Immigration and Naturalization Service v. Chadha

[Chief Justice Burger delivered the opinion of the Court, joined by Brennan, Marshall, Blackmun, Stevens and O’Connor, JJ. Powell, J., filed an opinion concurring in the judgment. White, J., filed a dissenting opinion. Rehnquist, J., filed a dissenting opinion, joined by White, J. The syllabus as printed in the United States Reports gives this line-up and no numeric tally. Omitted here are the Court’s Part II on jurisdiction, standing and justiciability, most of the citation apparatus, and the whole of Justice White’s Appendix. Burger’s Parts III and IV — bicameralism, presentment, and the definition of legislative action — are given nearly entire.]

[The facts. Chadha is an East Indian born in Kenya who holds a British passport. He was lawfully admitted to the United States in 1966 on a nonimmigrant student visa; his visa expired on June 30, 1972. At a deportation hearing he conceded deportability and applied for suspension of deportation under § 244(a)(1) of the Immigration and Nationality Act, which authorized the Attorney General in his discretion to suspend deportation and adjust status where the alien had been continuously present for seven years, was of good moral character, and would suffer “extreme hardship.” On June 25, 1974 the Immigration Judge found those requirements met and ordered the deportation suspended, and — as § 244(c)(1) required — a report of the suspension was transmitted to Congress. Section 244(c)(2) reserved to either House the power to undo it: if either the Senate or the House passed a resolution “stating in substance that it does not favor the suspension of such deportation,” the Attorney General was required to deport the alien.]

[On December 12, 1975 — three days before the last session in which Congress could act, the suspension order having stood valid for a year and a half — Representative Eilberg introduced H. Res. 926, opposing the granting of permanent residence to six aliens including Chadha. On December 16 it was discharged from the Judiciary Committee and put to the House. It had not been printed and was not made available to other Members before the vote. The only explanation before the House was Eilberg’s floor statement that “it was the feeling of the committee, after reviewing 340 cases, that the aliens contained in the resolution … did not meet these statutory requirements, particularly as it relates to hardship.” The resolution passed without debate or recorded vote, and was not submitted to the Senate or presented to the President. The Immigration Judge then reopened the proceedings and ordered Chadha deported; the Board of Immigration Appeals held it had no power to declare an Act of Congress unconstitutional. Chadha petitioned the Ninth Circuit, and the INS joined him in arguing that § 244(c)(2) is unconstitutional. The Court of Appeals held that § 244(c)(2) violates the separation of powers and directed the Attorney General to cease taking steps to deport Chadha on the basis of the House resolution. 634 F. 2d 408.]

[Part II is omitted. It sustained appellate jurisdiction; held that Chadha had standing and that a genuine case or controversy was presented notwithstanding the INS’s agreement with him, Congress being the proper party to defend a statute the enforcing agency will not defend; and found no nonjusticiable political question. On severability, the Court held § 244(c)(2) severable: § 406 of the Act contains a severability clause, raising a presumption that Congress did not intend the validity of the Act as a whole to depend on the veto clause, and § 244 survives as a “fully operative” and workable administrative mechanism without the one-House veto. Rehnquist’s dissent, below, disputes that holding.]

III

A

We turn now to the question whether action of one House of Congress under § 244(c)(2) violates strictures of the Constitution. We begin, of course, with the presumption that the challenged statute is valid. Its wisdom is not the concern of the courts; if a challenged action does not violate the Constitution, it must be sustained.

By the same token, the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives — or the hallmarks — of democratic government and our inquiry is sharpened rather than blunted by the fact that congressional veto provisions are appearing with increasing frequency in statutes which delegate authority to executive and independent agencies:

“Since 1932, when the first veto provision was enacted into law, 295 congressional veto-type procedures have been inserted in 196 different statutes as follows: from 1932 to 1939, five statutes were affected; from 1940–49, nineteen statutes; between 1950–59, thirty-four statutes; and from 1960–69, forty-nine. From the year 1970 through 1975, at least one hundred sixty-three such provisions were included in eighty-nine laws.” Abourezk, The Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogatives, 52 Ind. L. Rev. 323, 324 (1977).

See also Appendix to JUSTICE WHITE’s dissent, post, at 1003.

JUSTICE WHITE undertakes to make a case for the proposition that the one-House veto is a useful “political invention,” post, at 972, and we need not challenge that assertion. But policy arguments supporting even useful “political inventions” are subject to the demands of the Constitution which defines powers and, with respect to this subject, sets out just how those powers are to be exercised.

Explicit and unambiguous provisions of the Constitution prescribe and define the respective functions of the Congress and of the Executive in the legislative process. Since the precise terms of those provisions are critical, we set them out verbatim. Article I provides:

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Art. I, § 1. (Emphasis added.)

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States … .” Art. I, § 7, cl. 2. (Emphasis added.)

“Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.” Art. I, § 7, cl. 3. (Emphasis added.)

These provisions of Art. I are integral parts of the constitutional design for the separation of powers. We have recently noted that “[t]he principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787.” Buckley v. Valeo, 424 U. S., at 124. The purposes underlying the Presentment Clauses, Art. I, § 7, cls. 2, 3, and the bicameral requirement of Art. I, § 1, and § 7, cl. 2, guide our resolution of the question presented in these cases.

