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single, affirmative, legislative remedy may take. A simple and unamendable resolution of approval or disapproval adopted pursuant to a legislative veto provision incorporated in an earlier statute, however, avoids the institutional delays and permits expedited postenactment review. In

his characteristic, the legislative veto stands alone among

congressional oversight techniques.214 This argument seems correct, but it fails to explain the need for a one-house veto. The delays in enacting an affirmative and amendable legislative remedy are a result of nonconstitutional congressional rules of procedure which can be changed by Congress acting alone. If Congress chooses to use an unamendable resolution of disapproval as a means of expediting action, it may do so, if it acts by both houses and presents the resolution to the President. This would add little delay so long as there is a “clear consensus." To the extent there is not a consensus, the failure to act is not an undesirable "delay" but rather exactly the outcome of the legislative process envisioned by the Framers. The bicameralism and presentation requirements in Article I, Section 7 are not unfortunate byproducts of a poorly designed scheme but rather carefully constructed impediments to the Legislature's exercise of power.215

The fundamental problem of the one-house veto, then, is that it represents an attempt by Congress to retain direct control over delegated administrative power. Congress may provide detailed rules of conduct to be administered without discretion by administrative officers, or it may provide broad policy guidance and leave the de tails to be filled in by administrative officers exercising substantial discretion. It may not, however, insert one of its houses as an effective administrative decisionmaker. 216

One final argument in favor of the legislative veto is that this increase in congressional power is necessary if "unbridled executive discretion is to be avoided, and the potential abuses of unfettered presidential power contained.” 217 On this view, courts must recognize "that with the rise of the 'imperial presidency' some alternative must be devised if acountability on executive power is to be effected.” 218 We refuse to accept the view that as a matter of constitutional law the Executive is too powerful and the Congress too weak. The great irony in this view is that there has been no usurpation of rulemaking power by either the President or unelected independent administrators. Their powers have come solely from congressional authorizations. If Congress has given away too much power, it may by statute take it back or may in the future enact more specific delegations. 219 It is one thing to agree that "[d]elegation of lawmaking power is a categorical imperative of modern government,” 220 and quite [477] another to conclude that because Congress fails to constrain its delegations sufficiently to produce accountability, it may therefore insert itself into the administrative process. The power to cure the perceived problem lies entirely within congressional control both before it delegates power at all and after the administrators exercise their discretion.

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

215 See Myers v. United States, 272 U.S. 52, 293, 47 S. Ct. 21, 84, 71 L. Ed. 160 (1926) (Brandeis, J., dissenting), cited at p. 471 supra. See also Gewirtz, supra note 82, at 59 (“If Congress cannot agree on what it wants to accomplish, and cannot hammer out an agreement on the basic choices involved in an area, then there probably should be no law.”).

216 See Rehnquist, Committee Veto: Fifty Years of Sparring between the Executive and the Leg islature 7 (12 Aug. 1969) (remarks of Assistant Attorney General before Administrative Law Sec tion of American Bar Association) ("[T]he vice is that Congress not having chosen to (designate specific terms), and having delegated its authority to the Executive, it may not then control Ex ecutive exercise of this delegated power").

217 Javits & Klein, supra note 167, at 497. 218 Miller & Knapp, supra note 191, at 387.

[80, 81] Congressional unwillingness to use its constitutional powers cannot be deemed a sufficient reason for inventing new ways for it to act. As Justice Douglas wrote, “Legislative action may indeed often be cumbersome, time-consuming, and apparently inefficient,” but that is not reason for interpreting the Constitution as conferring legislative authority on the President.221 Similarly, the inefficiency of the Article I lawmaking process is no excuse for interpreting the Constitution to permit legislative participation in the administrative process. We indeed “pay a price for our system of checks and balances, ...

. . a price that today may seem exorbitant to many."

