Severability of Legislative Veto Provision ( 1991 )

Severability of Legislative Veto Provision
A legislative veto provision in the S elective Service Act, w hich w ould authorize either H ouse
o f C ongress to disapprove contracts in excess o f $25,000,000, is unconstitutional under
Im m igration a n d N aturalization Service v. Chadha, but is severable from the rest o f the
statute.
T his unconstitutional provision m ust be severed from the statute in its entirety, including its
language callin g fo r notification to C ongress o f proposed contracts.
February 28, 1991
M e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l
F ed era l Em ergency M anagem ent A gency
This responds to your request for the opinion of this Office concerning
the severability of an unconstitutional legislative veto provision in section
18(a) of the Selective Service Act of 1948, 50 U.S.C. app. § 468(a). The
statute authorizes the President to secure expedited delivery of materials
procured for the military forces of the United States. It also contains a
provision added in 1973 that would enable one House of Congress to disap­
prove contracts of more than twenty-five million dollars. We conclude that
the unconstitutional legislative veto is severable from the statute’s grant of
authority to the President to obtain expedited delivery of military contracts.
We further conclude that the better view, under the unsettled authority, is
that the portion of the statute added by the 1973 amendment constitutes the
provision that must be severed from the statute.
I.
Section 18(a) of the Selective Service Act of 1948 provides:
Whenever the President after consultation with and receiv­
ing advice from the National Security Resources Board
determines that it is in the interest of the national security for
the Government to obtain prompt delivery of any articles or
materials the procurement of which has been authorized by
the Congress exclusively for the use of the armed forces of
49
the United States, or for the use o f the Atomic Energy Com­
mission, he is authorized, through the head o f any Government
agency, to place with any person operating a plant, mine, or
other facility capable of producing such articles or materials
an order for such quantity of such articles or materials as the
President deems appropriate, except that no order which re­
quires payments thereunder in excess of $25,000,000 shall be
placed with any person unless the Committees on Armed Ser­
vices of the Senate and the House of Representatives have
been notified in writing of such proposed order and 60 days
of continuous session of Congress have expired following the
date on which such notice was transmitted to such Commit­
tees and neither House of Congress has adopted, within such
60-day period, a resolution disapproving such order.
50 U.S.C. app. § 468(a). Section 18(b) of the Act directs contractors to give
precedence to orders placed pursuant to the statute. 50 U.S.C. app. § 468(a).
The statute did not contain a legislative veto as originally enacted. Congress
added the clause in section 18(a) that begins “except that no order” in 1973.
See Department of Defense Appropriation Authorization Act, 1974, Pub. L.
No. 93-155, § 807(d)(1), 87 Stat. 605, 616 (1973).
II.
The provision authorizing one House of Congress to disapprove an order
of more than twenty-five million dollars is unconstitutional. Immigration
and N aturalization Service v. Chadha, 462 U.S. 919 (1983). Chadha states
that congressional “action that ha[s] the purpose and effect of altering the
legal rights, duties, and relations of persons . . . outside the Legislative
Branch,” id. at 952, must comply with the constitutional requirements of
passage by both Houses of Congress and presentment to the President for
approval or veto. U.S. Const, art. I, §§ 1, 7. The resolution of disapproval
authorized by the 1973 addition to section 18(a) authorizes one House of
Congress to limit the President’s legal powers. The congressional disap­
proval mechanism, therefore, may not constitutionally be employed.
III.
A.
The next question is whether the legislative veto may be severed from the
remaining provisions of the statute that grant the President authority to order
articles and materials on an expedited basis. The Supreme Court has de­
cided the severability of a legislative veto provision on two occasions. See
50
Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987); Chadha, 462 U.S. at
931-35. Both cases employ the standard test for severability questions:
“Unless it is evident that the Legislature would not have enacted those pro­
visions which are within its power, independently of that which is not, the
invalid part may be dropped if what is left is fully operative as a law.”
Alaska Airlines, 480 U.S. at 684; Chadha, 462 U.S. at 931-32.1 Writing
with specific reference to legislative vetoes, the Court in Alaska Airlines
emphasized that “ [t]he more relevant inquiry in evaluating severability is
whether the statute will function in a manner consistent with the intent of
Congress.” 480 U.S. at 685. Additionally, unconstitutional provisions are
presumed to be severable from the remainder of a statute. See Regan v.
Time, Inc., 468 U.S. 641, 653 (1984) (plurality opinion). Finally, unconsti­
tutional provisions are further presumed to be severable if they are contained
in a statute that includes a severability clause. See, e.g., Alaska Airlines,
480 U.S. at 686; Chadha, 462 U.S. at 932. The absence of such a clause,
however, does not give rise to a presumption against severability. See Alaska
Airlines, 480 U.S. at 686.2
The grant of authority to the President in section 18(a) would remain
fully operative as a law if the congressional disapproval language is excised.