B

The Presentment Clauses

The records of the Constitutional Convention reveal that the requirement that all legislation be presented to the President before becoming law was uniformly accepted by the Framers. Presentment to the President and the Presidential veto were considered so imperative that the draftsmen took special pains to assure that these requirements could not be circumvented. During the final debate on Art. I, § 7, cl. 2, James Madison expressed concern that it might easily be evaded by the simple expedient of calling a proposed law a “resolution” or “vote” rather than a “bill.” As a consequence, Art. I, § 7, cl. 3, supra, at 945–946, was added. 2 Farrand 304–305.

The decision to provide the President with a limited and qualified power to nullify proposed legislation by veto was based on the profound conviction of the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed. It is beyond doubt that lawmaking was a power to be shared by both Houses and the President. In The Federalist No. 73, Hamilton wrote that even absent any propensity in the legislative body to invade the rights of the Executive, “the rules of just reasoning and theoretic propriety would of themselves teach us that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self-defence.”

The President’s role in the lawmaking process also reflects the Framers’ careful efforts to check whatever propensity a particular Congress might have to enact oppressive, improvident, or ill-considered measures. Hamilton described the veto during the ratification debate as “increas[ing] the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design.” The Federalist No. 73, supra, at 458.

C

Bicameralism

The bicameral requirement of Art. I, §§ 1, 7, was of scarcely less concern to the Framers than was the Presidential veto and indeed the two concepts are interdependent. By providing that no law could take effect without the concurrence of the prescribed majority of the Members of both Houses, the Framers reemphasized their belief, already remarked upon in connection with the Presentment Clauses, that legislation should not be enacted unless it has been carefully and fully considered by the Nation’s elected officials.

In the Constitutional Convention debates on the need for a bicameral legislature, James Wilson, later to become a Justice of this Court, warned that a legislative authority not “restrained … by dividing it within itself, into distinct and independent branches” would leave “neither liberty nor stability,” since “[i]n a single house there is no check, but the inadequate one, of the virtue & good sense of those who compose it.” 1 Farrand 254.

Hamilton argued that a Congress comprised of a single House was antithetical to the very purposes of the Constitution. Were the Nation to adopt a Constitution providing for only one legislative organ, he warned:

“[W]e shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert.” The Federalist No. 22, p. 135 (H. Lodge ed. 1888).

This view was rooted in a general skepticism regarding the fallibility of human nature, which Joseph Story shared: a legislature that “feels no check but its own will … rarely has the firmness to insist upon holding a question long enough under its own view, to see and mark it in all its bearings and relations on society.” 1 Story, supra, at 383–384.

These observations are consistent with what many of the Framers expressed, none more cogently than Madison: “In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.” The Federalist No. 51, p. 324 (H. Lodge ed. 1888).

We see therefore that the Framers were acutely conscious that the bicameral requirement and the Presentment Clauses would serve essential constitutional functions. The President’s participation in the legislative process was to protect the Executive Branch from Congress and to protect the whole people from improvident laws. The division of the Congress into two distinctive bodies assures that the legislative power would be exercised only after opportunity for full study and debate in separate settings. The President’s unilateral veto power, in turn, was limited by the power of two-thirds of both Houses of Congress to overrule a veto thereby precluding final arbitrary action of one person. It emerges clearly that the prescription for legislative action in Art. I, §§ 1, 7, represents the Framers’ decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.

IV

The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.

Although not “hermetically” sealed from one another, Buckley v. Valeo, 424 U. S., at 121, the powers delegated to the three Branches are functionally identifiable. When any Branch acts, it is presumptively exercising the power the Constitution has delegated to it. And when, as here, one House of Congress purports to act, it is presumptively acting within its assigned sphere.

Beginning with this presumption, we must nevertheless establish that the challenged action under § 244(c)(2) is of the kind to which the procedural requirements of Art. I, § 7, apply. Not every action taken by either House is subject to the bicameralism and presentment requirements of Art. I. See infra, at 955, and nn. 20, 21. Whether actions taken by either House are, in law and fact, an exercise of legislative power depends not on their form but upon “whether they contain matter which is properly to be regarded as legislative in its character and effect.” S. Rep. No. 1335, 54th Cong., 2d Sess., 8 (1897).

Examination of the action taken here by one House pursuant to § 244(c)(2) reveals that it was essentially legislative in purpose and effect. In purporting to exercise power defined in Art. I, § 8, cl. 4, to “establish an uniform Rule of Naturalization,” the House took action that had the purpose and effect of altering the legal rights, duties, and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the Legislative Branch. Section 244(c)(2) purports to authorize one House of Congress to require the Attorney General to deport an individual alien whose deportation otherwise would be canceled under § 244. The one-House veto operated in these cases to overrule the Attorney General and mandate Chadha’s deportation; absent the House action, Chadha would remain in the United States. Congress has acted and its action has altered Chadha’s status.

The legislative character of the one-House veto in these cases is confirmed by the character of the congressional action it supplants. Neither the House nor the Senate contends that, absent the veto provision, either of them, or both acting together, could effectively require the Attorney General to deport an alien once he had determined, in the exercise of legislatively delegated authority, that the alien should remain. Without § 244(c)(2), this could have been achieved, if at all, only by legislation requiring deportation.

[A long footnote answers Congress’s protest that affirmance would sanction “lawmaking by the Attorney General.” The Court concedes that some agency action — rulemaking, for example — “may resemble ‘lawmaking,’” and that this Court has called agency activity “quasi-legislative.” But the bicameral process is not necessary as a check on the Executive’s administration of the laws, because his administrative activity “cannot reach beyond the limits of the statute that created it — a statute duly enacted pursuant to Art. I, §§ 1, 7,” and is subject to judicial review if that authority is exceeded. A one-House veto is not so checked. White’s dissent, below, turns this footnote against the Court.]

