METROPOLITAN WASHINGTON AIRPORTS AUTHORITY ET AL. v. CITIZENS FOR THE ABATEMENT OF AIRCRAFT NOISE, INC., ET AL.
No. 90-906
Supreme Court of the United States
Argued April 16, 1991—Decided June 17, 1991
501 U.S. 252
William T. Coleman, Jr., argued the cause for petitioners. With him on the briefs were Donald T. Bliss and Debra A. Valentine.
Patti A. Goldman argued the cause and filed a brief for respondents Citizens for Abatement of Aircraft Noise, Inc., et al.*
*Mary Sue Terry, Attorney General, H. Lane Kneedler, Chief Deputy Attorney General, K. Marshall Cook, Deputy Attorney General, John M. McCarthy, Senior Assistant Attorney General, and William W. Muse and John Westrick, Assistant Attorneys General, filed a brief for the Commonwealth of Virginia as amicus curiae urging reversal.
An Act of Congress authorizing the transfer of operating control of two major airports from the Federal Government to the Metropolitan Washington Airports Authority (MWAA) conditioned the transfer on the creation by MWAA of a unique “Board of Review” composed of nine Members of Congress and vested with veto power over decisions made by MWAA‘s Board of Directors.1 The principal question presented is whether this unusual statutory condition violates the constitutional principle of separation of powers, as interpreted in INS v. Chadha, 462 U. S. 919 (1983), Bowsher v. Synar, 478 U. S. 714 (1986), and Springer v. Philippine Islands, 277 U. S. 189 (1928). We conclude, as did the Court of Appeals for the District of Columbia Circuit, that the condition is unconstitutional.
I
In 1940, Congress authorized the Executive Branch to acquire a tract of land a few miles from the Capitol and to construct what is now Washington National Airport (National). 54 Stat. 686. From the time it opened until 1987, National was owned and operated by the Federal Government. The airport was first managed by the Civil Aeronautics Agency, a division of the Commerce Department. 54 Stat. 688. In 1959, control of National shifted to the newly created Federal Aviation Administration (FAA), an agency that, since 1967, has been a part of the Department of Transportation. See 72 Stat. 731; 80 Stat. 932, 938.
A few years after National opened, the Truman administration proposed that a federal corporation be formed to operate the airport. See Congressional Research Service, Federal Ownership of National and Dulles Airports: Background, Pro-Con Analysis, and Outlook 4 (1985) (CRS Report), reprinted in Hearings before the Subcommittee on
National and Dulles are the only two major commercial airports owned by the Federal Government. A third airport, Baltimore Washington International (BWI), which is owned by the State of Maryland, also serves the Washington metropolitan area. Like Dulles, it is larger than National and located in a rural area many miles from the Capitol. Because of its location, National is by far the busiest and most profitable of the three.2 Although proposals for the joint operating control of all three airports have been considered, the plan that gave rise to this litigation involves only National and Dulles, both of which are located in Virginia. Maryland‘s interest in the overall problem explains its representation on the Board of Directors of MWAA. See
Throughout its history, National has been the subject of controversy. Its location at the center of the metropolitan area is a great convenience for air travelers, but flight paths over densely populated areas have generated concern among local residents about safety, noise, and pollution. Those liv-
Despite the FAA‘s history of profitable operation of National and excellent management of both airports, the Secretary of Transportation concluded that necessary capital improvements could not be financed for either National or Dulles unless control of the airports was transferred to a regional authority with power to raise money by selling tax-exempt bonds.3 In 1984, she therefore appointed an advisory commission to develop a plan for the creation of such a regional authority. Id., at 6.
