Constitutionality of Congress’ Disapproval of Agency Regulations by Resolutions Not Presented to the President

Constitutionality of Congress’ Disapproval of Agency Regulations by Resolutions Not Presented to the President Section 431 of the General Education Provisions Act, 20 U.S.C. § 1232(d), which purports to authorize Congress, by concurrent resolutions that are not to be presented to the President for his approval or veto, to disapprove Department of Education regulations for education programs it administers, is unconstitutional. Legislative veto devices deny the President his power under Article I, § 7 of the Constitution, to veto legislation, interfere with his duty under Article II, §3, faithfully to execute the laws, and arrogate to Congress power to interpret existing law that is constitutionally reserved to the judicial branch. The congressional disapproval provisions of the General Education Provisions Act, 20 U.S.C. § 1232(d), are severable from the substantive rulemaking authorities con- ferred by the Education Amendments of 1978, P.L. No. 95-561, 92 Stat. 2143. The Attorney General must scrutinize with caution any claim that he or any executive officer may decline to defend or enforce a statute whose constitutionality is merely in doubt. At the same time, the Executive is required to enforce the Constitution and to preserve the integrity of its functions against unconstitutional encroachments. June 5, 1980 T h e S e c r e t a r y o f E d u c a t i o n M y D e a r M a d a m S e c r e t a r y : I am responding to your request for my opinion regarding the constitutionality of §431 of the General Education Provisions Act (GEPA), 20 U.S.C. § 1232(d). That provision purports to authorize Congress, by concurrent resolutions that are not to be submitted to the President for his approval or veto, to disapprove final regulations promulgated by you for education programs adminis- tered by the Department of Education. Acting under this authority, Congress has recently disapproved regulations concerning four pro- grams of your Department.1 For reasons set forth below, I believe that 1 H. Con. Res. 318. 96th C ong., 2d Sess. (1980), disapproves regulations issued under §451 o f the G E P A , 20 U.S.C. § 1234. pertaining to the operations o f the E ducation A ppeal Board. 45 Fed. Reg. 22,634 (1980). H. C on. Res. 319, 96th C ong., 2d Sess. (1980), disapproves regulations issued under § 322 o f the E lem entary and S econdary Education A ct o f 1965 (E S E A ], 20 U .S.C. § 2962, pertaining to arts education. 45 Fed. Reg. 22,742 (1980). H. Con. Res. 332, 96th C ong., 2d Sess. (1980), disapproves regulations issued under §§ 346-48 o f the E S E A , 20 U .S.C. §§ 3001-03, pertaining to law- related education. 45 Fed. Reg. 27,880 (1980). S. Con. Res. 91, 96th C ong., 2d Sess. (1980). disap- proves regulations issued under T itle IV o f the E S E A , 20 U .S.C. §§3081 et seq.. pertaining to grants to state and local education agencies for educational resources. 45 Fed. Reg. 23,602 (1980). T he statutory au thority for issuance o f these regulations was added to the G E P A o r the E S E A by the E ducation A m endm ents o f 1978. Pub. L. No. 95-561, 92 Stat. 2143. 21 §431 is unconstitutional and that you are entitled to implement the regulations in question in spite of Congress’ disapproval. I. Under 20 U.S.C. § 1232(d), your Department is required, when it promulgates any final regulation for an “applicable program,” 2 to transmit that regulation to the Speaker of the House and to the Presi- dent of the Senate. This section further provides: Such final regulation shall become effective not less than forty-five days after such transmission unless the Congress shall, by concurrent resolution, find that the final regula- tion is inconsistent with the Act from which it derives its authority, and disapprove such final regulation. In short, the two Houses of Congress can, without presidential partici- pation, prevent the Executive from executing substantive law previ- ously enacted by the Congress with respect to education programs. Moreover, § 1232(d), on its face, purports to delegate to the two Houses of Congress the constitutional function historically reserved to the courts to ensure that the execution of the law by the Executive is consistent with the statutory bounds established in the legislative process. In designing a federal government of limited powers, the Framers of the Constitution were careful to assign the powers of government to three separate, but coordinate branches. They vested legislative power in the Congress, the power to execute the laws passed by the Congress in the Executive, and the power finally to say what the law is in the Judiciary. In