." 222 But if change is necessary, it must come either from a congressional reassertion of its right, and indeed responsibility, to provide meaningful standards for administrative action or from an amendment to the Constitution. The Constitution, with its principle of separation of powers, may be flexible, but it may not be changed by a judicial determination that its established procedures are no longer adequate. 3. Intrusion into the judicial sphere

[82] A final use of a legislative veto is to prevent the effectiveness of agency actions that exceed the statutory mandate. This was not a primary justification of the Phase II veto, but both the House's veto report and certain congressmen urged approval of the veto resolution on the ground that FERC's rule violated the congressional intent underlying section 202.223 Petitioners urge that to the House's action in this case, and since the Executive apparently agrees with the House on the undesirability of expanding incre mental pricing, all that is presented here is “an abstract constitutional position."101 Citing this court's en banc decision in Clark v. Valeo, 102 in which we refused to reach the merits of a challenge to a one-house veto provision, congressional amici argue that this issue should be left to the politically representative branches. 103

21° Congress also has numerous informal methods of overseeing agency action. See generally Kaiser, Congressional Action to Overturn Agency Rules: Alternatives to the "Legislative Veto", 32 Ad.L.Rev. 667 (1980).

220 Schwartz, supra note 182, at 353. It has been argued that "consistent application of the view that the legislature cannot be empowered to disapprove a rule because disapproval is the exercise of a power to make laws would destroy the rulemaking powers of executive and administrative agencies themselves." Id. at 374. This is incorrect because it views the invalidity of the legislative veto as based on a "rigid separation-of-powers approach," id., when in fact the crucial deficiency is not that Congress is engaged in lawmaking but that it does so by one house and without presentation to the President. And the problem with the one-house veto under the separation of powers doctrine is not that there is some intermingling of powers but that Congress substantially increases its total power by assuming roles that make the work of the other branches subordinate or irrelevant. Delegation of rulemaking power does not present this difficulty because the rulemaking entity is always subject to both the Judiciary and the Congress. If in practice the agencies have assumed a power that seems disproportionately large, then it may be time for the courts and Congress to reassert their unquestioned powers, respectively, to strike down undue delegations and to provide more specific delegations.

221 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 629, 72 S.Ct. 863, 886, 96 L.Ed. 1153 (1952) (Douglas J., concurring).

222 Id. at 633, 72 S.Ct. at 888.

223 See, e.g., Veto Report supra note 9, at 11 (“The Commission's narrow interpretation of its authority under section 204(e) to set incremental pricing alternative fuel ceilings solely on the basis of installed alternative fuel capability and its perceived inability to tie delivered natural gas prices to natural gas wellhead market conditions appears to be a misreading of the statute."); 126 Cong. Rec. 83847 (daily ed. 20 May 1980) (remarks of Rep. Markey) (“It is the clear intention of Congress in the incremental pricing provisions of the Natural Gas Policy Act to

Continued 101 Id. at 52.

This reliance on Clark v. Valeo is misplaced. The Clark majority held that “the matter before us does not present a ripe 'case or controversy' within the meaning of Article III," while specifically stating that "we need not address those [questions) pertaining to standing or political question, because the unripeness of the action is so pervasive.” 104 The case lacked ripeness because the legislative review provision at issue had not been invoked: "Until Congress exercises the one-house veto, it may be difficult to present a case with sufficient concreteness as to standing and ripeness to justify judicial resolution of the pervasive constitutional issue which the one-house veto provision involves.” 105 Here, of course, the House of Representatives did exercise the disapproval power conferred by section 202(c), thus presenting us with a [452] concrete case in which to adjudicate the constitutionality of the one-house veto.

Baker v. Carr 107 set forth the relevant political question considerations, which, as recently summarized by Justice Powell, lead to “three inquiries: (i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential

106

102 559 F.2d 642 (D.C.Cir.) (en banc) (per curiam), affd mem. sub nom. Clark v. Kimmitt, 431 U.S. 950, 97 S.Ct. 2667, 53 L.Ed.2d 267 (1977).

103 Congressional amici raise the political question argument only with regard to the Presentment Clause, but address their arguments generally to whether this court should decide the case as a whole. We address the political question issue as if it had been raised in defense to all of petitioners' constitutional claims.

104 559 F.2d at 647. 105 Id. at 649.

106 The court also stated: “Were this court to decide the threshold 'case or controversy' questions differently, it would nevertheless refuse to reach the merits of the unicameral veto under the doctrine of judicial prudence enunciated in Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 768, 27 L.Ed.2d 688 (1971).Id. at 650 n.10. This doctrine of judicial prudence,” however, is limited to the declaratory judgment context. Samuels v. Mackell

, a companion case with Youn. ger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), held that a district court should refuse to grant relief by way of declaratory judgment to a plaintiff who raises an issue that is the subject of a pending state criminal prosecution against that plaintiff.