The Commission recommended that the proposed authority be created by a congressionally approved compact between Virginia and the District, and that its Board of Directors be composed of 11 members serving staggered 6-year terms, with 5 members to be appointed by the Governor of Virginia, 3 by the Mayor of the District, 2 by the Governor of Maryland, and 1 by the President, with the advice and consent of the Senate. See App. 17. Emphasizing the importance of a “non-political, independent authority,” the Commission recommended that members of the board “should not hold elective or appointive political office.” Ibid. To allay concerns that local interests would not be adequately represented, the Commission recommended a requirement that all
In 1985, Virginia and the District both passed legislation authorizing the establishment of the recommended regional authority. See 1985 Va. Acts, ch. 598; 1985 D. C. Law 6-67. A bill embodying the advisory commission‘s recommendations passed the Senate. See 132 Cong. Rec. 7263-7281 (1986). In the House of Representatives, however, the legislation encountered strong opposition from Members who expressed concern that the surrender of federal control of the airports might result in the transfer of a significant amount of traffic from National to Dulles. See Hearings on H. R. 2337, H. R. 5040, and S. 1017 before the Subcommittee on Aviation of the House Committee on Public Works and Transportation, 99th Cong., 2d Sess., 1-3, 22 (1986).
Substitute bills were therefore drafted to provide for the establishment of a review board with veto power over major actions of MWAA‘s Board of Directors. Under two of the proposals, the board of review would clearly have acted as an agent of the Congress. After Congress received an opinion from the Department of Justice that a veto of MWAA action by such a board of review “would plainly be legislative action that must conform to the requirements of Article 1, section 7 of the Constitution,”4 the Senate adopted a version of the re-
view board that required Members of Congress to serve in their individual capacities as representatives of users of the airports. See 132 Cong. Rec. 28372-28375, 28504, 28521-28525 (1986). The provision was further amended in the House, id., at 32127-32144, and the Senate concurred, id., at 32483. Ultimately, § 2456(f) of the Transfer Act, as enacted, defined the composition and powers of the Board of Review in much greater detail than the Board of Directors. Compare
Subparagraph (1) of § 2456(f) specifies that the Board of Review “shall consist” of nine Members of the Congress, eight of whom serve on committees with jurisdiction over transportation issues and none of whom may be a Member from Maryland, Virginia, or the District of Columbia.5 Sub-
paragraph (4)(B) details the actions that must be submitted to the Board of Review for approval, which include adoption of a budget, authorization of bonds, promulgation of regulations, endorsement of a master plan, and appointment of the chief executive officer of the Authority.6 Subparagraph (4)(D) explains that disapproval by the Board will prevent submitted actions from taking effect.7 Other significant provisions of the Act include subparagraph (5), which authorizes the Board of Review to require Authority directors to consider any action relating to the airports;8 subsection (g), which requires that any action changing the hours of operation at either National or Dulles be taken by regulation and therefore be subject to veto by the Board of Review;9 and
subsection (h), which contains a provision disabling MWAA‘s Board of Directors from performing any action subject to the veto power if a court should hold that the Board of Review provisions of the Act are invalid.10
On March 2, 1987, the Secretary of Transportation and MWAA entered into a long-term lease complying with all of the conditions specified in the then recently enacted Transfer Act. See App. to Pet. for Cert. 163a-187a. The lease provided for a 50-year term and annual rental payments of $3 million “in 1987 dollars.” Id., at 170a, 178a. After the lease was executed, MWAA‘s Board of Directors adopted bylaws providing for the Board of Review, id., at 151a-154a, and Virginia and the District of Columbia amended their legislation to give MWAA power to establish the Board of Review, 1987 Va. Acts, ch. 665; 1987 D. C. Law 7-18. On September 2, 1987, the directors appointed the nine members of the Board of Review from lists that had been submitted by the Speaker of the House of Representatives and the President pro tempore of the Senate. App. 57-58.
On March 16, 1988, MWAA‘s Board of Directors adopted a master plan providing for the construction of a new terminal at National with gates capable of handling larger aircraft, an additional taxiway turnoff to reduce aircraft time on the runway and thereby improve airport capacity, a new dual-level roadway system, and new parking facilities. Id., at 70-71, 89-91. On April 13, the Board of Review met and voted not to disapprove the master plan. Id., at 73-78.
