Byron White

“ 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. ”

“ Moreover, there is no constitutional obligation to provide any judicial review whatever for a failure to suspend deportation.
The power of Congress, therefore, to expel, like the power to exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by Congress to depend. ”

“ 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 [p987] approval and without the President's signature. It is thus not apparent why the reservation of a veto over the exercise of that legislative power must be subject to a more exacting test. ”

“ In a democracy, it is the electorate that holds the legislators accountable for the wisdom of their choices. It is hard to maintain that a private bill receives any greater individualized scrutiny than a resolution [p998] of disapproval under § 244 (c) (2) . Certainly the legislative veto is no more susceptible to this attack than the Court's increasingly common practice of according weight to the failure of Congress to disturb an Executive or independent agency's action. ”

“ Earlier this Term, the Court found it important that Congress failed to act on bills proposed to overturn the Internal Revenue Service's interpretation of the requirements for tax-exempt status under § 501 (c) (3) of the Internal Revenue Code. 958, n. 23. This objection appears more properly directed at the wisdom of the legislative veto than its constitutionality. The Constitution does not and cannot guarantee that legislators will carefully scrutinize legislation and deliberate before acting. ”

“ 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 [p973] Congress' control over lawmaking. Perhaps there are other means of accommodation and accountability, but the increasing reliance of Congress upon the legislative veto suggests that the alternatives to which Congress must now turn are not entirely satisfactory. ”

“ At all times, whether through private bills, or through affirmative concurrent resolutions, or through the present one-House veto, a permanent change in a deportable alien's status could be accomplished only with the agreement of the Attorney General, the House, and the Senate.
The central concern of the presentment and bicameralism requirements of Art. I is that, when a departure from the legal status quo is undertaken, it is done with the approval of the President and both Houses of Congress — or, in the event of a Presidential veto, a two-thirds majority in both Houses. ”

“ 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 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 [p986] the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. ”

“ 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 the exercise of a veto over deportation decisions regarding particular individuals. Courts should always be wary of striking statutes as unconstitutional ”

“ It has become a central [p968] 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. ”

“ Section 244 (a) (1) authorizes the Attorney General, in his discretion, to suspend the deportation of certain aliens who are otherwise deportable and, upon Congress' approval, to adjust their status to that of aliens lawfully admitted for permanent residence. In order to be eligible for this relief, an alien must have been physically present in the United States for a continuous period of not less than seven years, must prove he is of good moral character, and must prove that he or his immediate family would suffer "extreme hardship" if he is deported. ”

“ Assuming Currin and Rock Royal Cooperative 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, such as the separation of powers, but certainly it cannot be defended as consistent with the Court's view of the Art. I presentment and bicameralism commands. ”

“ The President and the two Houses enjoy exactly the same say in what the law is to be as would have been true for each without the presence of the one-House veto, and nothing in the law is changed absent the concurrence of the President and a majority in each House. Atkins v. United States, 214 Ct.Cl. 186, 250, 556 F.2d 1028, 1064 (1977) , cert. denied, 434 U.S. 1009 (1978) .
This very construction of the Presentment Clauses which the Executive Branch now rejects was the basis upon which the Executive Branch defended the constitutionality of the Reorganization Act, 5 U.S.C. § 906 (a) (1982 ed.) ”

“ The Impoundment Control Act's provision for legislative review has been used extensively. Presidents have submitted hundreds of proposed budget deferrals, of which 65 have been disapproved by resolutions of the House or Senate with no protest by the Executive. See App. B to Brief for United States Senate on Reargument.↑ . The veto appears in a host of broad statutory delegations concerning energy rationing, contingency plans, strategic oil reserves, allocation of energy production materials, oil exports, and naval petroleum reserve production. ”

“ When the Convention did turn its attention to the scope of Congress' lawmaking power, the Framers were expansive. The Necessary and Proper Clause, Art. I, § 8, cl. 18, vests [p984] Congress with the power
[t] o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [the enumerated powers of § 8] and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. ”

“ Section 244 makes clear that Congress has reserved its own judgment as part of the statutory process. Congressional action does not substitute for judicial review of the Attorney General's decisions. The Act provides for judicial review of the refusal of the Attorney General to suspend a deportation and to transmit a recommendation to Congress. INS v. Jong Ha Wang, 450 U.S. 139 (1981) (per curiam) . But the courts have not been given the authority to review whether an alien should be given permanent status ”

“ The legislative veto provision does not "preven [t] the Executive Branch from accomplishing its constitutionally assigned functions." First, it is clear that the Executive Branch has no "constitutionally assigned" function of suspending the deportation of aliens. "‘ [O] ver no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens." ”

“ Similarly, I would not hesitate to strike an action of Congress in the form of a concurrent resolution which constituted an exercise of original lawmaking authority. I agree with the Court that the President's [p980] qualified veto power is a critical element in the distribution of powers under the Constitution, widely endorsed among the Framers, and intended to serve the President as a defense against legislative encroachment and to check the "passing of bad laws, through haste, inadvertence, or design." The Federalist No. ”

“ D ENERGY
17. Act of November 16, 1973, Pub.L. No. 93-153, § 101, 87 Stat. 576, 582, 30 U.S.C. § 185 (u) (Continuation of oil exports being made pursuant to President's finding that such exports are in the national interest may be disapproved by concurrent resolution) .
18. Federal Nonnuclear Energy Research and Development Act of 1974, Pub.L. No. 93-577, § 12, 88 Stat. 1878, 1892-1893, 42 U.S.C. § 5911 (Rules or orders proposed by the President concerning allocation or acquisition of essential materials may be disapproved by resolution of either House) . ”

“ These regulations bind courts and officers of the Federal Government, may preempt state law, see, e.g., Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141 (1982) , and grant rights to and impose obligations on the public. In sum, they have the force of law. ”

“ V) , resolving the problem of exports of nuclear technology.
In the energy field, the legislative veto served to balance broad delegations in legislation emerging from the energy crisis of the 1970's. [8] In the educational field, it was found [p972] that fragmented and narrow grant programs "inevitably lead to Executive-Legislative confrontations" because they inaptly limited the Commissioner of Education's authority. S.Rep. No. 93-763, p. 69 (1974) . The response was to grant the Commissioner of Education rulemaking authority, subject to a legislative veto. ”

“ The succeeding Congress again attempted to find a legislative solution to the deportation problem. The initial House bill required congressional action to cancel individual deportations, 84 Cong.Rec. 10455 (1939) , but the Senate amended the legislation to provide that deportable aliens should not be deported unless the Congress, by Act or resolution, rejected the recommendation of the Secretary. H.R. 5138, § 10, as reported with amendments by S.Rep. No. ”

“ Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.L.Rev. 983, 1089-1090 (1975) (listing statutes) .↑ . The Roosevelt administration submitted proposed legislation containing veto provisions and defended their constitutionality. See, e.g., General Counsel to the Office of Price Administration, Statement on Constitutionality of Concurrent Resolution Provision of Proposed Price Control Bill (H.R. 5479) , reprinted in Price-Control Bill: Hearings on H.R. 5479 before the House Committee on Banking and Currency, 77th Cong., 1st Sess., pt. ”

“ Dirksen) (citing Reorganization Act in support of proposal to include a legislative veto in Lend-Lease Act) ; H.R.Rep. No. 93-658, p. 42 (1973) (citing Reorganization Act as "sufficient precedent" for legislative veto provision for Impoundment Control Act) .↑ . Madison emphasized that the principle of separation of powers is primarily violated "where the whole power of one department is exercised by the same hands which possess the whole power of another department." The Federalist No. ”