# Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc./Dissent White

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion White
Justice WHITE, with whom The Chief Justice and Justice MARSHALL join, dissenting.
Today the Court strikes down yet another innovative and otherwise lawful governmental experiment in the name of separation of powers. To reach this result, the majority must strain to bring state enactments within the ambit of a doctrine hitherto applicable only to the Federal Government and strain again to extend the doctrine even though both Congress and the Executive argue for the constitutionality of the arrangement which the Court invalidates. These efforts are untenable because they violate the " 'cardinal principle that this Court will first ascertain whether a construction of [a] statute is fairly possible by which the [constitutional] question may be avoided.' " Ashwander v. TVA, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932)). They are also untenable because the Court's separation-of-powers cases in no way compel the decision the majority reaches.
* For the first time in its history, the Court employs separation-of-powers doctrine to invalidate a body created under state law. The majority justifies this unprecedented step on the ground that the Board of Review "exercises sufficient federal power . . . to mandate separation-of-powers scrutiny." Ante, at 269. This conclusion follows, it is claimed, because the Board, as presently constituted, would not exist but for the conditions set by Congress in the Metropolitan Washington Airports Act of 1986, 49 U.S.C.App. § 2456(f)(1). This unprecedented rationale is insufficient on at least two counts. The Court's reasoning fails first because it ignores the plain terms of every instrument relevant to this case. The Court further errs because it also misapprehends the nature of the Transfer Act as a lawful exercise of congressional authority under the Property Clause. U.S.C.onst., Art. IV, § 3, cl. 2.
Both the Airports Authority (Authority) and the Board are clearly creatures of state law. The Authority came into being exclusively by virtue of acts passed by the Commonwealth of Virginia, 1985 Va. Acts, ch. 598, § 2, and the District of Columbia, 1985 D.C.Law 6-67, § 3. These enactments expressly declared that the Authority would be a "public body corporate and politic . . . independent of all other bodies" with such powers as "conferred upon it by the legislative authorities of both the Commonwealth of Virginia and the District." 1985 Va. Acts, ch. 598, § 2; 1985 D.C.Law 6-67, § 3. The Transfer Act acknowledged that the authority was to have only "the powers and jurisdiction as are conferred upon it jointly by the legislative authority of the Commonwealth of Virginia and the District of Columbia," § 2456(a), and was to be "independent of the . . . Federal Government," 49 U.S.C.App. § 2456(b)(1). Under the Transfer Act, the Secretary of Transportation and the Authority negotiated a lease that defined the powers and composition of the Board to be established. Lease, Art. 13, see App. to Pet. for Cert. 175a-176a. Even then, the Board could not come into existence until the state-created Authority adopted bylaws establishing it. Bylaws, Art. IV, see App. to Pet. for Cert. 151a-154a. To allay any doubt about the Board's provenance, both Virginia and the District amended their enabling legislation to make explicit the Authority's power to establish the Board under state law. See 1987 Va. Acts, ch. 665, § 5, subd. A, par. 5; 1987 D.C.Law 7-18, § 3(c)(2).
The specific features of the Board are consistent with its status as a state-created entity. As the Airports Act and the lease contemplated, the bylaws provide that the Board consist of nine Members of Congress whom the Board of Directors would appoint. 49 U.S.C.App. § 2456(f)(1); Lease, Art. 13A, App. to Pet. for Cert. 175a; Bylaws, Art. IV, § 1, App. to Pet. for Cert. 151. But, again as contemplated by both the Transfer Act and lease, the bylaws also make clear that the Members of Congress sit not as congressional agents but "in their individual capacities," as "representatives of the users of the Metropolitan Washington Airports." Id., at 151a. To ensure that the Board members protect the interests of nationwide users, the bylaws further provide that Members of Congress from Virginia, Maryland, and the District of Columbia would be ineligible. Id., at 152a.
