845). The chosen language, Madison's
comment, and the brevity of the Convention's consideration,
all suggest a modest role was intended for the Clause and no
broad restraint on Congressional authority was contem-
plated. See Stewart, Constitutionality of the Legislative
Veto, 13 Harv. J. Legisl. 593, 609-611 (1976). This reading
is consistent with the historical background of the Presenta-
tion Clause itself which reveals only that the Framers were
concerned with limiting the methods for enacting new legisla-
tion. The Framers were aware of the experience in Penn-
sylvania where the legislature had evaded the requirements
attached to the passing of legislation by the use of "resolves,"
80-1832. 80-2170 & 80-2171-DISSENT
INS v. CHADHA
17
and the criticisms directed at this practice by the Council of
Censors." There is no record that the Convention contem-
plated, let alone intended, that these Article I requirements
would someday be invoked to restrain the scope of Congres-
sional authority pursuant to duly-enacted law."
When the Convention did turn its attention to the scope of
Congress' lawmaking power, the Framers were expansive.
The Necessary and Proper Clause, Art. I, §8, cl. 18, vests
17 The Pennsylvania Constitution required that all "bills of [a] public na-
ture" had to be printed after being introduced and had to lie over until the
following session of the legislature before adoption. Pa. Const. § 15 (1776).
These printing and layover requirements applied only to "bills." At the
time, measures could also be enacted as a "resolve," which was allowed by
the Constitution as "urgent temporary legislation" without such require-
ments. Pa. Const. § 20 (1776). Using this method the Pennsylvania leg-
islature routinely evaded printing and layover requirements through adop-
tion of resolves. A. Nevins, The American States During and After the
Revolution 152 (1969).
A 1784 Report of a committee of the Council of Censors. a state body
responsible for periodically reviewing the state government's adherence to
its Constitution, charged that the procedures for enacting legislation had
been evaded though the adoption of resolves instead of bills. Report of
the Committee of the Council of Censors 13 (1784). See Nevins, supra, at
190. When three years later the federal Constitutional Convention assem-
bled in Philadelphia, the delegates were reminded, in the course of discuss-
ing the President's veto, of the dangers pointed out by the Council of
Censors Report. J. Elliot, Debates on the Adoption of the Federal Con-
stitution 430 (1974 ed.). Furthermore, Madison, who made the motion
that led to the Presentation Clause, knew of the Council of Censors report,
The Federalist No. 50, at 353 (Wright ed. 1974), and was aware of the
Pennsylvania experience. See The Federalist No. 48, at 346. We have
previously recognized the relevance of the Council of Censors report in
interpreting the Constitution. See Powell V. McCormack, 395 U.S. 486,
529-530 (1969).
1r Although the legislative veto was not a feature of Congressional enact-
ments until the twentieth century, the practices of the first Congresses
demonstrate that the constraints of Article I were not envisioned as a con-
stitutional straightjacket. The First Congress. for example, began the
practice of arming its committees with broad investigatory powers without
80-1832. 80-2170 & 80-2171-DISSENT
18
INS i: CHADHA
Congress with the power "to make all laws which shall be
necessary and proper for carrying into Execution the forego-
ing Powers [the enumerated powers of § 8], and all other
Powers vested by this Constitution in the government of the
the passage of legislation. See A. Josephy, On the Hill: A History of the
American Congress 81-83 (1975). More directly pertinent is the First
Congress' treatment of the Northwest Territories Ordinance of 1787. The
ordinance, initially drafted under the Articles of Confederation on July 13.
1787. was the document which governed the territory of the United States
northwest of the Ohio River. The ordinance authorized the territories to
adopt laws. subject to disapproval in Congress.
"The governor and judges. or a majority of them, shall adopt and publish in
the district. such laws of the original states, criminal and civil, as may be
necessary and best suited to the circumstances of the district, and report
them to Congress, from time to time; which laws shall be in force in the
district until the organization of the general assembly therein, unless dis-
approved of by Congress: but afterwards the legislature shall have author-
ity to alter them as they shall think fit." (emphasis added)
After the Constitution was enacted, the ordinance was reenacted to con-
form to the requirements of the Constitution. Act of Aug. 7, 1789, ch.
VIII, §1, 1 Stat. 50-51. Certain provisions, such as one relating to ap-
pointment of officials by Congress, were changed because of constitutional
concerns, but the language allowing disapproval by Congress was retained.
Subsequent provisions for territorial laws contained similar language.
See, e. g., 48 U. S. C. § 1478 (1970).
Although at times Congress disapproved of territorial actions by passing
legislation, see e. g., Act of March 3, 1807, 4 Laws of the United States,
Ch. 99, 117, on at least two occasions one House of Congress passed resolu-
tions to disapprove territorial laws, only to have the other House fail to
pass the measure for reasons pertaining to the subject matter of the bills.
First, on February 16. 1795, the House of Representatives passed a con-
current resolution disapproving in one sweep all but one of the laws that
the governors and judges of the Northwest Territory had passed at a legis-
lative session on August 1, 1792. 4 Annals of Congress 1227. The Sen-
ate, however, refused to concur. 4 Annals of Congress 830. See B.
Bond, The Civilization of the Old Northwest 70-71 (1934). Second. on
May 9, 1800, the House passed a resolution to disapprove of a Misssissippi
territorial law imposing a license fee on taverns. 3 House Journal 704-706.
The Senate unsuccessfully attempted to amend the resolution to strike
80-1832, 80-2170 & 80-2171-DISSENT
INS v. CHADHA
19
United States, or in any Department or Officer thereof." It
is long-settled that Congress may "exercise its best judgment
in the selection of measures, to carry into execution the con-
stitutional powers of the government," and "avail itself of ex-
perience, to exercise its reason, and to accommodate its legis-
lation to circumstances." McCulloch V. Maryland, 4 Wheat.
316, 415-416, 420 (1819).
B
The Court heeded this counsel in approving the modern ad-
ministrative state. The Court's holding today that all legis-
lative-type action must be enacted through the lawmaking
process ignores that legislative authority is routinely dele-
gated to the Executive branch, to the independent regulatory
agencies, and to private individuals and groups.
"The rise of administrative bodies probably has been the
most significant legal trend of the last century
They
have become a veritable fourth branch of the Govern-
ment, which has deranged our three-branch legal theo-
down all laws of the Mississippi territory enacted since June 30, 1799.
Carter, Territorial Papers of the United States Vol. 5-Mississippi, 94-95
(1937). The histories of the territories, the correspondence of the era, and
the Congressional reports contain no indication that such resolutions disap-
proving of territorial laws were to be presented to the President or that
the authorization for such a "congressional veto" in the Act of August 7,
1789 was of doubtful constitutionality.
The practices of the First Congress are not so clear as to be dispositive of
the constitutional question now before us. But it is surely significant that
this body, largely composed of the same men who authored Article I and
secured ratification of the Constitution. did not view the Constitution as
forbidding a precursor of the modern day legislative veto. See Hampton
V. United States, 276 U. S. 394. 412 (1928) ("In the first Congress sat many
members of the Constitutional Convention of 1787. This Court has re-
peatedly laid down the principle that a contemporaneous legislative expo-
sition of the Constitution when the founders of our government and fram-
ers of our Constitution were actively participating in public affairs, long
acquiesced in, fixed the construction to be given its provisions.")
80-1832, 80-2170 & 80-2171-DISSENT
20
INS l'. CHADHA
ries.
" Federal Trade Commission V. Ruberoid Co.,
343 U. S. 470, 487 (1952) (Jackson, J. dissenting).
This Court's decisions sanctioning such delegations make
clear that Article I does not require all action with the effect
of legislation to be passed as a law.
Theoretically, agencies and officials were asked only to "fill
up the details," and the rule was that "Congress cannot dele-
gate any part of its legislative power except under a limita-
tion of a prescribed standard." United States V. Chicago,
Milwaukee R. Co., 282 U. S. 311, 324 (1931). Chief Justice
Taft elaborated the standard in J.W. Hampton & Co. V.
United States. 276 U. S. 394, 409 (1928): "If Congress shall
lay down by legislative act an intelligible principle to which
the person or body authorized to fix such rates is directed to
conform, such legislative action is not a fobidden delegation
of legislative power." In practice, however, restrictions on
the scope of the power that could be delegated diminished
and all but disappeared. In only two instances did the Court
find an unconstitutional delegation. Panama Refining Co.
V. Ryan, 293 U.S. 388 (1935); Schechter Poultry Corp. V.
United States, 295 U.S. 495 (1935). In other cases, the
"intelligible principle" through which agencies have attained
enormous control over the economic affairs of the country
was held to include such formulations as "just and reason-
able," Tagg Bros & Moorhead V. United States, 280 U. S. 420
(1930), "public interest," New York Central Securities Corp.
V. United States, 287 U. S. 12 (1932), "public convenience, in-
terest, or necessity," Federal Radio Comm. V. Nelson Bros.
Bond & Mortgage Co., 289 U. S. 266, 285 (1933), and "unfair
methods of competition." FTC V. Gratz, 253 U. S. 421
(1920).
The wisdom and the constitutionality of these broad dele-
gations are matters that still have not been put to rest. But
for present purposes, these cases establish that by virtue of
congressional delegation, legislative power can be exercised
80-1832. 80-2170 & 80-2171-DISSENT
INS v. CHADHA
21
by independent agencies and Executive departments without
the passage of new legislation. For some time, the sheer
amount of law-the substantive rules that regulate private
conduct and direct the operation of government-made by
the agencies has far outnumbered the lawmaking engaged in
by Congress through the traditional process. There is no
question but that agency rulemaking is lawmaking in any
functional or realistic sense of the term. The Administrative
Procedure Act, 5 U. S. C. § 551(4) provides that a "rule" is an
agency statement "designed to implement, intepret, or pre-
scribe law or policy." When agencies are authorized to pre-
scribe law through substantive rulemaking, the adminis-
trator's regulation is not only due deference, but is accorded
"legislative effect." See, e. g. Schweiker V. Gray Panthers,
453 U. S. 34, 43-44 (1981); Batterton V. Francis, 432 U.S.
416 (1977). 19 These regulations bind courts and officers of
the federal government, may pre-empt state law, see, e. g.,
Fidelity Federal Savings & Loan Assoc. V. De la Cuesta,
U. S.
(1982), and grant rights to and impose obliga-
tions on the public. In sum, they have the force of law.
If Congress may delegate lawmaking power to independ-
ent and executive agencies, it is most difficult to understand
Article I as forbidding Congress from also reserving a check
"Legislative, or substantive, regulations are issued by an agency pur-
suant to statutory authority and
implement the statute, as for exam-
ple, the proxy rules issue by the Securities and Exchange Commission
Such rules have the force and effect of law.' U.S. Dept. of Justice, At-
torney General's Manual on the Administrative Procedures Act 30 n. 3
(1947)." Batterton V. Francis, 432 U. S. 416, 425 n. 9 (1977).
Substantive agency regulations are clearly exercises of lawmaking au-
thority; agency interpretations of their statutes are only arguably so. But
as Henry Monaghan has observed. "Judicial deference to agency 'inter-
pretation' of law is simply one way of recognizing a delegation of law-
making authority to an agency." H. Monaghan. Marbury and the Ad-
ministrative State, 83 Colum. L. Rev. 1. 26 (1983). See. e. g., NLRB V.
Hearst Publications, 322 U. S. 111 (1944); NLRB V. Hendricks County
Rural Electric Membership Corp., 454 U. S. 170 (1981).
80-1832. 80-2170 & 80-2171-DISSENT
22
INS l'. CHADHA
on legislative power for itself. Absent the veto, the agencies
receiving delegations of legislative or quasi-legislative power
may issue regulations having the force of law without bicam-
eral approval and without the President's signature. It is
thus not apparent why the reservation of a veto over the ex-
ercise of that legislative power must be subject to a more ex-
acting test. In both cases, it is enough that the initial statu-
tory authorizations comply with the Article I requirements.
Nor are there strict limits on the agents that may receive
such delegations of legislative authority SO that it might be
said that the legislature can delegate authority to others but
not to itself. While most authority to issue rules and regula-
tions is given to the executive branch and the independent
regulatory agencies, statutory delegations to private persons
have also passed this Court's scrutiny. In Currin V. Wal-
lace, 306 U. S. 1 (1939), the statute provided that restrictions
upon the production or marketing of agricultural commodities
was to become effective only upon the favorable vote by a
prescribed majority of the affected farmers. United States
V. Rock Royal Co-operative, 307 U. S. 533, 577 (1939), up-
held an act which gave producers of specified commodities
the right to veto marketing orders issued by the Secretary of
Agriculture. Assuming Currin and Rock Royal Co-oper-
ative remain sound law, the Court's decision today suggests
that Congress may place a "veto" power over suspensions of
deportation in private hands or in the hands of an independ-
ent agency, but is forbidden from reserving such authority
for itself. Perhaps this odd result could be justified on
other constitutional grounds, such as the separation of pow-
ers, but certainly it cannot be defended as consistent with
the Court's view of the Article I presentment and bicameral-
ism commands. 20
20 As the Court acknowledges. the "provisions of Art. I are integral parts
of the constitutional design for the separation of powers." Ante, at 25.
But these separation of power concerns are that legislative power be exer-
80-1832, 80-2170 & 80-2171-DISSENT
INS v. CHADHA
23
The Court's opinion in the present case comes closest to
facing the reality of administrative lawmaking in considering
the contention that the Attorney General's action in suspend-
ing deportation under § 244 is itself a legislative act. The
Court posits that the Attorney General is acting in an Article
II enforcement capacity under § 244. This characterization
is at odds with Mahler V. Eby, 264 U. S. 32, 40 (1924), where
the power conferred on the Executive to deport aliens was
considered a delegation of legislative power. The Court sug-
gests, however, that the Attorney General acts in an Article
II capacity because "[t]he courts when a case or controversy
arises, can always 'ascertain whether the will of Congress has
been obeyed,' Yakus V. United States, 321 U. S. 414, 425
(1944), and can enforce adherence to statutory standards."
Ante, at 33, n. 16. This assumption is simply wrong, as the
Court itself points out: "We are aware of no decision
where a federal court has reviewed a decision of the Attorney
General suspending deportation of an alien pursuant to the
standards set out in § 244(a)(1). This is not surprising, given
that no party to such action has either the motivation or the
right to appeal from it." Ante, at 37, n. 21. It is perhaps on
the erroneous premise that judicial review may check abuses
of the § 244 power that the Court also submits that "The bi-
cameral process is not necessary as a check on the Execu-
tive's administration of the laws because his administrative
activity cannot reach beyond the limits of the statute that
cised by Congress, executive power by the President, and judicial power
by the Courts. A scheme which allows delegation of legislative power to
the President and the departments under his control, but forbids a check
on its exercise by Congress itself obviously denigrates the separation of
power concerns underlying Article I. To be sure, the doctrine of separa-
tion of powers is also concerned with checking each branch's exercise of its
characteristic authority. Section 244(c)(2) is fully consistent with the need
for checks upon Congressional authority, infra, at 28-31, and the legisla-
tive veto mechanism, more generally is an important check upon Executive
authority, supra, at 2-9.
80-1832, 80-2170 & 80-2171-DISSENT
24
INS v. CHADHA
created it-a statute duly enacted pursuant to Art. I, §§ 1,7."
Ante, at 33, n. 16. On the other hand, the Court's reasoning
does persuasively explain why a resolution of disapproval
under § 244(c)(2) need not again be subject to the bicameral
process. Because it serves only to check the Attorney Gen-
eral's exercise of the suspension authority granted by § 244,
the disapproval resolution-unlike the Attorney General's ac-
tion-"cannot reach beyond the limits of the statute that
created it-a statute duly enacted pursuant to Article I."
More fundamentally, even if the Court correctly character-
izes the Attorney General's authority under § 244 as an Arti-
cle II Executive power, the Court concedes that certain
administrative agency action, such as rulemaking, "may re-
semble lawmaking" and recognizes that "[t]his Court has re-
ferred to agency activity as being 'quasi-legislative' in charac-
ter. Humphrey's Executor V. United States, 295 U. S. 602,
628 (1935)." Ante, at 32, n. 16. Such rules and adjudica-
tions by the agencies meet the Court's own definition of legis-
lative action for they "alter[] the legal rights, duties, and re-
lations of persons
outside the legislative branch," ante,
at 32, and involve "determinations of policy," ante, at 34.
Under the Court's analysis, the Executive Branch and the in-
dependent agencies may make rules with the effect of law
while Congress, in whom the Framers confided the legisla-
tive power, Art. I, § 1, may not exercise a veto which pre-
cludes such rules from having operative force. If the
effective functioning of a complex modern government re-
quires the delegation of vast authority which, by virtue of its
breadth, is legislative or "quasi-legislative" in character, I
cannot accept that Article I-which is, after all, the source
of the non-delegation doctrine-should forbid Congress from
qualifying that grant with a legislative veto.21
21 The Court's other reasons for holding the legislative veto subject to
the presentment and bicameral passage requirements require but brief dis-
cussion. First, the Court posits that the resolution of disapproval should
80-1832, 80-2170 & 80-2171-DISSENT
INS v. CHADHA
25
C
The Court also takes no account of perhaps the most rel-
evant consideration: However resolutions of disapproval
under § 244(c)(2) are formally characterized, in reality, a de-
parture from the status quo occurs only upon the concurrence
of opinion among the House, Senate, and President. Res-
ervations of legislative authority to be exercised by Congress
should be upheld if the exercise of such reserved authority is
consistent with the distribution of and limits upon legislative
power that Article I provides.
1
As its history reveals, § 244(c)(2) withstands this analysis.
be considered equivalent to new legislation because absent the veto author-
ity of § 244(c)(2) neither House could. short of legislation, effectively re-
quire the Attorney General to deport an alien once the Attorney General
has determined that the alien should remain in the United States. Ante,
at 32-33. The statement is neither accurate nor meaningful. The Attor-
ney General's power under the Act is only to "suspend" the order of de-
portation: the "suspension" does not cancel the deportation or adjust the
alien's status to that of a permanent resident alien. Cancellation of de-
portation and adjustment of status must await favorable action by Con-
gress. More important, the question is whether § 244(c)(2) as written is
constitutional and no law is amended or repealed by the resolution of disap-
proval which is, of course, expressly authorized by that section.
The Court also argues that "the legislative character of the challenged
action of one House is confirmed by the fact that when the Framers in-
tended 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." Ante, at 35. Leaving aside again the
above-refuted premise that all action with a legislative character requires
passage in a law, the short answer is that all of these carefully defined ex-
ceptions to the presentment and bicameralism strictures do not involve ac-
tion of the Congress pursuant to a duly-enacted statute. Indeed, for the
most part these powers-those of impeachment, review of appointments,
and treaty ratification-are not legislative powers at all. The fact that it
was essential for the Constitution to stipulate that Congress has the power
to impeach and try the President hardly demonstrates a limit upon Con-
gress' authority to reserve itself a legislative veto, through statutes, over
subjects within its lawmaking authority.
80-1832, 80-2170 & 80-2171-DISSENT
26
INS v. CHADHA
Until 1917, Congress had never established laws concerning
the deportation of aliens. The Immigration Act of 1924 en-
larged the categories of aliens subject to mandatory deporta-
tion, and substantially increased the likelihood of hardships
to individuals by abolishing in most cases the previous time
limitation of three years within which deportation proceed-
ings had to be commenced. Immigration Act of 1924, ch.
190, 43 Stat. 153 (1924). Thousands of persons, who either
had entered the country in more lenient times or had been
smuggled in as children, or had overstayed their permits,
faced the prospect of deportation. Enforcement of the Act
grew more rigorous over the years with the deportation of
thousand of aliens without regard to the mitigating circum-
stances of particular cases. -See Mansfield, The Legislative
Veto and the Deportation of Aliens, 1 Public Administration
Review 281 (1940). Congress provided relief in certain cases
through the passage of private bills.
In 1933, when deportations reached their zenith, the Secre-
tary of Labor temporarily suspended numerous deportations
on grounds of hardship, 78 Cong. Rec. 11783 (1934), and pro-
posed legislation to allow certain deportable aliens to remain
in the country. H. R. 9725, 73d Cong., 2d Sess. (1934).
The Labor Department bill was opposed, however, as "grant-
[ing] too much discretionary authority," 78 Cong. Rec. 11790
(remarks of Rep. Dirksen), and it failed decisively. Id., at
11791.
The following year, the administration proposed bills to au-
thorize an inter-Departmental committee to grant permanent
residence to deportable aliens who had lived in the United
States for 10 years or who had close relatives here. S. 2969
and H. R. 8163, 74th Cong., 1st Sess. (1935). These bills
were also attacked as an "abandonment of congressional con-
trol over the deportation of undesirable aliens," H. R. Rep.
No. 1110, Part 2, 74th Cong., 1st Sess. 2 (1935), and were not
80-1832. 80-2170 & 80-2171-DISSENT
INS v. CHADHA
27
enacted. A similar fate awaited a bill introduced in the 75th
Congress that would have authorized the Secretary to grant
permanent residence to up to 8,000 deportable aliens. The
measure passed the House, but did not come to a vote in the
Senate. H. R. 6391, 83 Cong. Rec. 8992-96 (1938).
The succeeding Congress again attempted to find a legisla-
tive solution to the deportation problem. The initial House
bill required congressional action to cancel individual de-
portations, 84 Cong. Rec. 10455 (1939), but the Senate
amended the legislation to provide that deportable aliens
should not be deported unless the Congress by Act or resolu-
tion rejected the recommendation of the Secretary. H. R.
5138, § 10, as reported with amendments by S. Rep. No.
1721, 76th Cong., 3d Sess. 2 (1940). The compromise solu-
tion, the immediate predecessor to § 244(c), allowed the At-
torney General to suspend the deportation of qualified aliens.
Their deportation would be canceled and permanent resi-
dence granted if the House and Senate did not adopt a con-
current resolution of disapproval. S. Rep. No. 1796, 76th
Cong., 3rd Sess. 5-6 (1940). The Executive Branch played a
major role in fashioning this compromise, see 86 Cong. Rec.
8345 (1940), and President Roosevelt approved the legisla-
tion, which became the Alien Registration Act of 1940, P. L.
No. 670, 54 Stat. 670.
In 1947, the Department of Justice requested legislation
authorizing the Attorney General to cancel deportations
without congressional review. H. R. 2933, 80th Cong., 1st
Sess. (1947). The purpose of the proposal was to "save time
and energy of everyone concerned
Regulating Powers
of the Attorney General to Suspend Deportation of Aliens:
Hearings Before the Subcomm. on Immigration of the House
Comm. on the Judiciary, 80th Cong., 1st Sess. 34 (1977).
The Senate Judiciary Committee objected, stating that "affir-
mative action by the Congress in all suspension cases should
be required before deportation proceedings may be can-
80-1832, 80-2170 & 80-2171-DISSENT
28
INS v. CHADHA
celed." S. Rep. No. 1204, 80th Cong., 2d Sess. 4 (1948).
See also H. R. Rep. No. 647, 80th Cong., 1st Sess. 2 (1947).
Congress not only rejected the Department's request for final
authority but amended the Immigration Act to require that
cancellation of deportation be approved by a concurrent reso-
lution of the Congress. President Truman signed the bill
without objection. Act of July 1, 1948, P. L. No. 863, 62
Stat. 1206.
Practice over the ensuing several years convinced Con-
gress that the requirement of affirmative approval was "not
workable
and would, in time, interfere with the legis-
lative work of the House." House Judiciary Committee,
H. R. Rep. No. 362, 81st Cong., 1st Sess. 2 (1949). In pre-
paring the comprehensive Immigration and Nationality Act
of 1952, the Senate Judiciary Committee recommended that
for certain classes of aliens the adjustment of status be sub-
ject to the disapproval of either House; but deportation of an
alien "who is of the criminal, subversive, or immoral classes
or who overstays his period of admission," would be cancelled
only upon a concurrent resolution disapproving the deporta-
tion. S. Rep. No. 1514, 81st Cong. 2d Sess 610 (1950).
Legislation reflecting this change was passed by both
Houses, and enacted into law as part of the Immigration and
Nationality Act of 1952 over President Truman's veto, which
was not predicated on the presence of a legislative veto.
Pub. L. No. 414, 66 Stat. 163, 214 (1952). In subsequent
years, the Congress refused further requests that the Attor-
ney General be given final authority to grant discretionary
relief for specified categories of aliens, and § 244 remained in-
tact to the present.
Section 244(A)(1) authorizes the Attorney General, in his
discretion, to suspend the deportation of certain aliens who
are otherwise deportable and, upon Congress' approval, to
adjust their status to that of aliens lawfully admitted for per-
manent residence. In order to be eligible for this relief, an
alien must have been physically present in the United States
80-1832, 80-2170 & 80-2171-DISSENT
INS v. CHADHA
29
for a continuous period of not less than seven years, must
prove he is of good moral character, and must prove that he
or his immediate family would suffer "extreme hardship" if
he is deported. Judicial review of a denial of relief may be
sought. Thus, the suspension proceeding "has two phases: a
determination whether the statutory conditions have been
met, which generally involves a question of law, and a deter-
mination whether relief shall be granted, which [ultimately]
is confided to the sound discretion of the Attorney Gen-
eral [and his delegates]." 2 C. Gordon & H. Rosenfield, Im-
migration Law and Procedure § 7.9a(5) at 7-134.
There is also a third phase to the process. Under § 244(c)
(1) the Attorney General must report all such suspensions,
with a detailed statement of facts and reasons, to the Con-
gress. Either House may then act, in that session or the
next, to block the suspension of deportation by passing a
resolution of disapproval. § 244(c)(2). Upon Congressional
approval of the suspension-by its silence-the alien's per-
manent status is adjusted to that of a lawful resident alien.
The history of the Immigration Act makes clear that
§ 244(c)(2) did not alter the division of actual authority be-
tween Congress and the Executive. At all times, whether
through private bills, or through affirmative concurrent reso-
lutions, or through the present one-House veto, a permanent
change in a deportable alien's status could be accomplished
only with the agreement of the Attorney General, the House,
and the Senate.
2
The central concern of the presentation and bicameralism
requirements of Article I is that when a departure from the
legal status quo is undertaken, it is done with the approval of
the President and both Houses of Congress-or, in the event
of a presidential veto, a two-thirds majority in both Houses.
This interest is fully satisfied by the operation of § 244(c)(2).
The President's approval is found in the Attorney General's
80-1832, 80-2170 & 80-2171-DISSENT
30
INS 2: CHADHA
action in recommending to Congress that the deportation
order for a given alien be suspended. The House and the
Senate indicate their approval of the Executive's action by
not passing a resolution of disapproval within the statutory
period. Thus, a change in the legal status quo-the deport-
ability of the alien-is consummated only with the approval
of each of the three relevant actors. The disagreement of
any one of the three maintains the alien's pre-existing status:
the Executive may choose not to recommend suspension; the
House and Senate may each veto the recommendation. The
effect on the rights and obligations of the affected individuals
and upon the legislative system is precisely the same as if a
private bill were introduced but failed to receive the neces-
sary approval. "The President and the two Houses enjoy
exactly the same say in what the law is to be as would have
been true for each without the presence of the one-House
veto, and nothing in the law is changed absent the con-
currence of the President and a majority in each House."
Atkins V. United States, 556 F. 2d 1028, 1064 (Ct. Claims,
1977), cert. denied, 434 U. S. 1009 (1978).
This very construction of the Presentment Clauses which
the Executive Branch now rejects was the basis upon which
the Executive Branch defended the constitutionality of the
Reorganization Act, 5 U.S. C. § 906(a) (1979), which pro-
vides that the President's proposed reorganization plans take
effect only if not vetoed by either House. When the Depart-
ment of Justice advised the Senate on the constitutionality of
congressional review in reorganization legislation in 1949, it
stated: "In this procedure there is no question involved of the
Congress taking legislative action beyond its initial passage
of the Reorganization Act." S. Rep. No. 232, 81st Cong.,
1st Sess. 20 (1949) (Dept. of Justice Memorandum). This
also represents the position of the Attorney General more
recently. 21
= In his opinion on the constitutionality of the legislative review provi-
80-1832. 80-2170 & 80-2171-DISSENT
INS L'. CHADHA
31
Thus understood, § 244(c)(2) fully effectuates the purposes
of the bicameralism and presentation requirements. I now
briefly consider possible objections to the analysis.
First, it may be asserted that Chadha's status before legis-
lative disapproval is one of nondeportation and that the exer-
cise of the veto, unlike the failure of a private bill, works a
change in the status quo. This position plainly ignores the
statutory language. At no place in § 244 has Congress dele-
gated to the Attorney General any final power to determine
which aliens shall be allowed to remain in the United States.
Congress has retained the ultimate power to pass on such
changes in deportable status. By its own terms, § 244(a)
states that whatever power the Attorney General has been
delegated to suspend deportation and adjust status is to be
exercisable only "as hereinafter prescribed in this section."
Subsection (c) is part of that section. A grant of "suspen-
sion" does not cancel the alien's deportation or adjust the
alien's status to that of a permanent resident alien. A
suspension order is merely a "deferment of deportation,"
McGrath V. Kristensen, 340 U. S. 162, 168 (1950), which can
mature into a cancellation of deportation and adjustment of
status only upon the approval of Congress-by way of si-
lence-under § 244(c)(2). Only then does the statute author-
sions of the most recent reoganization statute, 5 U. S. C. 906(a) (Supp. III
1979), Attorney General Bell stated that "the statement in Article I, § 7 of
the procedural steps to be followed in the enactment of legislation does not
exclude other forms of action by the Congress
The procedures pre-
scribed in Article I § 37, for congressional action are not exclusive." 43
Op. Atty Gen. No. 10. at 2 (1977). "If the procedures provided in a given
statute have no effect on the constitutional distribution of power between
the legislature and the executive," then the statute is constitutional. Id.,
at 3. In the case of the reorganization statute, the power of the President
to refuse to submit a plan. combined with the power of either House of
Congress to reject a submitted plan suffices under the standard to make
the statute constitutional. Although the Attorney General sought to limit
his opinion to the reorganization statute, and the Executive opposes the
instant statute. I see no Article I basis to distinguish between the two.
