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a more limited Phase II rule was that it thought the veto provision left that determination to Congress.69 If the legislative veto had been enacted, the scope of the Phase II rule would have been left to the Commission's discretion, which would include consideration of the effect of changed (445) market conditions on the usefulness of incremental pricing. The distinction between Phase I and Phase II thus would have been preserved, and the same basic policy underlying Title II would have been enacted. The veto provision was not essential to the statutory policy, and it thus is severable. 70

IV. MOOTNESS FERC contends that its revocation order renders this case moot because there no longer is a rule for petitioners to challenge. Petitioners make two responses. First, they assert that FERC was not authorized to revoke the rule. Second, they contend that even if FERC had power to revoke the rule, the revocation order was invalid because FERC did not comply with the notice and comment requirements of the APA. FERC replies that it has revocation authority under sections 201(a) and 202 of the NGPA, that the original Phase II notice and opportunity to comment encompassed this revocation order as well, and that in any event this order fell within the “good cause” exception to the notice and comment requirements. We find that FERC's revocation order is invalid because it was issued in violation of the APA, and thus do not reach the issue whether FERC was authorized to revoke the rule.

69 See id. at 5, reprinted in Veto Report, supra note 9, at 19; Phase II Hearings, supra note 66, at 383 (“I believe that the Congress cannot have it both ways. It cannot reserve (The judgment on the propriety of Phase II incremental pricing) to itself through the veto authority and then assert that it should have been exercised independently by the agency, free from congressional review or, more importantly, responsibility") (statement of FERC Chairman Curtis).

10 In McCorkle v. United States, 559 F. 2d 1258 (4th Cir. 1977), cert. denied, 434 U.S. 1011, 98 S. Cl. 724, 54 L. Ed.2d 755 (1978), the Fourth Circuit refused to decide a constitutional challenge to the legislative veto provision in the Federal Salary Act on the ground that the provision was inseverable from the grant of power enabling the President to propose salary increases. The Court found:

Voiding the one-house veto as unconstitutional while leaving presidential authority intact would increase the President's power over salaries far beyond the intention of Congress. We are satisfied that the legislative history establishes that Congress would not have delegated authority to the President to establish salaries without the provision

for the one-house veto: Id. at 1262. We think this holding is easily distinguishable from our finding of severability in this case. The Fourth Circuit found that the legislative history was clear that Congress would not have given the President blanket authority to set federal salaries without imposing a check. Here, in contrast, the delegation of rulemaking authority to FERC was entirely routine: it was required to issue a rule on a specifically defined subject, and to do so pursuant to normal admin. instrative procedures. Such delegations are commonly made without any provision for legislative review, and we see nothing in the legislative history to indicate that Congess would have done differently in this case.

McCorkle also stated that “the case against severance is strong” where the provision restricts a grant of power: "Otherwise, the scope of the power would be enlarged beyond the legislature's intent." Id. at 1261. We decline to adopt this as a general principle that would make all veto provisions prima facie inseverable. We think this statement does no more that restate the basic test that a court should determine whether the provision was so essential to the legislative purpose that the statute would not have been enacted without it. In McCorkle the restriction seemed essential to the Fourth Circuit, as the grant of power otherwise would have been much larger than Congress would have contemplated; in Chadha, on the other hand, the veto provision, although a restriction on a grant of power, was deemed not essential and therefore severable. See Chadha v. Immigration & Naturalization Serv., 634 F. 2d 408, 417 & n. 5 (9th Cir. 1980), consideration of juris. postponed until hearing on merits.-U.S. -, 102 S. Ct. 87, 70 L. Ed. 20 30 (1981).

agencies. But it is an enormous, and unwarranted, jump from this to the conclusion that Congress may itself interfere with an independent agency's decisions without regard to separation of powers. Although FERC is substantially independent of the Executive, it nonetheless performs executive functions. The constitutionality of agency independence has not turned on a determination that certain agency functions are properly legislative rather than executive in nature. Buckley held directly the contrary, finding that the FEC's functions represented “the performance of a significant governmental duty exercised pursuant to a public law. . . . These administrative functions may therefore be exercised only by persons who are ‘Officers of the United States.'197