As the Court has emphasized, "[g]oing behind the plain language of a statute in search of a possibly contrary . . . intent is 'a step to be taken cautiously' even under the best of circumstances." American Tobacco Co. v. Patterson, 456 U.S. 63, 75, 102 S.Ct. 1534, 1540, 71 L.Ed.2d 748 (1982) (quoting Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124 (1977)). Nowhere should this caution be greater than where the Court flirts with embracing "serious constitutional problems" at the expense of "constru[ing a] statute to avoid such problems." Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988); see Murray v. The Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804) (Marshall, C.J.). The majority nonetheless offers three reasons for taking just these steps. First, control over the airports "was originally in federal hands," and was transferred "only subject to the condition that the States create the Board." Ante, at 266. Second, "the Federal Government has a strong and continuing interest in the efficient operation of the airports." Ante, at 266. Finally, "and most significant, membership on the Board of Review is limited to federal officials." Ibid. In other words, Congress, in effect, created a body that, in effect, discharges an ongoing interest of the Federal Government through federal officials who, in effect, serve as congressional agents.
This picture stands in stark contrast to that drawn in each of the applicable enactments and agreements which, as noted, establish a state-created authority given the power to create a body to safeguard the interests of nationwide travelers by means of federal officials serving in their individual capacities. We have, to be sure, held that separation-of-powers analysis "does not turn on the labeling of the activity," but instead looks to "practical consequences," Mistretta v. United States, 488 U.S. 361, 393, 109 S.Ct. 647, 665, 102 L.Ed.2d 714 (1989). This observation, however, does not give the Court a license to supplant the careful work of the Airports Authority, Virginia, the District, the Federal Executive, and Congress with its own in-house punditry. This is especially so when the instruments under consideration do not merely "label" but detail an arrangement in which any unconstitutional consequences are pure speculation.
As an initial matter, the Board may not have existed but for Congress, but it does not follow that Congress created the Board or even that Congress' role is a "factor" mandating separation-of-powers scrutiny. Congressional suggestion does not render subsequent independent state actions federal ones. Aside from the clear statutory language, the majority's conclusion ignores the entire series of voluntary and intervening actions, agreements, and enactments on the part of the Federal Executive, Virginia, the District, and the Authority, without which the Transfer Act would have been a nullity and the Board of Review would not have existed. Congress commonly enacts conditional transfers of federal resources to the States. See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980); Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974); Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937). Separation-of-powers doctrine would know few bounds if such transfers compelled its application to the state enactments that result.
Likewise, nothing charges the Board with oversight of any strong and continuing interest of the Federal Government, much less with conducting such oversight as an agent of Congress. Despite disclaimers, the majority is quick to point to portions of the legislative history in which various Members of Congress state their belief that the Board would insure congressional control over the airports. Ante, at 267-268. But that is not all the legislative history contains. Other statements support the declaration in all the relevant enactments that Members of Congress are to sit on a state-created body in their individual capacities to safeguard the interests of frequent, nationwide users. On this point Members of the House, the Senate, and the Executive agreed. Representative Hammerschmidt, for example, stated that the purpose of a "board of review composed of Congressmen is . . . to protect the interests of all users of the two airports." 132 Cong.Rec. 32143 (1986). Senator Kassebaum contended that members of Congress could further this purpose since, "[m]ost Members are intensely interested in the amount of service to and from certain cities, from both National and Dulles." Id., at 6069. Secretary of the Treasury Dole echoed these sentiments, testifying that "Members of Congress are heavy users of the air transportation system." Hearing on H.R. 2337, H.R. 5040, and S. 1017 before the Subcommittee on Aviation of the House Committee on Public Works and Transportation, 99th Cong., 2d Sess., 110 (1986).
