ALASKA AIRLINES, INC., ET AL., PETITIONERS V. WILLIAM E. BROCK,
SECRETARY OF LABOR, ET AL.

   No. 85-920

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Brief for the Secretary of Labor

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Questions Presented
   Statement:
      A. The Airline Deregulation Act
      B. The employee protection program
      C. The proceedings below
   Summary of argument
   Argument:
      The court of appeals correctly decided that the
      legislative veto provision of Section 43(f) should be
      severed from the duty-to-hire provisions of Section 43(d)
      A. The court of appeals applied the proper rule of
          severability
      B. The structure, language, and legislative history of the
          statute show plainly that Congress would not wish to
          abandon the remainder of Section 43
          1. The structure and language of the statute
          2. The legislative history of the statute
              a. Initiation of the bill in the Senate
              b. The Senate debate on the bill
              c. The House Bill
              d. The House debates
              e. The bill reported by the conference
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-29a) is reported
at 766 F.2d 1550, and the opinion of the district court (Pet. App.
30a-37a) is reported at 594 F. Supp. 92.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 16, 1985,
and a petition for rehearing was denied on September 11, 1985.  The
petition for a writ of certiorari was filed on November 27, 1985;  the
Court granted the petition on March 3, 1986.  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the legislative veto provision in subsection (f)(3) of
Section 43 of the Airline Deregulation Act of 1978, 49 U.S.C. App.
1552(f)(3), is severable from the remainder of Section 43, which
imposes on air carriers a duty to hire airline employees who have been
displaced from their jobs following deregulation.

                               STATEMENT

                    A. The Airline Deregulation Act

   Beginning in 1938 and for the next forty years, the federal
government, acting through the Civil Aeronautics Board ("CAB"),
extensively regulated the commercial airline industry.  Pursuant to
the Civil Aeronautics Act of 1938 and its successor, the Federal
Aviation Act of 1958 (49 U.S.C. 1301 et seq.), the CAB "provided for
comprehensive regulation of prices and entry in domestic air
transportation" (S. Rep. 95-631, 95th Cong., 2d Sess. 2 (1978)
(hereinafter cited as S. Rep. 95-631);  Leg. Hist. 168).  /1/ Over
time, however, Congress came to believe that price and entry
regulation was producing undesirable results.  "Broad regulation of
fares and rates ha(d) discouraged price competition at every turn
(and) (n)ew entrants ha(d) been singularly unsuccessful in gaining new
route authority" (S. Rep. 95-631, at 2;  Leg. Hist. 168).  "In short,"
the Congress concluded, "a careful analysis of the regulatory system
indicated that it was imposing costs upon the industry and raising
prices to consumers without producing any offsetting benefits" (Leg.
Hist. v-vi) (Introduction by Harold T. (Bizz) Johnson, Chairman,
Committee on Public Works and Transportation).

   In 1978, Congress decided that "(t)he time ha(d) come for a major
change and fundamental redirection as to the manner of regulation of
interstate and overseas air transportation so as to place primary
emphasis on competition" (S. Rep. 95-631, at 52;  Leg. Hist. 218).
Enacting the Airline Deregulation Act of 1978 (the Deregulation Act),
Pub. L. No. 95-504, 92 Stat. 1705 et seq., Congress took "historic"
measures "to return the air transportation industry to (the) free
enterprise economy" (S. Rep. 95-631, at 4;  Leg. Hist. 170).  It
jettisoned the industry-wide fare structure previously enforced by the
CAB and substantially altered the procedures by which airlines could
enter new markets (49 U.S.C. App. 1371(c) and (d) and 1482(d)).  It
also abolished the licensing power of the CAB as of 1981, and,
effective in 1984, eliminated the CAB altogether (49 U.S.C. App.
1551(a)(1)(A) and (a)(3)).

   In making what it termed "a major change and fundamental
redirection * * * (in the) regulation of * * * air transportation" (S.
Rep. 95-631, at 52;  Leg. Hist. 218), Congress felt "strongly that the
movement to a more competitive airline system should be made without
major disruptions to the industry or the traveling public" (S. Rep.
95-631, at 5;  Leg. Hist. 171).  For that reason, Congress made clear
that the Deregulation Act was intended to effectuate a "gradual and
phased transition to a deregulated system" (H.R. Conf. Rep. 95-1779,
95th Cong., 2d Sess. 56 (1978);  Leg. Hist. 898).  During the first
three years under the new act, for example, each previously
certificated air carrier could enter only one new market without prior
CAB approval (49 U.S.C. App. 1371(d)(7)).  And not until 1982 could
carriers enter new markets and withdraw from unprofitable old ones,
free from government regulation (49 U.S.C. App. 1551).  Similarly,
while Congress reduced the authority of the CAB over airline rates
during the first three years of deregulation, it did not terminate
that authority entirely until 1983 (49 U.S.C. App. 1373, 1551(a)(2)).

                  B. The Employee Protection Program

   Just as it sought to minimize disruption to the industry and the
traveling public, Congress in 1978 expressed its determination to
"insure that the benefits to the public which result from its decision
to alter substantially the regulation of air transportation * * * not
(be) paid for by a minority -- the airline employees and their
families who have relied on the present system" (S. Rep. 95-631, at
114;  Leg. Hist. 280).  The Senate Committee recognized that airline
employees had relied upon the system of regulation both in "their
decision to enter the industry" and in their decision to remain
(ibid.).  Over time, the Senate reported, the regulatory structure had
prevented the operation of "the normal free market" in employment;  as
a result, "(i)n order for Congress responsibly to change its policy
now and require the industry to move toward a much more competitive
market oriented environment, Congress should attempt to minimize the
(employee) dislocations caused by the change" (ibid.).  The House
Committee expressed the same concern (see H.R. Rep. 95-1211, 95th
Cong., 2d Sess. 22 (1978);  Leg. Hist. 530).

   Congress therefore provided a statutory Employee Protection Program
("EPP"), enacted as Section 43 of the Deregulation Act (49 U.S.C. App.
1552), to assist dislocated employees.  The EPP as enacted had two
parts.  The first provided for monthly payments and relocation
assistance to persons who had been employed by airlines for at least
four years ("protected employees") and who lost their jobs or much of
their income because of deregulation (Section 43(a)-(c), (e), and (h)
of the Deregulation Act, 49 U.S.C. App. 1552(a)-(c), (e), and (h)).
The Secretary of Labor was directed to promulgate "guidelines to be
used by him in determining the amount of each monthly assistance
payment to be made" (49 U.S.C. App. 1552(b)(1)).  The financial
assistance part of the EPP, however, was expressly made "subject to
such amounts as are provided in appropriation Acts" (49 U.S.C. App.
1552(a)(1));  Congress never appropriated any funds, and the financial
assistance program has not become operative and cannot become
operative without future legislation.  It is not involved in this case
except as it bears on the intent of Congress in providing a
legislative veto.

   The second part of the EPP imposes on airlines certificated under
the prior regulatory system a "duty to hire protected employees."
Section 43(d), 49 U.S.C. App. 1552(d), provides that "(e)ach such air
carrier hiring additional employees shall have a duty to hire
(protected employees) before they hire any other person * * *"
(Section 43(d)(1)).  Protected employees are those who had been
employed by a certificated carrier for at least four years as of the
date that the Deregulation Act went into effect (49 U.S.C. App.
1552(d) and (h)(1).  If any such employee is "furloughed or otherwise
terminated" other than for cause within the ten years after October
24, 1978, a carrier covered by the section is obligated to hire him,
"in his occupational specialty," before it may hire any other job
applicant to fill the position (except that the hiring carrier may
first rehire any of its own previously furloughed employees) (49
U.S.C. App. 1552(d)(1)).

   The duty to hire is imposed directly on the affected carriers by
Section 43(d)(1).  A separate provision directs the Secretary of Labor
to "establish, maintain, and periodically publish a comprehensive list
of jobs available with air carriers" and to "make every effort to
assist an eligible protected employee in finding other employment"
(Section 43(d)(2)).  Section 43(d)(2) further provides that "(i)n
order to carry out his responsibilities under this subsection, the
Secretary may require each such air carrier to file with the Secretary
the reports, data, and other information necessary to fulfill his
duties under this subsection".  /2/

   A separate subsection of Section 43 provides that the Secretary of
Labor "may issue, amend, and repeal such rules and regulations as may
be necessary for the administration" of the EPP (49 U.S.C. App.
1552(f)(1)).  It states that the "rule containing the guidelines which
is required to be promulgated pursuant to subsection (b) of this
section (relating to monthly assistance payments) and any other rules
or regulations which the Secretary deems necessary to carry out this
section shall be promulgated within six months after October 24, 1978"
(49 U.S.C. App. 1552(f)(2)).  It also states that the Secretary may
not issue any final rule until 30 legislative days after it has been
submitted to the two transportation committees of Congress (49 U.S.C.
App. 1552(f)(3)).  Finally, it contains a legislative veto provision,
declaring that any such final rule shall be submitted to Congress and
shall become effective after 60 legislative days, unless during that
60-day period either House of Congress adopts a resolution
disapproving the rule.  Ibid.  /3/

   The Deregulation Act took effect on October 24, 1978.  In March
1979, the Secretary published proposed regulations covering both the
financial assistance and duty-to-hire portions of the EPP (44 Fed.
Reg. 19146).  Thereafter, in September 1982, the Secretary issued
revised proposed regulations relating only to the duty to hire (47
Fed. Reg. 41304).  Following receipt of public comments, the Secretary
promulgated final regulations in November 1983 (48 Fed. Reg. 52854),
and simultaneously submitted them to Congress.  But for this
litigation the regulations would have become effective on May 17,
1984.