[73,74] We find, therefore, that the constitutionality of the one house veto does not depend on whether it is used against an executive agency or an independent agency. There has been a general breakdown in any distinction between the functions of the two types of agency, 198 and in practice the interference by Congress is identical in either case. Indeed, it is ironic that Congressional amici attempt to place great significance on the Commission's independence and on the need for having a politically accountable check on the agency's decision. The fundamental justification for making agencies independent is that since they exercise adjudicatory powers requiring impartial expertise, political interference is undesirable. By then turning around and asserting that this independence is a justification for the one-house veto, Congress attempts simultaneously to decrease the power of the Executive and increase its own power.

[473] b. Congressional disruption and control of the adminis

trative process All parties agree that the particular decision made in this case by the House is best characterized as a general legislative policy decision. The key issue was whether incremental pricing should be extended at all, not whether the specific extension in the Phase II rule was the best one. Nonetheless, some congressmen were concerned that the specific rule issued by FERC was inappropriate, 200 and, more generally, it is clear that one-house review mechanisms such as section 202(c) may give Congress the power to control the agency's discretion in considerable detail. We therefore must consider whether the one-house veto permits Congress to interfere unconstitutionally with FERC's administrative discretion.

[75, 76] Many proponents of the constitutionality of the legislative veto concede that the one-house review mechanism may in

199

197 424 U.S. at 141, 96 S.Ct. at 692.

198 Executive agencies perform the same adjudicatory and rulemaking functions as do inde pendent agencies. See, e.g., 29 U.S.C. $ 655 (1976) (Secretary of Labor shall by rule promulgate occupational safety and health standards). See generally K. Davis, supra note 171, at $$ 2:7-28; Nathanson, supra note 121, at 1099-109.

199 Cf. Watson, supra note 118, at 1081, n.463 (“That a commission acts as an agent of the legislative department makes more emphatic the necessity that these bodies not be used as tools to give Congress a lawmaking role independent of the President.").

200 See, e.g., 126 Cong. Rec. H3840 (remarks of Rep. Dingell) ("[T]he Commission's rule is seriously flawed"); id. at H3847 (remarks of Rep. Markey) (“FERC has caved into industry pressure to write a rule of little effectiveness."); id. at H3854 (remarks of Rep. Ashley) (“I am convinced that the promulgation of the rule as currently constituted would be a serious mistake in public policy.").

some instances raise serious problems of interference with executive functions. Justice White, for example, stated that he would be much more concerned if Congress purported to usurp the functions of law enforcement, to control the outcome of particular adjudications, or to pre-empt the President's appointment power," than when Congress provides for legislative review of agency rulemaking.201 This and similar views 202 rest on a belief that rulemaking is inherently a legislative, rather than executive, function. Seven Justices in Buckley, however, rejected this position in unequivocal terms:

[The Commission's rulemaking, advisory opinion, and eligibility determination) functions, exercised free from day-today supervision of either Congress or the Executive Branch, are more legislative and judicial in nature than are the Commission's enforcement powers, and are of kinds usually performed by independent regulatory agencies or by some department in the Executive Branch under the direction of an Act of Congress. Congress viewed these broad powers as essential to effective and impartial administration of the entire substantive framework of the Act. Yet each of these functions also represents the performance of a significant governmental duty exercised pursuant to a public law. While the President may not insist that such functions be delegated to an appointee of his removable at will, Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), none of them operates merely in aid of congressional authority to legislate or is sufficiently removed from the administration and enforcement of public law to allow it to be be performed by the present Commission. These administrative functions may therefore be exercised only by persons who are "Officers of

the United States."203 [474] In contrast, the Court did hold that powers of an investigative and informative nature, falling in the same general category as those powers which Congress might delegate to one of its own committees,” could be exercised by a Commission whose members were appointed by Congress. 204

201 Buckley, 424 U.S. at 285, 96 S.CT. at 757 (White, J., concurring in part and dissenting in part).

202 Javits & Klein, supra note 167, at 476-77; Nathanson, supra note 121, at 1087-88; Note, The Constitutionality of the Legislative Veto, 23 Wm. & Mary L. Rev. 123, 133-34 (1981).