The language authorizing the President to order materials needed for na­
tional security was part of the statute as originally enacted in 1948. It was
fully operational in its original form. The congressional disapproval mecha­
nism was added by Congress in 1973 to provide congressional review o f a
Presidential decision to place orders over $25,000,000. As the Court ex­
plained in Alaska Airlines, provisions of this sort are by their “very nature . . .
separate from the operation of the substantive provisions of a statute,” and do
not affect the capacity of the balance of the legislation to function indepen­
dently. 480 U.S. at 684-85.
Next, the law that results when the legislative veto provision is severed is
not one that Congress would not have enacted. See Alaska Airlines, 480
U.S. at 685 (severance improper where it would produce a statute that Con­
gress would not have accepted). O f course, “the absence of the veto necessarily
alters the balance of powers between the Legislative and Executive Branches
of the Federal Government,” Alaska Airlines 480 U.S. at 685, but that is not
enough to preclude severance. Rather, the appropriate inquiry is whether the
delegation to the President of the power to enter into these military contracts is
“so controversial or so broad that Congress would have been unwilling to make
the delegation without a strong oversight mechanism.” Id.
There is no reason to believe that Congress would have refused to grant
this power. Congress made such a grant in 1948, and added the legislative
veto provision only in 1973. In this case, then, the proper question is whether
in 1973 Congress would have repealed the 1948 law if it had known that the
1 This is the C ourt’s longstanding test for severability. See Champlin Refining Co. v. Corporation
Comm 'n, 286 U.S 2 1 0 ,2 3 4 (1932).
2 Neither the 1948 act nor the 1973 amendments include a severability clause.
51
legislative veto provision was impermissible. We are aware of no indication
that Congress would have taken such a step, and the legislative history of
the 1973 amendment strongly suggests that it would have done no such
thing. Congress added the legislative veto to the statute in 1973 as one of a
group o f amendments to four statutes giving the President emergency pow­
ers in an attempt to “reassert congressional control over backdoor financing
of defense contractors.” 119 Cong. Rec. 30,873 (1973) (statement of Sen.
Proxmire). The initial Senate version of the 1973 amendment would have
provided that no order over twenty-million dollars could be placed “except
with the prior approval of the Congress.” Id. at 30,872. The Conference
Committee changed this and the other three provisions because “[w]hile the
House conferees were sympathetic to the purposes of the amendment, they
were concerned that the language was unduly restrictive and could result in
delays on important weapons programs.” H.R. Conf. Rep. No. 588, 93d
Cong., 1st Sess. 44 (1973) (explaining amendment to 10 U.S.C. § 2307). In
short, Congress wanted a legislative veto, but not at the price of destroying
the President’s authority to act in an emergency. Refusal to sever the legislative
veto would produce the harsh result Congress was careful to avoid. Accord­
ingly, the legislative veto may be severed from the remainder of the statute.
1.
Because of the way in which this statute is phrased, we must determine
the proper way in which to sever the unconstitutional provision. The 1973
am endment reads:
except that no order which requires payments thereunder in
excess of $25,000,000 shall be placed with any person unless
the Committees on Armed Services of the Senate and the House
o f Representatives have been notified in writing of such pro­
posed order and 60 days of continuous session of Congress
have expired following the date on which such notice was
transmitted to such Committees and neither House of Con­
gress has adopted, within such 60-day period, a resolution
disapproving such order.
50 U.S.C. app. § 468(a). If the entire provision were severed, the statute
would return to the form it had when first enacted. The language also
permits another line of severance. If only the disapproval mechanism —
i.e., the words “and neither House of Congress has adopted, within such 60-
day period, a resolution disapproving such order” — were removed, the
provision would in effect be transformed into a report-and-wait requirement.3
3 T here is at least one other alternative: severance of the words "and 60 days of continuous session of
C ongress have expired following the date on which such notice was transmitted to such Com mittees
and neither House o f Congress has adopted, within such 60-day period, a resolution disapproving such
order.” Severance o f this clause would elim inate the sixty-day delay period and the disapproval require­
m ent but would preserve the reporting requirement. The C ourt’s decisions, however, lend no support to
this choice.