                       C. The Proceedings Below

   Petitioners are 14 airlines subject to the duty-to-hire provisions
of the Deregulation Act.  They brought this action in the United
States District Court for the District of Columbia against the
respondent Secretary;  thereafter, several airline employee unions
intervened as defendants.  Among a variety of constitutional and
statutory claims, petitioners contended that the legislative veto
provision in Section 43 is unconstitutional under this Court's
decision in INS v. Chadha, 462 U.S. 919 (1983);  that the veto
provision is not severable from the balance of Section 43;  and that
the entire EPP must therefore be invalidated.

   The Secretary agreed that under Chadha the legislative veto
provision is unconstitutional.  The Secretary argued, however, that
the veto clause is severable from the remainder of Section 43, and
that the Secretary's regulations relating to the duty-to-hire
provisions of the EPP should therefore be sustained.  The Secretary
also defended his regulations against the other legal challenges
raised by petitioners.

   In May 1984, just before the Secretary's regulations were to have
become effective, the district court granted summary judgment to
petitioners (Pet. App. 30a-37a).  The court struck down the entire
EPP, holding that the legislative veto clause could not be severed
from the remainder of Section 43 (Pet. App. 34a-37a).  The court did
not reach any of the other issues raised by the petitioners.

   The district court first considered the test for severability of
unconstitutional provisions.  The court stated that "(t)he question is
not * * * whether Congress would have enacted some type of employee
protection plan in the absence of a legislative veto provision;
rather, the issue is whether Congress would have enacted the same
statute.  If not, the Court cannot enforce the remainder of the
statute merely because it might be an approximation of what Congress
would have enacted" (Pet. App. 33a n.3 (emphasis in original)).
Examining the text and history of the Deregulation Act, the court
concluded that "Congress considered the legislative veto provision to
be integral to the EPP and that Congress would not have enacted
Section 43 in its present form without such a provision" (id. at 34a).
 The court found "most significant" the fact that Section 43 was the
only portion of the Deregulation Act to contain a legislative veto
(Pet. App. 34a).  The court also found in the legislative history of
Section 43 evidence that Congress wanted to "subject to a legislative
veto" what the district judge felt was a "grant of * * * broad
authority to the Secretary" (Pet. App. 35a).  The court discounted the
fact that there was "relatively little discussion of the veto
provision in the legislative history of the Act" (ibid.).  Applying
its view of the governing legal standard, the district court was
unable to find that Congress "would * * * have enacted the remainder
of Section 43 in its present form without (the legislative veto)" (id.
at 36a).  It therefore invalidated the entire EPP (id. at 37a).

   The Court of Appeals for the District of Columbia Circuit reversed,
holding that the legislative veto provision was severable from the
rest of Section 43.  /4/ The court of appeals first reviewed the
severability principles articulated by this Court in Chadha and other
cases.  Following Chadha and earlier cases dating back to Champlin
Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210 (1932),
the court held that the legislative veto provision must be severed
"'(u)nless it is evident that the Legislature would not have enacted
those provisions which are within its power, independently of that
which is not'" (Pet. App. 16a (quoting Chadha, 462 U.S. at 931-932)).
The court of appeals rejected petitioners' construction of that
language, according to which the entire statute must be invalidated
whenever "Congress would have passed some alternative version of the
statute if it knew that it could not lawfully have included the
offending provision" (id. at 18a).  That approach, the court of
appeals determined, would violate "'(t)he cardinal principle of
statutory construction (which) is to save and not to destroy'" (id. at
18a n.9 (quoting Tilton v. Richardson, 403 U.S. 672, 684 (1971)).
Limiting its consideration to the two available choices, the court of
appeals held that "'the question is * * * whether Congress would have
preferred th(is) statute( ), after severance of the legislative veto
provision( ), to no statute( ) at all'" (Pet. App. 18a, quoting Gulf
Oil Corp. v. Dyke, 734 F.2d 797, 804 (Temp. Emer. Ct. App.), cert.
denied, No. 84-20 (Oct. 1, 1984)).  /5/ In making that determination
in this case, the court of appeals further noted, petitioners must
overcome a presumption of severability because the duty-to-hire
provision "is fully operative as a law" without the legislative veto
provision (Pet. App. 16a-17a (quoting Chadha, 462 U.S. at 934)).

   The D.C. Circuit reviewed the text and legislative history of the
Deregulation Act in light of these standards (Pet. App. 20a-24a,
27a-28a).  In the legislative history the court found that Congress
had expressed "a strong, humanitarian desire to provide for airline
employee protection" and, by contrast, had evinced "relatively little
concern about the veto provision" (id. at 19a).  The court rejected
petitioners' argument that the structure of the oversight provisions
"evidenc(ed) a Congressional intent of inseverability" (id. at
24a-27a).  After examining the record in considerable detail the court
concluded that "(a)mple evidence persuades us that the employee
protection program, whatever its merit, was deemed by Congress to be
an important aspect of the Act.  In contrast, there is not a shred of
evidence that the veto provision was deemed to be a vital feature of
the protection plan." Id. at 28a.  /6/ The court of appeals therefore
upheld the balance of Section 43 and remanded the case to the district
court to consider petitioners' reamining challenges (Pet. App. 28a).
/7/

                          SUMMARY OF ARGUMENT

   I. The court of appeals faithfully applied the rule prescribed by
this Court for determining whether an unconstitutional provision is
severable:  the unconstitutional provision should be severed and the
balance of the statute sustained "'(u)nless it is evident that the
Legislature would not have enacted those provisions which are within
its power, independently of that which is not'" (Chadha, 462 U.S. at
931-932, quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976), and
Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210,
234 (1932)).  Applied to this case, as the court of appeals held (Pet.
App. 18a-19a), this rule dictates sustaining the duty-to-hire
provisions "unless it is evident" that the enacting Congress would
have preferred to abandon the duty-to-hire provisions if it had known
that it could not have the legislative veto provision.

   The phrase "unless it is evident" reflects a strong presumption in
favor of severability.  The Court has held that a further presumption
arises when what remains is "'fully operative as a law'" (Chadha, 462
U.S. at 934, quoting Champlin, 286 U.S. at 234;  see also Regan v.
Time, Inc., 468 U.S. 641, 653 (1984) (plurality opinion);  United
States v. Jackson, 390 U.S. 570, 585-591 (1968)).  Courts have no
authority to invalidate federal statutes except the command of the
Constitution, see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-180
(1803), or the expressed or "evident" intent of Congress that an
otherwise valid provision is to fall with an unconstitutional
provision.  Absent such instructions, the duty of the court is "'to
save and not to destroy'" (Tilton v. Richardson, 403 U.S. 672, 684
(1971)), permitting Congress, and not the courts, to reconsider
otherwise valid provisions after a portion of the statute has been
found unconstitutional.

   Petitioners' contention that the court of appeals "formulated * * *
a completely new standard" that "violates the * * * separation of
powers" (Br. 9-10), is groundless.  The court of appeals, expressly
following this Court's instructions, made a meticulous examination of
the only issue a court does have the power to decide:  whether it is
evident (from the text, structure, or legislative history) that
Congress would not have wanted the courts to enforce the
constitutional remainder of a statute, after the unconstitutional part
was stricken.  It is petitioners, who insist that courts speculate
about whether Congress would have preferred some third possibility --
perhaps a statute "with different form, content or language" (Br. 15)
-- who would have the courts intrude on the legislative domain and
strike down otherwise valid legislation without instructions from
Congress to do so.

   II. As the court of appeals concluded, the structure and language
of the EPP show plainly that Congress would have wanted the
duty-to-hire provisions in Section 43(d) to survive.  The statute
itself imposes the duty to hire directly on the air carriers;  the
Secretary is given only the routine functions of gathering and
providing information and otherwise assisting.  The statutory
requirements imposed on the air carriers do not depend on any
regulatory action by the Secretary and would not have been subject to
any veto.  There is not the slightest reason to suppose, as
petitioners do, that Congress would prefer to abandon the detailed
structure that it created simply because it lost the power to veto
regulations of the Secretary that, in respect of this part of the EPP,
were entirely routine.

