1 Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919 (1983).

2 The majority opinion was written by Chief Justice Burger. Justice Powell concurred on a more limited ground. Justices Rehnquist and White dissented.

3 Legislative veto provisions occur in 15 major foreign affairs laws, many of which apply the veto in more than one context, Chadha, 462 U.S. at 1003–06 (White, J., dissenting) (relying on the brief of Office of Senate Legal Counsel): Foreign Assistance Act of 1961, Pub. L. No. 87-195, 75 Stat. 424 (codified as amended in scattered sections of 7, 16, 22 and 42 U.S.C); International Development and Food Assistance Act of 1975, Pub. L. No. 94-161, 89 Stat. 849 (codified as amended in scattered sections of 7 and 22 U.S.C); National Emergencies Act, Pub. L. No. 94-412, 90 Stat. 1255 (codified as amended in scattered sections of 8, 10, 12, 16, 18, 42, 50 and 50 app. U.S.C.) (1976); Department of Defense Appropriation Authorization Act, 1974, Pub. L. No. 93-155, 87 Stat. 605 (codified as amended in scattered sections of 10, 15, 22, 50 and 50 app. U.S.C); Department of Defense Appropriation Authorization Act, 1975, Pub. L. No. 93-365, 88 Stat. 399 (codified as amended in scattered sections of 10 and 50 app. U.S.C); Export-Import Bank Amendments of 1974,12 U.S.C. §§82,635-635g; Trade Expansion Act of 1962, Pub. L. No. 87-794, 76 Stat. 872 (codified as amended in scattered sections of 19 and 26 U.S.C); Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978 (codified as amended in scattered sections of 19, 26 and 31 U.S.C); International Security Assistance and Arms Export Control Act of 1976,22 U.S.C. §§2751–2796, 22 U.S.C. §2441 note (1982); International Security Assistance Act of 1977, Pub. L. No. 95-92, 91 Stat. 614 (codified as amended in scattered sections of 22 U.S.C); Nuclear Non-proliferation Act of 1978, Pub. L. No. 95-242, 92 Stat. 120 (codified as amended in scattered sections of 22 and 42 U.S.C); International Navigational Rules Act of 1977, 33 U.S.C. §§1601-1608 (1982); War Powers Resolution, 50 U.S.C. §§1541–1548 (1982); Pub. L. No. 95–223, 91 Stat. 1625 (codified as amended in scattered sections of 50 and 50 app. U.S.C). For a description of the particular provisions of laws containing legislative vetoes, see infra notes 79, 84, 91, 94, 99, 107 and 109.

4 8 U.S.C. §§1101–1503 (1982).

5 Chadha, 462 U.S. at 923.

6 8 U.S.C. §§1252(b), 1254(a).

7 Id. § 1254(a)(1).

8 Id.; see Chadha, 462 U.S. at 924. For a discussion of the reasons against deportation in Chadha’s case, see Chadha, Transcript of Hearing of Deportation Proceedings held Jan. 11, 1974 Google Scholar, Joint Appendix to the Briefs 12–15, 33–46 (available on LEXIS, Genfed Library, Briefs file).

9 Chadha, 462 U.S. at 925–26; 8 U.S.C. §1254(c)(1).

10 8 U.S.C. §1254(c)(2).

11 H.R. Res. 926, 94th Cong., 1st Sess., 121 Cong. Rec. 40,247 (1975).

12 Chadha, 462 U.S. at 926.

13 Id. (quoting 121 Cong. Rec. 40,800 (1975)).

14 The Court cites a colloquy between Reps. Eilberg and Wylie, one year earlier, in which the former, in explaining the effect of a similar resolution, confirms the latter’s stated understanding that, in preparing the resolution, “the gentleman has been working with the Attorney General’s office” and is assured that it is not “in any way contrary to whatever action the Attorney General has taken.” Chadha, 462 U.S. at 927 n.3.

15 The courts are properly reluctant to supervise, and review compliance with, the procedures and rules by which the legislatures, as coequal branches, govern the conduct of their business. See United States v. Ballin, 144 U.S. 1 (1892), discussed infra note 205.

16 Chadha, 462 U.S. at 1003–13.

17 Rosenberg, Congressional Life after Chadha: Searching for an Institutional Response, Cong. Research Service Rev., Fall 1983 Google Scholar, at 5.

18 The Court noted only four instances in which the Constitution allows either House of Congress to act unicamerally: the House alone is given the power to impeach, U.S. Const. art. I, §2, cl. 5; the Senate alone is given the power to conduct trials following impeachment by the House, id., art. I, §3, cl. 6; the Senate alone is given the power to approve or disapprove presidential appointments, id., art. II, §2, cl. 2; and the Senate alone is given unreviewable power to ratify treaties, id. Chadha, 462 U.S. at 955.

19 462 U.S. at 957–58.

20 Id. at 952.

21 Id. at 957–58. This leaves open the bill of attainder issue, which such legislation would raise. See id. at 935 n.8; see generally infra note 247.

22 Chadha, 462 U.S. at 944.

23 Id.

24 The Attorney General heartily agreed with Mr. Chadha’s argument that the role that the House of Representatives sought to play in determining the disposition of his case was either an unconstitutional encroachment by the legislature on executive (or, perhaps, judicial) functions, or an exercise of the legislative function in a manner not authorized by the Constitution. Id. at 939–40.

25 Id. at 940.

26 See, e.g., Senate Judiciary Comm., Congressional Oversight of Executive Agreements, S. Rep. No. 1286, 93d Cong., 2d Sess. 8 (1974): “Improper executive action undertaken in the past cannot be employed as precedent for similarly improper actions today. . . . [To hold otherwise would be to concede] that Congress would bow supinely to the Executive, and permit immense changes in the Nation’s constitutional structure without following the pattern dictated for such changes.”

27 Chadha, 462 U.S. at 958–59.

28 272 U.S. 52, 293 (1926).

29 In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), the Court stated that, in foreign affairs, Congress “must often accord to the President a degree of discretion and freedom from statutory restriction which,” because of the separation-of-powers requirement of the Constitution, “would not be admissible were domestic affairs alone involved.” Id. at 320. Why “must” Congress’s right to do this be recognized despite constitutional objections? Presumably because efficiency so requires.

30 See, e.g., Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif. L. Rev. 983, 1002–29 (1975)Google Scholar; see also infra notes 74–77 and accompanying text.

31 Tribe, The Legislative Veto Decision: A Law by Any Other Name?, 21 Harv. J. Legis. 1, 17 (1984)Google Scholar.

32 On Oct. 8, 1980, he expressed the view that “to better control the growth of federal regulations we should . . . grant both Congress and the president [sic] greater authority to veto regulations approved by executive agencies.” 41 Cong. Q. Weekly Rep. 1263–64 (June 25, 1983).

33 The following history of the legislative veto is based on the discussion in Watson, supra note 30, at 1004–29.

34 For an account of earlier attempts by Congress to exercise control over the Executive, see id. at 995–1003.

35 H.R. 12,610, 66th Cong., 2d Sess. (1920).

36 59 Cong. Rec. 7026 (1920).

37 Act of Mar. 1, 1919, ch. 86, §11, 40 Stat. 1213, 1270.

38 59 Cong. Rec. 7067–72 (1920).

39 Ch. 314, §407, 47 Stat. 382, 414 (1932).

40 75 Cong. Rec. 4109 (1932).

41 Id.

42 Id.

43 H. Hoover, Pub. Papers 432 (1929).

44 Ch. 314, §407, 47 Stat. 382, 414 (1932).

45 75 Cong. Rec. 4716–21 (1932).

46 Id. at 9262–65.

47 His memoirs show that he thought he had offered Congress 60 days in which to repudiate a reorganization plan by joint resolution (a quite different device having the force of legislation and subject to presidential veto under the presentation clause): Hoover, H. The Memoirs of Herbert Hoover: The Cabinet and the Presidency, 1920–1933, at 283–84 (1952)Google Scholar.

48 Id.

49 H.R. Res. 334, 72d Cong., 2d Sess., 76 Cong. Rec. 2125–26 (1933).

50 H.R. 13,975, 72d Cong., 2d Sess., id. at 2445–46.

51 37 Op. Att’y Gen. 56, 58 (1933).

52 Id.

53 Id. at 63–64.

54 Treasury and Post Office Appropriation Act for fiscal year 1934, ch. 212, §407, 47 Stat. 1489, 1519, 76 Cong. Rec. 3537–39 (1933). For a discussion of report and wait provisions, see infra notes 158–175 and accompanying text.