Similarly, a veto by one House of Congress under § 244(c)(2) cannot be justified as an attempt at amending the standards set out in § 244(a)(1), or as a repeal of § 244 as applied to Chadha. Amendment and repeal of statutes, no less than enactment, must conform with Art. I.

The nature of the decision implemented by the one-House veto further manifests its legislative character. After long experience with the clumsy, time-consuming private bill procedure, Congress made a deliberate choice to delegate to the Attorney General the authority to allow deportable aliens to remain in this country in certain specified circumstances. It is not disputed that this choice to delegate authority is precisely the kind of decision that can be implemented only in accordance with the procedures set out in Art. I. Disagreement with the Attorney General’s decision on Chadha’s deportation — that is, Congress’ decision to deport Chadha — no less than Congress’ original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.

Finally, we see that when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action. There are four provisions in the Constitution,¹ explicit and unambiguous, by which one House may act alone with the unreviewable force of law, not subject to the President’s veto:

(a) The House of Representatives alone was given the power to initiate impeachments. Art. I, § 2, cl. 5;

(b) The Senate alone was given the power to conduct trials following impeachment on charges initiated by the House and to convict following trial. Art. I, § 3, cl. 6;

(c) The Senate alone was given final unreviewable power to approve or to disapprove Presidential appointments. Art. II, § 2, cl. 2;

(d) The Senate alone was given unreviewable power to ratify treaties negotiated by the President. Art. II, § 2, cl. 2.

Clearly, when the Draftsmen sought to confer special powers on one House, independent of the other House, or of the President, they did so in explicit, unambiguous terms.²

These carefully defined exceptions from presentment and bicameralism underscore the difference between the legislative functions of Congress and other unilateral but important and binding one-House acts provided for in the Constitution. These exceptions are narrow, explicit, and separately justified; none of them authorize the action challenged here. On the contrary, they provide further support for the conclusion that congressional authority is not to be implied and for the conclusion that the veto provided for in § 244(c)(2) is not authorized by the constitutional design of the powers of the Legislative Branch.

Since it is clear that the action by the House under § 244(c)(2) was not within any of the express constitutional exceptions authorizing one House to act alone, and equally clear that it was an exercise of legislative power, that action was subject to the standards prescribed in Art. I. To preserve the checks those standards erect, and maintain the separation of powers, the carefully defined limits on the power of each Branch must not be eroded. To accomplish what has been attempted by one House of Congress in this case requires action in conformity with the express procedures of the Constitution’s prescription for legislative action: passage by a majority of both Houses and presentment to the President.

[A footnote here answers Justice Powell. The Court agrees “that there is a sense in which one-House action pursuant to § 244(c)(2) has a judicial cast, since it purports to ‘review’ Executive action,” but replies that federal courts “do not enjoy a roving mandate to correct alleged excesses of administrative agencies,” and that no justiciable case or controversy was presented by the Attorney General’s decision to allow Chadha to remain.]

The veto authorized by § 244(c)(2) doubtless has been in many respects a convenient shortcut; the “sharing” with the Executive by Congress of its authority over aliens in this manner is, on its face, an appealing compromise. In purely practical terms, it is obviously easier for action to be taken by one House without submission to the President; but it is crystal clear from the records of the Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency. There is unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process.

The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. There is no support in the Constitution or decisions of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit constitutional standards may be avoided, either by the Congress or by the President. With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.

V

We hold that the congressional veto provision in § 244(c)(2) is severable from the Act and that it is unconstitutional. Accordingly, the judgment of the Court of Appeals is

Affirmed.

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[Justice Powell, concurring in the judgment. He would decide the case on the narrower ground that Congress assumed a judicial function. Abridged; his footnotes are omitted except as noted in brackets.]

The Court’s decision, based on the Presentment Clauses, Art. I, § 7, cls. 2 and 3, apparently will invalidate every use of the legislative veto. The breadth of this holding gives one pause. Congress has included the veto in literally hundreds of statutes, dating back to the 1930’s. Congress clearly views this procedure as essential to controlling the delegation of power to administrative agencies. One reasonably may disagree with Congress’ assessment of the veto’s utility, but the respect due its judgment as a coordinate branch of Government cautions that our holding should be no more extensive than necessary to decide these cases. In my view, the cases may be decided on a narrower ground. When Congress finds that a particular person does not satisfy the statutory criteria for permanent residence in this country it has assumed a judicial function in violation of the principle of separation of powers. Accordingly, I concur only in the judgment.

I

A

The Framers perceived that “[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison). Theirs was not a baseless fear. During the Confederation, the States reacted to the abuses of unchecked executive power by removing power from the executive and placing it in the hands of elected legislators. But many legislators proved to be little better than the Crown. “The supremacy of legislatures came to be recognized as the supremacy of faction and the tyranny of shifting majorities. The legislatures confiscated property, erected paper money schemes, [and] suspended the ordinary means of collecting debts.” Levi, supra, at 374–375.