   The legislative history also confirms the court of appeals'
conclusion "that the employee protection program, whatever its merit,
was deemed by Congress to be an important aspect of the Act.  In
contrast, there is not a shred of evidence that the veto provision was
deemed to be a vital feature of the protection plan" (Pet. App. 28a).
The EPP was described, again and again in the legislative debates, as
an important "insurance" feature of deregulation;  the veto provision
on the other hand, appears to have been a reflexive addition to the
bill, added almost without comment.

   In particular, there is not the slightest suggestion that any
member of Congress anticipated the possibility of vetoing any
regulation relating to the duty-to-hire provisions.  The only mention
of the legislative veto in the committee reports relates it to the
financial assistance program (which is now inoperative), not the
duty-to-hire provisions that are before the Court.  (The statute
itself, in fact, suggests in Subsection (f)(2) that the desire for
congressional oversight related principally to the financial
assistance program.) Moreover, the only comment on the veto clause in
the debates in either House came from one House member, long a
champion of the legislative veto, who noted his routine approval of
the inclusion of such a clause in the Conference Bill -- without
suggesting any particular concern about duty-to-hire regulations or
any others;  in fact, the House Bill, which he had actively supported,
did not contain a veto clause.  A fair reading of the legislative
record thus richly confirms what the court of appeals concluded:
there is no reason to believe that, if Congress had anticipated the
demise of the legislative veto, it would have wanted the courts to
invalidate the duty-to-hire provisions of the EPP.  /8/

                               ARGUMENT

 THE COURT OF APPEALS CORRECTLY DECIDED THAT THE LEGISLATIVE VETO
PROVISION OF SECTION 43(f) SHOULD BE SEVERED FROM THE DUTY-TO-HIRE
PROVISIONS OF SECTION 43(d)

    A. The Court of Appeals Applied The Proper Rule Of Severability

   Both courts below, and all parties in this Court, have agreed that
this case is governed by the severability rule repeatedly stated by
this Court (Chadha, 462 U.S. at 931-932, quoting Buckley, 424 U.S. at
108, and Champlin, 286 U.S. at 234):

      (T)he valid portions of a statute are to be severed "'unless it
      is evident that the Legislature would not have enacted those
      provisions which are within its power, independently of that
      which is not.'"

   Petitioners have misinterpreted this Champlin rule in two respects.

   First, petitioners make the remarkable assertion that under the
Champlin rule an entire statute must be invalidated whenever it
appears that Congress -- had it known that one portion would be
declared invalid -- would have modified the remainder in any respect
(Br. 15, 18).  /9/ To make that formulation seem more plausible,
petitioners repeatedly (and incorrectly) attribute to the Secretary,
and to the court of appeals, a formulation that would sustain the
remainder of a statute whenever it appears that Congress would have
enacted any statute with the same general purpose (i.e., Br. 9-10).

   Both of petitioners' formulations -- the one that they endorse and
the one that they erroneously ascribe to the court of appeals -- are
wrong.  A court's proper task, when deciding severability, is to
choose between the two available alternatives, saving the balance of
what Congress in fact enacted, unless it is evident that Congress
would not have wanted the remainder enforced in the absence of the
unconstitutional provision.  That is the plain meaning of the Champlin
rule, and that is the only formulation that avoids intrusion upon
Congress' prerogatives.  Both of petitioners' formulations would lead
to inappropriate, and inevitably fruitless, speculation about
legislation neither adopted nor actually considered by Congress.  And
both would rest the fate of provisions Congress actually enacted on
the hypothetical fate of imaginary alternative legislation.

   Second, petitioners ignore the strong presumption, reflected in the
Champlin rule, in favor of severance.  The words "unless it is evident
* * *" obviously imply such a presumption.  Explaining the reason for
the presumption, the plurality in Regan v. Time, Inc., 468 U.S. 641
(1984), said, "A ruling of unconstitutionality frustrates the intent
of the elected representatives of the people.  Therefore, a court
should refrain from invalidating more of the statute than is
necessary" (id. at 652;  accord id. at 661, 667 (Brennan, J.,
dissenting and concurring);  cf. El Paso & N.E. Ry. v. Gutierrez, 215
U.S. 87, 96 (1909)).  The Court has also repeatedly stated that where
the valid remainder of a statute "'is fully operative as a law,'" the
invalid provision "is further presumed severable" (Chadha, 462 U.S. at
934, quoting Champlin, 286 U.S. at 234).  /10/ These presumptions
reflect the fact that courts have no authority to invalidate federal
statutes except the command of the Constitution, see Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 176-180 (1803), or the expressed or
"evident" intent of Congress.  The duty of the courts is to sustain
constitutionally valid parts of a statute unless either there is a
clear indication in the statute or its legislative history that
Congress would have wanted them to fall, in the absence of the
unconstitutional part, or the valid parts cannot operate without the
unconstitutional part.

   The decision of the court of appeals in this case was entirely
faithful to the severability rule articulated by this Court.
Following Chadha, the court of appeals held that the veto provisions
should be severed "'(u)nless it is evident that the Legislature would
not have enacted those provisions which are within its power,
independently of that which is not'" (Pet. App. 16a, quoting Buckley,
424 U.S. at 108).  Noting, further, the presumption in favor of
severability where, as here, the valid portion "'is fully operative as
a law'" (Pet. App. 16a, quoting Chadha, 462 U.S. at 934), the court of
appeals held, consistent with this Court's decisions, that "(o)nly if
we conclude that Congress would not have included (the balance of
Section 43) absent the constitutionally flawed portion (are those)
provision(s) to fall" (Pet. App. 18a).  The court reviewed the
language and structure of Section 43, together with its legislative
history, and concluded that had Congress known that the veto would be
found unconstitutional, it would not have preferred "no employee
protection program over the program passed by Congress shorn of its
veto provision" (Pet. App. 28a).

   The court of appeals asked precisely the right question.  The
district court had only two choices when it found the legislative veto
portion of the EPP invalid:  save the duty-to-hire provisions or
strike the duty-to-hire provisions.  Since that choice depended on
legislative intent (Regan, 468 U.S. at 653;  Jackson, 390 U.S. at
585-591;  Carter v. Carter Coal Co., 298 U.S. 238, 313 (1936)), the
relevant question, in this case, is just as the court of appeals put
it:  would Congress have preferred "no employee protection program
over the program passed by Congress shorn of its veto provision" (Pet.
App. 28a).

   Petitioners contend that the court of appeals' approach "raise(es)
serious separation-of-powers concerns" (Br. 19) and "improperly allows
the judiciary to reformulate statutes to create laws which are not at
all what Congress contemplated" (Br. 17).  But this is simply not a
case in which a court has changed the meaning of a statute in order to
save its constitutionality.  The court of appeals here sought "to save
as much of the statute as (it) can" (Pet. App. 18a;  see Regan, 468
U.S. at 652;  El Paso & N.E. Ry., 215 U.S. at 96), by sustaining
otherwise valid provisions that operate independently and that
Congress clearly considered important.  It did so without in any way
"reformulating" the duty-to-hire provisions or departing in any way
from what Congress contemplated.  And it left to Congress the task of
revising the EPP, should it choose to, in light of the demise of the
legislative veto.

   Under petitioners' theory, on the other hand, if a court finds
anything in the otherwise valid balance of a statute that it guesses
Congress might have written differently were it not for the invalid
provision, the court must strike the whole enactment -- even if it is
clear that Congress would have preferred to keep the balance of the
statute rather than lose it.  It could not be plainer that the court
of appeals honored (as far as possible) what Congress wrote and
intended, while petitioners' approach would force the courts into
speculation about legislation Congress did not enact.

   Finally, this case illustrates perfectly still another problem with
petitioners' approach to severability:  there is no stopping place.
Petitioners apparently believe -- and the district court, accepting
petitioners' legal premise, expressly held (Pet. App. 37a n.5) -- that
the EPP was severable from the balance of the Deregulation Act.  Thus,
the district court concluded, the invalidation of the EPP did not
require the entire deregulation statute to be struck down.  The court
so held because, in its view, "(n)othing in the statute or legislative
history even remotely suggests that Congress would not have passed the
Act without the EPP or that in the absence of an EPP it would have
taken a different approach to deregulation" (ibid.).  In fact, there
is a good deal of evidence that at least some members of Congress
would have taken a much dimmer view of the rest of the Deregulation
Act had the draftsmen not included the EPP.  See, e.g., S. Rep.
95-631, at 221;  Leg. Hist. 387 (Sen. Inouye);  id. at 216;  Leg.
Hist. 382 (Sen. Danforth).  Indeed, the evidence unmistakably shows
that the EPP was more essential to the passage of the entire
Deregulation Act than the legislative veto was to the passage of the
EPP.  See pages 28-39, infra.  Under petitioners' proposed standard it
is hard to see why the balance of the Deregulation Act should not be
invalidated along with the EPP.  Certainly, petitioners do not say.