II
In November 1988, Citizens for the Abatement of Aircraft Noise, Inc., and two individuals who reside under flight
The District Court granted the defendants’ motion for summary judgment. 718 F. Supp. 974 (DC 1989). As a preliminary matter, however, the court held that plaintiffs had standing to maintain the action for two reasons:11 first, because the master plan will facilitate increased activity at National that is harmful to plaintiffs, and second, because the composition of the Board of Review diminishes the influence of CAAN on airport user issues since local congressmen and senators are ineligible for service on the Board. Id., at 980-982. On the merits, the District Court concluded that there was no violation of the doctrine of separation of powers because the members of the Board of Review acted in their individual capacities as representatives of airport users, and therefore the Board was not an agent of Congress. Id., at 985. Moreover, the Board‘s powers were derived from the legislation enacted by Virginia and the District, as implemented by MWAA‘s bylaws, rather than from the Transfer
A divided panel of the Court of Appeals for the District of Columbia Circuit reversed. 286 U. S. App. D. C. 334, 917 F. 2d 48 (1990). The court agreed that plaintiffs had standing because they had alleged a distinct and palpable injury that was “fairly traceable” to the implementation of the master plan and a favorable ruling would prevent MWAA from implementing that plan. Id., at 339, 917 F. 2d, at 53. On the merits, the majority concluded that it was “wholly unrealistic to view the Board of Review as solely a creature of state law immune to separation-of-powers scrutiny” because it was federal law that had required the establishment of the Board and defined its powers. Id., at 340, 917 F. 2d, at 54. It held that the Board was “in essence a congressional agent” with disapproval powers over key operational decisions that were “quintessentially executive,” id., at 343, 917 F. 2d, at 57, and therefore violated the separation of powers, ibid. The dissenting judge, emphasizing the importance of construing federal statutes to avoid constitutional questions when fairly possible, concluded that the Board of Review should not be characterized as a federal entity but that, even if it were so characterized, its members could, consistent with the Constitution, serve in their individual capacities even though they were Members of Congress. Id., at 345-347, 917 F. 2d, at 59-61.
Because of the importance of the constitutional question, we granted MWAA‘s petition for certiorari. 498 U. S. 1045-1046 (1991). Although the United States intervened in the Court of Appeals to support the constitutionality of the Transfer Act, see
III
Petitioners (MWAA and the Board of Review) renew the challenge to respondents’ standing that was rejected by the District Court and the Court of Appeals. To establish standing, respondents “must allege personal injury fairly traceable to the defendant‘s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S. 737, 751 (1984). Petitioners argue that respondents’ asserted injuries are caused by factors independent of the Board of Review‘s veto power and that the injuries will not be cured by invalidation of the Board of Review. We believe that petitioners are mistaken.
Respondents alleged that the master plan allows increased air traffic at National and a consequent increase in accident risks, noise, and pollution. App. 10. “For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint.” Warth v. Seldin, 422 U. S. 490, 501 (1975). If we accept that the master plan‘s provisions will result in increased noise, pollution, and danger of accidents,
IV
Petitioners argue that this case does not raise any separation-of-powers issue because the Board of Review neither exercises federal power nor acts as an agent of Congress. Examining the origin and structure of the Board, we conclude that petitioners are incorrect.
Control over National and Dulles was originally in federal hands, and was transferred to MWAA only subject to the condition that the States create the Board of Review. Congress placed such significance on the Board that it required that the Board‘s invalidation prevent MWAA from taking any action that would have been subject to Board oversight. See
That the Members of Congress who serve on the Board nominally serve “in their individual capacities, as representatives of users” of the airports, § 2456(f)(1), does not prevent this group of officials from qualifying as a congressional agent exercising federal authority for separation-of-powers purposes. As we recently held, “separation-of-powers analysis does not turn on the labeling of an activity,” Mistretta v. United States, 488 U. S. 361, 393 (1989). The Transfer Act imposes no requirement that the Members of Congress who are appointed to the Board actually be users of the airports. Rather, the Act imposes the requirement that the Board members have congressional responsibilities related to the federal regulation of air transportation. These facts belie the ipse dixit that the Board members will act “in their individual capacities.”
