U.S. Supreme Court 4.

The fact that Chadha may have other statutory relief available to
him does not preclude him from challenging the constitutionality of §
244(c)(2), especially where the other avenues of relief are at most
INS v. Chadha, 462 U.S. 919 (1983)
speculative. Pp. 462 U. S. 936-937.

INS v. Chadha
5. The Court of Appeals had jurisdiction under § 106(a) of the Act,
which provides that a petition for review in a court of appeals "shall be
462 U.S. 919 the sole and exclusive procedure for the judicial review of all final
orders of deportation . . . made against aliens within the United States
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR pursuant to administrative proceedings" under § 242(b) of the Act.
Section 106(a) includes all matters on which the final deportation order
is contingent, rather than only those determinations made at the
THE NINTH CIRCUIT deportation

Syllabus Page 462 U. S. 921

Section 244(c)(2) of the Immigration and Nationality Act (Act) hearing. Here, Chadha's deportation stands or falls on the validity of
authorizes either House of Congress, by resolution, to invalidate the the challenged veto, the final deportation order having been entered
decision of the Executive Branch, pursuant to authority delegated by only to implement that veto. Pp. 462 U. S. 937-939.
Congress to the Attorney General, to allow a particular deportable alien
to remain in the United States. Appellee-respondent Chadha, an alien
who had been lawfully admitted to the United States on a 6. A case or controversy is presented by these cases. From the time of
nonimmigrant student visa, remained in the United States after his visa the House's formal intervention, there was concrete adverseness, and
had expired and was ordered by the Immigration and Naturalization prior to such intervention, there was adequate Art. III adverseness
Service (INS) to show cause why he should not be deported. He then even though the only parties were the INS and Chadha. The INS's
applied for suspension of the deportation, and, after a hearing, an agreement with Chadha's position does not alter the fact that the INS
Immigration Judge, acting pursuant to § 244(a)(1) of the Act, which would have deported him absent the Court of Appeals' judgment.
authorizes the Attorney General, in his discretion, to suspend Moreover, Congress is the proper party to defend the validity of a
deportation, ordered the suspension, and reported the suspension to statute when a Government agency, as a defendant charged with
Congress as required by § 244(c)(1). Thereafter, the House of enforcing the statute, agrees with plaintiffs that the statute is
Representatives passed a resolution pursuant to § 244(c)(2) vetoing unconstitutional. Pp. 462 U. S. 939-940.
the suspension, and the Immigration Judge reopened the deportation
proceedings. Chadha moved to terminate the proceedings on the 7. These cases do not present a nonjusticiable political question on the
ground that § 244(c)(2) is unconstitutional, but the judge held that he asserted ground that Chadha is merely challenging Congress' authority
had no authority to rule on its constitutionality, and ordered Chadha under the Naturalization and Necessary and Proper Clauses of the
deported pursuant to the House Resolution. Chadha's appeal to the Constitution. The presence of constitutional issues with significant
Board of Immigration Appeals was dismissed, the Board also holding political overtones does not automatically invoke the political question
that it had no power to declare § 244(c)(2) unconstitutional. Chadha doctrine. Resolution of litigation challenging the constitutional authority
then filed a petition for review of the deportation order in the Court of of one of the three branches cannot be evaded by the courts simply
Appeals, and the INS joined him in arguing that § 244(c)(2) is because the issues have political implications. Pp. 462 U. S. 940-943.
unconstitutional. The Court of Appeals held that § 244(c)(2) violates
the constitutional doctrine of separation of powers, and accordingly
8. The congressional veto provision in § 244(c)(2) is unconstitutional.
directed the Attorney General to cease taking any steps to deport
Pp. 462 U. S. 944-959.
Chadha based upon the House Resolution.

(a) The prescription for legislative action in Art. I, § 1 -- requiring all

Page 462 U. S. 920
legislative powers to be vested in a Congress consisting of a Senate
and a House of Representatives -- and § 7 -- requiring every bill
Held: passed by the House and Senate, before becoming law, to be
presented to the President, and, if he disapproves, to be repassed by
1. This Court has jurisdiction to entertain the INS's appeal in No. 80- two-thirds of the Senate and House -- represents the Framers' decision
1832 under 28 U.S.C. § 1252, which provides that "[a]ny party" may that the legislative power of the Federal Government be exercised in
appeal to the Supreme Court from a judgment of "any court of the accord with a single, finely wrought and exhaustively considered
United States" holding an Act of Congress unconstitutional in "any civil procedure. This procedure is an integral part of the constitutional
action, suit, or proceeding" to which the United States or any of its design for the separation of powers. Pp. 462 U. S. 944-951.
agencies is a party. A court of appeals is "a court of the United States"
for purposes of § 1252, the proceeding below was a "civil action, suit, (b) Here, the action taken by the House pursuant to § 244(c)(2) was
or proceeding," the INS is an agency of the United States and was a essentially legislative in purpose and effect, and thus was subject to
party to the proceeding below, and the judgment below held an Act of the procedural requirements of Art. I, § 7, for legislative action:
Congress unconstitutional. Moreover, for purposes of deciding whether passage by a majority of both Houses and presentation to the
the INS was "any party" within the grant of appellate jurisdiction in § President. The one-House veto operated to overrule the Attorney
1252, the INS was sufficiently aggrieved by the Court of Appeals' General and mandate Chadha's deportation. The veto's legislative
decision prohibiting it from taking action it would otherwise take. An character is confirmed by the character of the congressional action it
agency's status as an aggrieved party under § 1252 is not altered by supplants; i.e., absent the veto provision of § 244(c)(2), neither the
the fact that the Executive may agree with the holding that the statute House nor the Senate, or both acting together, could effectively
in question is unconstitutional. Pp. 462 U. S. 929-931. require the Attorney General to deport an alien once the Attorney
General, in the exercise of legislatively
2. Section 244(c)(2) is severable from the remainder of § 244. Section
406 of the Act provides that, if any particular provision of the Act is Page 462 U. S. 922
held invalid, the remainder of the Act shall not be affected. This gives
rise to a presumption that Congress did not intend the validity of the
delegated authority, had determined that the alien should remain in
Act as a whole, or any part thereof, to depend upon whether the veto
the United States. Without the veto provision, this could have been
clause of § 244(c)(2) was invalid. This presumption is supported by §
achieved only by legislation requiring deportation. A veto by one House
244's legislative history. Moreover, a provision is further presumed
under § 244(c)(2) cannot be justified as an attempt at amending the
severable if what remains after severance is fully operative as a law.
standards set out in § 244(a)(1), or as a repeal of § 244 as applied to
Here, § 244 can survive as a "fully operative" and workable
Chadha. The nature of the decision implemented by the one-House
administrative mechanism without the one-House veto. Pp. 462 U. S.
veto further manifests its legislative character. Congress must abide by
931-935.
its delegation of authority to the Attorney General until that delegation
is legislatively altered or revoked. Finally, the veto's legislative
3. Chadha has standing to challenge the constitutionality of § 244(c) character is confirmed by the fact that, when the Framers intended to
(2), since he has demonstrated "injury in fact and a substantial authorize either House of Congress to act alone and outside of its
likelihood that the judicial relief requested will prevent or redress the prescribed bicameral legislative role, they narrowly and precisely
claimed injury." Duke Power Co. v. Carolina Environmental Study defined the procedure for such action in the Constitution. Pp. 462 U. S.
Group, Inc., 438 U. S. 59, 438 U. S. 79. Pp. 462 U. S. 935-936. 951-959.

634 F.2d 408, affirmed.

BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, be submitted on the first day of each calendar month in which
MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. Congress is in session."
POWELL, J., filed an opinion concurring in the judgment, post, p. 462
U. S. 959. WHITE, J., filed a dissenting opinion, post, p. 462 U. S. 967.
Once the Attorney General's recommendation for suspension of
REHNQUIST, J., filed a dissenting opinion, in which WHITE, J.,
Chadha's deportation was conveyed to Congress, Congress had the
joined, post, p. 462 U. S. 1013.
power under § 244(c)(2) of the Act, 8 U.S.C. § 1254(c)(2), to veto
[Footnote 2] the Attorney General's determination that Chadha should
Page 462 U. S. 923 not be deported. Section 244(c)(2) provides:

CHIEF JUSTICE BURGER delivered the opinion of the Court. "(2) In the case of an alien specified in paragraph (1) of subsection (a)
of this subsection -- "
We granted certiorari in Nos. 80-2170 and 80-2171, and postponed
consideration of the question of jurisdiction in No. 80-1832. Each "if during the session of the Congress at which a case is reported, or
presents a challenge to the constitutionality of the provision in § prior to the close of the session of the Congress next following the
244(c)(2) of the Immigration and Nationality Act, 66 Stat. 216, as session at which a case is reported, either the Senate or the House of
amended, 8 U.S.C. § 1254(c)(2), authorizing one House of Congress, Representatives passes a resolution stating in substance that it does
by resolution, to invalidate the decision of the Executive Branch, not favor the suspension of such deportation, the Attorney General
pursuant to authority delegated by Congress to the Attorney General shall thereupon deport such alien or authorize the alien's voluntary
of the United States, to allow a particular deportable alien to remain in departure at his own expense under the order of deportation in the
the United States. 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. "
I

Page 462 U. S. 926

Chadha is an East Indian who was born in Kenya and holds a British
passport. He was lawfully admitted to the United States in 1966 on a
nonimmigrant student visa. His visa expired on June 30, 1972. On The June 25, 1974, order of the Immigration Judge suspending
October 11, 1973, the District Director of the Immigration and Chadha's deportation remained outstanding as a valid order for a year
Naturalization Service ordered Chadha to show cause why he should and a half. For reasons not disclosed by the record, Congress did not
not be deported for having "remained in the United States for a longer exercise the veto authority reserved to it under § 244(c)(2) until the
time than permitted." App. 6. Pursuant to § 242(b) of the Immigration first session of the 94th Congress. This was the final session in which
and Nationality Act (Act), 8 U.S.C. § 1252(b), a deportation hearing Congress, pursuant to § 244(c)(2), could act to veto the Attorney
was held before an Immigration Judge on January 11, 1974. Chadha General's determination that Chadha should not be deported. The
conceded that he was deportable for overstaying his visa, and the session ended on December 19, 1975. 121 Cong.Rec. 42014, 42277
hearing was adjourned to enable him to file an application for (1975). Absent congressional action, Chadha's deportation proceedings
suspension of deportation under § 244(a)(1) of the Act, 8 U.S.C. § would have been canceled after this date and his status adjusted to
1254(a)(1). Section 244(a)(1), at the time in question, provided: that of a permanent resident alien. See 8 U.S.C. § 1254(d).

"As hereinafter prescribed in this section, the Attorney General may, in On December 12, 1975, Representative Eilberg, Chairman of the
his discretion, suspend deportation and adjust the status to that of an Judiciary Subcommittee on Immigration, Citizenship, and International
alien lawfully admitted for permanent residence, in the case of an alien Law, introduced a resolution opposing "the granting of permanent
who applies to the Attorney General for suspension of deportation and residence in the United States to [six] aliens," including Chadha. H.Res.
-- " 926, 94th Cong., 1st Sess.; 121 Cong Rec. 40247 (1975). The
resolution was referred to the House Committee on the Judiciary. On
December 16, 1975, the resolution was discharged from further
"(1) is deportable under any law of the United States except the
consideration by the House Committee on the Judiciary and submitted
provisions specified in paragraph (2) of this subsection; has been
to the House of Representatives for a vote. 121 Cong.Rec. 40800. The
physically present in the United
resolution had not been printed and was not made available to other
Members of the House prior to or at the time it was voted on. Ibid. So
Page 462 U. S. 924 far as the record before us shows, the House consideration of the
resolution was based on Representative Eilberg's statement from the
States for a continuous period of not less than seven years floor that
immediately preceding the date of such application, and proves that
during all of such period he was and is a person of good moral "[i]t was the feeling of the committee, after reviewing 340 cases, that
character; and is a person whose deportation would, in the opinion of the aliens contained in the resolution [Chadha and five others] did not
the Attorney General, result in extreme hardship to the alien or to his meet these statutory requirements, particularly as it relates to
spouse, parent, or child, who is a citizen of the United States or an hardship; and it is the opinion of the committee that their deportation
alien lawfully admitted for permanent residence. [Footnote 1]" should not be suspended."

After Chadha submitted his application for suspension of deportation, Ibid.

the deportation hearing was resumed on February 7, 1974. On the
basis of evidence adduced at the hearing, affidavits submitted with the
Page 462 U. S. 927
application, and the results of a character investigation conducted by
the INS, the Immigration Judge, on June 25, 1974, ordered that
Chadha's deportation be suspended. The Immigration Judge found The resolution was passed without debate or recorded vote. [Footnote
that Chadha met the requirements of § 244(a)(1): he had resided 3] Since the House action was pursuant to § 244(c)(2), the resolution
continuously in the United States for over seven years, was of good was not treated as an Art. I legislative act; it was not
moral character, and would suffer "extreme hardship" if deported.
Page 462 U. S. 928
Pursuant to § 244(c)(1) of the Act, 8 U.S.C. § 1254(c)(1), the
Immigration Judge suspended Chadha's deportation and a report of
submitted to the Senate or presented to the President for his action.
the suspension was transmitted to Congress. Section 244(c)(1)
provides:
After the House veto of the Attorney General's decision to allow
Chadha to remain in the United States, the Immigration Judge
"Upon application by any alien who is found by the Attorney General to
reopened the deportation proceedings to implement the House order
meet the requirements of subsection (a) of this section the Attorney
deporting Chadha. Chadha moved to terminate the proceedings on the
General may in his discretion suspend deportation of such alien. If the
ground that § 244(c)(2) is unconstitutional. The Immigration Judge
deportation of any alien is suspended under the provisions of this
held that he had no authority to rule on the constitutional validity of §
subsection, a complete and detailed statement of the
244(c)(2). On November 8, 1976, Chadha was ordered deported
pursuant to the House action.
Page 462 U. S. 925
Chadha appealed the deportation order to the Board of Immigration
facts and pertinent provisions of law in the case shall be reported to Appeals, again contending that § 244(c)(2) is unconstitutional. The
the Congress with the reasons for such suspension. Such reports shall Board held that it had "no power to declare unconstitutional an act of
Congress," and Chadha's appeal was dismissed. App. 55-56.
Pursuant to § 106(a) of the Act, 8 U.S.C. § 1105a(a), Chadha filed a from taking action it would otherwise take. It is apparent that
petition for review of the deportation order in the United States Court Congress intended that
of Appeals for the Ninth Circuit. The Immigration and Naturalization
Service agreed with Chadha's position before the Court of Appeals and
Page 462 U. S. 931
joined him in arguing that § 244(c)(2) is unconstitutional. In light of
the importance of the question, the Court of Appeals invited both the
Senate and the House of Representatives to file briefs amici curiae. this Court take notice of cases that meet the technical prerequisites of
§ 1252; in other cases where an Act of Congress is held
unconstitutional by a federal court, review in this Court is available
After full briefing and oral argument, the Court of Appeals held that the
only by writ of certiorari. When an agency of the United States is a
House was without constitutional authority to order Chadha's
party to a case in which the Act of Congress it administers is held
deportation; accordingly it directed the Attorney General "to cease and
unconstitutional, it is an aggrieved party for purposes of taking an
desist from taking any steps to deport this alien based upon the
appeal under § 1252. The agency's status as an aggrieved party under
resolution enacted by the House of Representatives." 634 F.2d 408,
§ 1252 is not altered by the fact that the Executive may agree with the
436 (1980). The essence of its holding was that § 244(c)(2) violates
holding that the statute in question is unconstitutional. The appeal in
the constitutional doctrine of separation of powers.
No. 80-1832 is therefore properly before us. [Footnote 6]

We granted certiorari in Nos. 80-2170 and 80-2171, and postponed

B
consideration of our jurisdiction over the appeal in No. 80-1832, 454
U.S. 812 (1981), and we now affirm.
Severability
Page 462 U. S. 929
Congress also contends that the provision for the one-House veto in §
244(c)(2) cannot be severed from § 244. Congress argues that, if the
II
provision for the one-House veto is held unconstitutional, all of § 244
must fall. If § 244 in its entirety is violative of the Constitution, it
Before we address the important question of the constitutionality of follows that the Attorney General has no authority to suspend
the one-House veto provision of § 244(c)(2), we first consider several Chadha's deportation under § 244(a)(1), and Chadha would be
challenges to the authority of this Court to resolve the issue raised. deported. From this, Congress argues that Chadha lacks standing to
challenge the constitutionality of the one-House veto provision,
because he could receive no relief even if his constitutional challenge
A
proves successful. [Footnote 7]

Appellate Jurisdiction
Only recently this Court reaffirmed that the invalid portions of a statute
are to be severed
Both Houses of Congress [Footnote 4] contend that we are without
jurisdiction under 28 U.S.C. § 1252 to entertain the INS appeal in No.
"'[u]nless it is evident that
80-1832. Section 1252 provides:

Page 462 U. S. 932

"Any party may appeal to the Supreme Court from an interlocutory or
final judgment, decree or order of any court of the United States, the
United States District Court for the District of the Canal Zone, the the Legislature would not have enacted those provisions which are
District Court of Guam and the District Court of the Virgin Islands and within its power, independently of that which is not.'"
any court of record of Puerto Rico, holding an Act of Congress
unconstitutional in any civil action, suit, or proceeding to which the
Buckley v. Valeo, 424 U. S. 1, 424 U. S. 108 (1976), quoting Champlin
United States or any of its agencies, or any officer or employee
Refining Co. v. Corporation Comm'n of Oklahoma, 286 U. S. 210, 286
thereof, as such officer or employee, is a party."
U. S. 234 (1932). Here, however, we need not embark on that elusive
inquiry, since Congress itself has provided the answer to the question
Parker v. Levy, 417 U. S. 733, 417 U. S. 742, n. 10 (1974), makes of severability in § 406 of the Immigration and Nationality Act, note
clear that a court of appeals is a "court of the United States" for following 8 U.S.C. § 1101, which provides:
purposes of § 1252. It is likewise clear that the proceeding below was
a "civil action, suit, or proceeding," that the INS is an agency of the
"If any particular provision of this Act, or the application thereof to any
United States and was a party to the proceeding below, and that that
person or circumstance, is held invalid, the remainder of the Act and
proceeding held an Act of Congress -- namely, the one-House veto
the application of such provision to other persons or circumstances
provision in § 244(c)(2) --unconstitutional. The express requisites for
shall not be affected thereby."
an appeal under § 1252, therefore, have been met.

(Emphasis added.) This language is unambiguous, and gives rise to a

Page 462 U. S. 930
presumption that Congress did not intend the validity of the Act as a
whole, or of any part of the Act, to depend upon whether the veto
In motions to dismiss the INS appeal, the congressional parties clause of § 244(c)(2) was invalid. The one-House veto provision in §
[Footnote 5] direct attention, however, to our statement that "[a] 244(c)(2) is clearly a "particular provision" of the Act as that language
party who receives all that he has sought generally is not aggrieved by is used in the severability clause. Congress clearly intended "the
the judgment affording the relief and cannot appeal from it." Deposit remainder of the Act" to stand if "any particular provision" were held
Guaranty National Bank v. Roper, 445 U. S. 326, 445 U. S. 333 (1980). invalid. Congress could not have more plainly authorized the
Here, the INS sought the invalidation of § 244(c)(2), and the Court of presumption that the provision for a one-House veto in § 244(c)(2) is
Appeals granted that relief. Both Houses contend that the INS has severable from the remainder of § 244 and the Act of which it is a
already received what it sought from the Court of Appeals, is not an part. See Electric Bond & Share Co. v. SEC, 303 U. S. 419, 303 U. S.
aggrieved party, and therefore cannot appeal from the decision of the 434 (1938).
Court of Appeals. We cannot agree.
The presumption as to the severability of the one-House veto provision
The INS was ordered by one House of Congress to deport Chadha. As in § 244(c)(2) is supported by the legislative history of § 244. That
we have set out more fully, supra, at 462 U. S. 928, the INS concluded section and its precursors supplanted the long-established pattern of
that it had no power to rule on the constitutionality of that order, and dealing with deportations like Chadha's on a case-by-case basis
accordingly proceeded to implement it. Chadha's appeal challenged through private bills. Although it may be that Congress was reluctant
that decision, and the INS presented the Executive's views on the to delegate final authority over cancellation of deportations, such
constitutionality of the House action to the Court of Appeals. But the reluctance is not sufficient to overcome the presumption of severability
INS brief to the Court of Appeals did not alter the agency's decision to raised by § 406.
comply with the House action ordering deportation of Chadha. The
Court of Appeals set aside the deportation proceedings and ordered
Page 462 U. S. 933
the Attorney General to cease and desist from taking any steps to
deport Chadha, steps that the Attorney General would have taken
were it not for that decision. The Immigration Act of 1924, ch.190, § 14, 43 Stat. 162, required the
Secretary of Labor to deport any alien who entered or remained in the
United States unlawfully. The only means by which a deportable alien
At least for purposes of deciding whether the INS is "any party" within
could lawfully remain in the United States was to have his status
the grant of appellate jurisdiction in § 1252, we hold that the INS was
altered by a private bill enacted by both Houses and presented to the
sufficiently aggrieved by the Court of Appeals decision prohibiting it
President pursuant to the procedures set out in Art. I, § 7, of the Standing
Constitution. These private bills were found intolerable by Congress. In
the debate on a 1937 bill introduced by Representative Dies to
We must also reject the contention that Chadha lacks standing
authorize the Secretary to grant permanent residence in "meritorious"
because a consequence of his prevailing will advance
cases, Dies stated:

Page 462 U. S. 936

"It was my original thought that the way to handle all these
meritorious cases was through special bills. I am absolutely convinced
as a result of what has occurred in this House that it is impossible to the interests of the Executive Branch in a separation-of-powers dispute
deal with this situation through special bills. We had a demonstration with Congress, rather than simply Chadha's private interests. Chadha
of that fact not long ago when 15 special bills were before this House. has demonstrated "injury in fact and a substantial likelihood that the
The House consumed 5 1/2 hours considering four bills, and made no judicial relief requested will prevent or redress the claimed
disposition of any of the bills." injury. . . ." Duke Power Co. v. Carolina Environmental Study Group,
Inc., 438 U. S. 59, 438 U. S. 79 (1978). If the veto provision violates
the Constitution, and is severable, the deportation order against
81 Cong.Rec. 5542 (1937). Representative Dies' bill passed the
Chadha will be canceled. Chadha therefore has standing to challenge
House, id. at 5574, but did not come to a vote in the Senate. 83
the order of the Executive mandated by the House veto.
Cong.Rec. 8992-8996 (1938).