 B. The Structure, Language, And Legislative History Of The Statute
Show Plainly That Congress Would Not Wish To Abandon The Remainder Of
Section 43

             1. The Structure And Language Of The Statute

   "(T)he starting point for interpreting a statute," this Court has
noted, "is the language of the statute itself.  Absent a clearly
expressed legislative intention to the contrary, that language must
ordinarily be regarded as conclusive" (Consumer Product Safety Comm'n
v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)).  Accord Aaron v.
SEC, 446 U.S. 680, 695 (1980);  Greyhound Corp. v. Mt. Hood Stages,
Inc., 437 U.S. 322, 330 (1978).  Here, the language and structure of
Section 43 leave no doubt that Congress would have wanted the duty to
hire it imposed on petitioners to be sustained, notwithstanding the
invalidity of the legislative veto.

   Section 43 established two different kinds of protection for
employees displaced from their jobs as a result of airline
deregulation.  The first program, embodied in Section 43(a)-(c), (e),
(g), and (h), 49 U.S.C. App. 1552(a)-(c), (e), (g), and (h), was
intended to provide "monthly assistance" and other financial support
to eligible employees.  Under this program, eligible employees were
entitled to receive, "subject to such amounts as are provided in
appropriation Acts," a "monthly assistance payment * * * in an amount
computed by the Secretary" (Section 43(b)(1), 49 U.S.C. App.
1552(b)(1)).  In discharging his considerable discretion under this
provision, the Secretary of Labor, "after consultation with the
Secretary of Transportation," was to "promulgate guidelines to be used
by him in determining the amount of each monthly assistance payment to
be made" (Section 43(b)(1), 49 U.S.C. App. 1552(b)(1)).  This program,
however, was never funded by Congress and, thus, never went into
effect.

   The other program provided by Section 43, embodied in Section
43(d), 49 U.S.C. App. 1552(d), imposed on air carriers a "duty to hire
protected employees" who were "furloughed or otherwise terminated" by
an air carrier during the 10-year period beginning with the effective
date of the Deregulation Act.  In contrast to the assistance
provisions, Congress imposed this obligation, unconditionally, in the
statute itself and spelled out the "duty to hire" in some detail.
Paragraph 43(d)(1) gives "(e)ach person who is a protected employee of
an air carrier" -- defined by Congress in Section 43(h)(1), 49 U.S.C.
App. 1552(h)(1) -- "who is furloughed or otherwise terminated by * * *
an air carrier (other than for cause)" a "first right of hire" for a
specific period of time.  This right of hire, Congress stated, extends
only to the employee's "occupational specialty" but may be enjoyed
"regardless of age." Each affected air carrier -- defined by Congress
in Subsection (d)(1) -- "shall have a duty to hire" protected
employees "before they (sic) hire any other person, except that such
air carrier may recall any of its own furloughed employees before
hiring such a person." Further, each employee rehired pursuant to this
subsection "shall retain his rights of seniority and right of recall
with the air carrier that furloughed or terminated him."

   Whereas the now inoperative assistance program could not have
functioned without a substantial exercise of discretion by the
Secretary (who was to fix the guidelines for benefits), the statute
does not make the airlines' duty to hire dependent on regulation at
all.  /11/ The Secretary's role is an auxiliary one, and the scope of
his assigned duties is routine;  there is no reason whatever to think
Congress might have wanted to veto his exercise of those functions.
The Secretary is mentioned only in an entirely separate provision
(Section 43(d)(2)), which directs him to "publish a comprehensive list
of jobs available with air carriers", which list "shall include * * *
information and detail * * * such as job descriptions and required
skills." The same provision directs him to "make every effort to
assist an eligible protected employee in finding other employment." To
carry out these functions "the Secretary may require each * * * air
carrier to file with the Secretary * * * reports, data, and other
information." /12/

   Congress did not make the airlines' duty to hire, which is set
forth in Section 43(d)(1), conditional in any way on regulations and
did not subject it to any legislative veto.  That fact provides the
clearest possible evidence that Congress would not have wanted the
duty to hire invalidated merely because the legislative veto was
invalidated.  And the responsibilities that Congress did give the
Secretary with respect to the duty to hire (in contrast to his
responsibilities under the assistance program) were auxiliary
activities in connection with a program whose basic obligations were
defined and imposed on the carriers by Congress itself.  There is no
reason to believe that Congress contemplated the possibility of
vetoing any of the Secretary's actions in connection with the
duty-to-hire program.  /13/

   The language of Section 43(f), which contains the legislative veto,
also confirms that to the extent that Congress wanted to oversee
anything, it was the anticipated assistance regulations, not the
Secretary's activities in connection with the duty to hire.  Section
43(f)(2) provides that within six months the Secretary shall
promulgate "(t)he rule containing the guidelines which is required to
be promulgated pursuant to subsection (b) (establishing the "monthly
assistance" program) and any other rules or regulations which the
Secretary deems necessary to carry out this section." Congress'
principal concern -- the only set of regulations that it identified
specifically in Subsection (f) -- was the regulations under the
"monthly assistance" program.  And it is not hard to see why:  with
respect to the financial assistance program, Congress delegated the
hard, and expensive, choices to the Secretary, subject to
appropriation by Congress.  /14/

   The case for severability of the legislative veto is strengthened
by the fact that Subsection 43(f)(3) also provides for a so-called
"report and wait" rule, under which the Secretary may not "issue any
rule or regulation as a final rule or regulation * * * until 30
legislative days after it has been submitted" to the congressional
transportation committees.  As a result of this provision, the demise
of the veto did not deprive Congress of all power to review the
Secretary's regulations.  Congress retains the authority to review
proposed regulations and, if it wishes, to disapprove them through
constitutionally permissible legislation.  /15/

   Petitioners contend that Congress viewed the EPP as an
"unprecedented" proposal, which was "fundamentally inconsistent with
the overall deregulatory purpose manifest throughout the Act" (Br. 29,
33-34).  They imply (id. at 32-33) that Congress inserted a veto
provision "directly into subsection 43(f), the same provision granting
the DOL delegation" (id. at 30), and combined the veto power with a
"report and wait" requirement (id. at 32 & n.39), because Congress
wanted a second look before the duty to hire was implemented.  But,
first, petitioners mischaracterize the record.  Congress assuredly did
not regard the duty to hire as a "novel, untested type of labor
protection" (Br. 3);  in fact, the Senate Report described the EPP as
a program similar to ones that had been approved "in certain cases in
the past" (S. Rep. 95-631, at 113;  Leg. Hist. 279).  /16/ Moreover,
Congress did not regard the EPP as "fundamentally inconsistent" with
the deregulation bill.  As petitioners are constrained to admit (Br.
43 n.53), some members of the House even favored a protection program
stronger than the final bill.  See 124 Cong. Rec. 38523 (1978);  Leg.
Hist. 983 (statement of Rep. Harsha);  124 Cong. Rec. 38524-38525
(1978);  Leg. Hist. 986 (statement of Rep. Mineta).  All of the
evidence affirms Congress' belief that the EPP was entirely consistent
with the desire that "movement to a more competitive airline system *
* * be made without major disruptions" (S. Rep. 95-631, at 5;  Leg.
Hist. 171), and without causing the benefits of the deregulation to be
"paid for by a minority -- the airline employees and their families"
(id. at 114;  Leg. Hist. 280).  While Congress clearly retained the
right to decline to fund the assistance program, there is not the
slightest evidence to support petitioners' suggestion that Congress
wanted the duty to hire to be less than an unconditional statutory
obligation.  /17/

               2. The Legislative History Of The Statute

   The court of appeals "emerge(d) from (its) trek through the
legislative history of the Airline Deregulation Act" persuaded "that
the employee protection program, whatever its merit, was deemed by
Congress to be an important aspect of the Act" (Pet. App. 28a).
"(W)hat evidence there is," the court declared, "indicates that
Congress had a strong, humanitarian desire to provide for airline
employee protection" during the deregulation process (id. at 19a,
22a).  "In contrast," the court noted, "there is not a shred of
evidence that the veto provision was deemed to be a vital feature of
the protection plan" (id. at 28a).  In short, the court concluded,
given the only two choices that a court has when it strikes a portion
of a statute (id. at 19a)

      the evidence * * * positively indicates that Congress would have
      preferred the employee protection plan with the veto provision
      severed out to a deregulatory statute stripped of any employee
      protection plan.

