*1 v. AND IMMIGRATION NATURALIZATION SERVICE CHADHA et al. February Argued No. 80-1832. Reargued December Decided June 1983* Representatives *Together 80-2170, United States House of with No. al., Immigration and Naturalization Service et 80-2171, v. and No. Immigration al., et United States Senate and Naturalization Service on certiorari .to the same court. *3 opinion
Burger, J., Court, Brennan, in which C. delivered O’Connor, JJ., Marshall, Blackmun, Stevens, joined. Powell, J., concurring judgment, White, J., opinion post, p. an in the filed 959. dissenting opinion, post, p. Rehnquist, J., dissenting filed a 967. filed a White, J., joined, post, p. opinion, in which 1013.
Eugene Gressman for the cause reargued petitioner Stanley M. Brand. 80-2170. With him on the No. briefs Michael Davidson reargued cause petitioner the briefs were M. Elizabeth him on No. 80-2171. With Culbreth and Charles Tiefer. General Lee
Solicitor for the reargued cause Immigra- *4 in tion and Naturalization Service all cases. him on With Attorney Deputy Assistant General Solic- Olson, briefs were Attorney Deputy itor Geller, General Assistant General Simms, Edwin David A. Thomas Kneedler, Strauss, S. and Sargentich. O.
Alan B. Morrison Rai reargued cause for Jagdish Cary the brief was John in Chadha all him on cases. With Sims.† Scalia,
†Antonin Smith, Richard a Ryrie B. and David Brink filed brief for urging the American Bar Association as amicus curiae affirmance.
Briefs of amici curiae for Certain were filed Robert C. Eckhardt Representatives; Members of the United and Paul States House C. Rosenthal for the Counsel on Law of the Federal Bar Administrative Association. opinion delivered of Court. Burger
Chief Justice granted in certiorari Nos. 80-2170 and and 80-2171, We postponed question jurisdiction of the consideration in presents challenge No. 80-1882. Each a to the constitution- 244(e)(2) § ality provision Immigration in of the of the Nationality 66 Stat. Act, 216, as 8 U. C. amended, authorizing §1254(c)(2), Congress, by one House resolu- pur- tion, to invalidate decision the Executive Branch, authority delegated by Congress Attorney suant to to the particular deportable States, General of the United allow remain in United alien to States.
I Kenya an Chadha is East Indian who was bom in and holds passport. lawfully a British He was admitted to the United nonimmigrant States in 1966 on a student visa. His visa expired on June 1972. 11, 1973, On October the District Immigration Director and Naturalization Service or- why deported dered Chadha to show cause he should not be having longer for “remained the United time States for a 242(b) permitted.” App. than 6. Pursuant to of the Immi- gration Nationality (Act), §1252(b), Act U. S. C. deportation hearing Immigration Judge was held before an January deport- 11, 1974. Chadha conceded that he was overstaying hearing adjourned able for his visa and the application suspension depor- him to enable to file an for 244(a)(1) 1254(a)(1)- under tation 8 Act, U. S. C. 244(a)(1), question, provided: Section at time in prescribed “As section, hereinafter in this the Attor- ney may, suspend deportation General his discretion, adjust lawfully the status to that of an alien admitted permanent alien who residence, of an case applies Attorney depor- suspension General for tation and—
“(1) deportable any is under of the States law United (2) except provisions specified paragraph of this in physically present has subsection; been the United period not less than seven for a continuous States applica- immediately preceding years of such the date period during proves all of such he was and and tion, person person good is a character; moral and is a opinion deportation the Attor- would, whose ney hardship to the alien or General, result extreme spouse, parent, is child, who a citizen of the his perma- lawfully for or an alien admitted United States nent residence.”1 application suspension his for
After Chadha submitted hearing deportation, deportation resumed on Febru- was ary of evidence adduced at the hear- 1974. On the basis application, ing, with the and the results affidavits submitted investigation Immi- INS, a conducted of character Judge, gration 25, 1974, on June ordered that Chadha’s de- Immigration suspended. Judge portation found that 244(a)(1): requirements met the he had resided Chadha years, continuously in the for United States over seven good and would suffer character, moral “extreme hard- ship” deported. if §1254(c)(1), Act,
Pursuant of the 8 U. S. C. Immigration Judge deportation suspended Chadha’s report suspension Congress. was transmitted to 244(c)(1) provides: Section
“Upon application by any alien At- who found torney requirements General to meet the of subsection (a) Attorney of this section the in his General discre- suspend deportation deporta- tion of such If the alien. any suspended provisions tion of alien is under the of this complete of the subsection, detailed statement 1Congress delegated major responsibilities of the enforcement Immigration Nationality Attorney Act to the 8 U. S. C. General. 1103(a). Attorney through discharges responsibilities General his Immigration Service, Department and Naturalization a division Ibid. of Justice.
925 pertinent provisions facts law the case shall be reported Congress with the reasons for such sus- pension. reports Such shall be submitted on the first day Congress of each calendar month in which inis session.” Attorney suspen-
Once the General’s recommendation for deportation conveyed Congress, sion of Chadha’s Con- 244(c)(2) gress power had the under Act, S.U. C. §1254(c)(2), Attorney to veto2 the General’s determination 244(c)(2) deported. that Chadha should not be Section provides:
“(2) (1) specified paragraph In the case of an alien (a) subsection of this subsection— during “if the session of the at which a case reported, prior is or to the close of the session of the following next the session at which a case is reported, Represent- either the Senate House passes stating atives a resolution in substance that it suspension deportation, does not favor the of such Attorney thereupon deport General shall such alien or voluntary departure authorize the alien’s expense at his own deportation under the order in the manner provided by specified, law. If, within the time above Representatives neither the nor the Senate House of pass Attorney shall such a resolution, General shall deportation proceedings.” cancel terms, In constitutional “veto” used to describe the President’s I, 7,§ under Art. of the Constitution. Dictionary See Black’s Law (5th 1979). however, appears, ed. It congressional devices of the 244(c)(2) type by § authorized have commonly come to be referred to as a g., Martin, e. See, Legislative “veto.” Veto and Responsible Ex Congressional Power, ercise of (1982); L. Knapp, Va. Rev. 253 Miller & Congressional Preserving Framework, Veto: Constitutional L. Ind. J. the congressional We refer to “resolution” author by § ized as a “one-House Attorney veto” of the General’s decision particular to allow a deportable alien to remain in the United States. Judge Immigration sus- order of the 25, 1974, The June outstanding deportation aas pending remained Chadha’s *7 year not disclosed and a half. For reasons valid order for a authority veto did not exercise the record, until session of the the first it under to reserved Congress. final session which Con- This was the 94th Attorney §244(c)(2), pursuant gress, could act to veto the deported. that Chadha should not be determination General’s Cong. 19, on December 1975. Rec. The ended session (1975). congressional action, Absent Chadha’s 42014, 42277 deportation proceedings have been canceled after this would adjusted permanent his to that of a resident date and status 1254(d). 8 U. alien. See S. C. Representative Eilberg, 1975, Chairman
On December Immigration, Citizenship, Judiciary on Subcommittee opposing Law, and International introduced resolution “the permanent granting [six] in the residence United States to including Cong., Chadha. H. Res. 94th 1st aliens,” (1975). Cong re- Sess.; Rec. 40247 resolution was Judiciary. House On De- ferred to the Committee on the discharged 1975, the resolution was from further cember Judiciary consideration the House Committee on Representatives for a submitted House vote. Cong. printed Rec. 40800. The resolution had not been prior was not made available to other Members of the House to or at the time it was voted on. far Ibid. So as record shows, before us the House consideration of the resolution Eilberg’s Representative was from based statement floor that feeling reviewing
“[i]t of the committee, was after cases, that the aliens in the contained resolution statutory [Chadha others] and five did not these re- meet quirements, particularly hardship; as it relates to and it opinion deportation is the of the committee that their suspended.” should not be Ibid. without or
The resolution debate recorded vote.3 passed 244(c)(2), House Since the action was the reso- pursuant not treated Art. I legislative act; lution was as an it was not generally, It is not at all clear whether House Subcommittee Eilberg correctly particular, relationship Chairman understood the Attorney suspend between H. Res. 926 and the General’s decision to Exactly deportation. year previous Chadha’s one to the House veto of the case, Attorney Representative Eilberg General’s decision in intro this Attorney similar resolution disapproving suspension duced a General’s deportation Cong., the case of six H. 2d other aliens. Res. 93d following colloquy Sess. occurred on the floor of the House: Speaker, reserving right object, “Mr. WYLIE. Mr. further this procedure expedite ongoing Department Justice, operations ofthe people any way contrary as far as these are Is it in concerned. to what- *8 Attorney question deportation; ever action the General has taken on the of gentleman does the know? Speaker, gentleman’s
“Mr. EILBERG. Mr. is no to the answer final question. have deportable Special These aliens been found to be and the denying Inquiry suspension deportation decision Officer’s has been Immigration complying Appeals. reversed the Board of We are with since all of approval the law these decisions have been referred to us for or disapproval, category. and there are hundreds of in In cases this these however, grossly improper six cases we believe it would to allow these people permanent acquire to the status of resident aliens. words,
“Mr. gentleman WYLIE. In other working has been with the Attorney office? General’s
“Mr. EILBERG. Yes.
“Mr. WYLIE. This bill then inis fact a confirmation of what the Attor- ney General intends to do? gentleman
“Mr. EILBERG. The correct insofar as it relates deportability Department determination which has been made in Justice each of these cases. “Mr. Speaker, my objection.” WYLIE. Mr. I withdraw reservation Cong. Rec.
Clearly, 244(c)(2). this § was an obfuscation of under the effect of a veto way Such veto in no Attorney constitutes “a confirmation of what the contrary, General intends to do.” To the to such resolution was meant aside, “veto,” overrule and set Attorney determination General’s that, particular case, in a deportation appropriate cancellation of would be 244(a)(1). under the § standards set in forth the President his to or presented to the Senate submitted action. decision to Attorney veto of the General’s the House
After States, Immigra- remain the United allow Chadha deportation imple- proceedings Judge reopened tion Chadha moved order Chadha. deporting the House ment 244(c)(2) § ground proceedings terminate held that he Judge The Immigration is unconstitutional. on the constitutional validity to rule had no authority de- 244(c)(2). 8, 1976, Chadha was ordered § On November action. to the House ported pursuant of Im- order to the Board the deportation Chadha appealed 244(c)(2) is uncon- contending that again migration Appeals, it “no to declare The Board held that had stitutional. an act and Chadha’s Congress” appeal unconstitutional 55-56. App. dismissed. 106(a) Act, §1105a(a), of the 8 U. C.
Pursuant deportation for review of the order petition Chadha filed a for the Ninth the United States Court of Circuit. Appeals and Naturalization Service with Immigration agreed him joined Chadha’s before Court position Appeals In of the is unconstitutional. arguing light the Court of invited both importance question, Appeals Senate and the House to file briefs Representatives *9 amici curiae. full oral the
After Court briefing argument, Appeals held that House was without constitutional authority order it Chadha’s directed the At- deportation; accordingly “to torney General cease and desist from taking any steps this alien deport based upon resolution enacted House of F. Representatives.” 2d 244(c)(2) § essence of its was that holding violates con- stitutional of separation doctrine of powers.
We
certiorari
granted
80-2171,
Nos. 80-2170 and
consideration of
postponed
our
jurisdiction over the appeal
80-1832,
No.
HH I—i important question Before we address the of the constitu- tionality provision §244(c)(2), of the one-House veto we challenges authority first consider several to the of this Court resolve the issue raised.
A Appellate Jurisdiction Congress4 Both Houses of contend that we are without § jurisdiction under 28 U. S. C. 1252 to entertain the INS appeal provides: in No. 80-1832. Section 1252
“Any party may appeal Supreme Court from an interlocutory judgment, any or final decree or order court of United States, United District States Court for the District of the Canal Zone, District Virgin Court and the Guam District Court of the any holding Islands and court of Rico, record Puerto any an Act of unconstitutional in action, civil proceeding any or suit, to which the or United States agencies, any employee of its or thereof, officer or as employee, party.” such officer or is a Levy, (1974), Parker v. 733, 742, 417 U. S. n. 10 makes appeals clear that a court of is a “court of the United States” purposes proceed- of 1252. It is likewise clear that ing proceeding,” below was a “civil that the action, suit, agency party INS is an and was a the United States proceeding proceeding below, and that that held an Congress namely, provision Act of the one-House veto — express requisites for an —unconstitutional. appeal under have been met. therefore, disagree posi Nine of the with the Representatives Members House of Represent tion taken in House of the briefs filed and the Senate brief amici curiae urging atives and have that the decision filed *10 Appeals of Court be affirmed in this case. appeal, congressional
In motions to dismiss INS “[a] parties5 our that attention, however, direct to statement sought generally party all he is not who receives that has aggrieved by judgment affording the cannot relief and ” Guaranty Roper, Deposit appeal National Bank v. from it. (1980). sought INS the invali Here, U. S. §244(c)(2), Appeals granted and the Court that dation of already relief. Both Houses contend that INS has sought Appeals, not an received it from the Court of is what appeal aggrieved party, and cannot from the deci therefore agree. Appeals. sion of the Court We cannot deport one The was ordered House INS fully, supra, Chadha. As have set out more at we that it had no to rule on the constitu- INS concluded tionality accordingly proceeded imple- order and that challenged appeal ment Chadha’s that decision and the it. constitutionality presented the Executive’s views on the INS Appeals. of the House action to the Court of But the INS Appeals agency’s deci- brief to Court did not alter comply ordering deportation of sion to with the House action Appeals deportation Chadha. Court set aside Attorney proceedings and to cease and ordered General any steps taking deport steps from that the Chadha; desist Attorney it for have taken were General would decision. purposes deciding “any is
At least for whether the INS jurisdiction grant party” appellate we within the sufficiently aggrieved the Court of hold that the INS was taking Appeals prohibiting it it would decision from action apparent intended that otherwise take. It case, S. Res. 40 and House authorized intervention this Senate 3,1981, Cong., (1981), and, February and H. R. 1st Res. 97th Sess. rehearing. petitioned filed motions The Court of to intervene granted Houses are therefore Appeals the motions intervene. Both 1254(1). proper “parties” in U. S. C. meaning within the of that term 28 Francis, See Batterton 416, 424, 432 U. S. n. *11 this Court take prereq- notice cases that meet the technical §of Congress uisites in other 1252; cases where an Act of is held unconstitutional a court, federal in review this Court Onlyby is agency available writ of certiorari. When an party the United States is to a case which the Act of Con- gress it ag- administers is held unconstitutional, it is an grieved party purposes taking § appeal an under 1252. agency’s § aggrieved party status as an under 1252is not may agree altered the fact that the Executive with the holding question that the statute is unconstitutional. The appeal properly in No. 80-1832 is therefore before us.6
B Severability provision also contends for the one- § House veto cannot be severed from 244. Con- gress argues provision if for the one-House veto is §244 §244 held all of unconstitutional, must fall. If in its entirety is violative the Constitution, it follows that the Attorney authority suspend General has no Chadha’s 244(a)(1) deportation deported. under Chadha would be Congress argues standing this, From that Chadha lacks challenge constitutionality provi- of the one-House veto sion because he could receive no relief even if his constitu- challenge proves tional successful.7 Only recently por- this Court reaffirmed that the invalid “ ‘[u]nless tions of a statute are to be it is severed evident that
6In meeting statutory 1252, course, addition to requisites an appeal present justiciable controversy must case under Art. III. controversy clearly 80-1832, cases, Such a exists in No. as in the other two presence parties. because as the two Houses of adverse Director, infra, Perini North River Asso 939; OWCP v. See at see also ciates, (1982). 459 U. S. 302-305 severability In appropriate questions this case we deem it to address Buckley Valeo, United (1976); first. see But v. 424 U. S. 108-109 Jackson, States v. 390 U. S. Legislature provisions would not have enacted those power, independently are within its of that which
which (1976), Buckley quoting 424 U. Valeo, not.”’ *12 Refining Corporation Champlin Co. v. Comm’n Okla- (1982). Here, homa, however, 286 U. S. we need Congress inquiry on that elusive since itself has embark § provided question severability in the answer to the Nationality following Immigration Act, of the note § provides: 8 U. which S. C. any particular provision applica-
“If Act, of this or the any person circumstance, tion thereof to or is held application the invalid, the remainder Act and the persons provision such to other shall circumstances added.) thereby.” (Emphasis not be affected unambiguous gives presump- language is This rise to a validity the a tion that did not intend of Act as any depend part upon or of whole, Act, to whether the 244(c)(2) §of The veto veto clause was invalid. one-House 244(c)(2) § clearly “particular provision” provision in is language severability in the Act as that is used clause. Congress clearly “the of the intended remainder Act” “any particular provision” if Con- stand were held invalid. gress plainly presumption could not have more authorized the 244(c)(2) § provision in is for a one-House veto sever- § it able from remainder of and the Act of which is a part. U. SEC, See Electric Bond & Share Co. v. presumption severability one-House
The as to § provision supported by veto history supplanted precursors 244. That section its long-established pattern dealing deportations like with case-by-case through private bills. Al- on a Chadha’s basis delegate though may it be that was reluctant authority deportations, reluc- such final over cancellation of presumption of tance is not sufficient to overcome the sever- §by ability raised 406. Immigration of 1924, Act ch. 190, 14, Stat.
required Secretary deport any of Labor to alien who en- unlawfully. only tered or remained the United States by deportable lawfully means which a alien could remain in by private the United States was to have his status altered presented bill enacted both Houses and to the President pursuant procedures set out I, 7, Art. of the Con- private stitution. bills These were found intolerable Con- gress. by Represent- In the debate a 1937bill introduced Secretary grant permanent ative Dies to authorize the residence in cases, “meritorious” Dies stated: my original thought way
“It was that the to handle all through special these meritorious cases was bills. I am absolutely convinced as a result of what *13 in has occurred impossible this House that it is to deal with situation this through special bills. We had a demonstration of that long ago special fact not when 15 bills were before this considering The House. House consumed 514hours four disposition any bills and no made of of the bills.” (1937). Cong. Rec.