80-1832. 80-2170 & 80-2171-DISSENT
32
INS v. CHADHA
ize the Attorney General to "cancel deportation proceedings"
§ 244(c)(2), and "record the alien's lawful admission for per-
manent residence
"
§ 244(d). The Immigration and
Naturalization Service's action, on behalf of the Attorney
General, "cannot become effective without ratification by
Congress." 2 Gordon and Rosenfield, Immigration Law and
Procedure, § 8.14 p. 8-121 (rev. ed. 1979). Until that rati-
fication occurs, the executive's action is simply a recommen-
dation that Congress finalize the suspension-in itself, it
works no legal change.
Second. it may be said that this approach leads to the
incongruity that the two-House veto is more suspect than
its one-House brother. Although the idea may be initially
counter-intuitive, on close analysis, it is not at all unusual
that the one-House veto is of more certain constitutionality
than the two-House version. If the Attorney General's ac-
tion is a proposal for legislation, then the disapproval of but a
single House is all that is required to prevent its passage.
Because approval is indicated by the failure to veto, the one-
House veto satisfies the requirement of bicameral approval.
The two-House version may present a different question.
The concept that "neither branch of Congress, when acting
separately, can lawfully exercise more power than is con-
ferred by the Constitution on the whole body," Kilbourn V.
Thompson, 103 U.S. 168, 182 (1881) is fully observed. 23
Third, it may be objected that Congress cannot indicate its
approval of legislative change by inaction. In the Court of
Appeals' view, inaction by Congress "could equally imply en-
dorsement, acquiescence, passivity, indecision or indiffer-
ence." 634 F. 2d, at 435, and the Court appears to echo this
concern, Ante, at 38, n. 22. This objection appears more
properly directed at the wisdom of the legislative veto than
3 Of course, when the authorizing legislation requires approval to be ex-
pressed by a positive vote. then the two-House veto would clearly comply
with the bicameralism requirement under any analysis.
80-1832, 80-2170 & 80-2171-DISSENT
INS L'. CHADHA
33
its constitutionality. The Constitution does not and cannot
guarantee that legislators will carefully scrutinize legislation
and deliberate before acting. In a democracy it is the elec-
torate that holds the legislators accountable for the wisdom
of their choices. It is hard to maintain that a private bill re-
ceives any greater individualized scrutiny than a resolution of
disapproval under § 244(c)(2). Certainly the legislative veto
is no more susceptible to this attack than the Court's increas-
ingly common practice of according weight to the failure of
Congress to disturb an Executive or independent agency's
action. See supra at 9-10, n. 9. Earlier this Term, the
Court found it important that Congress failed to act on bills
proposed to overturn the Internal Revenue Service's inter-
pretation of the requirements for tax-exempt status under
§ 501(c)(3) of the tax code. Bob Jones University V. United
States, U.S. , (1983). If Congress may be
said to have ratifed the Internal Revenue Service's interpre-
tation without passing new legislation, Congress may also be
said to approve a suspension of deportation by the Attorney
General when it fails to exercise its veto authority." The re-
quirements of Article I are not compromised by the Congres-
sional scheme.
IV
The Court of Appeals struck 244(c)(2) as violative of the
constitutional principle of separation of powers. It is true
23 The Court's doubts that Congress entertained this "arcane" theory
when it enacted 244(c)(2) disregards the fact that this is the historical
basis upon which the legislative vetoes contained in the Reorganization
Acts have been defended, supra at 29. n. 20, and that the Reorganization
Acts then provided the precedent articulated in support of other legislative
veto provisions. See, e. g. 87 Cong. Rec. 735 (Rep. Dirksen) (citing Re-
organization Act in support of proposal to include a legislative veto in
Lend-Lease Act). H. R. Rep. No. 658. 93d Cong., 1st Sess. 42 (1973) (cit-
ing Reorganization Act as "sufficient precedent" for legislative veto provi-
sion for Impoundment Control Act.).
80-1832, 80-2170 & 80-2171-DISSENT
34
INS v. CHADHA
that the purpose of separating the authority of government
is to prevent unnecessary 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.
But the history of the separation of powers doctrine is also
a history of accomodation and practicality. Apprehensions
of an overly powerful branch have not led to undue prophy-
lactic measures that handicap the effective working of the na-
tional government as a whole. The Constitution does not
contemplate total separation of the three branches of Govern-
ment. Buckley V. Valeo, 424 U. S. 1, 121 (1976). "[A] her-
metic sealing off of the three branches of Government from
one another would preclude the establishment of a Nation ca-
pable of governing itself effectively." Ibid."
Our decisions reflect this judgment. As already noted,
the Court, recognizing that modern government must ad-
dress a formidable agenda of complex policy issues, counte-
nanced the delegation of extensive legislative authority
to executive and independent agencies. Hampton & Co. V.
United States, 276 U. S. 394, 406 (1928). The separation of
powers doctrine has heretofore led to the invalidation of gov-
25 Madison emphasized that the principle of separation of powers is pri-
marily violated "where the whole power of one department is exercised by
the same hands which possess the whole power of another department."
Federalist No. 47, 302-303. Madison noted that. the oracle of the separa-
tion doctrine, Montesquieu, in writing that the legislative, executive and
judicial powers should not be united "in the same person or body of per-
sons," did not mean "that these departments ought to have no partial
agency in, or control over the acts of each other." The Federalist No. 47,
p. 325 (J. Cooke ed. 1961) (emphasis in original). Indeed. according to
Montesquieu. the legislature is uniquely fit to exercise an additional func-
tion: "to examine in what manner the laws that it has made have been exe-
cuted." W. Gwyn. The Meaning of Separation of Powers 102 (1965).
80-1832, 80-2170 & 80-2171-DISSENT
INS V. CHADHA
35
ernment action only when the challenged action violated
some express provision in the Constitution. In Buckley V.
Valeo, 424 U. S. 1, 118-124 (1976) (per curiam) and Myers V.
United States, 272 U. S. 52 (1926), congressional action com-
promised the appointment power of the President. See also
Springer V. Phillipine Islands, 277 U.S. 189, 200-201
(1928). In United States V. Klein, 13 Wall. 128 (1871), an
Act of Congress was struck for encroaching upon judicial
power, but the Court found that the Act also impinged upon
the Executive's exclusive pardon power. Art. II, §2. Be-
cause we must have a workable efficient government, this is
as it should be.
This is the teaching of Nixon V. Administrator of Gen.
Servs., 433 U. S. 425 (1977), which. in rejecting a separation
of powers objection to a law requiring that the Administrator
take custody of certain presidential papers, set forth a frame-
work for evaluating such claims:
"[I]n determining whether the Act disrupts the proper
balance between the coordinate branches, the proper in-
quiry focuses on the extent to which it prevents the Ex-
ecutive Branch from accomplishing its constitutionally
assigned functions. United States V. Nixon, 418 U. S.
at 711-712. Only where the potential for disruption is
present must we then determine whether that impact is
justified by an overriding need to promote objectives
within the constitutional authority of Congress." 433
U.S., at 443.
Section 244(c)(2) survives this test. The legislative veto
provision does not "prevent the Executive Branch from
accomplishing its constitutionally assigned functions."
First, it is clear that the Executive Branch has no "constitu-
tionally assigned" function of suspending the deportation of
aliens. "Over no conceivable subject is the legislative
power of Congress more complete than it is over' the admis-
sion of aliens." Kleindiest V. Mandel, 408 U.S. 753, 766
80-1832. 80-2170 & 80-2171-DISSENT
36
INS v. CHADHA
(1972), quoting Oceanic Steam Navigation Co. V. Stranahan,
214 U. S. 320, 339 (1909). Nor can it be said that the inher-
ent function of the Executive Branch in executing the law is
involved. The Steel Seizure Case resolved that the Article
II mandate for the President to execute the law is a directive
to enforce the law which Congress has written. Youngstoun
Sheet & Tube Co. V. Sawyer, 343 U. S. 579 (1952). "The duty
of the President to see that the laws be executed is a duty
that does not go beyond the laws or require him to achieve
more than Congress sees fit to leave within his power."
M yers V. United States, 272 U.S., at 177 (Holmes, J., dis-
senting); 272 U. S., at 247 (Brandeis, J., dissenting). Here,
§ 244 grants the executive only a qualified suspension author-
ity and it is only that authority which the President is con-
stitutionally authorized to execute.
Moreover, the Court believes that the legislative veto we
consider today is best characterized as an excercise of legisla-
tive or quasi-legislative authority. Under this characteriza-
tion, the practice does not, even on the surface, constitute an
infringement of executive or judicial prerogative. The At-
torney General's suspension of deportation is equivalent to a
proposal for legislation. The nature of the Attorney Gener-
al's role as recommendatory is not altered because § 244 pro-
vides for congressional action through disapproval rather
than by ratification. In comparison to private bills, which
must be initiated in the Congress and which allow a Presiden-
tial veto to be overriden by a two-thirds majority in both
Houses of Congress, § 244 augments rather than reduces the
executive branch's authority. So understood, congressional
review does not undermine, as the Court of Appeals thought,
the "weight and dignity" that attends the decisions of the Ex-
ecutive Branch.
Nor does § 244 infringe on the judicial power, as JUSTICE
POWELL would hold. Section 244 makes clear that Congress
has reserved its own judgment as part of the statutory proc-
ess. Congressional action does not substitute for judicial re-
80-1832. 80-2170 & 80-2171-DISSENT
INS v. CHADHA
37
view of the Attorney General's decisions. The Act provides
for judicial review of the refusal of the Attorney General to
suspend a deportation and to transmit a recommendation to
Congress. INS V. Wang, 450 U. S. 139 (1981) (per curiam).
But the courts have not been given the authority to review
whether an alien should be given permanent status; review is
limited to whether the Attorney General has properly applied
the statutory standards for essentially denying the alien a
recommendation that his deportable status be changed by the
Congress. Moreover, there is no constitutional obligation to
provide any judicial review whatever for a failure to suspend
deportation. "The power of Congress, therefore, to expel,
like the power to exclude aliens, or any specified class of
aliens, from the country, may be exercised entirely through
executive officers; or Congress may call in the aid of the judi-
ciary to ascertain any contested facts on which an alien's
right to be in the country has been made by Congress to de-
pend." Fong Yue Ting V. United States, 149 U.S. 698,
713-714 (1893). See also Tutun V. United States, 270 U.S.
568, 576 (1926); Ludecke V. Watkins, 335 U.S. 160, 171-172
(1948); Harisiades V. Shaughnessy, 342 U. S. 580, 590 (1952).
I do not suggest that all legislative vetoes are necessarily
consistent with separation of powers principles. A legisla-
tive check on an inherently executive function, for example
that of initiating prosecutions, poses an entirely different
question. But the legislative veto device here-and in many
other settings-is far from an instance of legislative tyranny
over the Executive. It is a necessary check on the unavoid-
ably expanding power of the agencies, both executive and in-
dependent, as they engage in exercising authority delegated
by Congress.
V
I regret that I am in disagreement with my colleagues on
the fundamental questions that this case presents. But even
more I regret the destructive scope of the Court's holding.
80-1832, 80-2170 & 80-2171-DISSENT
38
INS v. CHADHA
It reflects a profoundly different conception of the Constitu-
tion than that held by the Courts which sanctioned the mod-
ern adminstrative state. Today's decision strikes down in
one fell swoop provisions in more laws enacted by Congress
than the Court has cumulatively invalidated in its history. I
fear it will now be more difficult "to insure that the funda-
mental policy decisions in our society will be made not by an
appointed official but by the body immediately responsible to
the people," Arizona V. California, 373 U. S. 546, 626 (1963)
(Harlan, J., dissenting). I must dissent.
80-1832. 80-2170 & 80-2171-APPENDIX
INS 1: CHADHA
39
APPENDIX 1
STATUTES WITH PROVISIONS AUTHORIZING CON-
GRESSIONAL REVIEW
This compilation, reprinted from the Brief for the United
States Senate, identifies and describes briefly current statu-
tory provisions for a legislative veto by one or both Houses of
Congress. Statutory provisions for a veto by committees of
the Congress and provisions which require legislation (i. e.,
passage of a joint resolution) are not included. The fifty-six
statutes in the compilation (some of which contain more than
one provision for legislative review) are divided into six
broad categories: foreign affiars and national security, bud-
get, international trade, energy, rulemaking and
miscellaneous.
A.
FOREIGN AFFAIRS AND NATIONAL SECURITY
1. Act for International Development of 1961, Pub. L. No.
87-195, § 617, 75 Stat. 424, 441, 22 U.S. C. 2367 (Funds
made available for foreign assistance under the Act may be
terminated by concurrent resolution).
2. War Powers Resolution, Pub. L. No. 93-148, §5, 87 Stat.
555, 556-557 (1973), 50 U. S. C. 1544 (Absent declaration of
war, President may be directed by concurrent resolution to
remove United States armed forces engaged in foreign
hostilities.)
3. Department of Defense Appropriation Authorization
Act, 1974, Pub. L. No. 93-155, $ 807, 87 Stat. 605, 615 (1973),
50 U. S. C. 1431 (National defense contracts obligating the
United States for any amount in excess of $25,000,000 may be
disapproved by resolution of either House).
4. Department of Defense Appropriation Authorization
Act, 1975, Pub. L. No. 93-365. § 709(c), 88 Stat. 399, 408
(1974), 50 U.S. C. app. 2403-1(c) (Applications for export of
80-1832. 80-2170 & 80-2171-APPENDIX
40
INS v. CHADHA
defense goods, technology or techniques may be disapproved
by concurrent resolution).
5. H. R. J. Res. 683, Pub. L. No. 94-110, § 1, 89 Stat. 572
(1975), 22 U. S. C. 2441 note (Assignment of civilian person-
nel to Sinai may be disapproved by concurrent resolution).
6. International Development and Food Assistance Act of
1975, Pub. L. No. 94-161, § 310, 89 Stat. 849, 860, 22
U.S. C. 2151n (Foreign assistance to countries not meeting
human rights standards may be terminated by concurrent
resolution).
7. International Security Assistance and Arms Control Act
of 1976, Pub. L. No. 94-329, § 211, 90 Stat. 729, 743, 22
U. S. C. 2776(b) (President's letter of offer to sell major de-
fense equipment may be disapproved by concurrent
resolution).
8. National Emergencies Act, Pub. L. No. 94-412, § 202, 90
Stat. 1255 (1976), 50 U.S. C. 1622 (Presidentially declared
national emergency may be terminated by concurrent
resolution).
9. International Navigational Rules Act of 1977, Pub. L.
No. 95-75, § 3(d), 91 Stat. 308, 33 U. S. C. § 1602(d) (Supp.
III 1979) (Presidential proclamation of International Regula-
tions for Preventing Collisions at Sea may be disapproved by
concurrent resolution).
10. International Security Assistance Act of 1977, Pub. L.
No. 95-92, § 16, 91 Stat. 614, 622, 22 U. S. C. § 2753(d)(2)
(Supp. III 1979) (President's proposed transfer of arms to a
third country may be disapproved by concurrent resolution).
11. Act of December 8, 1977, Pub. L. No. 95-223, § 207(2)(b),
91 Stat. 1625, 1628, 50 U. S. C. 1706(b) (Supp. III 1979)
(Presidentially declared national emergency and exercise of
conditional powers may be terminated by concurrent
resolution).
12. Nuclear Non-Proliferation Act of 1978, Pub. L. No.
95-242, §§ 303, 304, 306, 307, 401, 92 Stat. 120, 130, 134,
80-1832, 80-2170 & 80-2171-APPENDIX
INS v. CHADHA
41
137-38, 139. 144, 42 U. S. C. §§ 2160(f), 2155(b), 2157(b),
2153(d) (Supp. III 1979) (Cooperative agreements concerning
storage and disposition of spent nuclear fuel, proposed export
of nuclear facilities, materials or technology and proposed
agreements for international cooperation in nuclear reactor
development may be disapproved by concurrent resolution).
B.
BUDGET
13. Congressional Budget and Impoundment Control Act of
1974, Pub: L. No. 93-344, § 1013, 88 Stat. 297, 334-35, 31
U.S. C. 1403 (The proposed deferral of budget authority
provided for a specific project or purpose may be disapproved
by an impoundment resolution by either House).
C.
INTERNATIONAL TRADE
14. Trade Expansion Act of 1962, Pub. L. No. 87-794, § 351,
76 Stat. 872, 899, 19 U. S. C. 1981(a) (Tariff or duty recom-
mended by Tariff Commission may be imposed by concurrent
resolution of approval).
15. Trade Act of 1974, Pub. L. No. 93-618, §§ 203(c), 302(b),
402(d), 407, 88 Stat. 1978, 2016, 2043, 2057-60, 2063-64, 19
U.S. C. 2253(c), 2412(b), 2432, 2434 (Proposed Presidential
actions on import relief and actions concerning certain coun-
tries may be disapproved by concurrent resolution; various
Presidential proposals for waiver extensions and for exten-
sion of nondiscriminatory treatment to products of foreign
countries may be disapproved by simple (either House) or
concurrent resolutions).
16. Export-Import Bank Amendments of 1974, Pub. L. No.
93-646, §8, 88 Stat. 2333, 2336, 12 U. S. C. 635e (Presiden-
tially proposed limitation for exports to USSR in excess of
$300,000,000 must be approved by concurrent resolution).
80-1832, 80-2170 & 80-2171-APPENDIX
42
INS 2'. CHADHA
D.
ENERGY
17. Act of November 16, 1973, Pub. L. No. 93-153, § 101, 87
Stat. 576, 582, 30 U. S. C. 185(u) (Continuation of oil exports
being made pursuant to President's finding that such exports
are in the national interest may be disapproved by concur-
rent resolution).
18. Federal Nonnuclear Energy Research and Development
Act of 1974, Pub. L. No. 93-577, § 12, 88 Stat. 1878,
1892-1893, 42 U. S. C. 5911 (Rules or orders proposed by the
President concerning allocation or acquisition of essential ma-
terials may be disapproved by resolution of either House).
19. Energy Policy and Conservation Act, Pub. L. No.
94-163, § 551, 89 Stat. 871, 965 (1975), 42 U. S. C. 6421(c)
(Certain Presidentially proposed "energy actions" involving
fuel economy and pricing may be disapproved by resolution of
either House).
20. Naval Petroleum Reserves Production Act of 1976, Pub.
L. No. 94-258, § 201. 90 Stat. 303, 309, 10 U.S. C.
7422(c)(2)(C) (President's extension of production period for
naval petroleum reserves may be disapproved by resolution
of either House).
21. Energy Conservation and Production Act, Pub. L. No.
94-385, § 305, 90 Stat. 1125, 1148 (1976), 42 U.S. C. 6834
(Proposed sanctions involving federal assistance and the en-
ergy conservation performance standards for new buildings
must be approved by resolution of both Houses).
22. Department of Energy Act of 1978-Civilian Applica-
tions, Pub. L. No. 95-238, §§ 107, 207(b), 92 Stat. 47, 55, 70,
22 U. S. C. 3224a, 42 U.S. C. 5919(m) (Supp. III 1979) (In-
ternational agreements and expenditures by Secretary of En-
ergy of appropriations for foreign spent nuclear fuel storage
must be approved by concurrent resolution. if not consented
to by legislation;) (plans for such use of appropriated funds
may be disapproved by either House:) (financing in excess of
$50,000,000 for demonstration facilities must be approved by
80-1832, 80-2170 & 80-2171-APPENDIX
INS v. CHADHA
43
resolution in both Houses).
23. Outer Continental Shelf Lands Act Amendments of 1978,
Pub. L. No. 95-372, 205(a), 208, 92 Stat. 629, 641, 668, 43
U. S. C. §§ 1337(a), 1354(c) (Supp. III 1979) (Establishment
by Secretary of Energy of oil and gas lease bidding system
may be disapproved by resolution of either House;) (export of
oil and gas may be disapproved by concurrent resolution).
24. Natural Gas Policy Act of 1978, Pub. L. No. 95-621,
§§ 122(c)(1) and (2), 202(c), 206(d)(2), 507, 92 Stat. 3350, 3370,
3371, 3372, 3380, 3406, 15 U. S. C. 3332, 3342(c), 3346(d)(2),
3417 (Supp. III 1979) (Presidential reimposition of natural
gas price controls may be disapproved by concurrent resolu-
tion;) (Congress may reimpose natural gas price controls by
concurrent resolution;) (Federal Energy Regulatory Com-
mission (FERC) amendment to pass through incremental
costs of natural gas, and exemptions therefrom, may be dis-
approved by resolution of either House;) (procedure for con-
gressional review established).
25. Export Administration Act of 1979, Pub. L. No. 96-72,
§ 7(d)(B), 7(g)(3), 93 Stat. 503, 518, 520, 50 U.S. C. app.
2406(d)(2)(B), 2406(g)(3) (Supp. III 1979) (President's pro-
posal to domestically produce crude oil must be approved by
concurrent resolution;) (action by Secretary of Commerce to
prohibit or curtail export of agricultural commodities may be
disapproved by concurrent resolution).
26. Energy Security Act, Pub. L. No. 96-294, §§ 104(b)(3),
104(e), 126(d)(2), 126(d)(3), 128, 129, 132(a)(3), 133(a)(3),
137(b)(5), 141(d), 179(a), 803, 94 Stat. 611, 618, 619, 620,
623-26, 628-29, 649, 650-52, 659, 660, 664, 666, 679, 776
(1980) (to be codified in 50 U. S. C. app. 2091-93, 2095, 2096,
2097, 42 U. S. C. 8722, 8724, 8725, 8732, 8733, 8737, 8741,
8779, 6240) (Loan guarantees by Departments of Defense,
Energy and Commerce in excess of specified amounts may be
disapproved by resolution of either House;) (President's pro-
posal to provide loans or guarantees in excess of established
amounts may be disapproved by resolution of either House;)
(proposed award by President of individual contracts for pur-
80-1832, 80-2170 & 80-2171-APPENDIX
44
INS v. CHADHA
chase of more than 75,000 barrels per day of crude oil may be
disapproved by resolution of either House;) (President's pro-
posals to overcome energy shortage through synthetic fuels
development, and individual contracts to purchase more than
75,000 barrels per day, including use of loans or guarantees,
may be disapproved by resolution of either House;) (proce-
dures for either House to disapprove proposals made under
Act are established;) (request by Synthetic Fuels Corpora-
tion (SFC) for additional time to submit its comprehensive
strategy may be disapproved by resolution of either House;)
(proposed amendment to comprehensive strategy by SFC
Board of Directors may be disapproved by concurrent resolu-
tion of either House or by failure of both Houses to pass con-
current resolution of approval;) (procedure for either House
to disapprove certain proposed actions of SFC is established;)
(procedure for both Houses to approve by concurrent resolu-
tion or either House to reject concurrent resolution for pro-
posed amendments to comprehensive strategy of SFC is es-
tablished;) (proposed loans and loan guarantees by SFC may
be disapproved by resolution of either House;) (acquisition by
SFC of a synthetic fuels project which is receiving financial
assistance may be disapproved by resolution of either
House;) (SFC contract renegotiations exceeding initial cost
estimates by 175% may be disapproved by resolution of ei-
ther House;) (proposed financial assistance to synthetic fuel
projects in Western Hemisphere outside United States may
be disapproved by resolution of either House;) (President's
request to suspend provisions requiring build up of reserves
and limiting sale or disposal of certain crude oil reserves must
be approved by resolution of both Houses).
E.
RULEMAKING
27. Education Amendments of 1974, Pub. L. No. 93-380,
§ 509, 88 Stat. 484, 567, 20 U. S. C. 1232(d)(1) (Department
80-1832. 80-2170 & 80-2171-APPENDIX
INS v. CHADHA
45
of Education regulations may be disapproved by concurrent
resolution).
28. Federal Education Campaign Act Amendments of 1979,
Pub. L. No. 96-187, § 109. 93 Stat. 1339, 1364, 2 U. S. C.
438(d)(2) (Supp. III 1979) (Proposed rules and regulations of
the Federal Election Commission may be disapproved by
resolution of either House).
29. Act of January 2, 1975, Pub. L. No. 93-595, §2, 88 Stat.
1926, 1948, 28 U. S. C. 2076 (Proposed amendments by Su-
preme Court of Federal Rules of Evidence may be disap-
proved by resolution of either House).
30. Act of August 9, 1975, Pub. L. No. 94-88, § 208, 89 Stat.
433, 436-37, 42 U. S. C. 602-note (Social Security standards
proposed by Secretary of Health and Human Services may be
disapproved by either House).
31. Airline Deregulation Act of 1978, Pub. L. No. 95-504,
§ 43(f)(3), 92 Stat. 1705, 1752, 49 U. S. C. 1552(f) (Supp. III
1979) (Rules or regulations governing employee protection
program may be disapproved by resolution of either House).
32. Education Amendments of 1978, Pub. L. No. 95-561,
§§ 1138, 1212, 1409, 92 Stat. 2143, 2327, 2341. 2341, 2369, 25
U. S. C. 2018, 20 U. S. C. 1221-3(e) (Supp. III 1979) (Rules
and regulations proposed under the Act may be disapproved
by concurrent resolution).
33. Civil Rights of Institutionalized Persons Act, Pub. L.
No. 96-247, § 7(b)(1), 94 Stat. 349, 352-355 (1980) (to be codi-
fied in 42 U.S. C. 1997e) (Attorney General's proposed
standards for resolution of grievances of adults confined in
correctional facilities may be disapproved by resolution of ei-
ther House).
34. Federal Trade Commission Improvements Act of 1980,
Pub. L. No. 96-252, § 21(a), 94 Stat. 374, 393 (to be codified
in 15 U.S. C. 57a-1) (Federal Trade Commission rules may
be disapproved by concurrent resolution).
35. Department of Education Organization Act, Pub. L. No.
96-88, § 414(b), 93 Stat. 668, 685 (1979), 20 U. S. C. 3474
80-1832, 80-2170 & 80-2171-APPENDIX
46
INS v. CHADHA
(Supp. III 1979) (Rules and regulations promulgated with re-
spect to the various functions, programs and responsibilities
transferred by this Act, may be disapproved by concurrent
resolution).
36. Multiemployer Pension Plan Amendments Act of 1980,
Pub. L. No. 96-364, § 102, 94 Stat. 1208, 1213 (to be codified
in 29 U. S. C. 1322a) (Schedules proposed by Pension Benefit
Guaranty Corporation (PBGC) which requires an increase in
premiums must be approved by concurrent resolution;) (re-
vised premium schedules for voluntary supplemental cover-
age proposed by PBGC may be disapproved by concurrent
resolution).
37. Farm Credit Act Amendments of 1980, Pub. L. No.
96-592, § 508, 94 Stat. 3437, 3450 (to be codified in 12
U. S. C. 2121) (Certain Farm Credit Administration regula-
tions or delayed by resolution of either House.)
38. Comprehensive Environmental Response, Compensa-
tion, and Liability Act of 1980, Pub. L. No. 96-510, § 305, 94
Stat. 2767, 2809 (to be codified in 42 U. S. C. 9655) (Environ-
mental Protection Agency regulations concerning hazardous
substances releases, liability and compensation may be disap-
proved by concurrent resolution or by the adoption of either
House of a concurrent resolution which is not disapproved by
the other House).
39. National Historic Preservation Act Amendments of 1980,
Pub. L. No. 96-515, § 501, 94 Stat. 2987, 3004 (to be codified
in 16 U. S. C. 470w-6) (Regulation proposed by the Secre-
tary of the Interior may be disapproved by concurrent
resolution).
40. Costal Zone Management Improvement Act of 1980,
Pub. L. No. 96-464, § 12, 94 Stat. 2060. 2067 (to be codified in
16 U. S. C. 1463a) (Rules proposed by the Secretary of Com-
merce may be disapproved by concurrent resolution).
41. Act of December 17, 1980, Pub. L. No. 96-539, § 4, 94
Stat. 3194, 3195 (to be codified in 7 U. S. C. 136w) (Rules or
regulations promulgated by the Administrator of the Envi-
80-1832. 80-2170 & 80-2171-APPENDIX
INS L'. CHADHA
47
ronmental Protection Agency under the Federal Insecticide,
Fungicide and Rodenticide Act may be disapproved by con-
current resolution).
42. Omnibus Budget Reconciliation Act of 1981, Pub. L. No.
97-35, §§ 533(a)(2), 1107(d), 1142, 1183(a)(2), 1207, 95 Stat.
357, 453, 626, 654, 659, 695, 718-20 (to be codified in 20
U.S. C. 1089, 23 U.S. C. 402(j), 45 U.S. C. 761, 767,
564(c)(3), 15 U. S. C. 2083, 1276, 1204) (Secretary of Educa-
tion's schedule of expected family contributions for Pell Grant
recipients may be disapproved by resolution of either House;)
(rules promulgated by Secretary of Transportation for pro-
grams to reduce accidents, injuries and deaths may be disap-
proved by resolution of either House;) (Secretary of Trans-
portation's plan for the sale of government's common stock in
rail system may be disapproved by concurrent resolution;)
(Secretary of Transportation's approval of freight transfer
agreements may be disapproved by resolution of either
House;) (amendments to Amtrak's Route and Service Crite-
ria may be disapproved by resolution of either House;) (Con-
sumer Product Safety Commission regulations may be disap-
proved by concurrent resolution of both Houses, or by
concurrent resolution of disapproval by either House if such
resolution is not disapproved by the other House).
F.
MISCELLANEOUS
43. Federal Civil Defense Act of 1950, Pub. L. No. 81-920,
§ 201, 64 Stat. 1245, 1248, 50 app. U. S. C. 2281(g) (Inter-
state civil defense compacts may be disapproved by concur-
rent resolution).
44. National Aeronautics and Space Act of 1958, Pub. L. No.
85-568, § 302c, 72 Stat. 426, 433, 42 U.S. C. 2453 (Presi-
dent's transfer to National Air and Space Administration of
functions of other departments and agencies may be disap-
proved by concurrent resolution).
80-1832, 80-2170 & 80-2171-APPENDIX
48
INS v. CHADHA
45. Federal Pay Comparability Act of 1970, Pub. L. No.
91-656, §3, 84 Stat. 1946, 1949, 5 U. S. C. 5305 (President's
alternative pay plan may be disapproved by resolution of ei-
ther House).