55 See Harris, J. Congressional Control of Administration 207–08 (1964)Google Scholar.

56 83 Cong. Rec. 4487 (1938).

57 id.

58 Reorganization Act of 1939, ch. 36, 53 Stat. 561.

59 Id. §5, 53 Stat, at 562–63.

60 H.R. Rep. No. 120, 76th Cong., 1st Sess. 6 (1939).

61 306 U.S. 1 (1939).

62 H.R. Rep. No. 120, supra note 60, at 6.

63 See Watson, supra note 30, at 1089–90.

64 Act of Mar. 11, 1941, ch. 11, 55 Stat. 31.

65 Id. §3(c), 55 Stat, at 32.

66 Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353, 1357 (1953)Google Scholar.

67 Price-Control Bill: Hearings Before the House Comm. on Banking and Currency, 77th Cong., 1st Sess. 983 (1941) (memorandum of David Ginsberg, General Counsel, Office of Price Administration).

68 “The proper protection against the possibility of unwise reorganization,” he wrote, “lies . . . in the authority of Congress to reject any such plan by simple majority vote of both Houses.” H.R. Rep. No. 23, 81st Cong., 1st Sess. 3 (1949).

69 S. Rep. No. 232, 81st Cong., 1st Sess. 18 (1949).

70 Id. at 19, 20. The Attorney General’s reply takes the form of a memorandum outlining the testimony he would give on the subject if requested, since the Attorney General, technically, is authorized by statute to render “opinions” only to the President and not to Congress.

71 This total covers the period to 1974. Watson, supra note 30, at 1090–92.

72 The veto provision of the Immigration and Nationality Act, 8 U.S.C. § 1254(c)(2) (1982), first appeared in the Alien Registration Act, ch. 439, §20, 54 Stat. 670, 672 (1940).

73 Pub. L. No. 87-195, §617, 75 Stat. 424, 444 (codified as amended in scattered sections of 7, 16, 22 and 42 U.S.C, 22 U.S.C. §2367 (1982)). See infra notes 87-88 and accompanying text.

74 50 U.S.C. §§1541–1548 (1982).

75 R. Nixon, Pub. Papers 893 (1973). See also infra note 178 and accompanying text.

76 The override is at 119 Cong. Rec. 36,197–98 (1973) (Senate) and id. at 36,221–22 (House).

77 See, e.g., President Ford’s veto of legislation allowing a one-House veto over pesticide regulations proposed by the Environmental Protection Agency. G. Ford, Pub. Papers 2144 (1976–77). In 1978, President Carter warned that he would be likely to veto new legislation containing legislative veto provisions and said that he would not consider himself legally bound by vetoes of arms sales, agency regulations or departmental spending proposals. N.Y. Times, June 22, 1978, at A1, col. 1. In one example of Carter’s policy, the Department of Education treated four regulations vetoed by Congress as “final and effective rules, effective immediately.” Id., June 7, 1980, at 6, col. 6.

78 See infra notes 107–111 and accompanying text.

79 Provisions in foreign affairs statutes that may be classified as Type I devices include: 10 U.S.C. § 125(a) (1982) (one-House veto of transfer of functions, powers or duties within Defense Department); id. §2307(d) (1982) (one-House veto of certain advance payments to industries for production of defense equipment); id. §2382(b) (1982) (two-House veto of presidential regulations controlling defense contractor profits during war or national emergency); 19 U.S.C. §1303(e)(2) (1982) (one-House veto of Secretary of Treasury’s determination to end countervailing duties on certain imports); 22 U.S.C. §2385a(b)(2) (1982) (one-House veto of regulations establishing unified personnel system for the Agency for International Development); id. §2429(b)(2)(A) (1982) (two-House veto of presidential decision to furnish aid to countries that deliver nuclear enrichment materials or technology to other countries that do not meet certain nuclear-safety standards); id. §2429a(a)(3)(A) (1982) (two-House veto of presidential decision to furnish aid to countries that deliver nuclear reprocessing equipment or materials to other countries); id. §2587(b) (1982) (one-House veto of transfer of activities or facilities of any agency to the U.S. Arms Control and Disarmament Agency); id. §2753(d)(2) (1982) (two-House veto of transfers of defense equipment to foreign countries or international organizations); id. §2776(b) (1982) (two-House veto of letters of offer to sell defense articles worth more than certain sums to foreign nations); id. §2776(c)(2) (1982) (two-House veto of export license for private sale of certain defense articles to foreign nations); id. §2796b(a) (1982) (two-House veto of certain leases or loans of defense equipment to foreign countries); 42 U.S.C. §2074(a) (1982) (two-House veto of Atomic Energy Commission (now Nuclear Regulatory Commission) proposal to give special nuclear material to any nation, group of nations or the International Atomic Energy Agency (IAEA)); id. §2157(b) (1982) (two-House veto of presidential decision to export certain nuclear material and facilities to countries in which IAEA safeguards are not imposed); id. §2158(1982) (two-House veto of presidential decision to export nuclear materials or equipment to nations that have violated certain standards); id. §2160(f) (1982) (two-House veto of arrangement involving U.S. commitment to store foreign spent nuclear fuel in the United States); id. §8779(a) (1982) (one-House veto of Synthetic Fuels Corporation proposal to award financial assistance to up to two synthetic fuels projects in the Western Hemisphere outside the United States); 50 U.S.C. app. §1941g(b) (1982) (one-House veto of proposals for sale of Government- owned rubber-producing facilities); id. §468(a) (1982) (one-House veto of certain orders for production of defense equipment); id. §1917 (1982) (two-House veto of programs of Commodity Credit Corporation to increase food production in non-European countries); id. §2168(h)(3) (1982) (two-House veto of Cost Accounting Standards Board’s regulations for defense contractors); id. §2092 (1982) (one-House veto of loans to industries for production of defense equipment). See also 42 U.S.C. §2153 (1982), cited in note 109 infra.

80 Pub. L. No. 93-155, 87 Stat. 605 (codified in scattered sections of 10, 15, 22, 50 and 50 app. U.S.C).

81 10 U.S.C. §2307(d) (1982) and 50 U.S.C. app. §468 (1982) contain identical provisions for advance payments and orders to industries for construction of defense equipment.

82 The majority opinion states that “other means of control, such as . . . formal reporting requirements, lie well within Congress’ constitutional power.” Chadha, 462 U.S. at 955 n.19.

83 See, e.g., 22 U.S.C. §2304 (1982); id. §2429a(3)(A) (1982); id. §2429(b)(2) (1982) (which include the expedited procedures in Pub. L. No. 94-329, §601, 90 Stat. 729, 765–66 (1976)).

84 Examples of such provisions include 22 U.S.C.A. §1431 note (1979) (United States Information Agency’s authority may be terminated by concurrent resolution); 22 U.S.C. §2151n(b) (1982) (Congress by concurrent resolution may end foreign assistance to countries that violate human rights); id. §2367 (1982) (Congress by concurrent resolution may end certain foreign assistance programs); id. §2441 note (1982) (U.S. civilian personnel stationed in Sinai must be removed if Congress determines by concurrent resolution that their safety is jeopardized or that their role is unnecessary); 50 U.S.C. § 1544(c) (1982) (Congress by concurrent resolution may terminate U.S. involvement in hostilities within 60–90-day period after President submits a report describing actions of armed forces); National Emergencies Act, id. §1622 (1982) (Congress by concurrent resolution may terminate national emergencies declared by the President); id. § 1706(b) (1982) (Congress by concurrent resolution may terminate international emergency economic powers involving property owned by foreign countries or nationals); 50 U.S.C. app. §2166(b) (1982) (Congress may terminate any part or all of the Defense Production Act of 1950 by concurrent resolution).

85 Defense Production Act of 1950, Pub. L. No. 81-774, 64 Stat. 798 (codified as amended in scattered sections of 41 and 50 app. U.S.C).

86 50 U.S.C. app. §2166(b) (1982).

87 See supra note 73.

88 22 U.S.C. §2367(1982).