D
Congress first authorized the Attorney General to suspend the
deportation of certain aliens in the Alien Registration Act of 1940, ch.
439, § 20, 54 Stat. 671. That Act provided that an alien was to be Alternative Relief
deported, despite the Attorney General's decision to the contrary, if
both Houses, by concurrent resolution, disapproved the suspension. It is contended that the Court should decline to decide the
constitutional question presented by these cases because Chadha may
In 1948, Congress amended the Act to broaden the category of aliens have other statutory relief available to him. It is argued that, since
eligible for suspension of deportation. In addition, however, Congress Chadha married a United States citizen on August 10, 1980, it is
limited the authority of the Attorney General to suspend deportations possible that other avenues of relief may be open under §§ 201(b),
by providing that the Attorney General could not cancel a deportation 204, and 245 of the Act, 8 U.S.C. §§ 1151(b), 1154, and 1255. It is
unless both Houses affirmatively voted by concurrent resolution to true that Chadha may be eligible for classification as an "immediate
approve the Attorney General's action. A ct of July 1, 1948, relative" and, as such, could lawfully be accorded permanent
residence. Moreover, in March 1980, just prior to the decision of the
Court of Appeals in these cases, Congress enacted the Refugee Act of
Page 462 U. S. 934
1980, Pub.L. 96-212, 94 Stat. 102, under which the Attorney General is
authorized to grant asylum, and then permanent residence, to any
ch. 783, 62 Stat. 1206. The provision for approval by concurrent alien who is unable to return to his country of nationality because of "a
resolution in the 1948 Act proved almost as burdensome as private well-founded fear of persecution on account of race."
bills. Just one year later, the House Judiciary Committee, in support of
the predecessor to § 244(c)(2), stated in a Report:
It is urged that these two intervening factors constitute a prudential
bar to our consideration of the constitutional question presented in
"In the light of experience of the last several months, the committee these cases. See Ashwander v. TVA, 297 U. S. 288, 297 U. S.
came to the conclusion that the requirement of affirmative action by 346 (1936) (Brandeis, J., concurring). If we could perceive merit in this
both Houses of the Congress in many thousands of individual cases contention, we might well seek to avoid deciding the constitutional
which are submitted by the Attorney General every year is not claim advanced. But, at most,
workable, and places upon the Congress and particularly on the
Committee on the Judiciary responsibilities which it cannot assume.
Page 462 U. S. 937
The new responsibilities placed upon the Committee on the Judiciary
[by the concurrent resolution mechanism] are of purely administrative
nature, and they seriously interfere with the legislative work of the these other avenues of relief are speculative. It is by means certain,
Committee on the Judiciary and would, in time, interfere with the for example, that Chadha's classification an immediate relative would
legislative work of the House." result in the adjustment Chadha's status from nonimmigrant to
permanent resident. See Menezes v. INS, 601 F.2d 1028 (CA9 1979).
If Chadha is successful in his present challenge, he will not be
H.R.Rep. No. 362, 81st Cong., 1st Sess., 2 (1949).
deported, and will automatically become eligible to apply for
citizenship. [Footnote 10] A person threatened with deportation cannot
The proposal to permit one House of Congress to veto the Attorney be denied the right to challenge the constitutional validity of the
General's suspension of an alien's deportation was incorporated in the process which led to his status merely on the basis of speculation over
Immigration and Nationality Act of 1952, Pub.L. 414, § 244(a), 66 Stat. the availability of other forms of relief.
214. Plainly, Congress' desire to retain a veto in this area cannot be
considered in isolation, but must be viewed in the context of Congress'
E
irritation with the burden of private immigration bills. This legislative
history is not sufficient to rebut the presumption of severability raised
by § 406, because there is insufficient evidence that Congress would Jurisdiction
have continued to subject itself to the onerous burdens of private bills
had it known that § 244(c)(2) would be held unconstitutional. It is contended that the Court of Appeals lacked jurisdiction under §
106(a) of the Act, 8 U.S.C. § 1105a(a). That section provides that a
A provision is further presumed severable if what remains after petition for review in the Court of Appeals
severance "is fully operative as a law." Champlin Refining Co. v.
Corporation Comm'n, supra, at 286 U. S. 234. There can be no doubt "shall be the sole and exclusive procedure for the judicial review of all
that § 244 is "fully operative" and workable administrative machinery final orders of deportation . . . made against aliens within the United
without the veto provision in § 244(c)(2). Entirely independent of the States pursuant to administrative proceedings under section 242(b) of
one-House veto, the this Act."

Page 462 U. S. 935 Congress argues that the one-House veto authorized by § 244(c)(2)
takes place outside the administrative proceedings conducted under §
administrative process enacted by Congress authorizes the Attorney 242(b), and that the jurisdictional grant contained in § 106(a) does not
General to suspend an alien's deportation under § 244(a). Congress' encompass Chadha's constitutional challenge.
oversight of the exercise of this delegated authority is preserved, since
all such suspensions will continue to be reported to it under § 244(c) In Cheng Fan Kwok v. INS, 392 U. S. 206, 392 U. S. 216 (1968), this
(1). Absent the passage of a bill to the contrary, [Footnote 8] Court held that
deportation proceedings will be canceled when the period specified in
§ 244(c)(2) has expired. [Footnote 9] Clearly, § 244 survives as a
workable administrative mechanism without the one-House veto. "§ 106(a) embrace[s] only those determinations

C Page 462 U. S. 938

made during a proceeding conducted under § 242(b), including those unconstitutional. See Cheng Fan Kwok v. INS, 392 U.S. at 392 U. S.
determinations made incident to a motion to reopen such 210, n. 9; United States v. Lovett, 328 U. S. 303 (1946).
proceedings."
G
It is true that one court has read Cheng Fan Kwok to preclude appeals
similar to Chadha's. See Dastmalchi v. INS, 660 F.2d 880 (CA3 1981).
Political Question
[Footnote 11] However, we agree with the Court of Appeals in these
cases that the term "final orders" in § 106(a) "includes all matters on
which the validity of the final order is contingent, rather than only It is also argued that these cases present a nonjusticiable political
those determinations actually made at the hearing." 634 F.2d at 412. question, because Chadha is merely challenging Congress' authority
Here, Chadha's deportation stands or falls on the validity of the under the Naturalization Clause, U.S.Const., Art. I, § 8, cl. 4, and the
challenged veto; the final order of deportation was entered against Necessary and Proper Clause, U.S.Const., Art. I, § 8, cl. 18. It is
Chadha only to implement the action of the House of Representatives. argued that Congress' Art. I power "To establish an uniform Rule of
Although the Attorney General was satisfied that the House action was Naturalization," combined with the Necessary and Proper Clause,
invalid and that it should not have any effect on his decision to grants it unreviewable authority over the regulation of aliens. The
suspend deportation, he appropriately let the controversy take its plenary authority of Congress over aliens under Art. I, § 8, cl. 4, is not
course through the courts. open to question, but what is

This Court's decision in Cheng Fan Kwok, supra, does not bar Chadha's Page 462 U. S. 941
appeal. There, after an order of deportation had been entered, the
affected alien requested the INS to stay the execution of that order. challenged here is whether Congress has chosen a constitutionally
When that request was denied, the alien sought review in the Court of permissible means of implementing that power. As we made clear
Appeals under § 106(a). This Court's holding that the Court of Appeals in Buckley v. Valeo, 424 U. S. 1 (1976):
lacked jurisdiction was based on the fact that the alien "did not attack
the deportation order itself, but instead [sought] relief not inconsistent
with it.'" 392 U.S. at 392 U. S. 213, quoting "Congress has plenary authority in all cases in which it has substantive
legislative jurisdiction, McCulloch v. Maryland, 4 Wheat. 316 (1819), so
long as the exercise of that authority does not offend some other
Page 462 U. S. 939 constitutional restriction."

Mui v. Esperdy, 371 F.2d 772, 777 (CA2 1966). Here, in contrast, Id. at 424 U. S. 132.
Chadha directly attacks the deportation order itself, and the relief he
seeks -- cancellation of deportation -- is plainly inconsistent with the
deportation order. Accordingly, the Court of Appeals had jurisdiction A brief review of those factors which may indicate the presence of a
under § 106(a) to decide these cases. nonjusticiable political question satisfies us that our assertion of
jurisdiction over these cases does no violence to the political question
doctrine. As identified in Baker v. Carr, 369 U. S. 186, 369 U. S.
F 217 (1962), a political question may arise when any one of the
following circumstances is present:
Case or Controversy
"a textually demonstrable constitutional commitment of the issue to a
It is also contended that this is not a genuine controversy but "a coordinate political department; or a lack of judicially discoverable and
friendly, nonadversary, proceeding," Ashwander v. TVA, 297 U.S. manageable standards for resolving it; or the impossibility of deciding
at 297 U. S. 346 (Brandeis, J., concurring), upon which the Court without an initial policy determination of a kind clearly for nonjudicial
should not pass. This argument rests on the fact that Chadha and the discretion; or the impossibility of a court's undertaking independent
INS take the same position on the constitutionality of the one-House resolution without expressing lack of the respect due coordinate
veto. But it would be a curious result if, in the administration of justice, branches of government; or an unusual need for unquestioning
a person could be denied access to the courts because the Attorney adherence to a political decision already made; or the potentiality of
General of the United States agreed with the legal arguments asserted embarrassment from multifarious pronouncements by various
by the individual. departments on one question."

A case or controversy is presented by these cases. First, from the time Congress apparently directs its assertion of nonjusticiability to the first
of Congress' formal intervention, see n 5, supra, the concrete of the Baker factors by asserting that Chadha's claim is "an assault on
adverseness is beyond doubt. Congress is both a proper party to the legislative authority to enact Section 244(c)(2)." Brief for Petitioner
defend the constitutionality of § 244(c)(2) and a proper petitioner in No. 80-2170, p. 48. But if this turns the question into a political
under 28 U.S.C. § 1254(1). Second, prior to Congress' intervention, question, virtually every challenge to the constitutionality of a statute
there was adequate Art. III adverseness even though the only parties would be a political question. Chadha indeed argues that one House of
were the INS and Chadha. We have already held that the INS's Congress cannot constitutionally veto the Attorney General's decision
agreement with the Court of Appeals' decision that § 244(c)(2) is to allow him to remain in this country. No policy underlying the political
unconstitutional does not affect that agency's "aggrieved" status for question doctrine
purposes of appealing that decision under 28 U.S.C. § 1252, see
supra at 462 U. S. 929-931. For similar reasons, the INS's agreement Page 462 U. S. 942
with Chadha's position does not alter the fact that the INS would have
deported Chadha absent the Court of Appeals' judgment. We agree
with the Court of Appeals that suggests that Congress or the Executive, or both acting in concert and
in compliance with Art. I, can decide the constitutionality of a statute;
that is a decision for the courts. [Footnote 13]
"Chadha has asserted a concrete controversy, and our decision will
have real meaning: if we rule for Chadha, he will not be deported; if
we uphold § 244(c)(2), Other Baker factors are likewise inapplicable to this case. As we
discuss more fully below, Art. I provides the "judicially discoverable
and manageable standards" of Baker for resolving the question
Page 462 U. S. 940 presented by these cases. Those standards forestall reliance by this
Court on nonjudicial "policy determinations" or any showing of
the INS will execute its order and deport him." disrespect for a coordinate branch. Similarly, if Chadha's arguments
are accepted, § 244(c)(2) cannot stand, and, since the constitutionality
of that statute is for this Court to resolve, there is no possibility of
634 F.2d at 419. [Footnote 12]
"multifarious pronouncements" on this question.

Of course, there may be prudential, as opposed to Art. III, concerns

It is correct that this controversy may, in a sense, be termed
about sanctioning the adjudication of these cases in the absence of
"political." But the presence of constitutional issues with significant
any participant supporting the validity of § 244(c)(2). The Court of
political overtones does not automatically invoke
Appeals properly dispelled any such concerns by inviting and accepting
briefs from both Houses of Congress. We have long held that Congress
is the proper party to defend the validity of a statute when an agency Page 462 U. S. 943
of government, as a defendant charged with enforcing the statute,
agrees with plaintiffs that the statute is inapplicable or the political question doctrine. Resolution of litigation challenging the
constitutional authority of one of the three branches cannot be evaded
by courts because the issues have political implications in the sense statutes; and from 1960-69, forty-nine. From the year 1970 through
urged by Congress. Marbury v. Madison, 1 Cranch 137 (1803), was 1975, at least one hundred sixty-three such provisions
also a "political" case, involving as it did claims under a judicial
commission alleged to have been duly signed by the President but not
Page 462 U. S. 945
delivered. But

were included in eighty-nine laws."

"courts cannot reject as 'no law suit' a bona fide controversy as to
whether some action denominated 'political' exceeds constitutional
authority." Abourezk, The Congressional Veto: A Contemporary Response to
Executive Encroachment on Legislative Prerogatives, 52 Ind.L.Rev.
323, 324 (1977). See also Appendix to JUSTICE WHITE's
Baker v. Carr, supra, at 369 U. S. 217.
dissent, post at 462 U. S. 1003. JUSTICE WHITE undertakes to make a
case for the proposition that the one-House veto is a useful "political
In Field v. Clark, 143 U. S. 649 (1892), this Court addressed and invention," post at 462 U. S. 972, and we need not challenge that
resolved the question whether assertion. We can even concede this utilitarian argument, although the
long-range political wisdom of this "invention" is arguable. It has been
vigorously debated, and it is instructive to compare the views of the
"a bill signed by the Speaker of the House of Representatives and by
protagonists. See, e.g., Javits & Klein, Congressional Oversight and the
the President of the Senate, presented to and approved by the
Legislative Veto: A Constitutional Analysis, 52 N.Y.U.L.Rev. 455 (1977),
President of the United States, and delivered by the latter to the
and Martin, The Legislative Veto and the Responsible Exercise of
Secretary of State, as an act passed by Congress, does not become a
Congressional Power, 68 Va.L.Rev. 253 (1982). But policy arguments
law of the United States if it had not in fact been passed by
supporting even useful "political inventions" are subject to the
Congress. . . ."
demands of the Constitution, which defines powers and, with respect
to this subject, sets out just how those powers are to be exercised.
". . . We recognize, on one hand, the duty of this court, from the
performance of which it may not shrink, to give full effect to the
Explicit and unambiguous provisions of the Constitution prescribe and
provisions of the Constitution relating to the enactment of laws that
define the respective functions of the Congress and of the Executive in
are to operate wherever the authority and jurisdiction of the United
the legislative process. Since the precise terms of those familiar
States extend. On the other hand, we cannot be unmindful of the
provisions are critical to the resolution of these cases, we set them out
consequences that must result if this court should feel obliged, in
verbatim. Article I provides:
fidelity to the Constitution, to declare that an enrolled bill, on which
depend public and private interests of vast magnitude, and which has
been . . . deposited in the public archives, as an act of Congress, . . . "All legislative Powers herein granted shall be vested in a Congress of
did not become a law." the United States, which shall consist of a Senate and House of
Representatives."
Id. at 143 U. S. 669-670 (emphasis in original).
Art. I, § 1. (Emphasis added.)
H
"Every Bill which shall have passed the House of
Representatives and the Senate, shall, before it becomes a law, be
The contentions on standing and justiciability have been fully
presented to the President of the United States. . . ."
examined, and we are satisfied the parties are properly before us. The
important issues have been fully briefed and
Art. I, 7, cl. 2. (Emphasis added.)
Page 462 U. S. 944
"Every Order, Resolution, or Vote to which the Concurrence of the
Senate and House of Representatives may be necessary (except on a
twice argued, see 458 U.S. 1120 (1982). The Court's duty in these
question of Adjournment)
cases, as Chief Justice Marshall declared in Cohens v. Virginia, 6
Wheat. 264, 19 U. S. 404 (1821), is clear:
Page 462 U. S. 946
"Questions may occur which we would gladly avoid; but we cannot
avoid them. All we can do is to exercise our best judgment, and shall be presented to the President of the United States; and before
conscientiously to perform our duty." 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
III
prescribed in the Case of a Bill."

A
Art. I, § 7, cl. 3. (Emphasis added.)

We turn now to the question whether action of one House of Congress

These provisions of Art. I are integral parts of the constitutional design
under § 244(c)(2) violates strictures of the Constitution. We begin, of
for the separation of powers. We have recently noted that
course, with the presumption that the challenged statute is valid. Its
wisdom is not the concern of the courts; if a challenged action does
not violate the Constitution, it must be sustained: "[t]he principle of separation of powers was not simply an abstract
generalization in the minds of the Framers: it was woven into the
document that they drafted in Philadelphia in the summer of 1787."
"Once the meaning of an enactment is discerned and its
constitutionality determined, the judicial process comes to an end. We
do not sit as a committee of review, nor are we vested with the power Buckley v. Valeo, 424 U.S. at 424 U. S. 124. Just as we relied on the
of veto." textual provision of Art. II, § 2, cl. 2, to vindicate the principle of
separation of powers in Buckley, we see that the purposes underlying
the Presentment Clauses, Art. I, § 7, cls. 2, 3, and the bicameral
TVA v. Hill, 437 U. S. 153, 437 U. S. 194-195 (1978).
requirement of Art. I, § 1, and § 7, cl. 2, guide our resolution of the
important question presented in these cases. The very structure of the
By the same token, the fact that a given law or procedure is efficient, Articles delegating and separating powers under Arts. I, II, and III
convenient, and useful in facilitating functions of government, standing exemplifies the concept of separation of powers, and we now turn to
alone, will not save it if it is contrary to the Constitution. Convenience Art. I.
and efficiency are not the primary objectives -- or the hallmarks -- of
democratic government, and our inquiry is sharpened, rather than
B
blunted, by the fact that congressional veto provisions are appearing
with increasing frequency in statutes which delegate authority to
executive and independent agencies: The Presentment Clauses

"Since 1932, when the first veto provision was enacted into law, 295 The records of the Constitutional Convention reveal that the
congressional veto-type procedures have been inserted in 196 different requirement that all legislation be presented to the President before
statutes as follows: from 1932 to 1939, five statutes were affected; becoming law was uniformly accepted by the Framers. [Footnote 14]
from 1940-49, nineteen statutes; between 1950-59, thirty-four Presentment to the President and the Presidential
Page 462 U. S. 947 debates on the need for a bicameral legislature, James Wilson, later to
become a Justice of this Court, commented:
veto were considered so imperative that the draftsmen took special
pains to assure that these requirements could not be circumvented. "Despotism comes on mankind in different shapes, sometimes in an
During the final debate on Art. I, § 7, cl. 2, James Madison expressed Executive, sometimes in a military, one. Is there danger of a
concern that it might easily be evaded by the simple expedient of Legislative despotism? Theory & practice both proclaim it. If the
calling a proposed law a "resolution" or "vote," rather than a "bill." 2 Legislative authority be not restrained, there can be neither liberty nor
Farrand 301-302. As a consequence, Art. I, § 7, cl. 3, supra at 462 U. stability; and it can only be restrained by dividing it within itself, into
S. 945-946, was added. 2 Farrand 304-305. distinct and independent branches. In a single house there is no check
but the inadequate one of the virtue & good sense of those who
compose it."
The decision to provide the President with a limited and qualified
power to nullify proposed legislation by veto was based on the
profound conviction of the Framers that the powers conferred on 1 Farrand 254.
Congress were the powers to be most carefully circumscribed. It is
beyond doubt that lawmaking was a power to be shared by both
Hamilton argued that a Congress comprised of a single House was
Houses and the President. In The Federalist No. 73 (H. Lodge ed.
antithetical to the very purposes of the Constitution. Were the Nation
1888), Hamilton focused on the President's role in making laws:
to adopt a Constitution providing for only one legislative organ, he
warned:
"If even no propensity had ever discovered itself in the legislative body
to invade the rights of the Executive, the rules of just reasoning and
"[W]e shall finally accumulate, in a single body, all the most important
theoretic propriety would of themselves teach us that the one ought
prerogatives of sovereignty, and thus entail upon our posterity one of
not to be left to the mercy of the other, but ought to possess a
the most execrable forms of government that human infatuation ever
constitutional and effectual power of self-defence."
contrived. Thus we should create in reality that very tyranny which the
adversaries of the new Constitution either are, or affect to be,
Id. at 458. See also The Federalist No. 51. In his Commentaries on the solicitous to avert."
Constitution, Joseph Story makes the same point. 1 J. Story,
Commentaries on the Constitution of the United States 614-615 (3d
The Federalist No. 22, p. 135 (H. Lodge ed. 1888).
ed. 1858).

This view was rooted in a general skepticism regarding the fallibility of

The President's role in the lawmaking process also reflects the
human nature later commented on by Joseph Story:
Framers' careful efforts to check whatever propensity a particular
Congress might have to enact oppressive, improvident,
"Public bodies, like private persons, are occasionally under the
dominion of strong passions and excitements; impatient, irritable, and
Page 462 U. S. 948
impetuous. . . . If [a legislature]

or ill-considered measures. The President's veto role in the legislative

Page 462 U. S. 950
process was described later during public debate on ratification:

feels no check but its own will, it rarely has the firmness to insist upon
"It establishes a salutary check upon the legislative body, calculated to
holding a question long enough under its own view to see and mark it
guard the community against the effects of faction, precipitancy, or of
in all its bearings and relations on society."
any impulse unfriendly to the public good, which may happen to
influence a majority of that body."
1 Story, supra, at 383-384. These observations are consistent with
what many of the Framers expressed, none more cogently than
". . . The primary inducement to conferring the power in question upon
Madison in pointing up the need to divide and disperse power in order
the Executive is to enable him to defend himself; the secondary one is
to protect liberty:
to increase the chances in favor of the community against the passing
of bad laws, through haste, inadvertence, or design."
"In republican government, the legislative authority necessarily
predominates. The remedy for this inconveniency is to divide the
The Federalist No. 73, supra, at 458 (A. Hamilton). See also The
legislature into different branches, and to render them, by different
Pocket Veto Case, 279 U. S. 655, 279 U. S. 678 (1929); Myers v.
modes of election and different principles of action, as little connected
United States, 272 U. S. 52, 272 U. S. 123 (1926). The Court also has
with each other as the nature of their common functions and their
observed that the Presentment Clauses serve the important purpose of
common dependence on the society will admit."
assuring that a "national" perspective is grafted on the legislative
process:
The Federalist No. 51, p. 324 (H. Lodge ed. 1888) (sometimes
attributed to "Hamilton or Madison" but now generally attributed to
"The President is a representative of the people just as the members
Madison). See also The Federalist No. 62.
of the Senate and of the House are, and it may be, at some times, on
some subjects, that the President elected by all the people is rather
more representative of them all than are the members of either body However familiar, it is useful to recall that, apart from their fear that
of the Legislature, whose constituencies are local and not countrywide. special interests could be favored at the expense of public needs, the
. . ." Framers were also concerned, although not of one mind, over the
apprehensions of the smaller states. Those states feared a
commonality of interest among the larger states would work to their
Myers v. United States, supra, at 272 U. S. 123.
disadvantage; representatives of the larger states, on the other hand,
were skeptical of a legislature that could pass laws favoring a minority
C of the people. See 1 Farrand 176-177, 484-491. It need hardly be
repeated here that the Great Compromise, under which one House
was viewed as representing the people and the other the states,
Bicameralism
allayed the fears of both the large and small states. [Footnote 15]