46. Act of October 19, 1973, Pub. L. No. 93-134, §5, 87 Stat.
466, 468, 25 U. S. C. 1405 (Plan for use and distribution of
funds paid in satisfaction of judgment of Indian Claims Com-
mission or Court of Claims may be disapproved by resolution
of either House).
47. Menominee Restoration Act, Pub. L. No. 93-197, § 6, 87
Stat. 770, 773 (1973), 25 U. S. C. 903d(b) (Plan by Secretary
of the Interior for assumption of the assets the Menominee
Indian corporation may be disapproved by resolution of ei-
ther House).
48. District of Columbia Self-Government and Governmental
Reorganization Act, Pub. L. No. 93-198, §§ 303, 602(c)(1) and
(2), 87 Stat. 774, 784, 814 (1973) (District of Columbia Char-
ter amendments ratified by electors must be approved by
concurrent resolution;) (acts of District of Columbia Council
may be disapproved by concurrent resolution;) (acts of Dis-
trict of Columbia Council under certain titles of D.C. Code
may be disapproved by resolution of either House).
49. Act of December 31, 1975, Pub. L. No. 94-200, § 102, 89
Stat. 1124, 12 U. S. C. 461 note (Federal Reserve System
Board of Governors may not eliminate or reduce interest rate
differentials between banks insured by Federal Deposit In-
surance Corporation and associations insured by Federal
Savings and Loan Insurance Corporations without concur-
rent resolution of approval).
50. Veterans' Education and Employment Assistance Act of
1976, Pub. L. No. 94-502, § 408, 90 Stat. 2383, 2397-98, 38
U.S. C. 1621 note (President's recommendation for contin-
ued enrollment period in Armed Forces educational assist-
ance program may be disapproved by resolution of either
House).
51. Federal Land Policy and Management Act of 1976, Pub.
80-1832. 80-2170 & 80-2171-APPENDIX
INS v. CHADHA
49
L. No. 94-579, §§ 203(c), 204(c)(1), 90 Stat. 2743, 2750, 2752,
43 U. S. C. 1713(c), 1714 (Sale of public lands in excess of two
thousand five hundred acres and withdrawal of public lands
aggregating five thousand acres or more may be disapproved
by concurrent resolution).
52. Emergency Unemployment Compensation Extension
Act of 1977, Pub. L. No. 95-19, § 401, 91 Stat. 39, 45, 2
U. S. C. 359 (Supp. III 1979) (Preident's recommendations
regarding rates of salary payment may be disapproved by
resolution of either House).
53. Civil Service Reform Act of 1978, Pub. L. No. 95-454,
§515. 92 Stat. 1111, 1179, 5 U.S. C. 3131 note (Supp. III
1979) (Continuation of Senior Executive Service may be dis-
approved by concurrent resolution).
54. Full Employment and Balanced Growth Act of 1978,
Pub. L. No. 95-523, § 304(b), 92 Stat. 1887, 1906, 31 U. S. C.
1322 (Supp. III 1979) (Presidential timetable for reducing un-
employment may be superseded by concurrent resolution).
55. District of Columbia Retirement Reform Act, Pub. L.
No. 96-122, § 164, 93 Stat. 866. 891-92 (1979) (Required re-
ports to Congress on the District of Colubmia retirement pro-
gram may be rejected by resolution of either House).
56. Act of August 29, 1980, Pub. L. No. 96-332, §2, 94 Stat.
1057, 1058 (to be codified in 16 U. S. C. 1432) (Designation of
marine sanctuary by the Secretary of Commerce may be dis-
approved by concurrent resolution).
SUPREME COURT OF THE UNITED STATES
Nos. 80-1832, 80-2170 AND 80-2171
IMMIGRATION AND NATURALIZATION SERVICE,
APPELLANT
80-1832
v.
JAGDISH RAI CHADHA ET AL.
ON APPEAL FROM THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES HOUSE OF REPRESENTATIVES,
PETITIONER
80-2170
v.
IMMIGRATION AND NATURALIZATION SERVICE
ET AL.
UNITED STATES SENATE, PETITIONER
80-2171
v.
IMMIGRATION AND NATURALIZATION SERVICE
ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 23, 1983]
JUSTICE REHNQUIST, with whom JUSTICE WHITE joins,
dissenting.
A severability clause creates a presumption that Congress
intended the valid portion of the statute to remain in force
when one part is found to be invalid. Carter V. Carter Coal
Co., 298 U. S. 238, 312 (1936); Champlin Refining Co. V.
80-1832, 80-2170 & 80-2171-DISSENT
2
INA v. CHADHA
Corporation Comm'n, 286 U. S. 210, 235 (1932). A sever-
ability clause does not, however, conclusively resolve the
issue. "[T]he determination, in the end, is reached by" ask-
ing "[w]hat was the intent of the lawmakers," Carter, supra,
at 312, and "will rarely turn on the presence or absence of
such a clause." United States V. Jackson, 390 U. S. 570,
585, n. 27 (1968). Because I believe that Congress did not
intend the one-House veto provision of § 244(c)(2) to be sever-
able, I dissent.
Section 244(c)(2) is an exception to the general rule that an
alien's deportation shall be suspended when the Attorney
General finds that statutory criteria are met. It is severable
only if Congress would have intended to permit the Attorney
General to suspend deportations without it. This Court has
held several times over the years that exceptions such as this
are not severable because
"by rejecting the exceptions intended by the legislature
the statute is made to enact what confessedly the
legislature never meant. It confers upon the statute a
positive operation beyond the legislative intent, and be-
yond what anyone can say it would have enacted in view
of the illegality of the exceptions." Spraigue V. Thomp-
son, 118 U. S. 90, 95 (1886).
By severing § 244(c)(2), the Court permits suspension of
deportation in a class of cases where Congress never stated
that suspension was appropriate. I do not believe we should
expand the statute in this way without some clear indication
that Congress intended such an expansion. As the Court
said in Davis V. Wallace, 257 U. S. 478, 484-485 (1922):
"Where an excepting provision in a statute is found un-
constitutional, courts very generally hold that this does
not work an enlargement of the scope or operation of
other provisions with which that provision was enacted
and which was intended to qualify or restrain. The rea-
80-1832, 80-2170 & 80-2171-DISSENT
INA v. CHADHA
3
soning on which the decisions proceed is illustrated in
State Ex Rel. McNeal V. Dombaugh, 20 Ohio St. 167,
174. In dealing with a contention that a statute contain-
ing an unconstitutional provision should be construed as
if the remainder stood alone, the court there said: "This
would be to mutilate the section and garble its meaning.
The legislative intention must not be confounded with
their power to carry that intention into effect. To re-
fuse to give force and vitality to a provision of law is one
thing, and to refuse to read it is a very different thing.
It is by a mere figure of speech that we say an uncon-
stitutional provision of a statute is 'stricken out.' For
all the purposes of construction it is to be regarded as
part of the act. The meaning of the legislature must be
gathered from all that they have said, as well from that
which is ineffectual for want of power, as from that
which is authorized by law.'
Here the excepting provision was in the statute when
it was enacted, and there can be no doubt that the legis-
lature intended that the meaning of the other provisions
should be taken as restricted accordingly. Only with
that restricted meaning did they receive the legislative
sanction which was essential to make them part of the
statutelaw of the State; and no other authority is compe-
tent to give them a larger application."
See also Frost V. Corporation Comm'n, 278 U. S. 515, 525
(1929).
The Court finds that the legislative history of § 244 shows
that Congress intended § 244(c)(2) to be severable because
Congress wanted to relieve itself of the burden of private
bills. But the history elucidated by the Court shows that
Congress was unwilling to give the Executive Branch per-
mission to suspend deportation on its own. Over the years,
Congress consistently rejected requests from the Executive
80-1832, 80-2170 & 80-2171-DISSENT
4
INA 2'. CHADHA
for complete discretion in this area. Congress always in-
sisted on retaining ultimate control, whether by concurrent
resolution, as in the 1948 Act, or by one-House veto, as in the
present Act. Congress has never indicated that it would be
willing to permit suspensions of deportation unless it could
retain some sort of veto.
It is doubtless true that Congress has the power to provide
for suspensions of deportation without a one-House veto.
But the Court has failed to identify any evidence that Con-
gress intended to exercise that power. On the contrary,
Congress' continued insistence on retaining control of the
suspension process indicates that it has never been disposed
to give the Executive Branch a free hand. By severing
§ 244(c)(2) the Court has "confounded" Congress' "intention"
to permit suspensions of deportation "with their power to
carry that intention into effect." Davis, supra, at 484, quot-
ing Dombaugh, supra, at 174.
Because I do not believe that § 244(c)(2) is severable, I
would reverse the judgment of the Court of Appeals.
UNITED STATES COURT OF APPEALS
Charle file
FOR THE SECOND CIRCUIT
No. 1295- August Term, 1983
Argued: May 17, 1984
Decided: August 28, 1984
Docket No. 84-6063
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellee,
-against-
CBS, INC.,
Defendant-Appellant.
Before:
CARDAMONE, PRATT, and DANIEL M. FRIEDMAN of the
United States Court of Appeals for the Federal Circuit,
sitting by designation,
Circuit Judges.
Appeal from an order of the United States District
Court for the Southern District of New York, Sprizzo, J.,
6059
determining that the presence of a one-house veto clause
Joseph M. Wells, Lumbard, IL (Majorie
in the Reorganization Act of 1977 did not invalidate the
Nemzura, Lumbard, IL, of Counsel), for
authority of the Equal Employment Opportunity Com-
Amicus Curiae Natural Gas Pipeline
mission, transferred to it by Reorganization Plan No. 1 of
Company of America.
1978, to enforce the Age Discrimination in Employment
Rodger A. Kershner, Detroit, MI, for Amicus
Act.
Curiae ANR Pipeline Company.
Reversed.
Herschel L. Abbott, Jr., New Orleans, LA
(H. Mark Adams, Jones, Walker, Waech-
ter, Poitevent, Carrere & Denegre, New
Orleans, LA, of Counsel), for Amicus
GEORGE A. STOHNER, Washington, DC
Curiae ANR Pipeline Company and Nat-
(James Skelly Wright, Jr., Donna S.
ural Gas Pipeline Company of America.
Mangold, Morgan, Lewis & Bockius, of
Counsel), for Defendant-Appellant.
MARK S. FLYNN, Attorney, Equal Employ-
ment Opportunity Commission, Wash-
PRATT, Circuit Judge:
ington, DC (Richard K. Willard, Acting
Assistant Attorney General, Carolyn
This appeal presents a narrow but important question
Kuhl, Deputy Assistant Attorney
of first impression in this circuit:
General, Douglas Letter, Attorney, De-
Does the presence of a one-house veto clause in the
partment of Justice, Washington, DC;
Reorganization Act of 1977 invalidate the authority
David L. Slate, General Counsel, Philip
of the Equal Employment Opportunity Commission
B. Sklover, Associate General Counsel,
(EEOC), transferred to it by Reorganization Plan
Susan Buckingham Reilly, Acting Assis-
No. 1 of 1978, to enforce the Age Discrimination in
tant General Counsel, Equal Employ-
Employment Act (ADEA)?
ment Opportunity Commission, Wash-
ington, DC, of Counsel) for Plaintiff-
Judge Sprizzo below held that, although the legislative
Appellee.
veto clause in question is unconstitutional in light of the
John R. Crenshaw, Atlanta, GA (Anne S.
Supreme Court's decision in Immigration and Naturaliza-
Rampacek, Alston & Bird, Atlanta, GA,
tion Service V. Chadha, 103 S.Ct. 2764 (1983), the EEOC
of Counsel), for Amicus Curiae Chrysler
retains authority to enforce the ADEA, 29 U.S.C. $ 621
Corporation.
et seq., because (1) the veto clause is severable from the
rest of the Reorganization Act and, alternatively, (2)
6060
6061
congress has ratified the transfer of enforcement author-
(Burger, Ch. J., dissenting from dismissal of appeal for
ity to the EEOC. Because we conclude that the unconsti-
lack of jurisdiction).
tutional veto provision is not severable from the rest of
In May 1981 the EEOC filed the complaint in this
the Reorganization Act, and that congress has not ratified
action, charging CBS with violating the ADEA. Over two
the transfer of authority, we reverse the judgment of the
years later, in September 1983, CBS moved to dismiss,
district court and hold that, as of the effective date of our
claiming that the EEOC lacks power to enforce the
judgment on this appeal, absent corrective action by
ADEA, because the Plan's transfer of ADEA enforce-
congress, the EEOC's authority to prosecute this action
ment authority from the Department of Labor to the
will cease.
EEOC was subject to a one-house veto, a legislative
device that was held unconstitutional in Chadha. The
BACKGROUND
district court denied CBS's motion, but on its certifica-
tion pursuant to 28 U.S.C. § 1292(b) we permitted this
The Reorganization Act of 1977, Pub. L. No. 95-17, 91
interlocutory appeal.
Stat. 29, codified at 5 U.S.C. § 901 et seq. (the Act),
conferred on the President authority to reorganize execu-
DISCUSSION
tive departments and agencies subject to a "veto" by
either house of congress. Procedurally, the Act required
In one broad stroke, the Supreme Court in Chadha
the President to transmit any proposed reorganization
invalidated every use of the legislative veto. 103 S.Ct. at
plan to both houses, and such a plan was to become
2788 (Powell, J., concurring); see also id. at 2792, 2810-
effective if neither house passed a resolution of disap-
11 (White, J., dissenting). Chief Justice Burger's majority
proval within 60 days. 5 U.S:C. §§ 903, 906(a).
opinion reasoned that this device, various forms of which
As authorized by the Act, President Carter prepared
had been inserted in nearly 200 federal laws since the
and submitted to congress Reorganization Plan No. 1 of
mid-1930's, violated constitutional mandates of separa-
1978, 43 Fed. Reg. 19807, 92 Stat. 3871, reprinted in 1978
tion of powers, bicameralism, and presentment. Id. at
U.S. Code Cong. & Ad. News 9795-9800 (the Plan),
2781-88. In effect, the Court held that the convenience,
which was designed to reorganize and expand the func-
flexibility, and efficiency of the device could not over-
tions of the EEOC. Among the functions and responsibil-
come the fact that it is clearly inconsistent with our
ities transferred to the EEOC were enforcement and
constitutional structure. Id. at 2781.
administrative authority for the ADEA, which had pre-
Given such a strongly worded position by the Supreme
viously been enforced by the Secretary of Labor. Since
Court, it is not surprising that the EEOC does not dispute
neither house passed a resolution of disapproval, the
that the legislative veto provision contained in the Reor-
entire Plan, including its transfer of enforcement author-
ganization Act is unconstitutional.
ity over the ADEA, became effective. See generally
Instead, the EEOC argues that notwithstanding the
EEOC V. Allstate Insurance Co., 104 S.Ct. 3499 (1984)
unconstitutionality of the legislative veto device, it retains
6062
6063
enforcement authority under the Plan, because (a) the
To begin with we note that to hold the veto provision to
veto provision is severable from the rest of the Act; (b)
be severable would confer upon the statute "a positive
even if it is not severable, congress has ratified the Plan
operation beyond the legislative intent * Spraigue
by its subsequent appropriation of funds for ADEA
V. Thompson, 118 U.S. 90, 95 (1886), because the Presi-
enforcement to the EEOC and by a reference to the Plan
dent alone then would have been permitted to reorganize
in § 905 of the Civil Service Reform Act of 1978, Pub. L.
the executive branch without any congressional control
No. 95-454, 92 Stat. 1111, 1224, codified at 5 U.S.C.
over the process, short of formal legislation, and this
§ 1101 (note); and (c) even if the provision is not severa-
would have been contrary to congress's intent as ex-
ble and has not been ratified, our ruling should not be
pressed in the Act, in the debates on the Act, and in the
applied retroactively to invalidate a government reorgani-
committee reports that preceded its enactment.
zation that was implemented nearly five years ago.
The Act was a compromise between two bills. One,
We disagree with the EEOC on its first two arguments,
H.R. 3407, sponsored by the administration, allowed
severability and ratification, but will stay our judgment
either house to veto a reorganization plan with a resolu-
for a reasonable time in order to give congress an oppor-
tion of disapproval introduced and processed through
tunity to cure the legislative defect.
that house's normal parliamentary procedures. The other,
H.R. 3131, drafted by Rep. Brooks, chairman of the
A. SEVERABILITY
House Committee on Government Operations, contained
Whether or not we should sever an unconstitutional
no legislative veto clause, but instead proposed to follow
provision from the remainder of the statute in which it
the usual legislative process of requiring approval for
appears is primarily an issue of legislative intent. "Unless
each reorganization plan by both houses and then pre-
it is evident that the legislature would not have enacted
sentment to the President for signature. H.R. Rep. No.
those provisions which are within its power, indepen-
105, 95th Cong., 1st Sess. 3-4, 9, reprinted in 1977 U.S.
dently of that which is not, the invalid part may be
Code Cong. & Ad. News 43, 49 (House Report); see also
dropped if what is left is fully operative as a law."
id. at 36, reprinted in 1977 U.S. Code Cong. & Ad. News
Buckley V. Valeo, 424 U.S. 1, 108-09 (1976) (quoting
63 (additional views of Rep. Brooks).
Champlin Refining Co. V. Corporation Commission, 286
The compromise was H.R. 5045. Under it, formal
U.S. 210, 234 (1932)); accord Regan V. Time, Inc., 104
legislative procedures for reorganization plans were set
S.Ct. 3262, 3269 (1984). Thus, we must decide whether
aside in favor of a special, expedited procedure for
congress would have delegated to the President the broad
processing disapproval resolutions. Those resolutions had
reorganizing authority granted him by the Act without
to be introduced in both houses immediately after sub-
reserving for itself the one-house veto power contained in
mission of a proposed reorganization plan, and then
5 U.S.C. § 906(a). For guidance we look to the statute
referred to the Committee on Governmental Affairs of
and its relevant legislative history.
the Senate and the Committee on Government Operations
of the House. 5 U.S.C. § 910. After 45 days, the resolu-
6064
6065
tions automatically went onto the appropriate calendars
enacted by Congress and Congress is enpowered [sic]
of the house and senate even if they were not reported out
to override any such Presidential veto by a two-thirds
by either committee. § 910(b). At this point, any member
majority of each House. The proposed executive
of congress could move for consideration of the disap-
reorganization bill would stand the Constitution on
proval resolution, and a majority "yes" vote in either
its head by putting the lawmaking power in the
house would veto the plan. § 912. This expedited mecha-
President and the veto power in Congress. I know of
nism for processing a disapproval resolution was designed
no way constitutionally to justify such a process.
to strengthen the role of congress in the reorganization
House Report at 13-14, reprinted in 1977 U.S. Code
process and to allay doubts that the Act would delegate
Cong. & Ad. News 53 (emphasis added). Professor
too much legislative authority to the President. House
Laurence Tribe of Harvard Law School similarly thought
Report at 3, 17, reprinted in 1977 U.S. Code Cong. & Ad.
the legislative veto procedure was unconstitutional. Id. at
News 43, 56-57.
15, reprinted in 1977 U.S. Code Cong. & Ad. News
Many still questioned whether H.R. 5045 went far
54-55.
enough. They contended that the entire one-house veto
Even more telling were the pointed additional remarks
mechanism was of questionable constitutionality and that
of Rep. Drinan, who, in objecting to the one-house veto
even though the compromise bill permitted active con-
provision on constitutional grounds, emphasized that, if
gressional intervention in the reorganization process, it
the veto provision was found to be unconstitutional, the
still violated the requirements of article I of the constitu-
whole act would necessarily be found unconstitutional:
tion. House Report at 9-17, reprinted in 1977 U.S. Code
Cong. & Ad. News 49-57; see also id. at 36, reprinted in
Why is it not possible or practical or wise to under-
1977 U.S. Code Cong. & Ad. News 63 (additional views
take reorganization through the normal legislative
of Rep. Brooks). Professor Philip Kurland of the Univer-
process? Why is it necessary to take all these consti-
sity of Chicago Law School testified before the house
tutional short-cuts when the regular procedures are
subcommittee:
in place and available? And why would the adminis-
tration want to risk that the courts might hold the act
The question that I have been asked to address is
unconstitutional and thus upset administrative action
whether Congress can authorize the President to
taken pursuant to reorganization plans? It must be
write legislation which shall have the effect of law
remembered that H.R. 5045 intentionally does not
unless a majority of either House of Congress votes
contain a severability clause. The one House veto
against accepting it as law.
provision is deemed to be an integral and necessary
The plain and simple answer is that the Constitu-
part of the legislative scheme for reorganization.
tion does not provide for such a lawmaking proce-
That is a proposition to which all agree. Yet that
dure. It specifies a different process for the writing
unanimous concurrence jeopardizes the plans devel-
of laws. It is for Congress, the legislative branch, to
oped under the statute, and all agency authority
write the laws. A President is authorized to veto laws
exercised pursuant to them.
6066
6067
Id. at 42, reprinted in 1977 U.S. Code Cong. & Ad. News
was viewed as "the key provision" of the bill, House
69 (emphasis added); see also Rep. Drinan's comment at
Report at 17, reprinted in 1977 U.S. Code Cong. & Ad.
123 Cong. Rec. 9352 (1977) ("In the absence of a severa-
News 57, and "an integral and necessary part of the
bility clause [congress recognizes] that if the one House
legislative scheme for reorganization". Id. at 42, re-
veto clause fails, the whole act fails").
printed in 1977 U.S. Code Cong. & Ad. News 69 (addi-
In spite of these constitutional warnings, the House
tional views of Rep. Drinan).
Committee on Government Operations recommended the
It follows that, without such a provision, congress
bill because in its judgment "the risk [was] worth taking."
would have been unwilling to delegate to the President
House Report at 3, reprinted in 1977 U.S. Code and Ad.
such extensive authority to reorganize the executive
News 42-43. Moreover, in the conclusion of its report to
branch. We therefore conclude that the unconstitutional
the house, the committee stated:
veto provision is not severable and that the entire Reor-
The question remains unresolved, but it is the posi-
ganization Act is unconstitutional.
tion of the committee that the risk of an unfavorable
We are aware that in so holding we depart from the
ruling by the courts, while still remaining, may have
fifth circuit, which, in EEOC V. Hernando Bank, Inc.,
been lessened by the adoption of the new voting
724 F.2d 1188, 1190-92 (5th Cir. 1984), held this legislative
procedure and the added limitations on the use of the
veto provision to be severable. We disagree with their
view for three reasons. First, the fifth circuit concluded
reorganization authority.
that, with the exception of Rep. Drinan's comments,
Id. at 7, reprinted in 1977 U.S. Code Cong. & Ad. News
there was nothing in the language of the Act or its
57.
legislative history to indicate that congress would not
Rather than delete the veto provision or add a severa-
have enacted this statute in the absence of the unconstitu-
bility clause expressing its desire that the Act remain
tional provision. Id. at 1191. We think that, in light of the
effective should the court invalidate the veto provision,
rest of the legislative history discussed above, and partic-
congress followed the route recommended by the house
ularly, the house report, this conclusion is clearly incor-
committee. It did so in a well-intentioned effort to com-
rect. Moreover, as indicated above, the consequences of
bine efficiency with ultimate congressional control. The
excising the veto provision, the comments on the floor of
veto provision insured substantial congressional oversight
congress, and the materials contained in the committee
of the reorganization process while the Act's other provi-
reports all demonstrate that the veto provision was a "key
sions granted the President wide flexibility in designing
provision" and an "integral and necessary" part of the
the reorganizations by not requiring each plan to obtain
Act. We conclude that, without it, the Act would not have
full and formal congressional approval. See 123 Cong.
been enacted.
Rec. 9344 (1977) (remarks of Rep. Brooks); 123 Cong.
Second, the fifth circuit noted that congress did not
Rec. 6145 (1977) (remarks of Sen. Ribicoff). Because it
consider the issue of severability. But whether or not it did
served both of these objectives so well, the one-house veto
so is beside the point, for the more appropriate inquiry is
6068
6069
whether the veto provision is such an integral part of the
Although congress may ratify otherwise unauthorized
law as to compel the conclusion that congress would not
actions, Isbrandtsen-Moller Co. v. United States, 300
have passed the Act without that unlawful provision. See
U.S. 139, 147-48 (1937); Swayne & Hoyt v. United States
Buckley v. Valeo, 424 U.S. at 108-09.
300 U.S. 297, 301-02 (1937), to do so its ratifying legisla
Finally, in further support of its conclusion of severa-
tion must recognize that the actions involved were un.
bility, the fifth circuit referred to the limitations imposed
authorized when taken and must also expressly ratify
by the Act on the executive branch, the need for flexibil-
those actions in clear and unequivocal language. Id.; see
ity in the reorganization process, the cost-effectiveness of
also Silas Mason V. Tax Commission, 302 U.S. 186, 208
a one-house veto provision, and the ultimate authority
(1937); EEOC V. Martin Industries, Inc., 581 F. Supp.
retained by congress over the "substantive operation of
1029, 1034 (N.D. Ala. 1984), appeal filed, 53 U.S.L.W.
the federal government". EEOC v. Hernando Bank, Inc.,
3033 (U.S. May 18, 1984) (No. 83-1893). Mere "acquies-
724 F.2d at 1192. While these factors may bear on the
cence or nonaction" is not enough for ratification, "be-
wisdom of the Act and even on the consitutionality of its
cause explicit action, especially in areas of doubtful
legislative veto provision, they do not help much in
constitutionality, requires careful and purposeful consid-
determining whether congress was willing to turn the
eration by those responsible for enacting and implement-
reorganization process over to the President unrestricted
ing our laws." Greene V. McElroy, 360 U.S. 474, 507
and unsupervised. It seems clear that congress did not
(1959). Chadha's strict interpretation of the principles of
wish to divorce itself from the reorganization process.
bicameralism, presentment, and separation of powers
Indeed, even the fifth circuit acknowledges that one of
reinforces the need for strong evidence of ratification.
congress's objectives was to strengthen its own role in
References to the ADEA in relation to the EEOC that
reorganizing the executive branch, id. at 1191-92, and this
are buried in lengthy and comprehensive appropriations
fact militates against severability, because it was the veto
acts, e.g., Pub. L. No. 98-166, 97 Stat. 1071, 1088 (1983);
provision that was seen as essential to congress's control
Pub. L. No. 97-377, 96 Stat. 1830, 1874 (1982); Pub. L.
over the process.
No. 97-92, 95 Stat. 1183, 1192 (1981), do not suffice
under these principles to ratify a specific transfer of
B. RATIFICATION
enforcement authority from the Secretary of Labor to the
The EEOC next argues that even if the entire Act is
EEOC. Appropriation acts "have the limited and specific
unconstitutional, the transfer of enforcement authority
purpose of providing funds for authorized programs",
effected by the Plan has since been ratified by congres-
Tennessee Valley Authority V. Hill, 437 U.S. 153, 190
sional enactments that do satisfy the constitutional re-
(1978). Legislators are not required to check the back-
quirements of bicameralism and presentment, specifically
ground of each authorization before voting on an appro-
a number of appropriations acts and § 905 of the Civil
priations measure; they are instead entitled to assume that
Service Reform Act of 1978.
the underlying substantive programs are valid. Id. Since
the substantive aspects of appropriations bills are subject
6070
6071
to much less scrutiny than the substantive programs
C. RETROACTIVITY
themselves, see Pacific Legal Foundation V. Goyan, 664
The EEOC's final argument is that even if the Act is
F.2d 1221, 1226 (4th Cir. 1981); see also Andrus V. Sierra
invalid in its entirety and was not thereafter ratified by
Club, 442 U.S. 347, 355-65 (1979), an appropriations bill
congress, we should not apply our ruling of unconstitu-
is a particularly unsuitable vehicle for an implied ratifica-
tionality retroactively. The EEOC argues that our decision
tion of unauthorized actions funded therein. Cf. Fleming
should be given only prospective effect in order to "avoid
v. Mohawk Wrecking and Lumber Co., 331 U.S. 111, 116
the major disruption which can result from invalidating
(1947). This is especially true where, as here, the un-
past government actions and in order to avoid undue,
authorized action is an unconstitutional one, rather than
inequitable burdens on individuals". Brief for Appellee at
merely a technically improper one. See EEOC v. Martin
37. We are told that there are currently pending 111 cases
Industries, Inc., 581 F. Supp. at 1035-36.
brought by the EEOC to enforce the ADEA as well as 69
A reference to the Plan in § 905 of the Civil Service
cases under the Equal Pay Act, whose enforcement re-
Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111,
sponsibility was also transferred from the Labor Depart-
1224, codified at 5 U.S.C. § 1101 (note), is equally
ment to the EEOC under the Plan. Id. at 43. The EEOC
insufficient to ratify the President's transfer of ADEA
argues that dismissal of those suits on the ground that the
enforcement authority to the EEOC. That act was 117
Plan was invalid could cause severe prejudice to the many
pages long and was designed to effect a comprehensive
innocent victims of discrimination who have relied upon
reform of the federal civil service system. On page 114,
the EEOC's litigation efforts. The EEOC further con-
under "miscellaneous", is a provision that states "[a]ny
tends that because the President's authority to pro-
provision in either Reorganization Plan Numbered 1 or 2
mulgate plans under the Act has now expired, and
inconsistent with any provision in this Act is hereby
because the Plan has already been implemented, the
superseded." 92 Stat. 1224. If anything, this reference to
transfer of enforcement authority is already an accom
the Plan tends to invalidate, rather than ratify it. There is
plished fact and the EEOC should be permitted to con
no reference here to the specific transfer of enforcement
tinue enforcing the ADEA notwithstanding the
authority at issue, nor is this the type of "deliberate"
unconstitutional genesis of its authority.
action by congress that would operate to ratify the
To the extent that the EEOC asks us to determine the
otherwise unauthorized transfer. Cf. Silas Mason v. Tax
Commission, 302 U.S. at 208.
impact of our present decision on cases that are not now
and may never be, before us, we think the request is, al
For the foregoing reasons, we hold that the Act is
unconstitutional in its entirety and that the Plan promul-
best, premature. We express no opinion as to the impac
of this decision on any other ADEA claim, administrativ
gated thereunder is unconstitutional as well. As a result,
the EEOC lacks authority to enforce the ADEA.
or judicial.