Representative passed Dies’ House, bill the at id., 5574, Cong. but did in not come to a vote the Senate. Rec. (1938). 8992-8996
Congress Attorney suspend first authorized the General to deportation Registration the in certain aliens the Alien Act provided 1940, 439, ch. 20, Stat. 671. That Act Attorney deported, despite an alien was to be the General’s contrary, by decision to the if Houses, both concurrent reso- disapproved suspension. lution, the Congress 1948, In the cate- amended the Act to broaden gory eligible suspension deportation. for In addi- of aliens Congress authority Attor- tion, however, the of the limited ney suspend by providing deportations to that the General Attorney deportation General could not cancel a unless both affirmatively by ap- Houses concurrent resolution voted prove Attorney July action. Act of General’s provision approval by 1206. con- 78B, ch. 62 Stat. proved in current resolution the 1948Act almost as burden- year private later, some as bills. Just one the House Judi- §244(c)(2), ciary support predecessor in Committee, Report: in a stated light experience months,
“In the of the last several require- to the conclusion that the committee came Con- ment affirmative action both Houses many gress in of individual cases which are thousands every Attorney year, submitted is not General upon particularly places workable and and Judiciary responsibilities on the on the which Committee responsibilities placed upon it cannot assume. The new Judiciary [by the concurrent reso- Committee purely mechanism] lution are of administrative nature seriously legislative they interfere with work Judiciary in- time, on the would, Committee terfere with the work of the House.” H. R. Rep. Cong., Sess., 1st No. 81st proposal permit one House of to veto the Attorney suspension deportation General’s of an alien’s Immigration Nationality incorporated in Act of 1952, §244(a), Plainly, Congress’ Pub. L. 214. desire Stat. in isolation retain a veto this area cannot be considered Congress’ must context irritation with but be viewed the *14 private immigration legislative his- burden bills. This the severability tory presumption is not sufficient to rebut the §406 by that raised because there is insufficient evidence Congress subject oner- to itself to the would have continued 244(c)(2) § private it that ous burdens bills had known would be held unconstitutional. provision presumed if remains
A is further severable what Champlin fully operative Re- after severance “is as a law.” supra, fining Corporation at 234. There Comm’n, Co. v. § “fully operative” and workable can be no doubt that 244 is provision machinery in veto administrative without 244(c)(2). § Entirely independent veto, the of the one-House
935 administrative enacted process by Congress authorizes the Attorney General an alien’s suspend deportation under 244(a). § Congress’ of the exercise of oversight this dele- gated authority since all such preserved suspensions will 244(c)(1). continue to to it reported under Absent of a bill passage to the contrary,8 deportation will proceedings be canceled when the in period specified has ex- §244 pired.9 Clearly, survives as a workable administrative mechanism without one-House veto.
C Standing We must also reject the contention that Chadha lacks because a standing of his will advance consequence prevailing veto, provision Congress presumably Without for one-House would power, during 244(c)(2), law, retain the the time allotted to enact a requirements Constitution, accordance with the I mandating Art. of the unless, particular deportation, course, prin alien’s other constitutional ciples place substantive on Attorney limitations such action. Cf. General 9766, Cong., (1940), Jackson’s attack H. R. 76th to re 3d Sess. bill Attorney quire the deport Attorney General to an alien. The individual departure General called the bill “an historical from an unbroken American practice Congress and tradition. It would be the first time that an act of 2031, singled Rep. out a named for deportation.” individual No. 76th (1940) Cong., Sess., pt. p. (reprinting 3d of June Jackson’s letter 1940). See n. infra. veto, § “report pro Without the one-House 244 resembles the and wait” approved by Co., vision Court in Sibbach v. Wilson & U. S. promul provided newly statute examined in Sibbach they gated Federal Rules of until Civil Procedure “shall not take effect reported Congress shall Attorney have been General at the be ginning regular of a session the close of such ses thereof and until after 19, 1934, 651, §2, sion.” Act of June ch. statute did 48 Stat. 1064. This provide unilaterally Rules. could veto the Federal Rather, they gave Congress opportunity it before to review the Rules pass legislation if barring became effective and to their effectiveness objectionable. technique Rules were found This was used revise, stay, ultimately proposed Rules when it acted 93-12, 30, 1973, Compare Stat. Evidence. Act of Mar. Pub. L. *15 2, 1975, 93-595, with Act of Jan. Pub. L. 1926. Stat. separation-of- in of the Executive Branch interests a powers dispute Congress, simply with rather than Chadha’s private “injury interests. Chadha has demonstrated in fact judicial requested and a that the relief substantial likelihood prevent injury . . Duke will or redress the claimed . Study Group, Inc., Power Co. Carolina Environmental provision If 59, 438 U. S. the veto violates the deportation against Constitution, severable, and is order standing Chadha challenge be canceled. Chadha has will therefore order Executive mandated the House veto.
D Alternative Relief It is contended that the Court should decline to decide the question presented by constitutional these because cases statutory may Chadha have other relief available to him. It argued citizen that since Chadha married United States August possible 10, it is avenues of relief 1980, other §§ may 201(b), open Act, 204, be under and 245 §§1151(b), 1154, U. C. and 1255. It is true that Chadha S. eligible an relative” classification as “immediate lawfully permanent such, as resi- and, could be accorded just prior Moreover, dence. March to the decision Appeals cases, of the Court in these enacted the Refugee 96-212, Act of Pub. L. under Stat. Attorney grant asylum, which the General is authorized to permanent any and then is unable to residence, alien who country nationality “a well- return to his because of persecution on founded fear of account of race.” urged intervening It is that these two factors constitute prudential ques bar to our consideration of the constitutional presented A, TV 297 tion these cases. See Ashwander v. (1936) (Brandeis, concurring). If we U. could J., perceive might merit this well seek avoid contention we deciding at most advanced. But constitutional claim *16 of other avenues relief are It no speculative.
these
is
certain,
means
for
that Chadha’s
as
example,
classification
relative would result
of
adjustment
an immediate
status from
to
nonimmigrant
permanent
Chadha’s
resident.
(CA9 1979).
INS,
v.
E
Jurisdiction It contended that Court lacked Appeals jurisdic- 106(a) 1105a(a). Act, § § tion of the under U. S. C. That section provides petition review Court “shall be the sole exclusive for the Appeals procedure of all . judicial review final orders of . . deportation made against aliens within the United States to admin- pursuant 242(b) istrative under proceedings section of this Act.” Congress argues one-House veto authorized by § takes place outside the administrative proceedings § 242(b), conducted under and that the jurisdictional grant 106(a) §in contained encompass does not Chadha’s constitu- tional challenge.
In Cheng Fan Kwok v. INS, (1968), U. S. 106(a) “§ this Court held that those determi- only embrace[s] 10Depending interprets statutory § duty on how the INS its under apart challenged portion 244(c)(2), § from the Chadha’s status retroactively adjusted permanent to that of a resident as of December 1975—the last session in attempted stop which could have suspension deportation ripening Chadha’s from into cancellation deportation. 1254(d). event, See 8 U. S. C. 5-year In that Chadha’s waiting 316(a) period to become a citizen Act, under 8 U. S. C. § 1427(a), elapsed. would have 242(b), during proceeding conducted under made
nations including to a motion made incident determinations those proceedings.” one court has read reopen It is true that such appeals preclude Cheng to Chadha’s. similar Fan Kwok 1981).11 (CA3 How- 2d 880 INS, 660 F. *17 Dastmalchi See agree Appeals that in these cases with the Court of ever, we 106(a) § all matters on “final orders” in “includes the term validity contingent, rather than of the final order is the which ” actually hearing. only made at the determinations those deportation stands or falls Here, F. 412. Chadha’s 2d, at validity challenged final order of veto; the the on the of against only implement deportation Chadha was entered Although Representatives. of action of the House the Attorney was satisfied that the House action was General any on his decision invalid and that it should have effect appropriately controversy suspend deportation, he let through its the courts. take course Cheng supra, in
This decision Fan does not Kwok, Court’s deportation appeal. There, after an bar Chadha’s order requested entered, been the affected alien the INS had stay request execution that order. When that was de- sought Appeals in nied, the alien review the Court of under 106(a). § Appeals holding This Court’s Court jurisdiction lacked the alien “did based on the fact that deportation [sought] not ‘attack the order itself but instead quoting it.’” relief not inconsistent with at S., U. 106(a) reasoning, § judicial Under the Third Circuit’s review under § constitutionality would not extend to the issue because that during deportation proceed not have could been tested the administrative 242(b). ings distinguish § The facts in Dastmalchi are conducted under Dastmalchi, able, however. In Iranian aliens who entered the United had nonimmigrant regulation on challenged States student visas re a quired report during them to Director the Ira District INS hostage deported reported nian crisis. The aliens and were ordered after 242(b) The aliens Dastmalchi could have been proceeding. deported a irrespective Here, contrast, challenged regulation. Chadha’s de 244(c)(2). portation been canceled but for have would
9B9
(CA2 1966).
Esperdy,
F Controversy Case or genuine controversy It is also contended that this is not a friendly, non-adversary, proceeding,” but “a Ashwander (Brandeis, concurring), upon J., 297 U. at 346 A, S., TV pass. argument This which Court should not rests position on the fact that Chadha and the INS take the same constitutionality of the one-House veto. But it would be justice, person in the if, curious result administration of Attorney could be denied access to the *18 courts because agreed legal argu of General the United with States ments asserted the individual. controversy presented by
A case is First, these cases. Congress’ from the time of formal n. intervention, see beyond supra, the concrete adverseness is doubt. Con- gress proper party is both a to defend the constitutional- 244(c)(2) § ity proper petitioner of a and 28 U. S. C. under §1254(1). Congress’ prior Second, intervention, there adequate though only par- Ill Art. even adverseness already ties were the and INS Chadha. We have held that agreement Appeals’ the INS’s with the Court of that decision agency’s is unconstitutional does not that affect “aggrieved” purposes appealing status for that decision supra, under 28 U. S. C. 1252,see at 929-931. For similar agreement position reasons, the INS’s with Chadha’s does deported not alter the fact that the INS would have Chadha Appeals’ judgment. agree absent the Court of with the We Appeals Court that “Chadha has asserted a concrete con- troversy, meaning: and our decision if will have real we rule deported; uphold 1244(c)(2), for Chadha, he will not if be we deport 2d, F. him.” 634 its order and will execute the INS 419.12 at opposed prudential, Ill, Art. as there course,
Of sanctioning adjudication of these cases about concerns validity any participant supporting absence 244(c)(2). dispelled any Appeals properly The Court inviting accepting from both briefs such concerns long Congress. is We have held that Houses validity proper party of a statute when an defend the charged enforcing government, agency with as defendant inappli- plaintiffs agrees is that the statute with statute, Cheng INS, Fan Kwok or unconstitutional. See cable Lovett, 328 n. United States v. U. S. S., 9; 392 U. at G Question Political nonjusti- argued present these cases It is also challeng- merely political question because Chadha is ciable Congress’ authority ing Clause, under the Naturalization Necessary Proper cl. Const., I, §8, U. S. Art. and the U, argued It Art. cl. 18. Clause, Const., I, §8, Congress’ IArt. “To establish an uniform Rule of Proper Necessary Naturalization,” combined with authority regulation grants it unreviewable over the Clause, plenary authority of aliens. The over aliens open question, Art. I, §8, under cl. is not but what is *19 12 can be found in our recent decision in Bob Jones parallel A relevant States, University v. United There, 574 U. S. the United agreed University States with Bob Jones and Goldsboro Christian Schools Rulings tax-exempt denying that certain Revenue that status to schools Despite agreement on discriminated the basis race were invalid. its schools, however, with complying the United States was with a court enjoining it granting tax-exempt any order from status to school that dis though largely criminated on the basis race. Even the Government agreed party opposing controversy, with the on the we found merits adequate jurisdiction an basis for in the fact that the Government intended id., challenged against enforce the party. law See at 9. that n.
challenged here is whether has chosen a constitu- tionally permissible implementing power. means As (1976): Buckley Valeo, clear in we made U. S. “Con- gress plenary authority in all has cases which it sub- has legislative jurisdiction, Maryland, stantive McCulloch v. (1819), long authority so Wheat. as the exercise of that not offend some Id., does other constitutional restriction.” at 132.
A brief review those factors which indicate the nonjusticiable presence political question of a satisfies us that jurisdiction our assertion over does these cases no violence political question to the doctrine. As identified in Baker v. (1962), political question may Carr, 369 U. arise any following present: when one of the circumstances is textually “a demonstrable constitutional commitment of political department; the issue to a coordinate or a lack of judicially manageable discoverable and standards for resolving impossibility deciding or the it; without an policy clearly nonju- initial determination of a kind impossibility dicial or the discretion; of a court’s under- taking independent expressing resolution without lack of respect government; due coordinate branches of or an unquestioning political unusual need for adherence to a already potentiality decision or the made; of embarrass- pronouncements by ment from multifarious various de- partments question.” on one
Congress apparently nonjusticiabil- directs its assertion of ity by asserting to the first the Baker factors that Chadha’s legislative authority claim is “an assault to enact Sec- 244(c)(2).” p. tion Brief 80-2170, for Petitioner in No. 48. question political question if But this turns the into a virtu- ally every challenge constitutionality of a statute political question. argues would be a Chadha indeed constitutionally one House of cannot veto the At- torney General’s decision to him allow to remain this coun- try. policy underlying political question No doctrine *20 942 Executive, acting or both or the
suggests con- I, decide the Art. can with compliance concert and courts.13 for the that is decision statute; of a stitutionality case. to this Baker factors inapplicable are likewise Other I below, “judi- Art. provides more fully As discuss we Baker for standards” manageable discoverable cially these cases. Those by resolving presented question on nonjudicial “pol- reliance this Court forestall standards for a coordi- or any showing disrespect icy determinations” if are arguments accepted, Chadha’s Similarly, nate branch. 244(c)(2) constitutionality since the stand, and, cannot resolve, there is no possibility is for this Court that statute on this pronouncements” question. of “multifarious sense, in a controversy may, this It is correct But of constitutional issues the presence termed “political.” in- does not automatically overtones significant political with 13 244(c)(2) is immunized from suggestion The is made that somehow scrutiny containing passed because the Act constitutional Marbury Madison, by Congress approved by the v. 1 President. (1803), question. Cranch 137 resolved that assent of the Executive provision contrary a bill which contains a to the Constitution does not Maryland, 735, 740, review. See Smith judicial v. 442 shield it from U. S. League Usery, National Cities v. (1979); n. 12 426 U. S. n. Valeo, States, Buckley Myers (1976); (1976); United 424 U. v. S. (1926). event, Presidents, any U. n. In from See also infra. through Reagan, presented Mr. Wilson Mr. who have been with this issue gone point challenge congressional have on record at some vetoes as Henry, Legislative unconstitutional. In See Veto: Search Con (1979) Limits, 737-738, Legis. 735, (collecting stitutional 16 Harv. J. n. 7 statements). citations to Perhaps Presidential the earliest Executive expression constitutionality congressional on the in At veto found torney opinion January 24,1933, General William D. Mitchell’s to Presi Op. Atty. Furthermore, dent Hoover. 37 Gen. is not 56. it uncommon legislation approve containing parts objection Presidents to which are grounds. able on example, constitutional For after President Roosevelt signed Attorney Lend-Lease Act of Jackson released a General explaining memorandum provision allowing President’s view that the Act’s authorization to be terminated concurrent un resolution was Jackson, constitutional. A Legal Opinion, Presidential L. Harv. Rev. *21 political question litigation voke the doctrine. Resolution of challenging authority the constitutional of one of the three by branches cannot evaded courts because the issues have implications urged by political Congress. in the sense Mar (1803), burg “political” Madison, v. Cranch 137 was also a involving judicial as it did case, alleged claims under a commission by duly signed
to have been the President but not reject But “courts ‘no delivered. cannot as suit’ a law bona controversy as fide to whether some action denominated ‘political’ authority.” exceeds constitutional Baker v. Carr, supra, at 217. (1892), Clark,
In Field v. this U. S. Court ad- question and dressed resolved the whether by signed Speaker Represent- “a bill House by presented atives and President the Senate, to approved States, and President the United and Secretary delivered latter to an State, as passed by Congress, act does not become a law of passed by if United States it had not in fact been Congress. . . . recognize, duty
“... on one hand, We court, this performance may give from the it which not to shrink, provisions relating full effect to the of the Constitution operate the enactment of laws that are wherever the authority jurisdiction and of the United extend. States On hand, the other we cannot be unmindful of the conse- quences obliged, if that must result this court should feel fidelity declare Constitution, to that an enrolled depend public private bill, which interests of vast magnitude, deposited . and which has been . . in the public Congress, archives, as an act ... did (emphasis original). become a Id., law.” at 669-670
H standing justiciability The contentions on have been fully parties properly examined, and we are satisfied the are important fully before us. have been briefed and issues duty in argued, Court’s 458 U. S. see twice in Cohens Marshall declared cases, as Chief Justice these Virginia, (1821), clear: 264, 404 6 Wheat. gladly avoid; but occur we would which
“Questions our is, All we can do exercise avoid them. cannot we perform conscientiously judgment, our best *22 duty.”
Ill A question of one whether action House turn now We strictures of the Con- under violates presumption begin, of with the course, stitution. We challenged Its wisdom is not the con- statute is valid. challenged if action does not violate the courts; cern of must Constitution, it be sustained: meaning of an enactment is discerned and its
“Once the constitutionality judicial process
determined, the comes of review, an end. We do sit as a committee nor Hill, of veto.” A v. are we vested with the TV (1978). 437 U. 194-195 By given procedure the same the fact that a law or token, facilitating is in efficient, convenient, and useful functions of government, standing contrary it if is alone, will not save it efficiency to the Constitution. Convenience and are not the objectives primary govern- the hallmarks —ofdemocratic —or inquiry sharpened ment and our is than rather blunted congressional provisions appearing fact that in- veto are with creasing frequency delegate authority statutes which independent agencies: executive and provision “Since when the first enacted veto congressional procedures veto-type law, into have been inserted 196 different statutes as follows: from 1932 1939, five 1940-49, statutes from affected; were thirty-four nineteen statutes; 1950-59, statutes; between forty-nine. year and from 1960-69, From through sixty-three pro- 1975,at least one hundred such eighty-nine
visions were included laws.” Abourezk, Congressional Contemporary Response A Veto: Legislative Prerogatives, Executive Encroachment on (1977). 52 Ind. L. Rev. Appendix post,
See also to Justice White’s dissent, at 1003. proposi- undertakes to make a case for the Justice White “political tion that is one-House veto a useful invention,” post, challenge at and we need not that assertion. We argument although long- can even concede this utilitarian range political arguable. wisdom of this “invention” is It has vigorously compare been debated, and it instructive to protagonists. g., See, views e. Klein, Javits & Con- gressional Oversight Legislative and the A Veto: Constitu- Analysis, (1977), N. L. tional 52 Y. U. Rev. 455 and Martin, Legislative Responsible Veto and the Exercise of Con- gressional policy Power, 68 L. Va. Rev. But *23 arguments supporting “political even useful inventions” are subject to the demands of the Constitution which defines powers respect subject, just and, with to this sets out how powers those are to be exercised.