ordering these relationships, the Framers were careful, in turn, to limit each branch in the exercise of its powers. The power of Congress to legislate was not left unrestrained, but was made subject to the President’s veto. Neither was the President’s power to execute the law left absolute, but Congress was empowered to constrain any execu- tive action not committed by the Constitution exclusively to the Execu- tive by passing legislation on that subject. Should such legislation be vetoed by the President, Congress could use its ultimate authority to override the President’s veto. Both of the political branches were, in turn, to be checked by the courts’ power to take jurisdiction to deter- mine the existence of legislative authority for executive actions, and to review the acts of both Congress and the Executive for constitution- 2 U nder Che G E P A , an “ applicable pro g ram ” is “any program for w hich an adm inistrative head of an education agency has adm inistrative responsibility as provided by law o r by delegation or authority pursuant to law ." 20 U .S.C. § 1221(b) and (c)(1)(A ). T w o departm ental regulations recently disap- proved by C ongress w ere prom ulgated originally by the C om m issioner o f Education, under the form er D epartm ent o f H ealth, E ducation, and W elfare. T h e C om m issioner's functions, how ever, w ere transferred to you under the D epartm ent o f E ducation O rganization A ct, § 301(a)(1), Pub. L. No. 96- 88, 93 Stat. 677 (1979). A ll four program s involved are now adm inistered under your authority. 22 ality. This, in simplest form, is our carefully balanced constitutional system. The legislative veto mechanism in § 1232(d) upsets the careful bal- ance devised by the Framers. Viewed as “legislative” acts, legislative vetoes authorize congressional action that has the effect of legislation but deny to the President the opportunity to exercise his veto power under Article I, § 7 of the Constitution. Viewed as interpretive or executive acts, legislative vetoes give Congress an extra-legislative role in administering substantive statutory programs that impinges on the President’s constitutional duty under Article II, § 3, of the Constitution faithfully to execute the laws. Viewed as acts of quasi-judicial interpre- tation of existing law, legislative vetoes arrogate to the Congress power reserved in our constitutional system for the nonpolitical judicial branch. Thus, however they may be characterized, legislative vetoes are unconstitutional. A. The Presentation Clauses As illustrated by the four recent exercises of legislative veto power under § 1232(d), legislative veto devices are functionally equivalent to legislation because they permit Congress, one of its Houses, or even, on occasion, one or two of its committees, to block the execution of the law by the Executive for any reason, or indeed, for no reason at all. Under § 1232(d), the two Houses of Congress could, by passing succes- sive concurrent resolutions,/ bring to a halt substantive programs, the authority for which was enacted by prior Congresses with the partici- pation of the President. Such legislative veto devices cannot stand in the face of the language and history of the Presentation Clauses, Art. I, § 7, els. 2 and 3. Clause 2 provides that every bill that passes the House and the Senate shall, before it becomes law, be presented to the President for his approval or disapproval.3 If disapproved, a bill does not become law unless repassed by a two-thirds vote of each House. At the Philadelphia Convention of 1787, the Framers considered and explicitly provided for the possibility that Congress, by passing “resolu- tions” rather than bills, might attempt to evade the requirement that proposed legislation be presented to the President. During the debate on Article I, § 7, James Madison observed: 3C lause 2 provides, in pertinent part: E very Bill w hich shall have passed the H ouse o f R epresentatives and the Senate, shall, before it becom e a Law , be presented to the President o f the U nited States; If he ap proves he shall sign it, but if not he shall return it, w ith his O bjections to that H ouse in w hich it shall have originated, w ho shall enter th e O bjections at large on their Journal, and proceed to reconsider it. If after such R econsideration tw o thirds o f that H ouse shall agree to pass the Bill, it shall be sent, together w ith the O bjections, to the oth er H ouse, by w hich it shall likew ise be reconsidered, and if approved by tw o thirds o f that House* it shall becom e a Law . 