52
In order to decide this question, we must identify the portion of the statute
that constitutes the unconstitutional legislative veto. Neither Alaska Airlines
nor Chadha addressed this as a separate issue, although each case in some
sense decided it, because each case described the statute that would remain
after severance. The Court’s unexplained decisions in the two cases point in
opposite directions: Alaska Airlines supports severance of the entire provi­
sion added in 1973, but Chadha supports the line of severance that would
leave a report-and-wait requirement. While the existing authorities thus do
not provide a certain answer, we believe the better view to be that the entire
clause added in 1973 constitutes the legislative veto that must be severed
from the valid remainder of the statute.
Severance o f the entire provision is supported by textual analysis and by
Alaska Airlines. First, the legislative veto is most naturally read as a single
requirement; it is only an accident of phrasing that makes it possible to
produce a report-and-wait procedure by deleting certain words. The require­
ment of a report to Congress is integral to the operation of the legislative
veto itself. It gives each House of Congress the notice and information
needed to exercise its veto power, and provides a time-table for the one-
house veto procedure. Without these, the legislative veto could not function,
but they have no independent importance. There is therefore no reason to
give the notification rule any independent status. Nothing in the legislative
history demonstrates any perception of separate requirements for reporting,
waiting, and disapproval. Instead, Congress seemingly viewed the entire
clause as indivisible, with the reporting requirement and the sixty-day delay
period operating only to facilitate the exercise of the disapproval power.
The 1973 amendment therefore would not operate in the manner that Con­
gress intended if only the disapproval mechanism is removed from the statute.
Alaska A irlines , in which the Supreme Court most recently considered
questions of severability in depth, reinforces this conclusion. The statute at
issue in that case authorizes the Secretary of Labor to issue regulations for
the administration of an airline employee protection program. 49 U.S.C.
app. § 1552(0(1)- The statute further provides:
The Secretary shall not issue any rule or regulation as a final
rule or regulation under this section until 30 legislative days
after it has been submitted to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee
on Public Works and Transportation of the House of Repre­
sentatives. Any rule or regulation issued by the Secretary
under this section as a final rule or regulation shall be submit­
ted to the Congress and shall become effective 60 legislative
days after the date of such submission, unless during that 60-
day period either House adopts a resolution stating that that
House disapproves such rules or regulations, except that such
rules or regulations may become effective on the date, during
53
such 60-day period, that a resolution has been adopted by both
Houses stating that the Congress approves o f them.
49 U.S.C. app. § 1552(f)(3). The Court characterized the entire second
sentence o f this subsection as the “legislative-veto provision which gave rise
to this litigation,” 480 U.S. at 682, and severed that provision from the rest
of the statute. Likewise, the legislative veto provision added to the Selective
Service Act in 1973 has the same three components: a report requirement, a
wait requirement, and a disapproval mechanism. According to the opinion
in A laska A irlines, those provisions together constitute the legislative veto
and should be treated as a unit for purposes of severance.
W hile we take some guidance from Alaska Airlines, we do not suggest
that the case is dispositive. For one thing, the disputed question in that case
was whether the regulatory authority the statute gives to the Secretary of
Transportation survived the invalidation of the legislative veto. Once the
Court determined that the legislative veto could be severed from the grant of
authority to issue regulations, the Court did not have to decide what the
“legislative veto” was. Also, the statute at issue in Alaska Airlines already
contains a report-and-wait requirement (the first sentence of 49 U.S.C. app.
§ 1552(0(3)) distinct from the provision the Court severed (the second sen­
tence of 49 U.S.C. § 1552(0(3)). Thus, severance did not eliminate all
statutorily-mandated congressional oversight, a point the Court made in its
opinion. See 480 U.S. at 689 (“should Congress object to the regulations
issued, it retains a mechanism for the expression o f its disapproval that re­
duces any disruption of congressional oversight caused by severance of the
veto provision”). By contrast, severance of the entire provision added to
section 18(a) of the Selective Service Act in 1973 would eliminate any statu­
tory oversight procedure.
Severance of the disapproval mechanism alone is supported by other
strands o f the C ourt’s severability analysis and by the Court’ opinion in
Chadha. Severance of the last clause of the 1973 amendment instead of the
whole 1973 amendment results in legislation that Congress might have en­
acted. If the purpose of the 1973 amendment was to facilitate congressional
oversight, preservation of a report-and-wait requirement would further this
goal, albeit less successfully than the legislative veto Congress drafted.4
Chadha lends some support to this line of severance. In Chadha, the Court’s
mode of severance removed the congressional disapproval mechanism while
4 It also m ight be argued that this line o f severance is most faithful to the Court’s command to “refrain
from invalidating more of the statute than is necessary.” Alaska Airlines, 480 U.S. at 684. We doubt,
however, that the C ourt’s point is to save as many words as possible. Rather, the goal is to preserve
“unobjectionable provisions separable from those found to be unconstitutional.” Id. at 684 (quoting
Regan v. Time, Inc., 468 U.S. at 652) (em phasis added). That rule cannot be applied until we have
decided w hether the words that would produce a report-and-wait procedure constitute a separate “pro­
vision."