Explicit unambiguous provisions of the Constitution prescribe respective and define the of functions legislative process. and of the Executive in the Since the precise provisions of terms those familiar are critical to the resolution of these cases, we set them out verbatim. Article provides: I granted
“All Powers herein shall be vested in a of of the United shall consist States, which § Representatives.” I, Art. 1. Senate and House of added.) (Emphasis
“Every Rep- passed Bill of which shall have House shall, resentatives and the it becomes Senate, before presented a law, be of the United President added.) (Emphasis . . .” Art. 2. I, States . cl. §7, “Every Order, or which Con- Resolution, Vote to Representatives currence of the House of Senate and Adjournment) necessary (except question be on a of presented States; to the President of the United shall be approved shall be Effect, shall take and before by Same being repassed disapproved by him, shall be him, Repre- of and House two thirds of the Senate according the Rules and Limitations sentatives, prescribed Bill.” I, §7, in Case of a Art. cl. 3. added.) (Emphasis integral provisions parts of I of the con- Art. are
These powers. separation design have re- for the of We stitutional cently principle separation powers “[t]he of that noted simply generalization an in the minds of the abstract they drafted Framers: it was woven into the document that Buckley Philadelphia Valeo, in of 1787.” the summer provision S., at 124. § we relied on the textual U. Just as separation principle of II, 2, of Art. cl. to vindicate the underlying powers Buckley, purposes we see that the 2, 3, Art. els. and the bicameral Clauses, I, 7, Presentment . guide requirement Art. cl. our resolu- I, 1, presented important question these cases. tion delegating separating very structure the Articles exemplifies concept powers and III I, II, under Arts. powers, separation turn to Art. I. and we now
B The Presentment Clauses records the Constitutional Convention reveal legislation presented requirement all to the Presi- becoming uniformly accepted by *24 dent law was before Presiden- Framers.14 Presentment to the President and the by widespread approval delegates of was commented on Joseph Story: diversity of
“In the there does seem to have been much convention negative opinion subject propriety giving president of the on of been, points seem to have principal on the laws. of discussion latter, by negative absolute, if the qualified; whether the should be passed, in subsequently should be order what number each house the bill law; negative should either case be exclu- become a and whether the imperative tial veto were considered so that the draftsmen special pains requirements took to assure that these could not During be the final circumvented. debate on I, Art. §7, expressed might easily cl. James Madison concern that it simple expedient calling proposed be evaded law a “resolution” or “vote” rather than a “bill.” Farrand consequence, supra, I, 301-302. As a Art. cl.7, at 945- 946, was added. Farrand 304-305. provide
The decision to the President with a limited and qualified power nullify proposed legislation by veto was profound based on the conviction the Framers that the powers powers conferred on were to be most carefully beyond lawmaking circumscribed. It is doubt that was a to be shared both Houses the President. (H. Lodge 1888), In The Federalist No. 73 ed. Hamilton making focused on the President’s role in laws: propensity “If even no had ever discovered itself in the body rights to invade the Executive, just reasoning propriety the rules of and theoretic would ought of themselves teach us the one not to left mercy ought possess the other, but a con- power of at Id., stitutional and effectual self-defence.” 458. also The Federalist No. 51. In his on
See Commentaries Joseph point. Story Constitution, makes the same Story, J. Commentaries on the Constitution United (3d 1858). States 614-615 ed. lawmaking process also reflects
The President’s role propensity a the Framers’ careful efforts to check whatever improvi- particular Congress might oppressive, have to enact alone, jointly other de- sively president him with some vested in the or in government.” Story, the Constitu- partment 1 J. Commentaries (3d 1858). tion of the States 611 ed. United 1787, pp. Farrand, Convention 1 M. The Records the Federal See id,., (1911) (hereinafter 73-80, 181, Farrand); 97-104, at 138-140 301-305.
dent, or ill-considered measures. The President’s veto role legislative process during public in the was described later ratification: debate on salutary upon check the
“It establishes guard community against body, calculated precipitancy, any impulse un- faction, or of effects friendly public good, may happen which to influ- majority body. ence a primary conferring
“. . . The inducement to upon question is, the Executive to enable him to secondary himself; one is to increase the defend community against passing chances favor through design.” laws, haste, inadvertence, or The bad Hamilton). (A. supra, Federalist No. at 458 (1929); The Pocket Veto 279 U. Case, See also S. Myers States, 52, 123 272 U. v. United Court that the Presentment Clauses serve the also has observed important assuring perspective purpose of that a “national” legislative process: grafted on the people just representative
“The of the as President is are, and of House and it the members may Senate subjects, the Presi- be, times, at some on some people represent- dent elected all the is rather more body ative of them all than the members of either are Legislature are whose constituencies local and countrywide Myers supra, States, v. United at 123.
C Bicameralism §§ requirement was of I, 1, 7, of Art. bicameral scarcely the Presiden- to the Framers than was less concern interdependent. concepts are tial veto and indeed the two By providing con- take effect without that no law could prescribed majority of both of the Members currence of already reemphasized re- belief, their Houses, the Framers *26 upon in marked connection with the Presentment Clauses, legislation should not be enacted it unless has been care- fully fully and considered the Nation’s elected officials. In the Constitutional Convention debates on the need for legislature, a bicameral Wilson, James later to become a Court, Justice of this commented: “Despotism shapes, comes on mankind in different military, in an Executive, sometimes in sometimes a danger Legislative despotism? Is there one. of a practice Theory proclaim Legislative & both it. If the authority liberty be not restrained, there can be neither stability; only by dividing nor and it can be restrained it independent itself, within into distinct In and branches. single inadequate a house there is no check, one, but good compose of the virtue & sense those who it.” 1 Farrand 254. argued Congress comprised single
Hamilton that a of a very purposes House was antithetical to the of the Constitu- adopt providing tion. the Nation to Were a Constitution only organ, one he warned: finally single body,
“[W]e accumulate, shall all the important prerogatives sovereignty, most thus upon posterity entail forms our one the most execrable government that human infatuation ever contrived. reality very tyranny which Thus we should create are, either af- adversaries of the new Constitution fect to No. be, solicitous to avert.” Federalist (H. 1888). p. Lodge ed. regarding general skepticism
This view was rooted in a Joseph fallibility on human nature later commented Story: occasionally persons, private
“Public like are bodies, passions strong excitements; under the dominion of impatient, legislature] [a impetuous.... If irritable, and rarely will, no but its own it has the firmness feels check holding long enough upon question under its to insist bearings it in all rela- view, to see and mark its own society.” Story, supra, at 383-384. tions many are consistent with what These observations cogently expressed, none more than Madison Framers *27 pointing up disperse power in the need to divide and order to protect liberty: government, legislative authority republican
“In the nec- remedy essarily predominates. for this inconve- niency legislature branches; is to divide the into different by different of them, and to render modes election principles action, as little connected with different as the nature of their common functions and each other society dependence will their common on the admit.” (H. 1888)(some- Lodge p. No. ed. Federalist gen- attributed to “Hamilton or Madison” but now times Madison). erally attributed also The Federalist No. 62.
See apart familiar, it to recall that from their However is useful expense special the that interests could be favored at fear public although concerned, the Framers were also needs, apprehensions the smaller states. one over the mind, among commonality of interest Those states feared a represent- larger disadvantage; their states would work to skeptical larger hand, states, on the other were atives minority favoring legislature pass a that could laws hardly people. It need 176-177,484-491. See Farrand Compromise, repeated one which here that under the Great people representing and the other House viewed as allayed large states.16 and small states, the fears of both by Compromise important the Framers The Great so was considered altered, not be even they special provision that it could inserted to ensure amendment, the states affected. the consent of except constitutional with Const., Art V. See U. acutely
seeWe therefore that the Framers were conscious requirement that the bicameral and the Presentment Clauses would serve essential constitutional functions. The Presi- participation legislative process protect dent’s was to Congress protect the Executive Branch from people improvident whole from laws. The division legisla- into two distinctive bodies assures that the power only opportunity tive would be exercised after for full study separate settings. debate The President’s uni- power, power lateral veto in turn, was limited of two- thereby thirds both Houses of to overrule a veto precluding arbitrary person. final of one id., action See at emerges clearly prescription legisla- 99-104. It §§ represents tive action in I, 1, 7, Art. the Framers’ decision that the of the Federal ex- Government be single, finely wrought ercised accord with a and exhaus- tively procedure. considered,
HH > sought delegated powers The Constitution to divide categories, the new Federal Government into three defined Legislative, nearly Executive, Judicial, assure, and to as as possible, government that each branch of would confine itself assigned responsibility. hydraulic pressure its inher- to separate within Branches to the outer ent each of the exceed power, accomplish objectives, limits of its even to desirable must be resisted.
Although “hermetically” another, from one not sealed delegated Buckley powers v. to Valeo, S., 121, U. at any functionally the three When Branches are identifiable. power presumptively exercising acts, Branch it is Hampton delegated has it. & Co. Constitution to See J. W. (1928). the Exec- States, 394, United When U. S. presumptively utive he in or adminis- acts, an executive acts capacity when, here, as trative as in Art. II. And defined Congress purports presumptively act, to it is one House acting assigned sphere. within its
Beginning presumption, this we must nevertheless with 244(c)(2) § challenged that the action under is of the establish requirements procedural I, §7, kind to which the of Art. every by subject apply. is to Not action taken either House presentment requirements I. the bicameralism and of Art. at nn. 21. taken infra, See Whether actions legislative are, fact, either House in an exercise of law power upon they depends form their but “whether regarded properly contain matter as which Cong., Rep. No. 1385, its character and effect.” S. 54th 2d Sess., pursu- here one
Examination the action taken House essentially legislative in ant to that it was reveals purpose purporting In defined and effect. to exercise Art. cl. an uniform Rule of Natural- I, “establish purpose ization,” took action the House that had the altering legal rights, duties, effect and relations persons, including Attorney General, Executive Branch Legislative Chadha, officials and all outside the Branch. 244(c)(2) purports to one Section authorize House Con- gress require Attorney deport an individual General deportation alien whose be canceled under otherwise would operated 244. The these cases to over- one-House veto deporta- Attorney rule the and mandate Chadha’s General in the absent the House Chadha would remain tion; action, altered United States. has acted and its action has *29 Chadha’s status. in these
The of the one-House veto character congressional of the ac- cases is confirmed the character Representatives supplants. of nor tion it Neither the House provision in veto that, the Senate contends absent the acting together, 244(c)(2), or of them them, either of both Attorney deport effectively require to an could General legisla- Attorney General, once in the exercise of alien
953
had determined the alien should
tively
authority,16
delegated
in
remain
the challenged provi-
the United States. Without
achieved,
in
this
been
if at
244(c)(2),
all, only
sion
could have
16
protests
affirming
Appeals
Congress
the Court of
in these cases
“lawmaking by
Attorney
Why
.
will sanction
General.
. .
is the Attor
ney
submitting
proposed changes
General
exempt from
his
the law to the
process?”
80-2170, p.
full bicameral
for
No.
Brief
Petitioner
40. To be
sure,
agency
rulemaking,
example may
some administrative
action —
—
“lawmaking.”
551(4),
5
agency’s
resemble
See U. C.
which
an
S.
defines
part
agency
general
“rule” as “the whole or
an
of
particular
statement
designed
implement,
applicability
interpret,
and future effect
to
or pre
policy
scribe
.”
agency activity
law or
. . .
This Court has referred to
as
being “quasi-legislative”
Humphrey’s
in character.
Executor v. United
(1935).
States,
602,
Clearly,
however,
U. S.
“[i]n the framework
Constitution,
power
of our
the President’s
to see that the laws are faith
fully
Youngstown
executed refutes the
he
a
idea that
is
be lawmaker.”
(1952).
Sawyer,
579,
Tube
v.
Sheet &
Co.
343 U. S.
Buckley
See
v.
Valeo,
S.,
Attorney
424 U.
performs
at 123. When the
General
his duties
pursuant
§to
“legislative” power.
he does not exercise
Ernst &
See
Hochfelder,
(1976).
Ernst v.
425 U.
213-214
proc
bicameral
necessary
ess is not
as a check on the Executive's administration of the
activity
beyond
laws because his administrative
cannot reach
limits
duly
I,
statute that created it —a
pursuant
statute
enacted
to Art.
1,§§
constitutionality
Attorney
7. The
General’s execution
authority delegated
§by
only question
delegation
to him
244 involves
courts,
arises,
always
doctrine.
or controversy
when case
can
“as
certain
whether the will of
obeyed,”
has been
Yakus v. United
States,
(1944),
U. S.
statutory
and can enforce
adherence
Youngstown
standards. See
Tube
Sawyer, supra,
585;
Sheet &
Co. v.
at
Ethyl Corp.
EPA,
(en
373, 440,
App.
U. S.
D. C.
541 F. 2d
banc) (separate
Leventhal,
statement
J.),
denied,
cert.
The nature legislative manifests its character. in cases further veto these time-consuming clumsy, pri- experience long with the After Congress procedure, made a deliberate choice to vate bill delegate specifically to the Branch, to the Executive Attorney authority deportable to aliens to General, the allow country specified in in circumstances. It this certain remain authority pre- delegate disputed is to that this choice is not implemented only cisely can be the kind of decision that procedures in Art. I. Dis- with the set out accordance Attorney agreement decision on Chadha’s with the General’s deport Congress’ deportation to decision Chadha— is, —that delegate Congress’ original At- than choice to to the no less torney authority decision, General the to make that involves only implement policy that can determinations way; passage by presentment one followed bicameral authority entirely. Congress modify or revoke A one-House is to veto clearly checked; legislative in effect both character and and is so by provided I, 1, 7, §§ Art. is need for the check therefore clear. Con- gress’ authority delegate portions agen- to of its to administrative provides argument support cies no for the can constitution- ally by way congressional control laws veto. administration express opinion legislation any We violate no as whether such would supra. provision. constitutional See n. 18During application of the the Convention of President’s veto repeals addressed, apparently was and the Framers were statutes difficulty repeals, content “[a]s with Madison’s comment that it probable place policy would soon take doubtful cases limiting repeal.” require the duration of laws as to renewal instead Ginnane, Farrand 587. See The Control of Federal Administration Congressional Committees, Resolutions and 66 Harv. L. Rev. 587- provision allowing Congress repeal There no or amend pursuant laws other than means to Art. I. *31 Congress by delegation must its
President. abide author- legislatively ity delegation is until that altered or revoked.19 Finally, we see when Framers intended to author- Congress ize either House to act alone and outside of its prescribed they narrowly pre- bicameral and role, procedure cisely for defined the such action. There are four provisions unambiguous, by in the Constitution,20 and explicit which one House act alone with the force unreviewable subject law, President’s veto: (a) Representatives given The House of alone was power impeachments. to initiate Art. 5; cl. I, 2, (b) given power The alone was Senate to conduct trials followingimpeachment charges on initiated the House and following to convict trial. Art. I, 3, 6; cl.
(c) given power alone final Senate was unreviewable approve disapprove appointments. or to Presidential II, §2, Art. cl. 2;
(d) given alone Senate was unreviewable to rat- ify negotiated by treaties the President. Art. cl. 2. II, §2,
Clearly,
sought
special pow-
when the Draftsmen
confer
independent
House,
ers
one
of the other
or of
House,
they
unambiguous
explicit,
the President,
did so in
terms.21
19This
Congress
does not mean that
required
capitulate
to “the ac
policy
cretion of
Klein,
control
forces outside its chambers.”
Javits &
Congressional Oversight
Legislative
Analy
and the
A
Veto: Constitutional
(1977).
sis,
52 N. Y. U. L.
provides
Rev.
The Constitution
Congress with abundant means to oversee
its
and control
administrative
Beyond
creatures.
the obvious
ultimately
fact that
controls ad
agencies
legislation
them,
ministrative
in the
that creates
other means
control, such as durational
limits
reporting
on authorizations and formal
requirements,
lie well
id.,
Congress’
power.
within
at
constitutional
See
460-461; Kaiser, Congressional
Agency
Action to Overturn
Rules: Alterna
(1980).
“Legislative Veto,”
tives to the
L.
Ad.
Rev. 667
also n.
See
supra.
Const.,
20 Seealso
U. S.
Art. II
Arndt. 12.
exception
An
from the Presentment Clauses was ratified in Hol
lingsworth Virginia,
Since 244(c)(2) constitutional § not any express was within alone, one House to act and authorizing equally exceptions passed Congress by requisite of two-thirds which Houses the had both Const., majority. U. Art. V. See congressional might “exception” another to the rule that
One also include subject requirement and having the force of law be to the bicameral action in power Each House has the to act alone the Presentment Clauses. I, 2, 3, determining 7, els. cl. 2. specified internal matters. Art. and However, “exception” only empowers to bind itself and is this noteworthy only as the Framers’ intent that insofar it further indicates legally closely any binding not act in manner outside a circum- legislative arena, except specific and enumerated instances. scribed provided any pro- Although the bicameral check was not for in of these action, independent congressional precautionary for alternative visions II, § example, requires checks are evident. For Art. two-thirds treaty, present the concur in the to a rather than Senators Senate’s consent majority simple required passage legislation. the for See The Federal- (J. (A. Jay); Hamilton); The Federalist ist No. The Federalist No. Hamilton). (A. Similarly, pro- adopted No. 75 the Framers an alternative bicameralism, tection, by requiring in the stead Presidential veto and present the concurrence of two-thirds the Senators for conviction of holding §3. impeachment. I, Art. also note that the We Court’s to Hollingsworth, supra, proposing that a resolution an amendment President, subject presented Constitution not to two al- need be is protections. First, ternative a constitutional amendment must command Second, the votes two-thirds of each House. three-fourths of the states ratify any must amendment. that it was an exercise of legislative
clear that action power, to the standards in Art. I.22 subject prescribed was the Presentment requirement, Clauses, bicameral the Presi- veto, Congress’ dent’s to override a veto were intended to erect checks on each enduring Branch from the protect people exercise improvident power by certain mandating prescribed To those steps. preserve position one-House veto in this is a Powell’s case Justice judicial beyond and therefore authority act unconstitutional as vested Congress by agree Constitution. We that there is a sense in which pursuant judicial cast, pur action one-House has a since it ports case, example, sponsor to “review” Executive action. In this for vetoing suspension deportation argued the resolution of Chadha’s statutory requirements” “did not meet suspension [the] that Chadha Supra, sure, deportation. normally up at 926. To it is to the courts to agency complied statutory whether an decide has with its mandate. See attempted supra. analogy judicial n. But the between action perfect. enjoy roving one-House veto is less than courts Federal do alleged agencies; mandate to correct excesses of administrative we lim are hearing justiciable ited Art. Ill to cases and no controversies and case controversy presented by Attorney General’s decision allow *33 country. decision, Chadha to remain in this of We are aware no and Jus none, tice Powell has cited where a federal court has reviewed a decision Attorney of suspending deportation the pursuant General of an alien the to 244(a)(1). § surprising, given standards set out in This is not party that no right to such action has appeal either the motivation or the to from As it. notes, correctly 1001-1002, post, at “the courts have not Justice White given authority given per been the to an review whether alien should be status; manent Attorney review is limited to whether the General has applied properly statutory denying the request standards for” a for sus deportation. pension INS, of (1963), by Foti v. 375 U. S. relied on only by Attorney Powell, addressed “whether a refusal the Gen Justice grant to a suspension deportation eral of is of one those ‘final orders of de portation’ of which by Appeals direct is review Courts of authorized under 106(a) Id., Thus, § of the Act.” at 221. statement Justice Powell’s “clearly adjudicatory,” that one-House veto in post, this case is at simply is supported by not his accompanying assertion that the House has Post, ordinarily “assumed a function to the courts.” entrusted federal at 965. We are satisfied legislative purpose that one-House veto is in subject procedures effect and set out in Art. I. the carefully of powers, maintain the separation
checks, not be each Branch must limits on defined one by what been attempted has accomplish To eroded. in in action conformity this case requires Congress House of prescrip- of the Constitution’s procedures the express with of both by majority action: passage legislative tion for President.23 and presentment Houses 244(c)(2) § doubtless has been The veto authorized shortcut; with “sharing” a convenient many respects in this authority of its over aliens by Congress Executive In an face, purely on is, appealing compromise. manner its it is easier for action be taken terms, obviously practical it is President; crys- submission to the but House without one provi veto accept suggestion that the one-House Neither can we presen removes or modifies bicameralism and either sion affecting legislation aliens. requirements for the enactment future tation States, 186, 250-251, F. 2d Atkins v. Ct. Cl. See United denied, (1978); (1977), for 434 U. Brief Petitioner 1063-1064 cert. 80-2170, con p. explicit prescription for action No. 40. by legislation. supra. Art. I n. tained in cannot be amended See Attorney suggests action under that General’s Justice White 244(c)(1) suspending deportation equivalent proposal legisla- ato “by congressional approval the failure to tion and that because is indicated veto, requirement approval.” veto one-House satisfies the bicameral Post, However, noted, Appeals approach 997. as at the Court of analogize disapproval “would the effect the one house the failure affirmatively private one house to vote bill.” 634 F. 2d Even if arcane it were clear that entertained such an theory 244(c)(2), sug- when it enacted does not which Justice White gest, nothing amending this would amount I. The less than an Art. legislative steps formalities; they I outlined in Art. were de- empty are signed partici- to assure that the President both Houses pate lawmaking leg- in the mean authority. exercise This does not *34 always preceded debate; contrary, by islation must be we have said it necessary legislative body is not for a reasons for to “articulate its enacting Fritz, statute.” United States Railroad Retirement Board (1980). I, required by 1,§§ 449 U. steps But the Art. make certain an opportunity that there is deliberation debate. To allow and Congress to evade the strictures in effect enact Ex- Constitution and by proposals squared ecutive into law Art. I. mere silence cannot be with contemporane- tal clear from the records the Convention, writings and debates, ous that the Framers ranked other val- higher efficiency. than ues The records of the Convention preceding in the and debates states ratification underscore the common desire to define and limit the exercise of the newly powers affecting created federal the states people. expression There is unmistakable of a determina- legislation by step-by- tion that the national be a step, process. deliberate and deliberative having
The choices we discern as
been
in the
made
impose
governmental
Constitutional Convention
burdens on
processes
clumsy,
that often
inefficient,
seem
even unwork-
by
consciously
able, but those hard choices were
made men
government
permitted
who had lived under a form of
arbitrary govermental
go
acts to
unchecked. There
no
is
support in the Constitution or
of this
decisions
for the
Court
proposition
delays
that the cumbersomeness and
often en-
complying
explicit
countered in
with
constitutional standards
avoided,
either
the President.