89 See infra notes 112–127 and accompanying text.

90 See infra notes 128–141 and accompanying text.

91 Type III provisions include the following: 12 U.S.C. §635e(b) (1982) (Export-Import Bank may lend over $300 million to Soviet Union in a single loan only if the President proposes such a loan and Congress approves it by concurrent resolution); 19 U.S.C. §2435(c) (1982) (President may enter into certain bilateral commercial agreements with countries not previously allowed them if Congress approves by concurrent resolution); 22 U.S.C. §2293 note (1982) (no military assistance against Angola unless President determines that it is in the national security interest and submits a report to Congress and Congress approves by joint resolution); id. §3223(f) (1982) (President may not enter into binding agreements on nuclear fuel disposition and storage with foreign governments until both Houses approve); id. §3224a(1982) (Secretary of Energy may use no appropriated funds to repurchase, transport or store foreign spent nuclear fuel absent concurrent resolution or joint resolution of approval; alternatively, repurchase, transport or storage may be done if the President submits a plan detailing the use to which appropriated funds will be put and Congress does not reject the plan by concurrent resolution (a Type I provision)); Pub. L. No. 98-473, §8066, 98 Stat. 1837, 1936 (1984) (prohibition on aid to Nicaraguan contras absent presidential report on its necessity and congressional approval by joint resolution); Pub. L. No. 97-121,95 Stat. 1647,1651 (1981) (funds provided for Special Requirements Fund may not be obligated or expended without prior written approval of the Appropriations Committees of both Houses); id. §514, 95 Stat, at 1655 (no funds made available by the Act may be reprogrammed without prior written consent of Appropriations Committees of both Houses).

92 22 U.S.C. §3223(f)(1982).

93 Dean F. Kirgis of the Washington and Lee University School of Law has observed as follows:

Unpub. correspondence with author, Apr. 16, 1985.

94 Such statutes include 19 U.S.C. §2253(c) (1982) (if International Trade Commission (ITC) recommends import relief and President does nothing or proposes something different, ITC proposal comes into effect if Congress votes concurrent disapproval of President’s actions); 42 U.S.C. §2155(b) (1982) (if President wishes to issue a license for export of nuclear materials, but the Nuclear Regulatory Commission (NRC) disagrees with President’s proposal, NRC view will prevail if Congress votes concurrent resolution disapproving export); 50 U.S.C. app. §2403- 1(c) (1982) (if Secretary of Defense finds that export of certain defense goods to controlled countries would significantly increase the recipient country’s military capability, but the President wants to go forward with the export, Secretary’s decision will override if Congress votes concurrent disapproval resolution of the President’s proposal).

95 Pub. L. No. 87-794, 76 Stat. 872 (codified as amended in scattered sections of 19 and 26 U.S.C).

96 19 U.S.C. §1981(a)(2) (1982).

97 50 U.S.C. app. §2403-1(c) (1982).

98 See, e.g., EEOC v. Allstate Ins. Co., 570 F.Supp. 1224, 1229 (S.D. Miss. 1983) (holding that fact that Congress never exercised a legislative veto cannot prevent finding that entire statute is unconstitutional under Chadha).

99 Among Type IV provisions are: 10 U.S.C. § 139b(e)(3) (1982) (automatic cutoff in funding for major defense acquisition program experiencing significant cost overruns; may be waived by House and Senate Armed Services Committees); id. §2382(c) (1982) (presidential regulations controlling defense contractor profits remain in force for 5 years unless extended by concurrent resolution before expiration date); 22 U.S.C. §2304(c)(3) (1982) (automatic cutoff of security aid to a country for which Congress requests and the President fails to submit a report on human rights conditions); id. §2314(g)(4)(B) (1982) (automatic cutoff of security aid where a country discriminates against U.S. citizens involved in defense functions in the country and the President fails to submit a report thereon; no explicit provision for restart of aid, but presumably joint resolution would suffice); id. §2755(d)(2) (1982) (same provision as foregoing covering military equipment sales); War Powers Resolution, 50 U.S.C. §1544(b) (1982) (President’s powers to wage war under the statute terminate after 60 days absent congressional declaration of war, specific congressional authorization allowing use of armed forces, congressional extension of 60-day period or inability of Congress to meet as a result of attack upon the United States); id. § 1622(d) (1982) (national emergency terminates automatically after 1 year, unless extended by law).

100 50 U.S.C. §1622(d) (1982).

101 Id. §1544(b).

102 10 U.S.C. §139b(e)(3) (1982).

103 Chadha, 462 U.S. at 955 n.19.

104 See, e.g., 10 U.S.C. §2382(c) (1982).

105 See, e.g., id. §139b(e)(3).

106 See supra note 99. In many such laws, the congressional waiver is not to be exercised by concurrent but by joint resolution, which satisfies the presentment provision of the Constitution.

107 22 U.S.C. §§441–457 (1982).

108 E.g., American vessels may not carry passengers or goods to warring countries and certain materials may not be exported to those countries. Id. §§445–450.

109 For a similar provision, see 33 U.S.C. § 1602 (1982) (if Congress by concurrent resolution disapproves an amendment to the International Regulations for Preventing Collisions at Sea, 1972, the President must notify the Inter-Governmental Maritime Consultative Organization (now the International Maritime Organization) of an objection to the amendment by the United States). A different kind of provision not included in the four prototypical categories allows Congress to waive legislative lie-in-wait provisions: 10 U.S.C. §2676(d) (1982) provides that military purchases of real property may be made 21 days after congressional committees are alerted or, before then, if committees vote approval; id. §§2803–2807, 2854 (1982) (same provision covering military purchase of real property); 42 U.S.C. §2153 (1982) provides that the President must submit cooperation agreements on nuclear materials to foreign affairs committees of the two Houses for 30-day period, which committees may waive.

110 A declaration of neutrality by Congress may be analogous to a declaration of war. Professor Louis Henkin takes no position on the proposition that a congressional declaration of war is not subject to presidential veto but cites views expressed on both sides and notes that the issue is hypothetical since “all declarations of war were made in response to Presidential request.” L. Henkin, Foreign Affairs and the Constitution 33 n.5 (1972).

111 Since the Chadha decision, Congress has added several legislative—actually, committee— veto provisions to laws. These require prior consent of the House and Senate Appropriations Committees for reprogramming of funds and for specified expenditures. So long as everyone agrees to play by these rules, they may survive indefinitely. See, e.g., Department of Transportation and Related Agencies Appropriations Act, 1983, Pub. L. No. 98-78, tits. I, III, 97 Stat. 453, 462, 473; Supplemental Appropriations Act, 1983, Pub. L. No. 98-63, chs. IV, VI, VII, 97 Stat. 301, 312, 319, 328; National Aeronautics and Space Administration Authorization Act, 1984, Pub. L. NO. 98-52, §§103, 110, 97 Stat. 281, 283–84, 285; Department of Housing and Urban Development-Independent Agencies Appropriation Act, 1984, Pub. L. No. 98-45, tits. II, III, IV, 97 Stat. 219, 228, 229, 236, 239.

112 The House passed resolutions of disapproval to stop the sale of nuclear materials to India in 1980 and, in 1981, to prevent the sale of AW ACS and F-15 enhancements to Saudi Arabia. The Senate, in both instances, failed to join in the concurrent resolution procedure, and the transfers were thus effected by the President. See Collier, Legislative-Executive Balance in Foreign Policy without the Legislative Veto, Cong. Research Service Rev., Fall 1983 Google Scholar, at 9.

113 Chadha, 462 U.S. at 931–32 (citing Buckley v. Valeo, 424 U.S. 1, 108 (1976), quoting Champlin Ref. Co. v. Corporation Comm’n, 286 U.S. 210, 234 (1932)).

114 Chadha, 462 U.S. at 932. The Court’s analysis of legislative history indicated that Congress wanted to maintain some control over cancellations of delegation procedures. Id. at 933–34.

115 Id. at 932. The Court treats this as presumptive. But see Consumer Energy Council of Am. v. FERC, 673 F.2d 425,442 (D.C. Cir. 1982), aff’d, 103 S.Ct. 3556, reh’g denied, 104 S.Ct. 40 (1983) (describing the question of where the presumption lies as “mostly irrelevant”).

116 Chadha, 462 U.S. at 934 (quoting Champlin, 286 U.S. at 234).

117 Chadha, 462 U.S. at 934. The Court did not specify the exact amount of statutory language stricken by this analysis. Presumably, however, only the smallest possible portion of the statute will be severed. See Am. Jur. 2D Administrative Law §§33–34.

118 570 F.Supp. 1224 (S.D. Miss. 1983), appeal dismissed for lack of juris., 104 S.Ct. 3499 (1984).