To the extent that the EEOC asks us to ignore in thi
case, the unconstitutional basis for its authority to en
6073
6072
force the ADEA against CBS, we reject the request. We
recognize, however, that immediate, automatic dismissal
of the complaint would be an unnecessarily drastic rem-
edy. We think it more appropriate to stay the judgment on
this appeal until December 31, 1984, to afford congress
an opportunity to take appropriate measures either to
validate the EEOC's authority over ADEA enforcement,
or to otherwise clarify its requirements for enforcing that
statute. See Northern Pipeline Constr. Co. v. Marathon
Pipe Line Co., 458 U.S. 50, 87-89 (1982) We do this so as
not to impair the processing and prosecution of ADEA
claims unnecessarily, and to better protect the rights of
individuals who have such claims. We are encouraged by
the fact that the house of representatives has already
passed a bill designed to remedy the unconstitutional
defects of plans promulgated under the Act, H.R. 1314,
98th Cong., 2d Sess., 130 Cong. Rec. H2519-21 (daily ed.
April 10, 1984), and we hope that congress and the
President will expeditiously enact that or similar legisla-
tion, following the requirements of article I of the consti-
tution, so as to avoid unnecessary disruption in the
prosecution of pending and future age discrimination
claims.
CONCLUSION
The order of the District Court is reversed and the
action is remanded to the district court with a direction to
dismiss the complaint. The judgment to be entered on this
appeal shall be stayed until December 31, 1984. If prior to
that date congress shall pass legislation affecting the
authority of the plaintiff to maintain this action, the
district court shall then conduct such further proceedings
as may be appropriate.
6074
700-8-31-84
USCA-40211
RECORD PRESS, INC., 157 Chambers St., N.Y. 10007 (212) 619-4949
36 ADMINISTRATIVE LAW REVIEW 239 (Summer 1984)
239
CONGRESSIONAL CONTROL OF
EXECUTIVE ACTIONS IN THE
AFTERMATH OF THE
CHADHA DECISION
Frederick M. Kaiser*
ABSTRACT
B
y ruling that the legislative veto was unconstitutional, in INS v.
Chadha and subsequent summary affirmances, the Supreme Court
has raised anew a basic problem for the Congress: i.e., how to control
specific executive actions based upon necessarily broad, sometimes
vague, statutory delegations of authority. This article examines con-
gressional attempts to nullify or neutralize such actions, in the immedi-
ate aftermath of the Chadha decision as well as in the recent past, and
surveys the available statutory and nonstatutory powers. Not only are
the techniques varied, ranging from direct legislative negations and
changes in agency jurisdiction to oversight hearings, consultations, and
informal legislative vetoes; but they also differ in their impact on
executive discretion and in their accessibility and political appeal to
Members of Congress. A concluding section of the article highlights
other statutory or congressional rule changes that have been or might
be advanced as further checks on executive actions.
I. INTRODUCTION
In the wake of the Supreme Court's sweeping invalidation of the
legislative veto, particularly in Immigration and Naturalization Service U.
Chadha,¹ Congress has had to consider alternative powers to control
*Specialist in American National Government, Congressional Research Service, the
Library of Congress, Washington, D.C 20540. This article is a revision of a report,
prepared for use by Members of Congress, which benefited from suggestions and
comments made by Roger Davidson, Louis Fisher, and Morton Rosenberg. Nonetheless,
the viewpoints expressed herein are solely those of the author.
¹Immigration and Naturalization Serv. U. Chadha, 103 S. Ct. 2767 (1983). For an examina-
tion of the decision and its possible impacts, see The U.S. Supreme Court Decision Concerning
240 ADMINISTRATIVE LAW REVIEW
executive actions, especially those flowing from broad delegations of
authority to officials in the Executive Branch and independent agen-
cies.
The immediate congressional responses have been varied and, on
occasion, controversial. Reacting expressly to the loss of a legislative
veto over Consumer Product Safety Commission (CPSC) regulations,
the House approved a bill (H.R. 2668) that would reduce the CPSC
reauthorization period to three years, from the previously recom-
mended five years, and that would apply a joint resolution (of approval
or disapproval) to the agency's future rulemaking.2 The Senate, in its
first action (following the Chadha decision) over a matter that had been
previously subject to a congressional veto, removed the President's
former discretionary authority, over military pay raises in this case.⁵ To
complicate any straightforward projections about the impact of the
Supreme Court's ruling on other legislative vetoes, twelve new commit-
tee vetoes have been included in appropriations acts passed since the
Court's rulings;4 and the House Interior Committee, sustained at least
temporarily in Federal District Court, has continued to press its own
committee veto over Interior Department coal leasing projects.⁵
the Legislative Veto: Hearings before the House Comm. on Foreign Affairs, 98th Cong., 1st Sess.
(1983); R. B. Smith, Aftershocks of the Fall of the Legislative Veto, 69 A.B.A. J. 1258-62
(1983); and Supreme Court Review and Constitutional Law Symposium, 52 U.S. L.W. 2228,
2231-2233 (10/23/83); Gilmour and Craig, After the Congressional Veto: Assessing the
Alternatives, 3J. POL. ANALYSIS & MGMT. 373-92 (1984); and The Legislative Veto after INS
U. Chadha, Congressional Research Service Review (Fall 1983).
2H.R. 2668, 98th Cong., 1st Sess. 129 CONG. REC. H4771-84 (daily ed. June 29, 1983).
'The-Senate Committee on Armed Services action on S. 675 is described in 129 CONG.
REC. S9831-32 (daily ed. July 13, 1983). Despite Senate approval, the provision was not
included in the final version of the Department of Defense Authorization Act, 1984, Pub.
L. No. 98-94, 97 Stat. 614.
"Twelve statutory provisions for Appropriations Committee vetoes (along with a
committee-activated moratorium), enacted after the Chadha ruling, are: Department of
Housing and Urban Development-Independent Agencies Appropriations Act, 1984,
Pub. L. No. 98-45, 97 Stat. 219, 226, 228, 229, 236, 239, Supplemental Appropriations
Act, 1983, Pub. L. No. 98-63, 97 Stat. 301, 312, 319, 328, and Department of Trans-
portation and Related Agencies Appropriations Act, 1983, Pub. L. No. 98-78, 97 Stat.
453, 462. They affect various spending authority of the Environmental Protection
Agency, the National Aeronautics and Space Administration, the Federal Home Loan
Bank Board, the Army Corps of Engineers, and the Departments of Housing and Urban
Development, Interior, and Transportation.
⁵The House Interior and Insular Affairs Committee, on Aug. 3, 1983, voted 27-14 to
halt the planned sale of coal leases on certain Federal lands in North Dakota and
Montana. Secretary of the Interior Watt considered the Committee's action, in light of
the Chadha decision, as unconstitutional and proceeded with arrangements for the sale of
the leases. A coalition of environmental groups has challenged the Secretary's decision in
Federal District Court, which subsequently issued a preliminary injunction against the
Department. National Wildlife Federation V. Watt, No. 83-2648, D.D.C.; Wash. Post,
Sept. 28, 1983, at A9; 41 CONG. Q. WEEKLY 1640 (Aug. 6, 1983) and 1948 (Sept. 17,
1983).
AFTERMATH OF THE CHADHA DECISION 241
These congressional actions depict only a few of the variety of
available statutory and nonstatutory mechanisms that directly over-
turn, terminate, prohibit, effectively nullify or discourage specific ex-
ecutive actions. These devices range from explicit statutory overrides
of an offending regulation and the removal of an agency's jurisdiction
to indirect influences such as critical oversight hearings and directives
in committee reports. Each has political assets and liabilities that dis-
tinguish one from another, as well as from the legislative veto; each
is activated in a different strategic location within Congress. Conse-
quently, the techniques differ in their accessibility and political value to
Members of Congress, as well as in their effect on executive behavior.
These legislative controls, moreover, vary in terms of their specific-
ity, scope, directness, and permanency of impact. Limitations on
appropriations, for example, are the province of the appropriations
committees and subcommittees or, under specified circumstances, of a
coalition of Members on the floor of the Chamber. Those very specific
restrictions are effective for only the duration or remainder of a fiscal
year. By contrast, the removal of an agency's jurisdiction, usually
initiated by the authorizing committee, affects a wide range of poten-
tial activity permanently unless subsequently modified.
This article surveys and illustrates the major techniques that have
been adopted and discusses other options that Congress might pursue
in responding to the continuing dilemma that the legislative veto was
designed to meet: i.e., Congressional retention of ultimate control over
executive actions based upon statutory delegations of authority. The
challenge is especially perplexing, since no solution is likely or even
advisable, in light of the different vantage points of Members of
Congress. Because of the vastly different characteristics and effects of
the devices, Congress will probably proceed on a case-by-case basis in
replacing defunct legislative vetoes, as it has most recently, and in
erecting new controls to nullify or neutralize specific executive actions.
II. UNCONSTITUTIONALITY OF THE
LEGISLATIVE VETO
The majority opinion in INS v. Chadha, written by Chief Justice
Burger, held that the one-house congressional veto violated the
Bicameralism and Presentment Clauses of the Constitution, specifi-
cally, sections 1 and 7 of Article I.⁶ In concurring, Associate Justice
Powell predicted that the "Court's decision, based on the Presentment
Clauses
apparently will invalidate every use of the legislative veto."⁷
*103 S. Ct. at 2780-88.
Id. at 2788. See also White's dissenting opinion at 2792.
242 ADMINISTRATIVE LAW REVIEW
That expectation was partially corroborated two weeks later when, in
summary affirmances of two judgments of District of Columbia Court
of Appeals, the Supreme Court not only confirmed its earlier decision
but also extended the ruling to the two-house veto (i.e., by a concurrent
resolution of disapproval). In the latter case, the bicameralism clause
issue was moot, leaving violation of the presentment clause as the
determining argument against the congressional veto. The sweeping
potential of the initial Chadha ruling caused one commentator to
observe that it "stands out as the most significant of the term ended July
6, and probably of the last 10 years."9
The Court's fundamental argument in Chadha was that the legisla-
tive veto was "essentially legislative in purpose and effect" and that all
such legislative actions had to be presented to the President, as are all
public and private bills and joint resolutions (with the express excep-
tion of amendments to the Constitution, which require a two-thirds
vote of both Houses and need not be signed by the President). 10 The
majority opinion, subscribed to by six members of the Court, adopted a
"strict constructionist" view of the Constitution in interpreting con-
gressional actions that excluded the President:
Clearly, when the Draftsmen sought to confer special powers on one House,
independent of the other House, or of the President, they did so in explicit,
unambiguous terms. These carefully defined exceptions from presentment
and bicameralism
are narrow, explicit, and separately justified; none of
them authorize the action challenged here."
By implication, the Court's decision would declare unconstitutional
all types of statutory congressional vetoes; those relying exclusively on
Congress through concurrent resolutions of approval or disapproval,
simple or single-house resolutions of approval or disapproval, so-
called one and one-half house vetoes (whereby a concurrent dis-
approval resolution from one chamber becomes effective unless it is
rejected by the other house), committee or subcommittee votes, joint
committee votes, orders of a committee chair, and approval by a
congressional agency (for example, the Office of Technology
assessment). 12 The ruling of unconstitutionality, however, has been
The one-house veto was again invalidated in Process Gas Consumers Group U. Consumer
Energy Council of America, No. 81-2008, and the two-house veto in United States Senate v.
Federal Trade Commission, No. 82-935, decided July 6, 1983.
Young, Supreme Court Report: The Court Vetoes the Legislative Veto, 69 A.B.A. J. 1288
(1983).
103 S. Ct. at 2784.
"Id. at 2786.
"Cooper & Hurley, The Legislative Veto: A Policy Analysis, 10 CONG. & THE PRESIDENCY 3,
6-9 (1983); B. CRAIG, THE LEGISLATIVE VETO: CONGRESSIONAL CONTROL OF REGULATION
AFTERMATH OF THE CHADHA DECISION 243
affirmed only for one- or two-house vetoes, although the other devices
appear to be based on even weaker constitutional grounds. Arguably, a
congressional action (with a legislative purpose and effect) that ex-
cludes both of the full chambers of Congress, as well as the President,
would be even more constitutionally suspect than one that relies upon
one or both houses of Congress but circumvents the President.
III. STATUTORY MECHANISMS
Congress has adopted a number of statutory mechanisms, along with
or instead of the legislative veto, to control current, planned, or pro-
posed executive actions. These formal checks include committee ve-
toes, overriding or preempting executive actions, modifying agency
jurisdiction, approving or disapproving specific actions by joint resolu-
tions, and applying limitations on appropriations and authorizations.
Other statutory provisions require prior notice and consultation
(either with Congress or with agency officials), which can indirectly
affect executive actions.
Usually employed on an ad hoc and piecemeal basis (as were legisla-
tive vetoes), these approaches exhibit internal variations and nuances
that affect their political attraction. And, on occasion, several different
techniques have been applied to the same (usually extremely con-
troversial) policy matter, as with the MX missile, covert operations
affecting Nicaragua, Federal Trade Commission regulatory activity, or
Interior Department leasing policies.
A. Committee Vetoes
Despite the questionable constitutionality of committee vetoes, Con-
gress continues to enact them. Their appearance in numerous appro-
priations acts passed after Chadha, maintains a well-established heri-
tage that dates to the 1950s¹³ and is testimony to political incentives
outweighing possible constitutional risks. As with the invalidated leg-
islative vetoes, these prohibitions prevent executive actions such as
specified expenditures, reprogrammings, or transfers of public
funds-unless and until congressional approval is granted or dis-
approval withheld. In the twelve committee veto provisions added
since the Supreme Court decision, all specifically require prior ap-
(1983); and Gilmour, The Congressional Veto: Shifting the Balance of Administrative Control, 2
J. POL. ANALYSIS & MGMT. 13-25 (1982).
"Fisher, Congress and the President in the Administrative Process: The Uneasy Alliance, in
THE ILLUSION OF PRESIDENTIAL GOVERNMENT (H. Heclo and L. Salamon, eds. (1981) 27.
244 ADMINISTRATIVE LAW REVIEW
proval from both the House and Senate Appropriations Committees,
as had been customary prior to this decision.
Although it is uncertain whether the executive will comply with these
requirements, some evidence suggests it will. One indication is the
absence of administration opposition to the recent committee vetoes in
appropriations acts, in sharp contrast to other previous legislative veto
provisions. Moreover, these particular committee checks, under the
auspices of the Appropriations Committee, include an obvious dis-
incentive against agency noncompliance: the agency's discretionary
power over expenditures could be easily revoked by the committees,
given their leverage and the multiple and frequent opportunities avail-
able in annual, supplemental, and continuing appropriations.¹⁵ In fact,
appropriations committee approval has become so well entrenched as
the normal course in certain matters that it also exists through informal
legislative vetoes and is even written into some agency operations
manuals.¹⁶
B. Direct Override or Preemption
The most fundamental and compelling way for Congress to override
executive action is to enact a statute explicitly revoking the offending
matter or preempting the area for congressional determination. The
majority opinion in Chadha noted, for example, that "[w]ithout the
provision for one-House veto, Congress would presumably retain the
power
to enact a law
mandating a particular alien's deportation.
17 That qualified aside casually minimizes the important difficulties
inherent in the passage of legislation (especially when compounded by
the number of potentially deportable aliens); but, nonetheless, the
technique has been applied to specific executive actions.
Congress has, for instance, approved public laws that directly over-
turned regulations promulgated by Executive Branch and indepen-
dent agencies or that preempted an area from further regulation. In
the latter case, Congress has stipulated the express language to be used
in labelling saccharin products,¹⁸ instead of leaving it to the determina-
tion of the Food and Drug Administration (FDA), which might have
"Supra note 4.
¹⁵A. Schick, Politics through Law: Congressional Limitations on Executive Discretion, in BOTH
ENDS OF PENNSYLVANIA AVENUE: THE PRESIDENCY, THE EXECUTIVE BRANCH, AND
CONGRESS IN THE 1980s (A. King, ed. 1983) 170-74; See generally R. Fenno, THE POWER
OF THE PURSE: APPROPRIATIONS POLITICS IN CONGRESS (1966).
¹⁶Infra note 127.
"103 S. Ct. at 2776 n.8.
1821 U.S.C. § 343 (1976 & Supp. V. 1981).
AFTERMATH OF THE CHADHA DECISION 245
required more cautionary language. This legislative prerogative has
been reasserted most recently in 1983, extending congressional lan-
guage for another two years.¹⁹
In the 98th Congress, the Senate Labor and Human Resources
Committee drafted specific wording for cigarette packages and adver-
tisements that, if approved by statute, would replace the present statu-
tory language with more explicit and harsher warnings.20 The commit-
tee had requested that the tobacco industry and Department of Health
and Human Services draft a stronger warning but rejected their pro-
posal in favor of its own more stringent substitute.21
Perhaps the classic instance of congressional preemption occurred
with passage of the Tarriff Act of 1930,22 commonly referred to as the
Smoot-Hawley Tariff. Proceeding for 173 pages in the Statutes at
Large and listing tariff levels item by item, the Act minimized executive
discretion not only in its administration but also in policymaking. The
protective tariff, as a general principle, and this example in particular
(coming at the beginning of the Great Depression), was roundly criti-
cized by the economists of the day and President Hoover considered
vetoing the legislation.23 It nonetheless prevailed, in large part because
of the one-sided pressure exerted on Congress by the benefited Amer-
ican industries. E.E. Schattschneider's definitive account of the process
also identified former Customs and Tariff Commission officials who
lobbied for the potential beneficiaries as well as Tariff Commission
personnel who temporarily served on the staff of the congressional
committees with jurisdiction. In the analysis, Schattschneider illus-
trated types of political alliances that have been called "cozy little
triangles," "iron triangles," or, non-metaphorically, "subgovern-
ments". The phrases refer to the mutual interests and consequent
reinforcements among the three protagonists that dominate a particu-
lar policy arena-viz., the organized interest group, the congressional
committee or subcommittee with jurisdiction, and the government
bureau, office, or other subunit responsible for developing or admi-
nistering the policy.
This system, which effectively excludes (or preempts) the President
and the full Congress from actually determining policy, relegates them
19An Act to amend the Saccharin Study and Labeling Act P.L. 98-22, 97 Stat. 173
(1983).
20S. REP. No. 177, 98th Cong., 1st Sess. 2 (1983).
211d. at 22.
22Ch. 497, 46 Stat. 590.
"E. E. Schattschneider, POLITICS, PRESSURES AND THE TARIFF vii (1935).
24Id. at 59-63 and 197-203.
246
ADMINISTRATIVE LAW REVIEW
to ratifying decisions made elsewhere. Some analysts have determined
that the legislative veto was symptomatic of such "iron triangles," a
finding that has been disputed in all but so-called "pork barrel" proj-
ects.²⁶ Whatever the verdict on the legislative veto's subsystem, it is
worth remembering that these "iron" or "cozy" triangles predated the
congressional veto and that other types of legislative action or policy-
making are not immune to them.
A public law may also be applied to negate a specific executive action,
as Congress did in 1976 to overturn a motorcycle helmet safety
standard,27 and in 1978 (extended in 1979) to prohibit the Internal
Revenue Service from issuing regulations or other forms of nationwide
guidance with respect to the taxation of fringe benefits.28 A present
example is H.R. 3621,29 a bill which would cancel the Federal Com-
munications Commission's access charge decision regarding, among
other things, long-distance telephone service.
In an earlier episode, Congress relied upon a public law to negate
part of a Presidential reorganization plan that it had failed to dis-
approve via a one-house veto only a short while before. In 1973,
President Nixon proposed the establishment of the Drug Enforcement
Administration (DEA) in the Department of Justice, in order to con-
solidate relevant enforcement programs that were scattered among a
number of agencies and departments. (At the time, Presidential reor-
ganization plans were subject to a one-house veto but Congress could
not amend them.) A second part of the reorganization plan involved a
controversial and politically risky side of the plan's quid pro quo: i.e., a
proposed shift of authority and personnel from the INS Border Patrol
in the Department of Justice to the Customs Service in the Treasury
Department, which had lost a prominent part of its own authority and
force to the new DEA. Congress did not disapprove the full Reorga-
nization Plan, but the House had accepted it only with the understand-
ing that the part augmenting the Customs Service would be repealed
by separate legislation. That was accomplished early in the next
Congress. The new legislation, which resulted in the still-birth of the
25W. P. Schaefer and J. Thurber, The Legislative Veto and Policy Subsystems, paper
presented at the Southern Political Science Association Annual Meeting (1980).
2⁶Cooper & Hurley, supra note 12, at 15.
"Federal-Aid Highway Act of 1976, Pub. L. No. 94-280 § 208, 90 Stat. 452, 454.
2⁸26 U.S.C. § 3401 (1976 & Supp. V. 1981).
29H.R. 3621, 98th Cong., 1st Sess. (1983). After hearings on it, the House Energy and
Commerce Subcommittee on Telecommunications forwarded to the full Committee a
clean bill, H.R. 4102, 98th Cong., 1st Sess. (1983).
Reorganization Plan No. 2 of 1973, 87 Stat. 1091.
³¹Act of March 16, 1974, Pub. L. No. 93-253, 88 Stat. 50.
AFTERMATH OF THE CHADHA DECISION 247
transfer to the Customs Service was described in a later congressional
report as a needed corrective to a "hastily-formed" proposal: the plan
had lacked "adequate preparation and in consequence, awkward
arrangements had to be made for concessions and compromises. "32
Direct statutory nullifications or preemptions have the advantages of
clarity, specificity, and relative permanency. They also have a solid
consensual foundation, because they are agreed to by both Houses of
Congress and the President, or, if vetoed, by extraordinary majorities
in both chambers. Yet despite these impressive assets, their liabilities
are costly. Passing legislation to accomplish even a comparatively nar-
row purpose makes extensive demands on legislative resources re-
quires review and approval of the entire Congress (by extraordinary
majorities in the case of a Presidential veto), and necessitates the
expenditure of scarce "political capital" in matters of conflict and
controversy, since they usually run counter to an agency's position.
C. Modifications of Agency Jurisdictions
In addition to directly overruling executive decisions and actions,
statutes may be used to modify an agency's jurisdiction in order to halt
or prevent an objectionable action. Several distinct ways to accomplish
this end are: limiting or abolishing a specified jurisdiction, deregulat-
ing and decontrolling, transferring jurisdiction from one agency or
from Federal to State authorities, imposing a moratorium on certain
actions, and providing for waivers of or exemptions from an agency's
authority. Many of these statutory changes, and especially deregula-
tion, affect a broad range of executive actions permanently; but some,
such as moratoriums on regulatory rulemaking or implementation,
may be extremely specific and short-term.
These alterations have been used frequently, especially in regulatory
matters during the recent past,⁸⁸ and may assume greater importance
in the wake of the legislative veto rulings. To varying degrees, they also
meet some of the objections from critics of the legislative veto who
contended that Congress had delegated authority too broadly to the
Executive and to independent commissions (thus necessitating such a
check). The jurisdictional modifications respond to those charges,
³²H. REP. No. 1630, 93d Cong. 2d Sess. 4 (1974). For further description and docu-
mentation, see Kaiser, Federal Law Enforcement: Structure and Reorganization, 5 CRIM. JUST.
REV. 105-7, 111-13 (1980).
ssSee Kaiser, Congressional Action To Overturn Agency Rules, 32 AD. L. REV. 673-87
(1980).
248 ADMINISTRATIVE LAW REVIEW
often on a patchwork basis albeit, by clarifying and refining agency
powers and jurisdiction.
Examples of these alternatives abound. A prominent one was the
1959 amendment to Section 315(a) of the Communications Act-the
"equal time" provision-that exempted four kinds of election news
programs from Federal Communications Commission regulation.
Other highly specific regulatory matters have been similarly affected.
In the late 1970s, Congress placed a moratorium on FDA regulation of
the shellfish industry,35 granted exemptions to Title IX regulations
regarding sex discrimination in educational programs receiving Fed-
eral funds, and transferred authority for specified water pollution
regulatory activities from the Environmental Protection Agency (EPA)
to the states with approved programs." In a different area, Congress
has periodically barred the FDA from banning saccharin in products,
most recently in 1983.3
Probably the most notable and controversial recent example of con-
gressional control through jurisdictional modification is the Federal
Trade Commission Improvements Act of 1980.3 In addition to ap-
plying a legislative veto provision to proposed regulations, it prohib-
ited the FTC from regulating trade groups that set product or industry
standards and limited its rulemaking with regard to television advertis
ing aimed at children, the latter by temporarily establishing a new
standard of "deceptiveness" in place of the former exclusive reliance
on "unfairness" to determine improper advertising.
These restrictions paralleled other assaults on the FTC-including
its temporary but highly symbolic demise, when Congress failed to
approve its continuing appropriations resolution-that were designed
to curtail the Commission's activities. The FTC, once considered a
"captive" of the industries it was supposed to regulate, had become an
assertive and independent regulator, in part, ironically, because of the
expanded authority and mandates acquired only a few years before
from a supportive Congress. By 1980, however, its perceived "alliance"
with pro-regulation consumer groups and the aggressive style of its
chairman encountered strenuous opposition from a significantly
changed Congress.40
"Act of Sept. 14, 1959, Pub. L. No. 86-274, 73 Stat. 557.
SSCoastal Zone Management Act Amendments of 1976, Pub. L. No. 94-370 § 16, 90
Stat. 1013, 1032-33.
"Education Amendments of 1976, Pub. L. No. 94-482, 90 Stat. 2081.
3733 U.S.C. § 1318, 1319, 1328, 1341, 1342, and 1344.
"An Act to Amend the Saccharin Study & Labeling Act, Pub. L. No. 98-22, 97 Stat.
173 (1983).
39Pub. L. No. 96-252, 94 Stat. 374 (1980).
40For an overview of the developments and changes leading to the new statutory
AFTERMATH OF THE CHADHA DECISION 249
Deregulation and decontrol (or even their opposites in certain cases)
have often been advanced as means of challenging and containing
executive action. In the controversial field of natural gas pricing, the
Reagan Administration's decontrol proposal has been countered by
several congressional bills aimed at "recontrol" through price freezes
and other techniques to curtail administratively sanctioned
reductions.⁴¹ Other examples of the same phenomenon-eliminating
or reducing administrative discretion-but which rely upon the more
common deregulation, are in enactments affecting the airlines, interci-
ty bus transportation, and the railroad industry.42
Although used extensively in regulatory matters, statutory modifica-
tions of agency jurisdictions and powers may be applied to a variety of
other fields to enhance legislative control. In 1976, the House Select
Committee on Intelligence recommended a time limit on all CIA
covert operations and a prohibition against foreign assassinations,
except in time of war43 (a prohibition, incidentally, which was incorpo-
rated in Executive Order 12333 but which can be revoked or changed
by the President without congressional concurrence). The Senate
Select Committee to Study Undercover Activities (the Abscam Com-
mittee), reporting in 1982, likewise, proposed legislation that would
establish threshold requirements for FBI undercover operations and
would specifically create an affirmative defense of entrapment.
Recent congressional initiatives in the Omnibus Defense Authoriza-
tions for FY 1984 demonstrate the utility of jurisdictional alterations
for other purposes, here to rescind authority or place a moratorium on
executive discretion.⁴⁵ In the aftermath of the Chadha decision, the
Senate's first action on a bill with a preexisting legislative veto occurred
in the Armed Services Committee. Reacting specifically to the loss of
"the tool of the legislative veto, the committee agreed
to remove the
President's ability to offer an alternative pay plan" for military person-
controls, see, inter alia, Boyer, Too Many Lawyers, Not Enough Practical People: The Policy-
Making Discretion of the Federal Trade Commission, 5 LAW & POL'Y. Q. 9-33 (1983); Gellhorn,
The Wages of Zealotry: The FTC Under Seige, 4 REG. 33-43 (1980); Calvert and Weingast,
Runaway Bureaucracy and Congressional Oversight: Why Reforms Fail, 1 POL'Y. STUD. REV.
557-64 (1983). Mahaney and Tschoegl, The Determinants of FTC Antitrust Activity, 35 AD.
L. REV. 1-32 (1983).
"Poling, The Natural Gas Dilemma: Decontrol or Recontrol, 30 FED. BAR NEWS J. 206-11
(1983).
"Airline Deregulation Act of 1978, Pub. L. No. 95-204, 92 Stat. 1705, Bus Regulatory
Reform Act of 1982, Pub. L. No. 97-261, 96 Stat. 1102, Staggers Rail Act of 1980, Pub. L.
No. 96-448, 94 Stat. 1895.
43H. REP. No. 833, 94th Cong., 2d Sess. 2-3 (1976).
"S. REP. No. 682, 97th Cong., 2d Sess. 27 (1982).
45S. 675, 98th Cong., 1st Sess. (1983).
250 ADMINISTRATIVE LAW REVIEW
nel, a power he now has but which had been subject to a one-house
veto.46
In the same bill, the Senate also advanced two separate moratoriums
on then-forthcoming administrative actions. One of these occurred
because of concerns about the planned use of polygraph examinations
(to prevent unauthorized disclosures of classified information) under
new Defense Department guidelines that were to take effect on August
15, 1983. Questioning the reliability and utility of such tests to prevent
leaks, the Senate approved instead an amendment that postponed the
effective date of the guidelines for eight months.47 Behind this delay
was an evident annoyance, among some legislators, that an earlier
"fundamental change" in DoD polygraph testing had been "made
quietly without any notice to the Congress."48 That was coupled with
the prospect that President Reagan's directive on safeguarding na-
tional security information, permitting punishment of certain federal
employees for simply refusing to take an examination, added signifi-
cant enforcement mechanisms that affected a far greater number of
personnel in Defense than in any other agency.49 These specific de-
velopments coupled with the stated concerns about polygraph testing
in general prompted "compromise language
to allow for hearings
looking into implementation of the guidelines presently being drafted,
and to insure that there will be no abuse of this security tool."50
A second moratorium, also initiated in the Senate version of S.675,
lengthened the grace period (from July 31 through September 30,
1983) for implementing regulations pertaining to students receiving
Federal educational assistance who had failed to file necessary forms
about their draft registration.⁵¹ Although the Department of Educa-
tion had extended the deadline previously, Senate sponsors of the
extra time argued that there was no guarantee the Department would
do so again, even though the additional two months appeared neces-
sary. Supported by statements from the American Council on Edu-
cation and other educational organizations, the amendment's
proponents argued that students were uncertain about compliance
requirements, due to conflicting Federal court rulings, and that the
intervening summer vacation period had made it difficult to comply.52
"Supra note 3 at S9831-32.