One abuse that was prevalent during the Confederation was the exercise of judicial power by the state legislatures. The Framers were well acquainted with the danger of subjecting the determination of the rights of one person to the “tyranny of shifting majorities.” Jefferson observed that members of the General Assembly in his native Virginia had not been prevented from assuming judicial power, and ”‘[t]hey have accordingly in many instances decided rights which should have been left to judiciary controversy.’” The Federalist No. 48, supra, at 336 (emphasis in original). The Council of the Censors reported the same of the Pennsylvania Legislature: “[C]ases belonging to the judiciary department, frequently [had been] drawn within legislative cognizance and determination.” Id., at 336–337.

It was to prevent the recurrence of such abuses that the Framers vested the executive, legislative, and judicial powers in separate branches. Their concern that a legislature should not be able unilaterally to impose a substantial deprivation on one person was expressed not only in this general allocation of power, but also in more specific provisions, such as the Bill of Attainder Clause, Art. I, § 9, cl. 3. As the Court recognized in United States v. Brown, 381 U. S. 437, 442 (1965), that Clause “was intended not as a narrow, technical … prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply — trial by legislature.”

B

The Constitution does not establish three branches with precisely defined boundaries. Rather, as Justice Jackson wrote: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (concurring in judgment). But where one branch has impaired or sought to assume a power central to another branch, the Court has not hesitated to enforce the doctrine.

Functionally, the doctrine may be violated in two ways. One branch may interfere impermissibly with the other’s performance of its constitutionally assigned function; alternatively, one branch may assume a function that more properly is entrusted to another. These cases present the latter situation.

II

[Powell recounts the House’s action: Congress had before it, with the report on Chadha, the names of 339 other persons whose deportations had been suspended; the Judiciary Committee decided that six of them should not be allowed to remain; the resolution was not distributed before the vote. “Without further explanation and without a recorded vote, the House rejected the Service’s determination that these six people met the statutory criteria.”]

On its face, the House’s action appears clearly adjudicatory. The House did not enact a general rule; rather it made its own determination that six specific persons did not comply with certain statutory criteria. It thus undertook the type of decision that traditionally has been left to other branches. Even if the House did not make a de novo determination, but simply reviewed the Immigration and Naturalization Service’s findings, it still assumed a function ordinarily entrusted to the federal courts. See 5 U. S. C. § 704 (providing generally for judicial review of final agency action); cf. Foti v. INS, 375 U. S. 217 (1963). Where, as here, Congress has exercised a power “that cannot possibly be regarded as merely in aid of the legislative function of Congress,” Buckley v. Valeo, 424 U. S., at 138, the decisions of this Court have held that Congress impermissibly assumed a function that the Constitution entrusted to another branch.

[Answering the Court’s charge that the veto cannot be judicial because the INS’s decision presented no justiciable issue, Powell replies in a footnote that “[r]eliance by the Court on this fact misses the point. Even if review of the particular decision to suspend deportation is not committed to the courts, the House of Representatives assumed a function that generally is entrusted to an impartial tribunal. In my view, the Legislative Branch in effect acted as an appellate court by overruling the Service’s application of established law to Chadha. And unlike a court or an administrative agency, it did not provide Chadha with the right to counsel or a hearing before acting.”]

The impropriety of the House’s assumption of this function is confirmed by the fact that its action raises the very danger the Framers sought to avoid — the exercise of unchecked power. In deciding whether Chadha deserves to be deported, Congress is not subject to any internal constraints that prevent it from arbitrarily depriving him of the right to remain in this country. Unlike the judiciary or an administrative agency, Congress is not bound by established substantive rules, nor is it subject to the procedural safeguards, such as the right to counsel and a hearing before an impartial tribunal, that are present when a court or an agency adjudicates individual rights. The only effective constraint on Congress’ power is political, but Congress is most accountable politically when it prescribes rules of general applicability. When it decides rights of specific persons, those rights are subject to “the tyranny of a shifting majority.”

Chief Justice Marshall observed: “It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.” Fletcher v. Peck, 6 Cranch 87, 136 (1810). In my view, when Congress undertook to apply its rules to Chadha, it exceeded the scope of its constitutionally prescribed authority. I would not reach the broader question whether legislative vetoes are invalid under the Presentment Clauses.

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[Justice White, dissenting. This is the opinion the case is taught for. Edited at length; his footnotes are omitted except where noted in brackets, and his Appendix is described rather than reproduced.]

Today the Court not only invalidates § 244(c)(2) of the Immigration and Nationality Act, but also sounds the death knell for nearly 200 other statutory provisions in which Congress has reserved a “legislative veto.” For this reason, the Court’s decision is of surpassing importance. And it is for this reason that the Court would have been well advised to decide the cases, if possible, on the narrower grounds of separation of powers, leaving for full consideration the constitutionality of other congressional review statutes operating on such varied matters as war powers and agency rulemaking, some of which concern the independent regulatory agencies.

The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central means by which Congress secures the accountability of executive and independent agencies. Without the legislative veto, Congress is faced with a Hobson’s choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its lawmaking function to the Executive Branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role. Accordingly, over the past five decades, the legislative veto has been placed in nearly 200 statutes, in every field of governmental concern: reorganization, budgets, foreign affairs, war powers, and regulation of trade, safety, energy, the environment, and the economy.

The legislative veto developed initially in response to the problems of reorganizing the sprawling Government structure created in response to the Depression. The Reorganization Acts established the chief model. When President Hoover requested authority to reorganize the Government in 1929, he coupled his request that the “Congress be willing to delegate its authority over the problem (subject to defined principles) to the Executive” with a proposal that the Executive “should act upon approval of a joint committee of Congress or with the reservation of power of revision by Congress within some limited period adequate for its consideration.” Congress followed that suggestion. Act of June 30, 1932, § 407, 47 Stat. 414. The provision returned during the Roosevelt administration and has since been renewed numerous times, and was used extensively: Presidents submitted 115 Reorganization Plans to Congress, of which 23 were disapproved pursuant to legislative veto provisions.