Youngstown
Sawyer,
See
Sheet & Tube Co. v.
V congressional provision holdWe that the veto is severable from the Act that it is unconstitutional. Ac- cordingly, judgment Appeals of the Court of
Affirmed. Justice Powell, in the concurring judgment.
The Court’s decision, Clauses, based on the Presentment apparently every I, 7, Art. 2els. and 3, will invalidate use of holding gives veto. one The breadth of this pause. Congress literally has hundreds included the veto *35 clearly dating 1930’s. to the statutes, back of controlling delegation procedure as essential this views reasonably may agencies.1 power One to administrative of utility,2 disagree Congress’ of the veto’s but with assessment judgment respect as a coordinate branch of Gov- due its holding more exten- should be no cautions that our ernment my necessary In view, these cases. than to decide sive ground. may Con- a narrower When be decided on cases satisfy person particular gress statu- a does not finds that country permanent tory residence this it has criteria principle judicial in violation of the function assumed separation only Accordingly, powers. I in the concur judgment.
I A perceived “[t]he accumulation all The Framers judiciary powers legislative, in the same executive and many, one, a few or and whether heredi- hands, whether justly pronounced tary, appointed, may elective, self very tyranny.” p. definition Federalist No. (J. 1961)(J. Madison). ed. Theirs was Cooke not baseless rule, fear. Under British the Colonies suffered the abuses of attributed, unchecked executive that were at least popularly, hereditary monarchy. Levi, to a As- See Some pects Separation Powers, 76 Colum. L. Rev.
(1976); During Confederation, The Federalist 48. No. opinion explains,
1 As dissenting Justice White’s veto variety statutes, ranging has been included a wide from for exec bills post, reorganization utive Resolution. at War Powers See 968-972. complies Whether the veto with the Presentment Clauses well turn on particular exercised, context in which it I and would be hesitant every conclude that veto is on the the unusual ex unconstitutional basis of ample presented by litigation. this 2 Martin, Legislative Responsible See Veto and Exercise of Con Energy Consumer gressional Power, (1982); Council of Va. L. Rev. 253 FERC, America 34, 84, App. U. S. D. C. 673 F. 2d *36 by removing power the States reacted the from executive placing legislators. many and it in the hands of elected But legislators proved to be little better than the Crown. “The supremacy legislatures recognized came to as the su- premacy tyranny shifting majorities. of faction and the legislatures property, paper money confiscated erected suspended [and] ordinary collecting schemes, the means of supra, Levi, debts.” at 374-375. prevalent during
One abuse that was the Confederation judicial power by legislatures. was the exercise of the state acquainted danger The Framers were well with the of sub- jecting rights person the determination of one to the “tyranny shifting majorities.” Jefferson observed that Assembly Virginia members General in his native prevented judicial assuming power, had not been from and “'[t]hey accordingly many rights have in instances decided controversy.’”3 judiciary which should have left been supra, (emphasis original) The Federalist No. 48, at 336 in (quoting Virginia T. Jefferson, Notes on the State of (London 1787)). ed. The same concern also was evident reports body of the Council of the Censors, that was charged determining Pennsylvania Legisla- with whether the complied ture had with the State Constitution. The Council period during “[t]he found that this trial constitutional jury powers had violated; assumed, been which had not delegated by belonging [C]ases been the Constitution. . . . questioned degree insu Jefferson later to which the Constitution Term, judiciary. Malone, lates See D. the President: Jefferson Second 1805-1809, response pp. 304-305 In to Chief Justice Marshall’s rulings during trial, judiciary had Aaron Burr’s stated that the Jefferson clearly guilty favored Burr —whom as of treason —at Jefferson viewed “ expense people then country. predicted ‘will see He that the Constitution, any independent amend the error our which makes branch Id., Giles). (quoting of the nation.’” letter to William at 305 Jefferson’s controversy trial, however, very demonstrates that attended Burr’s forum, pressure, providing political wisdom removed from neutral person’s rights. for the determination of one department, frequently been] judiciary [had drawn cognizance The Fed- within and determination.” 48, at eralist No. 336-337. prevent recurrence of such abuses that the
It was to legislative, judicial pow- executive, Framers vested legislature separate Their concern that a ers in branches. unilaterally impose depri- a substantial should not be able only person expressed general in this on one vation specific power, provisions, but in more such allocation of also As Clause, I, 9, Bill of Art. cl. 3. as the Attainder *37 recognized Brown, 437, v. 381 U. Court United States (1965), 442 “the Bill of Attainder Clause was intended prohibition, . narrow, . . but rather as an as a technical general implementation separation powers, of the a safe- judicial guard against legislative or function, exercise legislature.” simply Clause, This and the more —trial generally, separation-of-powers doctrine reflect the Framers’ by legislature safeguards that trial lacks the neces- concern prevent power. sary the abuse
B not establish three branches with Constitution does Buckley precisely 424 Valeo, v. defined boundaries. See curiam). (1976) (per Rather, as Justice Jackson U. S. power better to wrote: “While the Constitution diffuses liberty, contemplates practice will inte- it secure also dispersed powers government. grate It into a workable enjoins upon interdependence, separateness but its branches autonomy reciprocity.” Youngstown Tube Co. & but Sheet (1952) judg- (concurring Sawyer, v. U. S. ment). boundaries thus has mindful Court been “according common between each branch should be fixed governmental co- sense and the inherent necessities Hampton States, 276 Co. v. United ordination.” J. W. & (1928). impaired branch has 394, 406 But where one U. S. sought branch, the another central to to assume Court has not hesitated to enforce the doctrine. See Buck- ley supra, Valeo, v. at 123.
Functionally, may ways. the doctrine violated two may impermissibly One branch interfere with the other’s performance constitutionally assigned of its function. See Nixon v. Administrator General Services, 433 U. S. (1977); (1974). United States v. Nixon, U. S. 683 Al- ternatively, the doctrine be violated when one branch properly assumes a function that more is entrusted to an- Youngstown Sawyer, supra, other. See Sheet & Tube Co. v. Springer Philippine 587; at Islands, 277 U. S. present These cases latter situation.4
I—Ht—i considering Congress impermissibly Before whether as judicial helpful briefly function, sumed a it is to recount Congress’ Jagdish Kenya, actions. Rai a citizen of Chadha, stayed country expired. in this his after student Al visa though deported, requested he was scheduled to be he Immigration suspend and Naturalization Service to his deportation statutory per he because met criteria *38 country. hearing,5 manent in this residence After a granted request required by Service Chadha’s and sent—as 4 pre The argue House and the Senate that the veto not does exercising constitutionally assigned vent the executive from its function. assuming argument correct, Even this is it not address the concern does judicial power expense Congress exercising that the of unchecked at prevent arbitrary precisely individual liberties. It was such action that g., e. See, adopted separation powers. Framers the doctrine of (1926) States, Myers (Brandeis, dissenting). v. United J.,. 272 U. S. 293 5 Service, Immigration Depart and a of the Naturalization division Justice, Nationality Act on behalf Immigration ment of administers the and Attorney General, primary responsiblity of the who has for the Act’s .§ enforcement. See 8 U. S. The Act establishes a detailed C. 1103. specific person is procedure determining administrative for when to be 1252(b), judicial decision, deported, provides see review this (1963). INS, Foti 1105a; see 375 U. S. report right the veto of its action to the reservation of —a Congress. report Congress Chadha, In on had before it addition to the persons deportations other whose also had the names suspended The House on the Service. Committee been persons, including Judiciary that six these decided country. to remain in not be allowed this Chadha, should Accordingly, resolution which House, it submitted a Representatives simply not that “the House does stated permanent granting approve residence United Cong. hereinafter named.” Rec. to the aliens States prior was not distributed The resolution Judiciary of the on vote,6 but the Chairman Subcommittee Citizenship, explained Immigration, and International Law to the House: feeling reviewing committee,
“It was the after that the aliens contained the resolution did cases, statutory requirements, particularly [the] as it not meet hardship; opinion it is the committee relates to deportation suspended.” Ibid. that their should be (remarks Eilberg). Rep. explanation vote, further and without a recorded
Without rejected six House the Service’s determination that these people statutory met the criteria. clearly adjudica- appears face,
On its
the House’s action
tory.7
general rule;
rather it
House did not enact a
acting
Normally
the resolution before
the House would have distributed
it,
Cong.
(1976),
providing for the
see 121
Rec. 40800
but the statute
veto the Service’s
legislative veto limits the time in which
deportation
See 8 U.
C.
suspended.
determination
should
1254(c)(2).
ap
report
it for
In
before
this case
had Chadha’s
days
year
half,
three
before
proximately a
failed to act on it until
but
*39
required to abandon
period. Accordingly,
the end of the
it was
limitations
resolutions,
thereby increasing the
procedures
considering
its normal
for
arbitrary
danger of
action.
ill-considered
legislative in character
Congress’
The Court concludes that
action was
sphere.”
assigned
its
“presumptively
within
act[s]
because each branch
Ante,
starting
point,
provide?
a useful
presumption
at 952.
Court’s
made its own determination that six
did not
specific persons
certain statutory
with
criteria.
It
comply
thus undertook
of decision that
type
has
traditionally
been left to other
House did not make de novo
if the
branches.
Even
a
deter-
mination,
simply
but
reviewed
Immigration and Nat-
uralization Service’s
it still
findings,
assumed a function
to
ordinarily entrusted
the federal
courts.8 See U. S. C.
§ 704 (providing
generally
judicial review
final agency
cf. Foti v. INS,
gress,” assumed this Court have held that a Congress impermissibly entrusted branch, function that the Constitution to another Springer Philippine id., Islands, see cf. 138-141; at v. S.,U. at 202. assumption the House’s this function impropriety that very danger
is confirmed the fact its action raises the the Framers to avoid —the exercise of unchecked sought In to de- deciding whether Chadha deserves power. is Congress any internal constraints ported, subject it from him the arbitrarily that prevent depriving right country.9 Unlike or an adminis- judiciary remain this is sub- Congress trative not bound established agency, stantive rules. Nor is it safe- subject procedural a guards, right hearing such as to counsel and before tribunal, an that are a court or an impartial present when individual effective agency10 adjudicates rights. only constraint on is but is Congress’ power political, accountable when it rules of politically prescribes gen- most decides applicability. rights specific per- eral When it sons, rights subject tyranny those are “the shifting majority.” Congress grants particular its When individuals relief benefits under
spending power, danger separation of oppressive action that the powers designed implicated. Similarly, may to avoid is not by special Acts, it authorize the admission of aliens but does not individual Congress unilaterally particular judgment follow that make a that legal right country. alien has to remain in Con no this See Memorandum cerning Deportation Harry H. “An R. 9766 Entitled Act to Direct the Cong., Sess., Bridges,” reprinted Rep. Renton in S. 3d No. 76th (1940). remarked, Attorney such a pt. p. 8 As General Robert Jackson practice American departure “would be an historical from an unbroken Id., practice tradition.” at 9. recognized independent agencies depart regulatory have We “judicial in authority is ments of the Executive Branch often exercise function, Buckley Valeo, This 140-141 nature.” U. S. subject however, part agencies’ public forms execution law review, by the Admin procedural safeguards, including judicial provided Act, 5, swpra. n. seq. et also istrative Procedure see 5 U. S. C. 651 See peculiar prov- Chief Justice Marshall observed: “It is the *41 legislature prescribe general ince of the to rules for the government society; application of those in- rules to society duty dividuals would seem to be the of other departments.” Fletcher v. Peck, 6 Cranch my apply In view, when undertook its rules to scope constitutionally it pre- Chadha, exceeded the of its authority. I question scribed would not reach the broader legislative whether vetoes are invalid under the Presentment Clauses.
Justice White, dissenting.
Today only the Court not invalidates of the Immigration Nationality and Act, but also sounds death nearly statutory provisions 200 other knell for in which Con- “legislative gress has reserved a veto.” For this reason, the surpassing importance. Court’s decision is of itAnd is for this reason that the Court would have been well advised to possible, grounds cases, decide the if on the narrower separation powers, leaving for full con- consideration the stitutionality congressional oper- of other review statutes ating powers agency on such varied matters as war rulemaking, independent regula- some of which concern the tory agencies.1 prominence legislative in our veto mechanism
contemporary political system importance its to Con- gress hardly can central overstated. It has become a respect
1 As separate opinion, Justice Powell in his “the due observes [Congress’] judgment as a coordinate branch of cautions Government holding necessary our should be no decide these more extensive than Ante, Appeals cases.” at 960. The Circuit also Court of Ninth recognized that “we in which the are not here faced with a situation unforeseeability complexity scope of future circumstances or the broad subject preclude the ar agency’s rulemaking authority matter of an specific ticulation of Such factors governing criteria in the itself. statute here, might present as to considerations we find both different from those separation question powers legitimacy the unicameral and the (1980) (footnote omitted). F. 2d device.” accountability of exec- means which secures the agencies. independent legislative utive and Without Congress is faced with a choice: either re- veto, Hobson’s authority, delegating necessary leaving itself frain from writing hopeless requisite speci- with a task laws with the ficity special to cover endless circumstances across the entire policy landscape, in the its alternative, to abdicate law- making independent Branch and function to Executive agencies. prob- major To choose the former leaves national opt unresolved; lems policymaking for the latter risks unaccountable to fill those elected that role. Accord- ingly, past five has decades, over the veto *42 placed nearly The in been in 200 statutes.2 device is known every reorganization, budgets, governmental concern: field powers, regulation safety, foreign affairs, trade, war and energy, economy. the environment, the
I—i legislative developed initially response The veto in to the problems reorganizing sprawling Government struc- response Reorga- Depression. ture in created to the legislative nization Acts established the chief model for the requested authority to reor- veto. President Hoover When ganize coupled request he his Government “Congress willing delegate authority to its over the problem (subject principles) Executive” to defined proposal legislative proposed that the with review. He upon approval joint Executive act of a committee “should by Congress or with the of revision reservation Congress period adequate consid- within some limited for its Papers Hoover, Presidents, eration.” Public Herbert (1974). Congress p. Hoover’s followed President legisla- subject suggestion reorganization to and authorized provisions appended description A selected of these list and brief opinion. this Act review. of June 414. Al- 30, 1932, 407,
tive though Stat. reorganization authority reenacted did legislative provision, provision contain a veto returned during the Roosevelt has since re- administration and been years, provision newed numerous times. Over the extensively. Reorganization used Presidents submitted Congress by Congress disapproved Plans to of which 23 were legislative pursuant provisions. App. veto A Brief See Reargument. on for United States Senate adoption Shortly Reorganization after of 1939, Act Congress applied legisla- President Stat. procedure delegation problem veto to resolve the tive for na- security foreign tional II affairs. World War occasioned greater authority to transfer the need to the President legislative these areas. veto offered the means authority pre- which could confer additional while serving During its constitutional role. II, own World War conferring powers enacted over 30 statutes provisions.3 the Executive with veto President accepted necessary price Roosevelt the veto as the for ob- taining exceptional authority.4 century quarter following
Over World II,War Presi- accept legislative dents continued vetoes one or both regularly denouncing provi- constitutional, Houses as while *43 by congressional sions which Committees Execu- reviewed activity.5 legislative delegations tive The of veto balanced 3Watson, Congress Steps Congressional AOut: Look at Control of the Executive, 983, (1976) statutes). (listing 63 L. Rev. Calif. 1089-1090 4The proposed containing Roosevelt administration legislation submitted provisions g., e. See, veto and defended their constitutionality. General Administration, Counsel to the of Office Price Statement on Constitutional ity of Concurrent Proposed Resolution Provision of Bill Price Control (H. 5479), reprinted R. Hearings Price-Control Bill: H. 5479 on R. Banking before House Committee on Currency, Cong., 1st 77th (1941). Sess., 1, p. pt. 983 veto, objections 5 Presidential by to the until of the veto President Nixon Resolution, the War principally authorizing Powers concerned bills Com- 970 of involve- governmental in new areas authority
statutory on nu- agreements international the space program, ment: of federal arrangements, adjustment tariff clear energy, rates.6 pay in re- veto was legislative important the 1970’s the
During between the major disputes constitutional a series solving of the President to broad over claims and Congress President emergency powers. and national war, impoundment, Separation on of Powers As the Senate Subcommittee mittee vetoes. years ago legislative ve- 1969, was reached on found in “an accommodation by House, disputes [while] the entire one toes exercised Rep. the committee form of the veto.” S. continued to arise over have (1969). 91-649, Kennedy proposed en- p. No. 14 Presidents and Johnson legislative provisions. with veto See National Wilder- actment of statutes Hearings on S. 4 before the Committee on ness Preservation Act: Senate (President (1963) Affairs, Cong., Sess., 4 Interior Insular 88th 1st areas); Kennedy’s Mes- proposals for withdrawal wilderness President’s 1970, sage Congress Transmitting Budget Year for Fiscal (President (1969) 70, Weekly Comp. proposals Pres. Doc. Johnson’s allowing surcharge). legislative veto tax administration of Presi- Kennedy constitutionality supporting dent submitted memorandum legislative Department Agricul- of the veto. Counsel of the See General 6400, I ture, Constitutionality Cong., of Title of H. R. 1st 87th Session (1961), reprinted Legislative Policy Budget: of the Bureau of the Hear- ing on Conservation and Credit of the House before Subcommittee Cong., Sess., During Agriculture, 27,31-32 on 89th Committee 2d Johnson, Department again the administration President of Justice constitutionality provision defended Re- veto organization Act, provisions as contrasted veto. with for Committee Separation Hearings Separa- See of Powers: before the Subcommittee Judiciary, Cong., tion of Powers of the Committee on the 90th 1st Senate (1967) Sess., (testimony Wozencraft, Attorney of Frank M. Assistant Counsel). Legal General for Office of Space 85-568, §302, National Aeronautics and L. Act Pub. (space program); Energy Stat. 433 Atomic Pub. Act Amendments 85-479, 4,§ L. (cooperative Ex agreements); Stat. 277 nuclear Trade pansion 87-794, § 899,19 Act of Pub. L. U. C. 1981 Stat. (tariff recommended imposed International Trade Commission *44 by approval); Salary concurrent resolution of Postal Revenue and Federal 1967, Act 90-206, §255(i)(l), L. Pub. 81 Stat. 644.