Although the legislative history is not necessary to our conclusion that the Board members act in their official congressional capacities, the floor debates in the House confirm our view. See, e. g., 132 Cong. Rec. 32135 (1986) (The bill “also provides for continuing congressional review over the major decisions of the new airport authority. A Congressional Board will still have veto power over the new airport authority‘s: annual budget; issuance of bonds; regulations; master plan; and the naming of the Chief Executive Officer“) (Rep. Lehman); id., at 32136 (“In addition, the motion provides continued congressional control over both airports. Congress would retain oversight through a Board of Review made up of nine Members of Congress. This Board would have the right to overturn major decisions of the airport authority“) (Rep. Coughlin); id., at 32137 (“Under this plan, Congress retains enough control of the airports to deal with any unseen pitfalls resulting from this transfer of author-
Congress as a body also exercises substantial power over the appointment and removal of the particular Members of Congress who serve on the Board. The Transfer Act provides that the Board “shall consist” of “two members of the Public Works and Transportation Committee and two members of the Appropriations Committee of the House of Representatives from a list provided by the Speaker of the House,” “two members of the Commerce, Science, and Transportation Committee and two members of the Appropriations Committee of the Senate from a list provided by the President pro tempore of the Senate,” and “one member chosen alternately . . . from a list provided by the Speaker of the House or the President pro tempore of the Senate, respectively.”
We thus confront an entity created at the initiative of Congress, the powers of which Congress has delineated, the purpose of which is to protect an acknowledged federal interest, and membership in which is restricted to congressional officials. Such an entity necessarily exercises sufficient federal power as an agent of Congress to mandate separation-of-powers scrutiny. Any other conclusion would permit Congress to evade the “carefully crafted” constraints of the Constitution, INS v. Chadha, 462 U. S. 919, 959 (1983), simply by delegating primary responsibility for execution of national
Petitioners contend that the Board of Review should nevertheless be immune from scrutiny for constitutional defects because it was created in the course of Congress’ exercise of its power to dispose of federal property. See
Our holding in Dole did not involve separation-of-powers principles. It concerned only the allocation of power between the Federal Government and the States. Our reasoning that, absent coercion, a sovereign State has both the incentive and the ability to protect its own rights and powers, and therefore may cede such rights and powers, see id., at 210-211, is inapplicable to the issue presented by this case. Here, unlike Dole, there is no question about federal power to operate the airports. The question is whether the maintenance of federal control over the airports by means of the Board of Review, which is allegedly a federal instrumentality, is invalid, not because it invades any state power, but because Congress’ continued control violates the separation-of-powers principle, the aim of which is to protect not the States but “the whole people from improvident laws.” Chadha, 462 U. S., at 951. Nothing in our opinion in Dole implied that a highway grant to a State could have been conditioned on the State‘s creating a “Highway Board of Review” composed of Members of Congress. We must therefore consider whether the powers of the Board of Review may, consistent with the separation of powers, be exercised by an agent of Congress.
V
Because National and Dulles are the property of the Federal Government and their operations directly affect inter-
The structure of our Government as conceived by the Framers of our Constitution disperses the federal power among the three branches—the Legislative, the Executive, and the Judicial—placing both substantive and procedural limitations on each. The ultimate purpose of this separation of powers is to protect the liberty and security of the governed. As former Attorney General Levi explained:
The essence of the separation of powers concept formulated by the Founders from the political experience and philosophy of the revolutionary era is that each branch, in different ways, within the sphere of its defined powers and subject to the distinct institutional responsibilities of the others is essential to the liberty and security of the people. Each branch, in its own way, is the people‘s agent, its fiduciary for certain purposes.
Fiduciaries do not meet their obligations by arrogating to themselves the distinct duties of their master‘s other agents. Levi, Some Aspects of Separation of Powers, 76 Colum. L. Rev. 385-386 (1976).
Violations of the separation-of-powers principle have been uncommon because each branch has traditionally respected the prerogatives of the other two. Nevertheless, the Court has been sensitive to its responsibility to enforce the principle when necessary.
Time and again we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches. See, e. g., Bowsher v. Synar, 478 U. S., at 725 (citing Humphrey‘s Executor, 295 U. S., at 629-630). As we stated in Buckley v. Valeo, 424 U. S. 1 (1976), the system of separated powers and checks and balances established in the Constitution was regarded by the Framers as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other. Id., at 122. We have not hesitated to invalidate provisions of law which violate this principle. See id., at 123. Morrison v. Olson, 487 U. S. 654, 693 (1988).
The abuses by the monarch recounted in the Declaration of Independence provide dramatic evidence of the threat to liberty posed by a too powerful executive. But, as James Madison recognized, the representatives of the majority in a democratic society, if unconstrained, may pose a similar threat:
It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. . . .