Considered as a creature of state law, the Board offends no constitutional provision or doctrine. The Court does not assert that congressional membership on a state-created entity, without more, violates the Incompatibility or Ineligibility Clauses. U.S.C.onst., Art. I, § 6, cl. 2. By their express terms, these provisions prohibit Members of Congress from serving in another federal office. They say nothing to bar congressional service in state or State-created offices. To the contrary, the Framers considered and rejected such a bar. 1 M. Farrand, The Records of the Federal Convention of 1787, pp. 20-21, 217, 386, 389, 428-429 (1966 ed). As Roger Sherman observed, maintaining a state ineligibility requirement would amount to "erecting a Kingdom at war with itself." Id., at 386. The historical practice of the First Congress confirms the Conventions sentiments, insofar as several Members simultaneously sat as state legislators and judges. See, e.g., Biographical Directory of the United States Congress, 1774-1989, pp. 748, 1389, 1923 (1989). As the Court has held, actions by Members of the First Congress provide weighty evidence on the Constitution's meaning. Bowsher v. Synar, 478 U.S. 714, 723-724, 106 S.Ct. 3181, 3186-3187, 92 L.Ed.2d 583 (1986). Constitutional text and history leave no question but that Virginia and the District of Columbia could constitutionally agree to pass reciprocal legislation creating a body to which nonfederal officers would appoint Members of Congress functioning in their individual capacities. No one in this case contends otherwise.
The Court's haste to extend separation-of-powers doctrine is even less defensible in light of the federal statute on which it relies. Far from transforming the Board into a federal entity, the Airports Act confirms the Board's constitutionality inasmuch as that statute is a legitimate exercise of congressional authority under the Property Clause. U.S.C.onst., Art. IV, § 3, cl. 2. To overlook this fact the Court must once again ignore plain meaning, this time the plain meaning of the Court's controlling precedent regarding Congress' coextensive authority under the Spending Clause. Ibid.
As the majority acknowledges, in South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987), the Court held that Congress could condition a grant of Federal funds to a State on the State's raising the drinking age to 21, even assuming that Congress did not have the power to mandate a minimum national drinking age directly. As the majority fails to acknowledge, the Court's holding in no way turned on a State's "incentive and . . . ability to protect its own rights and powers." Ante, at 271. Rather, the Court stated that Congress could exercise its spending authority so long as the conditional grant of funds did not violate an " 'independent constitutional bar.' " Dole, supra, at 209, 107 S.Ct., at 2797 (quoting Lawrence County v. Lead-Deadwood School Dist., 469 U.S. 256, 269-270, 105 S.Ct. 695, 702-703, 83 L.Ed.2d 635 (1985)). Dole defined this constraint as follows:
"[T]he 'independent constitutional bar' limitation on the spending power is not . . . a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly. Instead, we think that the language in our earlier opinions stands for the unexceptional proposition that the [spending] power may not be used to induce the States to engage in activities that would themselves be unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress' broad spending power. . . . Were South Dakota to succumb to the blandishments offered by Congress and raise its drinking age to 21, the State's action in so doing would not violate the constitutional rights of anyone." 483 U.S., at 210-211, 107 S.Ct., at 2798 (emphasis added).
Dole states only that Congress may not induce the States to engage in activities that would themselves have been unconstitutional in the absence of the inducement. The decision does not indicate that Congress can act only when its actions implicate "the allocation of power between the Federal Government and the States" ante, at 271, as opposed to principles, "the aim of which is not to protect the States but 'the whole people from improvident laws.' " Ante, at 271. Nor could it. In the context of § 1983, the Court has rejected any broad distinction between constitutional provisions that allocate powers and those that affirm rights. Dennis v. Higgins, 498 U.S. ----, ---- - ----, 111 S.Ct. 865, 871-872, 112 L.Ed.2d 969 (1991). The majority's own application of its test to this case illustrates the difficulties in its position. The Court asserts that Dole cannot safeguard the Board because separation-of-powers doctrine, ultimately, protects the rights of the people. By this logic, Dole itself would have had to come out the other way since the Twenty-first Amendment reinstated state authority over liquor, which in turn strengthened federalism, which in turn theoretically protects the rights of the people no less than separation-of-powers principles. See The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).