   As we show below, the court of appeals read the legislative history
correctly.  There is strong support for employee protection, but, in
the entire history of Section 43, the legislative veto is mentioned
only twice -- once in a sentence in the Senate Report, which ties it
to the assistance provisions and not the duty-to-hire provisions, and
once in a routine comment by one Representative.

                a. Initiation Of The Bill In The Senate

   The airline regulatory system established in 1938 "subjected
airlines to extensive economic regulation by the Civil Aeronautics
Board" (Leg. Hist. v) (Introduction by Harold T. (Bizz) Johnson,
Chairman, Committee on Public Works and Transportation).

      If an airline wished to change the cities it served or the
      prices it charged, it was required to seek permission from the
      Civil Aeronautics Board.  The Board could refuse to allow the
      airline to take actions which would benefit consumers and which
      the airline believed to be in its best interest.  Even if the
      Board ultimately granted an airline's request, there could be
      years of delay before the airline could implement its proposal
      ((Leg. Hist. v) (same)).

   After forty years of an airline regulatory structure that had
"outlived its usefulness" (Leg. Hist. v) (same), Congress enacted the
Airline Deregulation Act of 1978, a "landmark" and "historic" reform
which "free(d) the airline industry from excessive economic
regulation" (Leg. Hist. v-vi) (same).  /18/ Because of the dramatic
changes contemplated by this legislation, however, Congress determined
that the "movement to a more competitive airline system should be made
without major disruptions to the industry or the traveling public" (S.
Rep. 95-631, at 5;  Leg. Hist. 171).  Accordingly, among other
provisions, the Senate Bill contained an employee protection plan
substantially identical to the version that was eventually enacted as
Section 43 (S. Rep. 95-631, at 46-48;  Leg. Hist. 212-214).

   In the report that accompanied the bill when it reached the Senate
floor, the legislators made clear that employee protection was a
central concern.  Some airlines, the Senate Report noted, may well
"encounter such difficulties in adjusting that they will lose enough
traffic to cause a major reduction in their total labor force" (S.
Rep. 95-631, at 113;  Leg. Hist. 279).  This prospect, the Senate
observed, while uncertain, "should not be ignored" (ibid.).  Over the
years, the Report continued, "(r)egulation has * * * had the effect of
reducing the potential for major employment reductions in individual
airlines" (ibid.);  as a result, once the burdens of regulation are
lifted "a major reduction might occur in the labor force of one or
more airlines" (ibid.).  The Senate felt strongly that "(a)irline
employees have relied on the present regulatory system" both in "their
decision to enter the industry" and in their decision to continue in
the field "within the context of the regulatory system" (id. at 114;
Leg. Hist. 280).  The Senate put its concerns squarely (ibid.):

      Because it is the public who will benefit from the regulatory
      reform provided for in this bill, the public should be willing
      to assume reasonably close to the full cost of such reform,
      including the cost of transition for any dislocated employees.
      The Committee believes that the Congress, on behalf of the
      American people, must insure that the benefits to the public
      which result from its decision to alter substantially the
      regulation of air transportation are not paid for by a minority
      -- the airline employees and their families who have relied on
      the present system.

   The Senate therefore proposed "a statutory employee protection
program, as has been done in certain cases in the past" (S. Rep.
95-631, at 113;  Leg. Hist. 279).  Its report sheds considerable light
on the intent of the legislators.  First, if, as petitioners urge at
length, the Senate evinced any "uncertainty" about the EPP (Br. 10),
that uncertainty concerned solely the financial assistance program,
not the airlines' duty to hire dislocated employees.  Thus, while the
report reflected some passing concern about "the potential expenditure
of Government funds" (S. Rep. 95-631, at 115;  Leg. Hist. 281), it
expressed no comparable concern over the duty-to-hire provisions.
Indeed, the only reference in the Senate Report to congressional
oversight of the Secretary's regulations stated that the "amount of
(each monthly) payment would be * * * determined by regulations
promulgated by the Department of Labor.  These regulations will be
subject to congressional review" (id. at 116;  Leg. Hist. 282).  The
report gave no indication of any desire to oversee the Secretary's
regulations relating to the duty to hire.

   The Senate Report, then, corroborates the court of appeals'
conclusion:  Congress expressed substantial concern for employee
welfare;  and it paid little attention to legislative oversight.
Moreover, what little interest the Senate expressed in exercising a
reviewing power related solely to the assistance program, which has
never become effective.  The Senate said nothing indicating an
interest in overseeing, let alone vetoing, regulations relating to the
duty to hire.  /19/

                   b. The Senate Debate On The Bill

   Senator Cannon sponsored the Deregulation Act on the Senate floor
on April 19, 1978 (124 Cong. Rec. 10647 (1978);  Leg. Hist. 396).
While he discussed the employee protection program (id. at 10649;
Leg. Hist. 399), he said nothing about a legislative veto power -- or,
for that matter, congressional oversight generally.  Indeed, when
Senator Cannon caused a summary of the EPP to be printed in the
Record, the summary did not even indicate that the legislation
contained a legislative veto (ibid.).  See Consumer Energy Council v.
FERC, 673 F.2d 425, 442 (D.C. Cir. 1982), aff'd sub nom. Process Gas
Consumers Group v. Consumer Energy Council, 463 U.S. 1216 (1983).

   Thereafter, during the debates on the bill, various Senators
reaffirmed their support for the EPP, and no Senator ever said
anything at all about the legislative veto.  For example, Senator
Zorinsky, consistent with the views he had expressed when the bill
emerged from committee (see page 31 n.19, supra), proposed deleting
the assistance program altogether, leaving only a duty to hire (124
Cong. Rec. 10674-10676 (1978);  Leg. Hist. 443-446).  Significantly,
however, while Senator Zorinsky's proposal would have eliminated the
assistance plan, it would, quite deliberately, have "liberal(ized)"
the duty to hire, by expanding the definitions of "protected employee"
and "qualifying dislocation" (id. at 10674-10675;  Leg. Hist.
443-444).  Senator Cannon, the floor manager of the bill, endorsed the
duty-to-hire aspect of the amendment as a "good" concept * * * (which)
would insure that people have the opportunity to work, even though it
is with another carrier" (id. at 10677;  Leg. Hist. 448).  After
vigorous debate, in which one chief supporter of the Committee Bill
opposed Senator Zorinsky's modification (see id. at 10677-10678;  Leg.
Hist. 448-450) (remarks of Sen. Danforth), the Senate rejected Senator
Zorinsky's effort to scale down the EPP (id. at 10683;  Leg. Hist.
458).  It bears repeating that nowhere in this debate about whether to
strengthen the duty to hire is there any mention of a role for
regulations or the legislative veto.

   The Senate lopsidedly rejected an amendment proposed by Senator
Hatch that would have entirely eliminated the EPP (124 Cong. Rec.
10679, 10682 (1978);  Leg. Hist. 451, 457).  /20/ After a strong
defense of the EPP by two of its proponents (id. at 10682;  Leg. Hist.
456-457) (remarks of Sens. Kennedy and Cannon), the Hatch amendment
was defeated 85-7.  Following renewed expressions of support for the
deregulation bill -- including, in particular, support for the EPP
(see id. at 10695;  Leg. Hist. 479 (remarks of Sen. Muskie)) -- the
Senate overwhelmingly passed S.2493, providing for airline
deregulation (id. at 10698;  Leg. Hist. 485-486).  In all of the
debate, no one -- neither a supporter, nor an opponent of the bill --
said one word about the legislative veto.

                           c. The House Bill

   The history of the Deregulation Act in the House confirms the same
conclusions:  Congress was very concerned about employee protection,
and was not concerned about a legislative veto.  The employee
protection sections of the House Bill differed substantially from the
Senate Bill, which eventually became law.  The House Bill, provided
that the "authority granted (to airlines) by the (deregulation) bill
may not be exercised until the Secretary of Labor certifies that
employees affected by new authority are protected by arrangements no
less favorable than those in * * * (certain sections of) the
Interstate Commerce Act and * * * the Rail Passenger Service Act."
These arrangements included benefits to by paid by employers, but
"reimbursed from a separate account in the U.S. Treasury" (H.R. Rep.
95-1211, 95th Cong., 2d Sess. 22 (1978);  Leg. Hist. 530).  The House
Bill had no legislative veto or other oversight provision.