The founders of our republics . . . seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations; which by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. . . . [It] is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all their precautions.
The legislative department derives a superiority in our governments from other circumstances. Its con
stitutional powers being at once more extensive and less susceptible of precise limits, it can with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real-nicety in legislative bodies, whether the operation of a particular measure, will, or will not extend beyond the legislative sphere. The Federalist No. 48, pp. 332-334 (J. Cooke ed. 1961).
To forestall the danger of encroachment beyond the legislative sphere, the Constitution imposes two basic and related constraints on the Congress. It may not invest itself or its Members with either executive power or judicial power. J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406 (1928). And, when it exercises its legislative power, it must follow the single, finely wrought and exhaustively considered, procedures specified in Article I. INS v. Chadha, 462 U. S., at 951.19
The first constraint is illustrated by the Court‘s holdings in Springer v. Philippine Islands, 277 U. S. 189 (1928), and Bowsher v. Synar, 478 U. S. 714 (1986). Springer involved the validity of Acts of the Philippine Legislature that authorized a committee of three—two legislators and one executive—to vote corporate stock owned by the Philippine Government. Because the Organic Act of the Philippine Islands incorporated the separation-of-powers principle, and because the challenged statute authorized two legislators to perform
To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. . . . The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess. Bowsher, 478 U. S., at 726.
The second constraint is illustrated by our decision in Chadha. That case involved the validity of a statute that authorized either House of Congress by resolution to invalidate a decision by the Attorney General to allow a deportable alien to remain in the United States. Congress had the power to achieve that result through legislation, but the statute was nevertheless invalid because Congress cannot exercise its legislative power to enact laws without following the bicameral and presentment procedures specified in Article I. For the same reason, an attempt to characterize the budgetary action of the Comptroller General in Bowsher as legislative action would not have saved its constitutionality because Congress may not delegate the power to legislate to its own agents or to its own Members.20
Respondents rely on both of these constraints in their challenge to the Board of Review. The Court of Appeals found it unnecessary to discuss the second constraint because the
One might argue that the provision for a Board of Review is the kind of practical accommodation between the Legislature and the Executive that should be permitted in a workable government.22 Admittedly, Congress imposed its will on the regional authority created by the District of Columbia and the Commonwealth of Virginia by means that are unique
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE MARSHALL join, dissenting.
Today the Court strikes down yet another innovative and otherwise lawful governmental experiment in the name of separation of powers. To reach this result, the majority must strain to bring state enactments within the ambit of a doctrine hitherto applicable only to the Federal Government and strain again to extend the doctrine even though both Congress and the Executive argue for the constitutionality of
I
For the first time in its history, the Court employs separation-of-powers doctrine to invalidate a body created under state law. The majority justifies this unprecedented step on the ground that the Board of Review exercises sufficient federal power . . . to mandate separation-of-powers scrutiny. Ante, at 269. This conclusion follows, it is claimed, because the Board, as presently constituted, would not exist but for the conditions set by Congress in the Metropolitan Washington Airports Act of 1986 (Transfer Act),
A
Both the Airports Authority (Authority) and the Board are clearly creatures of state law. The Authority came into being exclusively by virtue of acts passed by the Commonwealth of Virginia, 1985 Va. Acts, ch. 598, § 2, and the District of Columbia, 1985 D. C. Law 6-67, § 3.1 These en-
actments expressly declared that the Authority would be a public body corporate and politic . . . independent of all other bodies with such powers as conferred upon it by the legislative authorities of both the Commonwealth of Virginia and the District. 1985 Va. Acts, ch. 598, § 2; 1985 D. C. Law 6-67, § 3. The Transfer Act acknowledged that the Authority was to have only the powers and jurisdiction as are conferred upon it jointly by the legislative authority of the Commonwealth of Virginia and the District of Columbia,
The specific features of the Board are consistent with its status as a state-created entity. As the Transfer Act and
As the Court has emphasized, [g]oing behind the plain language of a statute in search of a possibly contrary . . . intent is a step to be taken cautiously even under the best of circumstances. American Tobacco Co. v. Patterson, 456 U. S. 63, 75 (1982) (quoting Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 26 (1977)). Nowhere should this caution be greater than where the Court flirts with embracing serious constitutional problems at the expense of constru[ing a] statute to avoid such problems. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568, 575 (1988); see Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804) (Marshall, C. J.). The majority nonetheless offers three reasons for taking just these steps. First, control over the airports was originally in federal hands, and was transferred only subject to the condition that the States create the Board. Ante, at 266. Second, the Federal Government has a strong and continuing interest in the efficient operation of the airports. Ibid. Finally, and [m]ost significant, membership on the Board of Review is limited to federal officials. Ante, at 266-267. In other words, Congress, in effect, created a body that, in effect, discharges an ongoing interest of the Federal Govern
This picture stands in stark contrast to that drawn in each of the applicable enactments and agreements which, as noted, establish a state-created authority given the power to create a body to safeguard the interests of nationwide travelers by means of federal officials serving in their individual capacities. We have, to be sure, held that separation-of-powers analysis does not turn on the labeling of an activity, but instead looks to practical consequences, Mistretta v. United States, 488 U. S. 361, 393 (1989). This observation, however, does not give the Court a license to supplant the careful work of the Authority, Virginia, the District, the Federal Executive, and Congress with its own in-house punditry. This is especially so when the instruments under consideration do not merely label but detail an arrangement in which any unconstitutional consequences are pure speculation.