971 War 50 C. key Resolution, Powers U. S. provision 1544(c), by authorizes termination concurrent resolution of the use of A measure armed forces hostilities. similar resolved the problem posed by Presidential claims of inherent impound appropriations. Congressional Budget Control Act 31 Impoundment 1974, U. S. C. 1403. conference, In a compromise was achieved under per- which manent impoundments, “rescissions,” termed would require enactment of In through contrast, approval legislation. tem- “deferrals,” or porary impoundments, would effec- become tive by unless one House. This disapproved compromise provided the President with while ulti- flexibility, preserving over congressional budget.7 mate control Although War Powers Resolution was enacted over President Nixon’s veto, Act Impoundment Control was enacted with the President’s These statutes were approval. by followed oth- resolving ers similar the National problems: Emergencies Act, §202, 1255, 50 U. S. C. §1622, resolving Stat. with unchecked longstanding problems Executive emergency the International Arms Ex- power; Security Assistance and Act, §211, 740, Control port 2776(b), Stat. U. S. C. resolving problem foreign sales; arms and the Nuclear §§ Non-Proliferation Act 303(a), 304(a), 307, 401, 134, 137, 144-145, §§ Stat. U. S. C. 2160(f), 2153(d) (1976 2155(b), 2157(b), 2158, ed., V), Supp. resolving problem nuclear exports technology. In field, energy veto served to balance legislative broad delegations legislation emerging from the energy crisis of the 1970’s.8 In the field, educational it found Impoundment provision Control Act’s has review extensively. used been Presidents of proposed have submitted hundreds budget deferrals, of which disapproved 65 have been resolutions protest House Senate with no B App. the Executive. to Brief See Reargument. for United States Senate appears The veto statutory delegations concerning a host of broad rationing, energy contingency reserves, plans, strategic oil allocation *45 972 lead “inevitably programs narrow grant and
that fragmented in- they because confrontations” to Executive-Legislative authority. Education’s limited the Commissioner aptly (1974). response grant 69 93-763, No. Rep. p. S. sub- rulemaking authority, of Education the Commissioner area, regulation In the trade veto. to a ject legislative the Federal authority over congressional veto preserved mandate to make rules prevent broad Trade Commission’s prac- “unfair or acts or deceptive from engaging businesses in commerce.”9 tices that the leg- suffices to demonstrate
Even this brief review “efficient, convenient, and useful.” is more than islative veto Ante, if indispensable It is an important political at 944. and to resolve that allows the President invention differences, and assures policy constitutional major pre- and independent regulatory agencies, accountability materials, petroleum energy exports, pro oil and naval reserve production 1976, L. Reserves Production Act of Pub. duction. Naval Petroleum 94-258, 7422(c)(2)(C); Policy § §201(3), 309, Energy 10 C. 90 Stat. U. S. Act, 159, 201, §§ 94-163, 401(a), 455, L. Conservation Pub. and and 950, 6261, §§ 6239 886, 890, 941, and 15 U. S. C. Stat. U. S. C. reserves, rationing (strategic contingency plans, §§ oil oil 757 and 760a allocation); Energy price product Federal Nonnuclear Re controls and 93-577, §12, Development search and Act Pub. L. Stat. (allocation 1892-1893, production materials); § energy 42 U. C. 5911 16, 1973, 93-153, Act of Nov. Pub. L. 87 Stat. 30 U. S. C. 185(u) (oil exports). agency’s Congress found that under the “very authority prohibit deceptive’. broad conduct which is . . ‘unfair regulate virtually aspect every can commercial FTC of America’s merely interpretations . life. . . The FTC’s rules are not narrow of a statute; tightly instead, they pronouncements policy drawn are broad obligation study Cong. which has an Rec. review.” (1978) (statement by Rep. Broyhill). A legislative delegation. two-House veto was added to constrain that broad Improvements 1980, 21(a), Federal Trade Commission Act of 94 Stat. §57a-1(a) (1976 V). ed., Supp. constitutionality 15 U. S. C. provision presently pending before us. United States Senate 82-935; Commission, Federal Trade No. Repre United States House of Commission, sentatives v. Federal Trade No. 82-1044.
serves control over Congress’ lawmaking. Perhaps there are other means of accommodation and but accountability, reliance of increasing Congress upon veto *46 to which the alternatives suggests Congress must now satisfactory.10 turn are not entirely 10 Congress write greater specificity, While could certain statutes with it unlikely is that this is a realistic or even legisla desirable substitute for the The of many prevent tive veto. controversial nature issues would Con agreement gress reaching many major problems from specificity if were Fuchs, in required their enactments. Agencies Administrative and the Energy Problem, 606, (1972); Stewart, 47 Ind. L. J. Reformation of Law, (1975). American Administrative 88 Harv. L. Rev. 1695-1696 example, context, in deportation For the the Congress solution is not for to categorizations deportable create more refined of the aliens whose status subject change. Immigration should be to In and Naturalization proposed regulations setting Service forth factors to be considered provisions Act, exercise of discretion under numerous but not includ ing 244, adjudication appropriate to ensure “fair and uniform” “under dis (1979). cretionary Reg. criteria.” proposed Fed. The rule was “[tjhere any canceled in because is attempt an inherent failure to list those factors which should be considered in the of exercise discretion. impossible It is to list or foresee all of the adverse or favorable factors may present given which in a set of Reg. circumstances.” 46 Fed. Oversight hearings congressional investigations purpose, have their Congress but unless debating society, to be rendered a think tank they no authority. are substitute for “delaying” the exercise of actual procedure approved Co., (1941), in Sibbach v. Wilson & U. satisfactory measures, while shortcomings. certain has Be- its own passed cause a new action, law must be to restrain administrative Con- gress delegate authority must ability being without the certain of able to check its exercise.
Finally, passage legislation agency of corrective regulations after take effect or Executive Branch officials have acted entails the drawbacks endemic response. legis- retroactive “Post hoc substantive revision lation, only postenact- available corrective mechanism in the absence prejudicial Congress ment review could consequences; have serious if ret- roactively tampered price system prices set, with a control after have been economy damaged private rights seriously impaired; could be if Congress foreign country, rescinded the sale of arms our relations with country strained; severely would be and if reshuffled the bu- reaucracy reorganization proposal effect, after a President’s had taken history legislative makes clear that it veto also Congress has struck out to with which has not been a sword expense aggrandize other branches —the at the itself Rather, the veto has Hamilton. Madison and concerns authority ultimate a reservation of defense, a means been necessary designated role under fulfill its if is to has While President I the Nation’s lawmaker. Art. as generally legislative objected particular vetoes, often congressional Ex- Committees, the the hands those left agreed as review the has more often ecutive delegation authority. price sure, To be broad for a preferred power, unrestricted but that have President thought precisely why Congress it essential to retain couldbe authority. delegated on the exercise of a check *47 t—i H-i apparent sweep the reasons, For these of Court s all regretable. ap- today analysis Art. I is The Court’s decision legislative irrespective pears invalidate all vetoes of form to subject. legislative commonly is Because the veto found upon agencies rulemaking by as a check administrative upon policy Branch, broad-based decisions of the Executive it particularly that the Court its unfortunate reaches decision involving deportation in cases the exercise of a veto over regarding particular decisions individuals. Courts should always wary striking be of statutes as to unconstitutional; strike an entire of class statutes based on consideration of a atypical readily exemplar somewhat and more of indictable irresponsible. the class is It for cases as such these that Justice Brandéis wrote: ‘great frequently
“The Court has called attention gravity delicacy’ passing upon of its function validity Congress of an act .... Klein, results could Congressional Oversight be chaotic.” Javits & Legislative Analysis, 455, A Veto: Constitutional 52 N. Y. U. L. Rev. (footnote (1977) omitted). ‘formulate
“The Court will not a rule constitutional precise broader than is facts to required law Liverpool, N. Y. P. & S. S. which it is to be applied.’ Emigration Commissioners, Co. v. [113 U. S. TVA, Ashwander v. (1885)].” U. S.
(1936) (concurring opinion). so Unfortunately, is not limited.11 today’s holding 11Perhaps wrong open I am and the Court remains whether consider legislative certain forms of the veto are reconcilable with the Art. I re quirements. possibility accept One Court and is to given disapproval legal right, a resolution of be effect in cannot its own may guide interpretation delegation but serve as a law making authority. The exercise of the veto could be read as a manifesta legislative intent, which, contrary authorizing tion unless itself statute, Therefore, serves as the definitive construction statute. an agency by Congress rule vetoed would not enforced in be the courts be agency departs congres cause the veto indicates action from the sional intent. steps
This limited role for a redefined
veto follows in the
practice
weight
longstanding
giving
subsequent legislative
some
rulemaking.
reaction to
administrative
silence
after con
practice by
of a
equivalent
acquiescence
sideration
the Executive
practice
and consent that the
until
be continued
exercised be re
Co.,
voked. United States v. Midwest Oil
236 U. S.
472-473
Rusk,
(1965)
1, 11-12
Zemel
congressional
See also
v.
(relying
381 U.
interpretation); Haig Agee,
repeal
failure to
administration
453 U. S.
States,
(1981)
University
Bob Jones
v. United
(same);
If veto the legislative its broad would ruling today to suggest, the Court strives of the But, constitutionality leg- more comprehensible. The issue divides is but clear-cut. anything veto islative and the two other courts,13 Attorneys General,14 scholars,12 pass amendment, example, may indicate refusal to an The standable. position but could mean that believes opposition By contrast, written. the ex- is redundant with the statute as amendment agency legislative veto is an unmistakable indication ercise of a suggest that the at issue is disfavored. This Executive decision any pass given weight whatever. a veto resolution should be failure 12 veto, generally legislative see Abou commentary favorable For rezk, Congressional Contemporary Response A to Executive En Veto: (1977); Cooper Legislative Prerogatives, 52 Ind. L. J. 328 croachment on Constitution, 30 Cooper, Legislative The Veto and the Geo. Wash. & Congressional (1962); Dry, The Veto and Constitutional L. Rev. 467 Powers, Presidency Separation in The in the Order 195 Constitutional (J. 1981); Klein, 455; supra & Tulis eds. Javits & n. at Bessette J. Congressional Knapp, Preserving The Veto: Miller & Constitutional (1977); Framework, Nathanson, Separation L. J. 367 of Powers and Ind. Delegation, Legislative Veto, Administrative Law: and the “Inde Keaton, pendent” (1981); Agencies, 75 Nw. U. L. Rev. 1064 Newman & Legislators Super Congress and the Faithful Execution of Laws - Should Administrators?, (1953); Pearson, A Oversight: vise 41 Calif. L. Rev. 565 Neglected Function, (1975); Congressional Yet Vital Kan. L. Rev. 277 Rodino, Action, Congressional Review of Executive 5 Seton Hall L. Rev. Schwartz, (1974); Legislative Veto and the Constitution —A Reexami nation, (1978);Schwartz, Legislative L. Rev. 351 Geo. Wash. Control Regulations: I. Experience, Administrative Rules and The American (1955);Stewart, Constitutionality Legislative N. Y. U. L. Rev. 1031 Veto, Legis. 13 Harv. J. commentary generally veto, For unfavorable to the see Bolton, Legislative Unseparating (1977); J. Veto: Bruff Powers Gellhorn, Congressional Study & Control of A Regulation: Administrative Vetoes, Legislative (1977); Dixon, Congres 90 Harv. L. Rev. 1369 Leash?, Separation sional Veto and of Powers: The Executive On FitzGerald, (1978); N. Congressional Oversight C. L. Rev. 423 or Con gressional Foresight: Fathers, Founding Guidelines From the 28 Ad. L. Ginnane, (1976); Rev. 429 The Control of Federal Administration Con gressional Committees, (1953); Resolutions and 66 Harv. L. Rev. 569
977 (cid:127)branches of the National Government. If the veto devices so flagrantly disregarded of Art. I requirements as the I today suggests, Court find it incomprehensible that Con- gress, whose Members are bound oath to uphold Con- have stitution, placed would these mechanisms in 200 nearly over a laws of 50 separate period years.
The
reality
situation is that the constitutional ques-
today
tion
one of
posed
immense difficulty over which
and Legislative
Executive
Branches —as well as scholars
and judges
understandably disagreed. That disagree-
—have
ment stems from the silence of the
on the
Constitution
pre-
cise
The Constitution does
question:
directly
authorize or
prohibit
legislative veto. Thus, our task should be to de-
termine whether
the legislative veto is consistent with the
I
of Art.
and the
purposes
principles
separation
powers
which are reflected
that Article and
throughout
Con-
Henry,
Legislative
Limits,
The
Veto: In
Search Constitutional
16 Harv.
(1979);
Legis.
Martin,
J.
Legislative
735
The
Responsible
Veto and the
Power,
Congressional
(1982);
Exercise of
Scalia,
68
L.
Va.
Rev. 253
Legislative
Remedy
A
System Overload, Regulation
Veto:
False
For
3
19
(Nov.-Dec. 1979);Watson,
supra
n.
3, 983;Comment,
Congressional
at
Over-
sight
Defining
Proper
Legisla-
Administrative Discretion:
Role
Veto,
(1977);Note, Congressional
tive
26 Am. U. L. Rev.
of Ad-
1018
Veto
Challenge,
Response
ministrative Action: The Probable
to a Constitutional
285;
Developments,
Legislative
1976 Duke
L. J.
Recent
Veto
(1977).
Export
1976,9
Pol’y
Arms
Act
Control
Law &
Int’l Bus. 1029
States,
Atkins v.
13 Compare
186,
United
214
14 See, Justice, (1854);Dept. Memoran Gen. Constitutionality Reorganization Proposed dum re Bills of Provisions in Cong., Pending Congress, Now 81st 1st reprinted Rep. in S. No. Sess., (1949); Jackson, Legal Opinion, 19-20 66 Harv. L. A Presidential (1953); Atty. Op. 10, p. Rev. 1353 Gen. No. *50 specific find the lack constitu- We should not of stitution.15 legislative surprising, for the veto tional authorization disapproval I of the mechanism from would not infer its present of the From the summer 1787to the Gov- absence. has become an endeavor ernment of the United States far Only contemplation beyond the of Framers. within the the complexity century size of the half has the Federal last grown greatly responsibilities so the Government’s legislative rely veto most must as the effec- only if means to insure its role as the Nation’s tive not the anticipate of the Framers was to lawmaker. But wisdom grow problems governance Nation would and new of that the require Accordingly, would different solutions. our Federal intentionally flexibility chartered with the Government was contemporary losing sight respond needs without of principles. spirit This fundamental democratic penned his influential concurrence which Justice Jackson the Steel Seizure Case: governing
“The actual art of under our Constitution judicial and cannot conform to definitions does not any power its branches based on isolated clauses single torn from even Articles context. While the Con liberty, the better to secure it stitution diffuses contemplates practice integrate also will the dis Youngs persed powers government.” into a workable Sawyer, town Tube Sheet & Co. v. U. S. perspective approach This is the from which we should presented by legislative questions novel constitutional my nor In I view, veto. neither Art. of the Constitution powers separation is violated this mecha- doctrine my require either 15 I concern here vetoes which limit to those pass approval or dis one or both Houses of resolutions arising from exercise of such approval, questions aside the and leave powers by Congress. Committees
nism which our elected Representatives preserve their voice governance Nation.
hH r—H HH The Court holds that of a disapproval suspension *51 by the deportation resolution of one House of Congress is an exercise of legislative without power with the compliance prerequisites lawmaking set forth in Art. I of the Consti- tution. Specifically, the Court maintains that the provisions 244(c)(2) §of are inconsistent with the of requirement bicam- eral § in Art. approval, implicit I, 1, and the requirement that and all bills resolutions that require concurrence of both Houses be presented President, Art. I, §7, els. 2 and 3.16
I do not dispute the Court’s truismatic of these exposition is Clauses. There no that a bill question does not become a law until it is by both the House approved Senate, and and presented the President. I would not hesitate Similarly, to strike an action of in the Congress form of a con- current resolution which constituted an exercise of original I lawmaking authority. with the that the Presi- agree Court agree Rehnquist with Justice that did not intend the one- 16 I provision Although general House of to be veto severable. presence saving rule presumption is that the clause creates a of divisi bility, Refining Corporation Oklahoma, Co. Champlin Comm’n (1932), saving U. S. I read the clause contained in 406 of the Im migration Nationality primarily pertaining severability as Act major parts another, divisibility of the Act from one not the different provisions Surely, Congress single within a section. the natu would want provisions deportation ralization the Act to be severable from the sec support preserving tions. this does not But without the any saving provision justify preserving immigra veto more than a would authority quota tion without limits. years Congress
More is relevant the fact that for 40 has insisted retaining suspension frequently re- voice on individual cases —it has jected place Branch. It authority bills which would final in the Executive history, is clear this believed its retention crucial. Given rewriting Congress. will of Court’s Act flouts the qualified veto is a critical element the distri- dent’s powers widely under Constitution, bution endorsed among the and intended to serve the President as Framers, against legislative encroachment and to check a defense through “passing inadvertence, of bad laws, haste, (H. 1888) p. Lodge design.” The Federalist No. ed. Hamilton). (A. reveal that it The records Convention purpose figured prominently I first which most but is the acknowledge vitality Id., 443. I also of the second. at §§ agree approval required by I, 1, 7, that the bicameral Art. scarcely to the Framers than was the “was of less concern veto,” ante, Presidential at the need to divide disperse legislative power figures significantly in our All of III the Court’s this, scheme of Government. opinion, Part entirely unexceptionable. question not, however, It answer the constitutional does *52 the us. The to exercise a veto is not before approval power to write new law without bicameral or Presi- by The veto must be authorized stat- dential consideration. only negative department may ute and what an Executive or legisla- independent agency proposed. face, On its has House of to make law tive veto no more allows one power upon the Presidential veto confer such than does recognizes Accordingly, properly that President. Court challenged it action “must nevertheless establish that the § procedural is of re- under the kind to which the every quirements apply” “[n]ot I, 7, Art. and admits that by subject action taken either House is bicameralism presentation requirements Ante, of Art. I.” at 952.