There is no question that Dole, when faithfully read, places the Board outside the scope of separation-of-powers scrutiny. As noted, no one suggests that Virginia and the District of Columbia could not have created a board of review to which nonfederal officers would appoint Members of Congress had Congress not offered any inducement to do so. The Airports Act, therefore, did not induce the States to engage in activities that would themselves be unconstitutional. Nor is there any assertion that this case involves the rare circumstance in which "the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion' " Dole, supra, 483 U.S., at 211, 107 S.Ct., at 2798 (quoting Steward Machine Co., 301 U.S., at 590, 57 S.Ct., at 892). In Dole, Congress authorized the Secretary of Transportation to withdraw funding should the States fail to comply with certain conditions. Here, Congress merely indicated that federal control over National and Dulles would continue given a failure to comply with certain conditions. Virginia and the District may sorely have wanted control over the airports for themselves. Placing conditions on a desire, however, does not amount to compulsion. Dole therefore requires precisely what the majority denies-the rejection of separation-of-powers doctrine as an "independent bar" against Congress conditioning the lease of federal property in this case.
Even assuming that separation-of-powers principles apply, the Court can hold the Board to be unconstitutional only by extending those principles in an unwarranted fashion. The majority contends otherwise, reasoning that the Constitution requires today's result whether the Board exercises executive or legislative power. Ante, at 274-276. Yet never before has the Court struck down a body on separation-of-powers grounds that neither Congress nor the Executive oppose. It is absurd to suggest that the Board's power represents the type of "legislative usurpatio[n] . . . which, by assembling all power in the same hands . . . must lead to the same tyranny," that concerned the Framers. The Federalist No. 48, supra, at 309-310 (J. Madison). More to the point, it is clear that the Board does not offend separation-of-powers principles either under our cases dealing with executive power or our decisions concerning legislative authority.
Based on its faulty premise that the Board is exercising federal power, the Court first reasons that "[if] the [Board's] power is executive, the Constitution does not permit an agent of Congress to exercise it." Ante, at 276. The majority does not, however, rely on the constitutional provisions most directly on point. Under the Incompatibility and Ineligibility Clauses, Members of Congress may not serve in another office that is under the authority of the United States. U.S.C.onst., Art. I, § 6, cl. 2. If the Board did exercise executive authority that is federal in nature, the Court would have no need to say anything other than that congressional membership on the Board violated these express constitutional limitations. The majority's failure is either unaccountable or suggests that it harbors a certain discomfort with its own position that the Board in fact exercises significant federal power. Whichever is the case, the Court instead relies on expanding nontextual principles as articulated in Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). Bowsher, echoing Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928), held that the Constitution prevented legislative agents from exercising executive authority. Bowsher, supra, 478 U.S., at 726, 106 S.Ct., at 3187. The Court asserts that the Board, again in effect, is controlled by Congress. The analysis the Court has hitherto employed to recognize congressional control, however, show this not to be the case.
As Bowsher made clear, a "critical factor" in determining whether an official is "subservient to Congress" is the degree to which Congress maintains the power of removal. Bowsher, supra, at 727, 106 S.Ct., at 3188. Congress cannot "draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of" the removal of a federal executive officer. Myers v. United States, 272 U.S. 52, 161, 47 S.Ct. 21, 40, 71 L.Ed. 160 (1926). Here Congress exercises no such power. Unlike the statutes struck down in Bowsher and Myers, the Transfer Act contains no provision authorizing Congress to discharge anyone from the Board. Instead, the only express mention of removal authority over Board members in any enactment occurs in resolutions passed by the Board of Directors under the bylaws. These resolutions provide that members of the Board shall sit for fixed terms, but may be removed by the Board of Directors for cause. See Resolution No. 87-12 (June 3, 1987), App. 47-48; Resolution No. 87-27 (Sept. 2, 1987), App. 60. This arrangement is consistent with the settled principle that "the power of removal result[s] by a natural implication from the power of appointing." 1 Annals of Cong. 496 (1789) (statement of Rep. Madison). See Carlucci v. Doe, 488 U.S. 93, 99, 109 S.Ct. 407, 411, 102 L.Ed.2d 395 (1988); Myers, supra, 272 U.S., at 119, 47 S.Ct., at 26.