The bicameral requirement of Art. I, § § 1, 7, was of scarcely less

Page 462 U. S. 951
concern to the Framers than was the Presidential veto, and indeed the
two concepts are interdependent. By providing that no law could take
effect without the concurrence of the prescribed majority of the We see therefore that the Framers were acutely conscious that the
Members of both Houses, the Framers reemphasized their belief, bicameral requirement and the Presentment Clauses would serve
already remarked essential constitutional functions. The President's participation in the
legislative process was to protect the Executive Branch from Congress
and to protect the whole people from improvident laws. The division of
Page 462 U. S. 949
the Congress into two distinctive bodies assures that the legislative
power would be exercised only after opportunity for full study and
upon in connection with the Presentment Clauses, that legislation debate in separate settings. The President's unilateral veto power, in
should not be enacted unless it has been carefully and fully considered turn, was limited by the power of two-thirds of both Houses of
by the Nation's elected officials. In the Constitutional Convention Congress to overrule a veto, thereby precluding final arbitrary action of
one person. See id. at 99-104. It emerges clearly that the prescription
for legislative action in Art. I, §§ 1, 7, represents the Framers' decision deportable aliens to remain in this country in certain specified
that the legislative power of the Federal Government be exercised in circumstances. It is not disputed that this choice to delegate authority
accord with a single, finely wrought and exhaustively considered, is precisely the kind of decision that can be implemented only in
procedure. accordance with the procedures set out in Art. I. Disagreement with
the Attorney General's decision on Chadha's deportation -- that is,
Congress' decision to deport Chadha -- no less than Congress' original
IV
choice to delegate to the Attorney General the authority to make that
decision, involves determinations of policy that Congress can
The Constitution sought to divide the delegated powers of the new implement in only one way; bicameral passage followed by
Federal Government into three defined categories, Legislative, presentment to the
Executive, and Judicial, to assure, as nearly as possible, that each
branch of government would confine itself to its assigned
Page 462 U. S. 955
responsibility. The hydraulic pressure inherent within each of the
separate Branches to exceed the outer limits of its power, even to
accomplish desirable objectives, must be resisted. President. Congress must abide by its delegation of authority until that
delegation is legislatively altered or revoked. [Footnote 19]
Although not "hermetically" sealed from one another, Buckley v.
Valeo, 424 U.S. at 424 U. S. 121, the powers delegated to the three Finally, we see that, when the Framers intended to authorize either
Branches are functionally identifiable. When any Branch acts, it is House of Congress to act alone and outside of its prescribed bicameral
presumptively exercising the power the Constitution has delegated to legislative role, they narrowly and precisely defined the procedure for
it. See J. W. Hampton & Co. v. United States, 276 U. S. 394, 276 U. S. such action. There are four provisions in the Constitution, [Footnote
406 (1928). When the Executive acts, he presumptively acts in an 20] explicit and unambiguous, by which one House may act alone with
executive or administrative capacity as defined in Art. II. And when, as the unreviewable force of law, not subject to the President's veto:
here,
(a) The House of Representatives alone was given the power to initiate
Page 462 U. S. 952 impeachments. Art. I, § 2, cl. 5;

one House of Congress purports to act, it is presumptively acting (b) The Senate alone was given the power to conduct trials following
within its assigned sphere. impeachment on charges initiated by the House, and to convict
following trial. Art. I, § 3, cl. 6;
Beginning with this presumption, we must nevertheless establish that
the challenged action under § 244(c)(2) is of the kind to which the (c) The Senate alone was given final unreviewable power to approve
procedural requirements of Art. I, § 7, apply. Not every action taken by or to disapprove Presidential appointments. Art. II, § 2, cl. 2;
either House is subject to the bicameralism and presentment
requirements of Art. I. See infra at 462 U. S. 955, and nn. 20, 21.
(d) The Senate alone was given unreviewable power to ratify treaties
Whether actions taken by either House are, in law and fact, an
negotiated by the President. Art. II, 2, cl. 2.
exercise of legislative power depends not on their form, but upon
"whether they contain matter which is properly to be regarded as
legislative in its character and effect." S.Rep. No. 1335, 54th Cong., 2d Clearly, when the Draftsmen sought to confer special powers on one
Sess., 8 (1897). House, independent of the other House, or of the President, they did
so in explicit, unambiguous terms. [Footnote 21]
Examination of the action taken here by one House pursuant to §
244(c)(2) reveals that it was essentially legislative in purpose and Page 462 U. S. 956
effect. In purporting to exercise power defined in Art. I, § 8, cl. 4, to
"establish an uniform Rule of Naturalization," the House took action These carefully defined exceptions from presentment and bicameralism
that had the purpose and effect of altering the legal rights, duties, and underscore the difference between the legislative functions of
relations of persons, including the Attorney General, Executive Branch Congress and other unilateral but important and binding one-House
officials and Chadha, all outside the Legislative Branch. Section 244(c) acts provided for in the Constitution. These exceptions are narrow,
(2) purports to authorize one House of Congress to require the explicit, and separately justified; none of them authorize the action
Attorney General to deport an individual alien whose deportation challenged here. On the contrary, they provide further support for the
otherwise would be canceled under § 244. The one-House veto conclusion that congressional authority is not to be implied, and for the
operated in these cases to overrule the Attorney General and mandate conclusion that the veto provided for in § 244(c)(2) is not authorized
Chadha's deportation; absent the House action, Chadha would remain by the constitutional design of the powers of the Legislative Branch.
in the United States. Congress has acted, and its action has altered
Chadha's status.
Since it is clear that the action by the House under § 244(c)(2) was not
within any of the express constitutional exceptions authorizing one
The legislative character of the one-House veto in these cases is House to act alone, and equally
confirmed by the character of the congressional action it supplants.
Neither the House of Representatives nor the Senate contends that,
absent the veto provision in § 244(c)(2), either of them, or both of Page 462 U. S. 957
them acting together, could effectively require the Attorney General to
deport an alien once the Attorney General, in the exercise of clear that it was an exercise of legislative power, that action was
legislatively subject to the standards prescribed in Art. I. [Footnote 22] The
bicameral requirement, the Presentment Clauses, the President's veto,
Page 462 U. S. 953 and Congress' power to override a veto were intended to erect
enduring checks on each Branch and to protect the people from the
improvident exercise of power by mandating certain prescribed steps.
delegated authority, [Footnote 16] had determined the alien should To preserve those
remain in the United States. Without the challenged provision in §
244(c)(2), this could have been achieved, if at all, only
Page 462 U. S. 958
Page 462 U. S. 954
checks, and maintain the separation of powers, the carefully defined
limits on the power of each Branch must not be eroded. To accomplish
by legislation requiring deportation. [Footnote 17] Similarly, a veto by what has been attempted by one House of Congress in this case
one House of Congress under § 244(c)(2) cannot be justified as an requires action in conformity with the express procedures of the
attempt at amending the standards set out in § 244(a)(1), or as a Constitution's prescription for legislative action: passage by a majority
repeal of § 244 as applied to Chadha. Amendment and repeal of of both Houses and presentment to the President. [Footnote 23]
statutes, no less than enactment, must conform with Art. I. [Footnote
18]
The veto authorized by § 244(c)(2) doubtless has been in many
respects a convenient shortcut; the "sharing" with the Executive by
The nature of the decision implemented by the one-House veto in Congress of its authority over aliens in this manner is, on its face, an
these cases further manifests its legislative character. After long appealing compromise. In purely practical terms, it is obviously easier
experience with the clumsy, time-consuming private bill procedure, for action to be taken by one House without submission to the
Congress made a deliberate choice to delegate to the Executive President; but it is crystal
Branch, and specifically to the Attorney General, the authority to allow
Page 462 U. S. 959 complying with the law, since all of these decisions have been referred
to us for approval or disapproval, and there are hundreds of cases in
this category. In these six cases, however, we believe it would be
clear from the records of the Convention, contemporaneous writings,
grossly improper to allow these people to acquire the status of
and debates that the Framers ranked other values higher than
permanent resident aliens."
efficiency. The records of the Convention and debates in the states
preceding ratification underscore the common desire to define and
limit the exercise of the newly created federal powers affecting the "Mr. WYLIE. In other words, the gentleman has been working with the
states and the people. There is unmistakable expression of a Attorney General's office?"
determination that legislation by the national Congress be a step-by-
step, deliberate and deliberative process.
"Mr. EILBERG. Yes."

The choices we discern as having been made in the Constitutional

"Mr. WYLIE. This bill then is in fact a confirmation of what the Attorney
Convention impose burdens on governmental processes that often
General intends to do?"
seem clumsy, inefficient, even unworkable, but those hard choices
were consciously made by men who had lived under a form of
government that permitted arbitrary governmental acts to go "Mr. EILBERG. The gentleman is correct insofar as it relates to the
unchecked. There is no support in the Constitution or decisions of this determination of deportability which has been made by the
Court for the proposition that the cumbersomeness and delays often Department of Justice in each of these cases."
encountered in complying with explicit constitutional standards may be
avoided, either by the Congress or by the President. See Youngstown "Mr. WYLIE. Mr. Speaker, I withdraw my reservation of objection."
Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). With all the
obvious flaws of delay, untidiness, and potential for abuse, we have
not yet found a better way to preserve freedom than by making the 120 Cong.Rec. 41412 (1974). Clearly, this was an obfuscation of the
exercise of power subject to the carefully crafted restraints spelled out effect of a veto under § 244(c)(2). Such a veto in no way constitutes
in the Constitution. "a confirmation of what the Attorney General intends to do." To the
contrary, such a resolution was meant to overrule and set aside, or
"veto," the Attorney General's determination that, in a particular case,
V cancellation of deportation would be appropriate under the standards
set forth in § 244(a)(1).
We hold that the congressional veto provision in § 244(c)(2) is
severable from the Act, and that it is unconstitutional. Accordingly, the [Footnote 4]
judgment of the Court of Appeals is

Nine Members of the House of Representatives disagree with the

Affirmed. position taken in the briefs filed by the Senate and the House of
Representatives, and have filed a brief amici curiae urging that the
* Together with No. 80-2170, United States House of Representatives decision of the Court of Appeals be affirmed in this case.
v. Immigration and Naturalization Service et al.,  and No. 80-
2171, United States Senate v. Immigration and Naturalization Service [Footnote 5]
et al., on certiorari to the same court.

The Senate and House authorized intervention in this case, S.Res. 40

[Footnote 1] and H.R.Res. 49, 97th Cong., 1st Sess. (1981), and, on February 3,
1981, filed motions to intervene and petitioned for rehearing. The
Congress delegated the major responsibilities for enforcement of the Court of Appeals granted the motions to intervene. Both Houses are
Immigration and Nationality Act to the Attorney General. 8 U.S.C. § therefore proper "parties" within the meaning of that ter, in 28 U.S.C.
1103(a). The Attorney General discharges his responsibilities through § 1254(1). See Batterton v. Francis, 432 U. S. 416, 432 U. S. 424, n. 7
the Immigration and Naturalization Service, a division of the (1977).
Department of Justice. Ibid.
[Footnote 6]
[Footnote 2]
In addition to meeting the statutory requisites of § 1252, of course, an
In constitutional terms, "veto" is used to describe the President's appeal must present a justiciable case or controversy under Art. III.
power under Art. I, 7, of the Constitution. See Black's Law Dictionary Such a controversy clearly exists in No. 80-1832, as in the other two
1403 (5th ed.1979). It appears, however, that congressional devices of cases, because of the presence of the two Houses of Congress as
the type authorized by § 244(c)(2) have come to be commonly adverse parties. See infra at 462 U. S. 939; see also Director, OWCP v.
referred to as a "veto." See, e.g., Martin, The Legislative Veto and the Perini North River Associates, 459 U. S. 297, 459 U. S. 302-305 (1982).
Responsible Exercise of Congressional Power, 68 Va.L.Rev. 253
(1982); Miller & Knapp, The Congressional Veto: Preserving the [Footnote 7]
Constitutional Framework, 52 Ind.L.J. 367 (1977). We refer to the
congressional "resolution" authorized by § 244(c)(2) as a "one-House
veto" of the Attorney General's decision to allow a particular In this case, we deem it appropriate to address questions of
deportable alien to remain in the United States. severability first. But see Buckley v. Valeo, 424 U. S. 1, 424 U. S. 108-
109 (1976); United States v. Jackson, 390 U. S. 570, 390 U. S.
585 (1968).
[Footnote 3]

[Footnote 8]
It is not at all clear whether the House generally, or Subcommittee
Chairman Eilberg in particular, correctly understood the relationship
between H.Res. 926 and the Attorney General's decision to suspend Without the provision for one-House veto, Congress would presumably
Chadha's deportation. Exactly one year previous to the House veto of retain the power, during the time allotted in § 244(c)(2), to enact a
the Attorney General's decision in this case, Representative Eilberg law, in accordance with the requirements of Art. I of the Constitution,
introduced a similar resolution disapproving the Attorney General's mandating a particular alien's deportation, unless, of course, other
suspension of deportation in the case of six other aliens. H.Res. 1518, constitutional principles place substantive limitations on such
93d Cong., 2d Sess. (1974). The following colloquy occurred on the action. Cf. Attorney General Jackson's attack on H.R. 9766, 76th
floor of the House: Cong., 3d Sess. (1940), a bill to require the Attorney General to deport
an individual alien. The Attorney General called the bill
"Mr. WYLIE. Mr. Speaker, further reserving the right to object, is this
procedure to expedite the ongoing operations of the Department of "an historical departure from an unbroken American practice and
Justice, as far as these people are concerned. Is it in any way contrary tradition. It would be the first time that an act of Congress singled out
to whatever action the Attorney General has taken on the question of a named individual for deportation."
deportation; does the gentleman know?"
S.Rep. No. 2031, 76th Cong., 3d Sess., pt. 1, p. 9 (1940) (reprinting
"Mr. EILBERG. Mr. Speaker, the answer is no to the gentleman's final Jackson's letter of June 18, 1940). See n 17, infra.
question. These aliens have been found to be deportable and the
Special Inquiry Officer's decision denying suspension of deportation [Footnote 9]
has been reversed by the Board of Immigration Appeals. We are
Without the one-House veto, § 244 resembles the "report and wait" terminated by concurrent resolution was unconstitutional. Jackson, A
provision approved by the Court in Sibbach v. Wilson & Co., 312 U. S. Presidential Legal Opinion, 66 Harv.L.Rev. 1353 (1953).
1 (1941). The statute examined in Sibbach provided that the newly
promulgated Federal Rules of Civil Procedure
[Footnote 14]

"shall not take effect until they shall have been reported to Congress
The widespread approval of the delegates was commented on by
by the Attorney General at the beginning of a regular session thereof
Joseph Story:
and until after the close of such session."

"In the convention there does not seem to have been much diversity
Act of June 19, 1934, ch. 651, § 2, 48 Stat. 1064. This statute did not
of opinion on the subject of the propriety of giving to the president a
provide that Congress could unilaterally veto the Federal Rules. Rather,
negative on the laws. The principal points of discussion seem to have
it gave Congress the opportunity to review the Rules before they
been whether the negative should be absolute, or qualified; and if the
became effective, and to pass legislation barring their effectiveness if
latter, by what number of each house the bill should subsequently be
the Rules were found objectionable. This technique was used by
passed in order to become a law; and whether the negative should in
Congress when it acted in 1973 to stay, and ultimately to revise, the
either case be exclusively vested in the president alone, or in him
proposed Rules of Evidence. Compare Act of Mar. 30, 1973, Pub.L. 93-
jointly with some other department of the government."
12, 87 Stat. 9, with Act of Jan. 2, 1975, Pub.L. 93-595, 88 Stat.1926.

1 J. Story, Commentaries on the Constitution of the United States 611

[Footnote 10]
(3d ed. 1858). See 1 M. Farrand, The Records of the Federal
Convention of 1787, pp. 21, 97-104, 138-140 (1911) (hereinafter
Depending on how the INS interprets its statutory duty under § 244 Farrand); id. at 73-80, 181, 298, 301-305.
apart from the challenged portion of § 244(c)(2), Chadha's status may
be retroactively adjusted to that of a permanent resident as of
[Footnote 15]
December 19, 1975 -- the last session in which Congress could have
attempted to stop the suspension of Chadha's deportation from
ripening into cancellation of deportation. See 8 U.S.C. § 1254(d). In The Great Compromise was considered so important by the Framers
that event, Chadha's 5-year waiting period to become a citizen under § that they inserted a special provision to ensure that it could not be
316(a) of the Act, 8 U.S.C. § 1427(a), would have elapsed. altered, even by constitutional amendment, except with the consent of
the states affected. See U.S.Const., Art V.
[Footnote 11]
[Footnote 16]
Under the Third Circuit's reasoning, judicial review under § 106(a)
would not extend to the constitutionality of § 244(c)(2) because that Congress protests that affirming the Court of Appeals in these cases
issue could not have been tested during the administrative deportation will sanction
proceedings conducted under § 242(b). The facts in Dastmalchi are
distinguishable, however. In Dastmalchi, Iranian aliens who had "lawmaking by the Attorney General. . . . Why is the Attorney General
entered the United States on nonimmigrant student visas challenged a exempt from submitting his proposed changes in the law to the full
regulation that required them to report to the District Director of the bicameral process?"
INS during the Iranian hostage crisis. The aliens reported and were
ordered deported after a § 242(b) proceeding. The aliens
in Dastmalchi could have been deported irrespective of the challenged Brief for Petitioner in No. 80-2170, p. 40. To be sure, some
regulation. Here, in contrast, Chadha's deportation would have been administrative agency action -- rulemaking, for example -- may
canceled but for § 244(c)(2). resemble "lawmaking." See 5 U.S.C. § 551(4), which defines an
agency's "rule" as
[Footnote 12]
"the whole or part of an agency statement of general or particular
applicability and future effect designed to implement, interpret, or
A relevant parallel can be found in our recent decision in Bob Jones prescribe law or policy. . . ."
University v. United States, 461 U. S. 574 (1983). There, the United
States agreed with Bob Jones University and Goldsboro Christian
Schools that certain Revenue Rulings denying tax-exempt status to This Court has referred to agency activity as being "quasi-legislative" in
schools that discriminated on the basis of race were invalid. Despite its character. Humphrey's Executor v. United States, 295 U. S. 602, 295
agreement with the schools, however, the United States was U. S. 628 (1935). Clearly, however,
complying with a court order enjoining it from granting tax-exempt
status to any school that discriminated on the basis of race. Even "[i]n the framework of our Constitution, the President's power to see
though the Government largely agreed with the opposing party on the that the laws are faithfully executed refutes the idea that he is to be a
merits of the controversy, we found an adequate basis for jurisdiction lawmaker."
in the fact that the Government intended to enforce the challenged law
against that party. See id. at 461 U. S. 585, n. 9.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 343 U. S.
587 (1952). See Buckley v. Valeo, 424 U.S. at 424 U. S. 123. When the
[Footnote 13] Attorney General performs his duties pursuant to § 244, he does not
exercise "legislative" power. See Ernst & Ernst v. Hochfelder, 425 U. S.
The suggestion is made that 244(c)(2) is somehow immunized from 185, 425 U. S. 213-214 (1976). The bicameral process is not necessary
constitutional scrutiny because the Act containing § 244(c)(2) was as a check on the Executive's administration of the laws, because his
passed by Congress and approved by the President. Marbury v. administrative activity cannot reach beyond the limits of the statute
Madison, 1 Cranch 137 (1803), resolved that question. The assent of that created it -- a statute duly enacted pursuant to Art. I, §§ 1, 7. The
the Executive to a bill which contains a provision contrary to the constitutionality of the Attorney General's execution of the authority
Constitution does not shield it from judicial review. See Smith v. delegated to him by § 244 involves only a question of delegation
Maryland, 442 U. S. 735, 442 U. S. 740, n. 5 (1979); National League doctrine. The courts, when a case or controversy arises, can always
of Cities v. Usery, 426 U. S. 833, 426 U. S. 841, n. 12 (1976); Buckley "ascertain whether the will of Congress has been obeyed," Yakus v.
v. Valeo, 424 U. S. 1 (1976); Myers v. United States, 272 U. S. United States, 321 U. S. 414, 321 U. S. 425 (1944), and can enforce
52 (1926). See also n 22, infra. In any event, 11 Presidents, from Mr. adherence to statutory standards. See Youngstown Sheet & Tube Co.
Wilson through Mr. Reagan, who have been presented with this issue v. Sawyer, supra, at 343 U. S. 585; Ethyl Corp. v. EPA, 176
have gone on record at some point to challenge congressional vetoes U.S.App.D.C. 373, 440, 541 F.2d 1, 68 (en banc) (separate statement
as unconstitutional. See Henry, The Legislative Veto: In Search of of Leventhal, J.), cert. denied, 426 U.S. 941 (1976); L. Jaffe, Judicial
Constitutional Limits, 16 Harv.J.Legis. 735, 737-738, n. 7 (1979) Control of Administrative Action 320 (1965). It is clear, therefore, that
(collecting citations to Presidential statements). Perhaps the earliest the Attorney General acts in his presumptively Art. II capacity when he
Executive expression on the constitutionality of the congressional veto administers the Immigration and Nationality Act. Executive action
is found in Attorney General William D. Mitchell's opinion of January under legislatively delegated authority that might resemble "legislative"
24, 1933, to President Hoover. 37 Op.Atty.Gen. 56. Furthermore, it is action in some respects is not subject to the approval of both Houses
not uncommon for Presidents to approve legislation containing parts of Congress and the President for the reason that the Constitution
which are objectionable on constitutional grounds. For example, after does not so require. That kind of Executive action is always subject to
President Roosevelt signed the Lend-Lease Act of 1941, Attorney check by the terms of the legislation that authorized it; and if that
General Jackson released a memorandum explaining the President's authority is exceeded, it is open to judicial review, as well as the power
view that the provision allowing the Act's authorization to be of Congress to modify or revoke the authority entirely. A one-House
veto is clearly legislative in both character and effect, and is not so
checked; the need for the check provided by Art. I, §§ 1, 7, is JUSTICE POWELL's position is that the one-House veto in this case is a
therefore clear. Congress' authority to delegate portions of its power to judicial act, and therefore unconstitutional as beyond the authority
administrative agencies provides no support for the argument that vested in Congress by the Constitution. We agree that there is a sense
Congress can constitutionally control administration of the laws by way in which one-House action pursuant to § 244(c)(2) has a judicial cast,
of a congressional veto. since it purports to "review" Executive action. In this case, for
example, the sponsor of the resolution vetoing the suspension of
Chadha's deportation argued that Chadha "did not meet [the] statutory
[Footnote 17]
requirements" for suspension of deportation. Supra at 462 U. S. 926.
To be sure, it is normally up to the courts to decide whether an agency
We express no opinion as to whether such legislation would violate any has complied with its statutory mandate. See n 16, supra. But the
constitutional provision. See n 8, supra. attempted analogy between judicial action and the one-House veto is
less than perfect. Federal courts do not enjoy a roving mandate to
[Footnote 18] correct alleged excesses of administrative agencies; we are limited by
Art. III to hearing cases and controversies, and no justiciable case or
controversy was presented by the Attorney General's decision to allow
During the Convention of 1787, the application of the President's veto Chadha to remain in this country. We are aware of no decision, and
to repeals of statutes was addressed, and the Framers were apparently JUSTICE POWELL has cited none, where a federal court has reviewed
content with Madison's comment that, a decision of the Attorney General suspending deportation of an alien
pursuant to the standards set out in § 244(a)(1). This is not surprising,
"[a]s to the difficulty of repeals, it was probable that, in doubtful given that no party to such action has either the motivation or the
cases, the policy would soon take place of limiting the duration of laws right to appeal from it. As JUSTICE WHITE correctly notes, post at 462
as to require renewal instead of repeal." U. S. 1001-1002,

2 Farrand 587. See Ginnane, The Control of Federal Administration by "the courts have not been given the authority to review whether an
Congressional Resolutions and Committees, 66 Harv.L.Rev. 569, alien should be given permanent status; review is limited to whether
587599 (1953). There is no provision allowing Congress to repeal or the Attorney General has properly applied the statutory standards for"
amend laws by other than legislative means pursuant to Art. I.
denying a request for suspension of deportation. Foti v. INS, 375 U. S.
[Footnote 19] 217 (1963), relied on by JUSTICE POWELL, addressed only