119 570 F.Supp. at 1230 n.18 (citing Carter v. Carter Coal Co., 298 U.S. 238, 312–13 (1936)). However, there remains uncertainty as to the implication of the absence of a severability clause. In Consumer Energy, 673 F.2d at 440–45, the court severed a legislative veto provision in the Natural Gas Policy Act of 1978, 15 U.S.C. §§3301–3432, 42 U.S.C. §7255 (1982), despite the absence of a severability clause. Citing United States v. Jackson, 390 U.S. 570, 585 n.27, the Consumer Energy court specifically stated that the absence of a severability clause does not raise a presumption of nonseverability. 673 F.2d at 442; see also EEOC v. City of Memphis, 33 F.E.P. Cases 1089 (W.D. Tenn. 1984).

120 Allstate, 570 F.Supp. at 1232. The court stated:

121 Id. at 1232. See also EEOC v. Martin Indus., 581 F.Supp. 1029 (N.D. Ala.), appeal dismissed, 105 S.Ct. 63 (1984); EEOC v. Westinghouse Elec. Corp., 33 F.E.P. Cases 1232 (W.D. Pa. 1984).

122 See, e.g., EEOC v. Peat, Marwick, Mitchell & Co., 589 F.Supp. 534 (E.D. Mo. 1984); Muller Optical Co. v. EEOC, 574 F.Supp. 946 (W.D. Tenn. 1983), aff’d, 743 F.2d 380 (6th Cir. 1984).

123 Allstate is notable also because the court decided the merits of the case even though the veto in question was never exercised. 570 F.Supp. at 1229.

124 For a somewhat analogous situation, see the clear statement doctrine, discussed infra note 137 and accompanying text.

125 Justice Sutherland hinted broadly at this:

Curtiss-Wright, 299 U.S. at 320.

126 Of the 15 major foreign policy statutes cited in Justice White’s Chadha dissent (see supra note 3), 7 contain severability provisions, while 8 do not.

127 In addition to the aforementioned Reorganization Act of 1977, a prime candidate for nonseverability is the International Security Assistance and Arms Export Control Act of 1976, 22 U.S.C. §§2751–2796 (1982). That statute, too, contains no severability clause, and its legislative history, though somewhat ambiguous, tends to reveal that it would not have been passed, and its broad authority would not have been delegated, had the legislative veto provision been known to be inoperable. Certainly, the purpose of the legislation was to limit, not to unleash, presidential authority to export arms. See statement by the bill’s sponsor, Sen. Nelson, 119 Cong. Rec. 21,152–53 (1973). Stripped of the legislative veto, the law would have almost exactly the opposite effect of its purport. Indeed, Sen. Javits made clear that, without the legislative veto, Congress “would not have delegated the power.” 122 Cong. Rec. 2330 (1976).

128 See infra note 274 for an enumeration of foreign affairs powers granted to the President by the Constitution.

129 In a concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635- 38 (1952), Justice Jackson established the now widely used distinction between the levels of presidential power in the gray areas of concurrent jurisdiction. Jackson’s opinion makes clear that presidential power is greatest when the President acts in reliance on a delegation of congressional authority that reinforces his plenary powers, is diminished when he acts in the absence of such authorization and is at its lowest ebb when he acts contrary to the expressed or implied will of Congress. Id.

130 But see Consumer Energy, 673 F.2d at 467 n. 172 (rejecting the argument that “the existence of a legislative veto can serve to validate an otherwise too broad delegation”).

131 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).

132 See Yakus v. United States, 321 U.S. 414, 425 (1944).

133 See supra note 45 and accompanying text.

134 Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (§3 of the National Industrial Recovery Act of 1933); Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935) (§9(c) of the National Industrial Recovery Act of 1933).

135 See, e.g., Arizona v. California, 373 U.S. 546 (1963).

136 Yakus, 321 U.S. at 426.

137 See, e.g., National Cable Television Ass’n v. United States, 415 U.S. 336, 341–42 (1974) (narrow interpretation of a statute that might otherwise have been unconstitutional to allow a delegation of congressional taxing authority to an administrative agency); Greene v. McElroy, 360 U.S. 474, 507 (1959) (without explicit legislative action, a court will not infer that Congress intended to delegate constitutionally suspect powers to the Department of Defense).

138 Zemel v. Rusk, 381 U.S. 1, 17 (1965); see also Curtiss-Wright, 299 U.S. at 320.

139 See generally Wright, Beyond Discretionary Justice, 81 Yale L.J. 575, 582–86 (1972); Merrill, Standards — A Safeguard for the Exercise of Delegated Power, 47 Neb. L. Rev. 469 (1968)Google Scholar.

140 International Security Assistance and Arms Export Control Act of 1976, 22 U.S.C. §§2751–2796 (1982).

141 Id. §2751.

142 Professor Michael Glennon has written of this phenomenon as it affects intelligence oversight. Glennon, Investigating Intelligence Activities: The Process of Getting Information for Congress, in The Tethered Presidency 141, 149–50 (T. Franck ed. 1981)Google Scholar.

143 Chadha, 462 U.S. at 973 n.10.

144 The U.S. Supreme Court Decision Concerning the Legislative Veto: Hearings Before the House Comm. on Foreign Affairs, 98th Cong., 1st Sess. 33 (1983) [hereinafter cited as Hearings].

145 Foreign Assistance Legislation for Fiscal Year 1985 (Part 3): Hearings and Markup Before the Subcomm. on Europe and the Middle East of the House Comm. on Foreign Affairs, 98th Cong., 2d Sess. at xxiii (1984).

146 United States v. Public Utils. Comm’n of Cal., 345 U.S. 295, 315 (1953).

147 N.Y. Times, Apr. 13, 1984, at A4, col. 3 (House); id., Apr. 11, 1984, at A1, col. 6 (Senate).

148 Id., Apr. 13, 1984, at A24, col. 3; id., Apr. 12, 1984, at A12, col. 4.

149 See id., Apr. 13, 1984, at A4, col. 3 (stating that Congress’s passage of nonbinding resolutions opposing use of U.S. funds to mine Nicaraguan harbors would put an end to the mining).

150 Chadha, 462 U.S. at 935 n.8, 955; but see Hearings, supra note 144, at 33, 43 (exchange between Stanley M. Brand, Gen. Counsel to the Clerk, House of Reps, and Rep. Dante B. Fascell) (questioning whether any subsequent limitation on already delegated authority—including a joint resolution—remains constitutional after Chadha).

151 22 U.S.C. §2304 (1982).

152 Id. §2304(c)(4)(A).

153 The constitutionality, albeit not necessarily the wisdom, of legislating in money bills has frequently been upheld. United States v. Dickerson, 310 U.S. 554, 555–56 (1940); Roe v. Casey, 623 F.2d 829, 836 (2d Cir. 1980). But cf. Rule XVI of the Standing Rules of the United States Senate, 98th Cong., reprinted in Cummings, F. Capitol Hill Manual 149 (2d ed. 1984)Google Scholar, which allows a point of order to lie against “general legislation” or a “not germane” provision offered as an amendment to an appropriations bill. This rule, however, has reduced but not abolished the practice in the absence of a comparable rule for the House of Representatives.

154 For fiscal 1983, Congress forbade the use of defense funds to finance forces “for the purpose of overthrowing the Government of Nicaragua or provoking a military exchange between Nicaragua and Honduras.” Pub. L. No. 97-377, §793, 96 Stat. 1830, 1865 (1982). For 1984, the law limited to $24 million the funds available for “supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement, or individual.” Department of Defense Appropriation Act, 1984, Pub. L. No. 98-212, §775, 97 Stat. 1421, 1452. Next, the Continuing Appropriations Act, 1985, included a provision prohibiting funding to the Nicaraguan contras during fiscal year 1985 unless, after Feb. 28, 1985, the President submits a report stating that a resumption of assistance is necessary and Congress approves such assistance by joint resolution (i.e., legislation). Pub. L. No. 98-473, §8066, 98 Stat. 1837, 1935–36. In 1976, Congress prohibited the use of any funds in the Defense Department Appropriation Act “for any activities involving Angola other than intelligence gathering.” Pub. L. No. 94-212, tit. IV, 90 Stat. 153, 166.