203 424 U.S. at 140-41, 96 S.Ct. 692-93 (emphasis added) (footnotes omitted). Justice White characterized the FEC's rulemaking function as "purely legislative,” but nonetheless concluded that this function had to be peformed by Article II officers: "I know of no authority for the congressional appointment of its own agents to make binding rules and regulations necessary to or advisable for the aministration and enforcement of a major statute where the President has not participated either in the appointment of each of the administrators or in the fashioning of the rule or regulations which they propound.". Id. at 281, 96 S.CT. at 755 (White, J., concurring in part and dissenting in part) (emphasis added). The tension in this argument is extreme. If rulemaking is an Article I function there is no reason why it must be performed by Article II officers. The only solution lies in Buckley's determination that rulemaking is substantially an executive function.

This holding in Buckley also demonstrates the error in the Atkins majority's assertion that "in exercising the delegated functions, the executive officer merely acts as an agent of the legislative branch of the Government.” 556 F.2d at 1068. When the Executive acts to carry out laws passed by Congress, it remains a coordinate, not a subordinate, branch.

204 424 U.S. at 137, 96 S.Ct. at 690.

It of course is true that the specific holding of Buckley concerned the Appointments Clause of Article II, Section 2, Clause 2, and that here there is no specific clause forbidding the Congress from exercising rulemaking powers. Nonetheless, as the Buckley Court emphasized, Article II, Section 3 entrusts to the President, not to Congress, "the responsibility to take care that the Laws be faithfully executed.'” 205 If rulemaking is sufficiently an executive function so that only Article II officers may conduct it, it would seem a fortiori that Congress is prohibited from substantial interference in the rulemaking process. It would be anomalous in the extreme to hold that Congress may not appoint the officials who make rules, but may enact a mechanism permitting effective congressional control over these officials' decisions.

[77, 78] Congressional veto proponents contend, however, that the one-house veto is simply one of many techniques Congress may use in carrying out its responsibility to oversee the administration of the laws. The error in this argument is that the one-house veto provides Congress with a fundamentally different kind of authority over administrative rulemaking from what it otherwise would have. When Congress conducts investigations or hearings, or enacts a “report and wait” requirement, 206 or threatens to reduce appropriations, or imposes reporting requirements, or engages in other modes of oversight, its ability to influence the agency derives almost entirely from its ability to pass a statute requiring a different agency action or reducing the agency's appropriations. These oversight methods enable Congress to inquire "into past executive branch action in order to influence future executive branch performance." 207 Congress' supervisory power thus comes directly from its legislative power.208

The one-house veto, on the other hand, effectively enables Congress "to participate prospectively in the approval or disapproval of ... law 'enacted' by the executive branch pursuant to a delegation of authority by Congress."209 In effect, Congress is able to expand its role from one of oversight, with an eye to legislative revision, to one of shared administration. This overall increase in congressional power contravenes the fundamental purpose of the separation of powers doctrine. Congress gains the ability to direct unilaterally, and indeed unicamerally, the exercise of agency discretion in a specific manner considered undesirable or unachieva. ble when the enabling statute was first passed. Not only does this expand the congressional power, but it may also expend the total national power. Because of the veto, the rulemaking agency is given greater power than Congress might otherwise delegate, 210 and Congress normally will [475] let rules take effect unless so clearly undesirable that a veto is deemed warranted. 211

205 Id. at 138, 96 S.Ct. at 691.

206 Under such a procedure, also known as the “laying system," the agency action must lay before Congress for a specified period before going into effect. The purpose is to give Congress an opportunity to pass a statute. Since there is no disturbance of the constitutional lawmaking process, the provisions present no apparent constitutional problems. See Clark v. Valeo, 559 F.2d at 648–49 & nn.5-6. See generally Watson, supra note 118, at 1060-61.