129 CONG. REC. S10144-48 (daily ed. July 15, 1983).
48Id. at S10146.
⁴Presidential Directive on Safeguarding National Security Information, March 11, 1983.
50129 CONG. REC. S10145 (daily ed. July 15, 1983).
³¹Provision included in Pub. L. No. 98-94, 97 Stat. 700 (1983). 129 CONG. REC.
S10543-52 (daily ed. July 21, 1983).
52Id. at S10544 and S10550.
AFTERMATH OF THE CHADHA DECISION 251
One Senate critic, however, took exception to imposing any further
delays by statute, insisting that "it is not the job of the U.S. Senate to
tinker with and fine tune administrative provisions issued by the De-
partment of Education."5
D. Joint Resolutions of Approval or Disapproval
Presumably meeting the Court's stated constitutional objections in
Chadha-violation of the Presentment and Bicameralism Clauses—
joint resolutions have already become a favored substitute for some
members of Congress to replace the true legislative veto. The House
included both types of joint resolutions in the CPSC bill, as a direct
response to the Chadha decision;54 and the House Government Opera-
tions Committee had reported, even before the Court's ruling, Pres-
idential reorganization authority that includes a joint resolution of
approval (under expedited procedures) for such plans.⁵ Anticipating
the likely popularity of joint resolutions, the House Rules Committee
has issued instructions regarding their format, designation of commit-
tees, and automatic discharges, expedited procedures, as well as floor
amendments. The Committee, however, expressed serious reserva-
tions about enacting laws that would curtail Congress' customary pow-
ers to consider (at its own pace) and amend legislation advanced by the
executive. Its rationale was premised on the Court's ruling:
since the terms of Chadha appear to require Congress to carry out review
of executive delegations and recommendations only by statutory affirmation
or nullification, there is little justification for continuing such limitations on
the scope and nature of congressional review.⁵⁶
A joint resolution of approval, in fact, is the functional equivalent of
a one-house veto. Under this joint resolution, an executive action could
not commence unless and until both Houses of Congress expressly
approved it (and the President signed the resolution, or his veto over-
ridden). Thus, failure to obtain an affirmative vote in either chamber
would annul the proposed action.
Despite their appeal, joint resolutions may be viewed by some mem-
bers of Congress with skepticism.57 This may hinge on the joint
531d. at S10546.
⁵⁴Supra note 2.
55H. REP. No. 98-128, Part 1, 98th Cong., 1st Sess. 2 (1983).
⁵⁶H. REP. No. 98-257, Part 3, 98th Cong., 1st Sess. 4, 3-7 (1983). Of course, such
restrictions-time limitations, automatic discharges, and, in effect, "closed rules" for
joint resolutions-intrude on the Rules Committee's authority over the subsequent floor
procedures and rules so severely that they may virtually preclude its participation.
⁵⁷For a discussion of the pros and cons of joint resolutions in this context, see 129 CONG.
REC. H4771-84, H4795-803, H4824-27 (daily ed. July 29, 1983).
252 ADMINISTRATIVE LAW REVIEW
approval resolution's similarities with the one-house veto and on its
impact on the rules of the House and Senate, if time restrictions and
expedited procedural requirements are attached. Others might object
to the joint resolution approach because it appears to offer only a
Hobson's choice between two undersirable alternatives. On the one
hand, the joint resolution of disapproval might well require an extraor-
dinary majority in both Houses of Congress, since the President would
presumably veto a congressional rejection of a planned action emanat-
ing from his own Administration. On the other hand, a joint resolution
of approval may be perceived by some as a device that too easily annuls
an executive action, because of this control's equivalency to a one-
house veto. Moreover, once an executive action is sanctioned by the
joint resolution of approval, it becomes a public law. This feature,
according to critics of its application to regulations, does violence to
Administrative Procedure Act (APA)58 requirements for agency rule-
making. It arguably would make such standards moot, since agencies
would no longer be promulgating rules but would become "advisory
bodies," issuing proposals for legislative action and eventually for
public laws. This characteristic would have an adverse impact, there-
fore, on subsequent court challenges to such statutory "rules," based
both on the merits of the regulation as well as on the APA procedural
requirements.
E. Limitations in Appropriations
Limitations in appropriations may prevent agencies from embark-
ing on or implementing particular actions. By expressly denying the
use of funds for a specific activity (e.g., enforcement, rulemaking,
issuing grants or leases, covert operations abroad) or for a specific
category of expenditure (e.g., economic assistance to a particular coun-
try, specific military construction or research), the provision effectively
nullifies or severely restricts an agency's operating authority in special-
ized areas. This increasing use of Congress' power of the purse, initi-
ated either by the Appropriations Committees or on the floor,⁵⁹ attests
to its appeal. Each is straightforward, unambiguous, direct, and vir-
tually self-enforcing.
Yet the frequent opportunity to curtail executive action through
regular, continuing, or supplemental appropriations is a two-edged
sword. An inherent constraint on their impact is that they are effective
585 U.S.C. § 551 et seq. (1976).
59See, e.g., Schick, supra note 15 at 170-74; Murray, House Funding Bill Riders Become
Potent Policy Force, 38 CONG. Q. WEEKLY 3251-55 (1980); 129 CONG. REC. H5-20 (daily
ed. Jan. 3, 1983).
AFTERMATH OF THE CHADHA DECISION 253
only for the duration of the appropriation-one fiscal year or less—
and thus require periodic reenactment. Moreover, the effort to use
appropriations bills to propose new or general legislation or amend-
ments to existing legislation conflicts with House and Senate rules.
(Those injunctions are mute, however, if there is a failure to call for a
point of order against such amendments.)
Beginning with the 98th Congress also, the House, in Rule XXI, has
erected a new procedure for floor amendments to appropriations bills
that is designed to limit the number of "riders." These riders and
attempts to attach them have proliferated in emotionally charged and
controversial areas, such as abortion funding and school busing for
desegregation purposes. They were also perceived by many as another
unwelcomed manifestation of single-issue politics that directly chal-
lenged the congressional leadership, the hegemony of the Appropria-
tions Committees in the process, and responsible policymaking.6 The
controversial nature of some appropriations limitations, particularly
those imposed by floor amendments, either incurred a Presidential
veto for the entire bill or jeopardized full funding for operations,
resulting even in the temporary, partial closing of some of agencies.⁶²
Such momentous impacts, it might be argued, were out of proportion
for this relatively modest procedure.
Their perceived shortcomings notwithstanding, limitations have be-
come standard qualifications in most appropriations. And in expansive
acts, such as the Department of Defense Appropriation Act of 1983,
the numerous constraints range from the miniscule (e.g., one wig only
Historically, appropriations limitations were used in 1855 by the "Anti-Nebraska"
Congressmen to forbid the President to use the army to enforce the acts of the pro-
slavery legislature in Kansas, in 1867 to restrict President Andrew Johnson's command
of the army, and in 1879 to attempt to disable the Federal Election Law supervising the
control of elections in the Southern States. SeeJ. A. Woodburn, THE AMERICAN REPUBLIC
AND ITS GOVERNMENT 307-11 (1903).
⁶⁰House Rule XXI and Senate Rule XVI govern the process. For an examination of
their use, circumvention, and impact, see especially Fisher, The Authorization-Appropriation
Process in Congress: Formal Rules and Informal Practices, 29 CATH. U.L. REV. 68 (1979).
⁶¹Supra note 59.
⁶²President Carter vetoed the FY 1981 appropriations bill for the State, Justice, and
Commerce Departments (H.R. 7584, 96th Cong. 2d Sess.), because it contained an
amendment preventing the Justice Department from initiating lawsuits that could lead
to court-mandated school busing for desegregation purposes. Congress did not attempt
to override his veto. President Carter, Appropriations Bill for the Departments of State, Justice,
and Commerce, the Judiciary, and Related Agencies: Message to the House of Representatives, 16
WEEKLY COMP. PRES. Doc. 2809 (Dec. 13, 1980).
The FTC suspended normal activity on May 1, 1980, when congressional disputes over
controversial appropriations amendments prevented agreement on even a temporary
funding bill before the previous temporary extension expired. 36 CONG. Q. ALMANAC
(for 1980) 233 (1981).
254 ADMINISTRATIVE LAW REVIEW
for individuals affected by alopecia that resulted from treatment of a
malignant disease) to the monumental (e.g., cuts in MX missile funding
and restrictions on CIA or military operations in Nicaragua).' More-
over, because of the Chadha ruling, which may prompt reconsideration
of the House's new curbs on floor amendments, appropriations limita-
tions may gain in importance as direct checks on executive action.
A prominent example of their use is the 1982 limitation on Defense
Department and Central Intelligence Agency (CIA) activities affecting
Nicaragua. This restraint, intended principally to curtail covert opera-
tions, was added initially as a House floor amendment to the Defense
Department appropriations for FY 1983, by an overwhelming vote of
411 to 0. The ban was later incorporated by conferees into the FY83
Continuing Appropriations Resolution and signed into law. 64 In the
debate, House Intelligence Committee Chairman Boland, the amend-
ment's sponsor, emphasized its preexisting consensus (vis-à-vis
another and more restrictive amendment before the House). The
language of the Boland amendment had already been included in the
classified annex to the conference managers' statement on the FY83
Intelligence Authorization Act and was agreeable not only to the
House and Senate Select Intelligence Committees but also to the Ex-
ecutive Branch.65
This particular battle (over Nicaragua) has since shifted to new
ground-the authorization process-because the consensus appro-
priations limitation, about which its sponsor had "some misgiving," had
not achieved the end that its supporters in Congress had intended.66
One reason for that failure was probably inherent in the provision's
wording: It disallowed U.S. involvement and assistance only "for the
purpose of overthrowing the Government of Nicaragua or provoking
a military exchange between Nicaragua and Honduras,"67 a loophole
that conceivably permitted support to the anti-Sandinistas for other
purposes.
This language contrasts with that adopted by an earlier Congress in a
similar situation; i.e., halting CIA covert activities in Angola in 1976,
the first time Congress officially and publicly ended a covert
operation.68 In both cases, large bipartisan majorities in each chamber
"Pub. L. No. 97-377 §§ 742, 792, 96 Stat. 1833, 1858, 1846, 1865 (1982).
"128 CONG. REC. H9159 (daily ed. Dec. 8, 1982). Provision incorporated at Dept. of
Defense Appropriations Act, 1983, Pub. L. No. 97-377 § 793, 96 Stat. 1833, 1865 (1982).
65128 CONG. REC. H9156 (daily ed. Dec. 8, 1982).
⁶⁶H. REP. No. 122, Part 1, 98th Cong., 1st Sess. 8 (1983).
67Department of the Defense Appropriations Act, 1983, Pub. L. No. 97-377 § 793, 96
Stat. 1833, 1865 (1982).
⁶⁸For a thorough discussion of congressional response to CIA covert operations in
AFTERMATH OF THE CHADHA DECISION 255
approved floor amendments to continuing or late Defense appropria-
tions bills; and the votes followed heated debate that relied upon highly
sensitive, classified information. Also in both cases, the restraints were
added for much the same reason. Their proponents questioned the
effectiveness and implications of the covert activities, which the Ad-
ministration had insisted were necessary supports to indigenous
groups; and those groups were combating a relatively new regime that,
in both instances, received assistance from Cuba and the Soviet Union.
But Angola, further removed from United States' proximate in-
terests, differed from Nicaragua in other respects. The former pre-
dicament occurred during a different political climate, following
shortly after a vivid reminder (i.e., the fall of Saigon) of the disastrous
consequences of U.S. intervention in Vietnam. Moreover, Congress
was then in the midst of special, unprecedented investigations of the
intelligence community that were critical of prior CIA covert oper-
ations; the Presidency was still in need of revitalization after "Water-
gate"; and the Ford Administration lacked party control of even one
chamber of Congress. The result was that the limitation affecting
covert operations in Angola was not only more stringent than in
Nicaragua but was, in fact, absolute: "none of which [funds], nor any
other funds appropriated in this Act may be used for any activities
involving Angola other than intelligence gathering.
"69
The MX missile, whose controversies extend from its projected
impact on strategic arms control negotiations to tactical questions
about its basing mode, has also been subject to appropriations limita-
tions. The lame-duck session of the 97th Congress, reacting adversely
to the Administration's proposed "dense pack" basing method, deleted
the entire $988 million requested for production of the first five
missiles and included two (now-defunct) congressional vetoes over
future basing mode proposals. The issue later moved into the author-
ization process, but future appropriations provide additional opportu-
nities for continual checking.
Other significant restraints on executive discretion have occurred
with regularity in appropriations acts, including continuing resolu-
tions. One of the most visible, and controversial, has been the periodic
Angola, see Crabb and Holt, INVITATION TO STRUGGLE: CONGRESS, THE PRESIDENT, AND
FOREIGN POLICY 148, 202 (1908); and Franck and Weisband, FOREIGN POLICY BY
CONGRESS 46-57 (1979).
69Department of Defense Appropriations Act, 1976, Pub. L. No. 94-212, 90 Stat. 153,
166.
7°Department of the Defense Appropriations Act, 1983, Pub. L. No. 97-377, 96 Stat.
1833, 1846-48 (1982); H. REP. No. 980, 97th Cong., 2d Sess. (1982).
256 ADMINISTRATIVE LAW REVIEW
restrictions on federal funding of abortions." Others, though less
visible or narrower in their scope of impact, still are likely to reflect the
important political influence of constituency or clientele groups. In the
98th Congress, for example, appropriations bills have been vehicles for
easing Transportation Department car-pool restrictions on an inter-
state highway near Washington, D.C., thus aiding local commuters,
and for overriding OMB's review and clearance powers over agricul-
tural marketing orders, thereby benefiting certain producers."2
The Interior Department's controversial leasing policies have also
been prime targets for appropriations limitations. Importantly, In-
terior's FY83 appropriations countered the Department's decision to
allow oil and natural gas leasing in wilderness areas.78 Another conflict
over Department leasing policies has focused on Federal coal reserves.
As passed by both the House and Senate, an amendment to the Depart-
ment's FY 1984 appropriations would place a moratorium on them,
until a specially created commission could report on the matter and
Congress review it.74 This delay, in a bill that also provides for Appro-
priations Committee vetoes over reprogramming proposals from In-
terior, demonstrates another dimension of appropriations restraints,
as temporary postponements rather than absolute bans for the full
fiscal year.
These various appropriations limitations interestingly coincide with
a different congressional attempt to curtail the Department's practices.
The House Interior Committee has invoked a committee veto in this
regard, based upon congressional powers in Article IV of the Constitu-
tion "to dispose of and make all needful rules and regulations respect-
ing the territory or other property belonging to the United States."
Since that particular legislative veto is pending in Federal Court,⁷⁵ the
proposed moratorium (and committee vetoes) in the FY84 appropria-
tions takes on added significance.
Using appropriations to impose a moratorium of less than the fiscal
"Department of Health and Human Services Appropriations Act, 1983, Pub. L. No.
97-377 § 204, 96 Stat. 1884, 1894 (1982).
⁷²For congressional action on the Transportation Department funding, H.R. 3103,
98th Cong., 1st Sess. (1983), see 129 CONG. REC. S14580-2 (daily ed. Oct. 25, 1983) and
H8929-32 (daily ed. Nov. 1, 1983). When this appropriations bill became stalled,
supporters of the provision hitched it to H.R. 1551, a bill to name a Federal building. 129
CONG. REC. H10551-4 and S16887-8 (daily ed. Nov. 18, 1983). For action affecting
OMB, through H.R. 4139, 98th Cong., 1st Sess. (1983), see 129 CONG. REC. H8718-27
(daily ed. Oct. 27, 1983).
7ˢAct of Dec. 30, 1982, Pub. L. No. 97-394 § 308, 96 Stat. 1966, 1996.
74H. REP. No. 399, 98th Cong., 1st Sess. (1983); 129 CONG. REC. H7982 (daily ed. Oct.
5, 1983) and S12486 (daily ed. Sept. 20, 1983).
⁷⁵Supra note 5.
AFTERMATH OF THE CHADHA DECISION 257
year, rather than to prohibit the executive action outright for the full
appropriation period, is evident in other instances as well. In the
Transportation Department Appropriations Act for FY 1984, Con-
gress delayed for sixty days Federal Aviation Administration adjust-
ments (i.e., lowering) of the annual passenger ceiling at Washington's
National Airport, the most convenient airport to the Capitol.76
The same appropriations act, which does not normally cover the
Office of Personnel Management (OPM), also delayed for two months
implementation of new OPM performance standards (that Federal
employee unions have actively opposed) for civil service pay raises,
promotions, and retirements." Senate debate on this provision offers
reasons for adopting a short-term moratorium, vis-a-vis a ban for the
entire fiscal year, and for utilizing this particular enactment. Those
reasons have to do with substantive disagreements over the planned
executive action as well as with procedural difficulties that resulted
from OPM's actions (which some perceived as precipitous), strained
executive-legislative relations in the matter, and the unavailability of
other, more appropriate legislative devices.78
OPM's FY 1983 appropriations had specifically prohibited imple-
mentation of its original (and even more controversial) regulations in
this regard, which the Office then redrafted. The second-generation
regulations were not subject to the prior ban because of their new date
of issuance and were scheduled to take effect while Congress was in
recess. That, as its opponents saw the matter, would have denied the
Governmental Affairs Civil Service Subcommittee "a chance to work
with the OPM on legislation it [the Subcommittee] has drafted which
takes a reasonable and rational approach to the problems OPM wants
to address."79 In addition to implying that OPM's own approach was
not reasonable and rational, supporters of the postponement also
noted that their attempts "with employee and management groups and
OPM to try to reach a consensus on an alternative to the OPM regula-
tions" had been stymied and that "OPM's decision to move ahead
without consensus [was] an unfortunate one."80
Sponsors of the moratorium, most of whom are on the Senate
Governmental Affairs Committee, include four of the five members of
76Department of Transportation and Related Agencies Appropriations Act, 1983,
Pub. L. No. 98-78 § 314, 97 Stat. 453, 472 (1983).
"Id. § 323 at 474-75.
78129 CONG. REC. S11431-6 (daily ed. Aug. 3, 1983). For a review of the subsequent
developments, see Washington Post, Oct. 21, 1983, at C2 and Oct. 31, 1983, at B2; 19 FED.
TIMES 5 (Nov. 7, 1983); and 41 CONG. Q. WEEKLY 2517 (1983).
79129 CONG. REC. S11432 (daily ed. Aug. 3, 1983).
80Id.
258 ADMINISTRATIVE LAW REVIEW
its Civil Service Subcommittee, which has jurisdiction for OPM. They
used the only vehicle that was immediately available-the appropria-
tions bill for the Transportation Department and related agencies-at
the risk of the amendment being declared nongermane. A more
appropriate supplemental appropriations bill had been available the
week before. But in order to prevent delay in that bill's passage, they
deferred their proposal, with "the assurance of all concerned that we
would be able to raise the amendment
on this conference report,
even though we recognized that there could be a problem of
germaneness."8
On occasion, appropriations limitations may lay out a course that
goes beyond any immediate prohibition or postponement. One such
example was implicit in a reprieve granted to the Bureau of Alcohol,
Tobacco, and Firearms (BATF) in FY 1982 funding.82 The Reagan
Administration's plan to dismantle the Bureau, in part because of
opposition to its enforcement practices from the National Rifle Asso-
ciation (NRA), encountered unexpected opposition-the NRA itself-
among more predictable critics. The Administration's planned ter-
mination of the Bureau was perceived by the NRA as overkill. Coun-
terproductively, from the NRA viewpoint, BATF's jurisdiction over
firearms, arson, and explosives laws would have been transferred to a
conceivably more aggressive and potent enforcer, the U.S. Secret
Service.83
BATF, to balance the record, has not always been the beneficiary of
congressional largess. A prior appropriations act, as one illustration,
not only reduced its requested budget but also prohibited any expendi-
tures for consolidating and centralizing Treasury records of the re-
ceipt and disposition of firearms, as it had proposed.84
Numerous other limitations have been attached to appropriations in
order to restrict regulatory agencies' discretion in implementing pol-
icy. These restraints may prohibit funds from being used for inspec-
tion or other enforcement activities and for promulgating new rules in
specified instances, or may even exempt specific areas or groups from
an agency's jurisdiction. Over the recent past, a number of agencies
have been targeted through appropriations. Among many other ex-
amples, the Occupational Safety and Health Administration has been
81d.
⁸²Act of Dec. 15, 1981, Pub. L. No. 97-92 § 109, 95 Stat. 1183, 1194 (1981).
83Keller, NRA, Liquor Industry Seek To Save BATF, 40 CONG. Q. WEEKLY 730 (1982);
Thornton, Senate Panel, NRA Join To Defeat Plan To Abolish Treasury Firearms Agency,
Washington Post, March 26, 1982 at A4.
84Treasury Department Appropriations Act, 1979, Pub. L. No. 95-429, 92 Stat. 1001,
1002 (1978).
AFTERMATH OF THE CHADHA DECISION 259
prevented from imposing civil fines for certain violations and from
inspecting small farms;85 Housing and Urban Development found that
Congress had, in effect, nullified one of its regulations (unintentionally
permitting homosexual couples, as a "stable family relationship," to be
eligible for public housing);86 and EPA lost its possible jurisdiction,
albeit unactivated, over automobile parking lots.⁸⁷
F. Limitations in Authorizations
Similar to appropriations limitations, Congress may restrict execu-
tive discretion or nullify actions through authorizations. Although they
are less commonly used to control specific actions, authorization re-
straints have served as important controls in notable areas, especially
military construction and foreign affairs.88 Furthermore, the substan-
tial and increasing number of program or agency budgets already
under frequent authorizations (compared to the predominance of
permanent or long-term authorizations until the 1970s) make these
limitations more feasible now than in earlier periods.⁸⁹ The shortened
time period increases opportunities to review and influence agency
behavior (either formally through authorization limits or informally in
hearings) and adds congressional leverage over executive actions.
Illustrative of the increase in annual authorization requirements,
especially as a by-product of agency abuses and lack of accountability to
Congress, was their application to the Federal Bureau of Investigation,
which had been under permanent authorization since its 1908 estab-
lishment, and to the entire Justice Department. Commenting on the
adoption, House Judiciary Committee Chairman Peter Rodino later
reminded his colleagues that "the Congress enacted the 1976 statute
largely because the Judiciary Committee believed it could not ade-
quately or responsibly discharge its oversight responsibilities without
the lever of budgetary authorization."⁹ The same rationale was used
for mandating annual authorizations for the U.S. intelligence com-
munity, when the House and Senate created their respective Select
Committees on Intelligence.⁹²
"Department of Labor Appropriations Act, 1979, Pub. L. No. 95-480, 92 Stat. 1567,
1569-70 (1978).
86Act of Oct. 4, 1977, Pub. L. No. 95-119 § 408, 91 Stat. 1073, 1089.
87Act of Oct. 17, 1975, Pub. L. No. 94-116, § 407, 89 Stat. 581, 600.
⁸Fisher, Annual Authorizations: Durable Roadblocks to Biennial Budgeting, 3 PUB.
BUDGETING & FIN. 26-29 (1983).
89Id.
9028 U.S.C. § 501 (1976 & Supp. V 1981).
91124 CONG. REC. H13020 (daily ed. Oct. 14, 1978).
⁹⁹. Res. 400, 94th Cong., 2d Sess. (1976); H. Res. 658, 95th Cong., 1st Sess. (1977).
260 ADMINISTRATIVE LAW REVIEW
Reducing agency authorization periods may become even more
appealing in the wake of the Supreme Court's invalidation of the
legislative veto. In the immediate aftermath of the Chadha decision, for
instance, the House approved a provision to reduce the authorization
term of the Consumer Product Safety Commission (CPSC) from five
years, as recommended in the reporting committee's bill, to only three
years.⁹⁹ This substitute amendment, along with others subjecting fu-
ture CPSC rules to joint resolutions, would impose new constraints on
an agency formerly under a congressional veto requirement.
A variety of recent examples, especially in military and foreign policy
matters, demonstrates the use of authorization limits to restrain spe-
cific executive actions. Because of concerns that the FY83 appropria-
tions limitations on CIA covert operations regarding Nicaragua had
"proven ineffective as moderate curbs on
U.S.
policy,"
the
House
Select Committee on Intelligence proposed an amendment to the
Intelligence Authorization Act for the 1983 fiscal year that contained
even stricter prohibitions. Also endorsed by the Foreign Affairs Com-
mittee and later approved by the House,95 it would have prevented
funds from being used to support any military or paramilitary opera-
tions in Nicaragua and would strike funds requested for that purpose.
Coincidentally, this particular authorization limit contrasted with
the Senate Intelligence Committee's option on the same subject; i.e., a
modified committee approval. Before authorizing FY 1984 funds for
covert activities in Nicaragua, the Senate Committee required the
Administration to report on certain new findings and proposals about
the region. The Administration, according to the Intelligence Commit-
tee Vice Chairman, scaled back its initial goals to ones that were "more
precise and much more limited," because of expressed committee
concerns.96 New funds were then approved for these CIA operations.
⁹⁵Supra note 2.
⁹ᴴ. REP. No. 122, Part 1, 98th Cong., 1st Sess. 3 and 13-18 (1983).
95H. REP. No. 122, Part 2, 98th Cong., 1st Sess. 1-2 (1983).
⁹⁶129 CONG. REC. S15282 (daily ed. Nov. 3, 1983). The Senate Select Committee on
Intelligence, according to Senator Moynihan, the Vice Chairman, required the adminis-
tration to "articulate in a clear and coherent fashion its policy objectives in a new
Presidential finding before we approve any more funding." As a result of that May,
1983 instruction, CIA Director Casey outlined a proposed finding on Aug. 3, to the
Committee, which it found to be "much too broad and ambitious." On Sept. 20, Casey
and Secretary of State Shultz appeared before the Committee with new findings that
"reflected the concerns the committee had raised with Director Casey in the prior
meeting" and with new goals that were "more precise and much more limited.
"
For
further information and speculation of what transpired during these executive sessions,
see Washington Post, May 7, 1983 at A1, New York Times, May 18, 1983, at A8, 41 CONG.
Q. WEEKLY 2010, 2138 (1983).
AFTERMATH OF THE CHADHA DECISION 261
But since the funding would reportedly be available for less than the
fiscal year, the Reagan Administration would conceivably be compelled
to renew its request for further funding, in order to continue the
operations (unless CIA contingency funds and reprogramming au-
thority remain available). Somewhat ironically, since it has approved
the CIA covert activities here, the Senate Intelligence Committee has
established precedents for two new checks on such sensitive, secret
executive actions: the Committee's necessary prior acceptance of spec-
ified Administration findings and plans plus time limits on the funding
authority that might require the Administration to renew its appeal to
Congress (including the more critical House counterpart), before the
end of the fiscal year.
Even though the Sanate did not approve the House funding condi-
tions for FY 1983 and President Reagan could have vetoed a bill
containing such an amendment, if passed, authorization limitations are
not mere exercises in futility. By encouraging debate and votes on
legislative provisions, these attempts may galvanize opposition, dem-
onstrate the breadth of support in Congress for a particular viewpoint
or side, help to determine the agenda for future legislative efforts (e.g.,
the House repeated its ban on covert operations in Nicaragua in the FY
1984 intelligence authorization)," influence public opinion and activ-
ism, and possibly set boundaries for future executive plans.
Where they are enacted into law, authorization limitations may
establish completely new checks on executive action or may modify,
strengthen or stabilize controls that had existed only in appropriations.
When successful, they solidify or broaden political support. In 1976,
for example, the legislative controls over CIA covert operations in
Angola, added to the appropriations act through floor amendments,
were refined in the International Security Assistance and Aims Export
Control Act of 197698 later, based upon recommendations from the
foreign policy committees.
The MX missile issue presents a variation on the theme of curtailing
executive discretion. The narrow approval for the Administration's
position in the House and Senate votes on the Department of Defense
Authorization Act, 1984, for instance, came only after White House
"Initial House debate on the FY 1984 Intelligence Authorization Act is recorded at
129 CONG. REC. H8389-428 (daily ed. Oct. 20, 1983). Eventually, however, House and
Senate conferees included covert operations funding, but with a ceiling (i.e., $24 million)
that would compel the Administration to return to Congress for additional funding
during the fiscal year, if the operations were to continue. 129 CONG. REC. H10543,
S16858 (daily ed. Nov. 18, 1983).
⁹Pub. L. No. 94-329 § 404, 90 Stat. 729, 757-58 (1976).
262 ADMINISTRATIVE LAW REVIEW
assurances that it was making a strenuous effort in the Strategic Arms
Reduction Talks99 and, in the House, only after a string was attached
that tied MX procurement and deployment to the development of a
single-warhead missile. 100
In addition to these maneuvers surrounding MX authorizations, the
missile had been linked to an attempt to thwart renewed production of
chemical weapons. The Senate, at the request of the Reagan Adminis-
tration and through the tie-breaking vote of Vice President Bush,
agreed to end the moratorium (since 1969) on binary nerve gas artil-
lery shells. 101 The conferees on the Defense Authorization Act accepted
the Senate provision, even though it had been disapproved, 256-161,
by the full House (which, incidentally, had initiated the original mora-
torium). Because of the difference between the Senate and House
versions on the resumption of chemical weaponry, several House lead-
ers were expected to use the leverage of their support for the MX to
delete the provision for nerve gas. These expectations came to naught,
however, in part because of intervening events. The House, voting in
aftermath of the Soviet attack on a civilian Korean Airliner, approved
the conference report with this controversial provision decisively, and
thereby precluded any effective bargaining on the issue of chemical
weaponry.¹⁰²
In other action on the same bill, Congress curtailed OMB and DoD
authority by extending for an additional two years the existing statu-
tory ban against contracting to private firms for security and firefight-
ing at military bases.¹⁰³ Emphasizing that these functions should be
under the absolute command of base officers, congressional opponents
of contracting insisted that they were sustaining the security needs that
"base commanders have privately pointed out," even though that view-
point countered the official position of DoD and OMB. 104
99129 CONG. REC. H5395-98 (daily ed. July 21, 1983).
100 Provision in Pub. L. No. 98-94 § 1231; 97 Stat. 614, 693-94 (1983).
101 129 CONG. REC. S9804 (daily ed. July 13, 1983).