155 N.Y. Times, May 4, 1984, at A19, col. 1; id., Jan. 4, 1984, at A16, col. 3.

156 S. 1858, 98th Cong., 1st Sess. (1983) and H.R. 3932, 98th Cong., 2d Sess. (1983) (bills to amend the District of Columbia Self-Government and Governmental Reorganization Act) (passed House Oct. 4, 1983). See generally 129 Cong. Rec. S12,545–46 (daily ed. Sept. 20, 1983); id. atS12,526–27.

157

Chadha, 462 U.S. at 973 n. 10 (White, J., dissenting) (quoting Javits, & Klein, Congressional Oversight and the Legislative Veto: A Constitutional Analysis, 52 N.Y.U. L. Rev. 455, 464 (1977)Google Scholar).

158 See Schwartz, Legislative Control of Administrative Rules and Regulations (pt. I), 30 N.Y.U. L. Rev. 1031, 1032–33 (1955)Google Scholar.

159 Id.; see also Gellhorn, W. Byse, C. & Strauss, P. Administrative Law 116 (1979)Google Scholar.

160 312 U.S. 1 (1941).

161 The Sibbach provision stated that the Federal Rules of Civil Procedure “shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session.” Act of June 19, 1934, 48 Stat. 1064, quoted in Sibbach, 312 U.S. at 8. During the session, Congress could amend or reject the Rules by passing appropriate legislation. See Chadha, 462 U.S. at 935 n.9.

162 Chadha, 462 U.S. at 935 n.9 (citing Sibbach).

163 Id. at 973 n.10.

164 See, e.g., Atomic Energy Act of 1954, §123, 42 U.S.C. §§2011–2282, §2153(d) (1982) (providing that bilateral agreements on nuclear power with other nations shall not go into effect for 60 days after the President has submitted the proposal to Congress). For a compilation of report and wait procedures in U.S. statutes, see Comment, Legislative Control over Administrative Action: The Laying System, 10J. Mar. J. Prac. & Proc. 515 (1977).

165 See H.R. 2668, 98th Cong., 1st Sess., 129 Cong. Rec. H4771–81 (daily ed. June 29, 1983) (amendment of Rep. Waxman) (passed by House); see also infra note 175 for an affirmative report and wait provision in the same bill and infra note 209 for a point of order procedure in the Senate version of the bill.

166 For other examples of negative report and wait provisions proposed, but not enacted, since Chadha, see S. 1650, 98th Cong., 1st Sess., 129 Cong. Rec. S10.473–77 (daily ed. July 20, 1983) (providing for a joint resolution of disapproval over all rules under the Administrative Procedure Act that are subject to public notice and comment); H.R. 3754, 98th Cong., 1st Sess., 129 Cong. Rec. H6473 (daily ed. Aug. 3, 1983) (amending the Impoundment Control Act of 1974 by providing for disapproval of presidential spending deferrals—i.e., spending at a rate slower than that required by statute—by bill or joint resolution) (replaces one-House veto resolution).

167 See Kaiser, Congressional Action to Overturn Agency Rules: Alternatives to the “Legislative Veto,” 32 AD. L. Rev. 667, 669–73 (1980)Google Scholar (stating that passage of a joint resolution overturning federal agency rules “presents difficulties” and citing only six examples between 1973 and 1978 in which Congress passed such legislation).

168 Schwartz, supra note 158, at 1033; Comment, supra note 164, at 523.

169 Schwartz, supra note 158, at 1033; Comment, supra note 164, at 523. In scrutinizing agency proposals, the committee’s main concern is whether the agency has met the general aims of the parliamentary delegation. To facilitate the committee’s inquiry, Parliament has established eight specific guidelines. If an agency proposal falls afoul of any of these guidelines, the committee may investigate the proposal and alert Parliament. In its investigation, the committee may require written or oral testimony from agency officials. See Schwartz, supra, at 1050–51; Comment, supra, at 523.

170 Schwartz, supra note 158, at 1033; Comment, supra note 164, at 523.

171 See generally Hearings, supra note 144, at 141–42 (statement of Prof. David A. Martin, Univ. of Va. School of Law) (discussing a proposed amendment to the Arms Export Control Act designed to offset Chadha).

172 Affirmative report and wait provisions have been used by Congress only on rare occasion. See supra note 91.

173 Pub. L. No. 98-473, supra note 91; see also supra note 154.

174 International Security Assistance and Arms Export Control Act of 1976, Pub. L. No. 94-329, §404, 90 Stat. 729, 757 (codified as amended in scattered sections of 22 U.S.C., 22 U.S.C. §2293 note (1982)).

175 In the wake of Chadha, the Reorganization Act Amendments of 1984, Pub. L. No. 98-614, 98 Stat. 3192, which include an affirmative report and wait provision, became law. The amendments allow reorganization of federal agencies only after the President has transmitted a plan to Congress, Congress has approved the plan by joint resolution within 90 days of transmittal and the President has signed the resolution. For the proposed amendment to apply the affirmative report and wait device to nuclear cooperation agreements, see S. 979, 98th Cong., 2d Sess. (1984) (passed Senate Mar. 1, 1984; passed House Mar. 8, 1984), 130 Cong. Rec. S1929 (daily ed. Feb. 29, 1984) (amendment of Sen. Proxmire). A proposed amendment to the Administrative Procedure Act subjects major agency rules to a joint resolution of approval mechanism, while subjecting less important rules to joint resolution of disapproval procedures. H.R. 3939, 98th Cong., 1st Sess., 129 Cong. Rec. H7166–69 (daily ed. Sept. 20, 1983). Two other examples of proposed affirmative report and wait provisions are H.R. 3648, 98th Cong., 1st Sess., 129 Cong. Rec. H8122–23, H8169 (daily ed. Oct. 6, 1983) (passed by House Mar. 6, 1984) (proposing that congressional approval by joint resolution be required before the Government may sell the Conrail system), and H.R. 2668, 98th Cong., 1st Sess., 129 Cong. Rec H4773–81 (daily ed. June 29, 1983) (amendment of Rep. Levitas) (passed by House); see also supra note 165 for a negative report and wait provision in the same bill and infra note 209 for a point of order procedure in the Senate version of the bill.

176 50 U.S.C. §§1541–1548(1982).

177 Id. §1542.

178 Veto of the War Powers Resolution, Oct. 24, 1973, in R. Nixon, Pub. Papers 893, 895 (1973). See also supra note 75 and accompanying text.

179 S. Res. 400, 94th Cong., 2d Sess. §10(a) (1976).

180 N.Y. Times, May 14, 1984, at A12, col. 3.

181 Oversight of U.S. Government Intelligence Function: Hearings Before the Senate Comm. on Governmental Operations, 94th Cong., 2d Sess. 33 (1976).

182 N.Y. Times, Apr. 11, 1984, at A1, col. 6. The Chairman was supported in this assertion by his Democratic counterpart. See Moynihan’s Farewell, id., Oct. 15, 1984, at A14, col. 4.

183 Id., Apr. 11, 1984, at A1, col. 6.

184 Id., May 14, 1984, at A12, col. 3.

185 See supra note 147.

186 See Franck, After the Fall: The New Procedural Framework for Congressional Control over the War Powers, 71 AJIL 605, 615–16 (1977)Google Scholar; see also infra note 227 and accompanying text.

187 Franck, supra note 186, at 617–18.

188 Id. at 619.

189 Id. (citing N.Y. Times, May 16, 1975, at 15, col. 2).

190 For evidence of lack of consultation regarding the Iran mission, see N.Y. Times, Apr. 27, 1980, §1, at 17, col. 1. For the lack of consultation concerning the sending of U.S. Marines back to Beirut in September, 1982, see id., Sept. 21, 1982, at A1, col. 6. When 550 U.S. personnel were sent to Chad in August 1983, during the civil war, the administration only notified Congress after the fact. Wash. Post, Aug. 9, 1983, at A11, col. 3.

191 “We weren’t asked for advice,” House Speaker Thomas, P. O’Neill, Jr. said. “We were informed what was taking place.” N.Y. Times, Oct. 26, 1983 Google Scholar, at A16, col. 1.

192 For further discussion of methods of strengthening executive-legislative consultations, see Franck, supra note 186, at 638; see also Staff of House Comm. on Foreign Affairs, 98th Cong., 1st Sess., Strengthening Executive-Legislative Consultation on Foreign Policy 49–70 (Comm. Print No. 8, 1983).