Shortly after adoption of the Reorganization Act of 1939, Congress and the President applied the procedure to the delegation problem in national security and foreign affairs. World War II occasioned the need to transfer greater authority to the President in these areas, and the legislative veto offered the means by which Congress could confer additional authority while preserving its own constitutional role. During World War II, Congress enacted over 30 statutes conferring powers on the Executive with legislative veto provisions. President Roosevelt accepted the veto as the necessary price for obtaining exceptional authority. Over the quarter century that followed, Presidents continued to accept legislative vetoes by one or both Houses as constitutional, while regularly denouncing provisions by which congressional Committees reviewed Executive activity. The veto balanced delegations of statutory authority in new areas: the space program, international agreements on nuclear energy, tariff arrangements, and adjustment of federal pay rates.

During the 1970’s the legislative veto was important in resolving a series of major constitutional disputes between the President and Congress over claims of the President to broad impoundment, war, and national emergency powers. The key provision of the War Powers Resolution, 50 U. S. C. § 1544(c), authorizes the termination by concurrent resolution of the use of armed forces in hostilities. A similar measure resolved the problem posed by Presidential claims of inherent power to impound appropriations: under the Congressional Budget and Impoundment Control Act of 1974, permanent impoundments, termed “rescissions,” require enactment of legislation, while temporary impoundments, or “deferrals,” become effective unless disapproved by one House. That compromise provided the President with flexibility while preserving ultimate congressional control over the budget. Although the War Powers Resolution was enacted over President Nixon’s veto, the Impoundment Control Act was enacted with the President’s approval. These statutes were followed by others resolving similar problems: the National Emergencies Act, on unchecked Executive emergency power; the International Security Assistance and Arms Export Control Act, on foreign arms sales; and the Nuclear Non-Proliferation Act of 1978, on exports of nuclear technology. In the energy field, the veto balanced broad delegations emerging from the energy crisis; in the educational field, it accompanied a grant of rulemaking authority to the Commissioner of Education; and in trade regulation, it preserved congressional authority over the Federal Trade Commission’s broad mandate to prevent “unfair or deceptive acts or practices in commerce.”

Even this brief review suffices to demonstrate that the legislative veto is more than “efficient, convenient, and useful.” Ante, at 944. It is an important if not indispensable political invention that allows the President and Congress to resolve major constitutional and policy differences, assures the accountability of independent regulatory agencies, and preserves Congress’ control over lawmaking. The increasing reliance of Congress upon it suggests that the alternatives to which Congress must now turn are not entirely satisfactory.

[A long footnote canvasses those alternatives and finds each wanting: greater statutory specificity is neither realistic nor desirable, since “[t]he controversial nature of many issues would prevent Congress from reaching agreement on many major problems if specificity were required”; oversight hearings “are no substitute for the exercise of actual authority” unless Congress “is to be rendered a think tank or debating society”; and corrective legislation after the fact “entails the drawbacks endemic to a retroactive response.”]

The history of the legislative veto also makes clear that it has not been a sword with which Congress has struck out to aggrandize itself at the expense of the other branches — the concerns of Madison and Hamilton. Rather, the veto has been a means of defense, a reservation of ultimate authority necessary if Congress is to fulfill its designated role under Art. I as the Nation’s lawmaker. While the President has often objected to particular legislative vetoes, generally those left in the hands of congressional Committees, the Executive has more often agreed to legislative review as the price for a broad delegation of authority.

II

For all these reasons, the apparent sweep of the Court’s decision today is regrettable. The Court’s Art. I analysis appears to invalidate all legislative vetoes irrespective of form or subject. Because the legislative veto is commonly found as a check upon rulemaking by administrative agencies and upon broad-based policy decisions of the Executive Branch, it is particularly unfortunate that the Court reaches its decision in cases involving a veto over deportation decisions regarding particular individuals. To strike an entire class of statutes based on consideration of a somewhat atypical and more readily indictable exemplar of the class is irresponsible. It was for cases such as these that Justice Brandeis wrote:

“The Court has frequently called attention to the ‘great gravity and delicacy’ of its function in passing upon the validity of an act of Congress … .

[The interior of this block quotation did not come through in the acquisition. On reporter page 974 the scan breaks from the opening clause directly into footnote text, and the quotation resumes only on 975 with the sentence below. Nothing has been supplied to bridge it.]

“The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ Liverpool, N. Y. & P. S. S. Co. v. Emigration Commissioners, [113 U. S. 33, 39 (1885)].” Ashwander v. TVA, 297 U. S. 288, 345, 347 (1936) (concurring opinion).

Unfortunately, today’s holding is not so limited.

[Part III-A is omitted. White argues that the terms of the Presentment Clauses suggest only that “bills and their equivalent” are subject to bicameral passage and presentment, and that “[t]he power to exercise a legislative veto is not the power to write new law without bicameral approval or Presidential consideration”: the veto “must be authorized by statute and may only negative what an Executive department or independent agency has proposed.”]

III

B

The Court’s holding today that all legislative-type action must be enacted through the lawmaking process ignores that legislative authority is routinely delegated to the Executive Branch, to the independent regulatory agencies, and to private individuals and groups.