Washington Post, Aug. 9, 1983 at A3; 41 CONG. Q. WEEKLY 1920-21 (1983); and 129
CONG. REC. H6937-41 (daily ed. Sept. 15, 1983). However, funding for such weapons
had been rejected in the FY 1984 Defense Appropriations by House and Senate con-
ferees. H. REP. No. 567 (1983); 129 CONG. REC. H10433-59 (daily ed. Nov. 18, 1983).
¹⁰³129 CONG. REC. S9825 (daily ed. July 13, 1983); provision in Pub. L. No. 98-94; 97
Stat. 691-92 (1983).
¹⁰⁴Id. at S9822.
AFTERMATH OF THE CHADHA DECISION 263
G. Prior Notification to and
Consultation with Congress
Separate from preexisting legislative vetoes, Congress has often
required that executive officials notify Congress in advance of an
action or, as a further step, consult directly with committees. Although
these prior notice and consultation provisions do not permit formal
rejection of a proposed action, they do enable congressional commit-
tees with relevant jurisdiction to be more readily aware of a planned
action than otherwise.
Assuming a reasonable time delay before the proposed action can
commence, these devices provide an opportunity for congressional
scrutiny and comment upon it. Through advance notice or especially
consultation, Congress may be able to influence, modify, or even
secure withdrawal of an executive proposal. Nonetheless, there is no
guarantee, or course, of any impact; and in some cases, a consultation
requirement may be perceived quite differently by the Administration
and Members of Congress, as in the case of the War Powers
Resolution.¹⁰⁵
The most comprehensive current example of advance notification is
found in the Intelligence Authorization Act for Fiscal Year 1981. 106
Maintaining the language of the House and Senate resolutions that
established their respective Select Committees on Intelligence, it
directs that they be kept "fully and currently informed of all intelli-
gence activities
including any significant anticipated intelligence
activity.
**107
The enactment also added provisions that accommodate both leg-
islative and executive interests in modifying the previous reporting
requirements for covert activities under the 1974 Hughes-Ryan
Amendment. 108 The 1980 version reduced the number of committees
to which the President would normally report from eight to two-the
House and Senate Select Committees on Intelligence-as the executive
had requested; but it mandated advance notice of such activities, as
105Pub. L. No. 87-148, 87 Stat. 555 (1973); for a review of the differing perceptions of
the War Powers requirement, see, e.g., War Powers: A Test of Compliance: Hearings Before the
Subcomm. on International Security and Scientific Affairs of the House Comm. on International
Relations, 94th Cong., 1st Sess. (1975); Craig, The Power to Make War: Congress' Search for
an Effective Role, 1J. POL'Y ANALYSIS & MGMT. 320-22 (1982).
¹⁰⁶Pub. L. No. 96-450, 94 Stat. 1975 (1980).
¹⁰⁷Id. § 501 at 1981-82.
1081d. For a discussion of the changes, see the conference report on the legislation, H.
REP. No. 1350, 96th Cong., 2d Sess. 15-16 (1980).
264 ADMINISTRATIVE LAW REVIEW
Congress had wanted, in place of the vague Hughes-Ryan requirement
to report "in a timely fashion." Even when "extraordinary circum-
stances affecting vital interests of the United States" preclude prior
notice to the Intelligence Committees, the Act directs the President to
notify leaders in Congress, including the chairmen and ranking minor-
ity members of the Select Committees, and later to "fully inform the
intelligence committees in a timely fashion" about these operations and
the reasons why prior notice had not been given.
Although the President is not required to seek either Committee's
approval for covert operations, the currently unique mandate "does
open up a dialogue between the Director of Central Intelligence
and Committee members, who provide their reactions, supportive and
negative. And when that dialogue reaches an impasse, as in the case
of Nicaragua, the reporting requirements can provide a foundation
for further committee or congressional action, whether it is a commit-
tee report directive or appropriation or authorization limitation.
Consultation and advance notice requirements aften emanate from
congressional oversight inquiries and continuing concerns about par-
ticular executive operations or activities, especially controversial, new,
or previously uncontrolled ones. The FY84 Defense Authorization
contains several such reporting directives that reflect these characteris-
tics. One arose from revelations about inadequate DoD controls over
spare parts procurement and the resulting exorbitant payments and
cost overruns, and another, about inadequate DoD operational testing
of weapons systems before it obligated production funds. 110 In both
cases, prior notice was attached to new strictures on the Department.
In the first, Defense was instructed to promulgate new regulations
governing spare parts purchases. In the second, conferees erected a
"compromise" office-a Director for Operational Testing and Evalua-
tion-and applied a prior notice requirement: "A final decision
to
proceed with a major defense acquisition
may not be made until the
Director has submitted to the Secretary of Defense [his report on it]
and the Committees on Armed Services and on Appropriations of the
House and Senate have received the report.""" By this arrangement,
the tandem requirements attempt to transform departmental practices
without resorting to further and even more restrictive statutes.
Prior notice provisions have also gained currency in other gov-
¹⁰⁹H. REP. No. 973, 97th Cong., 2d Sess. 5 (1982).
"129 CONG. REC. S9680-81 (daily ed. July 12, 1983), S10585 (daily ed. July 21, 1983),
and S12085 (daily ed. Oct. 13, 1983).
"Id. Provisions included in the Department of Defense Authorization Act, 1984, Pub.
L. No. 98-94 § 1216 and 1211; 97 Stat. 688-89 and 685-45 (1983), respectively.
AFTERMATH OF THE CHADHA DECISION 265
ernmental pursuits, having been directed at regulations in controver-
sial or untested programs. These report-and-wait provisions have been
applied to a variety of agencies, including CPSC, NRC, HUD, ICC, and
Transportation Department.¹¹²
H. Inter-Agency Consultation and Review
Analogous to these provisions requiring consultation with Congress
or report-and-wait periods are statutory provisions that direct one
agency to submit proposals to or consult with another. In these cases,
no direct or legally binding nullification is imposed over the initial
executive action (unless, of course, additional specific language per-
mits that disapproval). However, the intent of these statutory provi-
sions may be to interject alternative priorities, perspectives, and recom-
mendations into the process, thereby retarding or delaying the
development of the proposed action, changing its direction, mitigating
its impact, or conceivably even terminating it.
Perhaps the clearest examples of inter-agency consultation require-
ments for these purposes have involved the Environmental Protection
Agency (EPA), in fields where its jurisdiction overlapped intimately
with other regulatory agencies or where its regulatory actions were
controversial. EPA has been required to submit proposed and final
regulations for pesticides to the Secretary of Agriculture, whose com-
ments on them are published in the Federal Register. In support of this
consultation requirement, the reporting Senate Committee noted
EPA's "unenviable position" of choosing between environmental pro-
tection and the pesticides' economic benefit; but it determined that
"EPA has not always given adequate consideration to agriculture in its
decisions [and] there is clearly a need to consider the impact
if
balance is to be achieved. "113
EPA has also been directed, in another statute, to consult with the
NRC about radioactive pollutants under the former's jurisdiction. 114 In
addition to requiring joint EPA-NRC agreements for specified mat-
ters, the legislation also granted NRC the unusual power to "dis-
approve any EPA, State or local standard [or emission limitation]
promulgated under the Clean Air Act if the Commission finds
that
the application of such standard would endanger public health and
"15 U.S.C. § 2076 (1976 & Supp. V 1981), Act of Nov. 6, 1978, Pub. L. No. 95-601
§ 1, 92 Stat. 2947, 2948, 42 U.S.C. § 3535 (1976 & Supp. V 1981), and 49 U.S.C. § 1 (1976
& Supp. V 1981), respectively.
¹¹³S. REP. No. 94-452, 94th Cong., 1st Sess. 5, 9 (1975).
¹¹⁴⁴2 U.S.C. $ 7422 (1976 & Supp. V 1981).
266 ADMINISTRATIVE LAW REVIEW
safety."¹¹⁵ The President, however, was given authority to overturn the
NRC disapproval within ninety days.
IV. NONSTATUTORY TECHNIQUES
Congress possesses a panoply of nonstatutory techniques, overlap-
ping with its oversight powers, that can be used to control executive
actions. And as with statutory devices, these nonstatutory mechanisms
of control vary in political potency and in the ease with which they may
be put into operation. Although their impact is indirect, several studies
have demonstrated that such instruments can be effective, if used
diligently and under conducive circumstances. 116 Yet because of their
own informal operation and because they are likely to occur along with
other influences, it is often difficult, if not impossible, to assess their
specific impact, or, on occasion, to isolate them from other factors.
One nonstatutory device for controlling executive action is the com-
mittee report accompanying legislation, a relationship that lends credi-
bility and significance to the informal technique. Regarding that credi-
bility, at least so far as the legislative history of an act is concerned,
Associate Supreme Court Justice Jackson had urged that the Court
"should not go beyond Committee reports, which presumably are well
considered and carefully prepared.' Beyond this, they may contain
directives that represent a committee's majority opinion and provide
guidance and expectations for future executive actions under the
legislation. Even though these directives do not necessarily obligate an
agency to act, in most instances, they carry the imprimatur of an
important congressional unit-the committee which has authorizing
or appropriating jurisdiction for the agency-that is politically risky to
ignore.
The most assertive and confident committee report statement is
issued by the Senate Select Committee on Intelligence, which, like its
House counterpart, issues two separate reports, a public and a clas-
sified one. Because of the Committee's unique powers and authorizing
responsibilities (for the secret intelligence community budget), it can
"Described in the accompanying committee report and cited at 123 CONG. REC.
H8547 (daily ed. Aug. 3, 1977).
¹¹⁶See inter alia, M. Ogul, CONGRESS OVERSEES THE BUREAUCRACY: STUDIES IN
LEGISLATIVE SUPERVISION (1976); Kaiser, Oversight of Foreign Policy, 2 LEGIS. STUD. Q.
255-79 (1977); Fisher, supra note 13; and FRANCK and WEISBAND, supra note 68.
""Schwegmann Brothers v. Calvert Corp., 341 U.S. 384, 395 (1951). For a contrasting
interpretation with regard to some committee reports, see Griswold, The Explosive Growth
of Law Through Legislation and the Need for Legislative Scholarship, 20 HARV. J. ON LEGIS. 273
n.10 (1983).
AFTERMATH OF THE CHADHA DECISION
267
insist that "the classified report will have the full force of any Senate
Report, and that the Intelligence Community will fully and completely
comply with the recommendation, guidelines, directions, and limita-
tions contained therein."¹¹⁸ Since the details of the intelligence budget
are not publicly disclosed, the classified report to the annual authoriza-
tion takes on an added significance. It is the equivalent of the act itself
and is expressly referred to in the authorization statute.
Appropriations committee reports regularly incorporate a number
of urgings, directives, and expectations for agency action. A recent
House Appropriations report, on the FY 1984 energy and water de-
velopment appropriations, contains at least seven specific directives,
instructions, and "concerns" for which action is advised. Included is the
following illustration of this type of informal pressure on an agency:
the Committee "directs the NRC to report" about when it expects to
take action on a particular rule, promulgation of which the "Commit-
tee considers
to be of highest priority.
Where committee directives are ignored or intentionally violated by
an agency, this may invite more direct checks in the future. For exam-
ple, in the mid-1970s, the House Appropriations Committee had been
critical of OSHA enforcement agents, especially their inspections of
"small businesses and agricultural enterprises," and had cautioned the
agency to "make every effort to insure that compliance officers
are
equipped with a sufficient degree of expertise and competency in the
activities of the establishments which they are undertaking to
inspect. "120 Despite this implicit warning, the complaints about OSHA
continued. A short while later, the Committee and Congress found it
advisable to exempt agricultural operations with ten or fewer em-
ployees from OSHA's jurisdiction and to prohibit it from assessing
certain civil penalties. 121
In a much earlier episode, a committee report helped to transform
executive practices without resorting to legislative mandates. In 1842,
the House Committee on Public Expenditures was especially harsh in
its criticisms of the Revenue Cutter Service (a forerunner of the U.S.
Coast Guard) and its direction. The Committee found the Service to be
a "source of great and extravagant expenditure
controlled by the
Secretary of the Treasury, accountable to no one but him, extended at
will by him
"122 That situation could have been remedied by statute.
¹¹⁸S. REP. No. 77, 98th Cong., 1st Sess. 2 (1983).
¹¹⁹H. REP. No. 217, 98th Cong., 1st Sess. 138 (1983).
¹²⁰H. REP. No. 305, 93d Cong., 1st Sess. 7 (1973).
¹²¹The exemptions, via appropriations limitations, commenced in fiscal year 1977. Act
of Sept. 30, 1976, Pub. L. No. 94-439, 90 Stat. 1418, 1421 (1976).
¹²ᴴ. REP. No. 756, 27th Cong. 2d Sess. 6 (1842).
268 ADMINISTRATIVE LAW REVIEW
Instead, the Secretary, partially compelled by the condemnation, insti-
tuted several major reforms and reorganizations of the Service,¹ 123 and
thereby staved off direct legislative changes.
Two interrelated, prominent nonstatutory checks on executive ac-
tions are committee oversight hearings and investigations, reinforced
by the power to issue subpoenas. Criticisms about EPA's implementa-
tion of its "Superfund" for toxic waste cleanup, charges of political
manipulation, and other objectionable practices brought about exten-
sive hearings in 1982 and 1983 that, in part, have resulted in new
administrators and some changes in policy direction. 124 So far, no new
legislation modifying EPA authority or its Executive Branch status has
been adopted. Whatever transformations have occurred in this arche-
typal executive-legislative confrontation have been due to nonstatu-
tory devices, in concert, of course, with other political factors.
Highly visible, specialized investigations, sometimes conducted by a
select committee, give further evidence that such oversight devices may
have an impact on executive behavior, under certain circumstances.
Investigations of the U.S. intelligence agencies by House and Senate
select committees in 1975-1976 substantiated findings about abuses of
authority, illegalities, and improper and unethical conduct. These
investigations not only helped to justify new legal checks, as with the
Foreign Intelligence Surveillance Act, and the creation of permanent
Select Committees on Intelligence with legislative powers, but also have
been credited with preventing or curtailing the recurrence of im-
proper conduct. 125
Informal techniques alone rarely produce an immediate, dramatic
impact. More commonly, they must be exerted over a lengthy period of
time, reinforced by similar efforts elsewhere in Congress, or used in
league with new or modified statutes, if they are to be effective. The
House Judiciary Committee, for example, has had little success in
convincing Attorney General Smith to withdraw or suspend imple-
mentation of his domestic security guidelines (that revised a set issued
in 1976 by Attorney General Levi). As a next step, the committee
attached an amendment of the FY 1984 Justice Authorization, in order
¹²³U.S. Sec. of the Treasury, Annual Report, 1844, H. Doc. 45, 28th Cong., 1st Sess. 1
(1844).
¹²⁴For a review of the criticisms and charges, see the Senate confirmation hearings for
EPA Administrator Ruckelshaus, in Nomination of William D. Ruckelshaus: Hearings before
the Senate Comm. on Environment and Public Works, 98th Cong., 1st Sess. passim (1983).
¹²⁵See, e.g., CRABB and HOLT, supra note 68, at 137-60; FRANCK and WEISBAND, supra
note 68, at 115-34; and J. ELLIFF, Congress and the Intelligence Community in CONGRESS
RECONSIDERED 193-206 (Dodd and Oppenheimer, eds. 1977).
AFTERMATH OF THE CHADHA DECISION 269
"to send a message to the Department regarding the depth of its
concern" about the new guidelines and so that a consultation and
clarification process can be completed."¹²⁶
Another informal technique with the potential for changing execu-
tive action is direct contact (outside committee activity) between mem-
bers of Congress and executive officials, especially agency and bureau
heads as well as Executive Office staff and the President himself. These
numerous contacts may provide opportunity to advocate a position
directly or to aid a group or organization in gaining access to executive
decisionmakers.
As an example of the latter, the Reagan Administration abandoned a
prospective change in a regulation governing access for handicapped
individuals; according to press accounts, that decision followed a meet-
ing between the White House Chief of Staff and representatives of
affected organizations, a meeting that House Republican Leader
Robert Michel helped to arrange. 127 Illustrating direct contact, mem-
bers of the Senate Governmental Affairs Committee have negotiated
with the Office of Personnel Management, in order to modify OPM's
proposed rules over federal salaries, promotions, and layoffs. Part of
their ability to persuade OPM derives from their strategic location in
Congress-as members of the committee with jurisdiction over the
Office and including the assistant Senate majority leader-as well as
their demonstrated legislative success in delaying implementation of
earlier OPM rules in the matter. 128 And in another recent case, HUD
reportedly issued a "compromise" version of its rent-subsidy formula,
because of "strong protests from congressional Democrats," among
others. 129
As with other informal techniques used to check executive actions,
direct contacts have no guarantees. A concerted effort by GOP legisla-
tors, including Senator Dole and Republican Congresswomen, for
instance, had failed to change the Reagan Administration's decision to
file a brief with the Supreme Court over Federal funding to educa-
tional institutions that discriminate against women. 130
Nonstatutory legislative vetoes-informal devices whereby a con-
gressional committee effectively clears proposed executive actions—
comprise yet another mechanism for controlling specific executive
¹²⁶H. REP. No. 181, 98th Cong., 1st Sess. 19 (1983).
Washington Post, April 12, 1983, at A15.
2⁸Supra note 77 and 78.
"Washington Post, Sept. 19, 1983, at All.
¹³⁰See press accounts in Washington Post, Aug. 3, 1983, at A2, Aug. 6, 1983, at A5, and
Aug 9, 1983, at A2.
270 ADMINISTRATIVE LAW REVIEW
actions. Prominent in reprogramming of appropriations, these oper-
ate, as do their statutory counterparts, to bring executive actions into
compliance with legislative objectives and have even been written into
the operating manuals of some affected agencies.¹⁵¹
Studies or investigations by congressional staff, outside consultants,
and congressional support agencies, especially the General Accounting
Office (GAO), may themselves help to induce changes in administra-
tive behavior, challenge questionable conduct, or provide substantia-
tion and recommendations for further congressional efforts to check
executive action. GAO reports, for instance, may cite administrative
developments that have been initiated at its suggestion;¹⁵ or executive
officials may identify GAO as a source for policy or administrative
changes. In the latter, the Attorney General's 1976 guidelines for
"Reporting on Civil Disorders" established new and more difficult
procedures for FBI assistance to the Secret Service, especially in shar-
ing intelligence; as a partial justification for that change, the guidelines
noted that a prior "draft report of the General Accounting Office
indicates that very little information reported by the FBI is actually
retained by Secret Service."¹
V. OTHER CONGRESSIONAL ACTIONS
The Supreme Court's ruling in Chadha (and implicitly, the summary
affirmances that followed) found the legislative veto unconstitutional
because it violated the Presentment Clauses of the Constitution, a
holding that presumably invalidates all types of statutory congressional
vetoes (i.e., those relying exclusively on Congress). Since that time, the
House Rules Committee, which "has always had reservations about
'legislative veto' laws
has established a policy of returning bills that
¹ˢ¹Fisher, supra note 13, at 27. For the Treasury Department, Reprogramming of
Appropriated Funds: Memorandum from the Secretary of the Treasury (March 9, 1977); for the
Department of Agriculture, Guidance for Reprogramming Proposals: Memorandum from
USDA Office of Budget, Planning and Evaluation (April 5, 1978); and for the Public Health
Service, Request for Reprogramming of Funds, PHS Financial Management Manual, Part 2,
Chapter PHS: 2-6. (June 19, 1980).
¹ˢ²For example, in the midst of a General Services Administration scandal involving
corruption, bribery, and kickbacks, a 1979 GAO report identified several GSA correc-
tives that had been advanced by that GAO investigation and earlier ones, in The General
Services Administration Should Improve the Management of Its Alterations and Major Repairs
Program: Report by the U.S. General Accounting Office (LCD-79-310) 16-18, 29-30 (July 17,
1979).
1ˢ³Reporting on Civil Disorders and Demonstrations Involving a Federal Interest: Guidelines
Issued by the Attorney General (Part III. A.) (March 10, 1976).
AFTERMATH OF THE CHADHA DECISION 271
contain such provisions to the authorizing committees for re-
drafting.¹⁵⁴
Yet certain legislative veto provisions may remain in force; and some
may elicit compliance, because it is in the executive's own vested in-
terest to do so. Moreover, as described above, certain types of congres-
sional vetoes, especially committee vetoes in appropriations acts, have
been ratified statutorily since Chadha.
These possibilities notwithstanding, Congress still has other options
for controlling specific executive actions, in addition to the statutory
and nonstatutory mechanisms detailed above. What follows is neither a
comprehensive listing of alternatives-although they range from ma-
jor statutory initiatives to House rules changes-nor a ranking of them.
As the Court noted in Chadha, Congress has been inventive in develop-
ing its powers; and the perceived benefit or feasibility of any particu-
lar approach depends upon many different factors that cannot be
explored in depth here.
One often-cited remedy, however, is likely to languish or be of only
marginal utility, because of practical and philosophical concerns
underlying its assumptions. That is the all-purpose prescription that
the establishing statutory authority for agencies and programs should
be unambiguous, precisely and narrowly defined, and with clear,
straightforward objectives. Otherwise, Congress, lacking will and re-
solve, so the reasoning goes, has abdicated its lawmaking responsibili-
ties by "passing the buck to the executive.
**136
The noble intent behind this solution, however, minimizes the reality
behind contemporary laws: the changing nature and characteristics of
political parties, the frequent split party control at the national level (in
all but one of the past four Presidencies), the increase in number and
political sophistication of organized interests and so-called "single
issue" groups, the complexity and intense controversy surrounding
many current issues, the truncated distribution of governmental au-
thority under the Constitution, and the internal competing power
structures within Congress and the executive. All of these conspire
against such an over-arching solution and in favor of broad delegations
of authority, vague language, and generalized statements of purpose
in public laws. It may also be that proponents of such comprehensive
solutions somewhat naively recall earlier periods that exhibited clear
134H. REP. No. 257, Part 3, 98th Cong., 1st Sess. 4 (1983).
135See the majority opinion at 103 S. Ct. at 2781, and dissenting opinion of Justice
White. Id. at 2795.
¹³⁶R. Cohen, Passing the Buck, NAT. J. 1461 (July 7, 1983). See also H. Bruff, Ban on
Legislative Veto Could Lead to Less Lawmaking, Los Angeles Times, June 28, 1983, Part II at
5.
272
ADMINISTRATIVE LAW REVIEW
and precise legislation-e.g., the 1930 Smoot-Hawley Tariff or that
from the 1880s, which Woodrow Wilson described as "Congressional
Government""-while forgetting the serious problems of those sys-
tems and the criticisms of specific pieces of legislation. Finally, some
may uncritically assume that those previous systems could be resur-
rected in the contemporary era.
The operating premise is that vague and broad delegations of statu-
tory authority will continue as the rule, for a variety of reasons. There-
fore, Congress will remain dependent upon a variety of means to
nullify or neutralize specific executive actions, as it has in the past. But
now Congress has the added incentive of replacing congressional
vetoes by some of the following methods:
Formal legislation may be required before commencement of specific
executive actions. Statutes might be drafted to incorporate a require-
ment that certain future actions shall not commence unless and until a
regular bill, possibly under expedited procedures, is approved by both
Houses of Congress and then signed by the President or his veto is
overriden. Many of the same pro and con arguments applied to joint
resolutions of approval apply here also.
Regular and frequent authorization periods may be mandated for agen-
cies that are not already under a short cycle, thus improving Congress'
ability to review, monitor, and clear executive actions, by providing
more numerous opportunities for periodic review and leverage to
ensure agency compliance. The House, in the immediate aftermath of
the Chadha decision, did this when it reduced the CPSC reauthorization
period from five to three years. 138
Official "sunset" requirements, where a program, agency, or authority
terminates after a specified time unless it is expressly reauthorized,
may be advanced as control techniques. In fact, a "super sunset" bill, as
termed by its sponsor, has been introduced in the House in the 98th
Congress; it would repeal all authority previously delegated to the
executive with a legislative veto after 180 days, unless Congress spe-
cifically reinstates such authority.¹⁹⁹
Time limitations on executive actions themselves might also be explored.
The War Powers Resolution, as a prominent example, imposes a time
limit on the commitment of U.S. Armed Forces into hostilities abroad,
unless Congress has specifically authorized it to continue.¹⁴⁰
¹³⁷W. WILSON, CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS (1885).
198Supra note 2.
¹³⁹H.R. 4535, 98th Cong., 1st Sess. (1983). See remarks of its sponsor, Elliott Levitas, in
129 CONG. REC. H10589-91 (daily ed. Nov. 18, 1983).
140Pub. L. No. 148, 87 Stat. 555, at 556 (1973).
AFTERMATH OF THE CHADHA DECISION 273
The controversy and political difficulties in operationalizing such
authority regarding Lebanon (in contrast to Grenada), however, dem-
onstrates its weaknesses when applied across-the-board to foreign
military ventures. 141 There, the President's own constitutional author-
ity expressly exceeds that granted by statute and his political power, at
least in the short-run, exceeds that of Congress. But in other areas,
such as regulations from independent commissions or contracting for
specific construction or maintenance projects, Congress may impose
time limits without encountering the same challenges.
Authorizations for less than a fiscal year are a variation of the same theme
that "sunset" requirements and regular authorization periods score. In
this case, the time permitted for a specific activity is shortened and the
executive must seek supplemental authority from Congress during the
fiscal year, if the activity is to continue.
The House Select Committee on Intelligence has held hearings on
proposals, introduced by Rep. Fowler, that would halt funding for
covert operations at a specified dollar amount without the express
approval of both House and Senate Select Committees.¹⁴² And the
House and Senate, following the recommendation of the conferees
from the Select Committees on Intelligence, approved funding for
CIA covert operations in Nicaragua for less than the fiscal year (if such
expenditures remain at their current rate). This limitation in the FY
1984 Intelligence Authorization, by setting an absolute ceiling and
prohibiting transfers from other accounts, has compelled the Agency
to seek congressional approval for additional amounts to continue its
activities.¹⁴³
¹⁴¹With regard to Lebanon, Congress for the first time (on Sept. 29, 1983) invoked the
War Powers Resolution, based upon a negotiated compromise with the President. It
allowed U.S. Armed Forces to remain in Lebanon for 18 months without further
congressional action, thus superseding the Resolution's normal 60-day limit. President
Reagan, upon signing the measure (Multinational Force in Lebanon Resolution, Pub. L.
No. 98-119, 97 Stat. 805 (1983)), however, asserted that he did "not necessarily join in or
agree with some of these expressions" of congressional findings incorporated in the
statute. Furthermore, he insisted, his signing should not "be viewed as any acknowledg-
ment that the President's constitutional authority can be impermissibly infringed by
statute, [or] that the congressional authorization would be required if and when the
period specified in section 5(b) of the War Powers Resolution might be deemed to have
been triggered and the period had expired 41 CONG. Q. WEEKLY 1923-24, 1963-65,
2015-20, 2095-96, and 2142 (1983); 15 NAT. J. 1931-32 (1983); and 129 CONG. REC.
H7724-28 and S13125-71 (daily ed. Sept. 29, 1983).
With regard to Grenada, no compromises or negotiated arrangements have yet
occurred; and both Houses voted, in the immediate aftermath of the U.S. involvement,
to invoke the War Powers Resolution time limit without extending it (as in Lehanon). 41
CONG. Q. WEEKLY 2221-4 (1983); Washington Post, Nov. 2, 1983, at A1, A14; and 129
CONG. REC. H8933 (daily ed. Nov. 1, 1983) and S14874-77 (daily ed. Oct. 28, 1983).
¹⁴²H.R. 3114, 98th Cong., 1st Sess. (1983).
¹⁴⁹Supra notes 96 and 97.
274 ADMINISTRATIVE LAW REVIEW
House Rule XXI was changed in the 98th Congress to make it more
difficult to offer floor amendments to appropriations. 144 If they are
perceived as overly restrictive, the current rules might be eased or
removed in order to facilitate appropriations limitations, via floor
amendments, to check executive actions.
Other House and Senate rules affecting standing committee powers might be
amended to preclude appropriating funds for a specific executive
action unless and until the authorizing committee has expressly
approved the planned action itself or a specified related contingency.
The prior approval requirement could be under expedited proce-
dures. Despite having the evident impact of a legislative veto, this
change would directly affect only the internal Chamber Rules and,
arguably, would be immune from judicial scrutiny.
Private laws, despite their "onerous burdens" (as characterized by the
majority opinion in Chadha),145 might be reactivated to control some
deportation cases, as they are now in other immigration matters and
for claims relief.
Sense of Congress resolutions-non-binding concurrent or simple res-
olutions that indicate a sense of Congress or of a single House-can be
used to express a congressional opinion or view about a (proposed)
specific executive action. In so doing, they also alert officials to the
possibility of future legislative sanctions, if that sentiment is violated,
but have no legal effect themselves.
Oversight powers in statute or in chamber rules may be modified to
strengthen congressional control or at least provide further opportu-
nity for it. In addition to the standard oversight powers that con-
gressional committees now possess, their authority could be amended
to require that committees be kept "fully and currently informed,"
even with regard to "significant anticipated activities," by heads of
agencies under their jurisdiction. This would enhance their ability to
monitor planned executive actions, by granting standing committees
the same authority that the Select Committees on Intelligence hold
exclusively. (Committees on their own, of course, may expand the
consultation or prior notification directives in their reports on bills;
and although these would not be legally binding on an agency, they
may still elicit compliance.)