The majority counters that Congress maintains "effective removal power over Board members because depriving a Board member of membership in [certain congressional] committees deprives the member of authority to sit on the Board." Ante, at 269. This conclusion rests on the faulty premise that the Airports Act requires the removal of a Board member once he or she leaves a particular committee. But the Act does not say this. Rather, it merely states that members of the Board "shall consist" of Members of Congress who sit in certain specified committees. 49 U.S.C.App. § 2456(f)(1). Moreover, the Act elsewhere provides that the standard term of service on the Board is six years. § 2456(f)(2). This term, which spans three Congresses, suggests that a Board member's tenure need not turn on continuing committee or even congressional status. Nor, to date, has any member of the Board been removed for having lost a committee post. Tr. of Oral Arg. 11. Once again, the Court seizes upon a less plausible interpretation to reach a constitutional infirmity despite " '[t]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.' " DeBartolo Corp., 485 U.S., at 575, 108 S.Ct., at 1397 (quoting Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 211, 39 L.Ed. 297 (1895)); see Ashwander, 297 U.S., at 348, 56 S.Ct., at 483.
Nor has Congress improperly influenced the appointment process, which is ordinarily a less important factor in separation-of-powers analysis in any event. The Authority's bylaws, reflecting the lease and the Transfer Act, provide that the Board consist of two members each from the House Appropriations Committee, the House Public Works Committee, the Senate Appropriations Committee, and the Senate Commerce, Science and Transportation Committee, as well as an additional Member from the House or Senate. Bylaws, Art. IV, § 4, App. to Pet. for Cert. 153a; see Lease, Art. 13A, App. to Pet. for Cert. 175a; 49 U.S.C.App. § 2456(f)(1). The Board of Directors appoints members from lists provided by the Speaker of the House and the President pro tempore of the Senate. To the majority, these provisions add up to impermissible congressional control. Our cases point to the opposite conclusion.
Twice in recent Terms the Court has considered similar mechanisms without suggesting that they raised any constitutional concern. In Bowsher, the Court voiced no qualms concerning Presidential appointment of the Comptroller General from a list of three individuals suggested by the House Speaker and the President pro tempore. 478 U.S., at 727, 106 S.Ct., at 3188. Likewise, in Mistretta the Court upheld Congress' authority to require the President to appoint three federal judges to the Sentencing Commission after considering a list of six judges recommended by the Judicial Conference of the United States. 488 U.S., at 410, n. 31, 109 S.Ct., at 674, n. 31. The majority attempts to distinguish these cases by asserting that the lists involved were merely recommendations whereas Board "must " be chosen from the submitted lists at issue here. Ante, at 268-269. A fair reading of the requirement shows only that the Board may not be chosen outside the lists. It is perfectly plausible to infer that the Directors are free to reject any and all candidates on the lists until acceptable names are submitted. It is difficult to see how the marginal difference that would remain between list processes in Bowsher and Mistretta on one hand, and in this case on the other, would possess any constitutional importance. In sharp contrast, Springer can be readily distinguished. In that instance, as in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Court struck down a scheme in which the legislature usurped for itself the appointment authority of a coequal, coordinate branch of government. Springer, 277 U.S., at 203, 205, 48 S.Ct., at 482, 483. Here Congress has neither expressly nor substantively vested appointment power in itself or appropriated appointment power properly lodged with the President.