23 If the negative of the President was confined to bills; it would be evaded by acts under the form and name of Resolutions, votes &c—[and he] proposed that “or resolve” should be added after “bill” . . . , with an excep- tion as to votes of adjournment &c. 2 M. Farrand, Records of the Federal Convention of 1787 301 (rev. ed. 1937). Madison’s notes indicate that “after a short and rather confused conversation on this subject,” his proposal was at first rejected. How- ever, at the commencement of the following day’s session, Mr. Ran- dolph, “having thrown into a new form” Madison’s proposal, renewed it. It passed by vote of 9-1. Id., 301-35. Thus, the Constitution today provides, in addition to Clause 2 of § 7 dealing with the passage of “bills,” an entirely separate clause, Article I, § 7, cl. 3, as follows: Every Order, Resolution, or Vote to which the Concur- rence 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 by the Case of a Bill. I believe it is manifest, from the wording of Clause 3 and the history of its inclusion in the Constitution as a separate clause apart from the clause dealing with “bills,” that its purpose is to protect against all congressional attempts to evade the President’s veto power.4 The func- tion of the Congress in our constitutional system is to enact laws, and all final congressional action of public effect, whether or not it is formally referred to as a bill, resolution, order or vote, must follow the procedures prescribed in Article I, § 7, including presentation to the President for his approval or veto. * T h e President w as given his veto pow er, in part, in o rd er that he m ight resist any encroachm ent on the integrity o f the ex ecu tive branch. See The Federalist, No. 48. H is participation in the approval o f legislation is also crucial because o f his unique constitutional status as representative o f all the people. A s C h ief Justice T aft stated in 1926: T h e President is a representative o f the people ju st as the m em bers o f the Senate and o f the H ouse are, and it m ay be, at som e times, on som e subjects, that the President elected by all the people is rather m ore representative o f them all than the m em bers of eith er body o f the L egislature. . . - M yers v. U nited States, 272 U.S. 52, 123 (1926). 24 B. The Separation of Powers 1. Executing the law The principle of separation of powers underlying the structure of our constitutional form of government generally provides for the separation of powers among the legislative, executive, and judicial branches, and provides for “checks and balances” to maintain the integrity of each of the three branches’ functions. Generally speaking, the separation of powers provides that each of the three branches must restrict itself to its allocated sphere of activity: legislating, executing the law, or inter- preting the law with finality. This is not to say that every governmental function is inherently and of its very nature either legislative, executive, or judicial. Some activity might be performed by any of the three branches—and in that situation it is up to Congress to allocate the responsibility. See, e.g., Wayman v. Southard, 10 Wheat. 1, 42-43, 46 (1825) (Chief Justice Marshall). Once Congress, by passing a law, has performed that function of allocating responsibility, however, the sepa- ration of powers requires that Congress cannot control the discharge of those functions assigned to the Executive or the Judiciary, except through the plenary legislative process of amendment and repeal. The underlying reason, well stated by James Madison, is that other- wise the concentration of executive and legislative power in the hands of one branch might “justly be pronounced the very definition of tyranny.” The Federalist, No. 47, at 324 (Cooke ed. 1961). The shifting of executive power to the legislative branch which would be occa- sioned by these legislative veto devices is, I believe, undeniable; the concentration of this blended power is precisely what the Framers feared and what they set about to prevent. The Constitution’s overall allocations of power may not be altered under the guise of an assertion by the Congress of its power to pass laws that are “necessary and proper for carrying into Execution . . . Powers vested by [the] Constitution in the Government of the United States, or in any Department or Officer thereof,” Art. I, § 8, cl. 18.5 As the Supreme Court made clear in Buckley v. Valeo, 424 U.S. I (1976), the exercise of power by Congress pursuant to the Necessary and Proper Clause is limited both by other express provisions of the Consti- tution and by the principles of separation of powers. In Buckley, it was argued that officers of the Congress could, under the Necessary and Proper Clause, appoint commissioners of the Federal 5 It is fundam ental to o u r concept o f lim ited federal governm ent that pow er exercised by the legislative, executive and judicial branches be traced to a provision o f the C onstitution o r to a statute w hich is expressly o r im pliedly authorized by a provision o f th e C onstitution. T hus, a source of authority for C ongress to exercise pow er under legislative veto devices must be found in the C onstitution in o rd er for that authority to be recognized as legitim ate. As w e dem onstrate below , the N ecessary and P roper C lause does not g ra n t'su c h authority; nor does any o th er provision o f the C onstitution. 