Bicameralism and presentment

Ins V. Chadha - One house veto provision stricken

• Burger 1983. Majority. SCt held that a typical one-house legislative veto was unconstitutional because it violated both President’s veto power and the bicameral structure of Congress. If the House or Senate wants to reserve power to undo the action of an administrative agency, both houses will have to pass the same bill and present it to the President for a possible veto.

• Facts. Article I, §8 of USC gives Congress the right to establish rules of naturalization and, by implication, immigration. Congress has always possessed, and has frequently exercised, the power to allow an alien who would otherwise be deportable under existing immigration rules to remain in the country; typically, this has been done by means of a “private bill” applicable to one or a few particular aliens. In an effort to relieve itself of the burdens of considering numerous private bills, Congress delegated to the Attorney General, in the Immigration and Nationality Act, the authority to suspend deportation of aliens in certain situations. However, in order to retain some control over this delegated power, Congress reserved to itself a legislative veto over each decision by the Attorney General suspending deportation. The veto could be exercised by a resolution passed by either house within a certain time after the Attorney General’s decision to suspend deportation. Chadha, the plaintiff, was one of several aliens as to whom the House of Representatives used its veto power to reverse the Attorney General’s suspension of deportation.

• Veto Provision Stricken. SCt struck down this legislative veto as a violation of two distinct constitutional requirements. First, the veto violated the Presentment Clause (Art. I, §7, cl. 2) which requires that every bill be presented to the President for his signature, so that he may have the opportunity to veto it. Secondly, this particular veto provision, since it could be exercised by a single house, violated the bicameral requirement of Article I, §§1 and 7, by which both houses must pass a bill before it can become law.

• Essentially Legislative Act. The real issue in the case was whether the House’s issuance of the legislative veto here itself constituted the exercise of legislative power. Not all acts by a house fall into this category, and only the ones that do require presentment and bicameral approval. However, in the Court’s view the overruling of the Attorney General’s decision on a deportation matter did constitute the exercise of legislative power, since it had the “purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the legislative branch.”

• Consequently, Congress could reverse the Attorney General’s decision on a deportation matter only by passing a law, in the constitutionally-prescribed manner (passage by both houses, presentment to the President and either signature by him or the overriding of his veto). The fact that the legislative veto mechanism may be a more “efficient” means of controlling administrative action was irrelevant.

• Two-House Veto Provisions. In the vast majority of instances, legislative veto clauses allowing a veto only where both houses act concurrently are just as unconstitutional as a single-house veto provision, since both types of clauses deprive the President of his veto power.

• Koppelman critique.

• Does it make sense to deem such decisions “essentially legislative”? Under nondelegation doctrine, that label would probably have meant that INS could not suspend Chadha’s deportation, because INS cannot make law.

• Why is bicameralism and presentment necessary when Congress delegates “essentially legislative” power to itself or its members, but not when it delegates such power to someone else?

• Dissent - White. White and Rehnquist dissented. Main dissent was White, who argued that a house’s use of the legislative veto was simply not the functional equivalent of passing a law. The legislative veto “no more allows one House of Congress to make law than does the presidential veto confer such power upon the President.”

• Administrative agencies’ lawmaking function (functionalist argument): In White’s view, majority’s holding is inconsistent with the abandonment of the nondelegation doctrine and the recognition of independent agencies, both of which were based on a flexible approach to separation of powers issues. Executive agencies engage in a sort of “lawmaking” function, and no one contends that every agency decision of a lawmaking nature need be confirmed by subsequent vote of both houses of Congress and by presidential signature. Since executive power has grown far beyond anything contemplated in original USC, it is appropriate for Congress to craft a new check on that power. “If Congress may delegate lawmaking powers to independent executive agencies, it is most difficult to understand Article I as forbidding Congress from also reserving a check on legislative power for itself.” In White’s view, it was “enough that the initial statutory authorizations comply with the Article I requirements.”

• Formalistic Argument regarding change in status quo: Finally, White argued that the legislative veto provision in this case did not violate the separation-of-powers principles behind the bicameral and presidential-veto requirements. White contended that the net result of Congress’ delegation of authority to the Attorney General plus its reservation of veto power was that “a departure from the status quo occurs only upon the concurrence of opinion among the House, Senate, and President.” That is, if the determination that an alien is deportable is viewed as a change in the legal status quo, this change can be consummated only with the approval of each of the three actors (assuming that the Attorney General is treated as embodying the President’s authority). This result preserved the required separation of powers, in White’s opinion.

• Dissent - Rehnquist.

• Legislative veto is not severable from rest of law, so Chadha should be deported anyway. In other words, if entire statute is invalid, then INS had no authority to suspend Chadha’s deportation.

• This dissent is based on doctrine of severability. Doctrine of Severability:

1. “In determining whether the invalid portion of a statute may be severed from the valid portion, the question is whether the legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part excised or rejected altogether.”

2. An entire statute should be invalidated if, “by sustaining only a part of the statute, the purpose of the act is changed or altered.”

3. Residue of statute should be upheld, on other hand, if it is “independent of the invalid portion and . . . form[s] a complete act within itself.”

4. “There is a presumption that a legislative body generally intends its enactments to be severable, especially in the case where it will preserve the constitutionality of the enactment.”

5. Application to Chadha:

1. Question is whether Congress would have given this broad authority to executive branch even if it had retained no means of controlling executive branch’s exercise of that authority.

2. This question may be unanswerable, which is why majority and dissent arrive at different answers to it.