Select study committees or subcommittees (in House Government Opera-
tions and Senate Governmental Affairs) may be established jointly or in
each House to be responsible for monitoring, reviewing, and com-
""Supra note 59.
145103 S. Ct. at 2775.
AFTERMATH OF THE CHADHA DECISION 275
menting upon a range of (proposed) executive actions, such as "signifi-
cant" regulations or foreign arms sales above a threshold dollar
amount.
In so doing, the study panel could conduct oversight of executive
actions under a specific and express mandate, similar to the "vigilant
oversight" directive of the Select Committees on Intelligence. Since the
panel's membership would not be identical to the appropriating or
authorizing committees which have jurisdiction, it would not have
previously sanctioned the powers, authority, duties, or officials (as
Senate authorizing committees do for Presidential nominees) of the
agencies whose actions they would oversee. By commenting upon
proposed rules or regulations, for instance, the panel could alert
Congress about suspect or objectionable ones and suggest options for
corrective legislation, similar to a proposal that the House Rules Com-
mittee had advanced (in lieu of an across-the-board legislative veto). 146
The Senate confirmation power, frequently criticized for being perfunc-
tory, may be used to solicit pledges from Presidential nominees with
regard to taking (or not taking) specific action and notifying or consult-
ing with congressional committees in the future.
The likelihood of this approach being adopted by committees as a
normal part of confirmation or being acceptable to the President,
however, is remote. Recently, for instance, a number of Senators
sought to require that William P. Clark, the successor to Interior
Secretary Watt, pledge to change specified Department policies, prior
to his confirmation. The attempt was made through an amendment to
the FY 1984 Supplemental Appropriations Act, a day before Clark's
scheduled confirmation vote, but was tabled, 48 to 42. In an analogous
case, a Senate Appropriations subcommittee tried to obtain a commit-
ment from the new head of the Agency for International Development
to clear future plans about diverting economic aid to military purposes.
The Administrator, intent on improving relations with Congress, was
agreeable. Since the President and the Justice Department were not,
however, the informal clearance procedure was abandoned and re-
placed by a formal provision in a later appropriations act.¹⁴⁷
Despite the evident disincentives against specific pledges from
nominees, the confirmation hearings of EPA Administrator Ruckels-
RECOMMENDATIONS ON ESTABLISHMENT OF PROCEDURES FOR CONGRESSIONAL REVIEW
OF AGENCY RULES: PREPARED FOR CONSIDERATION BY THE HOUSE COMM. ON RULES, 96TH
CONG., 2D SESS. 26-47 (Comm. Print 1980).
"For the 1983 attempt concerning William Clark, see 129 CONG. REC. S16565-71
(daily ed. Nov. 17, 1983); and for the AID Administrator, see Fisher, supra note 13, at
25-26.
276 ADMINISTRATIVE LAW REVIEW
haus in 1983,148 and of FBI Director Webster in 1978,149 demonstrate
that there are circumstances and conditions, albeit rare, that permit
committees to be insistent about obtaining certain commitments from
them.
Increased judicial involvement may serve as a means of improving
controls over executive action indirectly. Congress may enact legisla-
tion to ease standing to bring civil suits against an official action, grant
broader review powers to Federal courts, or, in narrow areas, even
establish new lower courts with the authority to rule directly on re-
quests for planned or proposed action.
Some comprehensive regulatory reform bills include new judicial
review procedures, as with the so-called Bumpers' Amendment; 150 and
the Foreign Intelligence Surveillance Court, operating under a 1978
enactment, is empowered to issue (or withhold) warrants for certain
electronic surveillance operations requested by the Attorney
General. 151
Offices of inspector general may be given statutory authority to halt
certain executive actions or projects and indirectly implement congres-
sionally determined controls. Although none of the current 18 statu-
tory IGs possesses such power, a former inspector general (for Foreign
Assistance) did hold "authority to suspend all or any part of any project
or operation (but not a country program)" that the office was inspect-
ing, auditing, or reviewing.¹⁵²
¹⁴⁸Supra note 124. As a follow-up, EPA Administrator Ruckelshaus has reportedly
fulfilled one prominent pledge, by making "significant revisions" in the water-quality
rules proposed by his predecessor. Washington Post Nov. 1, 1983, at A9.
149S. REP. No. 14, 95th Cong., 2d Sess. (1978).
¹⁵⁰The major current bills containing the Bumpers' Amendment, calling for de novo
judicial review of rules and regulations, are H.R. 220, H.R. 2327, and S. 1080, 98th
Cong., 1st Sess. (1983).
15150 U.S.C. § 1804 (1976 & Supp. V 1981).
15222 U.S.C. § 2384 (1976). For a discussion of the Inspector General for Foreign
Assistance, current inspectors general, and their relationship with Congress, see No-
votny, The IGs-A Random Walk, 12 THE BUREAUCRAT 35-9 (Fall, 1983); Tiefer, The
Constitutionality of Independent Officers as a Check on Abuses of Executive Power, 63 B.U.L.
REV. 59-103 (1983); and Fountain, What Congress Expects from the New Inspectors General,
28 Gov'T. ACCT. J. 8-13 (1979).
Volume 112 Number 110 - Page 1117
June 6, 1984
THE DAILY WASHINGTON
Law Reporter
Established 1874
D.C. Superior Court
transmitted to Congress. On September 9. 1981.
D.C. Superior Court
the House of Representatives timely exercised
CONSTITUTIONAL LAW
this power, passing a resolution disapproving of
ADOPTION
LEGISLATIVE VETO
the Sexual Reform Act. H.R. Res 208, 97th
SURROGATE MOTHER
Cong., 1st Sess. (1981). Relying on the propriety
Invalidation of unicameral veto provision also
of this "veto," neither Congress, the City Coun-
Motion to dispense with investigation. report and
serves to invalidate D.C. City Council's authority
ci) nor the United States Attorney's Office had
interlocutory decree is denied in case involving
over local criminal law.
any reason to believe that the Sexual Reform
surrogate mother.
Act's repeal of $2801 went into effect. Instead.
UNITED STATES V. COLE, D.C.,
those prosecuted for sexual offenses in the
IN RE: PETITION OF R.K.S. FOR ADOP-
Crim. No. F-5111-82. May 9, 1984 Openion per
District continued to be charged under prior ex-
TION. Sup.Ct.. D.C., Fam. Div. No.
Donald S. Smith. J.
isting law.
April 13. 1984. Opinion per Salzman. J.
DONALD S. SMITH, J.: This matter is before
On June 23. 1983. however. the Supreme
the Court on defendant's motion to arrest judg.
Court decided INS V. Chadha In that case. the
SALZMAN, J.: This adoption proceeding
comes before the Court on the petitioner's me-
ment following his conviction for Carnal
Court found that efforts by Congress to retain
tion under 16 D.C. Code Sec. 308(2) (1981) to
Knowledge. Defendant's sole contention is that
control over delegations of legislative power.
dispense with the investigation, report and in-
the statute under which he was indicted. tried
through the use of negative resolutions by one
terlocutory decree: The statute gives the Court
and convicted. D.C. Code 22-2801 (1981). was
House, violate the Presentment Clauses. Art. 1,
discretion to do SO where the prospective
effectively repealed prior to the initiation of pro-
$7. cls. 2. 3. and the bicameralism requirement.
adoptee is a minor and "the petitioner is a spouse
ceedings against him by $13(a) of the District of
Art. 1. of the Federal constitution. The Court
of the natural parent of the prospective adoptee
Columbia Sexual Assault Reform Act of 1981
held that the only correct method by which Con-
and the natural parent consents to the
(D.C. Act 4-69) hereinafter referred to as Sexual
gress may disapprove of actions taken pursuant
adoption."
Assault Act].2
to properly delegated authority is through the
This adoption petition was filed February 6.
enactment of legislation; to wit, the passage of a
1984. It alleges that petitioner's husband is the
1.
bill by a majority of both Houses of Congress
natural father of the prospective adoptee, that
Svlvester E. Cole was indicted on January 12,
followed by presentment to the President. See
the child has resided with the petitioner since his
1988 and charged with one count of Kidnapping
103 S.Ct. at 2787.
birth on June 18. 1983, and that his natural
under D.C. Code 22-2101. two counts of Rape
In the present case, it is uncontested that the
mother is M.P., "whose residence and address
under D.C. Code 22-2801, and two counts of
provision used by the House of Representatives
are unknown to the petitioner.'
Carnal Knowledge under D.C. Code 22-2801.
to strike down the Sexual Reform Act.
Papers filed with the adoption petition
Trial was held before a jury and on December 12.
(602(c)(2), is exactly that type of "legislative
disclose, however, that this is not the usual Cir-
1983 defendant was found guilty of one count of
vete" prohibited by Chudha. Instead, the only
cumstance of one spouse seeking to adopt the
Carnal Knowledge
issues which face this Court are: 1) Whether
other's natural child. Rather, this is a "surrogate
On December 19, 1983. prior to sentencing.
Chadha's prohibition against the use of
mother" situation. Petitioner's husband entered
defendant filed the present motion. On February
legislative vetoes applies in the unique context of
into a $25,000 contract with "Miracle Pro-
13. 1984. due to the nature of the issues raised.
legislation involving the District of Columbia?;
gram, Inc.," a Maryland corporation and "sur-
this Court granted the District of Columbia's
and, 2) If Chudha does apply. how would that
rogate mother service." Pursuant to that con-
motion to intervene and on March 16. 1984 oral
finding affect both the status of the Sexual
tract, Miracle Program arranged for Mrs. P. to
arguments were held.
Reform Act and the defendant's conviction?
be artificially inseminated with petitioner's hus-
The validity of defendant's argument rests
The Court addresses each question in turn.
band's sperm. Mrs. P., the "surrogate mother."
upon the effect to be given (602(c)(2) of the
had contracted with Miracle Program for a
District of Columbia Self-Government and
II.
$10.000 fee to bear petitioner's husband's child
Governmental Reorganization Act [hereinafter
By the express terms of the Constitution, Con-
and to surrender custody of the infant at birth to
referred to as Home Rule Act]. in light of the re-
gress has the power to "exercise exclusive
petitioner's husband. He in turn agreed to
cent decision in INS V. Chudha 103 S.Ct. 2764
Legislation in all Cases whatsoever. over such
become legally responsible for the child's care
(1983).3
District
as may, by Cession of particular
and support. Mrs. P.'s child is the prospective
Section 602(c)(2) allows either House of Con-
States, and the Acceptance of Congress. become
adoptee in this case and this child is in
gress to pass a resolution negating any act of the
the Seat of Government of the United States
petitioner's husband's custody under the con-
District of Columbia City Council. affecting
Art. I $8, cl. 17.
tractual arrangement just described.
Titles 22, 23 or 24 of the District of Columbia
At first glance. it might be tempting to argue
Because this is apparently one of the first-if
Code. within thirty days after such act is
that the word "exclusive" in the above clause
not the first-"surrogate mother" adoption case
serves two purposes; that it not only describes
to come before it, the Court set the matter down
1. $22-2801 reads as follows
the scope of Congress' power but also the means
for hearing and requested the Corporation
Whoever has carnal knowledge of a female foreibly and against
by which such power shall be exercised. To
Counsel to appear as amicus curiae. 2 After hear-
her will or whoever carnally knows and abuses a female child
engage in this temptation, however, is to ignore
(Cont'd. on P. 1120 Mother)
under 16 years of age, shall be imprisoned for any term of years
FT for life
both the plain meaning and past interpretation
of cl. 17.
1. The contract provided that $10,000 would be paid to Mrs. P.
2 $13(a) of the Sexual Reform Act reads as follows:
Sections 808, 818, 871, 873. and 874 of an Act to Establish a
The wording of the clause is clear and unam-
and the balance would be dispersed by Miracle Program for
medical expenses, psychological and medical evaluations,
Code of Law for the District of Columbia. approved March 3.
biguous. It states that Congress, as opposed to
counselling. legal fees, administrative costs, maternity clothing
1901 (31 Stat. 1332; D.C. Code. Secs. 22-2801 -2304 -3002.
any other entity, has the exclusive power to
allowances. transportation costs and insurance.
-3001 & -301 are repealed.
legislate in regard to District affairs. It does not
2. The Court did SO after determining. pursuant to 16 D.C.
a. The present form of (602(c)(2) reads, in relevant part. as
say, nor make provision for. Congress to enact
Code Sec. 311 (1981). that the child's welfare will be promoted
follows
such legislation free and clear of those restraints
with the aid of such counsel and that the petitioner's papers and
In the case of any such act transmitted by the Chairman with
carefully prescribed in the Constitution.
records of this proceeding may be inspected by the Corporation
Counsel.
respect to any act codified in Title 22, 23, or 24. such act shall
This position is made unequivocal by examin-
take effect at the end of the 30-day period beginning on the day
ing the placement of cl. 17 in $8 of Art. I. Section
TABLE OF CASES
such act is transmitted by the Chairman to the Speaker of the
House of Representatives and the President of the Senate only
8 lists seventeen separate areas in which the
if during such 30-day period 1 House of Congress does not
power of Congress to act was made explicit.
D.C. Superior Court
adopt 6 resolution disapproving such act D.C. Code $1-233
In Re: Petition of R.K.S. for Adoption
1117
(1981)
(Cont'd. on p. 1120 Veto)
United States V. Cole
1117
1120
THE DAILY WASHINGTON LAW REPORTER
The Young Lawyers Section of the
REAL ESTATE SALES
rant a full investigation into the circumstances of
Bar Association of the District of Columbia
the proposed adoption, including a careful in-
proudly presents
WE SELL
quiry into the background of the surrogate
mother, child, and prospective parents. under 16
D.C./MD. ESTATE PROPERTY
D.C. Code Sec. 307.
METROPOLITAN AREA STATUTES
Accordingly. it is this 13th day of April, 1984.
Second Edition
FRANK EMMET
ORDERED that petitioner's motion to
Real Estate, Inc.
882-8303 (04)
dispense with the investigation. report and in-
Edited by Cory M. Amron, Jason R. Baron
terlocutory decree is denied: and it is
and N. Lynn Hiestand
FURTHER ORDERED that the Corporation
Local questions should have one basic answer
that the prospective adoptee was born in
Counsel is appointed amicus curiae and shall in-
wedlock. There is a legal presumption (albeit a
Unfortunately, in a multi-jurisdictional D.C
vestigate the legal ramifications of the prospec-
rebuttable one) in Maryland 4 as well as the
practice. there are often three
tive adoption and report the results of that in-
District of Columbia 5 that such a child is the off-
METROPOLITAN AREA STATUTES at last
vestigation to the Court and the petitioner in 30
provides an easy means to identify and untangle
spring of the married parents. While the
days. In addition to any other matters thought
unsworn documents filed with this case suggest
potential legal conflicts before they become a
relevant by amicus. the Court wishes to be advis-
that petitioner's husband and not Mr. P. is the
problem by providing a ready comparison of the
ed of the following:
father of the prospective adoptee, that evidence
laws of the District of Columbia. Maryland and
1. Is Miracle Program. Inc., a child placing
is not conclusive. Confirmation of parentage.
Virginia that are of general interest to area prac-
agency licensed by the District of Columbia or
however, is now easily attainable by the relative-
titioners including, to name a few: Corporations:
any state?
Family Law: Litigation (Civil and Criminal); Pro-
by simple medical procedure known as the human
2. Is Miracle Program, Inc., a profit or non-
perty Law.
leukocyte antigen (H.L.A.) test.6 Such tests are
profit corporation?
not merely for convenience but a matter of
3. Has Miracle Program, Inc., performed
The manual represents the cumulative efforts
reasonable prudence. There have been reported
psychological and medical evaluations of the
of numerous area attorneys in updating the
occasions when procedures such as those pur-
natural mother, and if so, have the petitioner and
original edition published over ten years ago as
portedly followed under the contract for sur-
her husband seen the results?
the Lawyers Reference to Statutes of the
rogate motherhood in this case have in fact not
4. Is there evidence of record sufficient to
Metropolitan Area. The second edition keeps the
been followed with the result that the child was
rebut the presumption that a child born during
original's informational format but is completely
not that of the purported natural father but of
marriage is the offspring of the husband and
reworked to provide a contemporary and easy-
the surrogate mother's husband.7 Any such
wife?
to-use reference tool.
possibility should be set to rest. First, the child's
5. Should the Court require that Mr. and Mrs.
In short. METROPOLITAN AREA
genetic makeup may affect his health and
P. and petitioner's husband submit to H.L.A.
STATUTES is a must for your library.
predisposition to certain illnesses. It is obviously
testing in aid of establishing adoptee's paterni-
The manual, approximately 200 pages long,
in the child's best interest that his custodians be
ty?
will be available toward the end of June, 1984.
fully apprised of his background.
6. Is the natural mother's "Direction and
Prepublication orders are now being taken at a
Second. if the prospective adoptee is not in fact
Release by Surrogate Mother and Surrogate
price substantially below the postpublication
petitioner's husband's natural child, petitioner's
Mother's Husband" sufficient evidence of her
price, but please make sure your order is receiv-
right to adopt him is problematic. The Court
consent to adoption under 16 D.C. Code Sec. 304
ed in the Bar Office no later than June 15, 1984.
notes in this regard the absence from the papers
(1981)?
Special Prepublication Price-$30.00 (plus $1.80
supporting the petition of any consent by Mrs. P.
7. Does the natural mother's surrendering of
to the adoption of her child.8 Violations of
D.C. sales tax & $2.00 postage and
her child to petitioner's husband under the condi-
District of Columbia and Maryland laws might
handling)-Total: (orders received on or before
tions described constitute "abandonment" under
also be involved in such circumstances. Since, as
June 15. 1984) $33.80.
16 D.C. Code Sec. 304(d) in light of the entire
previously mentioned. the question of the child's
transaction?
Postpublication Price-$40.00 (plus $2.40 D.C.
parentage is now easily confirmable, the Court
8. Are the "surrogate mother" procedures
sales tax & $2.00 postage and handling)-Total:
sees no reason why an appropriate H.L.A. test
followed in this case in conformity with the laws
(orders received after June 15, 1984) $44.00.
should not be performed prior to adoption in this
of the District of Columbia and Maryland?
For copies of the manual, send check, payable to
case if one has not already been done. Moreover,
It is
the Young Lawyers Section to: Young Lawyers
notwithstanding petitioner's representation that
FURTHER ORDERED that the District of
Section. 1819 H. Street, N.W. #300.
the whereabouts of the natural mother are
Columbia Department of Human Services be and
Washington, D.C. 20006.
"unknown." the nature of the arrangement sug-
hereby is directed to make a thorough investiga-
gests that this information should be ascer-
tion for the purpose of ascertaining if the
tainable with little difficulty. 10
adoptee is a proper subject for adoption and if
MOTHER
Nothing in this memorandum should be
the home of the petitioner is a suitable one for
(Cont'd. from P. 1117)
understood as questioning the good faith of the
the adoptee, and to report to the Court within a
petitioner and her husband in using the "sur-
ing argument from petitioner's counsel and the
period of not in excess of ninety days its findings
rogate mother" procedure in obtaining custody
Corporation Counsel. the Court exercised its
and recommendations.
of the prospective adoptee. In this Court's judg-
discretion to deny petitioner's motion to
ment, however, the considerations outlined war-
VETO
dispense with the investigation and report.
The Court had a number of reasons for this ac-
(Cont'd. from p. 1117)
4. Art. 16 Code Ann.Sec. 66F(b) (1981)
tion. First, because this is a matter of first im-
These include such diverse powers as the ability
5. 16 D.C. Code Sec. 909(a)(1) (1981).
pression, the Court believes the legal as well as
to regulate commerce, borrow and coin money.
the factual ramifications of the adoption should
6. See Cutchember V., Payne. 466 A.2d 1240 (D.C. 1983).
collect taxes and declare war. Yet. in none of
be fully explored. It is noted that "surrogate
7. See, Wadlington. Artificial Conception: The Challenge for
these areas has it ever been seriously contended
Family Law. 69 Va.L.Rev. 465 at 476. n.48 (1983)
mother" adoption procedures have been held in-
that Congress might avoid the Constitution's re.
8. Mr and Mrs. P signed a "Direction and Release by Sur
valid in other jurisdictions.³
regate Mother and Surrogate Mother's Husband.' consenting to
quirements for the passage of legislation.
Moreover, while the papers filed with the court
surrendering their custodial rights of the child to the child's
In Chadha, the Court made it clear that these
represent that petitioner's husband is the father
biological father. No document is presented however. consent
réquirements not only apply to direct legislation
of the child. they do not conclusively establish
ing to the adoption of the child.
regarding 18 powers, but to delegations of such
that fact. Those papers also indicate that the sur-
Petitioner's counsel argues that Mrs. P. has "abandoned" her
power as well. Faced with a challenge to the
child to petitioner and petitioner's husband In light of the actual
rogate mother was married and apparently liv-
arrangements described. supro the Court is doubtful that the
delegation of the power of Congress under the
ing with her husband at the time in question and
term abandonment is appropriate to the circumstances of this
naturalization clause. Art. I, $8, cl. 4. the Court
case
stated: "It is not disputed that this choice to
3. E.g.. Dor V. Kelley 106 Mich.App. 169, 307 N.W.2c 438
9. E.g. 32 D.C. Code Sec. 1005 (1981) (no placing of children
delegate authority is precisely the kind of deci-
(1981): Surkowski V. Appleyard. 9 Fam.L Rep. (BNA) 2260
for adoption permitted except by licensed child-placing agency):
sion that can be implemented only in accordance
(Mich.App. Jan. 19, 1983): Op. Ky.Atty.Gen. No. 81-18 (1981).
Art. 88A. Md Code Ann. Sec. 20(b)(2) (1981) (placing of child by
with the procedures set out in Art. I
parent permitted only after petition for adoption filed with court
and court's issuing order consenting to same): 32 D.C. Code Sec.
bicameral passage followed by presentment to
A classified ad in The Daily
1011 (1981) and Art. 16, Md. Code Ann. Sec. 85 (1981) (no fees
the President." 103 S.Ct. at 2786.
for placing child except by non-profit, licensed child-placing
Instead, the Court posited that the Founding
agency): 32 D.C. Code Sec: 1009 (1981) and Art. 88A. Md. Code
Washington Law Reporter
Fathers rarely, and then only in the most unam-
Ann Sec. 31 (1981) (penalties for violating requirements for plac-
ing children for adoption).
biguous of terms, created exceptions to the nor-
mal requirements for the passage of legislation.
brings quick results
10 The surrogate mother contract requires Mrs. P. to provide
Miracle Program with any change of her home, employment ad-
Indeed, the Court was able to find "but four pro-
dress or telephone number
visions in the Constitution
by which one
use may act alone with the unreviewable
District, the Court has nevertheless been careful
The plenary authority of Congress over aliens
ce of law, not subject to the President's veto."
to assert that the Federal constitution must
is not open to question, but what is
3 S.Ct. at 2786. The four provisions are:
always guide Congress' actions. See Paimore,
challenged here is whether Congress has
411 U.S. at 397 Congress may exercise within
chosen a constitutionally permissible means of
(a) The House of Representatives alone was
the District all legislative powers that the
implementing that power. As we made clear in
riven the power to initiate impeachments. Art.
( 2, cl. 6:
legislature of a state might exercise within the
Buckley V. Valeo. 424 U.S. 1 (1976); "Congress
State
(b) The Senate alone was given the power to
SO long as it does not contravene any
has plenary authority in all cases in which it
provision of the constitution of the United
has substantive legislative jurisdiction,
conduct trials following impeachment on
States.' Capital Traction Co. V. Hof. 174 U.S. 1,
l'Culloch V. Maryland. 4 Wheat 316 (1819), SO
charges initiated by the House and to convict
following trial. Art. 1, $3. cl. 5;
5 (1899)"); Thompson. 346 U.S. at 109 ("[T]here
long as the exercise of that authority does not
(c) The Senate alone was given final
is no constitutional barrier to the delegation by
offend some other constitutional restriction.'
unreviewable power to approve or to disap-
Congress to the District of Columbia of full
Id., 424 U.S., at 132.
prove presidential appointments. Art. Il, $2.
legislative power, subject of course to constitu-
103 S.Ct. at 2779.
31. 2:
tional limitations to which all lawmaking is
subservient
"); O'Donoghue, 289 U.S. at 541
That the Court in Chadha. as the above quota-
(d) The Senate alone was given unreviewable
power to ratify treaties negotiated by the
("The mere cession of the District of Columbia to
tion illustrates, necessarily meant its holding to
President. Art II, $2. cl. 2.
the Federal government relinquished the
extend to all exercises of legislative authority is
authority of the States, but it did not take it out
made even more clear by examining the tortured
3 S.Ct. at 2786.
of the United States or from under the aegis of
results of those attempts to create artificial ex-
It is clear. then, that the word "exclusive." if it
the Constitution.").
ceptions to applicability. In McIntosh, it is stated
not surplusage, serves a purpose other than
Given these expressions, this Court is con-
that "Congress, in exercising its plenary powers
at of granting Congress sole power over the
over the District of Columbia, may eschew" the
strained to rule that the holding of Chadha ap-
strict of Columbia. Fortunately, we need not
Presentment Clauses and bicameralism require-
plies in the present case. As stated earlier, the
ment of Art. 1. McIntosh at 12; See also Langley
sort to conjecture in this regard. for the
Founding Fathers knew how to exclude grants
at 5, 7. Yet, if this claim be true, then Congress.
story of el. 17 clearly reveals the intention
of Congressional power from the normal limita-
hind its existence.
acting alone. and free of the President, would
tions on the passage of legislation. See 103 S.Ct.
Inasmuch as the new seat of the Federal
have complete authority to "legislate" on mat-
at 2786. Yet, they failed to do SQ when
wernment was to be created from lands ceded
ters affecting the District. 4 In effect, the Presi-
delineating the scope of such power in regard to
dent would be reduced to the role of an in-
States already in existence, it was necessary
the District of Columbia. Therefore, inasmuch as
terested. but impotent. party. Even his
at jurisdiction over such area be clearly
the Court in Chadha was concerned with the pro-
-lineated. As Madison stated:
signature on the Home Rule Act would be
cess and not the scope of legislation, See 103
nothing more than a gratuitous adornment.¹
S.Ct. at 2779, the holding in that case necessari-
Without it not only the public authority might
Quite simply. this position is untenable.
ly must apply to all exercises of legislative power
be insulted and its proceedings interrupted
To remove the power of the Executive from
not specifically exempt from the presentment
with impunity, but a dependence of the
and bicameralism requirements of the Constitu-
the process of enacting legislation affecting the
members of the general government on the
tion.
District poses two dangers. First, while it is true
State comprehending the seat of the govern-
that Congress is often compared to a State
ment for protection in the exercise of their du-
In reaching this result, the Court has carefully
legislature when it deals with District affairs, it
ty might bring on the national councils an im-
considered the recent holdings by two Judges of
should be noted that "[t]he object of the grant of
putation of awe or influence equally
the Superior Court in United States V, McIntosh.
exclusive legislation over the district was
na-
dishonorable to the government and
F4892-83, memo. op. (D.C. Super. March 27,
tional in the highest sense. and the city organiz-
dissatisfactory to the other members of the
1984) (Shuker, J.) and United States V. Langley,
ed under the grant became the city, not of a
Confederacy.
F3666-82. memo. op. (D.C. Super Ct. March 28.
state, not of a district, but of a nation.
1984) (Moultrie, C.J.), which also dealt with the
he Federalist No. 43, at 272 (J. Madison) (Men-
Donoghue 289 U.S. at 539-40 (quoting
applicability of the Chadhu decision to legislation
Grether V. Wright, 75 F. 742. 757 (6th Cir.
ed. 1961). Or, as the Supreme Court more
affecting the District. As demonstrated above,
accinetly expressed the proposition: "[I]t is
the holding in Chadha compels this Court to a
4. The intervenor. the District of Columbia. has unambiguous
from the history of the provision that the
contrary result.
ly adopted this position, See Response of Intervenor District of
ord exclusive was employed to eliminate any
In both Langley and McIntosh the holding in
Columbia to the Constitutional Issues Raised in Cole's Motion to
ossibility that the legislative power of Congress
Arrest Judgment at 4 (D.C. Super Ct. filed January 27, 1984). In
Chadha was viewed as not applying to the
deed. it has gone so far as to state that "Congress may wholiy ex
the District was to be concurrent with that
District due to the unique nature of Congress'
clude the President from any role with respect to the local
the ceding states. See The Federalist. No. 43:
plenary power under Art. I, $8, cl. 17. See McIn-
government. in a way that could not be done with respect to na
Elliott's Debates (2d ed. 1876), pp. 432-433; 2
tosh at 6, 8; Langley at 5-8. This view ignores,
tional affairs." Memorandum of Points and Authorities in Sup
Commentaries on the Constitution of the
however, that Chudha also dealt with a plenary
port of Motion of Defendants District of Columbia Marion S
States (4th ed. 1873), $1218." District of
Barry, Jr., Margurite C. Stokes John Touchstone and Maurice
power of Congress under Art. 1, $8, that of
Turner to Dismiss Plaintiffs' Second Amended Complaint or ID
olumbia V. Thompson Co., 346 U.S. 100, 109
establishing uniform rules of naturalization. Art.
the Alternative for Summary Judgment at 57, Drmond %
I, $8, cl. 4. Yet, in taking note of this power, the
Instrict of Columbia. Civil Action No. 83-1938 (D.C.D.C. filed
This. of course, is not to say that the relation-
Court in Chadha, unlike the Courts in Langley
December 29. 1983),
of Congress to the District is not excep-
and McIntosh. did not focus on a differentiation
5. It is stated in Langley that: "It is clear that Congress, by
Due to the unique status of the Federal
between Congressional authority which is exer-
legislation presented to the President, may constitutionally
establish a system of local governance that does not involve the
apital, Congress not only continues in its role as
cised locally as opposed to nationally, nor upon
President
Langley at 7 (emphasis added).