As an initial matter, the Board may not have existed but for Congress, but it does not follow that Congress created the Board or even that Congress’ role is a factor mandating separation-of-powers scrutiny. Congressional suggestion does not render subsequent independent state actions federal ones. Aside from the clear statutory language, the majority‘s conclusion ignores the entire series of voluntary and intervening actions, agreements, and enactments on the part of the Federal Executive, Virginia, the District, and the Authority, without which the Transfer Act would have been a nullity and the Board of Review would not have existed. Congress commonly enacts conditional transfers of federal resources to the States. See, e. g., Fullilove v. Klutznick, 448 U. S. 448 (1980); Lau v. Nichols, 414 U. S. 563 (1974); Steward Machine Co. v. Davis, 301 U. S. 548 (1937). Separation-of-powers doctrine would know few bounds if such transfers compelled its application to the state enactments that result.
Likewise, nothing charges the Board with oversight of any strong and continuing interest of the Federal Government, much less with conducting such oversight as an agent of Congress. Despite disclaimers, the majority is quick to point to portions of the legislative history in which various Members of Congress state their belief that the Board would ensure congressional control over the airports. Ante, at 267-268. But that is not all the legislative history contains. Other statements support the declaration in all the relevant enactments that Members of Congress are to sit on a state-created body in their individual capacities to safeguard the interests of frequent, nationwide users. On this point Members of the House, the Senate, and the Executive agreed. Representative Hammerschmidt, for example, stated that the purpose of a board of review composed of Congressmen is . . . to protect the interests of all users of the two airports. 132 Cong. Rec. 32143 (1986). Senator Kassebaum contended that Members of Congress could further this purpose since, [m]ost Members are intensely interested in the amount of service to and from certain cities, from both National and Dulles. Id., at 6069. Secretary of Transportation Dole echoed these sentiments, testifying that Members of Congress are heavy users of the air transportation system. Hearing on H. R. 2337, H. R. 5040, and S. 1017 before the Subcommittee on Aviation of the House Committee on Public Works and Transportation, 99th Cong., 2d Sess., 110 (1986).
Considered as a creature of state law, the Board offends no constitutional provision or doctrine. The Court does not assert that congressional membership on a state-created entity, without more, violates the Incompatibility or Ineligibility Clauses.
B
The Court‘s haste to extend separation-of-powers doctrine is even less defensible in light of the federal statute on which it relies. Far from transforming the Board into a federal entity, the Transfer Act confirms the Board‘s constitutionality inasmuch as that statute is a legitimate exercise of congressional authority under the Property Clause.
As the majority acknowledges, in South Dakota v. Dole, 483 U. S. 203 (1987), the Court held that Congress could condition a grant of federal funds to a State on the State‘s raising the drinking age to 21, even assuming that Congress did not have the power to mandate a minimum national drinking age directly. As the majority fails to acknowledge, the Court‘s holding in no way turned on a State‘s incentive and . . . ability to protect its own rights and powers. Ante, at 271.
