Constitutionality of Congress’ Disapproval of Agency

Regulations by Resolutions Not Presented to the President

Section 431 of the General Education Provisions Act, 20 U.S.C. § 1232(d), which 

purports to authorize Congress, by concurrent resolutions that are not to be presented 

to the President for his approval or veto, to disapprove Departm ent of Education 

regulations for education programs it administers, is unconstitutional.

Legislative veto devices deny the President his power under Article I, § 7 of the 

Constitution, to veto legislation, interfere with his duty under Article II, §3, faithfully 

to execute the laws, and arrogate to Congress power to interpret existing law that is 

constitutionally reserved to the judicial branch.

The congressional disapproval provisions o f the General Education Provisions Act, 

20 U.S.C. § 1232(d), are severable from the substantive rulemaking authorities conferred by the Education Amendments of 1978, P.L. No. 95-561, 92 Stat. 2143.

The A ttorney General must scrutinize with caution any claim that he or any executive 

officer may decline to defend or enforce a statute whose constitutionality is merely in 

doubt. At the same time, the Executive is required to enforce the Constitution and to 

preserve the integrity of its functions against unconstitutional encroachments.

June 5, 1980

T h e S e c r e t a r y o f E d u c a t i o n

M y D e a r M a d a m S e c r e t a r y : I am responding to your request for 

my opinion regarding the constitutionality of §431 of the General 

Education Provisions Act (GEPA), 20 U.S.C. § 1232(d). That provision 

purports to authorize Congress, by concurrent resolutions that are not 

to be submitted to the President for his approval or veto, to disapprove 

final regulations promulgated by you for education programs administered by the Department of Education. Acting under this authority, 

Congress has recently disapproved regulations concerning four programs of your Department.1 For reasons set forth below, I believe that

1 H. C on. Res. 318. 96th C o n g ., 2d Sess. (1980), d isap p ro v e s reg u latio n s issued u n d er § 451 o f the 

G E P A , 20 U .S.C. § 1234. pertain in g to th e o p eratio n s o f th e E d u c atio n A p p eal B oard. 45 F ed. Reg. 

22,634 (1980). H . C o n . Res. 319, 96th C o n g ., 2d Sess. (1980), d isap p ro v es reg u latio n s issued u n d er 

§ 322 o f th e E lem en tary and S eco n d a ry E d u catio n A ct o f 1965 (E S E A ], 20 U .S.C . § 2962, p ertain in g 

to arts ed u catio n . 45 F ed. R eg. 22,742 (1980). H. C on. Res. 332, 96th C o n g ., 2d Sess. (1980), 

d isap p ro v es regulations issued u n d er §§ 346-48 o f th e E S E A , 20 U .S.C . §§ 3001-03, p ertain in g to lawrelated ed u catio n . 45 F ed. Reg. 27,880 (1980). S. C on. Res. 91, 96th C o n g ., 2d Sess. (1980). d isap ­

p ro v es reg u latio n s issued u n d er T itle IV o f th e E S E A , 20 U .S.C . §§3081 et seq.. p ertain in g to g ran ts 

to state and local ed u catio n ag en cies for ed u catio n al resources. 45 F ed. R eg. 23,602 (1980). T h e 

statu to ry a u th o rity for issuance o f th ese reg u latio n s w as ad d ed to th e G E P A o r th e E S E A by the 

E d u catio n A m en d m en ts o f 1978. Pub. L. N o. 95-561, 92 S tat. 2143.

21
§431 is unconstitutional and that you are entitled to implement the 

regulations in question in spite of Congress’ disapproval.

I.

Under 20 U.S.C. § 1232(d), your Department is required, when it 

promulgates any final regulation for an “applicable program,” 2 to 

transmit that regulation to the Speaker of the House and to the President of the Senate. This section further provides:

Such final regulation shall become effective not less than 

forty-five days after such transmission unless the Congress 

shall, by concurrent resolution, find that the final regulation is inconsistent with the Act from which it derives its 

authority, and disapprove such final regulation.

In short, the two Houses of Congress can, without presidential participation, prevent the Executive from executing substantive law previously enacted by the Congress with respect to education programs. 

Moreover, § 1232(d), on its face, purports to delegate to the two 

Houses of Congress the constitutional function historically reserved to 

the courts to ensure that the execution of the law by the Executive is 

consistent with the statutory bounds established in the legislative 

process.