   The House Bill would have delegated substantial authority to the
Secretary of Labor, who had to "certify" that employees were
"protected" by arrangements "no less favorable" than those under two
other transportation statutes before any of the authority granted by
the deregulation bill could be exercised.  Yet, as noted, it provided
no legislative oversight of the Secretary's determinations.  The
willingness of the House Committee on Public Works and Transportation
to pass favorably on a bill with these features demonstrates both
strong House support for employee protection and, even more
significantly, a willingness to delegate substantial decision-making
authority to the Secretary without legislative oversight.  /21/

                         d. The House Debates

   Employee protection provoked no controversy at all when the House
debated the Deregulation Act.  Congressman Anderson, who managed the
bill on the floor, stated that one feature of the legislation
"insure(d) that the costs of the transition to a more competitive
system will not weigh too heavily * * * on airline employees" (124
Cong. Rec. 29526 (1978);  Leg. Hist. 731) (statement of Rep.
Anderson).  Congressman Anderson made clear the House's concern that
"regulatory reform * * * not have an undue impact on airline
employees" (ibid.; Leg. Hist. 732) (same).  Otherwise, the provision
emerged from the House debates without comment;  and, despite its
broad delegation of power to the Secretary, it was adopted without any
mention of legislative oversight.  /22/ The bill passed the House by a
vote of 363 to 8 (124 Cong. Rec. 30708 (1978);  Leg. Hist. 824-825).

                e. The Bill Reported By The Conference

   The final version of the EPP, as it emerged from conference, was
"basically the same as the Senate bill" (H.R. Conf. Rep. 95-1779, 95th
Cong., 2d Sess. 105 (1978);  Leg. Hist. 947) (listing the
differences).  The Conference Report gives no indication that there
was any consideration in conference of eliminating the EPP;  and,
except in the text and summary of the bill itself, the report makes no
mention of a legislative veto.  Thereafter, when the two chambers
considered the final bill, the legislators again stressed their
support for the EPP.  See 124 Cong. Rec. 37416 (1978);  Leg. Hist. 968
(statement of Sen. Cannon) (characterizing the EPP as an "important
protection( )" in the bill);  id. at 37421;  Leg. Hist. 975 (statement
of Sen. Stevenson);  id. at 38522;  Leg. Hist. 981 (statement of Rep.
Snyder);  id. at 38523;  Leg. Hist. 984 (statement of Rep. Johnson).
Indeed, two members of the House expressed their regrets that the EPP
had not been made even stronger.  See id. at 38523;  Leg. Hist. 983
(statement of Rep. Harsha);  id. at 38524-38525;  Leg. Hist. 986
(statement of Rep. Mineta).  But Congressman Anderson, who had managed
the Conference Bill on the floor (id. at 38521;  Leg. Hist. 980),
assured the other members of the House that the "conference provisions
represent substantial progress for the airline employees" (id. at
38522;  Leg. Hist. 981).

   During this debate on the Conference Bill -- indeed, during
Congress' entire deliberation on the EPP -- only one comment, by
Congressman Levitas, was made about the legislative veto provision
(id. at 38524;  Leg. Hist. 985-986).  /23/ Plainly, however, even in
Congressman Levitas' own consideration of the legislation, the veto
provision played an insubstantial role.  As noted above, he was a
supporter of the House Bill, which would have delegated substantial
authority to the Secretary and would have required that authority to
be exercised before deregulation could even become operational, but he
made no attempt to add a legislative veto provision, or any other
oversight provision (see page 35 nn.21, 22, supra).  The Congressman's
remarks in the post-conference debate, as their tone reflects, are
best understood as support for legislative vetoes in general -- not as
a belief that the veto had some special significance in the EPP.  /24/

   In sum, the legislative history amply supports the court of
appeals' conclusion.  Committees and leaders of Congress repeatedly
expressed strong support for the EPP, insisting that displaced
employees not bear an unfair portion of the costs of deregulation.  By
contrast, there is only one committee report reference to the
legislative veto (and it relates the veto to the assistance program),
and one Congressman on one occasion mentioned the legislative veto
(and his comment was routine praise for a device he vigorously
supported).  On that record, there is simply no basis to conclude that
Congress -- had it known that the veto would one day be invalidated --
would have wished this Court to invalidate the balance of the EPP as
well.

   Petitioners' picture of "uncertainty" and "doubts" in Congress that
labor protection was even necessary (Br. 34-37), their suggestion of
congressional "concern" that the Department of Labor might not be
"knowledgeable or even sympathetic to the objectives of the
Deregulation Act" (Br. 38), and their assertion that "Congress left
open many fundamental issues for subsequent resolution through
administrative action subject to congressional review" (Br. 37) are
all belied or totally unsupported by the legislative history.  What
petitioners describe as "uncertainty" about the need for labor
protection was, as the court of appeals noted (Pet. App. 21a-22a),
simply "the sincerely held belief in various legislative quarters that
loss of employment in a deregulated industry was unlikely," not
opposition to insurance in case it occurred.  No one in Congress, not
even those most optimistic about the future of deregulation, denied at
least the possibility of employee dislocation;  and no one spoke in
opposition to establishing a duty-to-hire provision as insurance.
See, e.g., S. Rep. 95-631, at 206-211;  Leg. Hist. 372-377 (additional
views of Sen. Zorinsky).  Nor is there a whisper in the legislative
record that Congress doubted either the ability or willingness of DOL
to administer the program;  certainly petitioners point to no evidence
of this.  /25/ Finally, at least in the duty-to-hire provisions,
Congress did not leave open "many fundamental issues" (Pet. Br. 37)
for regulatory resolution.

   Petitioners' suggestion that the legislative veto was part of a
compromise at conference is also without foundation.  Petitioners note
that in conference the Congress deleted a "qualifying dislocation"
requirement applicable to the duty-to-hire provisions, with the
effect, they say, of "provid(ing) less guidance to DOL regarding the
duty-to-hire authority" (Br. 41).  At the same time, petitioners
contend, Congress strengthened the oversight requirements of the EPP
-- by adding the six-month rule and the report-and-wait provision --
while simultaneously deleting a veto provision elsewhere in the bill
(Br. 41-42).  "By strengthening the Section 43 veto in conference, and
at the same time removing a veto provision from a section that was at
least as controversial as Section 43, Congress unmistakably
demonstrated its serious reservations about the regulatory authority
delegated to DOL" (Br. 44).

   Petitioners' claims were correctly rejected by the court of appeals
(Pet. App. 26a-28a).  The removal of the "qualifying dislocation"
requirement did potentially expand the class of protected employees
(and thus is further evidence of congressional enthusiasm for the duty
to hire), but it had no stated, or logical, relationship either to the
Secretary's regulations or to the power to veto them.  If Congress
believed that by removing this requirement it was investing DOL with
some new and less fettered authority, or if it perceived any tie
between this step and the matter of legislative oversight, it never
said so.  The decision to remove the veto provision in a wholly
unrelated part of the Act says nothing at all about the failure to
delete a legislative veto in the EPP;  again, Congress gave no
expression to the motivations petitioners ascribe to it.  Finally, the
addition in conference of the six-month deadline and the
report-and-wait rules are, at best, equivocal evidence:  the former
suggests a desire to proceed promptly with implementation, while the
latter, as the Court recognized in Chadha (see page 25 n.15, supra),
reduced the importance of the veto provision;  in any event, no one in
Congress suggested that these steps were part of any compromise.
Indeed, apart from the lone reference to the legislative veto by
Congressman Levitas, /26/ the only discussion of the EPP after
conference, in either House, consisted of either wholesale approval
(see, e.g., id. at 38523;  Leg. Hist. 983 (statement of Rep.
(statement of Sen. Cannon);  id. at 38522;  Leg. Hist. 981 (statement
of Rep. Snyder)), or regrets that the protections had not been made
even stronger (see, e.g., id. at 38523;  Leg. Hist. 983 (statement of
Rep. Harsha);  id. at 38524-38525;  Leg. Hist. 986 (statement of Rep.
Mineta).  In fact, the only real evidence of what Congress thought had
been done to the EPP in conference was expressed by the House floor
manager, Congressman Anderson;  he assured his colleagues that the
Conference Bill on employee protections had been made "considerably
stronger than the Senate bill" (id. at 38522;  Leg. Hist. 981).

   Thus, the debate on the EPP ended in conference just as it had
begun in the Senate:  Congress maintained its support for a strong
EPP, and paid virtually no attention -- let alone "emphatic" attention
(Br. 45) -- to the presence of a legislative veto.  /27/

                              CONCLUSION

   Congress spoke plainly when it enacted the EPP.  It sought
deliberately to protect airline employees in order that "the benefits
to the public which result from its decision to alter substantially
the regulation of air transportation * * * not (be) paid for by a
minority -- the airline employees and their families who have relied
on the present system" (S. Rep. 95-631, at 114;  Leg. Hist. 280).  The
duty-to-hire provisions of Section 43 -- the only provisions ever to
become operational -- impose a direct obligation on air carriers, an
obligation that was not made dependent on regulations or subject to
veto.  The EPP was overwhelmingly approved by both Houses of Congress;
 and not once in either House -- not in committee, not on the floor,
and not in conference -- did anyone in Congress suggest, even
obliquely, that legislative oversight of the EPP regulations was
important.  The veto was simply of no visible concern to anyone.