This does not mean that Congress is required to capitulate to "the "whether a refusal by the Attorney General to grant a suspension of
accretion of policy control by forces outside its chambers." Javits & deportation is one of those 'final orders of deportation' of which direct
Klein, Congressional Oversight and the Legislative Veto: A review by Courts of Appeals is authorized under § 106(a) of the Act."
Constitutional Analysis, 52 N.Y.U.L.Rev. 455, 462 (1977). The
Constitution provides Congress with abundant means to oversee and Id. at 375 U. S. 221. Thus, JUSTICE POWELL's statement that the one-
control its administrative creatures. Beyond the obvious fact that House veto in this case is "clearly adjudicatory," post at 462 U. S. 964,
Congress ultimately controls administrative agencies in the legislation simply is not supported by his accompanying assertion that the House
that creates them, other means of control, such as durational limits on has "assumed a function ordinarily entrusted to the federal
authorizations and formal reporting requirements, lie well within courts." Post at 462 U. S. 965. We are satisfied that the one-House
Congress' constitutional power. See id. at 460-461; Kaiser, veto is legislative in purpose and effect, and subject to the procedures
Congressional Action to Overturn Agency Rules: Alternatives to the set out in Art. I.
"Legislative Veto," 32 Ad.L.Rev. 667 (1980). See also n 9, supra.
[Footnote 23]
[Footnote 20]
Neither can we accept the suggestion that the one-House veto
See also U.S.Const., Art. 11; § 1, and Amdt. 12. provision in § 244(c)(2) either removes or modifies the bicameralism
and presentation requirements for the enactment of future legislation
[Footnote 21] affecting aliens. See Atkins v. United States, 214 Ct.Cl. 186, 250-251,
556 F.2d 1028, 1063-1064 (1977), cert. denied, 434 U.S. 1009 (1978);
Brief for Petitioner in No. 80-2170, p. 40. The explicit prescription for
An exception from the Presentment Clauses was ratified legislative action contained in Art. I cannot be amended by
in Hollingsworth v. Virginia, 3 Dall. 378 (1798). There the Court held legislation. See n 13, supra.
Presidential approval was unnecessary for a proposed constitutional
amendment which had passed both Houses of Congress by the
requisite two-thirds majority. See U.S.Const., Art. V. JUSTICE WHITE suggests that the Attorney General's action under §
244(c)(1) suspending deportation is equivalent to a proposal for
legislation and that, because congressional approval is indicated "by
One might also include another "exception" to the rule that the failure to veto, the one-House veto satisfies the requirement of
congressional action having the force of law be subject to the bicameral approval." Post at 462 U. S. 997. However, as the Court of
bicameral requirement and the Presentment Clauses. Each House has Appeals noted, that approach "would analogize the effect of the one
the power to act alone in determining specified internal matters. Art. I, house disapproval to the failure of one house to vote affirmatively on a
§ 7, cls. 2, 3, and § 5, cl. 2. However, this "exception" only empowers private bill." 634 F.2d 408, 435 (1980). Even if it were clear that
Congress to bind itself, and is noteworthy only insofar as it further Congress entertained such an arcane theory when it enacted § 244(c)
indicates the Framers' intent that Congress not act in any legally (2), which JUSTICE WHITE does not suggest, this would amount to
binding manner outside a closely circumscribed legislative arena, nothing less than an amending of Art. I. The legislative steps outlined
except in specific and enumerated instances. in Art. I are not empty formalities; they were designed to assure that
both Houses of Congress and the President participate in the exercise
Although the bicameral check was not provided for in any of these of lawmaking authority. This does not mean that legislation must
provisions for independent congressional action, precautionary always be preceded by debate; on the contrary, we have said that it is
alternative checks are evident. For example, Art. II, § 2, requires that not necessary for a legislative body to "articulate its reasons for
two-thirds of the Senators present concur in the Senate's consent to a enacting a statute." United states Railroad Retirement Board v.
treaty, rather than the simple majority required for passage of Fritz, 449 U. S. 166, 449 U. S. 179 (1980). But the steps required by
legislation. See The Federalist No. 64 (J. Jay); The Federalist No. 66 Art. I, §§ 1, 7, make certain that there is an opportunity for
(A. Hamilton); The Federalist No. 75 (A. Hamilton). Similarly, the deliberation and debate. To allow Congress to evade the strictures of
Framers adopted an alternative protection, in the stead of Presidential the Constitution and in effect enact Executive proposals into law by
veto and bicameralism, by requiring the concurrence of two-thirds of mere silence cannot be squared with Art. I.
the Senators present for a conviction of impeachment. Art. I, § 3. We
also note that the Court's holding in Hollingsworth, supra, that a JUSTICE POWELL, concurring in the judgment.
resolution proposing an amendment to the Constitution need not be
presented to the President, is subject to two alternative protections.
First, a constitutional amendment must command the votes of two- The Court's decision, based on the Presentment Clauses, Art. I, 7, cls.
thirds of each House. Second, three-fourths of the states must ratify 2 and 3, apparently will invalidate every use of the legislative veto. The
any amendment. breadth of this holding gives one pause. Congress has included the
veto in literally hundreds

[Footnote 22]
Page 462 U. S. 960
of statutes, dating back to the 1930's. Congress clearly views this This Clause, and the separation of powers doctrine generally, reflect
procedure as essential to controlling the delegation of power to the Framers' concern that trial by a legislature lacks the safeguards
administrative agencies. [Footnote 2/1] One reasonably may disagree necessary to prevent the abuse of power.
with Congress' assessment of the veto's utility, [Footnote 2/2] but the
respect due its judgment as a coordinate branch of Government
B
cautions that our holding should be no more extensive than necessary
to decide these cases. In my view, the cases may be decided on a
narrower ground. When Congress finds that a particular person does The Constitution does not establish three branches with precisely
not satisfy the statutory criteria for permanent residence in this defined boundaries. See Buckley v. Valeo, 424 U. S. 1, 424 U. S.
country, it has assumed a judicial function in violation of the principle 121 (1976) (per curiam). Rather, as Justice Jackson wrote:
of separation of powers. Accordingly, I concur only in the judgment.
"While the Constitution diffuses power the better to secure liberty, it
I also contemplates that practice will integrate the dispersed powers into
a workable government. It enjoins upon its branches separateness but
interdependence, autonomy but reciprocity."
A

Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 343 U. S.

The Framers perceived that
635 (1952) (concurring in judgment). The Court thus has been mindful
that the boundaries between each branch should be fixed "according
"[t]he accumulation of all powers legislative, executive and judiciary in to common sense and the inherent necessities of the governmental
the same hands, whether of one, a few or many, and whether coordination." J. W. Hampton & Co. v. United States, 276 U. S.
hereditary, self-appointed, or elective, may justly be pronounced the 394, 276 U. S. 406 (1928). But where one branch has impaired or
very definition of tyranny." sought to assume a power central to another branch, the

The Federalist No. 47, p. 324 (J. Cooke ed.1961) (J. Madison). Theirs Page 462 U. S. 963
was not a baseless fear. Under British rule, the Colonies suffered the
abuses of unchecked executive power that were attributed, at least
Court has not hesitated to enforce the doctrine. See Buckley v. Valeo,
popularly, to a hereditary monarchy. See Levi, Some Aspects of
supra, at 424 U. S. 123.
Separation of Powers, 76 Colum.L.Rev. 369, 374 (1976); The
Federalist No. 48. During the Confederation,
Functionally, the doctrine may be violated in two ways. One branch
may interfere impermissibly with the other's performance of its
Page 462 U. S. 961
constitutionally assigned function. See Nixon v. Administrator of
General Services, 433 U. S. 425, 433 U. S. 433 (1977); United States
the States reacted by removing power from the executive and placing v. Nixon, 418 U. S. 683 (1974). Alternatively, the doctrine may be
it in the hands of elected legislators. But many legislators proved to be violated when one branch assumes a function that more properly is
little better than the Crown. entrusted to another. See Youngstown Sheet & Tube Co. v. Sawyer,
supra, at 343 U. S. 587; Springer v. Philippine Islands, 277 U. S.
189, 277 U. S. 203 (1928). These cases present the latter situation.
"The supremacy of legislatures came to be recognized as the
[Footnote 2/4]
supremacy of faction and the tyranny of shifting majorities. The
legislatures confiscated property, erected paper money schemes, [and]
suspended the ordinary means of collecting debts." II

Levi, supra, at 374-375. Before considering whether Congress impermissibly assumed a judicial

function, it is helpful to recount briefly Congress' actions. Jagdish Rai
Chadha, a citizen of Kenya, stayed in this country after his student visa
One abuse that was prevalent during the Confederation was the
expired. Although he was scheduled to be deported, he requested the
exercise of judicial power by the state legislatures. The Framers were
Immigration and Naturalization Service to suspend his deportation
well acquainted with the danger of subjecting the determination of the
because he met the statutory criteria for permanent residence in this
rights of one person to the "tyranny of shifting majorities." Jefferson
country. After a hearing, [Footnote 2/5] the Service granted Chadha's
observed that members of the General Assembly in his native Virginia
request and sent -- as required by
had not been prevented from assuming judicial power, and "[t]hey
have accordingly in many instances decided rights which should have
been left to judiciary controversy.'" [Footnote 2/3] The Federalist No. Page 462 U. S. 964
48, supra, at 336 (emphasis in original) (quoting T. Jefferson, Notes
on the State of Virginia 196 (London ed. 1787)). The same concern
the reservation of the veto right -- a report of its action to Congress.
also was evident in the reports of the Council of the Censors, a body
that was charged with determining whether the Pennsylvania
Legislature had complied with the State Constitution. The Council In addition to the report on Chadha, Congress had before it the names
found that, during this period, of 339 other persons whose deportations also had been suspended by
the Service. The House Committee on the Judiciary decided that six of
these persons, including Chadha, should not be allowed to remain in
"[t]he constitutional trial by jury had been violated; and powers
this country. Accordingly, it submitted a resolution to the House which
assumed, which had not been delegated by the Constitution. . . .
stated simply that "the House of Representatives does not approve the
[C]ases belonging
granting of permanent residence in the United States to the aliens
hereinafter named." 121 Cong.Rec. 40800 (1975). The resolution was
Page 462 U. S. 962 not distributed prior to the vote, [Footnote 2/6] but the Chairman of
the Judiciary Subcommittee on Immigration, Citizenship, and
International Law explained to the House:
to the judiciary department, frequently [had been] drawn within
legislative cognizance and determination."
"It was the feeling of the committee, after reviewing 340 cases, that
the aliens contained in the resolution did not meet [the] statutory
The Federalist No. 48, at 336-337.
requirements, particularly as it relates to hardship; and it is the opinion
of the committee that their deportation should not be suspended."
It was to prevent the recurrence of such abuses that the Framers
vested the executive, legislative, and judicial powers in separate
Ibid. (remarks of Rep. Eilberg). Without further explanation and
branches. Their concern that a legislature should not be able
without a recorded vote, the House rejected the Service's
unilaterally to impose a substantial deprivation on one person was
determination that these six people met the statutory criteria.
expressed not only in this general allocation of power, but also in more
specific provisions, such as the Bill of Attainder Clause, Art. I, § 9, cl.
3. As the Court recognized in United States v. Brown, 381 U. S. On its face, the House's action appears clearly adjudicatory. [Footnote
437, 381 U. S. 442 (1965), 2/7] The House did not enact a general rule; rather, it

"the Bill of Attainder Clause was intended not as a narrow, technical . . Page 462 U. S. 965
. prohibition, but rather as an implementation of the separation of
powers, a general safeguard against legislative exercise of the judicial
function, or more simply -- trial by legislature."
made its own determination that six specific persons did not comply [Footnote 2/4]
with certain statutory criteria. It thus undertook the type of decision
that traditionally has been left to other branches. Even if the House did
The House and the Senate argue that the legislative veto does not
not make a de novo determination, but simply reviewed the
prevent the executive from exercising its constitutionally assigned
Immigration and Naturalization Service's findings, it still assumed a
function. Even assuming this argument is correct, it does not address
function ordinarily entrusted to the federal courts. [Footnote
the concern that the Congress is exercising unchecked judicial power
2/8] See 5 U.S.C. § 704 (providing generally for judicial review of final
at the expense of individual liberties. It was precisely to prevent such
agency action); cf. Foti v. INS, 375 U. S. 217 (1963) (holding that
arbitrary action that the Framers adopted the doctrine of separation of
courts of appeals have jurisdiction to review INS decisions denying
powers. See, e.g., Myers v. United States, 272 U. S. 52, 272 U. S.
suspension of deportation). Where, as here, Congress has exercised a
293 (1926) (Brandeis, J., dissenting).
power "that cannot possibly be regarded as merely in aid of the
legislative function of Congress,"
[Footnote 2/5]
Page 462 U. S. 966
The Immigration and Naturalization Service, a division of the
Department of Justice, administers the Immigration and Nationality Act
Buckley v. Valeo, 424 U.S. at 424 U. S. 138, the decisions of this Court
on behalf of the Attorney General, who has primary responsibility for
have held that Congress impermissibly assumed a function that the
the Act's enforcement. See 8 U.S.C. § 1103. The Act establishes a
Constitution entrusted to another branch, see id. at 424 U. S. 138-
detailed administrative procedure for determining when a specific
141; cf. Springer v. Philippine Islands, 277 U.S. at 277 U. S. 202.
person is to be deported, see § 1252(b), and provides for judicial
review of this decision, see § 1105a; Foti v. INS, 375 U. S. 217 (1963).
The impropriety of the House's assumption of this function is
confirmed by the fact that its action raises the very danger the
[Footnote 2/6]
Framers sought to avoid -- the exercise of unchecked power. In
deciding whether Chadha deserves to be deported, Congress is not
subject to any internal constraints that prevent it from arbitrarily Normally the House would have distributed the resolution before acting
depriving him of the right to remain in this country. [Footnote 2/9] on it, see 121 Cong.Rec. 40800 (1975), but the statute providing for
Unlike the judiciary or an administrative agency, Congress is not bound the legislative veto limits the time in which Congress may veto the
by established substantive rules. Nor is it subject to the procedural Service's determination that deportation should be suspended. See 8
safeguards, such as the right to counsel and a hearing before an U.S.C. § 1254(c)(2). In this case Congress had Chadha's report before
impartial tribunal, that are present when a court or an agency it for approximately a year and a half, but failed to act on it until three
[Footnote 2/10] adjudicates individual rights. The only effective days before the end of the limitations period. Accordingly, it was
constraint on Congress' power is political, but Congress is most required to abandon its normal procedures for considering resolutions,
accountable politically when it prescribes rules of general applicability. thereby increasing the danger of arbitrary and ill-considered action.
When it decides rights of specific persons, those rights are subject to
"the tyranny of a shifting majority." [Footnote 2/7]

Page 462 U. S. 967 The Court concludes that Congress' action was legislative in character
because each branch "presumptively act[s] within its assigned
Chief Justice Marshall observed: sphere." Ante at 462 U. S. 952. The Court's presumption provides a
useful starting point, but does not conclude the inquiry. Nor does the
fact that the House's action alters an individual's legal status indicate,
"It is the peculiar province of the legislature to prescribe general rules
as the Court reasons, see ante at 462 U. S. 952-954, that the action is
for the government of society; the application of those rules to
legislative, rather than adjudicative in nature. In determining whether
individuals in society would seem to be the duty of other
one branch unconstitutionally has assumed a power central to another
departments."
branch, the traditional characterization of the assumed power as
legislative, executive, or judicial may provide some guidance. See
Fletcher v. Peck, 6 Cranch 87, 10 U. S. 136 (1810). In my view, when Springer v. Philippine Islands, 277 U. S. 189, 277 U. S. 203 (1928). But
Congress undertook to apply its rules to Chadha, it exceeded the scope reasonable minds may disagree over the character of an act, and the
of its constitutionally prescribed authority. I would not reach the more helpful inquiry, in my view, is whether the act in question raises
broader question whether legislative vetoes are invalid under the the dangers the Framers sought to avoid.
Presentment Clauses.
[Footnote 2/8]
[Footnote 2/1]
The Court reasons in response to this argument that the one-House
As JUSTICE WHITE'S dissenting opinion explains, the legislative veto veto exercised in this case was not judicial in nature, because the
has been included in a wide variety of statutes, ranging from bills for decision of the Immigration and Naturalization Service did not present
executive reorganization to the War Powers Resolution. See a justiciable issue that could have been reviewed by a court on
post at 462 U. S. 968-972. Whether the veto complies with the appeal. See ante at 462 U. S. 957, n. 22. The Court notes that, since
Presentment Clauses may well turn on the particular context in which it the administrative agency decided the case in favor of Chadha, there
is exercised, and I would be hesitant to conclude that every veto is was no aggrieved party who could appeal. Reliance by the Court on
unconstitutional on the basis of the unusual example presented by this this fact misses the point. Even if review of the particular decision to
litigation. suspend deportation is not committed to the courts, the House of
Representatives assumed a function that generally is entrusted to an
impartial tribunal. In my view, the Legislative Branch, in effect, acted
[Footnote 2/2]
as an appellate court by overruling the Service's application of
established law to Chadha. And unlike a court or an administrative
See Martin, The Legislative Veto and the Responsible Exercise of agency, it did not provide Chadha with the right to counsel or a
Congressional Power, 68 Va.L.Rev. 253 (1982); Consumer Energy hearing before acting. Although the parallel is not entirely complete,
Council of America v. FERC, 218 U.S.App.D.C. 34, 84, 673 F.2d 425, the effect on Chadha's personal rights would not have been different in
475 (1982). principle had he been acquitted of a federal crime and thereafter found
by one House of Congress to have been guilty.
[Footnote 2/3]
[Footnote 2/9]
Jefferson later questioned the degree to which the constitution
insulates the judiciary. See D. Malone, Jefferson the President: Second When Congress grants particular individuals relief or benefits under its
Term, 1805-1809, pp. 304-305 (1974). In response to Chief Justice spending power, the danger of oppressive action that the separation of
Marshall's rulings during Aaron Burr's trial, Jefferson stated that the powers was designed to avoid is not implicated. Similarly, Congress
judiciary had favored Burr -- whom Jefferson viewed as clearly guilty of may authorize the admission of individual aliens by special Acts, but it
treason -- at the expense of the country. He predicted that the people does not follow that Congress unilaterally may make a judgment that a
"will see then and amend the error in our Constitution, which makes particular alien has no legal right to remain in this
any branch independent of the nation.'" Id. at 305 (quoting country. See Memorandum Concerning H.R. 9766 Entitled "An Act to
Jefferson's letter to William Giles). The very controversy that attended Direct the Deportation of Harry Renton Bridges," reprinted in S.Rep.
Burr's trial, however, demonstrates the wisdom in providing a neutral No. 2031, 76th Cong., 3d Sess., pt. 1, p. 8 (1940). As Attorney General
forum, removed from political pressure, for the determination of one Robert Jackson remarked, such a practice "would be an historical
person's rights. departure from an unbroken American practice and tradition." Id. at 9.
[Footnote 2/10] Over the quarter century following World War II, Presidents continued
to accept legislative vetoes by one or both Houses as constitutional,
while regularly denouncing provisions by which congressional
We have recognized that independent regulatory agencies and
Committees reviewed Executive activity. [Footnote 3/5] The legislative
departments of the Executive Branch often exercise authority that is
veto balanced delegations of
"judicial in nature." Buckley v. Valeo, 424 U. S. 1, 424 U. S. 140-141
(1976). This function, however, forms part of the agencies' execution
of public law, and is subject to the procedural safeguards, including Page 462 U. S. 970
judicial review, provided by the Administrative Procedure Act, see 5
U.S.C. § 551 et seq. See also 462 U.S. 919fn2/5|>n. 5, supra.
statutory authority in new areas of governmental involvement: the
space program, international agreements on nuclear energy, tariff
JUSTICE WHITE, dissenting. arrangements, and adjustment of federal pay rates. [Footnote 3/6]