A only suggest that The terms of the Presentment Clauses requirements equivalent subject their to the bills and are presentment passage Arti- to the President. bicameral “Every only stipulates shall Bill which I, cle cl. 2, Representatives passed Senate, and the have the House of presented shall, it becomes a law, before be to the President” approval disapproval, disapproval subject his then being by overridden a two-thirds vote of both Sec- Houses. goes tion cl. further:
“Every Order, Resolution, or Vote to which the Con- Representatives currence of the Senate and House of necessary (except question Adjournment) be on a presented shall be President the United States; approved and before the Same shall take Effect, shall be being disapproved by repassed him, or shall him, Represent- two-thirds of Senate and House of according pre- atives, to the Rules and Limitations scribed of a Bill.” Case Although specify does Clause the actions for which “necessary,” proceed- the concurrence of both Houses is ings Philadelphia suggest purpose at the Convention its prevent Congress circumventing presentation from re- quirement making legislation. in the of new James Madison observed that if the bills, President’s veto was confined to it by calling proposed could be evaded law a “resolution” or Accordingly, proposed “vote” rather than a “bill.” he “or resolve” should be added after in what is now “bill” 2 of Clause 7. M. Farrand, Records Federal pp. of Convention 301-302 After a short dis- subject, rejected. cussion on the the amendment was On following day, Randolph proposal however, renewed the appears, the substantial form passed. it the motion as now *53 Id., 304-305; at on the Federal Elliot, J. Debates (1845). language, Constitution 431 Madison’s The chosen brevity consideration, comment, of the the Convention’s suggest and no all a modest role for the Clause was intended contemplated. congressional authority broad restraint Constitutionality Legislative Veto, 13 Stewart, See of the (1976). reading Legis. Harv. is consist- J. 609-611 This background ent with the historical of Presentment Clause the only itself which reveals concerned that the Framers were for legislation. the methods new The limiting enacting with of experience Pennsylvania Framers were aware the had evaded the attached legislature requirements where the “resolves,” the of legislation by of use passing at this the Council of Cen- practice by criticisms directed is no There record that the Convention contem- sors.17 Art. I intended, let alone these requirements plated, be to restrain the of someday scope would invoked congres- duly enacted law.18 authority pursuant sional Pennsylvania required public “bills of [a] Constitution all na printed being after introduced and had to lie over until the ture” had adoption. Const., §15 following legislature session of before Pa. (1776). layover requirements applied only printing and These “bills.” resolve, time, At the measures could also be enacted as a which was al legislation” “urgent temporary as without such lowed Constitution Nevins, During requirements. and After the A. The American States (1969). method, Using Pennsylvania Legislature Revolution 152 this routinely layover adoption printing requirements through of evaded resolves. Ibid. Censors, body report
A of of a state committee the Council responsible periodically reviewing government’s adherence to for the state Constitution, enacting procedures legislation for had charged its that the Report though adoption been instead of bills. evaded resolves (1784). Nevins, supra, at the Committee of the of Censors 13 See Council years 190. Convention assem- When three later the federal Constitutional Philadelphia, reminded, in of discuss- delegates bled in were the course ing veto, dangers pointed the Council Cen- the President’s of the out (1845). Report. Elliot, sors 5 J. Debates on the Federal Constitution Furthermore, Madison, the Presentment the motion that led to who made Clause, No. Report, The Federalist knew the Council of Censors (H. experience. Lodge 1888), Pennsylvania p. 319 ed. and was aware of the previously recog- We have supra, See Federalist No. at 311-312. interpreting the Report in nized the relevance of the Censors Council of McCormack, 529-530 Constitution. See Powell v. 395 U. S. congressional enact Although not a feature veto was demon Congresses first century, practices ments until the 20th of the as constitutional I strate that the constraints of Art. were envisioned began practice straitjaeket. Congress, example, The First pas arming investigatory powers without its Committees with broad Ameri- History A sage legislation. Josephy, On the Hill: See A. *54 the When Convention did turn its attention to the scope of Congress’ the Framers lawmaking power, were expansive. The Necessary §8, and Art. cl. Proper Clause, I, 18, vests (1979). directly can 81-88 pertinent More is the Congress’ First of treatment the Northwest Territories Ordinance 1787. The Ordi- nance, initially 13, drafted under the July Articles of Confederation on 1787, the governed territory was document which the the United States northwest of the Ohio River. The authorized Ordinance the Territories to laws, subject adopt to disapproval Congress. governor them, judges, majority adopt
“The publish and or a shall district, original states, civil, in the such laws of the criminal as be necessary, and district, report best suited to the circumstances of the Congress, time; them to from time to shall which laws be in force in the until organization general assembly therein, district unless dis- approved by Congress; legislature but afterwards the shall have author- added). ity they (emphasis to alter them as shall think fit” ratified,
After Constitution Ordinance was reenacted to con- requirements Aug. 7, 1789, 8, form to the Constitution. Act of ch. provisions, relating appointment Stat. 50-51. Certain such as one by Congress, changed concerns, officials were because constitutional but language allowing by Congress disapproval Subsequent was retained. provisions language. See, g., for territorial laws contained similar e. U. S. C. 1478.
Although Congress disapproved at times passing of territorial actions see, legislation, g., 3, 1807, 444, 44, e. Act of on at Mar. ch. Stat. least Congress passed two ter- disapprove occasions one House of resolutions to laws, only ritorial for pass to have the other House fail to the measure rea- pertaining subject First, February sons matter of the bills. on Representatives disap- passed House of a concurrent resolution proving judges sweep one all but one of the laws that Governors and Territory passed August of the Northwest had at a session on Senate, however, 1792. 4 concur. Cong. Annals of refused to 1227. Id., Bond, at 830. B. The Civilization of the Northwest 70-71 See Old (1934). Second, May 9, 1800, passed disap- the House a resolution prove Mississippi of a on taverns. imposing territorial law a license fee (1826 ed.). Jour., H. R. Cong., Sess., 6th unsuccess- 1st Senate fully attempted of the Mis- to amend the resolution to strike down all laws Carter, sissippi Territory enacted Territorial since June 1799. 5 C. Papers of The histories of Mississippi the United 94-95 States — Territories, era, congressional Re- correspondence and the ports disapproving contain no of territorial indication that such resolutions presented authorization laws were to the President or that the *55 power “[t]o Congress all with the make Laws which shall be proper carrying necessary into Execution the fore- powers [the §8] going all enumerated other Powers in the this Constitution Government of Powers vested any Department or in or Officerthereof.” It States, United Congress may judgment long that “exercise its best is settled carry measures, into the selection execution government,” powers of the and “avail itself constitutional experience, and to accommodate its reason, to exercise its Maryland, legislation v. circumstances.” McCulloch 316, 415-416, 420 Wheat.
B modem, approving The Court heeded this counsel holding today The Court’s that all administrative state. through legislative-type action must be enacted the law- legislative routinely making ignores authority process is independent delegated Branch, Executive regulatory agencies, private groups. and to individuals and probably
“The rise of administrative bodies has been significant legal century. . of the . . the most trend last They become a fourth branch of the Gov- have veritable legal deranged which has our three-branch the- ernment, Co., . . . .” FTC v. Ruberoid ories U.
(1952) (Jackson, dissenting). J. 7, 1789, “congressional Aug. of doubtful such a veto” in the Act constitutionality. dispositive of practices of the First so clear as to be are not question surely significant But
the constitutional now before us. it I body, largely composed Art. and se- this of the same men who authored Constitution, as for- cured ratification of the did not view the Constitution Hamp- J. W. bidding day legislative precursor veto. See modem (“In (1928) States, ton this first & Co. United 276 U. S. many of 1787. Convention sat members the Constitutional contemporaneous repeatedly principle has that a This Court laid down the gov- of our legislative exposition of the founders the Constitution when actively participating of our were ernment and framers Constitution given its public affairs, long in, to be acquiesced fixes the construction provisions”). sanctioning delegations
This Court’s decisions such make require Art. I clear that does not all action with the effect of passed legislation to be as a law.
Theoretically, agencies
only
and officialswere
“fill
asked
up
“Congress
details,”
and the rule was that
cannot dele-
gate any
part
power except
of its
under the limita-
*56
prescribed
Chicago,
tion of a
standard.”
States v.
United
(1931).
M.,
P. R. Co.,
St. P. &
282
U. S.
324
Chief Jus-
Hampton
tice Taft elaborated the
standard
J. W.
& Co. v.
(1928): Congress
United
276 U. S.
States,
394, 409
“If
shall
lay
by legislative
intelligible principle
down
act an
to which
person
body
or
fix
authorized to
such rates is directed to
delegation
such
conform,
action is not a forbidden
legislative power.”
practice,
In
however, restrictions
scope
delegated
that could be
diminished
disappeared.
only
and all but
In
two instances did the Court
delegation.
Refining
find an unconstitutional
Panama
Co.
Ryan,
(1935);
v.
Poultry
The wisdom and the of these broad dele- gations put are matters have not been to rest. But that still present purposes, virtue of these cases establish congressional delegation, legislative power can be exercised by independent agencies departments without and Executive passage legislation. time, the sheer For some new regulate private amount of law—the substantive rules that operation government conduct and direct the —made lawmaking engaged agencies outnumbered has far process. through There no by Congress is the traditional rulemaking lawmaking any agency is question but the term. Administrative sense of or realistic functional 551(4), provides that a “rule” is 5 U. S. C. Act, Procedure interpret, “designed implement, agency statement an agencies policy.” prescribe are authorized law or When through rulemaking, prescribe the adminis- law substantive only regulation deference, is not due but accorded trator’s g., Gray “legislative Panthers, e. Schweiker See, effect.” (1981);Batterton v. Francis, 43-44 U. S. 453 U. S. (1977).19 regulations bind courts and officers of These g., may pre-empt see, Government, law, state e. the Federal Savings Fidelity Assn. la Cuesta, Federal & Loan v. De (1982), rights obligations grant impose to and U. S. they public. sum, In have force of law. on the Congress may delegate lawmaking power independ- If *57 agencies, to Executive it is most difficult understand ent and prohibiting Congress reserving Art. I from also a check on as legislative agencies power veto, for itself. Absent the legislative power receiving delegations quasi-legislative of or regulations may having the of law bicam- issue force without substantive, by pur “Legislative, regulations agency are or ‘issued an statute, statutory authority implement as, . . for exam suant and . ple, proxy by Exchange rules Commission issued the Securities and Dept, . . . . of of Jus Such rules have force and effect law.’ U. S. tice, Attorney Act General’s Manual on the Administrative Procedure (1947).” Francis, Batterton v. S., n. 3 432 U. at n. 9. clearly lawmaking agency regulations
Substantive
exercises of
au
are
thority; agency interpretations
only arguably so. But
of their statutes are
‘interpre
Henry Monaghan
agency
as
has
“Judicial deference to
observed:
simply
way
delegation
lawmaking
of
of
recognizing
tation’
law is
one
a
agency.” Monaghan, Marbury
authority an
the Administrative
deleted).
g.,
(1983)
e.
State,
See,
(emphasis
Colum. L. Rev.
Publications,
Inc.,
NLRB
NLRB v.
(1944);
v. Hearst
S. 111
U.
County
Membership Corp.,
Hendricks
Rural
Electric
S. 170
U.
eral
and without
the President’s
It is
approval
signature.
thus
the reservation
a veto over the
apparent why
exercise
must be
to a more
legislative power
subject
In
exacting
cases,
test.
both
it is
that the initial
enough
stat-
I
utory authorizations
with the Art.
comply
requirements.
Nor are
agents
there strict
limits on the
that may receive
delegations
such
so that
it
authority
might
said that the Legislature can
but
delegate authority
others
not to itself. While most
to issue rules and
authority
regula-
tions
to the Executive
given
Branch and the independent
agencies, statutory
regulatory
delegations
private persons
In Currin Wal-
have also passed this Court’s
scrutiny.
lace,
the President and a the under check his but forbids by Congress its denigrates separation- exercise obviously itself the present opinion comes closest to in eases the The Court’s considering lawmaking reality facing administrative Attorney suspend- action General’s that the contention §244 legislative ing a act. deportation is itself under acting Attorney II posits is in Art. an General that Court capacity 244. This is characterization under enforcement (1924), Eby, 32, 264 U. S. where Mahler v. at odds with deport power aliens conferred on Executive power. sug- delegation Court considered Attorney gests, II acts an Art. however, that the General controversy capacity “[t]he courts, when a case or because always has whether will of arises, can ‘ascertain obeyed,’ 321 U. States, 414, Yakus v. United been (1944), statutory and can enforce adherence to standards.” wrong, assumption simply n. This Ante, at 16. is as the points . . out: “We are aware of no decision . Court itself Attorney court has reviewed a decision of the where federal suspending deportation pursuant of an General alien 244(a)(1). surprising, given set out in This is not standards party to has either that no right such action the motivation or the perhaps appeal n. Ante, from it.” at 22. It is premise judicial on the erroneous review check abuses that the Court also submits necessary process “[t]he bicameral is not as a check on the Executive’s his adminis- administration laws because activity beyond trative cannot reach the limits of the statute §§ duly pursuant I, that created it—a statute to Art. enacted Ante, hand, 7.” at n. 16. other On the Court’s reasoning persuasively explain why does a resolution of dis- of-powers sure, separa- underlying concerns Art. I. To doctrine powers checking tion of exercise of its is also concerned with each branch’s authority. fully need characteristic is consistent with the Section infra, 994-996, legisla- upon authority, congressional checks at and the mechanism, upon generally important tive veto check Executive more an authority, supra, at 967-974. *59 244(c)(2) again subject
approval under need not only process. it bicameral Because serves to check the Attorney suspension authority exercise of the General’s granted by disapproval the resolution—unlike the At- torney beyond action—“cannot General’s reach the limits duly pursuant it—a the statute that created statute enacted to Art. I.” fundamentally, correctly even if the
More Court charac- §244 Attorney authority terizes the General’s under as an power, Art. II Executive Court concedes that certain ad- agency rulemaking, “may action, such ministrative as resem- lawmaking” recognizes “[t]his ble and that Court has referred agency activity being ‘quasi-legislative’ as in character. Humphrey’s Executor v. United States, U. S. (1935).” adjudications n. Ante, at 16. Such rules agencies legislative meet Court’s own definition of they legal rights, “alte[r] action for duties, relations Legislative persons ... ante, outside the Branch,” at policy,” involve “determinations of 954. ante, at Under analysis, independ- the Court’s the Executive Branch and the agencies may ent make rules with effect law while Con- gress, legislative power, in whom the Framers confided the precludes I, Art. §1, not exercise a veto which such having operative rules from force. If the effective function- complex ing government requires delegation of a modem authority legisla- which, vast breadth, virtue its “quasi-legislative” accept tive or character, I cannot nondelegation is, all, Art. I—which after the source of the grant qualify doctrine—should forbid a with legislative veto.21 holding subject Court’s other reasons for veto
presentment and passage requirements require bicameral brief but discus First, sion. posits disapproval Court that the resolution of should be equivalent legislation authority considered to new because absent the veto could, legislation, effectively neither require House short of Attorney deport Attorney General to an alien once the General has
c the most rel- of perhaps no account takes The also Court of disapproval However resolutions evant consideration: characterized, a de- 244(e)(2) reality, formally are under the concurrence only upon occurs quo from the status parture Res- President. House, Senate, and the among of opinion by exercised authority Congress to be legislative ervations of of is authority exercise such reserved if the upheld should be of and limits upon legislative the distribution consistent with I that Art. power provides. 244(c)(2) this reveals, analysis. withstands history
itsAs de- for the broadly provided had not 1917, Congress Until Act of Feb. Stat. 1917, §19, of aliens. portation of enlarged Act of the categories 889. The Immigration Ante, remain in United States. at that the alien should the determined meaningful. The The is neither accurate nor Attor- 952-954. statement ney only “suspend” the of power General’s under the Act is order “suspension” deportation adjust deportation; does not cancel the or the permanent alien’s to that of a resident alien. Cancellation status by deportation adjustment of status must await favorable action Con- and gress. important, question whether is More as written constitutional, repealed by no law is or resolution of dis- and amended is, course, expressly by which approval authorized that section. argues legislative challenged also Court character of action of one House is confirmed the fact that “when the Framers in- Congress tended to authorize either of its House to act alone and outside prescribed legislative role, they narrowly precisely bicameral and defined Ante, procedure again for Leaving such action.” at 955. aside premise requires above-refuted that ail action with a character passage law, carefully in a the short ex- answer is that all these defined ceptions presentment and bicameralism strictures do not involve Indeed, pursuant action of the a duly enacted statute. for the part powers impeachment, most these appointments, review of —those treaty legislative powers ratification —are not it at all. fact that essential stipulate Constitution to has the impeach try hardly upon President demonstrates a limit Con- gress’ authority to legislative veto, statutes, reserve itself a through over subjects its lawmaking authority. within subject mandatory deportation, substantially in-
aliens hardships the likelihood to individuals abolish- creased ing previous years time limitation most cases of three deportation proceedings had to within which be commenced. Immigration Act of ch. 153. Stat. Thousands country persons, who either had entered the in more le- smuggled children, nient times had been in as or had over- stayed permits, deportation. prospect their faced the En- *61 grew rigorous years forcement the Act more of over the with deportation regard of thousands of aliens without to the mitigating particular circumstances cases. Mansfield, See Legislative Deportation The Veto and the 1 Aliens, Public (1941). Congress provided Administration 281 Review relief through passage private in certain cases bills. deportations In 1933,when reached their zenith, Secre- tary temporarily suspended deportations of Labor numerous Cong. (1934), grounds hardship, pro- 78 Rec. 11783 posed legislation deportable to allow certain aliens to remain (1934). country. Cong., in the H. R. 9725, 73d 2d Sess. Department opposed, “grant- The bill Labor as however, ing] discretionary authority,” Cong. too much Rec. 11790 (1934) (remarks Rep. Dirksen), decisively. and it failed Id., at 11791. following year, proposed
The the administration bills to au- interdepartmental grant permanent thorize an committee to deportable residence to aliens who had lived the United years States for 10 or who had close relatives here. S. 2969 (1935). Cong., and H. R. 8163, 74th 1st Sess. These bills congressional were also attacked as an “abandonment con- deportation Rep. trol over the of undesirable H. R. aliens,” Cong., pt. p. (1935), No. Sess., 74th 1st and were not enacted. A similar fate a bill awaited introduced Secretary 75th that would have authorized the to grant permanent up deportable 8,000 residence to to aliens. passed The measure the House, but did not come to a vote Cong., Cong. the Senate. H. R. 6391, 75th 1st Sess., (1938). Rec. 8992-8996 leg- again attempted succeeding Congress find a deportation problem. The initial
islative solution congressional required action to cancel individual House bill (1939), Cong. deportations, Rec. 10455 but Senate deportable provide legislation aliens amended Congress by deported resolu- Act or unless not be should Secretary. rejected H. R. recommendation tion by Rep. reported No. 1721, S. with amendments as 5138, 10, (1940). compromise Cong., solution, Sess., 2 3d 76th 244(c), predecessor the Attor- allowed immediate the ney deportation qualified suspend aliens. General permanent deportation resi- would be canceled Their adopt granted if did not a con- the House and Senate dence disapproval. Rep. No. 76th current resolution played Cong., Branch Sess., 3d 5-6 The Executive Cong. fashioning compromise, major see 86 role in this (1940), approved leg- President Roosevelt Rec. Registration of 1940, became the Alien Act islation, which 670. ch. Stat. *62 legislation Department requested
In the of Justice 1947, Attorney deportations authorizing the General to cancel congressional Cong., 80th 2933, without review. H. R. 1st (1947). purpose proposal of the to “save Sess. was everyone energy Regulating . . time and concerned . .” Attorney Suspend Deportation Powers General to Hearings 1115, Aliens: on H. R. H. R. H. R. and 245, 674, Immigration H. R. 2933 before the of the Subcommittee Judiciary, Cong., on the 34 Sess., House Committee 80th 1st (1947). Judiciary objected, stating The Senate Committee Congress suspension that “affirmative action all required deportation proceedings may cases should be before Rep. Cong., Sess., be canceled.” S. No. 80th 2d 1204, (1948). Rep. Cong., See also H. R. Sess., No. 80th 1st (1947). only rejected Department’s not re- authority quest Immigration for final but also amended the deportation require approved Act to that cancellation of be Congress. a concurrent resolution of the President Tru- signed objection. July man the bill without Act of 1, 1948, ch. Stat. 1206. ensuing years
Practice over the several convinced Con- gress requirement approval that the of affirmative was “not legis- workable . . . would, and time, interfere' with the Judiciary lative work of the House.” House Committee, Rep. Cong., pre- H. R. No. 81st 1st Sess., In paring comprehensive Immigration Nationality and Act Judiciary Senate Committee recommended that adjustment for certain classes of aliens of status be sub- ject disapproval deportation House; of either but of an alien “who is of criminal, subversive, immoral classes overstays period or who his of admission,” would be can- only upon disapproving celed a concurrent resolution deportation. Rep. Cong., No. 1515, Sess., 81st 2d (1950). Legislation reflecting change passed by this was both part Immigration Houses, enacted into law as Nationality Act of 1952 veto, over President Truman’s which predicated presence on the of a veto. 244(a), years, subsequent L. 414, Pub. 214. In Stat. requests Attorney refused further that the General given authority grant discretionary speci- final relief for categories §244 aliens, fied remained intact to the present. 244(a)(1) Attorney General,
Section in his authorizes the suspend deportation discretion, who of certain aliens deportable upon Congress’ approval, and, are otherwise adjust lawfully per- their status to that of aliens admitted eligible manent In an relief, residence. order to be for this physically present *63 alien have in States must been the United period years, for a continuous must not less than seven prove good prove he is of must that he character, moral and family hardship” if or his immediate would suffer “extreme may deported. he is relief Judicial of a denial of review sought. suspension proceeding phases: a Thus, the “has two statutory the conditions have been determination whether generally question law, a involves a and deter- met, which [ultimately] granted, relief shall be which mination whether Attorney the sound of the General is confided to discretion delegates].” [and H. Immi- Rosenfield, & his C. Gordon (rev. 1983). §7.9a(5), p. gration 7-134 ed. Law and Procedure 244(c) § phase process. There also a third Under is (1) Attorney report suspensions, must all such General reasons, detailed and to the Con- with a gress. statement facts act, Either House then in that session or the suspension deportation by passing a next, to block 244(c)(2). Upon disapproval. congressional resolution of per- approval suspension by its of the silence—the alien’s — adjusted manent to that of lawful resident alien. status is Immigration Nationality history of the Act makes did not alter the division of actual au- clear that Congress thority times, At between Executive. all through private through or affirmative concur- bills, whether present through veto, resolutions, rent one-House change deportable permanent in a alien’s status could be ac- only Attorney complished agreement General, of the with House, and Senate. presentment and bicameralism central concern of the departure requirements from the of Art. I is that when a legal quo approval is undertaken, status is it done with the the event the President both Houses of or,— majority Houses. veto, of a Presidential a two-thirds both 244(c)(2). fully operation is This interest satisfied Attorney approval in the General’s The President’s found deportation recommending action given suspended. The House and the order for a alien be approval Executive’s action Senate indicate their statutory passing disapproval a resolution of within deport- change legal quo period. Thus, a in the status —the ability only approval with the of the alien—is consummated
995 of of each the three relevant actors. The of disagreement of one the three any maintains the alien’s pre-existing status: the Executive choose not to recommend suspension; Senate may House and each veto recommendation. on the rights effect and obligations of the affected individuals upon legislative system if precisely same as bill were introduced private but failed to receive the neces “The sary approval. President and the two Houses enjoy the same in exactly say what the law is to be as would have true for
been
each without
presence
of the one-House
in
veto,
nothing
the law is changed absent
the concur
rence of the President
and a
in each
majority
House.”