[T]he independent constitutional bar limitation on the spending power is not . . . a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly. Instead, we think that the language in our earlier opinions stands for the unexceptional proposition that the [spending] power may not be used to induce the States to engage in activities that would themselves be unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress’ broad spending power. Were South Dakota to succumb to the blandishments offered by Congress and raise its drinking age to 21, the State‘s action in so doing would not violate the constitutional rights of anyone. 483 U. S., at 210-211 (emphasis added).
Dole states only that Congress may not induce the States to engage in activities that would themselves have been unconstitutional in the absence of the inducement. The decision does not indicate that Congress can act only when its actions implicate the allocation of power between the Federal Government and the States ante, at 271, as opposed to principles, the aim of which is to protect not the States but ‘the whole people from improvident laws. Ibid. Nor could it. In the context of
There is no question that Dole, when faithfully read, places the Board outside the scope of separation-of-powers scrutiny. As noted, no one suggests that Virginia and the District of Columbia could not have created a board of review to which nonfederal officers would appoint Members of Congress had Congress not offered any inducement to do so. The Transfer Act, therefore, did not induce the States to engage in activities that would themselves be unconstitutional. Nor is there any assertion that this case involves the rare circumstance in which the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion’ Dole, supra, at 211 (quoting Steward Machine Co., 301 U. S., at 590). In Dole, Congress authorized the Secretary of Transportation to withdraw funding should the States fail to comply with certain conditions. Here, Congress merely indicated that federal control over National and Dulles Airports would continue given a failure to comply with certain conditions. Virginia and the District may sorely have wanted control over the airports for themselves. Placing conditions on a desire, however, does not amount to compulsion. Dole therefore requires precisely what the majority denies—the rejection of separation-of-powers doctrine as an independent bar against Congress conditioning the lease of federal property in this case.2
II
Even assuming that separation-of-powers principles apply, the Court can hold the Board to be unconstitutional only by extending those principles in an unwarranted fashion. The majority contends otherwise, reasoning that the Constitution requires today‘s result whether the Board exercises executive or legislative power. Ante, at 274-276. Yet never before has the Court struck down a body on separation-of-powers grounds that neither Congress nor the Executive oppose. It is absurd to suggest that the Board‘s power represents the type of legislative usurpatio[n] . . . which, by assembling all power in the same hands . . . must lead to the same tyranny, that concerned the Framers. The Federalist No. 48, supra, at 309-310 (J. Madison). More to the point, it is clear that the Board does not offend separation-of-powers principles either under our cases dealing with executive power or our decisions concerning legislative authority.3
A
Based on its faulty premise that the Board is exercising federal power, the Court first reasons that [i]f the [Board‘s] power is executive, the Constitution does not permit an
As Bowsher made clear, a critical factor in determining whether an official is subservient to Congress is the degree to which Congress maintains the power of removal. Bowsher, supra, at 727. Congress cannot draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of the removal of a federal executive officer. Myers v. United States, 272 U. S. 52, 161 (1926). Here Congress exercises no such power. Unlike the statutes struck down in Bowsher and Myers, the Transfer Act contains no provision authorizing Congress to discharge anyone from the Board. Instead, the only express mention of removal authority over Board members in any enactment occurs in resolutions passed by the Board of Directors under the bylaws. These resolutions provide that members of the
The majority counters that Congress maintains effective removal power over Board members because depriving a Board member of membership in [certain congressional] committees deprives the member of authority to sit on the Board. Ante, at 269. This conclusion rests on the faulty premise that the Transfer Act requires the removal of a Board member once he or she leaves a particular committee. But the Act does not say this. Rather, it merely states that members of the Board shall consist of Members of Congress who sit in certain specified committees.