“The rise of administrative bodies probably has been the most significant legal trend of the last century… . They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories … .” FTC v. Ruberoid Co., 343 U. S. 470, 487 (1952) (Jackson, J., dissenting).

This Court’s decisions sanctioning such delegations make clear that Art. I does not require all action with the effect of legislation to be passed as a law.

Theoretically, agencies and officials were asked only to “fill up the details,” and the rule was that “Congress cannot delegate any part of its legislative power except under the limitation of a prescribed standard.” Chief Justice Taft elaborated the standard in J. W. Hampton & Co. v. United States, 276 U. S. 394, 409 (1928): “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.” In practice, however, restrictions on the scope of the power that could be delegated diminished and all but disappeared. In only two instances did the Court find an unconstitutional delegation. In other cases, the “intelligible principle” through which agencies have attained enormous control over the economic affairs of the country was held to include such formulations as “just and reasonable”; “public interest”; “public convenience, interest, or necessity”; and “unfair methods of competition.”

The wisdom and the constitutionality of these broad delegations are matters that still have not been put to rest. But for present purposes, these cases establish that by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without the passage of new legislation. For some time, the sheer amount of law — the substantive rules that regulate private conduct and direct the operation of government — made by the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term. When agencies are authorized to prescribe law through substantive rulemaking, the administrator’s regulation is not only due deference, but is accorded “legislative effect.” These regulations bind courts and officers of the Federal Government, may pre-empt state law, and grant rights to and impose obligations on the public. They have the force of law.

If Congress may delegate lawmaking power to independent and Executive agencies, it is most difficult to understand Art. I as prohibiting Congress from also reserving a check on legislative power for itself. Absent the veto, the agencies receiving delegations of legislative or quasi-legislative power may issue regulations having the force of law without bicameral approval and without the President’s signature. It is not apparent why the reservation of a veto over that legislative power must be subject to a more exacting test.

Nor are there strict limits on the agents that may receive such delegations, so that it might be said that the Legislature can delegate authority to others but not to itself. Statutory delegations to private persons have also passed this Court’s scrutiny: Currin v. Wallace, 306 U. S. 1 (1939), and United States v. Rock Royal Co-operative, Inc., 307 U. S. 533, 577 (1939), the latter upholding an Act giving producers of specified commodities the right to veto marketing orders issued by the Secretary of Agriculture. Assuming those cases remain sound law, the Court’s decision today suggests that Congress may place a “veto” power over suspensions of deportation in private hands or in the hands of an independent agency, but is forbidden to reserve such authority for itself. Perhaps this odd result could be justified on other constitutional grounds, but certainly it cannot be defended as consistent with the Court’s view of the Art. I presentment and bicameralism commands.

[In the footnote to that sentence White presses the point: a scheme “which allows delegation of legislative power to the President and the departments under his control, but forbids a check on its exercise by Congress itself obviously denigrates” the separation of powers rather than serving it.]

[White then turns the Court’s own footnote against it. The Court concedes that agency rulemaking “may resemble lawmaking” and is “quasi-legislative.” But such rules and adjudications by the agencies, White replies, meet the Court’s own definition of legislative action, for they “alte[r] the legal rights, duties, and relations of persons … outside the Legislative Branch,” ante, at 952, and involve “determinations of policy,” ante, at 954. “Under the Court’s analysis, the Executive Branch and the independent agencies may make rules with the effect of law while Congress, in whom the Framers confided the legislative power, Art. I, § 1, may not exercise a veto which precludes such rules from having operative force. If the effective functioning of a complex modern government requires the delegation of vast authority which, by virtue of its breadth, is legislative or ‘quasi-legislative’ in character, I cannot accept that Art. I — which is, after all, the source of the nondelegation doctrine — should forbid Congress to qualify that grant with a legislative veto.”]

[Part III-C is omitted. White argues that “[h]owever resolutions of disapproval under § 244(c)(2) are formally characterized, in reality, a departure from the status quo occurs only upon the concurrence of opinion among the House, Senate, and President” — and that this construction of the Presentment Clauses, which the Executive Branch now rejects, was the basis on which it had for decades defended the Reorganization Act.]

IV

The Court of Appeals struck § 244(c)(2) as violative of the constitutional principle of separation of powers. It is true that the purpose of separating the authority of Government is to prevent unnecessary and dangerous concentration of power in one branch, and that virtually every part of our constitutional system bears the mark of this judgment.

But the history of the separation-of-powers doctrine is also a history of accommodation and practicality. The Constitution does not contemplate total separation of the three branches of Government. “[A] hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.” Buckley v. Valeo, 424 U. S. 1, 121 (1976).

Our decisions reflect this judgment. The Court, recognizing that modern government must address a formidable agenda of complex policy issues, countenanced the delegation of extensive legislative authority to Executive and independent agencies. The separation-of-powers doctrine has heretofore led to the invalidation of Government action only when the challenged action violated some express provision in the Constitution. Because we must have a workable efficient Government, this is as it should be.

I do not suggest that all legislative vetoes are necessarily consistent with separation-of-powers principles. A legislative check on an inherently executive function, for example that of initiating prosecutions, poses an entirely different question. But the legislative veto device here — and in many other settings — is far from an instance of legislative tyranny over the Executive. It is a necessary check on the unavoidably expanding power of the agencies as they exercise authority delegated by Congress.