Our recent case law also compels approval of the Board's composition. The majority makes much of the requirement that appointees to the Board must be members of the enumerated congressional committees. Ante, at 269. Committee membership, the argument goes, somehow belies the express declaration that Members of Congress are to sit in their individual capacities as representatives of frequent, nationwide travelers. Mistretta, however, refused to disqualify federal judges, sitting in their individual capacities, from exercising nonjudicial authority simply because they possessed judicial expertise relevant to their posts on the Sentencing Commission. It is difficult, then, to see why Members of Congress, sitting in their individual capacities, should be disqualified from exercising non legislative authority because their legislative expertise-as enhanced by their membership on key transportation and finance committees-is relevant to their posts on the Board. I refuse to invalidate the Board because its members are too well qualified.
The majority alternatively suggests that the Board wields an unconstitutional legislative veto contrary to Chadha. See 462 U.S., at 952-955, 103 S.Ct. at 2784-86. If the Board's "power is legislative," the Court opines, "Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7." Ante, at 276. The problem with this theory is that if the Board is exercising federal power, its power is not legislative. Neither does the Board itself serve as an agent of Congress in any case.
The majority never makes up its mind whether its claim is that the Board exercises legislative or executive authority. The Court of Appeals, however, had no doubts, concluding that the Board's authority was "quintessentially executive." 286 U.S.App.D.C. 334, 342, 917 F.2d 48, 56 (1990). Judge Mikva in dissent operated on the same assumption. See id., at 344-347, 917 F.2d, at 58-61. Accord, 718 F.Supp. 974, 986 (DC 1989); Federal Firefighters Association, Local 1 v. United States, 723 F.Supp. 825, 826 (DC 1989). If federal authority is being wielded by the Board, the lower courts' characterization is surely correct. Before their transfer to the Airports Authority, National and Dulles were managed by the Federal Aviation Administration, which in turn succeeded the Civil Aeronautics Agency. Ante, at 255. There is no question that these two agencies exercised paradigmatic executive power or that the transfer of the airports in no way altered that power, which is now in the hands of the Authority. In Chadha, by contrast, there was no question-at least among all but one member of the Court-that the power over alien deportability was legislative. 462 U.S., at 951-959, 103 S.Ct., at 2784-2788; id., at 976, 984-989, 103 S.Ct., at 2797, 2801-2804 (WHITE, J., dissenting). But see id., at 959, 964-967, 103 S.Ct., at 2788, 2790-2792 (Powell, J., concurring in judgment). Chadha is therefore inapposite. Even more questionable is reliance on Bowsher to suggest that requirements of bicameralism and presentment apply to the actions of a "quintessentially executive" entity. While a concurrence in that case explored this theory, 478 U.S., at 755, 106 S.Ct., at 3202 (STEVENS, J., concurring in judgment), the Court never so held, id., at 732, 106 S.Ct., at 3191. The Board's authority is not of an order that the Court has ever held to be "an exercise of legislative power . . . subject to the standards prescribed in Art. I." Chadha, supra, 462 U.S., at 957, 103 S.Ct., at 2787. The majority can make it so only by reaching past our precedents.
More important, the case for viewing the Board as a "congressional agent" is even less compelling in the context of Article I than it was with reference to Article II. Chadha dealt with a self evident exercise of congressional authority in the form of a resolution passed by either House. 462 U.S., at 925, 103 S.Ct., at 2770. Bowsher involved a situation in which congressional control was at least arguable since the Comptroller General labored under numerous, express statutory obligations to Congress itself. See 478 U.S., at 741-746, 106 S.Ct., at 3195-3198 (STEVENS, J., concurring in judgment). Even then, the Court did not adopt the theory that such control subjected the actions of the Comptroller General to bicameralism and presentment requirements, but instead held that Congress' power of removal amounted to an unconstitutional intrusion on executive authority. Id., at 727-734, 106 S.Ct., at 3188-3192. Here, by contrast, the Board operates under no obligations to Congress of any sort. To the contrary, every relevant instrument declares that Members of Congress sit in their "individual capacities" as "representatives of the users of the Metropolitan Washington Airports." Bylaws, Art. IV, § 1, App. to Pet. for Cert. 151a; Lease, Art. 13A, App. to Pet. for Cert. 175a; 49 U.S.C.App. § 2456(f)(1). There may well be instances in which a significant congressional presence would mandate an extension of the principles set forth in Chadha. This, plainly, is not one.