Nor has Congress improperly influenced the appointment process, which is ordinarily a less important factor in separation-of-powers analysis in any event. The Authority‘s Bylaws, reflecting the lease and the Transfer Act, provide that the Board consist of two members each from the House
Twice in recent Terms the Court has considered similar mechanisms without suggesting that they raised any constitutional concern. In Bowsher, the Court voiced no qualms concerning Presidential appointment of the Comptroller General from a list of three individuals suggested by the House Speaker and the President pro tempore. 478 U. S., at 727. Likewise, in Mistretta, the Court upheld Congress’ authority to require the President to appoint three federal judges to the Sentencing Commission after considering a list of six judges recommended by the Judicial Conference of the United States. 488 U. S., at 410, n. 31. The majority attempts to distinguish these cases by asserting that the lists involved were merely recommendations whereas the Board must be chosen from the submitted lists at issue here. Ante, at 268-269. A fair reading of the requirement shows only that the Board may not be chosen outside the lists. It is perfectly plausible to infer that the directors are free to reject any and all candidates on the lists until acceptable names are submitted. It is difficult to see how the marginal difference that would remain between list processes in Bowsher and Mistretta on one hand, and in this case on the other, would possess any constitutional importance. In sharp contrast, Springer can be readily distinguished. In that instance, as in Buckley v. Valeo, 424 U. S. 1 (1976), the Court struck down a scheme in which the Legislature usurped for
Our recent case law also compels approval of the Board‘s composition. The majority makes much of the requirement that appointees to the Board must be members of the enumerated congressional committees. Ante, at 269. Committee membership, the argument goes, somehow belies the express declaration that Members of Congress are to sit in their individual capacities as representatives of frequent, nationwide travelers. Mistretta, however, refused to disqualify federal judges, sitting in their individual capacities, from exercising nonjudicial authority simply because they possessed judicial expertise relevant to their posts on the Sentencing Commission. It is difficult, then, to see why Members of Congress, sitting in their individual capacities, should be disqualified from exercising nonlegislative authority because their legislative expertise—as enhanced by their membership on key transportation and finance committees—is relevant to their posts on the Board. I refuse to invalidate the Board because its members are too well qualified.
B
The majority alternatively suggests that the Board wields an unconstitutional legislative veto contrary to INS v. Chadha, 462 U. S. 919, 952-955 (1983). If the Board‘s power is legislative, the Court opines, Congress must exercise it in conformity with the bicameralism and presentment requirements of
The majority never makes up its mind whether its claim is that the Board exercises legislative or executive authority.
More important, the case for viewing the Board as a congressional agent is even less compelling in the context of Article I than it was with reference to Article II. Chadha dealt with a self-evident exercise of congressional authority in the form of a resolution passed by either House. 462 U. S., at 925.
III
The majority claims not to retreat from our settled rule that [w]hen this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, . . . it should only do so for the most compelling constitutional reasons. Mistretta, 488 U. S., at 384 (quoting Bowsher, supra, at 736 (STEVENS, J.)). This rule should apply with even greater force when the arrangement under challenge has also been approved by what are functionally two state legislatures and two state executives.
Since the compelling constitutional reasons on which we have relied in our past separation-of-powers decisions are insufficient to strike down the Board, the Court has had to inflate those reasons needlessly to defend today‘s decision. I cannot follow along this course. The Board violates none of the principles set forth in our cases. Still less does it provide
Notes
“(A) two members of the Public Works and Transportation Committee and two members of the Appropriations Committee of the House of Representatives from a list provided by the Speaker of the House;
“(B) two members of the Commerce, Science, and Transportation Committee and two members of the Appropriations Committee of the Senate from a list provided by the President pro tempore of the Senate; and
“(C) one member chosen alternatively from members of the House of Representatives and members of the Senate, from a list provided by
“(i) the adoption of an annual budget;
“(ii) the authorization for the issuance of bonds;
“(iii) the adoption, amendment, or repeal of a regulation;
“(iv) the adoption or revision of a master plan, including any proposal for land acquisition; and
“(v) the appointment of the chief executive officer.” § 2456(f)(4)(B).The United States does not support the position taken by petitioners and the dissent. The United States argues that “[i]f the exercise of state authority were sufficient in itself to validate a statutorily imposed condition like the one in this case, a massive loophole in the separation of powers would be opened.” Brief for United States 31. According to the United States, the condition in this case is constitutional only because “there is here a reasonable basis for the appointment of Members of Congress ‘in their individual capacities.‘” Id., at 33.
“(3) the Federal Government has a continuing but limited interest in the operation of the two federally owned airports, which serve the travel and cargo needs of the entire Metropolitan Washington region as well as the District of Columbia as the national seat of government.”
“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”
“SECTION 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
“SEC. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
“SEC. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”