25 Election Commission, notwithstanding the fact that Article II, § 2, clause 2 of the Constitution placed the appointment power in the President. With regard to the relationship between the exercise of power under the Necessary and Proper Clause and other provisions of the Constitution, the Court stated the rule as follows: Congress could not, merely because it concluded that such a measure was “necessary and proper” to the dis- charge of its substantive legislative authority, pass a bill of attainder or ex post facto law contrary to the prohibitions contained in section 9 of Art. I. No more may it vest in itself, or in its officers, the authority to appoint officers of the United States when the Appointments Clause by clear implication prohibits it from doing so. 424 U.S. at 135. The Constitution establishes the President’s veto power as clearly as it establishes the appointment power or prohibits bills of attainder and ex post facto laws. Under Buckley, the only reasonable implication of the Framers’ inclusion of Article I, § 7, clause 3 in the Constitution is that the Necessary and Proper Clause is not a source of power for evasion of these specific limitations through the enactment of legislative veto devices. I would add that, in reaching its holding in Buckley, the Court considered and relied upon earlier cases that seem most relevant to the constitutionality of legislative veto devices. In quoting from Myers v. United States, 272 U.S. 52 (1926), the Court recognized the relationship between the grant of executive power to the President and the issue before it. 424 U.S. at 135-136.6 I believe that Buckley and the cases relied on by the Buckley Court foreclose arguments that the Necessary and Proper Clause grants Congress the power to provide for legislative veto devices. Because to characterize the power exercised by the two Houses under § 1232(d) as “legislation” would necessarily require Congress to respect the President’s veto power by presenting its resolutions for his approval, it is necessary for proponents of such power to deny that the power is “legislation” in the constitutional sense. They argue instead that the device is a means for Congress to oversee the execution of the 6 T h e C o u rt w ent on, in holding the appointm ent o f F ederal Election Com m ission m em bers by officers o f C ongress to be unconstitutional, to quote the follow ing language from its earlier decision in Springer v. Philippine Islands. 227 U.S. 189, 202 (1928): Legislative pow er, as distinguished from executive pow er, is the authority to make laws, but not to enforce them o r appoint the agents charged w ith the duty o f such enforcem ent. T h e latter are executive functions. It is unnecessary to enlarge further upon the general subject, since it has so recently received the full consideration of this court. M yers v. U nited States. . . . . N ot having the pow er o f appointm ent, unless expressly granted o r incidental to its pow ers, the legislature cannot engraft executive duties upon a legislative office, since that w ould be to usurp the pow er o f appointm ent by indirection, though the case m ight be different if the additional duties w ere devolved upon an appointee of the Executive. 26 law by the Executive, in aid of undoubted constitutional powers to pass legislation and appropriations. Such an argument, however, cannot withstand scrutiny. Without a legislative veto, the regulations of your Department, unless invalidated by a court, would have the force of law. In depriving them of that force, the necessary effect of a legisla- tive veto is to block further execution of a statutory program until the Executive promulgates further regulations in compliance with the cur- rent views of a Congress that may well be different from the Congress that enacted the substantive: law.7 The difference between this kind of congressional “oversight” and the legitimate oversight powers of Con- gress in their effect on the constitutional allocation of powers could not be more profound. By its nature, for example, the exercise of a legisla- tive veto would be beyond judicial review because the exercise of such powers