Today the Court not only invalidates § 244(c)(2) of the Immigration During the 1970's, the legislative veto was important in resolving a
and Nationality Act, but also sounds the death knell for nearly 200 series of major constitutional disputes between the President and
other statutory provisions in which Congress has reserved a "legislative Congress over claims of the President to broad impoundment, war,
veto." For this reason, the Court's decision is of surpassing importance. and national emergency powers. The
And it is for this reason that the Court would have been well advised to
decide the cases, if possible, on the narrower grounds of separation of
Page 462 U. S. 971
powers, leaving for full consideration the constitutionality of other
congressional review statutes operating on such varied matters as war
powers and agency rulemaking, some of which concern the key provision of the War Powers Resolution, 50 U.S.C. § 1544(c),
independent regulatory agencies. [Footnote 3/1] authorizes the termination by concurrent resolution of the use of
armed forces in hostilities. A similar measure resolved the problem
posed by Presidential claims of inherent power to impound
The prominence of the legislative veto mechanism in our contemporary
appropriations. Congressional Budget and Impoundment Control Act of
political system and its importance to Congress can hardly be
1974, 31 U.S.C. § 1403. In conference, a compromise was achieved
overstated. It has become a central
under which permanent impoundments, termed "rescissions," would
require approval through enactment of legislation. In contrast,
Page 462 U. S. 968 temporary impoundments, or "deferrals," would become effective
unless disapproved by one House. This compromise provided the
President with flexibility, while preserving ultimate congressional
means by which Congress secures the accountability of executive and
control over the budget. [Footnote 3/7] Although the War Powers
independent agencies. Without the legislative veto, Congress is faced
Resolution was enacted over President Nixon's veto, the Impoundment
with a Hobson's choice: either to refrain from delegating the necessary
Control Act was enacted with the President's approval. These statutes
authority, leaving itself with a hopeless task of writing laws with the
were followed by others resolving similar problems: the National
requisite specificity to cover endless special circumstances across the
Emergencies Act, § 202, 90 Stat. 1255, 50 U.S.C. § 1622, resolving the
entire policy landscape, or, in the alternative, to abdicate its lawmaking
longstanding problems with unchecked Executive emergency power;
function to the Executive Branch and independent agencies. To choose
the International Security Assistance and Arms Export Control Act, §
the former leaves major national problems unresolved; to opt for the
211, 90 Stat. 740, 22 U.S.C. § 2776(b), resolving the problem of
latter risks unaccountable policymaking by those not elected to fill that
foreign arms sales; and the Nuclear Non-Proliferation Act of 1978, §§
role. Accordingly, over the past five decades, the legislative veto has
303(a), 304(a), 306, 307, 401, 92 Stat. 130, 134, 137, 138, 144-145,
been placed in nearly 200 statutes. [Footnote 3/2] The device is
42 U.S.C. §§ 2160(f), 2155(b), 2157(b), 2158, 2153(d) (1976 ed.,
known in every field of governmental concern: reorganization,
Supp. V), resolving the problem of exports of nuclear technology.
budgets, foreign affairs, war powers, and regulation of trade, safety,
energy, the environment, and the economy.
In the energy field, the legislative veto served to balance broad
delegations in legislation emerging from the energy crisis of the
The legislative veto developed initially in response to the problems of
1970's. [Footnote 3/8] In the educational field, it was found
reorganizing the sprawling Government structure created in response
to the Depression. The Reorganization Acts established the chief model
for the legislative veto. When President Hoover requested authority to Page 462 U. S. 972
reorganize the Government in 1929, he coupled his request that the
"Congress be willing to delegate its authority over the problem (subject
that fragmented and narrow grant programs "inevitably lead to
to defined principles) to the Executive" with a proposal for legislative
Executive-Legislative confrontations" because they inaptly limited the
review. He proposed that the Executive
Commissioner of Education's authority. S.Rep. No. 93-763, p. 69
(1974). The response was to grant the Commissioner of Education
"should act upon approval of a joint committee of Congress or with the rulemaking authority, subject to a legislative veto. In the trade
reservation of power of revision by Congress within some limited regulation area, the veto preserved congressional authority over the
period adequate for its consideration." Federal Trade Commission's broad mandate to make rules to prevent
businesses from engaging in "unfair or deceptive acts or practices in
commerce." [Footnote 3/9]
Public Papers of the Presidents, Herbert Hoover, 1929, p. 432 (1974).
Congress followed President Hoover's suggestion and authorized
reorganization subject to legislative Even this brief review suffices to demonstrate that the legislative veto
is more than "efficient, convenient, and useful." Ante at 462 U. S. 944.
It is an important, if not indispensable, political invention that allows
Page 462 U. S. 969
the President and Congress to resolve major constitutional and policy
differences, assures the accountability of independent regulatory
review. Act of June 30, 1932, § 407, 47 Stat. 414. Although the agencies, and preserves
reorganization authority reenacted in 1933 did not contain a legislative
veto provision, the provision returned during the Roosevelt
Page 462 U. S. 973
administration, and has since been renewed numerous times. Over the
years, the provision was used extensively. Presidents submitted 115
Reorganization Plans to Congress, of which 23 were disapproved by Congress' control over lawmaking. Perhaps there are other means of
Congress pursuant to legislative veto provisions. See App. A to Brief for accommodation and accountability, but the increasing reliance of
United States Senate on Reargument. Congress upon the legislative veto suggests that the alternatives to
which Congress must now turn are not entirely satisfactory. [Footnote
3/10]
Shortly after adoption of the Reorganization Act of 1939, 53 Stat. 561,
Congress and the President applied the legislative veto procedure to
resolve the delegation problem for national security and foreign affairs. Page 462 U. S. 974
World War II occasioned the need to transfer greater authority to the
President in these areas. The legislative veto offered the means by
The history of the legislative veto also makes clear that it has not been
which Congress could confer additional authority while preserving its
a sword with which Congress has struck out to aggrandize itself at the
own constitutional role. During World War II, Congress enacted over
expense of the other branches -- the concerns of Madison and
30 statutes conferring powers on the Executive with legislative veto
Hamilton. Rather, the veto has been a means of defense, a reservation
provisions. [Footnote 3/3] President Roosevelt accepted the veto as
of ultimate authority necessary if Congress is to fulfill its designated
the necessary price for obtaining exceptional authority. [Footnote 3/4]
role under Art. I as the Nation's lawmaker. While the President has
often objected to particular legislative vetoes, generally those left in
the hands of congressional Committees, the Executive has more often "The actual art of governing under our Constitution does not and
agreed to legislative review as the price for a broad delegation of cannot conform to judicial definitions of the power of any of its
authority. To be sure, the President may have preferred unrestricted branches based on isolated clauses or even single Articles torn from
power, but that could be precisely why Congress thought it essential to context. While the Constitution diffuses power the better to secure
retain a check on the exercise of delegated authority. liberty, it also contemplates that practice will integrate the dispersed
powers into a workable government."
II
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 343 U. S.
635 (1952).
For all these reasons, the apparent sweep of the Court's decision today
is regrettable. The Court's Art. I analysis appears to invalidate all
legislative vetoes, irrespective of form or subject. Because the This is the perspective from which we should approach the novel
legislative veto is commonly found as a check upon rulemaking by constitutional questions presented by the legislative veto. In my view,
administrative agencies and upon broad-based policy decisions of the neither Art. I of the Constitution nor the doctrine of separation of
Executive Branch, it is particularly unfortunate that the Court reaches powers is violated by this mechanism
its decision in cases involving the exercise of a veto over deportation
decisions regarding particular individuals. Courts should always be
Page 462 U. S. 979
wary of striking statutes as unconstitutional; to strike an entire class of
statutes based on consideration of a somewhat atypical and more
readily indictable exemplar of the class is irresponsible. It was for by which our elected Representatives preserve their voice in the
cases such as these that Justice Brandeis wrote: governance of the Nation.

"The Court has frequently called attention to the 'great gravity and III
delicacy' of its function in passing upon the validity of an act of
Congress. . . . " The Court holds that the disapproval of a suspension of deportation by
the resolution of one House of Congress is an exercise of legislative
**** power without compliance with the prerequisites for lawmaking set
forth in Art. I of the Constitution. Specifically, the Court maintains that
the provisions of § 244(c)(2) are inconsistent with the requirement of
Page 462 U. S. 975
bicameral approval, implicit in Art. I, § 1, and the requirement that all
bills and resolutions that require the concurrence of both Houses be
"The Court will not 'formulate a rule of constitutional law broader than presented to the President, Art. I, § 7, cls. 2 and 3. [Footnote 3/16]
is required by the precise facts to which it is to be applied.' Liverpool,
N.Y. & P. S.S. Co. v. Emigration Commissioners, [113 U.S. 33, 113 U.
I do not dispute the Court's truismatic exposition of these Clauses.
S. 39 (1885)]."
There is no question that a bill does not become a law until it is
approved by both the House and the Senate, and presented to the
Ashwander v. TVA, 297 U. S. 288, 297 U. S. 345, 297 U. S. 347 (1936) President. Similarly, I would not hesitate to strike an action of
(concurring opinion). Unfortunately, today's holding is not so limited. Congress in the form of a concurrent resolution which constituted an
[Footnote 3/11] exercise of original lawmaking authority. I agree with the Court that
the President's
Page 462 U. S. 976
Page 462 U. S. 980
If the legislative veto were as plainly unconstitutional as the Court
strives to suggest, its broad ruling today would be more qualified veto power is a critical element in the distribution of powers
comprehensible. But the constitutionality of the legislative veto is under the Constitution, widely endorsed among the Framers, and
anything but clear-cut. The issue divides scholars, [Footnote 3/12] intended to serve the President as a defense against legislative
courts, [Footnote 3/13] Attorneys General, [Footnote 3/14] and the encroachment and to check the "passing of bad laws, through haste,
two other inadvertence, or design." The Federalist No. 73, p. 458 (H. Lodge ed.
1888) (A. Hamilton). The records of the Convention reveal that it is the
first purpose which figured most prominently, but I acknowledge the
Page 462 U. S. 977
vitality of the second. Id. at 443. I also agree that the bicameral
approval required by Art. I, § 1, 7, "was of scarcely less concern to the
branches of the National Government. If the veto devices so flagrantly Framers than was the Presidential veto," ante at 462 U. S. 948, and
disregarded the requirements of Art. I as the Court today suggests, I that the need to divide and disperse legislative power figures
find it incomprehensible that Congress, whose Members are bound by significantly in our scheme of Government. All of this, 462 U. S. is
oath to uphold the Constitution, would have placed these mechanisms entirely unexceptionable.
in nearly 200 separate laws over a period of 50 years.
It does not, however, answer the constitutional question before us.
The reality of the situation is that the constitutional question posed The power to exercise a legislative veto is not the power to write new
today is one of immense difficulty over which the Executive and law without bicameral approval or Presidential consideration. The veto
Legislative Branches -- as well as scholars and judges -- have must be authorized by statute, and may only negative what an
understandably disagreed. That disagreement stems from the silence Executive department or independent agency has proposed. On its
of the Constitution on the precise question: the Constitution does not face, the legislative veto no more allows one House of Congress to
directly authorize or prohibit the legislative veto. Thus, our task should make law than does the Presidential veto confer such power upon the
be to determine whether the legislative veto is consistent with the President. Accordingly, the Court properly recognizes that it "must
purposes of Art. I and the principles of separation of powers which are nevertheless establish that the challenged action under § 244(c)(2) is
reflected in that Article and throughout the Constitution. [Footnote of the kind to which the procedural requirements of Art. I, § 7, apply,"
3/15] and admits that "[n]ot every action taken by either House is subject to
the bicameralism and presentation requirements of Art. I." Ante at 462
Page 462 U. S. 978 U. S. 952.

We should not find the lack of a specific constitutional authorization for A

the legislative veto surprising, and I would not infer disapproval of the
mechanism from its absence. From the summer of 1787 to the The terms of the Presentment Clauses suggest only that bills and their
present, the Government of the United States has become an equivalent are subject to the requirements of bicameral passage and
endeavor far beyond the contemplation of the Framers. Only within the presentment to the President. Article I, § 7, cl. 2, stipulates only that
last half century has the complexity and size of the Federal "Every Bill which shall have passed the House of Representatives and
Government's responsibilities grown so greatly that the Congress must the Senate
rely on the legislative veto as the most effective, if not the only, means
to insure its role as the Nation's lawmaker. But the wisdom of the
Page 462 U. S. 981
Framers was to anticipate that the Nation would grow and new
problems of governance would require different solutions. Accordingly,
our Federal Government was intentionally chartered with the flexibility shall, before it becomes a law, be presented to the President" for
to respond to contemporary needs without losing sight of fundamental approval or disapproval, his disapproval then subject to being
democratic principles. This was the spirit in which Justice Jackson overridden by a two-thirds vote of both Houses. Section 7, cl. 3, goes
penned his influential concurrence in the Steel Seizure Case: further:
"Every Order, Resolution, or Vote to which the Concurrence of the This Court's decisions sanctioning such delegations make clear that
Senate and House of Representatives may be necessary (except on a Art. I does not require all action with the effect of legislation to be
question of Adjournment) shall be presented to the President of the passed as a law.
United States; and before the Same shall take Effect, shall be
approved by him, or being disapproved by him, shall be repassed by
Theoretically, agencies and officials were asked only to "fill up the
two-thirds of the Senate and House of Representatives, according to
details," and the rule was that "Congress cannot delegate any part of
the Rules and Limitations prescribed in the Case of a Bill."
its legislative power except under the limitation of a prescribed
standard." United States v. Chicago, M., St. P. & P. R. Co., 282 U. S.
Although the Clause does not specify the actions for which the 311, 282 U. S. 324 (1931). Chief Justice Taft elaborated the standard
concurrence of both Houses is "necessary," the proceedings at the in J. W. Hampton & Co. v. United States, 276 U. S. 394, 276 U. S.
Philadelphia Convention suggest its purpose was to prevent Congress 409 (1928):
from circumventing the presentation requirement in the making of new
legislation. James Madison observed that, if the President's veto was
"If Congress shall lay down by legislative act an intelligible principle to
confined to bills, it could be evaded by calling a proposed law a
which the person or body authorized to fix such rates is directed to
"resolution" or "vote," rather than a "bill." Accordingly, he proposed
conform, such legislative action is not a forbidden delegation of
that "or resolve" should be added after "bill" in what is now Clause 2 of
legislative power."
7. 2 M. Farrand, The Records of the Federal Convention of 1787, pp.
301-302 (1911). After a short discussion on the subject, the
amendment was rejected. On the following day, however, Randolph In practice, however, restrictions on the scope of the power that could
renewed the proposal in the substantial form as it now appears, and be delegated diminished and all but disappeared. In only two instances
the motion passed. Id. at 304-305; 5 J. Elliot, Debates on the Federal did the Court find an unconstitutional delegation. Panama Refining Co.
Constitution 431 (1845). The chosen language, Madison's comment, v. Ryan, 293 U. S. 388 (1935); A. L. A. Schechter Poultry Corp. v.
and the brevity of the Convention's consideration, all suggest a modest United States, 295 U. S. 495 (1935). In other cases, the "intelligible
role was intended for the Clause, and no broad restraint on principle" through which agencies have attained enormous control over
congressional authority was contemplated. See Stewart, the economic affairs of the country was held to include such
Constitutionality of the Legislative Veto, 13 Harv.J.Legis. 593, 609-611 formulations as "just and reasonable," Tagg Bros. & Moorhead v.
(1976). This reading is consistent with the historical background of the United States, 280 U. S. 420 (1930); "public interest," New York
Presentment Clause itself, which reveals only that the Framers were Central Securities Corp. v. United States, 287 U. S. 12 (1932); "public
concerned convenience, interest, or necessity," Federal Radio Comm'n v. Nelson
Bros. Bond & Mortgage Co., 289 U. S. 266, 289 U. S. 285 (1933); and
"unfair methods of competition." FTC v. Gratz, 253 U. S. 421 (1920).
Page 462 U. S. 982

The wisdom and the constitutionality of these broad delegations are

with limiting the methods for enacting new legislation. The Framers
matters that still have not been put to rest. But for present purposes,
were aware of the experience in Pennsylvania, where the legislature
these cases establish that, by virtue of congressional delegation,
had evaded the requirements attached to the passing of legislation by
legislative power can be exercised by independent agencies and
the use of "resolves," and the criticisms directed at this practice by the
Executive departments without the passage of new legislation. For
Council of Censors. [Footnote 3/17] There is no record that the
some time, the sheer amount of law -- the substantive rules that
Convention contemplated, let alone intended, that these Art. I
regulate private conduct and direct the operation of government --
requirements would someday be invoked to restrain the scope of
made by
congressional authority pursuant to duly enacted law. [Footnote 3/18]

Page 462 U. S. 986

Page 462 U. S. 983

the agencies has far outnumbered the lawmaking engaged in by

When the Convention did turn its attention to the scope of Congress'
Congress through the traditional process. There is no question but that
lawmaking power, the Framers were expansive. The Necessary and
agency rulemaking is lawmaking in any functional or realistic sense of
Proper Clause, Art. I, § 8, cl. 18, vests
the term. The Administrative Procedure Act, 5 U.S.C. § 551(4),
provides that a "rule" is an agency statement "designed to implement,
Page 462 U. S. 984 interpret, or prescribe law or policy." When agencies are authorized to
prescribe law through substantive rulemaking, the administrator's
regulation is not only due deference, but is accorded "legislative
Congress with the power
effect." See, e.g., Schweiker v. Gray Panthers, 453 U. S. 34, 453 U. S.
43-44 (1981); Batterton v. Francis, 432 U. S. 416 (1977). [Footnote
"[t]o make all Laws which shall be necessary and proper for carrying 3/19] These regulations bind courts and officers of the Federal
into Execution the foregoing Powers [the enumerated powers of § 8] Government, may preempt state law, see, e.g., Fidelity Federal
and all other Powers vested by this Constitution in the Government of Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141 (1982), and grant
the United States, or in any Department or Officer thereof." rights to and impose obligations on the public. In sum, they have the
force of law.
It is long settled that Congress may "exercise its best judgment in the
selection of measures, to carry into execution the constitutional powers If Congress may delegate lawmaking power to independent and
of the government," and "avail itself of experience, to exercise its Executive agencies, it is most difficult to understand Art. I as
reason, and to accommodate its legislation to prohibiting Congress from also reserving a check on legislative power
circumstances." McCulloch v. Maryland, 4 Wheat. 316, 17 U. S. 415- for itself. Absent the veto, the agencies receiving delegations of
416, 17 U. S. 420 (1819). legislative or quasi-legislative power may issue regulations having the
force of law without bicameral
B
Page 462 U. S. 987
The Court heeded this counsel in approving the modern administrative
state. The Court's holding today that all legislative-type action must be approval and without the President's signature. It is thus not apparent
enacted through the lawmaking process ignores that legislative why the reservation of a veto over the exercise of that legislative
authority is routinely delegated to the Executive Branch, to the power must be subject to a more exacting test. In both cases, it is
independent regulatory agencies, and to private individuals and enough that the initial statutory authorizations comply with the Art. I
groups. requirements.