193 S. 1790, 94th Cong., 1st Sess., 121 Cong. Rec. 15,580 (1975).

194 Id.

195 Chadha, 462 U.S. at 955 n.20.

196 Procedure in the U.S. House of Representatives, ch. 31, §1, at 697 (1982) (looseleaf ed.).

197 Id. §6, at 702.

198 Id. § 1, at 697.

199 See, e.g., id. §1.7, at 697.

200 S. 3076, 95th Cong., 2d Sess., §502 (1978), cited in 1 United States Foreign Relations Law 461, 463–66 (T. Franck & M. Glennon eds. 1980).

201 Pub. L. No. 95-426, 92 Stat. 963 (1978).

202 S. 3076, supra note 200, §502(f)(1).

203 See Franck & Glennon (eds.), supra note 200, at 469–74.

204 144 U.S. 1 (1892).

205 Congress

Id. at 5.

206 The Executive argued that the typical uses of a point of order are triggered by an intramural event: to prevent consideration of an authorization bill after May 15 (Senate), an appropriations bill that contains general legislation (Senate) or any bill whose subject matter falls outside the jurisdiction of the committee considering it. Letter from Department of State to Senate Foreign Relations Committee, Dec. 30, 1977 (presenting views in opposition to S. Res. 24), reprinted in Franck & Glennon (eds.), supra note 200, at 453.

207 Chadha, 462 U.S. at 952.

208 15 U.S.C. §§2051–2083, 2083 (1982).

209 S. 861, 98th Cong., 1st Sess., 129 Cong. Rec. S8652–55 (daily ed. June 16, 1983) (passed by Senate). The bill simply amended the existing legislative veto over Consumer Product Safety Commission rules by adding a section stating that the veto is enacted as “an exercise of the rulemaking power” of both Houses of Congress. See also supra notes 165 and 175 for the House Consumer Product Safety bill, which contained both affirmative and negative report and wait provisions meant to replace the veto provision invalidated by Chadha.

210 See supra note 174 and accompanying text.

211 Pub. L. No. 94-329, §601, 90 Stat. 729, 765–66 (1976). Expedited procedures for the House are found at 22 U.S.C. §2776(b) (1982).

212 Pub. L. No. 94-329, supra note 211, §601(b)(3)(A).

218 Id. §601(b)(3)(B).

214 Id.

215 Id. §601(b)(4).

216 S. 1906, 98th Cong., 1st Sess., 129 Cong. Rec. S13,245 (daily ed. Sept. 29, 1983).

217 Id. §7.

218 Id.

219 See Glennon, Strengthening the War Powers Resolution: The Case for Purse-Strings Restrictions, 60 Minn. L. Rev. 1, 29–30 (1975)Google Scholar.

220 But see President Carter’s veto of the 1981 appropriations bill for the State, Justice and Commerce Departments, H.R. 7584, 96th Cong., 2d Sess. (1980), because it contained an amendment that forbade the Justice Department from bringing suits that might result in forced busing of schoolchildren. See 16 Weekly Comp. Pres. Doc. 2809 (Dec. 13, 1980).

221 See, e.g., 22 U.S.C. §2370(f) (1982) (containing a prohibition on aid to any Communist country, including 18 listed in the law).

222 Pub. L. No. 91-652, §7(a), 84 Stat. 1942, 1943 (1971).

223 Pub. L. No. 93-52, §108, 87 Stat. 130, 134 (1973).

224 Pub. L. No. 97-241, 96 Stat. 273 (1982) (codified as amended in scattered sections of 18 and 22 U.S.C).

225 22 U.S.C. §287r note (1982).

226 S. 1906, 98th Cong., 1st Sess. §5 (1983).

227 See President Ford’s messages to Congress about the evacuations from Southeast Asia, 121 Cong. Rec. 12,803–04 (1975) (Saigon), id. at 10,065 (Phnom Penh), and id. at 9079 (Da Nang) (Ford also based this action on provisions in the Foreign Assistance Act of 1961 authorizing humanitarian aid to refugees), cited in W. Revelev, War Powers of The President and Congress 249 (1981).

228 See L. Henkin, supra note 110, at 114.

229 Department of State Authorization Act for 1980–81, Pub. L. No. 96-60, §108, 93 Stat. 395, 397 (codified in scattered sections of 5, 16 and 22 U.S.C, 22 U.S.C §2656 note (1982)).

230 15 Weekly Comp. Pres. Doc. 1434 (Aug. 15, 1979).

231 See supra note 224.

232 Id., §103, 22 U.S.C. §2656 note (1982).

233 18 Weekly Comp. Pres. Doc. 1060 (Aug. 24, 1982).

234 Telephone interview with Gene Molmburg, Assistant Secretary for Management, Office of the Legal Adviser, Department of State, Apr. 4, 1984.

235 The State Department reported to Congress that it had tried but failed to secure Burma’s approval for the reopening of the Mandalay consulate. See Pub. L. No. 98-164, §137, 97 Stat. 1017, 1030, 22 U.S.C. §2656 note (1982).

236 See supra note 224.

237 Id. § 104, 96 Stat, at 274.

238 1982 U.S. Code Cong. & Ad. News 666 (legislative history of Pub. L. No. 97-241).

239 Id.

240 In Kendall v. United States ex. rel. Stokes, 37 U.S. (12 Pet.) 524 (1838), the Supreme Court’s earliest treatment of the impoundment issue, the Court dismissed the Executive’s contention that “the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution.” Id. at 612. However, the Kendall opinion rested on a narrow set of facts. (The case involved a disputed payment to a government contractor. Congress passed a bill directing the Postmaster General to pay the contractor any sum determined by an arbitrator. After the arbitrator’s determination, however, the Postmaster refused to pay the sum and instead paid a lesser amount. Id. at 527–32. In response, the Court issued a writ of mandamus requiring payment of the full amount, thereby upholding Congress’s power to control expenditures.) Impoundment has continued as a regular, though infrequent, executive practice. See Fisher, L. , Presidential Spending Power 165–66 (1975)Google Scholar (citing impoundments by Presidents Grant, Harding, Truman, Johnson and others). Under President Nixon, the use of impoundments became “unprecedented in. . . scope and severity.” Id. at 176. In effect, Nixon converted impoundment into a de facto veto power—a veto power free of Congress’s usual authority to override by a two-thirds majority vote. This prompted judicial challenges and legislative action. In Train v. City of New York, 420 U.S. 35 (1975), the Supreme Court indicated that it would determine the propriety of impoundment on a case-by-case basis, by examining the legislative history of the statute in question. The Court examined whether the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§1251 et seq. (1982), required or merely permitted the President to spend the full amount of money authorized for a designated purpose. Train, 420 U.S. at 42–48. Congress thereafter passed the Impoundment Control Act of 1974, 2 U.S.C. §§681–688 (1982), which provides that the President may terminate or reduce funding for a congressionally authorized program only if he receives congressional approval by joint resolution within 45 days after he submits a message to Congress requesting such a termination. Id. §683. The President may also defer expenditures subject to a one-House legislative veto of disapproval. Id. §684. The latter is clearly unconstitutional after Chadha, while the former survives Chadha by virtue of its joint resolution provision.

241 L. Fisher, supra note 240, at 262.

242 Id. at 66–71.

243 Id. at 107.

244 Id. at 92.

245 22 U.S.C. §§2751–2796 (1982).

246 Id. §2776(c).

247 Moreover, use of the appropriations power to prevent the issuance of individual export licenses might violate the Constitution’s ban on bills of attainder, art. I, §9, cl. 3. The Supreme Court has denned a bill of attainder as “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468 (1977). However, a regulatory statute that incidentally imposes deprivations on individuals would probably not be considered a bill of attainder. To violate the ban on bills of attainder, the legislature must pass a bill motivated by some stigmatizing or condemnatory purpose directed against a distinct individual or group. United States v. Brown, 381 U.S. 437 (1965); see also Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 104 S.Ct. 3348, 3357 n.15 (1984). The desire to control arms exports, even when it deprives certain exporters of their livelihood, is thus unlikely to be characterized as unconstitutional. For the Supreme Court’s latest thinking on bills of attainder, see the Selective Service case. See generally Tribe, L. American Constitutional Law 484–501 (1978)Google Scholar.