States,
Atkins United
214
186,
Ct. Cl.
250,
sions the most recent 5 U. S. C. ed.), I, 7,§ Attorney Bell in Article General stated that “the statement procedural steps legislation does be followed the enactment by Congress. procedures prescribed exclude other forms of action . . . The Atty. Op. §I congressional in Article are not exclusive.” action given pp. procedures provided Gen. No. 2-3 in a stat “[I]f no between ute have effect on the constitutional distribution *65 § fully purposes effectuates the understood, Thus requirements. presentment I and now of the bicameralism objections analysis. briefly possible the to consider legis- may that status before First, it be asserted Chadha’s nondeportation disapproval and that the exer- is one of lative private bill, of a works a veto, unlike the failure cise of the position plainly ignores quo. change This the in the status § Congress statutory place language. At in 244 no has dele- any Attorney power gated final determine to General to in the United States. be allowed remain which aliens shall power pass Congress to on such retained the ultimate has 244(a) By deportable changes terms, its status. own Attorney power has the General been states that whatever adjust deportation delegated suspend is to be and status prescribed only “[a]s in this section.” hereinafter exercisable (c) grant “suspen- part of A is that section. Subsection deportation adjust sion” does not cancel alien’s permanent A a resident alien. alien’s status to that of suspension merely deportation,” is a “deferment of order (1950), can which Kristensen, McGrath v. U. S. adjustment deportation mature into a cancellation and way only upon Congress by approval si- status — 244(c)(2). Only then does the statute author- lence—under deportation proceed- Attorney ize the to “cancel General ings,” 244(c)(2), and “record the alien’s lawful admission §244(d). Immigration permanent . .” residence .. Attorney on behalf of the action, Naturalization Service’s without ratification General, “cannot become effective Immigration Congress.” Law Rosenfield, H. C. Gordon & Id., legislature executive,” and the then the statute constitutional. statute, In of the President reorganization at 3. the case of the plan, power of either House of refuse to combined with the submit to make plan, reject submitted suffices under standard Attorney sought to limit Although the General the statute constitutional. statute, opposes the opinion reorganization the Executive his statute, distinguish no between the two. instant I see Art. I basis to (rev. 1983). p. 8-121 §8.14, Procedure ed. Until that simply ratification occurs, the Executive’s action is a recom- suspension mendation that finalize it itself, —in change. legal works no may approach it Second, be said that this leads to the incongruity suspect the two-House veto is more than Although initially its one-House brother. the idea analysis, counterintuitive, on close it is not at all unusual constitutionality the one-House veto is of more certain than Attorney If two-House version. General’s action is a *66 proposal legislation, disapproval single for then the of but a prevent required passage. all House is that is to its Because by approval is indicated the failure to veto, one-House requirement approval. veto of satisfies the bicameral The may present question. two-House version a different concept Congress, acting sepa that “neither branch of when rately, lawfully by can exercise more than is conferred body,” Thompson, on the Constitution whole Kilbourn v. (1881), fully 168, 103 U. S. is observed.23 may objected Congress it Third, be that cannot indicate its approval legislative change by inaction. In the Court of Appeals’ Congress equally imply view, inaction “could acquiescence, passivity, endorsement, indecision, indiffer- (1980), appears F. ence,” 2d the Court objection appears ante, echo concern, this at n. 23. This properly more directed at the wisdom of veto constitutionality. than its The Constitution does not and guarantee legislators leg- carefully cannot that will scrutinize acting. democracy islation and it is deliberate before In a legislators the electorate that holds the for the accountable private their wisdom of choices. It is hard to maintain that a any greater scrutiny bill receives than a reso- individualized 23 course, authorizing approval Of to be ex legislation requires when the pressed by positive vote, clearly comply then the veto would two-House requirement any with the bicameralism analysis. under 244(c)(2). Certainly legisla disapproval under lution of susceptible to this attack than the tive is no more veto practice weight increasingly according common Court’s Congress independ to disturb an Executive or the failure of supra. agency’s Term, n. Earlier this ent action. See important it act found failed to the Court proposed the Internal Revenue in bills to overturn Service’s requirements tax-exempt terpretation of status under 501(c)(3) Bob the Internal Revenue Code. Jones Uni versity If 461 U. 600-601 States, United may said to have ratifed the Internal Revenue legislation, interpretation passing new Service’s Congress without approve suspension also be said de Attorney portation by its General when it fails exercise authority.24 requirements compro I of Art. are not veto congressional scheme. mised Appeals struck as violative of the The Court of separation powers. principle It true constitutional authority purpose separating Government *67 unnecessary dangerous prevent of concentration is power fit reason, in For that the Framers saw one branch. powers of so that each divide and balance the Government every Virtually checked the others. branch would be part system mark of this our bears the of constitutional judgment. theory Congress entertained this “arcane” 24 The Court’s doubts that the historical disregards
when the fact that this is it enacted Reorganization in legislative contained upon basis which the vetoes Acts supra, defended, Reorganization been n. and that Acts have legislative veto provided precedent support of other then articulated (1941) Dirksen) (citing Re g., e. See, Cong. (Rep. provisions. 87 Rec. 735 legislative veto support proposal Act in include a organization (1973) 93-658, (citing Reorganiza Act); p. 42 Rep. H. R. No. Lend-Lease for Im- provision precedent” as “sufficient veto tion Act Act). poundment Control
999 history separation-of-powers But the of the doctrine is also history practicality. Apprehensions of accommodationand overly powerful prophy- of an branch have not led to undue handicap working lactic measures that the effective National Government a whole. as The Constitution does not contemplate separation total of the three branches of Govern- (1976). Buckley “[A] ment. v. 121 Valeo, U. S. her- sealing metic off of the three branches of Government from preclude one another would the establishment of a Nation capable governing effectively.” itself Ibid.25 judgment. already
Our decisions reflect this As noted, recognizing government Court, that modern must address agenda complex policy a formidable issues, countenanced delegation legislative authority of extensive to Exec- agencies. independent Hampton utive and J. v. W. & Co. (1928). separation- United U. States, 276 of-powers doctrine has heretofore led to the invalidation of only challenged Government action when the action violated express provision Buckley some in the In Constitution. curiam), supra, (per Myers v. at 118-124 Valeo, v. (1926),congressional United States, U. S. action com- promised appointment power of the President. See also Springer Philippine Islands, 277 200-201 U. S. (1872), In United States v. an Klein, Wall. encroaching upon judicial Act of was struck for emphasized principle separation powers pri Madison that the marily power department violated “where the whole one is exercised possess department.” the same hands which the whole of another (J. 1961). 47, pp. The Federalist No. noted 325-3P6 Cooke ed. Madison doctrine, separation writing Montesquieu, that the oracle legislative, executive, judicial be united “in the powers should not person body depart same these magistrates,” did not mean “that *68 in, ought agency ments no the acts of each partial have or control over Id., Indeed, (emphasis original). according other.” at 325 to Montes quieu, legislature is function: “to uniquely fit to exercise an additional examine in what executed.” manner the laws that it has made have been (1965). Gwyn, Meaning Separation W. The of Powers 102 upon impinged power, found that the Act also but Court pardon power. II, exclusive Art. 2. Be- Executive’s Government, is we must have a workable efficient this cause as it should be. teaching Nixon v. Administrator Gen- This is the (1977), rejecting which, in
eral
Section survives this test. “preven[t] provision from the Executive Branch does ” accomplishing constitutionally assigned First, functions. its “constitutionally has no it is clear that the Executive Branch assigned” suspending deportation of aliens. function of subject “‘[0]ver no conceivable is complete the admission of more than it over’ (1972), 753, 766 Mandel,
aliens.” Kleindienst v.
408 U. S.
Navigation
quoting
Stranahan,
Steam
Co.
Oceanic
(1909).
inher-
it
that the
U.
Nor can
be said
executing the law is
Branch in
ent function of the Executive
Art. II
that the
Seizure Case resolved
involved.
Steel
law is a directive
mandate for the President to execute the
Youngstown
has
enforce the law which
written.
Sawyer,
“The
duty require him does not laws Congress fit achieve more than sees to leave within his (Holmes, power.” Myers v. States, S., United 272 U. at 177 dissenting); (Brandeis, dissenting). id., at 247 J., J., Here, §244 grants only qualified suspension the Executive au thority, only authority and it is which the President is constitutionally authorized to execute.
Moreover, Court believes that veto we today legisla- consider is best characterized as an exercise authority. quasi-legislative tive or Under this characteriza- practice tion, not, surface, does even on the constitute an infringement judicial prerogative. of executive or The At- torney suspension deportation equivalent General’s to a proposal legislation. Attorney for The nature of the Gen- §244 recommendatory eral’s role as is not altered because provides congressional through disapproval for action rather comparison private In than ratification. which bills, must be initiated which allow a Presiden- majority tial veto to be overriden a two-thirds in both §244 Congress, augments Houses rather than reduces the authority. congressional Executive understood, Branch’s So Appeals thought, review does not undermine, as the Court of “weight dignity” that attends the decisions Executive Branch. §244 infringe judicial power,
Nor does
on the
as Justice
Powell would hold.
Section makes clear that
judgment
part
statutory proc-
has reserved its own
as
Congressional
judicial
ess.
action does not substitute for
re-
Attorney
provides
view of General’s
decisions.
Act
judicial
Attorney
for
review of the refusal of the
General to
suspend deportation
and to transmit a recommendation to
Congress.
Jong
(1981)
Wang,
INS v.
(per
Ha
V regret disagreement my colleagues I I in that am with questions present. the fundamental But these cases regret scope I even more hold- destructive of the Court’s ing. profoundly conception It reflects a different of the Con- by stitution than that held the courts which sanctioned the Today’s modern down adminstrative state. decision strikes provisions by swoop in one fell in more enacted Con- laws gress cumulatively than the Court has invalidated its his- tory. “insur[e] I fear it will now be more difficultto policy society fundamental decisions our will be made by by body immediately appointed respon- officialbut an people,” v. California, sible to the Arizona 373 U. S. (1963) (Harlan, dissenting part). I J., must dissent. WHITE, APPENDIX OPINION OF J., TO DISSENTING STATUTES WITH PROVISIONS AUTHORIZING
CONGRESSIONAL REVIEW reprinted compilation, This the Brief from for the United briefly Senate, identifies and describes States current statu- tory provisions veto one or both Houses Congress. Statutory provisions for a veto Committees *71 (i. provisions legislation require e., which resolution) joint passage of a are not 55 included. The stat- (some compilation utes of which contain more than one review) provision for are divided six into broad categories: foreign security, budget, affairs and in- national rulemaking energy, trade, ternational and miscellaneous.
“A. “FOREIGN AND AFFAIRS NATIONAL SECURITY Development “1. Act for International 1961, Pub. L. [as No. 75 87-195, §617, 424, 22 444, amended,] Stat. [(1976 V)] (Funds Supp. C. 2367 ed., U. S. made for available foreign may by assistance under the Act be terminated con- resolution). current
“2. War Powers Resolution, Pub. L. No. 87 93-148, §5, (1973), 555, [as Stat. 556-557 50 U. S. C. 1544 amended,] [(1976 V)] (Absent Supp. ed. declaration of Presi- war, may by dent be directed concurrent resolution to remove hostilities.) engaged foreign United States armed forces Department Appropriation “3. of Defense Authorization (1973), Act, 1974, L. Pub. 93-155, No. §807, 87 615 605, Stat. (National 50 obligating U. S. C. 1431 defense contracts any United may States for amount excess of be $25,000,000 House). disapproved by resolution of either 1004 Authorization Defense Appropriation
“4. Department 709(c), 399, 408 93-365, L. Stat. 1975, Pub. No. Act, [(1976 2403-l(c) ed., amended,] 50 U. S. C. (1974), app. [as V)] defense tech- export goods, Supp. (Applications concurrent may by be disapproved nology techniques resolution). L. 94-110, 1, R. Pub. No. Stat. 683,
“5. H. J. Res. 2441 note of civilian (1975), (Assignment person- U. S. C. resolution). by concurrent may disapproved nel Sinai be Food Assistance Act “6. International Development 94-161, §310, L. No. 89 Stat. [as Pub. [(1976 V)] ed., 2151n amended,] Supp. (Foreign U. S. C. human meeting rights assistance to countries not standards resolution). terminated concurrent may be Assistance and Arms Security [Export] “7. International 94-329, [211(a)], Control Act of Pub. L. No. 90 Stat. 2776(b) [(1976 C. 729, 743, amended,] U. S. ed. and [as V)] (President’s of offer to sell Supp. major letter defense resolution). concurrent disapproved by equipment “8. L. §202, National Pub. No. Emergencies Act, 94-412, (1976), Stat. 1255 50 U. S. C. 1622 de- (Presidentially clared national concurrent emergency may be terminated resolution).
“9. 1977, International Pub. L. Navigational Rules Act [(1976 1602(d) 95-75, 308, § § No. 91 33 3(d), Stat. U. S. C. V)] (Presidential ed., Supp. of International proclamation Regulations for Collisions at be Preventing may disap- Sea resolution). proved by concurrent
“10. International Security 1977, Assistance Act of Pub. 2753(d)(2) L. 95-92, No. 16, 614, 622, Stat. 22 U. S. C. (President’s proposed transfer arms to a third country may resolution). be disapproved concurrent by “11. Act of December L. [28], 1977, 95-223, Pub. No. [(1976 [207(b)], 1706(b) 1625, Stat. 1628, ed., U. C.S. V)] Supp. declared (Presidentially national and emergency exercise conditional be terminated powers may by concur- resolution). rent 1978,
“12. Nuclear Non-Proliferation Act of Pub. L. 95- No. 304(a)], §§[303(a), 242, 306, 307, 401, Stat. 120, 130, §§2160(f), 2155(b),2157(b), 42 U. S. C. 134,137-38,139,144, [2158] 2153(d)[(1976 ed., Supp. V)] (Cooperative agreements concerning storage disposition spent pro- fuel, nuclear posed export technology facilities, nuclear materials or agreements proposed cooperation for international in nuclear development may disapproved by reactor resolution). be concurrent
“B. “BUDGET Congressional Budget Impoundment “13. Control Act Pub. L. 93-344, §1013, No. 88 Stat. 297, 334-35, (The proposed budget authority U. S. C. 1403 deferral of provided project specific purpose may disapproved for a or be House). by impoundment by an resolution either “C. TRADE “INTERNATIONAL Expansion “14. Trade Act of 1962, Pub. L. 87-794, No. 1981(a) (Tariff duty §351, 76 Stat. 872, 899, U. S. C. by may imposed recommended Tariff Commission be con- approval). current resolution of §§203(c),
“15. Trade of Act Pub. L. No. 93-618, 302(b), 402(d), 407, 88 Stat. 2016, 2043, 2057-60, [as 2253(c), 2412(b), 2063-64, amended,] 19 U. S. C. (1976 V)] [2437 Supp. (Proposed ed. and Presidential actions import concerning may relief and actions certain countries disapproved by be concurrent various Presiden- resolution; proposals tial for waiver extensions and for extension of non- discriminatory foreign products treatment countries (either House) disapproved simple or concurrent resolutions). Export-Import
“16. *73 1974, Bank L. Amendments Pub. [635e(b)] 93-646, No. §8, 88 12 2333, 2336, Stat. U. S. C. (Presidentially proposed exports limitation for to USSR 1006 by approved concurrent be must $300,000,000
excess resolution).