"The rise of administrative bodies probably has been the most Nor are there strict limits on the agents that may receive such
significant legal trend of the last century. . . . They have become a delegations of legislative authority so that it might be said that the
veritable fourth branch of the Government, which has deranged our Legislature can delegate authority to others, but not to itself. While
three-branch legal theories. . . ." most authority to issue rules and regulations is given to the Executive
Branch and the independent regulatory agencies, statutory delegations
FTC v. Ruberoid Co., 343 U. S. 470, 343 U. S. 487 (1952) (Jackson, J. to private persons have also passed this Court's scrutiny. In Currin v.
dissenting). Wallace, 306 U. S. 1 (1939), the statute provided that restrictions upon
the production or marketing of agricultural commodities was to
become effective only upon the favorable vote by a prescribed majority
Page 462 U. S. 985 of the affected farmers. United States v. Rock Royal Co-operative,
Inc., 307 U. S. 533, 307 U. S. 577 (1939), upheld an Act which gave
producers of specified commodities the right to veto marketing orders
issued by the Secretary of Agriculture. Assuming Currin and Rock C
Royal Cooperative remain sound law, the Court's decision today
suggests that Congress may place a "veto" power over suspensions of
The Court also takes no account of perhaps the most relevant
deportation in private hands or in the hands of an independent agency,
consideration: however resolutions of disapproval under § 244(c)(2)
but is forbidden to reserve such authority for itself. Perhaps this odd
are formally characterized, in reality, a departure from the status
result could be justified on other constitutional grounds, such as the
quo occurs only upon the concurrence of opinion among the House,
separation of powers, but certainly it cannot be defended as consistent
Senate, and President. Reservations of legislative authority to be
with the Court's view of the Art. I presentment and bicameralism
exercised by Congress should be upheld if the exercise of such
commands. [Footnote 3/20]
reserved authority is consistent with the distribution of and limits upon
legislative power that Art. I provides.
Page 462 U. S. 988
1
The Court's opinion in the present cases comes closest to facing the
reality of administrative lawmaking in considering the contention that
As its history reveals, § 244(c)(2) withstands this analysis. Until 1917,
the Attorney General's action in suspending deportation under § 244 is
Congress had not broadly provided for the deportation of aliens. Act of
itself a legislative act. The Court posits that the Attorney General is
Feb. 5, 1917, § 19, 39 Stat. 889. The Immigration Act of 1924
acting in an Art. II enforcement capacity under § 244. This
enlarged the categories of
characterization is at odds with Mahler v. Eby, 264 U. S. 32, 264 U. S.
40 (1924), where the power conferred on the Executive to deport
aliens was considered a delegation of legislative power. The Court Page 462 U. S. 991
suggests, however, that the Attorney General acts in an Art. II capacity
because aliens subject to mandatory deportation, and substantially increased
the likelihood of hardships to individuals by abolishing in most cases
"[t]he courts, when a case or controversy arises, can always 'ascertain the previous time limitation of three years within which deportation
whether the will of Congress has been obeyed,' Yakus v. United proceedings had to be commenced. Immigration Act of 1924, ch.190,
States, 321 U. S. 414, 321 U. S. 425 (1944), and can enforce 43 Stat. 153. Thousands of persons, who either had entered the
adherence to statutory standards." country in more lenient times or had been smuggled in as children, or
had overstayed their permits, faced the prospect of deportation.
Enforcement of the Act grew more rigorous over the years, with the
Ante at 462 U. S. 953, n. 16. This assumption is simply wrong, as the
deportation of thousands of aliens without regard to the mitigating
Court itself points out:
circumstances of particular cases. See Mansfield, The Legislative Veto
and the Deportation of Aliens, 1 Public Administration Review 281
"We are aware of no decision . . . where a federal court has reviewed (1941). Congress provided relief in certain cases through the passage
a decision of the Attorney General suspending deportation of an alien of private bills.
pursuant to the standards set out in § 244(a)(1). This is not surprising,
given that no party to such action has either the motivation or the
In 1933, when deportations reached their zenith, the Secretary of
right to appeal from it."
Labor temporarily suspended numerous deportations on grounds of
hardship, 78 Cong.Rec. 11783 (1934), and proposed legislation to
Ante at 462 U. S. 957, n. 22. It is perhaps on the erroneous premise allow certain deportable aliens to remain in the country. H.R. 9725,
that judicial review may check abuses of the § 244 power that the 73d Cong., 2d Sess. (1934). The Labor Department bill was opposed,
Court also submits that however, as "grant[ing] too much discretionary authority," 78
Cong.Rec. 11790 (1934) (remarks of Rep. Dirksen), and it failed
decisively. Id. at 11791.
"[t]he bicameral process is not necessary as a check on the Executive's
administration of the laws, because his administrative activity cannot
reach beyond the limits of the statute that created it -- a statute duly The following year, the administration proposed bills to authorize an
enacted pursuant to Art. I, §§ 1, 7." interdepartmental committee to grant permanent residence to
deportable aliens who had lived in the United States for 10 years or
who had close relatives here. S. 2969 and H.R. 8163, 74th Cong., 1st
Ante at 462 U. S. 953, n. 16. On the other hand, the Court's reasoning
Sess. (1935). These bills were also attacked as an "abandonment of
does persuasively explain why a resolution of disapproval
congressional control over the deportation of undesirable aliens,"
H.R.Rep. No. 1110, 74th Cong., 1st Sess., pt. 2, p. 2 (1935), and were
Page 462 U. S. 989 not enacted. A similar fate awaited a bill introduced in the 75th
Congress that would have authorized the Secretary to grant permanent
under § 244(c)(2) need not again be subject to the bicameral process. residence to up to 8,000 deportable aliens. The measure passed the
Because it serves only to check the Attorney General's exercise of the House, but did not come to a vote in the Senate. H.R. 6391, 75th
suspension authority granted by § 244, the disapproval resolution -- Cong., 1st Sess., 83 Cong.Rec. 8992-8996 (1938).
unlike the Attorney General's action -- "cannot reach beyond the limits
of the statute that created it -- a statute duly enacted pursuant to Art. Page 462 U. S. 992
I."
The succeeding Congress again attempted to find a legislative solution
More fundamentally, even if the Court correctly characterizes the to the deportation problem. The initial House bill required
Attorney General's authority under § 244 as an Art. II Executive power, congressional action to cancel individual deportations, 84 Cong.Rec.
the Court concedes that certain administrative agency action, such as 10455 (1939), but the Senate amended the legislation to provide that
rulemaking, "may resemble lawmaking" and recognizes that deportable aliens should not be deported unless the Congress, by Act
or resolution, rejected the recommendation of the Secretary. H.R.
"[t]his Court has referred to agency activity as being 'quasi-legislative' 5138, § 10, as reported with amendments by S.Rep. No. 1721, 76th
in character. Humphrey's Executor v. United States, 295 U. S. 602, 295 Cong., 3d Sess., 2 (1940). The compromise solution, the immediate
U. S. 628 (1935)." predecessor to § 244(c), allowed the Attorney General to suspend the
deportation of qualified aliens. Their deportation would be canceled
and permanent residence granted if the House and Senate did not
Ante at 462 U. S. 953, n. 16. Such rules and adjudications by the adopt a concurrent resolution of disapproval. S.Rep. No. 1796, 76th
agencies meet the Court's own definition of legislative action for they Cong., 3d Sess., 5-6 (1940). The Executive Branch played a major role
"alte[r] the legal rights, duties, and relations of persons . . . outside in fashioning this compromise, see 86 Cong.Rec. 8345 (1940), and
the Legislative Branch," ante at 462 U. S. 952, and involve President Roosevelt approved the legislation, which became the Alien
"determinations of policy," ante at 462 U. S. 954. Under the Court's Registration Act of 1940, ch. 439, 54 Stat. 670.
analysis, the Executive Branch and the independent agencies may
make rules with the effect of law while Congress, in whom the Framers
confided the legislative power, Art. I, § 1, may not exercise a veto In 1947, the Department of Justice requested legislation authorizing
which precludes such rules from having operative force. If the effective the Attorney General to cancel deportations without congressional
functioning of a complex modern government requires the delegation review. H.R. 2933, 80th Cong., 1st Sess. (1947). The purpose of the
of vast authority which, by virtue of its breadth, is legislative or "quasi- proposal was to "save time and energy of everyone concerned. . . ."
legislative" in character, I cannot accept that Art. I -- which is, after all, Regulating Powers of the Attorney General to Suspend Deportation of
the source of the nondelegation doctrine -- should forbid Congress to Aliens: Hearings on H.R. 245, H.R. 674, H.R. 1115, and H.R. 2933
qualify that grant with a legislative veto. [Footnote 3/21] before the Subcommittee on Immigration of the House Committee on
the Judiciary, 80th Cong., 1st Sess., 34 (1947). The Senate Judiciary
Committee objected, stating that "affirmative action by the Congress in
Page 462 U. S. 990 all suspension cases should be required before deportation
proceedings may be canceled." S.Rep. No. 1204, 80th Cong., 2d Sess., Page 462 U. S. 995
4 (1948). See also H.R.Rep. No. 647, 80th Cong., 1st Sess., 2 (1947).
Congress not only rejected the Department's request for final
of each of the three relevant actors. The disagreement of any one of
authority, but also amended the Immigration Act to require that
the three maintains the alien's preexisting status: the Executive may
cancellation of deportation be approved
choose not to recommend suspension; the House and Senate may
each veto the recommendation. The effect on the rights and
Page 462 U. S. 993 obligations of the affected individuals and upon the legislative system
is precisely the same as if a private bill were introduced but failed to
receive the necessary approval.
by a concurrent resolution of the Congress. President Truman signed
the bill without objection. Act of July 1, 1948, ch. 783, 62 Stat. 1206.
"The President and the two Houses enjoy exactly the same say in what
the law is to be as would have been true for each without the presence
Practice over the ensuing several years convinced Congress that the
of the one-House veto, and nothing in the law is changed absent the
requirement of affirmative approval was "not workable . . . and would,
concurrence of the President and a majority in each House."
in time, interfere with the legislative work of the House." House
Judiciary Committee, H.R.Rep. No. 362, 81st Cong., 1st Sess., 2
(1949). In preparing the comprehensive Immigration and Nationality Atkins v. United States, 214 Ct.Cl. 186, 250, 556 F.2d 1028, 1064
Act of 1952, the Senate Judiciary Committee recommended that, for (1977), cert. denied, 434 U.S. 1009 (1978).
certain classes of aliens, the adjustment of status be subject to the
disapproval of either House; but deportation of an alien "who is of the
This very construction of the Presentment Clauses which the Executive
criminal, subversive, or immoral classes or who overstays his period of
Branch now rejects was the basis upon which the Executive Branch
admission," would be canceled only upon a concurrent resolution
defended the constitutionality of the Reorganization Act, 5 U.S.C. §
disapproving the deportation. S.Rep. No. 1515, 81st Cong., 2d Sess.,
906(a) (1982 ed.), which provides that the President's proposed
610 (1950). Legislation reflecting this change was passed by both
reorganization plans take effect only if not vetoed by either House.
Houses, and enacted into law as part of the Immigration and
When the Department of Justice advised the Senate on the
Nationality Act of 1952 over President Truman's veto, which was not
constitutionality of congressional review in reorganization legislation in
predicated on the presence of a legislative veto. Pub.L. 414, § 244(a),
1949, it stated:
66 Stat. 214. In subsequent years, the Congress refused further
requests that the Attorney General be given final authority to grant
discretionary relief for specified categories of aliens, and § 244 "In this procedure, there is no question involved of the Congress
remained intact to the present. taking legislative action beyond its initial passage of the Reorganization
Act."
Section 244(a)(1) authorizes the Attorney General, in his discretion, to
suspend the deportation of certain aliens who are otherwise deportable S.Rep. No. 232, 81st Cong., 1st Sess., 20 (1949) (Dept. of Justice
and, upon Congress' approval, to adjust their status to that of aliens Memorandum). This also represents the position of the Attorney
lawfully admitted for permanent residence. In order to be eligible for General more recently. [Footnote 3/22]
this relief, an alien must have been physically present in the United
States for a continuous period of not less than seven years, must Page 462 U. S. 996
prove he is of good moral character, and must prove that he or his
immediate family would suffer "extreme hardship" if he is deported.
Judicial review of a denial of relief may be sought. Thus, the Thus understood, § 244(c)(2) fully effectuates the purposes of the
suspension proceeding bicameralism and presentment requirements. I now briefly consider
possible objections to the analysis.
"has two phases: a
First, it may be asserted that Chadha's status before legislative
disapproval is one of nondeportation, and that the exercise of the veto,
Page 462 U. S. 994 unlike the failure of a private bill, works a change in the status
quo. This position plainly ignores the statutory language. At no place in
determination whether the statutory conditions have been met, which § 244 has Congress delegated to the Attorney General any final power
generally involves a question of law, and a determination whether to determine which aliens shall be allowed to remain in the United
relief shall be granted, which [ultimately] is confided to the sound States. Congress has retained the ultimate power to pass on such
discretion of the Attorney General [and his delegates]." changes in deportable status. By its own terms, § 244(a) states that
whatever power the Attorney General has been delegated to suspend
deportation and adjust status is to be exercisable only "[a]s hereinafter
2 C. Gordon & H. Rosenfield, Immigration Law and Procedure §
prescribed in this section." Subsection (c) is part of that section. A
7.9a(5), p. 7-134 (rev. ed.1983).
grant of "suspension" does not cancel the alien's deportation or adjust
the alien's status to that of a permanent resident alien. A suspension
There is also a third phase to the process. Under § 244(c)(1), the order is merely a "deferment of deportation," McGrath v.
Attorney General must report all such suspensions, with a detailed Kristensen, 340 U. S. 162, 340 U. S. 168 (1950), which can mature
statement of facts and reasons, to the Congress. Either House may into a cancellation of deportation and adjustment of status only upon
then act, in that session or the next, to block the suspension of the approval of Congress -- by way of silence -- under § 244(c)(2).
deportation by passing a resolution of disapproval. § 244(c)(2). Upon Only then does the statute authorize the Attorney General to "cancel
congressional approval of the suspension -- by its silence -- the alien's deportation proceedings," § 244(c)(2), and "record the alien's lawful
permanent status is adjusted to that of a lawful resident alien. admission for permanent residence. . . ." § 244(d). The Immigration
and Naturalization Service's action, on behalf of the Attorney General,
"cannot become effective without ratification by Congress." 2 C.
The history of the Immigration and Nationality Act makes clear that §
Gordon & H. Rosenfield, Immigration Law
244(c)(2) did not alter the division of actual authority between
Congress and the Executive. At all times, whether through private bills,
or through affirmative concurrent resolutions, or through the present Page 462 U. S. 997
one-House veto, a permanent change in a deportable alien's status
could be accomplished only with the agreement of the Attorney
and Procedure 8.14, p. 8-121 (rev. ed.1983). Until that ratification
General, the House, and the Senate.
occurs, the Executive's action is simply a recommendation that
Congress finalize the suspension -- in itself, it works no legal change.
2
Second, it may be said that this approach leads to the incongruity that
The central concern of the presentment and bicameralism the two-House veto is more suspect than its one-House brother.
requirements of Art. I is that, when a departure from the legal status Although the idea may be initially counterintuitive, on close analysis, it
quo is undertaken, it is done with the approval of the President and is not at all unusual that the one-House veto is of more certain
both Houses of Congress -- or, in the event of a Presidential veto, a constitutionality than the two-House version. If the Attorney General's
two-thirds majority in both Houses. This interest is fully satisfied by the action is a proposal for legislation, then the disapproval of but a single
operation of § 244(c)(2). The President's approval is found in the House is all that is required to prevent its passage. Because approval is
Attorney General's action in recommending to Congress that the indicated by the failure to veto, the one-House veto satisfies the
deportation order for a given alien be suspended. The House and the requirement of bicameral approval. The two-House version may
Senate indicate their approval of the Executive's action by not passing present a different question. The concept that "neither branch of
a resolution of disapproval within the statutory period. Thus, a change Congress, when acting separately, can lawfully exercise more power
in the legal status quo -- the deportability of the alien -- is than is conferred by the Constitution on the whole body," Kilbourn v.
consummated only with the approval
Thompson, 103 U. S. 168, 103 U. S. 182 (1881), is fully observed. This is the teaching of Nixon v. Administrator of General Services, 433
[Footnote 3/23] U. S. 425 (1977), which, in rejecting a separation of powers objection
to a law requiring that the Administrator take custody of certain
Presidential papers, set forth a framework for evaluating such claims:
Third, it may be objected that Congress cannot indicate its approval of
legislative change by inaction. In the Court of Appeals' view, inaction
by Congress "could equally imply endorsement, acquiescence, "[I]n determining whether the Act disrupts the proper balance between
passivity, indecision, or indifference," 634 F.2d 408, 435 (1980), and the coordinate branches, the proper inquiry focuses on the extent to
the Court appears to echo this concern, ante at 462 U. S. 958, n. 23. which it prevents the Executive Branch from accomplishing its
This objection appears more properly directed at the wisdom of the constitutionally assigned functions. United States v. Nixon, 418 U.S.
legislative veto than its constitutionality. The Constitution does not and at 418 U. S. 711-712. Only where the potential for disruption is present
cannot guarantee that legislators will carefully scrutinize legislation and must we then determine whether that impact is justified by an
deliberate before acting. In a democracy, it is the electorate that holds overriding need to promote objectives within the constitutional
the legislators accountable for the wisdom of their choices. It is hard to authority of Congress."
maintain that a private bill receives any greater individualized scrutiny
than a resolution
Id. at 433 U. S. 443.

Page 462 U. S. 998

Section 244(c)(2) survives this test. The legislative veto provision does
not "preven[t] the Executive Branch from accomplishing its
of disapproval under § 244(c)(2). Certainly the legislative veto is no constitutionally assigned functions." First, it is clear that the Executive
more susceptible to this attack than the Court's increasingly common Branch has no "constitutionally assigned" function of suspending the
practice of according weight to the failure of Congress to disturb an deportation of aliens. "[O]ver no conceivable subject is the legislative
Executive or independent agency's action. See 462 U.S. 919fn3/11|>n. power of Congress more complete than it is over' the admission of
11, supra. Earlier this Term, the Court found it important that Congress aliens." Kleindienst v. Mandel, 408 U. S. 753, 408 U. S. 766 (1972),
failed to act on bills proposed to overturn the Internal Revenue quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U. S.
Service's interpretation of the requirements for tax-exempt status 320, 214 U. S. 339 (1909). Nor can it be said that the inherent
under § 501(c)(3) of the Internal Revenue Code. Bob Jones University function of the Executive Branch in executing the law is involved.
v. United States, 461 U. S. 574, 461 U. S. 600-601 (1983). If Congress The Steel Seizure Case resolved that the Art. II mandate for the
may be said to have ratified the Internal Revenue Service's President to execute the law is a directive to enforce the law which
interpretation without passing new legislation, Congress may also be Congress has written. Youngstown Sheet & Tube Co. v. Sawyer, 343
said to approve a suspension of deportation by the Attorney General U. S. 579 (1952).
when it fails to exercise its veto authority. [Footnote 3/24] The
requirements of Art. I are not compromised by the congressional
"The duty of the President to see that the laws be executed is a
scheme.

Page 462 U. S. 1001

IV

duty that does not go beyond the laws or require him to achieve more
The Court of Appeals struck § 244(c)(2) as violative of the
than Congress sees fit to leave within his power."
constitutional principle of separation of powers. It is true that the
purpose of separating the authority of Government is to prevent
unnecessary and dangerous concentration of power in one branch. For Myers v. United States, 272 U.S. at 272 U. S. 177 (Holmes, J.,
that reason, the Framers saw fit to divide and balance the powers of dissenting); id. at 272 U. S. 247 (Brandeis, J., dissenting). Here, § 244
Government so that each branch would be checked by the others. grants the Executive only a qualified suspension authority, and it is
Virtually every part of our constitutional system bears the mark of this only that authority which the President is constitutionally authorized to
judgment. execute.

Page 462 U. S. 999 Moreover, the Court believes that the legislative veto we consider
today is best characterized as an exercise of legislative or quasi-
legislative authority. Under this characterization, the practice does not,
But the history of the separation of powers doctrine is also a history of
even on the surface, constitute an infringement of executive or judicial
accommodation and practicality. Apprehensions of an overly powerful
prerogative. The Attorney General's suspension of deportation is
branch have not led to undue prophylactic measures that handicap the
equivalent to a proposal for legislation. The nature of the Attorney
effective working of the National Government as a whole. The
General's role as recommendatory is not altered because § 244
Constitution does not contemplate total separation of the three
provides for congressional action through disapproval, rather than by
branches of Government. Buckley v. Valeo, 424 U. S. 1, 424 U. S.
ratification. In comparison to private bills, which must be initiated in
121 (1976).
the Congress and which allow a Presidential veto to be overriden by a
two-thirds majority in both Houses of Congress, § 244 augments,
"[A] hermetic sealing off of the three branches of Government from rather than reduces, the Executive Branch's authority. So understood,
one another would preclude the establishment of a Nation capable of congressional review does not undermine, as the Court of Appeals
governing itself effectively." thought, the "weight and dignity" that attends the decisions of the
Executive Branch.
Ibid. [Footnote 3/25]
Nor does § 244 infringe on the judicial power, as JUSTICE POWELL
would hold. Section 244 makes clear that Congress has reserved its
Our decisions reflect this judgment. As already noted, the Court,
own judgment as part of the statutory process. Congressional action
recognizing that modern government must address a formidable
does not substitute for judicial review of the Attorney General's
agenda of complex policy issues, countenanced the delegation of
decisions. The Act provides for judicial review of the refusal of the
extensive legislative authority to Executive and independent
Attorney General to suspend a deportation and to transmit a
agencies. J. W. Hampton & Co. v. United States, 276 U. S. 394, 276 U.
recommendation to Congress. INS v. Jong Ha Wang, 450 U. S.
S. 406 (1928). The separation-of-powers doctrine has heretofore led to
139 (1981) (per curiam). But the courts have not been given the
the invalidation of Government action only when the challenged action
authority to review whether an alien should be given permanent
violated some express provision in the Constitution. In Buckley v.
status; review is limited to whether the Attorney General has properly
Valeo, supra, at 424 U. S. 118-124 (per curiam), and Myers v. United
States, 272 U. S. 52 (1926), congressional action compromised the
appointment power of the President. See also Springer v. Philippine Page 462 U. S. 1002
Islands, 277 U. S. 189, 277 U. S. 200-201 (1928). In United States v.
Klein, 13 Wall. 128 (1872), an Act of Congress was struck for
applied the statutory standards for essentially denying the alien a
encroaching upon judicial
recommendation that his deportable status be changed by the
Congress. Moreover, there is no constitutional obligation to provide
Page 462 U. S. 1000 any judicial review whatever for a failure to suspend deportation.

power, but the Court found that the Act also impinged upon the "The power of Congress, therefore, to expel, like the power to exclude
Executive's exclusive pardon power. Art. II, § 2. Because we must aliens, or any specified class of aliens, from the country, may be
have a workable efficient Government, this is as it should be. exercised entirely through executive officers; or Congress may call in
the aid of the judiciary to ascertain any contested facts on which an
alien's right to be in the country has been made by Congress to
depend."
Fong Yue Ting v. United States, 149 U. S. 698, 149 U. S. 713-714 "4. Department of Defense Appropriation Authorization Act, 1975,
(1893). See also Tutun v. United States, 270 U. S. 568, 270 U. S. Pub.L. No. 93-365, § 709(c), 88 Stat. 399, 408 (1974), [as amended,]
576 (1926); Ludecke v. Watkins, 335 U. S. 160, 335 U. S. 171-172 50 U.S.C. app. § 2403-1(c) [(1976 ed., Supp. V)] (Applications for
(1948); Harisiades v. Shaughnessy, 342 U. S. 580, 342 U. S. export of defense goods, technology or techniques may be
590 (1952). disapproved by concurrent resolution)."

I do not suggest that all legislative vetoes are necessarily consistent "5. H.R.J.Res. 683, Pub.L. No. 94-110, § 1, 89 Stat. 572 (1975), 22
with separation of powers principles. A legislative check on an U.S.C. § 2441 note (Assignment of civilian personnel to Sinai may be
inherently executive function, for example, that of initiating disapproved by concurrent resolution)."
prosecutions, poses an entirely different question. But the legislative
veto device here -- and in many other settings -- is far from an
"6. International Development and Food Assistance Act of 1975, Pub.L.
instance of legislative tyranny over the Executive. It is a necessary
No. 94-161, § 310, 89 Stat. 849, 860, [as amended,] 22 U.S.C. § 215m
check on the unavoidably expanding power of the agencies, both
[(1976 ed., Supp. V)] (Foreign assistance to countries not meeting
Executive and independent, as they engage in exercising authority
human rights standards may be terminated by concurrent resolution)."
delegated by Congress.

"7. International Security Assistance and Arms [Export] Control Act of

V
1976, Pub.L. No. 94-329, §[211(a)], 90 Stat. 729, 743, [as amended,]
22 U.S.C. § 2776(b) [(1976 ed. and Supp. V)] (President's letter of
I regret that I am in disagreement with my colleagues on the offer to sell major defense equipment may be disapproved by
fundamental questions that these cases present. But even more I concurrent resolution)."
regret the destructive scope of the Court's holding. It reflects a
profoundly different conception of the Constitution than that held by
"8. National Emergencies Act, Pub.L. No. 94-412, § 202, 90 Stat. 1255
the courts which sanctioned the modern administrative state. Today's
(1976), 50 U.S.C. § 1622 (Presidentially declared national emergency
decision strikes down in one fell swoop provisions in more laws
may be terminated by concurrent resolution)."
enacted by Congress than the Court has cumulatively invalidated in its
history. I fear it will now be more difficult to
"9. International Navigational Rules Act of 1977, Pub.L. No. 95-75, §
3(d), 91 Stat. 308, 33 U.S.C. § 1602(d) [(1976 ed., Supp. V)]
"insur[e] that the fundamental policy decisions in our society will be
(Presidential proclamation of International Regulations for Preventing
made not
Collisions at Sea may be disapproved by concurrent resolution)."

Page 462 U. S. 1003

"10. International Security Assistance Act of 1977, Pub.L. No. 95-92, §
16, 91 Stat. 614, 622, 22 U.S.C. § 2753(d)(2) (President's proposed
by an appointed official, but by the body immediately responsible to transfer of arms to a third country may be disapproved by concurrent
the people," resolution)."

Arizona v. California, 373 U. S. 546, 373 U. S. 626 (1963) (Harlan, J., "11. Act of December [28], 1977, Pub.L. No. 95-223, § [207(b)], 91
dissenting in part). I must dissent. Stat. 1625, 1628, 50 U.S.C. § 1706(b) [(1976 ed., Supp. V)]
(Presidentially declared national emergency and exercise of conditional
powers may be terminated by concurrent resolution). "
|462 U.S. 919app|

Page 462 U. S. 1005

APPENDIX TO OPINION OF WHITE, J., DISSENTING

"12. Nuclear Non-Proliferation Act of 1978, Pub.L. No. 95242, §§

STATUTES WITH PROVISIONS AUTHORIZING
[303(a), 304(a)], 306, 307, 401, 92 Stat. 120, 130, 134, 137-38, 139,
144, 42 U.S.C. §§ 2160(f), 2155(b), 2157(b), [2158] 2153(d) [(1976
CONGRESSIONAL REVIEW ed., Supp. V)] (Cooperative agreements concerning storage and
disposition of spent nuclear fuel, proposed export of nuclear facilities,
This compilation, reprinted from the Brief for the United States Senate, materials or technology and proposed agreements for international
identifies and describes briefly current statutory provisions for a cooperation in nuclear reactor development may be disapproved by
legislative veto by one or both Houses of Congress. Statutory concurrent resolution)."
provisions for a veto by Committees of the Congress and provisions
which require legislation (i.e., passage of a joint resolution) are not "B"
included. The 55 statutes in the compilation (some of which contain
more than one provision for legislative review) are divided into six
"BUDGET"
broad categories: foreign affairs and national security, budget,
international trade, energy, rulemaking and miscellaneous.
"13. Congressional Budget and Impoundment Control Act of 1974,
Pub.L. No. 93-344, § 1013, 88 Stat. 297, 334-35, 31 U.S.C. § 1403
"A"
(The proposed deferral of budget authority provided for a specific
project or purpose may be disapproved by an impoundment resolution
"FOREIGN AFFAIRS AND NATIONAL SECURITY" by either House)."

"1. Act for International Development of 1961, Pub.L. No. 87-195, § "C"
617, 75 Stat. 424, 444, [as amended,] 22 U.S.C. § 2367 [(1976 ed.,
Supp. V)] (Funds made available for foreign assistance under the Act
"INTERNATIONAL TRADE"
may be terminated by concurrent resolution)."

"14. Trade Expansion Act of 1962, Pub.L. No. 87-794, § 351, 76 Stat.
"2. War Powers Resolution, Pub.L. No. 93-148, § 5, 87 Stat. 555, 556-
872, 899, 19 U.S.C. § 1981(a) (Tariff or duty recommended by Tariff
557 (1973), [as amended,] 50 U.S.C. § 1544 [(1976 ed. and Supp. V)]
Commission may be imposed by concurrent resolution of approval)."
(Absent declaration of war, President may be directed by concurrent
resolution to remove United States armed forces engaged in foreign
hostilities.)" "15. Trade Act of 1974, Pub.L. No. 93-618, §§ 203(c), 302(b), 402(d),
407, 88 Stat.1978, 2016, 2043, 2057-60, 2063-64, [as amended,] 19
U.S.C. §§ 2253(c), 2412(b), 2432, [2437 (1976 ed. and Supp. V)]
"3. Department of Defense Appropriation Authorization Act, 1974,
(Proposed Presidential actions on import relief and actions concerning
Pub.L. No. 93-155, § 807, 87 Stat. 605, 615 (1973), 50 U.S.C. § 1431
certain countries may be disapproved by concurrent resolution; various
(National defense contracts obligating the United States for any
Presidential proposals for waiver extensions and for extension of
amount in excess of $25,000,000 may be disapproved by resolution of
nondiscriminatory treatment to products of foreign countries may be
either House). "
disapproved by simple (either House) or concurrent resolutions)."