248 Hearings, supra note 144, at 35 (statement of Stanley M. Brand, Gen. Counsel to the Clerk, House of Reps.).

249 For a listing of areas in which the President’s authority has a basis in the constitutional text, see infra note 274 and accompanying text. Presidential powers not enumerated in that list do not necessarily have a basis in congressional delegations. Instead, they may represent a slow accretion of power by the President over many years. See the discussion of the President’s claimed power as “sole organ” of foreign policy in L. Henkin, supra note 110, at 45–50.

250 U.S. Const, art. 1, §8, cl. 1.

251 See L. Henkin, supra note 110, at 113–14 (because the Constitution gives Congress control over spending in the “general Welfare of the United States,” Congress can impose conditions on its use even if they infringe to some extent on the President’s power over foreign relations); but see id. at 109 (questioning Wallace, The President’s Exclusive Foreign Affairs Power over Foreign Aid, 1970 Duke L.J. 293 (foreign aid has become so much a part of foreign policy that the President should have as much authority in this area—and Congress as little—as in most other areas of foreign affairs)).

252 Pub. L. No. 87-195, 75 Stat. 424 (codified as amended in scattered sections of 7, 16, 22 and 42 U.S.C.).

253 22 U.S.C. §2367(1982).

254 Rescission could be avoided only if Congress specifically authorized continuation of a presidential authority by joint resolution within 180 days of the proposed catchall bill’s passage. H.R. 4535, 98th Cong., 1st Sess., 129 Cong. Rec. H10.589–91 (daily ed. Nov. 18, 1983).

255 See discussion of delegation doctrine, supra notes 130–141 and accompanying text.

256 Pub. L. No. 87–195, 75 Stat. 424 (1961) (codified as amended in scattered sections of 7, 16, 22 and 42 U.S.C).

257 22 U.S.C. §2370(k) (1982). See generally the discussion of the appropriations alternative, supra notes 219-248 and accompanying text.

258 50 U.S.C. §1544(1982).

259 See supra note 221. For a listing of other instances in which Congress has amended the Foreign Assistance Act to place restrictions on countries that could receive foreign aid, see L. Henkin, supra note 110, at 114.

260 See generally Hearings, supra note 144, at 36–47.

261 The President’s filing of a report on the introduction of U.S. armed forces into hostile areas. 50 U.S.C. §§1543, 1544 (1982).

262 Pub. L. No. 96-72, 93 Stat. 503 (codified as amended in scattered sections of 7, 22, 26, 42 and 50 app. U.S.C.).

268 50 U.S.C. app. §2406 (1982).

264 S. 979, 98th Cong., 2d Sess., 130 Cong. Rec. S1966 (daily ed. Feb. 29, 1984) (amendment of Sen. Dixon) (passed Senate, Mar. 1, 1984; passed House, Mar. 8, 1984).

265 Pub. L. No. 98-94, 97 Stat. 614.

266 Id. §1218, 97 Stat, at 690.

267 See 129 Cong. Rec. S10,145 (daily ed. July 15, 1983).

268 S. 2956, 92d Cong., 1st Sess. (1971).

269 S. 1906, 98th Cong., 1st Sess. §3, 129 Cong. Rec. S13,245 (daily ed. Sept. 29, 1983).

270 50 U.S.C. §§1543–1545 (1982).

271 See Chadha, 462 U.S. at 973 n. 10 (citing Fuchs, Administrative Agencies and the Energy Problem, 47 Ind. L J. 606, 608 (1972); Stewart, Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1695-96(1975)).

272 See, e.g., 22 U.S.C. §2370 note (1982) (military aid to El Salvador conditioned on semiannual certification of human rights progress by President).

273 The history of presidential certifications of human rights progress in El Salvador demonstrates that such escape clauses can easily undermine the purposes of an aid ban. The President’s semiannual certification of progress on human rights in El Salvador (id.) has been branded a charade (see N.Y. Times, Dec. 1, 1983, at A 1, col. 5), as gross violations by Salvadoran death squads continue. See id., Nov. 26, 1983, at 4, col. 3. When the President pocket vetoed a bill renewing the certification process, however, even critics of the process admitted that it had some beneficial effects. It drew American public attention to human rights conditions in El Salvador and reduced political killings, although only in the days immediately surrounding a certification. See id., Dec. 1, 1983, at A1, col. 5.

274 Clearly, the narrowing of presidential discretion by imposing legislatively mandated standards is a device available to Congress only with respect to delegated or concurrent powers of the President, and not to his inherent or plenary powers. Professor Henkin lists the following as “expressed, unambiguous grants to the President”: the power to make treaties, to appoint and receive ambassadors, to command the armed forces and to see that the laws are faithfully executed. L. Henkin, supra note 110, at 93. Given this modest list, congressional attempts to reduce presidential power by narrowing statutory delegations could have quite wide application.

275 While recourse to “points of order” procedures could conceivably restore a modicum of congressional co-determination, their constitutionality is uncertain, and legislators are sure to feel uncomfortable resorting to such unaccustomed devices except in extreme circumstances.

276 Chadha, 462 U.S. at 943 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).

277 See U.S. Const, art. III, §2, cl. 2 (appellate jurisdiction in the Supreme Court “with such Exceptions, and under such Regulations as the Congress shall make”); id., art. I, §8, cl. 18 (necessary and proper clause). See also id., art. I, §8, cl. 9 (power to constitute tribunals inferior to the Supreme Court); id., art. III, §1 (judicial power vested in Supreme Court “and in such inferior Courts as the Congress may from time to time ordain and establish”).

278 See, e.g., 22 U.S.C. §2370(e)(2) (1982) (the “Hickenlooper Amendment”), discussed infra at notes 317-332 and accompanying text.

279 Such a statutory provision might read:

See discussion of such a provision in Franck, supra note 186, at 640.

280 Early Supreme Court cases embodying the political question doctrine include Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) (Marshall, C.J.) (“Questions, in their nature political . . . can never be made in this court”); Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) (refusal to decide whether treaty had been broken); and the celebrated case of Luther v. Borden, 48 U.S. (7 How.) 1 (1849) (refusal to recognize either of rival claimants as lawful state government).

281 369 U.S. 186 (1962). The decision identifies as qualifying for judicial reticence those questions which have one or more of the following elements:

Id. at 217.

282 See, e.g., Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918), where the Court stated: “The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative— ‘the political’—Departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” In Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948), Justice Jackson articulated the Court’s reluctance to decide issues involving foreign policy:

283 369 U.S. at 211.

284 Id.

285 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635–38 (Jackson, J., concurring); see supra note 129 and accompanying text.

286 343 U.S. at 635–38; see also supra note 129 and accompanying text. In several recent cases, though not involving foreign affairs, the Court has demonstrated its willingness to decide whether one branch of the Government has impinged on the power of another. See Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982); Buckley v. Valeo, 424 U.S. 1, 123 (1976); United States v. Nixon, 418 U.S. 683 (1974). But see Goldwater v. Carter, 444 U.S. 996, 1002 (1979) (order granting certiorari and vacating and remanding lower court ruling) (concurring opinion by Rehnquist, J., joined by three brethren, viewing as political question the roles of the President and Congress in conducting foreign relations).

287 See generally Firmage, The War Powers and the Political Question Doctrine, 49 U. Colo. L. Rev. 65, 90–98 (1977)Google Scholar; Ratner, & Cole, The Force of Law: Judicial Enforcement of the War Powers Resolution, 17 Loy. L.A.L. Rev. 715, 730–35 (1984)Google Scholar.

288 252 F.Supp. 819 (D.D.C. 1966), aff’d per curiam, 373 F.2d 664 (D.C. Cir. 1967), cert, denied, 387 U.S. 945 (1967).

289 252 F.Supp. at 819.

290 Luftig, 373 F.2d at 665.

291 347 F.Supp. 689 (E.D. Pa. 1972) (three-judge court), aff’d sub nom. Atlee v. Richardson, 411 U.S. 911 (1973).

292 See supra note 281.

293 Laird, 347 F.Supp. at 705–07. In considering the question of congressional authorization for a war, the court noted that Congress could “take steps short of a formal declaration of war, equivalent to an authorization.” Id. at 706.

294 Id. at 705.

295 443 F.2d 1039 (2d Cir. 1971), cert, denied, 404 U.S. 869 (1971).

296 443 F.2d at 1042.

297 Id. at 1042–43.

298 488 F.2d 611, 616 (D.C. Cir. 1973).