V

I regret that I am in disagreement with my colleagues on the fundamental questions that these cases present. But even more I regret the destructive scope of the Court’s holding. It reflects a profoundly different conception of the Constitution than that held by the courts which sanctioned the modern administrative state. Today’s decision strikes down in one fell swoop provisions in more laws enacted by Congress than the Court has cumulatively invalidated in its history. I fear it will now be more difficult to “insur[e] that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people,” Arizona v. California, 373 U. S. 546, 626 (1963) (Harlan, J., dissenting in part). I must dissent.

[White appended a compilation, reprinted from the Brief for the United States Senate, of current statutory provisions authorizing a legislative veto by one or both Houses. It runs eleven reporter pages, 1003–1013, in six categories — foreign affairs and national security, budget, international trade, energy, rulemaking, and miscellaneous — excluding committee vetoes and provisions requiring a joint resolution. Its own preamble describes it as covering 55 statutes; the numbered items as printed run to 56. Item 21, under the energy heading, is absent from the acquisition: the returned text of reporter page 1006 runs from item 20 to item 22, and item 21 appears on neither 1005 nor 1007. Its content was not obtained and has not been supplied. The Appendix is not reproduced here.]

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[Justice Rehnquist, with whom Justice White joins, dissenting. He would hold the veto provision inseverable and would reverse on that ground, without reaching the merits. Abridged.]

A severability clause creates a presumption that Congress intended the valid portion of the statute to remain in force when one part is found to be invalid. A severability clause does not, however, conclusively resolve the issue. “[T]he determination, in the end, is reached by” asking “[w]hat was the intent of the lawmakers,” Carter, supra, at 312, and “will rarely turn on the presence or absence of such a clause.” United States v. Jackson, 390 U. S. 570, 585, n. 27 (1968). Because I believe that Congress did not intend the one-House veto provision of § 244(c)(2) to be severable, I dissent.

Section 244(c)(2) is an exception to the general rule that an alien’s deportation shall be suspended when the Attorney General finds that statutory criteria are met. It is severable only if Congress would have intended to permit the Attorney General to suspend deportations without it. This Court has held several times that exceptions such as this are not severable because

“by rejecting the exceptions intended by the legislature … the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what anyone can say it would have enacted in view of the illegality of the exceptions.” Spraigue v. Thompson, 118 U. S. 90, 95 (1886).

By severing § 244(c)(2), the Court permits suspension of deportation in a class of cases where Congress never stated that suspension was appropriate. I do not believe we should expand the statute in this way without some clear indication that Congress intended such an expansion.

The Court finds that the legislative history of § 244 shows that Congress intended § 244(c)(2) to be severable because Congress wanted to relieve itself of the burden of private bills. But the history elucidated by the Court shows that Congress was unwilling to give the Executive Branch permission to suspend deportation on its own. Congress consistently rejected requests from the Executive for complete discretion in this area, always insisting on retaining ultimate control, whether by concurrent resolution, as in the 1948 Act, or by one-House veto, as in the present Act. Congress has never indicated that it would be willing to permit suspensions of deportation unless it could retain some sort of veto.

It is doubtless true that Congress has the power to provide for suspensions of deportation without a one-House veto. But the Court has failed to identify any evidence that Congress intended to exercise that power. By severing § 244(c)(2) the Court has “‘confounded’” Congress’ “‘intention’” to permit suspensions of deportation “‘with their power to carry that intention into effect.’” Davis v. Wallace, 257 U. S. 478, 484 (1922).

Because I do not believe that § 244(c)(2) is severable, I would reverse the judgment of the Court of Appeals.

Notes & Questions

1. Big picture — the most consequential formalist opinion in the separation-of-powers canon. Chadha holds that the one-House veto is an exercise of legislative power and therefore had to run the gauntlet Article I, § 7 prescribes: passage by both Houses and presentment to the President. The reasoning is almost entirely structural and textual. The Framers chose a deliberately cumbersome process, they knew it was cumbersome, and the fact that a shortcut is convenient — even necessary, on the Government’s account — is not an argument the Constitution recognizes. Set that against Youngstown, which you just read. Jackson’s framework is functional: it asks what Congress has done, how much power is really at stake, and what the equilibrium requires. Chadha asks a categorical question and answers it with a definition. The module is built on that contrast, and you should be able to state which cases in it are formalist and which are functionalist without looking. (Morrison, in the next module, is the high-water mark of functionalism; Seila Law is the swing back.) The other reason this case matters is scale. Legislative-veto provisions were in hundreds of statutes when it was decided, and Justice White’s dissent points out that the Court struck down more provisions of federal law in this one decision than in its entire prior history. A decision of that magnitude, resting on a definition, deserves to be read skeptically in both directions.

2. Raw specific knowledge — the definitional move and the four exceptions. (a) State the holding in the Court’s own terms: the House’s action was legislative in character and effect because it had the purpose and effect of altering the legal rights, duties, and relations of persons outside the legislative branch — the Attorney General, Executive Branch officials, and Chadha himself. That is the whole case. Everything else is application. (b) Be able to say why the Court thinks the test is not circular. The obvious objection is that “legislative” is being defined by its effects, and that on this definition every congressional act of any consequence is legislative — which is either trivially true or proves too much. Find the Court’s answer and evaluate it. (c) Memorize the four exceptions the Court lists, where the Constitution expressly authorizes one House to act alone: the House’s power to initiate impeachments; the Senate’s power to try them; the Senate’s power over presidential appointments; and the Senate’s power to ratify treaties. Note the Court’s inference from the list — that the Framers, when they meant to authorize unicameral action, said so, and did so narrowly. That is an expressio unius argument, and you should be able to say when that kind of argument is strong and when it is weak. (d) Note the threshold holding on severability, which is why the whole Act did not fall with § 244(c)(2), and note that Rehnquist, joined by White, dissented on exactly that point.