   Given the only two choices that were available to the court of
appeals once the legislative veto was invalidated, that court made the
right selection.  Petitioner's alternative approach -- requiring
courts to search the record for any evidence that Congress might have
passed a different statute if it had known that there would be no veto
provision -- is truly a rule of judicial nullification.  But statutes,
as Judge (later Mr. Justice) Cardozo once said, "are not to be
sacrificed by courts on the assumption that legislation is the play of
whim and fancy * * * Our right to destroy is bounded by the limits of
necessity.  Our duty is to save unless in saving we pervert" (People
ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48, 62-63, 129
N.E. 202, 207-208 (1920).  The court of appeals saved the balance of
Section 43 and left to Congress the choice of how, if at all, to amend
it, in light of the veto's demise.  That was exactly what the law
requires.

   For all of the foregoing reasons, the decision of the court of
appeals should be affirmed.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   LOUIS R. COHEN

      Deputy Solicitor General

   JAMES M. SPEARS

      Deputy Assistant Attorney General

   LAWRENCE S. Robbins

      Assistant to the Solicitor General

   DOUGLAS LETTER

      Attorney

   JULY 1986

   /1/ Much of the legislative background of the Deregulation Act has
been compiled in a single volume entitled House Comm. on Public Works,
96th Cong., 1st Sess., Legislative History of the Airline Deregulation
Act of 1978 (Comm. Print 96-5, 1979) (hereinafter cited as Leg.
Hist.).

   /2/ The Secretary is also directed to encourage negotiations
between air carriers and eligible protected employees "with respect to
rehiring practices and seniority" (49 U.S.C. App. 1552(d)(3)).

   /3/ If both Houses adopted an approval resolution during the 60-day
period, the rule would become effective immediately (49 U.S.C. App.
1552(f)(3)).

   /4/ Before reaching the merits of petitioners' claims, the court
first held that appellate jurisdiction properly lay in the court of
appeals, notwithstanding the provisions of 28 U.S.C. 1252 (Pet. App.
6a-9a).  The court then determined that the severability issue was
ripe, despite the fact that Congress had never exercised the
legislative veto contained in Section 43 (Pet. App. 9a-10a).  The
court also concluded that the district court had correctly decided
that this Court's decision in Chadha applies retroactively to earlier
enacted veto provisions (id. at 11a-15a).

   /5/ The court of appeals did not state, as petitioners imply (Br.
7), that the test is whether Congress would have preferred any
protection statute to none at all.  It simply compared the statute it
had with the only available alternative -- striking it down.

   /6/ Judge Ginsburg concurred in the judgment.  Like the majority,
she concluded that "(d)eletion of the veto preserves Section 43 and
thereby gives effect to the dominant intent of Congress," while a
declaration of inseverability "would be far more destructive of the
legislature's will" (Pet. App. 29a).

   /7/ On remand, the district court sustained all but one of the
Secretary's regulations against petitioners' contention that they were
inconsistent with the Deregulation Act (Alaska Airlines, Inc. v.
Brock, 632 F. Supp. 178 (D.D.C. 1986)).  The sole exception was
Section 220.21(a)(1) (29 C.F.R.) of the regulations (Pet. App. 52a;
48 Fed. Reg. 52863 (1983)), which deals with the initial hiring age of
designated employees.  The district court remanded to the Secretary
that part of the rule that affected flight officers and pilots.  After
the district court and court of appeals declined to stay the effective
date of the remainder of the regulations, the Chief Justice, by order
dated January 27, 1986, denied petitioners' application for a stay
pending the Court's disposition of petitioners' certiorari petition.
No. A-571.  The Secretary's regulations accordingly went into effect
on January 27, 1986.  After this Court granted certiorari
approximately one month later, the D.C. Circuit recalled its mandate,
as it automatically does in such instances.  On May 9, 1986, pursuant
to the Secretary's motion, the court of appeals reissued its mandate,
thereby allowing the Secretary's program to go back into effect.  On
May 20, 1986, the Chief Justice denied petitioners' request that the
mandate be recalled and stayed.  The regulations are now in operation,
with the exception of Section 220.21(a)(1), insofar as it relates to
flight officers and pilots.

   /8/ Petitioners contend, as they did below, that the court of
appeals lacked jurisdiction because the district court's decision held
"an Act of Congress unconstitutional" and therefore, pursuant to 28
U.S.C. 1252, could only be appealed directly to this Court.  As the
court of appeals concluded in rejecting this argument (Pet. App.
6a-9a), this Court's jurisdictional ruling in EEOC v. Allstate
Insurance Co., 467 U.S. 1232 (1984), resolves this question against
petitioners.  There, the EEOC took a protective appeal to this Court
pursuant to 28 U.S.C. 1252 from a district court decision holding the
legislative veto provision in the Reorganization Act of 1977
inseverable from the remainder of the enactment.  At the same time,
however, the EEOC contended that the severability holding of the
district court presented simply a question of legislative intent --
not one of the constitutionality of the remaining provisions.  As
such, the EEOC maintained, an appeal was properly brought to a court
of appeals pursuant to 28 U.S.C. 1291.  See Heckler v. Edwards, 465
U.S. 870 (1984).  This Court dismissed the appeal in Allstate, making
it clear that an appeal under these circumstances must be taken to the
court of appeals.

   Petitioners' effort to distinguish Allstate (Br. 13 n.13) is
unavailing.  They contend that in Allstate the appellants challenged
only the remedy ordered by the district judge, after he had found the
veto provision unconstitutional.  By contrast, petitioners maintain,
here the United States has challenged the district court's finding of
inseverability.  But this is just a semantic quibble:  the "remedy"
challenged in Allstate was the same as that which the Secretary
appealed from here -- the declaration that a legislative veto
provision is, by virtue of legislative intent, inseverable from the
balance of the statute.  Under this Court's unanimous holding in
Heckler v. Edwards, 465 U.S. at 885, an appeal only from that judgment
-- which does not challenge the underlying decision that the veto is
unconstitutional -- does not vest jurisdiction in this Court under 28
U.S.C. 1252.

   /9/ Even if petitioners' formulation were correct, it would not
change the result in this case:  as we show below, there is no
evidence that Congress would have modified the duty-to-hire provisions
in any respect if it had known that it could not have a legislative
veto.

   /10/ In Chadha, the Court also found a presumption based on the
existence of a severability clause.  It is clear that, while the
presence of a severability clause certainly strengthens the case for
severance, the absence of such a clause does not raise a presumption
against severability.  See Tilton v. Richardson, 403 U.S. at 684;
United States v. Jackson, 390 U.S. at 585 n.27.

   /11/ The Court need not decide in this case whether, if the
assistance provisions had not been rendered inoperative by Congress'
failure to fund them, they would have been invalidated as inseverable
from the legislative veto.  The fate of the duty-to-hire provisions
does not depend in any way on that question.  See Regan, 468 U.S. at
653;  Jackson, 390 U.S. at 585-591.

   /12/ A separate provision provides that, in addition to these
duties, "the Secretary shall encourage negotiations between air
carriers and representatives of eligible protected employees with
respect to rehiring practices and seniority" (Section 43(d)(3)).

   /13/ Petitioners' assertion that "Section 43 required the
Department of Labor * * * to establish a novel, untested type of labor
protection" (Br. 3) (emphasis added) is incorrect.  It was Congress,
not the Secretary, which imposed the duty to hire from which
petitioners now seek to escape, and it is to Congress that they should
address their objections.  Petitioners' suggestion that because of
purported "uncertainty about the need for labor protection * * *
Congress did not fully develop the EPP" (Br. 4) is similarly mistaken.
 The EPP was, as petitioners acknowledge (Br. 3), an "insurance"
program, and it was of course hoped that few employees would need to
call on it;  but Congress exhibited no uncertainty whatever about
whether the duty-to-hire part of the insurance should go into effect.
To the contrary, Congress unambiguously declared its intent to impose
on air carriers a duty to hire displaced workers.

   /14/ Petitioners find fault with the court of appeals'
determination that the legislative veto was primarily directed at the
payment regulations -- not the duty to hire (Br. 40 n.49).  They argue
that Congress intended both parts of the EPP to "operate in tandem"
(ibid.).  Whatever that may mean (and, of course, it has not proven to
be the case in practice), it does not contradict the considerable
evidence that the only source of controversy in the EPP was the
assistance provisions.  Those provisions were, potentially, the
costliest and, under the statutory framework, involved the greatest
measure of delegated authority to the Secretary.  Not surprisingly,
the only part of the EPP to which the oversight provisions make
specific reference is the portion giving the Secretary authority to
promulgate guidelines for monthly payments (49 U.S.C. App.
1552(f)(2)).