207 Javits & Klein, supra note 167, at 461 (emphasis in original).

208 Even passage of an opinion resolution declaring congressional intent is persuasive ultimately because of the implied threat of a statutory amendment.

209 Javits & Klein, supra note 167, at 462.

210 See Bruff & Gellhorn, Congressional Control of Administrative Regulation: A Study of Let islative vetoes, 90 Harv.L. Rev. 1369, 1427-28 (1977).

Fundamentally, the argument for the legislative veto as a means of oversight comes down to a belief that the existence of powerful and unaccountable rulemaking bodies demands that Congress have an efficient and effective means of control, i.e., that far from contravening the separation of powers doctrine, the one-house veto helps implement it. The empirical evidence suggests that legislative vetoes are not all that efficient in practice, 212 however, and this case presents an example of extreme disruption of the normal administrative process. FERC claims that it did not exercise its policymaking discretion because it believed that Congress wanted only a proposal to evaluate. Yet Congress appears to have delegated the Phase II issue in large part precisely to make use of FERC's policy expertise. The result was the agency assuming the bizarre position that it failed to exercise reasoned decisionmaking when it issued the rule.213

[79] Moreover, if the legislative veto is an especially effective means of congressional control of administrative decisionmaking, then the separation of powers problem looms even larger. In arguing for the legislative veto, former Senator Javits wrote:

In most situations, even when a clear consensus is present, it takes a long time for Congress to work its legislative will, owing, in large measure, to the various [476] forms a

211 See Watson, supra note 118, at 1073-74; Scalia, supra note 138, at 25-26. Alexander Hamilton, though not aware of the legislative veto possibility, succinctly described the pernicious results of allowing national policy to be easily made and easily altered:

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is to-day can guess what it will be tomorrow. Law is defined to be a rule of action; but

how can that be a rule which is little known and less fixed? The Federalist No. 62, at 415 (P. Ford ed. 1898) (A. Hamilton).

212 See, e.g., Bruff & Gellhorn, supra note 210, at 1432-33 ("One obvious but important practical effect of the combination of congressional and judicial review is the increased potential for impasse. . .

Legislative vetoes, by placing Congress and the courts in similar roles, make possible a three-sided interaction, with heightened potential for delay, disruption, and unforeseeable results."); id. at 1438-39 (“To the extent that legislative veto authority allows special interests to achieve their ends by pressuring administrative agencies through congressional committees, such authority works to promote, rather than negate, faction.").

213 When the agency has difficulty in determining its mandate, the value of the administrative process, with its guarantee of equal opportunity to participate by all interested parties, diminishes sharply. The agency may tend to ignore parties' submissions since it knows Congress ultimately will review the rule prior to its implementation. As a result, the attempt to enhance the political accountability of agency rulemakers may actually backfire as administrators view their roles as proposers of appropriate policy rather than final decisionmakers who must listen to and attempt to reconcile competing interests. Cf. Chadha, 634 F.2d at 431 n.32 (emphasizing "one danger inherent in departures from the rule of separation of powers: when a governmental power is exercised by a branch other than that ordinarily responsible, the specific guarantees of governmental regularity applicable to the ordinarily responsible branch are in effect short-circuited."); Bruff & Gellhorn, supra note 210, at 1438 (“The congressional review process adds a second stage to rulemaking, one in which not all interested persons now participate, and in which not all interests receive equal attention.").

The one-house veto also increases sharply the negotiating power of individual congressmen or committees in seeking to direct administrative outcomes. The threat of a veto is much more plausible than the threat of a statutory amendment, making administrators more likely to succumb to congressional interference. Thus whatever the legal status of informal congressional interference with administrative decision making, see D.C. Federation of Civic Ass'ns v. Volpe, 459 F.2d 1231, 1248-49 (D.C. Cir. 1971) (administrative exercise of discretion must be based on merits in accord with the statutory mandate, not on extraneous congressional pressure), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed. 2D 489 (1972), the one-house veto is significantly worse in this respect. See Clark v. Valeo, 559 F.2d at 682 (MacKinnon, J., dissenting).

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