“D. “ENERGY 93-153, 101, L. No. 1973,Pub. ofAct November “17. 185(u)(Continuation ex- of oil 30 U. S. C. 576, 582, 87 Stat. finding pursuant being ports that such to President’s made may disapproved by exports interest be in the national are resolution). concurrent Energy and Devel- Nonnuclear Research Federal
“18. opment 88 93-577, §12, Pub. L. No. Stat. Act of (Rules proposed or orders 1878, 1892-1893, U. S. C. concerning acquisition es- allocation the President may disapproved resolution of either be sential materials House). Policy Energy L. 94- Act, Pub. No. and Conservation
“19. 6421(c)(Cer- (1975),42 U. S. C. 89 Stat. 163, §551, involving ‘energy Presidentially proposed actions’ fuel tain economy may disapproved by pricing resolution of be House). either Act of 1976,
“20. Naval Petroleum Reserves Production [201(3)], 303, 309, L. No. U. S. C. 94-258, Pub. Stat. 7422(c)(2)(C)(President’s period production for extension petroleum may disapproved by naval reserves resolution be House). of either Department Energy Applica-
“22. Act of 1978—Civilian §§ 207(b), L. tions, 95-238, 47, 55, 70, Pub. No. 92 Stat. [(1976 V)] 5919(m) Supp. 3224a, U. S. C. ed., U. S. C. (International agreements by Secretary expenditures Energy appropriations foreign spent nuclear fuel stor- for age approved by must be if concurrent not con- resolution, by legislation;) (plans appropriated sented for such use of disapproved by House;) (financing funds either of $50,000,000 excess must be demonstration facilities Houses). approved by resolution both
1007 “23. Outer Shelf Lands Act of Continental Amendments 92 1978, 95-372, 205(a), 208, 629, §§ Pub. L. No. Stat. 641, [(1976 1354(c) V)] §§ 1337(a), ed., 43 U. S. C. 668, Supp. (Establishment by of of oil and Secretary Energy gas lease be of system may disapproved by resolution either bidding of oil and be House;) (export gas may concur- disapproved by resolution). rent
“24. Act of Policy 1978, Natural Gas Pub. L. No. 95-621, (2), 202(c), §§ 92 206(d)(2), 507, Stat. 3350, 3370, 15 3371, 3406, U. S. C. 3372, 3380, 3332, 3342(c), 3346(d)(2), V)] (Presidential [(1976 ed., Supp. of natu- reimposition ral controls be gas price may by concurrent disapproved reso- lution;) may (Congress reimpose gas natural controls price by (Federal resolution;) concurrent Energy Com- Regulatory (FERC) mission amendment to pass through incremental costs of natural gas, exemptions therefrom, may be dis- approved by House;) resolution either for con- (procedure established). gressional review
“25. Administration Act Export 1979, Pub. L. 96- No. [7(d)(2)(B)] 72, § 518, Stat. 7(g)(3), 503, 520, U. S. C. [(1976 V)] (Presi- 2406(d)(2)(B), app. 2406(g)(3) ed., Supp. dent’s oil proposal [export] domestically produce[d] crude (action must be approved by resolution;) concurrent by of Commerce to Secretary prohibit or curtail export agricultural commodities be may by concurrent disapproved resolution).
“26. Energy 96-294, §§104 Pub. L. No. Security Act, (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), 619, Stat. 620, 623-26, 628-29,649, 650-52,659,660,664, 666, 679, 776 (1980) 50 U. S. C. app. 2091-93, 2095, 2096, 2097, U. S. C. 8722, 8724, 8725, 8732, 8733, 8737, 8741, [(1976 V)] (Loan ed., Supp. guarantees by Departments Defense, Energy Commerce in excess specified bemay amounts disapproved by resolution of either House;) (President’s proposal provide loans in excess guarantees resolution disapproved amounts of established President individual award House;) (proposed either 75,000 day than barrels per of more purchase contracts for *75 House;) of resolution either by oil bemay disapproved crude through (President’s energy shortage to overcome proposals to pur- and individual contracts development, fuels synthetic use of loans day, including barrels 75,000 per than chase more of either resolution disapproved by be may or guarantees, proposals House to disapprove for either House;) (procedures Fuels established;) by Synthetic are (request under Act made (SFC) time to submit its compre- additional Corporation resolution of either may disapproved by be strategy hensive comprehensive strategy by amendment House;) (proposed concurrent by of be may disapproved Board Directors SFC of of either House or failure both Houses by resolution of for either (procedure concurrent resolution approval;) pass of proposed House to certain actions SFC is es- disapprove by for both Houses to concur- tablished;) approve (procedure to reject rent resolution either House concurrent resolu- tion for amendments to proposed comprehensive strategy loans and loan established;) (proposed guarantees by SFC (ac- by House;) resolution of either may SFC be disapproved synthetic project SFC of a fuels which is receiv- quisition by ing may financial assistance be resolution of disapproved by (SFC House;) either contract initial renegotiations exceeding cost estimates 175% be by may resolution of disapproved by either House;) financial assistance to (proposed synthetic fuel projects Western outside United Hemisphere States (President’s be resolution of either disapproved by House;) request suspend provisions up build of reserves requiring sale or oil limiting disposal certain crude reserves must Houses). approved by resolution both
“E. “RULEMAKING “27. Education L. 1974, 93-380, Amendments of Pub. No. [(1976 § [509(a)], 1232(d)(1) 484, 567, Stat. C. ed., U. S. V)] Supp. (Department Education regulations may be dis- resolution). approved concurrent by “28. Federal Education Act Campaign Amendments of. 1979, Pub. L. No. 96-187, §109, 93 Stat. 1339, 1364, 438(d)(2) [(1976 V)] U. S. C. ed., Supp. (Proposed rules and of the Federal regulations Election Commission may be dis- House). resolution either approved by “29. Act of January 2, 1975, Pub. L. 93-595, No. [2(a)(1)], Stat. 28 U. S. C. 2076 (Proposed Supreme amendments Court of Federal Rules Evidence bemay House). resolution of disapproved either
“30. Act Pub. August L. No. 94-88, 208, 89 433, 436-37, (Social Stat. 42 U. S. C. 602 note Security standards proposed by Secretary Health and Human Serv- *76 House). ices be may either disapproved by “31. Airline Act of Deregulation 1978, Pub. L. No. 95-504, 1552(f) [(1976 92 Stat. §43(f)(3), 1705, 1752, 49 U. S. ed., C. V)] (Rules or Supp. regulations governing employee protec- tion be program may disapproved by resolution either House).
“32. 95-561, Education Amendments of Pub. L. 1978, No. §§ 1138, 92 [212(b)], 1409, Stat. 2143, 2327, 2341, 2369, 25 1221-3(e) [(1976 2018, U. C. 20 U. [927], S. C. ed., Supp. V)] (Rules and regulations proposed may under the Act be resolution). disapproved by concurrent “33. Act, Civil Persons Pub. L. Rights Institutionalized (1980) § No. 94 42 96-247, 7(b)(1), Stat. U. S. C. 349,352-353 [(1976 V)] 1997e ed., proposed General’s Supp. (Attorney standards resolution of adults confined grievances correctional resolution of may by facilities be disapproved House). either
“34. Federal Trade Commission Act of Improvements 15 1980, 96-252, 374, 393, Pub. L. No. 94 21(a), Stat. (Federal [(1976 V)] Commis- ed., U. S. C. 57a-l Trade Supp. resolution). may sion rules be concurrent disapproved by Act, Pub. L. Department Organization “35. of Education 3474 414(b), (1979), U. S. C. 96-88, 668, No. 93 Stat. [(1976 V)] (Rules promulgated Supp. regulations with ed., responsibili- respect programs functions, the various may by by disapproved concur- Act, transferred this be ties resolution). rent Multiemployer 1980, Pension Plan Amendments Act of
“36. 102, 1213, U. 96-364, Pub. L. No. Stat. S. C. V)] [(1976 (Schedules proposed by Supp. Pension 1322a ed., (PBGC) Corporation requires Guaranty in- which an Benefit by approved premiums must be concurrent resolu- crease (revised tion;) voluntary supplemental premium schedules for may by coverage proposed by disapproved concur- PBGC be resolution). rent Act Amendments of Pub. L.
“37. Farm Credit [2252 3450, 12 96-592, §508, 94 Stat. U. S. C. No. (Certain (1976 V)] Supp. Farm Credit Administration ed., may regulations disapproved by be concurrent resolution or House.) delayed by resolution either Compensa- Comprehensive Response, “38. Environmental Liability 96-510, §305, Act L. No. tion, and Pub. [(1976 V)] Supp. ed., U. S. C. 9655 2767, 2809, Stat. (Environmental Agency regulations concerning Protection liability compensation releases, hazardous substances disapproved by adop- concurrent resolution of a resolution which is not tion of either House concurrent House). disapproved the other *77 of
“39. National Historic Preservation Act Amendments 2987, 3004, 94 16 1980, 96-515, Pub. L. No. Stat. §501, [(1976 V)] (Regulation proposed Supp. ed., U. S. C. 470w-6 by by Secretary may disapproved con- of the Interior be resolution). current Management Improvement 1980, Act of
“40. Coastal Zone 2067, 16 C. 12, L. No. 94 U. S. 96-464, 2060, Pub. Stat. [(1976 V)] (Rules Secretary by Supp. proposed ed., 1463a resolution). may disapproved by of be concurrent Commerce §4, 94 96-539, L. No. 17,1980, “41. Act of December Pub. (Rules V)] [(1976 Supp. ed., 3194, Stat. S. C. 136w 3195, U. by regulations promulgated Envi- or the Administrator Agency ronmental under Protection the Federal Insecticide, Fungicide may disapproved by and Rodenticide Act be con- resolution). current Budget
“42. Omnibus Reconciliation of 1981, Act Pub. L. §§533(a)(2), 1107(d), 1183(a)(2), 97-35, 1142, No. 1207, 357, 453, 626, 654, 659, 695, Stat. 718-20, 20 S.U. C. 4020), 564(c)(3), 23 U. 1089, S. C. 45 U. C. 761, 767, [(1976 V)] Supp. (Secretary U. S. ed., C. of expected family Education’s schedule of contributions for Pell recipients may disapproved by Grant be resolution either (rules House;) promulgated by Secretary Transportation programs injuries may to reduce accidents, and deaths be by disapproved House;) (Secretary resolution of either Transportation’s plan government’s for the sale of common system may disapproved by stock in rail be concurrent reso- lution;) (Secretary Transportation’s approval freight may agreements disapproved by transfer be resolution of (amendments House;) either to Amtrak’s Route and Service may by House;) disapproved Criteria be resolution of either (Consumer Safety regulations may Product Commission be disapproved by Houses, concurrent resolution both disapproval by concurrent resolution either House if such House). disapproved resolution the other “F. “MISCELLANEOUS “43. Federal Civil Defense Act of Pub. L. No. 81- app. [as 920, §201, amended,] 1245, 1248, Stat. [(1976 (Interstate V)] 2281(g) Supp. S.U. C. civil ed., compacts may disapproved by defense be concurrent resolution). Space
“44. Pub. L. National Aeronautics and Act §[302(c)], 85-568, No. 426, 433, 42 U. S. C. 2453 72 Stat. (President’s Space transfer to National Air and Administra- departments agencies tion of functions of other *78 resolution). disapproved by concurrent 1012 L. 1970, Act of Pay
“45. Federal Pub. Comparability (Presi- 1946, 5 S. 5305 1949, 84 Stat. U. C. 91-656, §3, No. resolution by alternative be pay plan may disapproved dent’s House). either L. 93-134, §5, Pub. No. 19, 1973, “46. Act October (Plan for 468, 25 U. S. C. 1405 use and distribution 466, Stat. in satisfaction of Indian Claims paid judgment of funds may by or of Claims be reso- disapproved Commission Court House). lution of either § 6, Pub. L. Act, 93-197,
“47. Menominee Restoration No. (Plan 903d(b) (1973), by U. S. C. Sec- 87 Stat. assumption Interior of the assets [of] retary may by be reso- corporation disapproved Menominee Indian House). lution of either Govern-
“48. District of Columbia Self-Government §§303, Act, 93-198, Pub. L. No. Reorganization mental (1973) (District 774, 784, of Co- (2), Stat. ap- amendments ratified electors must be by lumbia Charter (acts resolution;) concurrent of District of Colum- by proved resolution;) be concurrent may disapproved by bia Council (acts under certain titles of District Columbia Council D. resolution of either may by C. Code be disapproved House). 94-200, 31, 1975,
“49. Act of December Pub. L. No. (Federal System 12 U. C. 461 note Reserve Stat. rate may Board of not eliminate reduce interest Governors In- banks Federal by Deposit differentials between insured insured Federal Corporation surance and associations concur- and Loan Insurance Savings Corporations without rent resolution of approval).
“50. Assistance Act Veterans’ Education and Employment 2383, 2397-98, No. 94-502, §408, Pub. L. 90 Stat. (President’s 1621 note for contin- U. S. C. recommendation ued enrollment educational assist- period Armed Forces of either ance resolution program disapproved House).
1013 Policy Management “51. Federal Land Act of 1976, §§203(c),204(c)(1), Pub. L. No. 94-579, 90 Stat. 2743, 2750, (Sale 1713(c), public 43 2752, U. S. C. 1714 lands in excess public of two five thousand hundred acres and withdrawal aggregating may disap- lands five thousand acres or more be resolution). proved by concurrent Emergency Unemployment Compensation “52. Extension [401(a)] Act of L. 1977, 95-19, Pub. No. 91 2 39, Stat. 45, [(1976 V)] (President’s Supp. 359 ed., U. S. C. recommenda- regarding salary may payment disapproved tions by rates of be House). resolution either
“53. Civil Reform Act of 1978, Service L. No. 95-454, Pub. [(1976 §415, 92 1111, 1179, Stat. 5 U. S. 3131 ed., C. note V)] (Continuation Supp. may of Senior Executive Service be resolution). disapproved by concurrent Employment “54. Full and Balanced Growth Act of 1978, §304(b), Pub. L. No. 95-523, 92 Stat. 1887,1906,31U. C.S. [(1976 V)] (Presidential Supp. 1322 ed., for re- timetable ducing unemployment may superseded by be concurrent resolution).
“55. District of Columbia Retirement Reform Pub. L. Act, (1979)(Required 96-122, §164, No. 891-92 re- Stat. ports Congress pro- on the District Columbiaretirement House). gram may rejected by be resolution of either August “56. Act of 29, 1980, 96-332, §2, Pub. L. No. [(1976 V)] (Des- Supp. 1057,1058, ed., Stat. 16 U. S. C. 1432 ignation sanctuary by Secretary of marine of Commerce resolution).” disapproved by concurrent
Justice Rehnquist, White joins, with whom Justice dissenting. severability presumption
A clause creates a that Con- gress portion intended the valid of the statute to remain part force when one v. Carter is found to be invalid. Carter (1936); Refining Champlin Co., Coal Co. U. S. Corporation Oklahoma, Comm’n U. S. severability not, however, clause does conclu- A sively “[T]he determination, end, the issue. resolve by” asking “[w]hat lawmakers,” intent of reached rarely presence supra, at and “will turn Carter, *80 Jackson, of such a clause.” United or absence States (1968). I 585, n. 27 Because believe that provision 390 U. S. Congress did not intend the one-House veto 244(c)(2) severable, to be I dissent. general exception is rule an an that
Section Attorney suspended deportation shall be when the alien’s statutory It finds criteria are met. is severable General that Attorney permit only Congress if have would intended deportations suspend without This has General to it. Court years exceptions as held several times over that such this are not severable because exceptions by legislature
“by rejecting
intended
confessedly
. . . the statute is made to enact what
upon
legislature never meant.
It confers
the statute
legislative
positive operation beyond
intent,
a
say
beyond
anyone
what
can
it would have enacted
illegality
exceptions.” Spraigue v.
view of the
of the
By 244(c)(2), suspension severing permits the Court deportation in a never stated class cases where suspension appropriate. I do not believe we should that was way expand in this some clear indication statute without expansion. As the Court that intended such an (1922): said in Davis v. 257 U. S. 484-485 Wallace, excepting provision found an in a statute is “Where very generally hold that this courts unconstitutional, scope operation enlargement an does work provisions provision en- that was other with which qualify or restrain. was intended to acted which proceed reasoning is illus- on which decisions Dombaugh, 20 Ohio St. ex rel. McNeal v. trated State dealing that statute 174. In a contention with containing provision an unconstitutional should be con- strued as if the remainder stood alone, the court there garble said: ‘This be to would mutilate the section and its meaning. intention must not be con- carry founded with their that intention into give vitality provision effect. To refuse to force and to a thing, very of law is one and to refuse to it is read dif- thing. figure speech It ferent is a mere that we say provision an unconstitutional of a is statute “stricken purposes For all out.” of construction it is to be regarded part meaning legisla- as the act. The gathered they ture must be from all said, have as power, well from which is ineffectual for want as from that which authorized law.’ excepting provision “Here the inwas the statute when legis- it enacted, and there can be no doubt that the *81 meaning provisions lature intended that the of the other Only accordingly. should be taken as restricted with meaning they that restricted did receive the part sanction which was essential to make them authority compe- statute law of the State; and no other is give larger application.” tent to them a Corporation also See Frost v. Oklahoma, Comm'n (1929). U. S. legislative history The Court finds that the of 244 shows 244(c)(2) Congress that intended to be severable because Congress private wanted to relieve itself of the burden history by bills. But the elucidated shows that Court Congress unwilling give per- to the Executive Branch suspend deportation years, mission to on its own. Over Congress consistently rejected requests from the Executive complete always Congress for in- discretion in this area. retaining sisted on ultimate concurrent control, whether resolution, present in the veto, as the 1948 one-House as Act, Act. that it has never indicated would willing permit suspensions deportation to unless it could retain some sort veto. power provide
It true that has the is doubtless deportation suspensions of without one-House veto. any identify has But the Court failed to evidence that Con- gress power. contrary, On the intended exercise Congress’ retaining continued insistence on control suspension process disposed indicates that it has never been By severing give Executive Branch a free hand. §244(c)(2) Congress’ has “‘inten- the Court “‘confounded’” permit suspensions deportation “‘with tion’” to their carry supra, Davis, that intention into effect.’” at Dombaugh, quoting ex rel. McNeal v. St. State Ohio 167, 174 I believe I severable,
Because do not judgment Appeals. of the Court of would reverse