could be held to no enforceable standards. In exercising its veto, I believe it clear that Congress is dictating its interpretation of the permissible bounds for execution of an existing law; a result that can be accomplished only by legislation. The foregoing discussion demonstrates the flaw in the argument, occasionally made, that the doctrine of separation of powers protects the executive branch only in areas that are inherently executive, and that Congress may reserve to itself control over activities entrusted to the Executive which are not “truly” executive in nature. This reasoning overlooks the basic truth that there are few activities that are clearly executive, legislative, or judicial. The first two categories, in particular, overlap to an enormous extent. Much, if not indeed most, executive action can be the subject of legislative prescription. To contend, there- fore, that Congress can control the Executive whenever the Executive is performing a function that Congress might have undertaken itself is to reduce the doctrine of separation of powers to a mere shadow. The test is not whether an activity is inherently legislative or execu- tive but whether the activity has been committed to the Executive by the Constitution and applicable statutes. In other words, the Constitu- tion provides for a broad sweep of possible congressional action; but once a function has been delegated to the executive branch, it must be performed there, and cannot be subjected to continuing congressional control except through the constitutional process of enacting new legis- lation. 2. Interpreting the law Section 1232(d) authorizes disapproval of a regulation by concurrent resolution if Congress “findfs] that the final regulation is inconsistent 7 In such a situation, the Executive, as a practical m atter, m ay be giving up a m easure o f authority granted by the statute being adm inistered w hich the courts in an appropriate case w ould have found to have been delegated to the Executive, if C ongress had not intervened. Such a dim inution o f authority must, in my view , be view ed analytically as a repeal o f the substantive statute to that extent. 27 with the Act from which it derives its authority . . . That section, on its face, purports to vest in the two Houses of Congress an extra- legislative power to perform the function reserved by the Constitution to the courts of determining whether a particular executive act is within the limits of authority established by an existing statute.® It is clear that the President constitutionally can be overruled in his in- terpretation of the law, by the courts and by the Congress. But the Congress can do so only by passing new legislation, and passing it over the President’s veto if necessary. That is the constitutional system. Proponents of the legislative veto, however, argue that such devices actually fortify the separation of powers by providing Congress with a check on an agency’s exercise of delegated power. No doubt congres- sional review provides a check on agency action, just as committee review or committee chairman review would provide a check. But such review involves the imposition on the Executive of a particular in- terpretation of the law—the interpretation of the Congress, or one House, or one committee, or one chairman—without the check of the legislative process which includes the President’s veto. In that case Congress is either usurping the power of the President to execute the law, or of the courts to construe it; or Congress is legislating. If it is legislating, the Constitution is explicit that the President must have the opportunity to participate in that process by vetoing the legislation. II. Because it is my opinion that § 1232(d) is unconstitutional, it is necessary for me to consider whether that provision is severable from the underlying grants of statutory authority upon which the regulations promulgated by you were based. Section 1232(d) was enacted in 1974. When the various authorities for the four regulations disapproved by Congress were enacted in the Education Amendments of 1978, Con- gress gave no indication that the substantive rulemaking powers dele- gated to you were to be extinguished if the legislative veto device in §431 were to be found unconstitutional. Thus, I conclude that §431 is severable from this basic grant of substantive power. See, e.g., Champlin 8T he role o f the Ju diciary in requiring conform ance by the tw o political branches to constitutional standards and in confining the E xecutive to execution o f the law w ithin the bounds established by statute is too fam iliar to require elaboration. It is therefore not surprising that the Suprem e C ourt has consistently taken