The majority claims not to retreat from our settled rule that " '[w]hen this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, . . . it should only do so for the most compelling constitutional reasons.' " Mistretta, 488 U.S., at 384, 109 S.Ct., at 661, (quoting Bowsher, supra, 478 U.S., at 736, 106 S.Ct., at 3193 (STEVENS, J.)). This rule should apply with even greater force when the arrangement under challenge has also been approved by what are functionally two state legislatures and two state executives.
Since the "compelling constitutional reasons" on which we have relied in our past separation-of-powers decisions are insufficient to strike down the Board, the Court has had to inflate those reasons needlessly to defend today's decision. I cannot follow along this course. The Board violates none of the principles set forth in our cases. Still less does it provide a "blueprint for extensive expansion of the legislative power beyond its constitutionally-confined role." Ante, at 277. This view utterly ignores the Executive's ability to protect itself through, among other things, the ample power of the veto. Should Congress ever undertake such improbable projects as transferring national parklands to the States on the condition that its agents control their oversight, see Brief for Respondents 39, there is little doubt that the President would be equal to the task of safeguarding his or her interests. Least of all, finally, can it be said that the Board reflects "[t]he propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments," that the Framers feared. The Federalist No. 73, at p. 442 (A. Hamilton). Accordingly, I dissent.

## Notes

* ↑ The District of Columbia, of course, is not a State under the Constitution. See, e.g., Hepburn & Dundas v. Ellzey, 2 Cranch 445, 452-453, 2 L.Ed. 332 (1805). Nonetheless, neither respondents nor the Court of Appeals contend that the Airports Authority is a federal entity because it derives its authority from a delegation by the District as well as Virginia. For the purposes of separation-of-powers limitations, the power that the District delegated to the authority operates as the functional equivalent of state or local power. Cf. Key v. Doyle, 434 U.S. 59, 68, n. 13, 98 S.Ct. 280, 285, n. 13, 54 L.Ed.2d 238 (1977); District of Columbia v. John R. Thompson Co., 346 U.S. 100, 110, 73 S.Ct. 1007, 1012, 97 L.Ed. 1480 (1953). This conclusion follows with additional force since the District currently acts under "home rule" authority. See District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. 93-198, 87 Stat. 774 (1973). The majority does not suggest that the Authority's partial District of Columbia parentage furnishes a basis for subjecting the Board to separation-of-powers analysis. Ante, at 266.
* ↑ This is not to say that Congress could condition a grant of property on a State enactment consenting to the exercise of federal lawmaking powers that Congress or its individual members could not exercise consistent with Article I. We do not have that situation here, for as explained, the Board does not exercise federal power.
* ↑ For these reasons, the Court's historical exposition is not entirely relevant. The majority attempts to clear the path for its decision by stressing the Framers' fear of overweaning legislative authority. Ante, at 272-274. It cannot be seriously maintained, however, that the basis for fearing legislative enroachment has increased or even persisted rather than substantially diminished. At one point Congress may have reigned as the preeminent Branch, much as the Framers predicted. See W. Wilson, Congressional Government 40-57 (1885). It does so no longer. This century has witnessed a vast increase in the power that Congress has transferred to the Executive. See INS v. Chadha, 462 U.S. 919, 968-974, 103 S.Ct. 2764, 2793-2796, 77 L.Ed.2d 317 (1983) (WHITE, J., dissenting.) Given this shift in the constitutional balance, the Framers' fears of legislative tyranny ring hollow when invoked to portray a body like the Board as a serious encroachment on the powers of the Executive.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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