54
leaving a report-and-wait requirement.5 Application of this technique to sec­
tion 18(a) of the Selective Service Act would eliminate the congressional
disapproval mechanism but preserve the rest of the section, thus effectively
creating a report-and-wait requirement.
Chadha , however, can be distinguished from the situation we confront
here. The history of the Immigration and Nationality Act indicates that
Congress sought to confer substantial power on the Attorney General but
also to retain some active role in the deportation process, whether or not that
role involved the specific legislative veto in force at the time of Chadha.6
The Court concluded on the basis of this history that the legislative veto was
severable because Congress would not have simply returned to the private-
bill system had it known the one-house veto to be impermissible. 462 U.S.
at 934. The history also supported the conclusion that Congress was deter­
mined to retain an active role, and thus accorded with the Court’s decision
to sever the legislative veto so as to produce a report-and-wait mechanism.
There is no similar evidence concerning the 1973 amendment to the Selec^
tive Service Act. Congress had not tinkered with the relative powers of the
two branches and gave no indication that it had any strong separate interest
in being involved in the decision if the legislative veto was unavailable.
Under these circumstances, to change the legislative veto into a report-and-
wait mechanism would represent a rewriting of the statute based on nothing
more than speculation as to Congress’s probable preferences. The C ourt’s
approach in Alaska Airlines avoids these difficulties.
To the extent the two cases are in tension, Alaska Airlines is authoritative,
both because it is more recent and because it deals with severability in
greater detail and therefore is more likely to represent the Court’s consid­
ered judgment on the matter. The outcome in Alaska Airlines may represent
a judgment (or at least an intuition) by the Court that the severance of entire
legislative-veto mechanisms is less likely to produce statutes that Congress
would never have written than is the speculative process of removing the portion
of a single mechanism that seems to contain the legislative veto in isolation.
5 The legislative veto appeared in section 244(c) of the Immigration and Nationality Act, 8 U.S.C. A.
§ 1254(c) (1970), which has since been amended, see 8 U S C. § 1254(c) Section 244(c)(1) of the Act
required the Attorney General to report to Congress when he suspends the deportation o f an alien. 8
U.S.C. § 1254(c)(1) (1970). Section 244(c)(2) of the Act provided.
[T]f during the session of the Congress at which a case is reported, or prior to the close of the
session o f the Congress next following the session at which a case is reported, either the
Senate or the House o f Representatives passes a resolution stating in substance that it does
not favor the suspension of such deportation, the Attorney General shall thereupon deport
such alien or authorize the alien’s voluntary departure at his own expense under the order of
deportation in the manner provided by law. If, within the time above specified, neither the
Senate nor the House of Representatives shall pass such a resolution, the Attorney General
shall cancel deportation proceedings.
8 U.S.C. § 1254(c)(2) (1970). Thus, the first subsection contained a report requirement, and the second
subsection contained both a wait requirement and a disapproval mechanism In Chadha the Court ex­
cised the disapproval mechanism but retained the wait requirement contained in the sam e subsection,
observing that “ [wjithout the one-House veto, § 244 resembles the ‘report and w ait’ provision approved
by the Court in Sibbach v. Wilson <6 Co., 312 U.S. 1 (1941).” 462 U.S. at 935 n.9.
55
CONCLUSION
In sum, the one-House veto clause added to section 18(a) of the Selective
Service Act in 1973 is unconstitutional. The legislative veto is severable
from the remainder of the section 18(a). Under the best understanding of
the Supreme Court’s approach to severability, the 1973 amendment should
be severed in its entirety, thus returning the statute to the form it had when
originally adopted in 1948. As a matter of comity, however, you may wish to
inform Congress of a contract of more than twenty-five million dollars. More­
over, depending on the urgency of the situation, you may wish to allow Congress
time to decide if it wants to take legislative action concerning a contract.
JOHN C. HARRISON
Deputy Assistant Attorney General
Office o f Legal Counsel
* As the Court explained. Congress originally permitted deportable aliens to remain in the United
States through private bills. 462 U.S. at 933. In 1940, Congress authorized the Attorney General to
suspend deportations but provided that Congress could overrule a suspension by a concurrent resolution.
Id. at 933-34. W hen the concurrent resolution mechanism also proved burdensome, it was replaced with
the schem e at issue in Chadha, under which the Attorney G eneral’s decision could be overridden by a
one-H ouse resolution. Id. at 934.
56