the position that “ the view s o f a subsequent C ongress form a hazardous basis for inferring the intent o f an earlier one/* thus denying any C ongress any binding role in the interpretation o f an earlier Congress* acts. U nited States v. Philadelphia N ational Bank, 374 U.S. 321, 348-49 (1963), quoting U nited States v. Price, 361 U.S. 304, 313 (1960). T h e C ourt, in taking this position, has recognized both the political nature o f the legislative process and differences betw een the functional com petencies o f the co u rts and C ongress. See U nited States v. U nited M ine Workers o f America, 330 U.S. 258, 282 (1947). I note that in these three cases in w hich the C ourt cautioned against perm itting the view s o f a subsequent C ongress to influence interpreting the intent o f an earlier C ongress in passing a p articular statute, the C ourt w as faced w ith situations in w hich the subsequent expression of C ongress' view cam e in the context o f the passage o f legislation. T hus, in those cases, even any m arginal relevance o f the subsequent congressional expression w ould have been subject, to the Presi- d ent's veto under A rticle I, § 7. 28 Refining Co. v. Corporation Commission of Oklahoma, 286 U.S. 210, 234 (1932), quoted with approval in Buckley v. Valeo, supra, 424 U.S. at 108. III. Within their respective spheres of action the three branches of gov- ernment can and do exercise judgment with respect to constitutional questions, and the judicial branch is ordinarily in a position to protect both the government and the citizenry from unconstitutional action, legislative or executive; but only the executive branch can execute the statutes of the United States. For that reason alone, the Attorney General must scrutinize with caution any claim that he or any other executive officer may decline to defend or enforce a statute whose constitutionality is merely in doubt. Any claim by the Executive to a power of nullification, even a qualified power, can jeopardize the equi- librium established by our constitutional system. At the same time, the Executive’s duty faithfully to execute the law embraces a duty to enforce the fundamental law set forth in the Consti- tution as well as a duty to enforce the law founded in the Acts of Congress, and cases arise in which the duty to the one precludes the duty to the other. In rendering this opinion on the constitutionality of § 431, I have determined that the present case is such a case. Section 431 intrudes upon the constitutional prerogatives of the Ex- ecutive. To regard these concurrent resolutions as legally binding would impair the Executive’s constitutional role and might well fore- close effective judicial challenge to their constitutionality.9 More impor- tant, I believe that your recognition of these concurrent resolutions as legally binding would constitute an abdication of the responsibility of the executive branch, as an equal and coordinate branch of government with the legislative branch, to preserve the integrity of its functions against constitutional encroachment. I, therefore, conclude that you are authorized to implement these regulations. Sincerely. B e n j a m i n R . C i v i l e t t i 9 T he history o f so-called “ legislative v eto ” devices, o f w hich §431 o f the G E P A is one, illustrates the difficulty in achieving judicial resolution o f such an issue. A lthough C ongress enacted the first such m echanism in 1932, only a few reported cases have potentially involved the constitutional question inherent in the legislative veto, and a co u rt has reached the issue only once. In A tkins v. United States. 556 F.2d 1028 (C t. Cl. 1977), cert, denied. 434 U.S. 1009 (1978), the C ourt o f Claim s held, four-to-three, that the provision o f the F ederal Salary A ct o f 1967, 2 U .S.C. § 359(1)(B), w hich perm its one house o f C ongress to disapprove the P resident's proposed pay schedule under the A ct, is not unconstitutional, and that the Senate's veto o f a proposed judicial salary increase w as therefore lawful. T his D epartm ent, representing the U nited States, argued that the veto w as unconstitutional, but that, because the veto authority w as not severable from the rem ainder o f the Salary A ct, the plaintiffs had no right to additional pay. T he latter view w as sustained in M cC orkle v. U nited States, 559 F.2d 1258 (4th C ir. 1977), cert, denied, 434 U.S. 1011 (1978). O th er cases in w hich the validity o f a legislative veto device has been argued include Chadha v. Im migration a n d Naturalization Service. No. 77-1702 (9th C ir.. argued A pril 10, 1978); and Clark v. Valeo. 599 F.2d 642 (D .C . C ir.) a ffd . 431 U.S. 950 (1977) (issue not ripe for determ ination). 29