299 Id. at 614. See also DaCostav. Laird, 471 F.2d 1146, 1156(2dCir. 1973) (dicta indicating possibility that a sufficiently manageable standard to allow judicial resolution might be present in a case in which the character of war operations was radically changed). See also Holtzman v. Schlesinger, 361 F.Supp. 553, 561-62 (E.D.N.Y. 1973) (Cambodian bombing enjoined after determination of justiciability), rev’d, 484 F.2d 1307 (2d Cir. 1973), cert, denied, 416 U.S. 936 (1974). Nevertheless, the courts continued to treat as nonjusticiable the question of the adequacy of the form of Congress’s assent to war making by the Executive. See, e.g., Orlando v. Laird, 443 F.2d at 1043–44.

300 See Goldwaier, 444 U.S. at 997–98 (Powell, J., concurring in the judgment) (official action by executive and legislative branches necessary before case can be considered ripe for judicial decision).

301 See 119 Cong. Rec. 1394 (1973) (statement of Sen. Javits) (bill “an effort to learn from the lessons of the last tragic decade of war which has cost our Nation so heavily in blood, treasure and morale”).

302 See, generally, on the issue of justiciability of the War Powers Resolution, Ratner & Cole, supra note 287, at 751–66. The standards for presidential war-making discretion are set out in §2(c), 50 U.S.C. § 1541 (c) (1982). The nonbinding character of the enumeration of presidential war powers is manifested by their placement in the “Purpose and Policy” section of the resolution rather than in an operative section, as well as by the fact that the standards are plainly not exhaustive, lacking any reference to rescuing citizens abroad or to using force in anticipation of imminent attack. See Comm. of Conference, Conference Report on the War Powers Resolution, H.R. Rep. No. 547, 93d Cong., 1st Sess. (1973).

303 50 U.S.C. § 1547(a)(1) (authority to introduce U.S. Armed Forces into hostilities may not be inferred from any provision of law including an appropriation act unless the provision specifically authorizes introduction). See also text at note 297 supra.

304 558 F.Supp. 893 (D.D.C. 1982), aff’d, 720 F.2d 1355 (D.C. Cir. 1983). Since the contribution of the court of appeals is limited to affirming “the dismissal of this case for the reasons stated by the District Court,” 720 F.2d at 1357, the analysis here will focus on the lower court opinion.

305 Crockett, 558 F.Supp. at 898.

306 Id.

307 Id. at 898–99.

308 Id. at 899.

309 Id. at 901. The court’s finding that the 60-day termination provision requires Congress or a court to act affirmatively to start the time clock appears to misconstrue, and certainly to subvert the hope of “automaticity” of the law. See Ratner & Cole, supra note 287, at 764 n.217 (quoting Tribe, supra note 31, at 20 n.20).

310 Crockett, 558 F.Supp. at 901.

311 568 F.Supp. 596 (D.D.C. 1983).

312 Id. at 600 (citing Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982)).

313 Sanchez-Espinoza, 568 F.Supp. at 599 (quoting Haig v. Agee, 453 U.S. 280, 292 (1981)).

314 Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C. Cir. 1984).

315 Id. at 1510.

316 “Issues which are not at base sweeping challenges to the Executive’s foreign policy typically are adjudicated by the courts because they do not involve judicial usurpation of the Executive’s constitutional powers to manage foreign affairs.” Id. at 1512.

317 Pub. L. No. 98-473, §127. Thereupon, the judgment was vacated by the Supreme Court and remanded for reconsideration. Weinberger v. Ramirez, 53 U.S.L.W. 3824 (U.S. May 20, 1985).

318 The obstacle to justiciability presented by the doctrine of “standing to sue” would present less serious barriers to congressional lawsuits against the Executive. “Standing” has been defined by the Supreme Court as “[w]hether a party has a sufficient stake in an otherwise justiciable controversy to attain judicial resolution of that controversy.” Sierra Club v. Morton, 405 U.S. 727, 731–32 (1972). Although courts during the Vietnam era on occasion dismissed suits by congressional plaintiffs for lack of standing (see, e.g., Harrington v. Schlesinger, 528 F.2d 455, 459(4thCir. 1975); Holizman, 484F.2dat 1315), numerous other courts have explicitly found sufficient stake in congressional plaintiffs’ claims to warrant standing. See, e.g., Mitchell v. Laird, 488 F.2d 611,614 (D.C. Cir. 1973) (congressman had standing to sue to enjoin alleged ultra vires, Commander-in-Chief actions). Cf. Kennedy v. Sampson, 511 F.2d 430, 434-35 (D.C. Cir. 1974) (senator had standing to challenge alleged illegal presidential use of pocket veto).

In two recent suits involving congressional plaintiffs brought under the War Powers Resolution, the opinions reached a determination of nonjusticiability without finding any bar on standing grounds. See Sanchez-Espinoza, discussed in note 311 supra and accompanying text; Crockett, discussed in note 304 supra and accompanying text. Though in the court of appeals decision in Crockett, a concurring judge asserted that the congressional plaintiffs lacked standing, 720 F.2d at 1357 (Bork, J., concurring), the majority apparently felt no need to address this argument. Moreover, the Supreme Court’s decision in Goldwater v. Carter suggests that the standing doctrine may have faded from judicial favor as a method of self-restraint in addressing separation-of-powers concerns when legislators sue the Executive. See McGowan, Congressmen in Court: The New Plaintiffs, 15 GA. L. Rev. 241, 256 (1981)Google Scholar. In any case, the Supreme Court has suggested that even if the political question doctrine cannot be legislatively overridden, Sierra Club, 405 U.S. at 732 n.3 (citing Luther v. Borden), standing to sue can be statutorily provided by Congress. In Sierra Club, the Court noted: “where a dispute is otherwise justiciable, the question whether the litigant is a ‘proper party to request an adjudication of a particular issue’ . . . is one within the power of Congress to determine.” Id. (quoting Flast v. Cohen, 392 U.S. 83, 100 (1968)).

319 22 U.S.C. §2370(e)(2) (1982).

320 See Underhill v. Hernandez, 168 U.S. 250, 252 (1897).

321 376 U.S. 398 (1964).

322 Id. at 423.

323 Id.

324 Id.

325 Id. at 431.

326 See S. Rep. No. 1188, pt. 1, 88th Cong., 2d Sess. 24 (1964). But one court has noted “that if the act of state doctrine is constitutionally compelled, as was both suggested and negated in Sabbatino, the Hickenlooper Amendment would be ineffective.” Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo, etc., 577 F.2d 1196, 1201 n.6 (5th Cir. 1978) (political question doctrine invoked to hold nonjusticiable conflicting oil concession claims of two sovereign nations).

327 243 F.Supp. 957 (S.D.N.Y. 1965), aff’d, 383 F.2d 166 (2d Cir. 1967), cert, denied, 390 U.S. 956, reh’g denied, 390 U.S. 1037 (1968).

328 243 F.Supp. at 975–76.

329 Farr, 383 F.2d at 180–81.

330 Id. at 181 n.18.

331 See, e.g., Compania de Gas de Nuevo Laredo, S.A. v. Entex, Inc., 686 F.2d 322, 327 (5th Cir. 1982); Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875, 882 n.10 (2d Cir. 1981); Banco Nacional de Cuba v. First Nat’l City Bank of N.Y., 431 F.2d 394, 397 n.7 (2d Cir. 1970). The cases have frequently held the Hickenlooper Amendment inapplicable on the grounds that it applies only to cases in which property expropriated abroad has found its way back into the United States. See, e.g., Empresa Cubana Exportadora de Azucar v. Lamborn & Co., 652 F.2d 231, 237 (2d Cir. 1981). Two circuit court cases, Chase Manhattan Bank and First National City Bank, have approvingly cited the Farr opinion’s holding on the constitutionality of the Hickenlooper Amendment. Finally, a large number of courts have discussed the Hickenlooper Amendment without questioning its constitutional validity, though in these cases, the amendment was found inapplicable.

332 On the other hand, we have noted above that the Farr court’s willingness to be instructed by the Hickenlooper Amendment was rooted in the fact that it considered the act of state doctrine a prudential or discretionary rule of judicial self-restraint. Thus, if the political question doctrine is a constitutionally compelled doctrine of nonjusticiability, a legislative directive to ignore that doctrine might be found unconstitutional as violative of the separation of powers. A suggestion to this effect is found in Sierra Club, 405 U.S. at 732 n.3; see supra note 317.

333 Oliver, The United States and the World, 426 AAPSS Annals 166, 193 (1976).