Page 462 U. S. 1004

"16. Export-Import Bank Amendments of 1974, Pub.L. No. 93-646, § 8,
88 Stat. 2333, 2336, 12 U.S.C. § [635e(b)] (Presidentially proposed
limitation for exports to USSR in
Page 462 U. S. 1006 disapproved by resolution of either House) (President's proposals to
overcome energy shortage through synthetic fuels development, and
individual contracts to purchase more than 75,000 barrels per day,
excess of $300,000,000 must be approved by concurrent resolution)."
including use of loans or guarantees, may be disapproved by resolution
of either House) (procedures for either House to disapprove proposals
"D" made under Act are established) (request by Synthetic Fuels
Corporation (SFC) for additional time to submit its comprehensive
"ENERGY" strategy may be disapproved by resolution of either House) (proposed
amendment to comprehensive strategy by SFC Board of Directors may
be disapproved by concurrent resolution of either House or by failure
"17. Act of November 16, 1973, Pub.L. No. 93-153, § 101, 87 Stat. of both Houses to pass concurrent resolution of approval) (procedure
576, 582, 30 U.S.C. § 185(u) (Continuation of oil exports being made for either House to disapprove certain proposed actions of SFC is
pursuant to President's finding that such exports are in the national established) (procedure for both Houses to approve by concurrent
interest may be disapproved by concurrent resolution)." resolution or either House to reject concurrent resolution for proposed
amendments to comprehensive strategy of SFC is established)
"18. Federal Nonnuclear Energy Research and Development Act of (proposed loans and loan guarantees by SFC may be disapproved by
1974, Pub.L. No. 93-577, § 12, 88 Stat. 1878, 1892-1893, 42 U.S.C. § resolution of either House) (acquisition by SFC of a synthetic fuels
5911 (Rules or orders proposed by the President concerning allocation project which is receiving financial assistance may be disapproved by
or acquisition of essential materials may be disapproved by resolution resolution of either House) (SFC contract renegotiations exceeding
of either House)." initial cost estimates by 175% may be disapproved by resolution of
either House) (proposed financial assistance to synthetic fuel projects
in Western Hemisphere outside United States may be disapproved by
"19. Energy Policy and Conservation Act, Pub.L. No. 94163, § 551, 89 resolution of either House) (President's request to suspend provisions
Stat. 871, 965 (1975), 42 U.S.C. § 6421(c) (Certain Presidentially requiring build up of reserves and limiting sale or disposal of certain
proposed 'energy actions' involving fuel economy and pricing may be crude oil reserves must be approved by resolution of both Houses)."
disapproved by resolution of either House)."

"E"
"20. Naval Petroleum Reserves Production Act of 1976, Pub.L. No. 94-
258, § [201(3)], 90 Stat. 303, 309, 10 U.S.C. § 7422(c)(2)(C)
(President's extension of production period for naval petroleum "RULEMAKING"
reserves may be disapproved by resolution of either House)."
"27. Education Amendments of 1974, Pub.L. No. 93-380, § [509(a)],
"22. Department of Energy Act of 1978 -- Civilian Applications, Pub.L. 88 Stat. 484, 567, 20 U.S.C. § 1232(d)(1) [(1976 ed.,
No. 95-238, §§ 107, 207(b), 92 Stat. 47, 55, 70, 22 U.S.C. § 3224a, 42
U.S.C. § 5919(m) [(1976 ed., Supp. V)] (International agreements and Page 462 U. S. 1009
expenditures by Secretary of Energy of appropriations for foreign spent
nuclear fuel storage must be approved by concurrent resolution, if not
consented to by legislation) (plans for such use of appropriated funds Supp. V)] (Department of Education regulations may be disapproved
may be disapproved by either House) (financing in excess of by concurrent resolution)."
$50,000,000 for demonstration facilities must be approved by
resolution in both Houses). " "28. Federal Education Campaign Act Amendments of 1979, Pub.L. No.
96-187, § 109, 93 Stat. 1339, 1364, 2 U.S.C. � 438(d)(2) [(1976 ed.,
Page 462 U. S. 1007 Supp. V)] (Proposed rules and regulations of the Federal Election
Commission may be disapproved by resolution of either House)."

"23. Outer Continental Shelf Lands Act Amendments of 1978, Pub.L.

No. 95-372, §§ 205(a), 208, 92 Stat. 629, 641-668, 43 U.S.C. §§ "29. Act of January 2, 1975, Pub.L. No. 93-595, § [2(a)(1)], 88
1337(a), 1354(c) [(1976 ed., Supp. V); (Establishment by Secretary of Stat.1926, 1948, 28 U.S.C. § 2076 (Proposed amendments by Supreme
Energy of oil and gas lease bidding system may be disapproved by Court of Federal Rules of Evidence may be disapproved by resolution
resolution of either House) (export of oil and gas may be disapproved of either House)."
by concurrent resolution).]"
"30. Act of August 9, 1975, Pub.L. No. 94-88, § 208, 89 Stat. 433, 436-
"24. Natural Gas Policy Act of 1978, Pub.L. No. 95-621, §§ 122(c)(1) 37, 42 U.S.C. § 602 note (Social Security standards proposed by
and (2), 202(c), 206(d)(2), 507, 92 Stat. 3350, 3370 3371, 3372, Secretary of Health and Human Services may be disapproved by either
3380, 3406, 15 U.S.C. §§ 3332, 3342(c), 3346(d)(2), 3417 [(1976 ed., House)."
Supp. V)] (Presidential reimposition of natural gas price controls may
be disapproved by concurrent resolution) (Congress may reimpose "31. Airline Deregulation Act of 1978, Pub.L. No. 95-504, § 43(f)(3), 92
natural gas price controls by concurrent resolution) (Federal Energy Stat. 1705, 1752, 49 U.S.C. § 1552(f) [(1976 ed., Supp. V)] (Rules or
Regulatory Commission (FERC) amendment to pass through regulations governing employee protection program may be
incremental costs of natural gas, and exemptions therefrom, may be disapproved by resolution of either House)."
disapproved by resolution of either House) (procedure for
congressional review established)."
"32. Education Amendments of 1978, Pub.L. No. 95-561, §§ 1138,
[212(b)], 1409, 92 Stat. 2143, 2327, 2341, 2369, 25 U.S.C. § 2018, 20
"25. Export Administration Act of 1979, Pub.L. No. 9672, §§ [7(d)(2) U.S.C. §§ [927], 1221-3(e) [(1976 ed., Supp. V)] (Rules and
(B)] 7(g)(3), 93 Stat. 503, 518, 520, 50 U.S.C. app. §§2406(d)(2)(B), regulations proposed under the Act may be disapproved by concurrent
2406(g)(3) [(1976 ed., Supp. V)] (President's proposal to [export] resolution)."
domestically produce[d] crude oil must be approved by concurrent
resolution) (action by Secretary of Commerce to prohibit or curtail
"33. Civil Rights of Institutionalized Persons Act, Pub.L. No. 96-247, §
export of agricultural commodities may be disapproved by concurrent
7(b)(1), 94 Stat. 349, 352-353 (1980) 42 U.S.C. § 1997e [(1976 ed.,
resolution)."
Supp. V)] (Attorney General's proposed standards for resolution of
grievances of adults confined in correctional facilities may be
"26. Energy Security Act, Pub.L. No. 96-294, §§ 104 (b)(3), 104(e), disapproved by resolution of either House)."
126(d)(2), 126(d)(3), 128, 129, 132(a)(3), 133 (a)(3), 137(b)(5),
141(d), 179(a), 803, 94 Stat. 611, 618, 619, 620, 623-26, 628-29, 649,
"34. Federal Trade Commission Improvements Act of 1980, Pub.L. No.
650-52, 659, 660, 664, 666, 679, 776 (1980) 50 U.S.C. app. §§ 2091-
96-252, § 21(a), 94 Stat. 374, 393, 15 U.S.C. § 57a-1 [(1976 ed.,
93, 2095, 2096, 2097, 42 U.S.C. 8722, 8724, 8725, 8732, 8733, 8737,
Supp. V)] (Federal Trade Commission rules may be disapproved by
8741, 8779, 6240 [(1976 ed., Supp. V)] (Loan guarantees by
concurrent resolution)."
Departments of Defense, Energy and Commerce in excess of specified
amounts may be disapproved by resolution of either House)
(President's proposal to provide loans or guarantees in excess "35 Department of Education Organization Act, Pub.L. No. 96-88, §
414(b), 93 Stat. 668, 685 (1979), 20 U.S.C. § 3474
Page 462 U. S. 1008
Page 462 U. S. 1010
of established amounts may be disapproved by resolution of either
House) (proposed award by President of individual contracts for
purchase of more than 75,000 barrels per day of crude oil may be
[(1976 ed., Supp. V)] (Rules and regulations promulgated with respect "45. Federal Pay Comparability Act of 1970, Pub.L. No. 91-656, § 3, 84
to the various functions, programs and responsibilities transferred by Stat.1946, 1949, 5 U.S.C. § 5305 (President's alternative pay plan may
this Act, may be disapproved by concurrent resolution)." be disapproved by resolution of either House)."

"36. Multiemployer Pension Plan Amendments Act of 1980, Pub.L. No. "46. Act of October 19, 1973, Pub.L. No. 93-134, § 5, 87 Stat. 466,
96-364, § 102, 94 Stat. 1208, 1213, 29 U.S.C. § 1322a [(1976 ed., 468, 25 U.S.C. § 1405 (Plan for use and distribution of funds paid in
Supp. V)] (Schedules proposed by Pension Benefit Guaranty satisfaction of judgment of Indian Claims Commission or Court of
Corporation (PBGC) which requires an increase in premiums must be Claims may be disapproved by resolution of either House)."
approved by concurrent resolution) (revised premium schedules for
voluntary supplemental coverage proposed by PBGC may be
"47. Menominee Restoration Act, Pub.L. No. 93-197, § 6, 87 Stat. 770,
disapproved by concurrent resolution)."
773 (1973), 25 U.S.C. § 903d(b) (Plan by Secretary of the Interior for
assumption of the assets [of] the Menominee Indian corporation may
"37. Farm Credit Act Amendments of 1980, Pub.L. No. 96-592, §508, be disapproved by resolution of either House)."
94 Stat. 3437, 3450, 12 U.S.C. § [2252 (1976 ed., Supp. V)] (Certain
Farm Credit Administration regulations may be disapproved by
"48. District of Columbia Self-Government and Governmental
concurrent resolution or delayed by resolution of either House.)"
Reorganization Act, Pub.L. No. 93-198, §§ 303, 602(c)(1) and (2), 87
Stat. 774, 784, 814 (1973) (District of Columbia Charter amendments
"38. Comprehensive Environmental Response, Compensation, and ratified by electors must be approved by concurrent resolution) (acts of
Liability Act of 1980, Pub.L. No. 96-510, § 305, 94 Stat. 2767, 2809, 42 District of Columbia Council may be disapproved by concurrent
U.S.C. § 9655 [(1976 ed., Supp. V)] (Environmental Protection Agency resolution) (acts of District of Columbia Council under certain titles of
regulations concerning hazardous substances releases, liability and D.C.Code may be disapproved by resolution of either House)."
compensation may be disapproved by concurrent resolution or by the
adoption of either House of a concurrent resolution which is not
"49. Act of December 31, 1975, Pub.L. No. 94-200, § 102, 89 Stat.
disapproved by the other House)."
1124, 12 U.S.C. §461 note (Federal Reserve System Board of
Governors may not eliminate or reduce interest rate differentials
"39. National Historic Preservation Act Amendments of 1980, Pub.L. between banks insured by Federal Deposit Insurance Corporation and
No. 96-515, § 501, 94 Stat. 2987, 3004, 16 U.S.C. § 470w-6 [(1976 associations insured by Federal Savings and Loan Insurance
ed., Supp. V)] (Regulation proposed by the Secretary of the Interior Corporations without concurrent resolution of approval)."
may be disapproved by concurrent resolution)."
"50. Veterans' Education and Employment Assistance Act of 1976,
"40. Coastal Zone Management Improvement Act of 1980, Pub.L. No. Pub.L. No. 94-502, § 408, 90 Stat. 2383, 2397-98, 38 U.S.C. § 1621
96-464, § 12, 94 Stat. 2060, 2067, 16 U.S.C. § 1463a [(1976 ed., note (President's recommendation for continued enrollment period in
Supp. V)] (Rules proposed by the Secretary of Commerce may be Armed Forces educational assistance program may be disapproved by
disapproved by concurrent resolution)." resolution of either House). "

"41. Act of December 17, 1980, Pub.L. No. 96-539, § 4, 94 Stat. 3194, Page 462 U. S. 1013
3195, 7 U.S.C. § 136w [(1976 ed., Supp. V)] (Rules or regulations
promulgated by the Administrator of the Environmental
"51. Federal Land Policy and Management Act of 1976, Pub.L. No. 94-
579, §§ 203(c), 204(c)(1), 90 Stat. 2743, 2750, 2752, 43 U.S.C. §§
Page 462 U. S. 1011 1713(c), 1714 (Sale of public lands in excess of two thousand five
hundred acres and withdrawal of public lands aggregating five
thousand acres or more may be disapproved by concurrent
Protection Agency under the Federal Insecticide, Fungicide and
resolution)."
Rodenticide Act may be disapproved by concurrent resolution)."

"52. Emergency Unemployment Compensation Extension Act of 1977,

"42. Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, §§
Pub.L. No. 95-19, § [401(a)] 91 Stat. 39, 45, 2 U.S.C. § 359 [(1976
§ 533(a)(2), 1107(d), 1142, 1183(a)(2), 1207, 95 Stat. 357, 453, 626,
ed., Supp. V)] (President's recommendations regarding rates of salary
654, 659, 695, 718-20, 20 U.S.C. § 1089, 23 U.S.C. § 402(j), 45 U.S.C.
payment may be disapproved by resolution of either House)."
§§ 761, 767, 564(c)(3), 15 U.S.C. §§ 2083, 1276, 1204 [(1976 ed.,
Supp. V)] (Secretary of Education's schedule of expected family
contributions for Pell Grant recipients may be disapproved by "53. Civil Service Reform Act of 1978, Pub.L. No. 95-454, § 415, 92
resolution of either House) (rules promulgated by Secretary of Stat. 1111, 1179, 5 U.S.C. § 3131 note [(1976 ed., Supp. V)]
Transportation for programs to reduce accidents, injuries and deaths (Continuation of Senior Executive Service may be disapproved by
may be disapproved by resolution of either House) (Secretary of concurrent resolution)."
Transportation's plan for the sale of government's common stock in rail
system may be disapproved by concurrent resolution) (Secretary of
"54. Full Employment and Balanced Growth Act of 1978, Pub.L. No. 95-
Transportation's approval of freight transfer agreements may be
523, § 304(b), 92 Stat. 1887, 1906, 31 U.S.C. § 1322 [(1976 ed.,
disapproved by resolution of either House) (amendments to Amtrak's
Supp. V)] (Presidential timetable for reducing unemployment may be
Route and Service Criteria may be disapproved by resolution of either
superseded by concurrent resolution)."
House) (Consumer Product Safety Commission regulations may be
disapproved by concurrent resolution of both Houses, or by concurrent
resolution of disapproval by either House if such resolution is not "55. District of Columbia Retirement Reform Act, Pub.L. No. 96-122, §
disapproved by the other House)." 164, 93 Stat. 866, 891-92 (1979) (Required reports to Congress on the
District of Columbia retirement program may be rejected by resolution
of either House)."
"F"

"56. Act of August 29, 1980, Pub.L. No. 96-332, § 2, 94 Stat. 1057,
"MISCELLANEOUS"
1058, 16 U.S.C. § 1432 [(1976 ed., Supp. V)] (Designation of marine
sanctuary by the Secretary of Commerce may be disapproved by
"43. Federal Civil Defense Act of 1950, Pub.L. No. 81920, § 201, 64 concurrent resolution)."
Stat. 1245, 1248, [as amended,] 50 app.U.S.C. § 2281(g) [(1976 ed.,
Supp. V)] (Interstate civil defense compacts may be disapproved by
[Footnote 3/1]
concurrent resolution)."

As JUSTICE POWELL observes in his separate opinion,

"44. National Aeronautics and Space Act of 1958, Pub.L. No. 85-568, §
[302(c)], 72 Stat. 426, 433, 42 U.S.C. § 2453 (President's transfer to
National Air and Space Administration of functions of other "the respect due [Congress'] judgment as a coordinate branch of
departments and agencies may be disapproved by concurrent Government cautions that our holding should be no more extensive
resolution). " than necessary to decide these cases."

Page 462 U. S. 1012 Ante at 462 U. S. 960. The Court of Appeals for the Ninth Circuit also
recognized that
"we are not here faced with a situation in which the unforeseeability of Executive. See App. B to Brief for United States Senate on
future circumstances or the broad scope and complexity of the subject Reargument.
matter of an agency's rulemaking authority preclude the articulation of
specific criteria in the governing statute itself. Such factors might
[Footnote 3/8]
present considerations different from those we find here, both as to
the question of separation of powers and the legitimacy of the
unicameral device." The veto appears in a host of broad statutory delegations concerning
energy rationing, contingency plans, strategic oil reserves, allocation of
energy production materials, oil exports, and naval petroleum reserve
634 F.2d 408, 433 (1980) (footnote omitted).
production. Naval Petroleum Reserves Production Act of 1976, Pub.L.
94-258, § 201(3), 90 Stat. 309, 10 U.S.C. § 7422(c)(2)(C); Energy
[Footnote 3/2] Policy and Conservation Act, Pub.L. 94-163, §§ 159, 201, 401(a), and
455, 89 Stat. 886, 890, 941, and 950, 42 U.S.C. §§ 6239 and 6261, 15
U.S.C. §§ 757 and 760a (strategic oil reserves, rationing and
A selected list and brief description of these provisions is 462 U.S.
contingency plans, oil price controls and product allocation); Federal
919app|>appended to this opinion.
Nonnuclear Energy Research and Development Act of 1974, Pub.L. 93-
577, § 12, 88 Stat. 1892-1893, 42 U.S.C. § 5911 (allocation of energy
[Footnote 3/3] production materials); Act of Nov. 16, 1973, Pub.L. 93-153, § 101, 87
Stat. 582, 30 U.S.C. § 185(u) (oil exports).
Watson, Congress Steps Out: A Look at Congressional Control of the
Executive, 63 Calif.L.Rev. 983, 1089-1090 (1975) (listing statutes). [Footnote 3/9]

[Footnote 3/4] Congress found that under the agency's

The Roosevelt administration submitted proposed legislation containing "very broad authority to prohibit conduct which is 'unfair or deceptive' .
veto provisions and defended their constitutionality. See, e.g., General . . the FTC can regulate virtually every aspect of America's commercial
Counsel to the Office of Price Administration, Statement on life. . . . The FTC's rules are not merely narrow interpretations of a
Constitutionality of Concurrent Resolution Provision of Proposed Price tightly drawn statute; instead, they are broad policy pronouncements
Control Bill (H.R. 5479), reprinted in Price-Control Bill: Hearings on which Congress has an obligation to study and review."
H.R. 5479 before the House Committee on Banking and Currency, 77th
Cong., 1st Sess., pt. 1, p. 983 (1941).
124 Cong.Rec. 5012 (1978) (statement by Rep. Broyhill). A two-House
legislative veto was added to constrain that broad delegation. Federal
[Footnote 3/5] Trade Commission Improvements Act of 1980, § 21(a), 94 Stat. 393,
15 U.S.C. § 57a-1(a) (1976 ed., Supp. V). The constitutionality of that
Presidential objections to the veto, until the veto by President Nixon of provision is presently pending before us. United States Senate v.
the War Powers Resolution, principally concerned bills authorizing Federal Trade Commission, No. 82-935; United States House of
Committee vetoes. As the Senate Subcommittee on Separation of Representatives v. Federal Trade Commission, No. 82-1044.
Powers found in 1969,
[Footnote 3/10]
"an accommodation was reached years ago on legislative vetoes
exercised by the entire Congress or by one House, [while] disputes While Congress could write certain statutes with greater specificity, it is
have continued to arise over the committee form of the veto." unlikely that this is a realistic or even desirable substitute for the
legislative veto. The controversial nature of many issues would prevent
S.Rep. No. 91-549, p. 14 (1969). Presidents Kennedy and Johnson Congress from reaching agreement on many major problems if
proposed enactment of statutes with legislative veto specificity were required in their enactments. Fuchs, Administrative
provisions. See National Wilderness Preservation Act: Hearings on S. 4 Agencies and the Energy Problem, 47 Ind.L.J. 606, 608 (1972);
before the Senate Committee on Interior and Insular Affairs, 88th Stewart, Reformation of American Administrative Law, 88 Harv.L.Rev.
Cong., 1st Sess., 4 (1963) (President Kennedy's proposals for 1667, 1695-1696 (1975). For example, in the deportation context, the
withdrawal of wilderness areas); President's Message to the Congress solution is not for Congress to create more refined categorizations of
Transmitting the Budget for Fiscal Year 1970, 5 Weekly the deportable aliens whose status should be subject to change. In
Comp.Pres.Doc. 70, 73 (1969) (President Johnson's proposals allowing 1979, the Immigration and Naturalization Service proposed regulations
legislative veto of tax surcharge). The administration of President setting forth factors to be considered in the exercise of discretion
Kennedy submitted a memorandum supporting the constitutionality of under numerous provisions of the Act, but not including § 244, to
the legislative veto. See General Counsel of the Department of ensure "fair and uniform" adjudication "under appropriate discretionary
Agriculture, Constitutionality of Title I of H.R. 6400, 87th Cong., 1st criteria." 44 Fed.Reg. 36187 (1979). The proposed rule was canceled
Session (1961), reprinted in Legislative Policy of the Bureau of the in 1981, because
Budget: Hearing before the Subcommittee on Conservation and Credit
of the House Committee on Agriculture, 89th Cong., 2d Sess., 27, 31- "[t]here is an inherent failure in any attempt to list those factors which
32 (1966). During the administration of President Johnson, the should be considered in the exercise of discretion. It is impossible to
Department of Justice again defended the constitutionality of the list or foresee all of the adverse or favorable factors which may be
legislative veto provision of the Reorganization Act, as contrasted with present in a given set of circumstances."
provisions for a Committee veto. See Separation of Powers: Hearings
before the Subcommittee on Separation of Powers of the Senate
46 Fed.Reg. 9119 (1981).
Committee on the Judiciary, 90th Cong., 1st Sess., 206 (1967)
(testimony of Frank M. Wozencraft, Assistant Attorney General for the
Office of Legal Counsel). Oversight hearings and congressional investigations have their
purpose, but unless Congress is to be rendered a think tank or
debating society, they are no substitute for the exercise of actual
[Footnote 3/6]
authority. The "delaying" procedure approved in Sibbach v. Wilson &
Co., 312 U. S. 1, 312 U. S. 15 (1941), while satisfactory for certain
National Aeronautics and Space Act of 1958, Pub.L. 85-568, § 302, 72 measures, has its own shortcomings. Because a new law must be
Stat. 433 (space program); Atomic Energy Act Amendments of 1958, passed to restrain administrative action, Congress must delegate
Pub.L. 85-479, § 4, 72 Stat. 277 (cooperative nuclear agreements); authority without the certain ability of being able to check its exercise.
Trade Expansion Act of 1962, Pub.L. 87-794, § 351, 76 Stat. 899, 19
U.S.C. § 1981 (tariff recommended by International Trade Commission
Finally, the passage of corrective legislation after agency regulations
may be imposed by concurrent resolution of approval); Postal Revenue
take effect or Executive Branch officials have acted entails the
and Federal Salary Act of 1967, Pub.L. 90-206, § 255(i)(1), 81 Stat.
drawbacks endemic to a retroactive response.
644.