The court's obvious concern was that it not "strain to exercise its jurisdiction to resolve this momentous political as well as legal problem.” 559 F.2d at 650. Significantly, its reasons for refusing to hear the case do not apply here. The court stated that “(a) constitutional decision might better await an attack upon legislative review by the entity subject to such review, which could be informed by the testimony of those who felt constrained to withhold proposals because of veto indications from the reviewing authorities.Id. at 650 n.10. But here FERC decided that "it would be wholly inappropriate for the Commission to be a partisan in any potential conflict between Congress and the Executive.” Brief for Respondent at 13 n.14. Moreover, the question whether the agency felt contrained in its rulemaking is irrelevant here because the rule was vetoed. The Clark majority declared that judicial consideration of "legislative review mechanisms ought at an absolute minimum to be informed by experience and not depend solely on abstract analysis or speculation," so that the issue would be adjudicated in a concrete setting. of regulations rejected or clearly trimmed in advance of submission.” 559 F.2d at 650 n.10. These conditions are satisfied by the House veto. Far from having merely a "bare 'case or controversy,'" id., we have a live dispute that presents us with “a proper record compiled in an appropriate adversary proceeding with briefing of the issue worthy of its importance." Id. at 6-19 n.8.

107 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962).

the present. This permits Congress effectively to alter the meaning of a statute as circumstances and the composition of Congress change over time.227 Assumption of this power diminishes the role of the Judiciary and expands that of Congress. Accordingly, it violates the separation of powers doctrine. F. Conclusion

We are aware that our decision today may have far-reaching effects on the operation of the National Government. Yet this cannot deter us from finding the one-house (479) veto unconstitutional. Congressional amici would have us, under the principles of flexibility and practicality in constitutional adjudication, approve an institutional structure whereby the administrative "experts" make policy and the people's representatives (without the President) are reduced to exercising a negative. This contravenes the constitutional procedures for making law. The genius of our Constitution, its adaptablilty to changes in the nature of American society, depends ultimatley on the steadfastness with which its basic principles and requirements are observed. Otherwise its critical protections against governmental tyranny would quickly become meaningless, as the Government in power could shape it to suit whatever purposes seem sound at the present. The Article I restrictions on the exercize of the legislative power, as well as the principle of separation of powers, are fundamental to the constitutional scheme, and because section 202(c) attempts to evade them it cannot stand.

VII. PROCEEDINGS ON REMAND

Intervenors urge that in event we declare section 202(c) unconstitutional, the Phase II rule issued by FERC should not be ordered to go into effect. This is based on the view, argued by FERC itself, that the rule was not a product of reasoned decisionmaking and that FERC might well come up with a different rule after taking a close look at the situation. We have held, however, that FERC's attempted revocation of the rule, based on the alleged failure to engage in reasoned decisionmaking, was invalid because FERC did not provide notice and an opportunity to comment. 228 The rule therefore shall take effect. To give the Commission an opportunity to reconsider the rule, however, if it decides this is necessary or if any party requests it to do so, we delay the effectiveness of the rule for thirty days from the date of our decision.229 During this period the Commission may consider whether to amend the substance of the rule or, in order to provide time for sufficient consideration, whether to postpone the effective date further. If the proceedings are reopened, petitioners and all other interested parties must be provided with notice and an opportunity to comment on all issues

1

227 See Bruff & Gellhorn, supra note 210, at 1429-30 (“[WJhen Congress is unclear initially in forming legislative history, it is unlikely to contribute more than the agencies or the courts in later attempts to reconstruct it. Further more, the validity of a legislative purpose that is purportedly part of the law but not reflected in ordinary sources of legislative history diminishes as the time passes and a new Congress with new members convenes."); Watson, supra note 118, at 1067.

228 See pp. 445-448 supra.

229 Cf. Buckley, 424 U.S. at 143, 96 S.Ct. at 693 (providing 30-day stay of Court's judgment to "afford' Congress an opportunity to reconstitute" the unconstitutional Federal Election Commis

raised. We express no views as to the precise scope of the Phase II delegation or the extent, if any, of the Commission's power to delay, amend, or revoke the rule.

So Ordered.

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