3. Practical application — redesign the mechanism. Congress wants continuing control over an agency’s exercise of delegated power, and Chadha has just taken away its favorite tool. For each of the following, say whether it survives Chadha and why. (a) A statute providing that a rule takes effect unless both Houses pass a resolution of disapproval and the President signs it. (b) A statute providing that a rule may not take effect until Congress affirmatively approves it by joint resolution. (c) A statute providing that appropriations for the program lapse after two years unless renewed. (d) A committee-level “report and wait” provision requiring the agency to notify a committee and wait ninety days before acting. (e) An informal understanding, unwritten, that the agency will not act over the objection of the relevant subcommittee chair. Then the real question: rank these by how much practical control they give Congress, and compare that ranking to the constitutional one. The Congressional Review Act of 1996 is essentially option (a). Ask yourself how often it has actually been used to disapprove a rule, and what that tells you about whether Chadha changed the distribution of power or merely the paperwork. This is the point at which White’s dissent stops being an academic objection.

4. Attack the reasoning — White’s dissent, and the delegation bargain. White’s argument is not that the legislative veto is convenient. It is structural, and it runs like this: the modern administrative state exists because Congress delegates vast lawmaking authority to agencies; the Court has permitted that delegation with essentially no enforceable limit since 1935; the legislative veto was the device by which Congress retained a check on the power it had handed away; and striking it down does not restore anything to Congress, it simply leaves the delegated power in the agencies with one fewer restraint. The Court’s formalism, on this view, produces a less accountable government, not a more accountable one. So: (a) Is that an argument about the Constitution or about consequences? If the Constitution requires bicameralism and presentment, does it matter that the requirement makes agencies more powerful? Construct the majority’s best answer — it has one, and it involves what the alternative to the veto really is. (b) Test White’s premise. If the legislative veto is the price of broad delegation, then the honest response to Chadha would have been to tighten the nondelegation doctrine. You will read Gundy and West Virginia v. EPA in this same module. Does the major questions doctrine amount to the Court doing, forty years later, what White said would be necessary? (c) Powell would have decided the case on a much narrower ground: that Congress, in determining that Chadha did not satisfy the statutory criteria for suspension of deportation, assumed a judicial function and adjudicated the rights of a named individual. That is a bill-of-attainder-flavoured argument, and it would have invalidated this veto without touching the hundreds of others. Why is the narrow ground not obviously better? Answer that, and you have said something about what courts are for.

5. Creative thinking — one person’s case, and the arithmetic of the deportation. (a) Start with the facts, which are easy to lose in the structure. Jagdish Rai Chadha was one of six people named in a resolution that the House passed without debate, without a recorded vote, and without any statement of reasons, after an immigration judge had found he met the statutory criteria for suspension of deportation. Write two paragraphs arguing that the case should have been decided on due process grounds and that the separation-of-powers holding was unnecessary. Then write the two paragraphs answering you. Notice that the answer probably has to say something about why structural protections matter more when the individual has a sympathetic case, not less — which is Scalia’s theme in Morrison and worth carrying forward. (b) Design the constitutional amendment. Suppose you think White is right about consequences and the majority right about the text. Draft an amendment, in no more than three sentences, that permits a legislative veto of agency action while preserving what bicameralism and presentment are for. You will find you have to decide what those requirements are actually protecting — the President’s participation, deliberation, the difficulty of legislating, or the accountability that comes from a recorded vote. Whichever you choose, your amendment will protect it and sacrifice the others. Say which you sacrificed and defend the trade.

Footnotes

1. See also U. S. Const., Art. II, § 1, and Amdt. 12. ↩

2. An exception from the Presentment Clauses was ratified in Hollingsworth v. Virginia, 3 Dall. 378 (1798). There the Court held Presidential approval was unnecessary for a proposed constitutional amendment which had passed both Houses of Congress by the requisite two-thirds majority. See U. S. Const., Art. V. One might also include another “exception” to the rule that congressional action having the force of law be subject to the bicameral requirement and the Presentment Clauses. Each House has the power to act alone in determining specified internal matters. Art. I, § 7, cls. 2, 3, and § 5, cl. 2. However, this “exception” only empowers Congress to bind itself and is noteworthy only insofar as it further indicates the Framers’ intent that Congress not act in any legally binding manner outside a closely circumscribed legislative arena, except in specific and enumerated instances. Although the bicameral check was not provided for in any of these provisions for independent congressional action, precautionary alternative checks are evident. For example, Art. II, § 2, requires that two-thirds of the Senators present concur in the Senate’s consent to a treaty, rather than the simple majority required for passage of legislation. Similarly, the Framers adopted an alternative protection, in the stead of Presidential veto and bicameralism, by requiring the concurrence of two-thirds of the Senators present for a conviction of impeachment. Art. I, § 3. We also note that the Court’s holding in Hollingsworth, supra, that a resolution proposing an amendment to the Constitution need not be presented to the President, is subject to two alternative protections. First, a constitutional amendment must command the votes of two-thirds of each House. Second, three-fourths of the states must ratify any amendment. ↩