"Post hoc substantive revision of legislation, the only available

[Footnote 3/7]
corrective mechanism in the absence of postenactment review, could
have serious prejudicial consequences; if Congress retroactively
The Impoundment Control Act's provision for legislative review has tampered with a price control system after prices have been set, the
been used extensively. Presidents have submitted hundreds of economy could be damaged and private rights seriously impaired; if
proposed budget deferrals, of which 65 have been disapproved by Congress rescinded the sale of arms to a foreign country, our relations
resolutions of the House or Senate with no protest by the with that country would be severely strained; and if Congress
reshuffled the bureaucracy after a President's reorganization proposal or Congressional Foresight: Guidelines From the Founding Fathers, 28
had taken effect, the results could be chaotic." Ad.L.Rev. 429 (1976); Ginnane, The Control of Federal Administration
by Congressional Resolutions and Committees, 66 Harv.L.Rev. 569
(1953); Henry, The Legislative Veto: In Search of Constitutional Limits,
Javits & Klein, Congressional Oversight and the Legislative Veto: A
16 Harv.J.Legis. 735 (1979); Martin, The Legislative Veto and the
Constitutional Analysis, 52 N.Y.U.L.Rev. 455, 464 (1977) (footnote
Responsible Exercise of Congressional Power, 68 Va.L.Rev. 253
omitted).
(1982); Scalia, The Legislative Veto: A False Remedy For System
Overload, 3 Regulation 19 (Nov.-Dec.1979); Watson, supra, 462 U.S.
[Footnote 3/11] 919fn3/3|>n. 3, at 983; Comment, Congressional Oversight of
Administrative Discretion: Defining the Proper Role of the Legislative
Perhaps I am wrong and the Court remains open to consider whether Veto, 26 Am.U.L.Rev. 1018 (1977); Note, Congressional Veto of
certain forms of the legislative veto are reconcilable with the Art. I Administrative Action: The Probable Response to a Constitutional
requirements. One possibility for the Court and Congress is to accept Challenge, 1976 Duke L.J. 285; Recent Developments, The Legislative
that a resolution of disapproval cannot be given legal effect in its own Veto in the Arms Export Control Act of 1976, 9 Law & Pol'y Int'l Bus.
right, but may serve as a guide in the interpretation of a delegation of 1029 (1977).
lawmaking authority. The exercise of the veto could be read as a
manifestation of legislative intent, which, unless itself contrary to the [Footnote 3/13]
authorizing statute, serves as the definitive construction of the statute.
Therefore, an agency rule vetoed by Congress would not be enforced
Compare Atkins v. United States, 214 Ct.Cl. 186, 556 F.2d 1028 (1977)
in the courts because the veto indicates that the agency action departs
(upholding legislative veto provision in Federal Salary Act, 2 U.S.C. §
from the congressional intent.
351 et seq.), cert. denied, 434 U.S. 1009 (1978), with Consumer
Energy Council of America v. FERC, 218 U.S.App.D.C. 34, 673 F.2d 425
This limited role for a redefined legislative veto follows in the steps of (1982) (holding unconstitutional the legislative veto provision in the
the longstanding practice of giving some weight to subsequent Natural Gas Policy Act of 1978, 15 U.S.C. §§ 3301-3342 (1976 ed.,
legislative reaction to administrative rulemaking. The silence of Supp. V)), appeals docketed, Nos. 81-2008, 81-2020, 81-2151, and 81-
Congress after consideration of a practice by the Executive may be 2171, and cert. pending, Nos. 82-177 and 82-209.
equivalent to acquiescence and consent that the practice be continued
until the power exercised be revoked. United States v. Midwest Oil
[Footnote 3/14]
Co., 236 U. S. 459, 236 U. S. 472-473 (1915). See also Zemel v.
Rusk, 381 U. S. 1, 381 U. S. 11-12 (1965) (relying on congressional
failure to repeal administration interpretation); Haig v. Agee, 453 U. S. See, e.g., 6 Op.Atty.Gen. 680, 683 (1854); Dept. of Justice,
280 (1981) (same); Bob Jones University v. United States, 461 U. S. Memorandum re Constitutionality of Provisions in Proposed
574 (1983) (same); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Reorganization Bills Now Pending in Congress, reprinted in S.Rep. No.
Curran, 456 U. S. 353, 456 U. S. 384 (1982) (relying on failure to 232, 81st Cong., 1st Sess., 19-20 (1949); Jackson, A Presidential Legal
disturb judicial decision in later revision of law). Opinion, 66 Harv.L.Rev. 1353 (1953); 43 Op.Atty.Gen. No. 10, p. 2
(1977).
Reliance on subsequent legislative reaction has been limited by the
fear of overturning the intent of the original Congress and the [Footnote 3/15]
unreliability of discerning the views of a subsequent
Congress. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447
I limit my concern here to those legislative vetoes which require either
U. S. 102, 447 U. S. 117-118 (1980); United States v. Price, 361 U. S.
one or both Houses of Congress to pass resolutions of approval or
304, 361 U. S. 313 (1960). These concerns are not forceful when the
disapproval, and leave aside the questions arising from the exercise of
original statute authorizes subsequent legislative review. The presence
such powers by Committees of Congress.
of the review provision constitutes an express authorization for a
subsequent Congress to participate in defining the meaning of the law.
Second, the disapproval resolution allows for a reliable determination [Footnote 3/16]
of congressional intent. Without the review mechanism, uncertainty
over the inferences to draw from subsequent congressional action is I agree with JUSTICE REHNQUIST that Congress did not intend the
understandable. The refusal to pass an amendment, for example, may one-House veto provision of § 244(c)(2) to be severable. Although the
indicate opposition to that position, but could mean that Congress general rule is that the presence of a saving clause creates a
believes the amendment is redundant with the statute as written. By presumption of divisibility, Champlin Refining Co. v. Corporation
contrast, the exercise of a legislative veto is an unmistakable indication Comm'n of Oklahoma, 286 U. S. 210, 286 U. S. 235 (1932), I read the
that the agency or Executive decision at issue is disfavored. This is not saving clause contained in § 406 of the Immigration and Nationality
to suggest that the failure to pass a veto resolution should be given Act as primarily pertaining to the severability of major parts of the Act
any weight whatever. from one another, not the divisibility of different provisions within a
single section. Surely, Congress would want the naturalization
[Footnote 3/12] provisions of the Act to be severable from the deportation sections. But
this does not support preserving § 244 without the legislative veto, any
more than a saving provision would justify preserving immigration
For commentary generally favorable to the legislative
authority without quota limits.
veto, see Abourezk, Congressional Veto: A Contemporary Response to
Executive Encroachment on Legislative Prerogatives, 52 Ind.L.J. 323
(1977); Cooper & Cooper, The Legislative Veto and the Constitution, More relevant is the fact that, for 40 years, Congress has insisted on
30 Geo.Wash.L.Rev. 467 (1962); Dry, The Congressional Veto and the retaining a voice on individual suspension cases -- it has frequently
Constitutional Separation of Powers, in The Presidency in the rejected bills which would place final authority in the Executive Branch.
Constitutional Order 195 (J. Bessette & J. Tulis eds.1981); Javits & It is clear that Congress believed its retention crucial. Given this
Klein, supra, 462 U.S. 919fn3/10|>n. 10, at 455; Miller & Knapp, The history, the Court's rewriting of the Act flouts the will of Congress.
Congressional Veto: Preserving the Constitutional Framework, 52 Ind.
L.J. 367 (1977); Nathanson, Separation of Powers and Administrative [Footnote 3/17]
Law: Delegation, the Legislative Veto, and the "Independent"
Agencies, 75 Nw.U.L.Rev. 1064 (1981); Newman & Keaton, Congress
and the Faithful Execution of Laws -- Should Legislators Supervise The Pennsylvania Constitution required that all "bills of [a] public
Administrators?, 41 Calif.L.Rev. 565 (1953); Pearson, Oversight: A Vital nature" had to be printed after being introduced, and had to lie over
Yet Neglected Congressional Function, 23 Kan.L.Rev. 277 (1975); until the following session of the legislature before adoption. Pa.Const.,
Rodino, Congressional Review of Executive Action, 5 Seton Hall L.Rev. § 15 (1776). These printing and layover requirements applied only to
489 (1974); Schwartz, Legislative Veto and the Constitution -- A "bills." At the time, measures could also be enacted as a resolve, which
Reexamination, 46 Geo.Wash.L.Rev. 351 (1978); Schwartz, Legislative was allowed by the Constitution as "urgent temporary legislation,"
Control of Administrative Rules and Regulations: I. The American without such requirements. A. Nevins, The American States During and
Experience, 30 N.Y.U.L.Rev. 1031 (1955); Stewart, Constitutionality of After the Revolution 152 (1969). Using this method, the Pennsylvania
the Legislative Veto, 13 Harv.J.Legis. 593 (1976). Legislature routinely evaded printing and layover requirements through
adoption of resolves. Ibid.
For commentary generally unfavorable to the legislative veto, see J.
Bolton, The Legislative Veto: Unseparating the Powers (1977); Bruff & A 1784 report of a committee of the Council of Censors, a state body
Gellhorn, Congressional Control of Administrative Regulation: A Study responsible for periodically reviewing the state government's
of Legislative Vetoes, 90 Harv.L.Rev. 1369 (1977); Dixon, The adherence to its Constitution, charged that the procedures for enacting
Congressional Veto and Separation of Powers: The Executive On a legislation had been evaded though the adoption of resolves, instead
Leash?, 56 N.C.L.Rev. 423 (1978); FitzGerald, Congressional Oversight of bills. Report of the Committee of the Council of Censors 13
(1784). See Nevins, supra, at 190. When, three years later, the federal
Constitutional Convention assembled in Philadelphia, the delegates "Legislative, or substantive, regulations are 'issued by an agency
were reminded, in the course of discussing the President's veto, of the pursuant to statutory authority and . . . implement the statute, as, for
dangers pointed out by the Council of Censors Report. 5 J. Elliot, example, the proxy rules issued by the Securities and Exchange
Debates on the Federal Constitution 430 (1845). Furthermore, Commission. . . . Such rules have the force and effect of law.' U.S.
Madison, who made the motion that led to the Presentment Clause, Dept. of Justice, Attorney General's Manual on the Administrative
knew of the Council of Censors Report, The Federalist No. 50, p. 319 Procedure Act 30, n. 3 (1947)."
(H. Lodge ed. 1888), and was aware of the Pennsylvania
experience. See The Federalist No. 48, supra, at 311-312. We have
Batterton v. Francis, 432 U.S. at 432 U. S. 425, n. 9.
previously recognized the relevance of the Council of Censors Report in
interpreting the Constitution. See Powell v. McCormack, 395 U. S.
486, 395 U. S. 529-530 (1969). Substantive agency regulations are clearly exercises of lawmaking
authority; agency interpretations of their statutes are only arguably so.
But as Henry Monaghan has observed: "Judicial deference to
[Footnote 3/18]
agency interpretation' of law is simply one way of recognizing a
delegation of lawmaking authority to an agency." Monaghan, Marbury
Although the legislative veto was not a feature of congressional and the Administrative State, 83 Colum.L.Rev. 1, 26 (1983) (emphasis
enactments until the 20th century, the practices of the first Congresses deleted). See, e.g., NLRB v. Hearst Publications, Inc., 322 U. S.
demonstrate that the constraints of Art. I were not envisioned as a 111 (1944); NLRB v. Hendricks County Rural Electric Membership
constitutional straitjacket. The First Congress, for example, began the Corp., 454 U. S. 170 (1981).
practice of arming its Committees with broad investigatory powers
without the passage of legislation. See A. Josephy, On the Hill: A
[Footnote 3/20]
History of the American Congress 81-83 (1979). More directly pertinent
is the First Congress' treatment of the Northwest Territories Ordinance
of 1787. The Ordinance, initially drafted under the Articles of As the Court acknowledges, the "provisions of Art. I are integral parts
Confederation on July 13, 1787, was the document which governed of the constitutional design for the separation of powers." Ante at 462
the territory of the United States northwest of the Ohio River. The U. S. 946. But these separation of powers concerns are that legislative
Ordinance authorized the Territories to adopt laws, subject to power be exercised by Congress, executive power by the President,
disapproval in Congress. and judicial power by the Courts. A scheme which allows delegation of
legislative power to the President and the departments under his
control, but forbids a check on its exercise by Congress itself, obviously
"The governor and judges, or a majority of them, shall adopt and
denigrates the separation-of-powers concerns underlying Art. I. To be
publish in the district, such laws of the original states, criminal and
sure, the doctrine of separation of powers is also concerned with
civil, as may be necessary, and best suited to the circumstances of the
checking each branch's exercise of its characteristic authority. Section
district, and report them to Congress, from time to time; which laws
244(c)(2) is fully consistent with the need for checks upon
shall be in force in the district until the organization of the general
congressional authority, infra at 462 U. S. 994-996, and the legislative
assembly therein, unless disapproved of by Congress; but afterwards
veto mechanism, more generally is an important check upon Executive
the legislature shall have authority to alter them as they shall think fit."
authority, supra at 462 U. S. 967-974.

(Emphasis added.)
[Footnote 3/21]

After the Constitution was ratified, the Ordinance was reenacted to

The Court's other reasons for holding the legislative veto subject to the
conform to the requirements of the Constitution. Act of Aug. 7, 1789,
presentment and bicameral passage requirements require but brief
ch. 8, 1 Stat. 50-51. Certain provisions, such as one relating to
discussion. First, the Court posits that the resolution of disapproval
appointment of officials by Congress, were changed because of
should be considered equivalent to new legislation because, absent the
constitutional concerns, but the language allowing disapproval by
veto authority of § 244(c)(2), neither House could, short of legislation,
Congress was retained. Subsequent provisions for territorial laws
effectively require the Attorney General to deport an alien once the
contained similar language. See, e.g., 48 U.S.C. § 1478.
Attorney General has determined that the alien should remain in the
United States. Ante at 462 U. S. 952-954. The statement is neither
Although at times Congress disapproved of territorial actions by accurate nor meaningful. The Attorney General's power under the Act
passing legislation, see, e.g., Act of Mar. 3, 1807, ch. 44, 2 Stat. 444, is only to "suspend" the order of deportation; the "suspension" does
on at least two occasions one House of Congress passed resolutions to not cancel the deportation or adjust the alien's status to that of a
disapprove territorial laws, only to have the other House fail to pass permanent resident alien. Cancellation of deportation and adjustment
the measure for reasons pertaining to the subject matter of the bills. of status must await favorable action by Congress. More important, the
First, on February 16, 1795, the House of Representatives passed a question is whether § 244(c)(2), as written, is constitutional, and no
concurrent resolution disapproving in one sweep all but one of the law is amended or repealed by the resolution of disapproval, which is,
laws that the Governors and judges of the Northwest Territory had of course, expressly authorized by that section.
passed at a legislative session on August 1, 1792. 4 Annals of Cong.
1227. The Senate, however, refused to concur. Id. at 830. See B.
The Court also argues that the legislative character of the challenged
Bond, The Civilization of the Old Northwest 70-71 (1934). Second, on
action of one House is confirmed by the fact that,
May 9, 1800, the House passed a resolution to disapprove of a
Mississippi territorial law imposing a license fee on taverns. H.R.Jour.,
6th Cong., 1st Sess., 706 (1826 ed.). The Senate unsuccessfully "when the Framers intended to authorize either House of Congress to
attempted to amend the resolution to strike down all laws of the act alone and outside of its prescribed bicameral legislative role, they
Mississippi Territory enacted since June 30, 1799. 5 C. Carter, narrowly and precisely defined the procedure for such action."
Territorial Papers of the United States -- Mississippi 94-95 (1937). The
histories of the Territories, the correspondence of the era, and the Ante at 462 U. S. 955. Leaving aside again the above-refuted premise
congressional Reports contain no indication that such resolutions that all action with a legislative character requires passage in a law,
disapproving of territorial laws were to be presented to the President the short answer is that all of these carefully defined exceptions to the
or that the authorization for such a "congressional veto" in the Act of presentment and bicameralism strictures do not involve action of the
Aug. 7, 1789, was of doubtful constitutionality. Congress pursuant to a duly enacted statute. Indeed, for the most part
these powers -- those of impeachment, review of appointments, and
The practices of the First Congress are not so clear as to be dispositive treaty ratification -- are not legislative powers at all. The fact that it
of the constitutional question now before us. But it is surely significant was essential for the Constitution to stipulate that Congress has the
that this body, largely composed of the same men who authored Art. I power to impeach and try the President hardly demonstrates a limit
and secured ratification of the Constitution, did not view the upon Congress' authority to reserve itself a legislative veto, through
Constitution as forbidding a precursor of the modern day legislative statutes, over subjects within its lawmaking authority.
veto. See J. W. Hampton & Co. v. United States, 276 U. S. 394, 276 U.
S. 412 (1928) ("In this first Congress sat many members of the [Footnote 3/22]
Constitutional Convention of 1787. This Court has repeatedly laid down
the principle that a contemporaneous legislative exposition of the
Constitution when the founders of our government and framers of our In his opinion on the constitutionality of the legislative review
Constitution were actively participating in public affairs, long provisions of the most recent reorganization statute, 5 U.S.C. § 906(a)
acquiesced in, fixes the construction to be given its provisions"). (1982 ed.), Attorney General Bell stated that

[Footnote 3/19] "the statement in Article I, § 7, of the procedural steps to be followed

in the enactment of legislation does not exclude other forms of action
by Congress. . . . The procedures prescribed in Article I § 7, for
congressional action are not exclusive."
43 Op.Atty.Gen. No. 10, pp. 2-3 (1977). Spraigue v. Thompson, 118 U. S. 90, 118 U. S. 95 (1886).

"[I]f the procedures provided in a given statute have no effect on the By severing § 244(c)(2), the Court permits suspension of deportation
constitutional distribution of power between the legislature and the in a class of cases where Congress never stated that suspension was
executive," appropriate. I do not believe we should expand the statute in this way
without some clear indication that Congress intended such an
expansion. As the Court said in Davis v. Wallace, 257 U. S. 478, 257 U.
then the statute is constitutional. Id. at 3. In the case of the
S. 484-485 (1922):
reorganization statute, the power of the President to refuse to submit
a plan, combined with the power of either House of Congress to reject
a submitted plan, suffices under the standard to make the statute "Where an excepting provision in a statute is found unconstitutional,
constitutional. Although the Attorney General sought to limit his courts very generally hold that this does not work an enlargement of
opinion to the reorganization statute, and the Executive opposes the the scope or operation of other provisions with which that provision
instant statute, I see no Art. I basis to distinguish between the two. was enacted and which was intended to qualify or restrain. The
reasoning on which the decisions proceed is illustrated in State ex rel.
McNeal v. Dombaugh, 20 Ohio St. 167, 174. In dealing with a
[Footnote 3/23]
contention that a statute

Of course, when the authorizing legislation requires approval to be

Page 462 U. S. 1015
expressed by a positive vote, then the two-House veto would clearly
comply with the bicameralism requirement under any analysis.
containing an unconstitutional provision should be construed as if the
remainder stood alone, the court there said:"
[Footnote 3/24]

"This would be to mutilate the section and garble its meaning. The
The Court's doubts that Congress entertained this "arcane" theory
legislative intention must not be confounded with their power to carry
when it enacted § 244(c)(2) disregards the fact that this is the
that intention into effect. To refuse to give force and vitality to a
historical basis upon which the legislative vetoes contained in the
provision of law is one thing, and to refuse to read it is a very different
Reorganization Acts have been defended, 462 U.S. 919fn3/22|>n.
thing. It is by a mere figure of speech that we say an unconstitutional
22, supra, and that the Reorganization Acts then provided the
provision of a statute is 'stricken out.' For all the purposes of
precedent articulated in support of other legislative veto
construction, it is to be regarded as part of the act. The meaning of
provisions. See, e.g., 87 Cong.Rec. 735 (1941) (Rep. Dirksen) (citing
the legislature must be gathered from all that they have said, as well
Reorganization Act in support of proposal to include a legislative veto
from that which is ineffectual for want of power, as from that which is
in Lend-Lease Act); H.R.Rep. No. 93-658, p. 42 (1973) (citing
authorized by law."
Reorganization Act as "sufficient precedent" for legislative veto
provision for Impoundment Control Act).
"Here the excepting provision was in the statute when it was enacted,
and there can be no doubt that the legislature intended that the
[Footnote 3/25]
meaning of the other provisions should be taken as restricted
accordingly. Only with that restricted meaning did they receive the
Madison emphasized that the principle of separation of powers is legislative sanction which was essential to make them part of the
primarily violated "where the whole power of one department is statute law of the State; and no other authority is competent to give
exercised by the same hands which possess the whole power of them a larger application."
another department." The Federalist No. 47, pp. 325-326 (J. Cooke
ed.1961). Madison noted that the oracle of the separation doctrine,
See also Frost v. Corporation Comm'n of Oklahoma,  278 U. S. 515, 278
Montesquieu, in writing that the legislative, executive, and judicial
U. S. 525 (1929).
powers should not be united "in the same person or body of
magistrates," did not mean "that these departments ought to have
no partial agency in, or control over the acts of each other." Id. at 325 The Court finds that the legislative history of § 244 shows that
(emphasis in original). Indeed, according to Montesquieu, the Congress intended § 244(C)(2) to be severable because Congress
legislature is uniquely fit to exercise an additional function: "to wanted to relieve itself of the burden of private bills. But the history
examine in what manner the laws that it has made have been elucidated by the Court shows that Congress was unwilling to give the
executed." W. Gwyn, The Meaning of Separation of Powers 102 Executive Branch permission to suspend deportation on its own. Over
(1965). the years, Congress consistently rejected requests from the Executive
for complete discretion in this area. Congress always insisted on
retaining ultimate control, whether by concurrent resolution, as in the
JUSTICE REHNQUIST, with whom JUSTICE WHITE joins, dissenting.
1948 Act, or by one-House veto, as in the present Act. Congress has
never indicated that it would be willing to permit suspensions of
A severability clause creates a presumption that Congress intended the deportation unless it could retain some sort of veto.
valid portion of the statute to remain in force when one part is found
to be invalid. Carter v. Carter Coal Co., 298 U. S. 238, 298 U. S.
Page 462 U. S. 1016
312 (1936); Champlin Refining Co. v. Corporation Comm'n of
Oklahoma, 286 U. S. 210, 286 U. S. 235
It is doubtless true that Congress has the power to provide for
suspensions of deportation without a one-House veto. But the Court
Page 462 U. S. 1014
has failed to identify any evidence that Congress intended to exercise
that power. On the contrary, Congress' continued insistence on
(1932). A severability clause does not, however, conclusively resolve retaining control of the suspension process indicates that it has never
the issue. "[T]he determination, in the end, is reached by" asking been disposed to give the Executive Branch a free hand. By severing §
"[w]hat was the intent of the lawmakers," Carter, supra, at 298 U. S. 244(c)(2), the Court has "confounded'" Congress' "`intention'" to
312, and "will rarely turn on the presence or absence of such a permit suspensions of deportation "`with their power to carry that
clause." United States v. Jackson, 390 U. S. 570, 390 U. S. 585, n. 27 intention into effect.'" Davis, supra, at 257 U. S. 484, quoting State ex
(1968). Because I believe that Congress did not intend the one-House rel. McNeal v. Dombaugh, 20 Ohio St. 167, 174 (1870).
veto provision of § 244(c)(2) to be severable, I dissent.
Because I do not believe that § 244(c)(2) is severable, I would reverse
Section 244(c)(2) is an exception to the general rule that an alien's the judgment of the Court of Appeals.
deportation shall be suspended when the Attorney General finds that
statutory criteria are met. It is severable only if Congress would have
intended to permit the Attorney General to suspend deportations
without it. This Court has held several times over the years that
exceptions such as this are not severable because,

"by rejecting the exceptions intended by the legislature . . . the statute

is made to enact what confessedly the legislature never meant. It
confers upon the statute a positive operation beyond the legislative
intent, and beyond what anyone can say it would have enacted in view
of the illegality of the exceptions."