Federal legislature, it also assumes a rule
power which is plenary as opposed to that which
Aside from placing the Court in the position of attempting to
nalogous to that of a State government in
is qualified. Instead. the Court was concerned
have it both ways (the President's signature is not necessary, but
egard to one of its municipalities. See Pulmore
solely with the proper exercise of legislative
if it is given, it signals approval), this position was rejected in
United States, 411 U.S. 389, 397 (1973):
Chadha. There the Court stated: "The assent of the Executive
authority no matter what its scope or source.
istrict of Columbia V. Thompson Co., 346 U.S.
to a bill which contains a provision contrary to the Constitution
In Chadha. the Supreme Court expressed this
does not shield it from judicial review." 103 S.Ct. at 2779 n.13
108 (1953); O'Donoghue V. United States.
proposition as follows:
(citations omitted)
U.S. 516. 539 (1933). Thus, in dealing with
District, Congress is permitted to legislate
in a manner with respect to subjects that would
xceed its powers, or at least would be very
Our appeal is your appeal.
nusual. in the context of national legislation
Briefs
Records
nacted under other powers delegated to it
Appendices
Art. I, $8." Pulmore, 411 U.S. at 398 (cita-
U.S.A.
:
800-5 APPEAL
omitted).
D.C.
:
202-783-7288
It cannot be over emphasized, however, that
N.J.
unique status only extends itself to the
:
201-257-6850
efinition of the scope of Congress' power. It
Lappellate
not grant Congress a special license to
rinters.ine. Carry Building. 927 15th Street, N.W.
nort-circuit the Constitution simply because it is
within the boundaries of an otherwise im-
Washington, DC 20005
ermissible zone.
Other offices in PA, NJ, NY. MD. VA. MA
This view has been expressed time and again
When It comes to appellate matters
We make matters easy.
the Supreme Court. While taking note of the
pecial relationship of Congress in regard to the
1896)) Given this national interest. to now claim
to relieve Congress of the burden of legislating
that the President plays no part in these affairs
PROFESSIONAL
upon essentially local matters." McIntosh V.
would be to exclude from this area of legislative
Washington, 395 A.2d 744. 753 (D.C. 1978). the
endeavor the one branch of government which is
REASONABLE
delegation of such authority was explicitly made
elected by the nation as a whole and who. as a
"[s]ubject to the retention by Congress of the
result. best assumes a national perspective. Ser
OVERNIGHT
ultimate legislative authority over the nation's
103 S.Ct. at 2782-83.
capital granted by article 1, 18 of the Constitu-
Of even greater concern, however, is that the
LEGAL SERVICES
tion
D.C. Code (1-20] (1981).
above position would also remove that most
This concern for the protection of the Federal
salutary of checks upon the excesses of an
government has roots as deep as the existence of
untethered legislature; the Presidential veto. See
PHONE: (202) 966-8100
the District of Columbia itself. Indeed. the im-
103 S.CL at 2782. This result would leave the
petus for the creation of a special federally con-
citizens of the District subject not only to a
trolled area in which to house the nation's capital
legislature they did not elect. but one totally free
had its origin in a concern for security:
of any restraint on its authority. While the
Filing Court Papers
former condition is necessitated by the special
According to the records of the Constitu-
Subpoena and Courier Service. etc.-
federal interest in preserving the national
tional Convention. the Founding Fathers
character of the capital. the latter condition
sought the establishment of a federally con-
stands barren of any rationale.
severability will rarely turn on the presence or
trolled permanent set [sic] of government
"The decision to provide the President with a
absence of such a clause." Rather, the question
separate from the jurisdiction of any State or
limited and qualified power to nullify proposed
is whether Congress would have enacted the
locality in order to protect national officials
legislation by veto was based on the profound
remainder of the statute without the un-
from potential harassment. coercion, or ar-
conviction of the Framers that the powers
constitutional provision. We do not view the
bitrary arrest by local courts and law enforce-
conferred on Congress were the powers to be
imposition of any unspecified burden of per-
ment officials. There was, moreover. a relue-
most carefully circumscribed.' 103 S.Ct. at
suasion on either side as beneficial to the in-
tance to rely on local officials for protection
2782 It would be a strange thing indeed if these
quiry.
from potential mob violence or attempts by
same Framers did not believe that this check on
groups of persons to interfere with or other.
218 U.S.App.D.C. at 51, 673 F.2d at 442; See
legislative authority should not apply with equal
wise harass or impede the conduct of the
also Carter V. Carter Coal Co., 298 U.S. 238, 312
force to matters concerning the governance of
Federal Government's constitutionally
(1936) ("[U]nder either rule, the determination
the nation's capital.
prescribed duties. This concern stemmed from
is reached by applying the same test-name-
Therefore, for the reasons stated above, the
an incident which occurred on June 21. 1783.
ly, What was the intent of the lawmakers?").
Court holds that (602(c)(2) of the Home Rule Act
involving the Continental Congress and
In any case, the legislative history of the Home
is unconstitutional and that, as a result. the Con-
mutinous Revolutionary Army troops not yet
Rule Act speaks clearly enough that any
gressional attempt to negate the Sexual Reform
deactivated. On that date from 80 to 250 arm-
presumption as to the legislators' intent is un-
Act was invalid.
ed troops-accounts vary on the number-
necessary.7 For unlike the situation posed in
marched on and surrounded Independence
Chadha and Consumer Energy. where the courts
III.
Hall in Philadelphia where the Continental
found that there was little debate as to the role
Congress was in session. These troops had.
This finding does not end the inquiry. however,
of Congressional oversight in the passage of the
disobeying orders of their officers. come to
for when a limitation on a power is found to be
challenged statutes. See 103 S.Ct. at 2775; 218
Philadelphia to petition the Congress for many
invalid. it must be determined whether the
U.S.App.D.C. at 51-53. 673 F.2d at 442-44, Con-
months of pay due them. The troops were
creators of such power would have allowed the
gress in debating and amending the Home Rule
intoxicated. leaderless. and threatening to the
grant of authority to exist absent the restraint.
Act demonstrated that it viewed the issue of
assembled Members of Congress who had bar-
See INS V. Chadha. 103 S.Ct. at 2774: Consumer
federal retention of power as a vital part of any
red the doors and shutters of the Legislative
Energy Council V. FERC. 218 U.S.App.I 34,
plan to delegate authority over the criminal
Chamber. Congress requested police or militia
49. 673 F.2d 425, 440 (1982), uff'd sub nom. Pro-
code.
protection from the Pennsylvania authorities.
cess Gus Consumers Group V. Consumer Energy
Throughout the debates on the various Home
but such protection was denied. By evening
Council of America. 103 S.Ct. 3556 (1983). In
Rule bills, members of both Houses of Congress
the mutinous troops retired to their barracks
the context of the present case. this requires a
made it plain that they viewed themselves as
and the Congress voted immediately to move
determination of whether Congress would have
engaged in a process of compromise involving
to Princeton where local authorities promised
granted the City Council the power to alter the
two competing interests. On the one hand. they
protection from such an incident. This example
District's criminal code without the oversight
wished to grant to the citizens of the District all
was brought to the attention of the Delegates
mechanism provided by (602(c)(2).
the rights of self-determination traditionally
to the Constitutional Convention in 1787 and
In making this determination. this Court notes
employed by citizens of the United States.
aided in carrying the argument for the "ex-
that the Home Rule Act lacks a severability
Balanced against this, however, was their con-
clusive legislation" clause of article 1, section 8
clause to prevent an invalid provision, such as
cern over the preservation of the unique national
establishing a seat of government under the
(602(c)(2). from affecting the rest of the statute.
role that the Federal capital was created to
ultimate jurisdiction of the Federal Govern-
However, it is also noted that there is a great
fulfill.8
ment.
deal of confusion as to whether a presumption
In present times. it is perhaps easy to forget
can be drawn. one way or another. from the lack
that the preservation of the latter interest was
Legislative History at 2797-98 (statement by
of such a clause. Regarding this confusion. the
viewed as a precondition to the indulgence of the
Sen. Mathias). See also Id. at 1605: Congres-
Court adopts the view set forth in Consumer
former. While it is true that "the core and
sional Research Service, Library of Congress,
Energy:
primary purpose of the Home Rule Act
was
The Constitution of the United States at 352
(1973).
We think the question where the presumption
7. Home Rule for the District of Columbia: Background and
This concern for security not only continued to
lies is mostly irrelevant, and serves only to
Legislative History of H.R. 9056. H.R. 9682 and Related Bills
exist in 1973, it also specifically included the
obscure the crucial inquiry whether Congress
Culminating in the District of Columbia Self-Government and
substance of the city's criminal code. As will
would have enacted other portions of the
Governmental Reorganization Act. House Comm. Print 93
Cong., 2d Sess. (1974) [hereinafter referred to as Legislative
presently be shown. at all three major stages of
statute in the absence of the invalidated provi-
History].
the Home Rule Act's development, in the House.
sion. This is fully in accord with United States
8. These two concerns were mentioned time and time again.
the Senate and at Conference. Congress re-
V. Jackson. [390 U.S. 570, 585 N.27 (1968)], in
often in the same sentence. by those members of the House of
quired that stringent safeguards by attached to
which the Supreme Court refused to place
Representatives who spoke during the floor debate of H.R. 9682.
any delegation of power over this vital area.
significance on the absence of a severability
See Legislative History at 2106 (statement of Rep. Diggs): Id. at
This requirement was first made evident when
clause: "[W]hatever relevance such an explicit
2114 (statement of Rep. Adams): Id. at 2120 (statement of Rep.
Neisen): Id. at 2153 (statement of Rep. McKinney): Id. at 2156
the House of Representatives Committee on the
clause might have in creating a presumption of
(statement of Rep. Broyhill): Id. at 2167 (statement of Rep.
District of Columbia revealed the content of its
severability
the ultimate determination of
Gude): Id at 2168 (statement of Rep. Fauntroy): Id. at 2174
proposed bill. H.R. 9682, to the House Rules
(statement of Rep. O'Neill); Id. at 2176 (statement of Rep.
6 This test was approved by the Supreme Court in Chadha
Committee for the purpose of setting the terms
Mann): Id. at 2189 (statement of Rep. Mazzoli). Id. at 2191 (state-
There, the Court stated
ment of Rep. Stark): Id. at 2194 (statement of Rep. Whalen): Id.
for the upcoming floor debate. At that time. the
Only recently this Court reaffirmed that the invalid portions of
at 2216 (statement of Rep. Cleveland): Id. at 2218 (statement of
proposed bill divided the authority of the City
a statute are to be severed Tulnless it is evident that the
Rep. Tiernan). In at 2220 (statement of Rep. Mink). See aiso Id.
Council into two spheres. Certain areas such as
Legislature would not have enacted those provisions which are
at 1746 (statement of Rep. Diggs).
the organization, administration and jurisdiction
within its power. independently of that which is not. Buckley
Statements by members of the Senate during the much
of the courts, were totally isolated from Council
shorter debate of S. 1435. reflect the same concerns. See Id, at
V. Valea 424 U.S. 1, 108 (1976). quoting Champlin Refining
2755 (statement by Sen Eagleton): Id at 2758 (statement of Sen
authority. See Legislative History at 1316
Co. V. Corporation Comm 286 U.S. 210. 234 (1932).
Mathias): Id at 2760 (statement by Sen. Scott): Id. at 2761-62
(§602(a)(4)). All other areas, including the
103 S.CL at 2774.
(statement of Sen Beall).
criminal code, were subject solely to Congress'
ultimate power to enact overriding legislation.
23. and 24, of the D.C. Code-the Criminal
not be confused with any disparity as to motiva-
legislative History at 1315 ($601).4
Code.
tion. As was true with the House of Represen-
In reviewing these provisions. a member of the
tatives, the Senate wished to strike a balance
Rules Committee. Congressman Latta of Ohio.
Legislative History at 2084-85
between the delegation of what it viewed as
raised several questions. The following colloguy
As was made clear in subsequent debate. this
cumbersome duties and the protection of the na-
took place:
removal of authority over the criminal code and
tional interest in the security of the Federal
the changes proposed by the other amendments.
Mr. Latta: One further question.
capital. As the Report of the Senate Committee
were the product of a realistic reappraisal of
I think we ought to nail this down because I
on the District of Columbia expressed this pro-
what guarantees would be necessary to convince
think every citizen in the District of Columbia
a majority of the House to vote in favor of the
position: "It is [the] committee's view that this
ought to be aware of this.
type of veto of Gouncil actions will ensure to the
bill. See Legislative History at 2906 (statement
What you are saying is if we pass this legisla-
by Rep. Fraser): Id. at 2110 (statement by Rep.
Congress the continued ultimate control of the
affairs of the District while relieving it of some
tion proposed by the committee that this coun-
Diggs): Id. at 2155 (statement by Rep. McKin-
of the burdens of having to pass every piece of
cil and the mayor could pass legislation amend-
ney). Significantly, as the following comment
ing the District of Columbia Criminal Code?
made by a member of the District of Columbia
legislation itself." Legislative History at 2726.
This congruence of intentions between the
Mr. Hogan: There is no question about it in
Committee demonstrates, these guarantees con-
House and Senate, regarding the delegation of
my mind.
cerned the preservation of the federal interest:
authority over the criminal code, was most con-
Mr. Latta: So then they could let up on some
Every change in the bill that the Members
cretely demonstrated in the third. and final,
of these acts that we pass as far as the criminal
will see in the "Dear Colleague" letter they
stage of the Home Rule Act's development, the
[sic] is concerned?
received today from many of us on the commit-
Conference Committee. There, the two Houses
Mr. Hogan: The only thing they are prevented
tee. are changes that have been considered by
compromised, moving the criminal code out from
from doing are certain specific things listed in
the committee. Testimony has been heard by
under the prohibitory terms of H.R. 9682 to a
title VI, which are very limited. But as far as
the committee, and the fact is that the commit-
specifically tailored legislative veto provision
the code is concerned, basically what they are
tee did not put those into the bill, because we
modeled on that of the Senate bill. This produced
limited from doing as relates to the courts is
did not feel they were necessary, and now we
the provision presently in question, (602(c)(2).
[listed in] artitle XI of the District of Columbia
feel that for the pragmatic political passage of
See Legislative History at 2984.
Code which has to do with reorganization
a home rule bill they are. And I would claim to
While it is true that this evolution of the over-
But Title[s] XXII. XXIII and XXIV of the
the Members that they protect our Federal in-
sight control was not openly debated in Con-
District of Columbia Code they could amend.
terests. and the Presidential interests in this
ference, this does not mean that it went unex-
repeal or supersede.
city without doubt.
plained. Given that the Conference Committee
Mr. Latta: Will the substitute by Mr. Nelsen
Legislative History at 2155 (statement by Rep.
adopted the Senate's mechanism of restraint,
permit this?
McKinney).
Chairman Diggs evidently felt it necessary to ex-
Mr. Hogan: The Nelsen bill would leave the
These amendments evidently assuaged the
plain to his fellow Representatives the Senate's
courts as they are.
concerns of those who opposed H.R. 9682 in its
rationale behind the use of legislative vetoes and
Mr. Latta: 1 am talking about the criminal
original form. With the criminal code now moved
how the adoption of such a provision to govern
into that section of the bill which directly pro-
the Council's power over the criminal code might
code.
hibited Council action, See Legislative History at
alter the balance between the two competing in-
Mr. Hogan: It would not permit them to
terests of self-determination and the
2318 (§602(a)(8)), the House of Representatives
amend the criminal code whatsoever.
passed the measure by a vote of 343 to 74. See
maintenance of the Federal capital's security. 11
1 don't think the people who live in this city
Id. at 2455.
The explanation as to the first matter took
want to see that tampered with
The second stage in the Home Rule Act's
place in a statement by Diggs on the floor of the
Mr. Murphy: Would the gentleman yield."
House:
evolution demonstrates that the same concerns
Mr. Latta: Yes.
which worried House members also played on
In the give and take of this conference report
the minds of the members of the Senate. There.
Mr. Speaker, we note that some of the
Mr. Murphy: If it could be amended. it could
be made tougher, too, could it not?
however, an alternative means of control was
strongest feelings on the part of some of us
proposed. Whereas H.R. 9682 opted for the in-
have been set aside. For example, on congres-
Mr. Hogan: Yes.
flexible measure of total prohibition, the Senate
sional veto, the Senate was very strong on that
Mr. Murphy: You are presupposing that the
bill. S. 1435, mixed increased delegation of
and as a matter of fact I think I learned for the
people who would be in charge of this would be
authority with an elastic system of Congres-
first time the real reason the Senate has been
making the code and sanctions more lenient
sional review and disapproval. The City Council
able to pass home rule in the past SO ex.
than they are now?
was to be granted the ability to alter the criminal
peditiously is because it was just felt in the
Mr. Latta: There is no doubt about it.
code. but this ability was to be limited by the
other body that as long as there is a veto ap-
Legislative History at 1778-79.
power of either House of Congress to veto such
paratus, as long as there is a congressional pro-
While Congressman Latta's comments were
legislation within thirty days after such act had
cess to correct what they might consider to be
perhaps unfair, they evidently reflected the at-
been transmitted to Congress 10 See Legislative
a misaction on the part of a local legislative
History at 2646 (§325(g)(2)(A)).
body, then they were inclined to be generous
titude of many of his peers. Within seven days of
his comments, and just before the bill was to be
This difference in methods, however, should
11. Of course, the House of Representatives already had a
taken up on the floor. the Chairman of the Com-
sophisticated knowledge of the use of legislative vetoes. as
mittee on the District of Columbia, Congressman
10 This same veto provision was to apply to all Council legisla
witnessed by the extensive use of such provisions in prior legisla
tion not directly prohibited. Legislative History at 2643
tion. See INS V. Chudhu, 103 S.Ct. at 2811 (White, J., dissenting).
Diggs, issued the following "Dear Colleague"
($325(d)). See also Id. at 2645 ($325(f)(2)) (regarding budget mal-
and in the original form of H.R. 9682, regarding charter amend-
letter which stated, in part:
ters).
ments. See supra. n.9.
[T]he undersigned Members of the D.C. Com-
mittee will offer an amendment in the nature
Litigation
ECONOMICS
Damage
of a substitute during the Floor debate.
Support
Studies
The Committee substitute contains six im-
portant changes which were made after
Corporate Databases
TOTAL ANTITRUST
numerous conversations and sessions with
Acquisition/Divestitures
Market Definitions
Members of Congress and other interested
parties. These changes clarify the intent of
Corporate Litigation
Market Share Measurement
H.R. 9682 and accommodate major reserva-
Contract Actions
All Statutes Analyzed
tions expressed since the bill was reported out.
They are as follows:
Computer Applications
Employment Discrimination
Federal & State Courts
Product Liability
6. Reservations of Congressional Authority
-Additional limitations on Council:
PhD Expert Testimony
Injury & Death Cases
EXPERIENCED IN BOTH DEFENSE & PLAINTIFF MATTERS
Since 1973
(b) [The] City Council is prohibited from
making changes in Statutes Under Titles 22.
Find Us in MARTINDALE
9 Amendments to the proposed Charter were placed in 2
ECONOMIC CONSULTING & RESEARCH SYSTEMS-ECRS. INC.
special category, See Legislative History at 1244 ($303(b)). which
1100 Seventeenth St., N.W.-Suite 1000
Tenth Flr.
Wash., D.C. 20036-4694
allowed Congress to veto any proposal. See Id at 1320 ($604).
Budget matters were also specifically prescribed. See Id. at
(202) 466-2271
(1) 800-332-ECRS
1317 ($603).
about ft.
United States, 559 2d 1258 1261-62 4th Cir.
weeks in the Washington Law Reporter, and the Afro
Legislative History at 3050.
1977), cart denied 434 U.S. 1011 (1978): Quinn
American before said day. /s/ JOSEPH N. HANNON
As to the second matter Diggs. in his role as
V. Commissioner of Internal Revenue 524 F.2d
Judge (Seal.) Attest: THOMAS A. DUCKENFIELD
Chairman of the House of Representatives Com
617, 626 (7th Cir. 1975): U.T. Inc. V. Brown 457
Cierk of the Superior Court of the District of Columbia
mittee on the District of Columbia, let it be
F Supp. 163. 170 (W.D.N.C. 1978).
By Harold Keye, Deputy Clerk
June 6. 13. 20
known that he viewed the placement of the
Thus, for the reasons stated above. the in-
validation of (602(c)(2) also serves to invalidate
DAVIS. Carter G.
Deceased
criminal code under the terms of a legislative
vete as an acceptable method of balancing the
the delegation of authority over the criminal
Superior Court of the District of Columbia
two paramount interests presented by the Home
code to the City Council. Hence. the City Council
Probate Division
had no authority to enact the Sexual Reform Act
Administration No. 1099-84 S.E.
Rule Act. In a "Dear Colleague" letter explain-
and, therefore, the defendant was prosecuted
Carter G. Davis, deceased
ing a provision whereby the Council's authority
over criminal matters would be delayed two
under the proper statute.
Notice of Appointment, Notice to Creditors
and Notice to Unknown Heirs
years, pending a revision of the criminal code, he
IV.
Ray Davis, whose address is 12 Summit Street, East
stated in part:
The Court would have preferred to resolve
Orange, New Jersey 07017, was appointed Personal
[U]nder the Conference Report, the Council is
defendant's motion on alternative grounds as il
Representative of the estate of Carter G. Davis, who
prohibited from making changes in the
is well aware of the grave implications of its
died on May 3. 1984 with a Will. All unknown heirs and
criminal code for two years after it takes of-
heirs whose whereabouts are unknown shall enter their
holding to the governance of the District of Co-
fice. Subsequent to that, the Council may make
appearance in this proceeding. Objections to such ap-
lumbia. Unfortunately, after extensive research
pointment (or to the probate of decedent's Will) shall be
changes subject to a veto by either House of
and deliberation. the Court feels compelled to
filed with the Register of Wills, D.C., 500 Indiana
Congress within 30 days after the transmittal
agree with Justice White that the analysis in
Avenue. N.W., Washington. D.C. 20001, on or before
of the act
Chadha "appears to invalidate all legislative
July 9. 1984. Claims against the decedent shall be
] feel that this procedure sets the best com-
vetoes irrespective of form or subject. 103
presented to the undersigned with a copy to the
bination for protecting the Federal interest
S.Ct. at 2796 (White, J., dissenting). Thus,
Register of Wills or to the Register of Wills with a copy
while keeping the local Council involved in the
unless the Supreme Court chooses to revise and
to the undersigned, on or before July 9. 1984. or be
process of making the laws which will govern.
limit Chadha, which is an unlikely prospect, the
forever barred. Persons believed to be heirs or legatees
Legislative History at 3041-42.
scope of today's holding was unavoidable.
of the decedent who do not receive a copy of this notice
At all three stages of the legislative process.
Accordingly, defendant's motion to arrest
by mail within 25 days of its publication shall SO inform
then: Congress was concerned with erecting suf-
judgment must be. and it hereby is, denied.
the Register of Wills. including name. address and rela-
SO ORDERED.
tionship. RAY DAVIS. Name of Newspaper: Wash-
ficient safeguards against the possible erosion of
ington Law Reporter. TRUE TEST COPY. Henry L.
the capital's security following a delegation of
authority over the criminal code. Clearly. at least
LEGAL
NOTICES
Rucker, Register of Wills. [Seal.]
June 6.
in Congress' eyes. this concern was not ade-
DUNHAM. Johnny C.
Deceased
GOVERNMENT
quately answered merely by relying on the
Superior Court of the District of Columbia
ultimate ability of Congress to override Council
GORDON, Jernevieve
Deceased
Probate Division
actions through the passage of federal legisla-
Administration No. 1096-84 S.E.
[Filed May 8, 1984. Register of Wills, Clerk of the Pro-
tion. The amending of H.R. 9682 makes that
bate Division. Superior Court of the District of Colum-
Johnny C. Dunham, deceased
point undeniable.
bia. Probate Division. In Re: Estate of Jernevieve Gor-
Notice of Appointment. Notice to Creditors
Instead. the Congress settled on a position
and Notice to Unknown Heirs
don, Deceased. Administration No. 518-83. ORDER
somewhat less drastic than the total prohibition
Application having been made to this Court by the
Willie N. Dunham, whose address is 4104 18th Place.
of delegation adopted by the House of Represen-
District of Columbia for a finding that the above-named
N.E., Washington. D.C. 20018. was appointed Personal 5
tatives. This position. the use of a legislative
decedent a resident of said District. died intestate and
Representative of the estate of Johnny C. Dunham. who
veto, allowed greater flexibility while never-
was not survived by a spouse or any heirs-at-law or next
died on May 3, 1984 without a Will. All unknown heirs
and heirs whose whereabouts are unknown shall enter
theless imposing a quickly implemented
of kin within the degree of relationship recognized by
restraint as to any changes in the criminal law
applicable law, and for a decree that the surplus of the
their appearance in this proceeding. Objections to such
which might prove incompatible with the federal
estate of said decedent escheat to the District of Colum-
appointment shall be filed with the Register of Wills,
interest. The veto provision thus became the
bia: it is. by this Court, this 8th day of May, 1984.
D.C., 500 Indiana Avenue, N.W., Washington, D.C.
ORDERED: That the unknown heirs-at-law and next of
20001, on or before July 11, 1984. Claims against the
keystone to the delegation of authority over the
criminal code; the restraint and the power
kin of Jernevieve Gordon, deceased. if any. and all
decedent shall be presented to the undersigned with a
becoming to inextricably intertwined that the
others interested appear in said Court before the
copy to the Register of Wills or to the Register of Wills
removal of one would necessarily cause the
Fiduciary Judge at 9:30 a.m. on the 8th day of August,
with a copy to the undersigned. on or before July 11.
1984. or be forever barred. Persons believed to be heirs
downfall of the other.
1984. and show cause, if any they have, why said ap.
plication should not be granted Let notice hereof be
or legatees of the decedent who do not receive a copy of
Given this mutual interdependence, it is not
published twice a month for three consecutive months
this notice by mail within 25 days of its publication shall
enough to assert, as does the intervenor, the
prior to the aforesaid date in the Washington Law
SO inform the Register of Wills, including name, address
District of Columbia. either that Congress re-
Reporter and in the Washington Afro American ist
and relationship. WILLIE N. DUNHAM. Name of
tains the ultimate ability to override Council ac-
CARLISLE E. PRATT. Judge. [Seal.] A True Copy.
Newspaper: Washington Law Reporter. TRUE TEST
tions even absent the veto provision, or that the
Attest: CONSTANCE B. GOULD. Deputy Register of
COPY. Henry L. Rucker, Register of Wills. [Seal.]
present Congress might find such ability suffi-
June G.
Wills for the District of Columbia, Clerk of the Probate
cient in and of itself. 12 The fact remains that
Division
GOODE, George A., Sr.
Deceased
Congress has been precluded from exercising its
Edmund L. Browning, Jr. Assistant Corporation
Superior Court of the District of Columbia
power to repeal Council legislation due to its
Counsel, Room 4450, Superior Court.
Probate Division
eliance on the continued viability of (602(c)(2).
May 24. 30, June 6, 20, July 4, 18.
Administration No. 1089-84 S.E.
To now argue that the existence of such an unus-
George A. Goode, Sr., deceased
d alternative disapproval mechanism might
FIRST INSERTION
Notice of Appointment, Notice to Creditors
omehow serve as a rationale to justify
and Notice to Unknown Heirs
ADDEL Frank
pholding the Sexual Reform Act. an act which
George A. Goode, Jr., whose address is 1111 Mt.
was deliberately and unambiguously repudiated
Renee 1. Fox. Attorney
Olivet Road, N.E., Washington, D.C. 20002. was ap-
y one House of Congress, would take an act of
1707 N Street, N.W., Washington. D.C. 20036
pointed Personal Representative of the estate of George
edicial legerdemain of which this Court is in-
[Filed May 24, 1984. Superior Court of the District of
A. Goode, Sr., who died on May 8. 1984 without a Will
apable.
Columbia. Washington, D.C.] Superior Court of the
All unknown heirs and heirs whose whereabouts are
In sum, to view the restraining mechanism of
District of Columbia. Family Division Domestic Rela-
unknown shall enter their appearance in this pro-
602(c)(2) as somehow ancillary to the delegation
tions Branch. Frank Addei, 7307 Riggs Rd., Hyatts-
ceeding. Objections to such appointment shall be filed
ville. MD 20783, Plaintiff VS. Varnada Addei. 1465 Co-
authority over the criminal code would not on-
with the Register of Wills. D.C., 500 Indiana Avenue
lumbia Rd., N.W., Washington. D.C. 20009. Defendant.
N.W., Washington D.C. 20001, on or before July 10,
"mutilate the section and garble its meaning,"
Jacket No. D674-84. ORDER PUBLICATION-AB-
1984. Claims against the decedent shall be presented to
it enlarge the scope of power of the City Coun-
SENT DEFENDANT The object of this suit is to ob-
the undersigned with a copy to the Register of Wills or
I far beyond the intention of Congress. Davis V.
tain an absolute divorce from defendant Varnada
to the Register of Wills with a copy to the undersigned.
allace 257 U.S. 478, 484 (1922) (quoting State
Drakeford Addei. On motion of the plaintiff. it is this
on or before July 10, 1984, or be forever harred. Per.
rel McNeal V. Dombaugh, 20 Ohio St. 167.
24th day of May, 1984, ordered that the defendant. Var-
sons believed to be heirs or legatees of the decedent who
74 (1870)). See Mills V. United States. 713 F.2d
nada Addei, cause her appearance to be entered herein
do not receive a copy of this notice by mail within 25
249, 1254-55 (7th Cir. 1983); McCorkle V.
on or before the fortieth day, exclusive of Sundays and
days of its publication shall SO inform the Register of
legal holidays. occurring after the day of the first
Wills. including name, address and relationship.
12. See Response of Intervenor District of Columbia to the
publication of this order: otherwise the cause will be
GEORGE A. GOODE, JR. Name of Newspaper:
institutional Issues Raised in Cole's Motion to Arrest Judg.
proceeded with as in case of default. Provided. a copy of
Washington Law Reporter. TRUE TEST COPY.
'n: at 7.8. 11-13 (D.C. Super CL filed January 27, 1984)
this order be published once a week for three successive
Henry L. Rucker, Register of Wills. [Seal.]
June 6.