   /15/ The Court made a similar point in Chadha, finding the
legislative veto severable in part because a "report and wait" type of
oversight remained available to Congress.  The Court noted that,
without the legislative veto, "Congress' oversight of the exercise of
* * * delegated authority is preserved since all such suspensions will
continue to be reported to it" (462 U.S. at 935).  "Without the
one-House veto," the Court observed, the remaining statute "resembles
the 'report and wait' provision approved by the Court" in prior case
law (id. at 935 n.9).  See also Bowsher v. Synar, No. 95-1377 (July 7,
1986), slip op. 19 (inclusion of fallback provision indicative of
legislative intent with respect to consequences of invalidation of
statutory provision).

   /16/ Only Senator Zorinsky described the EPP as "without
precedent", but he limited his characterization to the monthly payment
program (S. Rep. 95-631, at 208;  Leg. Hist. 374) (additional views of
Sen. Zorinsky).  That program, we have noted, was never funded and
never became operational.  The Senator did, however, find ample
precedent for the duty-to-hire program, which he thought "mesh(ed)
perfectly with this expanding competitive environment" (S. Rep.
95-631, at 206;  Leg. Hist. 372).  The Senator, in fact, proposed
amending the EPP in a way which would have retained the duty-to-hire
provisions in their present form.  Id. at 208-209;  Leg. Hist.
374-375.

   /17/ Petitioners point to the fact that out of the entire
Deregulation Act only Section 43 contained a legislative veto (Br.
28-29) as demonstrating that Congress would not have wanted the
duty-to-hire provisions to be sustained in the absence of the
legislative veto.  But the uncommented-on absence of a veto clause in
other provisions of the Act says nothing whatever about (i) whether
Congress considered the veto clause in Section 43 more important, or
less important, than other veto clauses it has adopted or (ii) whether
Congress would not have enacted the duty-to-hire provisions of Section
43 without it.

   /18/ The Senate Report described the new legislation as "a major
change and fundamental redirection as to the manner of regulation of
interstate and overseas air transportation" (S. Rep. 95-631, at 52;
Leg. Hist. 218).

   /19/ The strong support for the duty to hire, and the lack of
concern to oversee related regulations, are both illustrated by the
views of the Senators who refused to vote for the Senate Bill in
committee.  Senator Zorinsky objected to the bill because its employee
protection program was not limited to a duty to hire.  His alternative
proposal would have retained virtually the identical duty-to-hire plan
(S. Rep. 95-631, at 208-209;  Leg. Hist. 374-375 (additional views of
Sen. Zorinsky), for which, the Senator acknowledged, there was
"precedent" (id. at 206;  Leg. Hist. 372) (same).  Senator Zorinsky
would simply have excised the funding program, which he believed might
cost as much as $1 billion (id. at 207;  Leg. Hist. 373) (same).  From
the opposite perspective, Senator Inouye objected to the bill because
it did not go far enough in protecting employees from "the risks" of
"large-scale employee cutbacks and other disruptions" (id. at 221;
Leg. Hist. 387) (minority views of Sen. Inouye).  The other two
dissenting committee members were Senators Melcher and Goldwater.  See
id. at 222-224;  Leg. Hist. 388-390 (minority views of Sen. Melcher)
(expressing concern over "assuredly * * * wide spread unemployment and
dislocation among the labor forces of the carriers");  id. at 225-228;
 Leg. Hist. 391-394 (minority views of Sen. Goldwater).  Finally, one
Senator who voted for the bill did so in part because the final bill,
unlike the original version, included a "program to assist employees
who might be dislocated" (id. at 216;  Leg. Hist. 382) (additional
views of Sen. Danforth).

   /20/ Although the Hatch amendment would have eliminated even the
duty-to-hire provision, here, too, the only objection to the EPP
expressed by Senator Hatch was to the costliness of the financial
assistance provision (id. at 10679, 10682;  Leg. Hist. 451, 457).

   /21/ Congressman Levitas, the one Member of Congress who eventually
commented on the legislative veto, supported the House Bill;  and
although he noted some disagreement with what he thought was the
"precipitous(ness)" of the House Bill, he said nothing at this point
about any need to insert a legislative veto (H.R. Rep. 95-1211, at 73;
 Leg. Hist. 581) (additional views of Rep. Levitas).

   /22/ Again, Congressman Levitas, as he had when the bill emerged
from committee, spoke enthusiastically about the bill.  Again, he did
not mention the veto power (124 Cong. Rec. 29529-29530, 30671 (1978);
Leg. Hist. 737-738, 760) (statement of Rep. Levitas).  Indeed, the
Congressman expressed his view that the House Bill -- which did not
contain a veto clause -- was "far superior to the bill of the other
body in every respect" (id. at 30671;  Leg. Hist. 760) (statement of
Rep. Levitas).  The Senate Bill, of course, did contain a legislative
veto provision.

   /23/ Representative Levitas stated:  "Finally, Mr. Speaker, I
cannot let this moment go by without making this observation.  While
there have been several bills sent to the President this year and
signed by him which contained a provision for a congressional veto, I
am happy to say that this piece of legislation contains a one-House
veto over the regulations which may be issued by the Secretary of
Labor on the labor protection provisions, so that the Congress and not
an unelected bureaucrat will have the final word on the regulations
that will have the effect of law."

   /24/ Representative Levitas has been an ardent partisan of the
legislative veto device and has supported its inclusion in a wide
variety of statutes to cover all agency regulations.  See, e.g.,
Legislative Veto Proposals:  Hearings on S. 890 and S. 684, Before the
Subcomm. on Agency Administration of the Senate Comm. on the
Judiciary, 97th Cong., 1st Sess. 97 (1981);  Congressional Review of
Administrative Rulemaking:  Hearings on H.R. 3658, H.R. 8231, and
Related Bills, Before the Subcomm. on Administrative Law and
Governmental Relations of the House Comm. on the Judiciary, 94th
Cong., 1st Sess. 142 (1975).  Indeed, Congressman Levitas' unusual
devotion to the legislative veto was recognized by his colleagues in
the House.  In 1978, during the same period of time that the
Deregulation Act was being considered in Congress, one Congressman
paid tribute to Congressman Levitas' "leadership in the fight to
establish a congressional veto over executive agency rules and
regulations" (124 Cong. Rec. 19427 (1978) (statement of Rep.
Alexander)).  Congressman Alexander described his colleague as
"(u)ndaunted by an administration that opposes the concept of a
legislative veto" and noted that Congressman Levitas had "time and
again brought our attention to the need for such a veto through
introduction of amendments to authorizing legislation for the various
Federal agencies" (ibid.).  Representative Levitas has continued his
support of the legislative veto device, strongly expressing his view
that this Court was mistaken in ruling as it did in Chadha.  See,
e.g., 130 Cong. Rec. H2520 (daily ed. Apr. 10, 1984);  id. at H10516
(daily ed. Oct. 1, 1984);  Levitas & Brand, The Post Legislative Veto
Response:  A Call to Congressional Arms, 12 Hofstra L. Rev. 593, 613
(1984).

   /25/ Indeed, contrary to petitioners' suggestion (Br. 38), the
Department of Labor had had significant regulatory responsibilities
for other employee protection programs.  See, e.g., Rail Passenger
Service Act, 45 U.S.C. 565(b);  Redwood National Park Expansion Act of
1978, Pub. L. No. 95-250, 92 Stat. 163 et seq.

   /26/ Petitioners maintain that Congressman Levitas tried to
"persuade" a "skeptical House" to "acquiesce" in the Senate's approach
to the EPP, by "emphasizing the importance of the legislative veto"
(Br. 43).  As our previous discussion indicates, Congressman Levitas
was not trying to "persuade" anyone, nor were his colleagues
"skeptical" about the bill.  The Congressman was simply extolling the
presence of a legislative veto in this bill -- a theme, we have noted,
he returned to on numerous occasions in a variety of contexts.
Moreover, as the court of appeals correctly observed (Pet. App.
27a-28a), those few members of the House who were, indeed, "skeptical"
felt that the employee protections did not go far enough.  As the
court of appeals put it, "(i)t seems * * * unlikely that a program
offering less protection would have occasioned a call for even greater
legislative control over the bureaucracy" (Pet. App. 28a).

   /27/ Based on this legislative record, the case for severability is
far stronger here than it was in Chagha.  In Chadha the Court found in
the history of related immigration legislation that "Congress was
reluctant to delegate final authority over cancellation of
deportations" (462 U.S. at 932), and thus that, at least to some
extent, "Congress( ) desire(d) to retain a veto in this area" (id. at
934).  Similarly, in Consumer Energy Council, 673 F.2d 425, which this
Court affirmed without opinion, 463 U.S. 1216, the court of appeals,
while finding severable a legislative veto attached to a portion of
the Natural Gas Policy Act of 1978, conceded that there were
"contradictory comments about the importance of (the legislative
veto)" (673 F.2d at 442), including statements on the floor that a key
portion of the legislation "could be rejected by legislative veto"
(id. at 442-443).  By contrast, there is no evidence on this record
that anyone in Congress was concerned about the power to veto
regulations connected with the duty to hire.