In designing a federal government of limited powers, the Framers of 

the Constitution were careful to assign the powers of government to 

three separate, but coordinate branches. They vested legislative power 

in the Congress, the power to execute the laws passed by the Congress 

in the Executive, and the power finally to say what the law is in the 

Judiciary. In ordering these relationships, the Framers were careful, in 

turn, to limit each branch in the exercise of its powers. The power of 

Congress to legislate was not left unrestrained, but was made subject to 

the President’s veto. Neither was the President’s power to execute the 

law left absolute, but Congress was empowered to constrain any executive action not committed by the Constitution exclusively to the Executive by passing legislation on that subject. Should such legislation be 

vetoed by the President, Congress could use its ultimate authority to 

override the President’s veto. Both of the political branches were, in 

turn, to be checked by the courts’ power to take jurisdiction to determine the existence of legislative authority for executive actions, and to 

review the acts of both Congress and the Executive for constitution2 U n d er Che G E P A , an “ ap p licab le p ro g ra m ” is “an y p ro g ram for w h ich an ad m in istrativ e head o f 

an ed u catio n ag en cy has ad m in istrativ e resp o n sib ility as p ro v id e d by law o r by d eleg atio n o r a u th o rity 

pursu an t to la w ." 20 U .S.C . § 1221(b) an d (c)(1)(A ). T w o d ep a rtm en tal reg u latio n s rece n tly d isap ­

p ro v ed by C o n g ress w e re p ro m u lg ate d o rig in ally by th e C o m m issio n er o f E d u catio n , u n d er the 

fo rm er D ep artm en t o f H ealth , E d u c atio n , an d W elfare. T h e C o m m issio n er's functions, h o w ev er, w ere 

tra n sferre d to you u n d er th e D ep artm en t o f E d u c atio n O rg an iza tio n A ct, § 301(a)(1), Pub. L. N o. 9 6 - 

88, 93 Stat. 677 (1979). A ll fo u r p ro g ram s in v o lv ed are n o w ad m in istered u n d er y o u r au th o rity .

22
ality. This, in simplest form, is our carefully balanced constitutional 

system.

The legislative veto mechanism in § 1232(d) upsets the careful balance devised by the Framers. Viewed as “legislative” acts, legislative 

vetoes authorize congressional action that has the effect of legislation 

but deny to the President the opportunity to exercise his veto power 

under Article I, § 7 of the Constitution. Viewed as interpretive or 

executive acts, legislative vetoes give Congress an extra-legislative role 

in administering substantive statutory programs that impinges on the 

President’s constitutional duty under Article II, § 3, of the Constitution 

faithfully to execute the laws. Viewed as acts of quasi-judicial interpretation of existing law, legislative vetoes arrogate to the Congress power 

reserved in our constitutional system for the nonpolitical judicial 

branch. Thus, however they may be characterized, legislative vetoes 

are unconstitutional.

A. The Presentation Clauses

As illustrated by the four recent exercises of legislative veto power 

under § 1232(d), legislative veto devices are functionally equivalent to 

legislation because they permit Congress, one of its Houses, or even, on 

occasion, one or two of its committees, to block the execution of the 

law by the Executive for any reason, or indeed, for no reason at all. 

Under § 1232(d), the two Houses of Congress could, by passing successive concurrent resolutions,/ bring to a halt substantive programs, the 

authority for which was enacted by prior Congresses with the participation of the President. Such legislative veto devices cannot stand in 

the face of the language and history of the Presentation Clauses, Art. I, 

§ 7, els. 2 and 3.

Clause 2 provides that every bill that passes the House and the 

Senate shall, before it becomes law, be presented to the President for 

his approval or disapproval.3 If disapproved, a bill does not become law 

unless repassed by a two-thirds vote of each House.

At the Philadelphia Convention of 1787, the Framers considered and 

explicitly provided for the possibility that Congress, by passing “resolutions” rather than bills, might attempt to evade the requirement that 

proposed legislation be presented to the President. During the debate 

on Article I, § 7, James Madison observed:

3C lause 2 p ro v id es, in p ertin en t part:

E v e ry Bill w h ich shall h av e passed th e H ouse o f R ep resen tativ es an d th e S enate, shall, 

before it b eco m e a L aw , be p resen ted to th e P resident o f th e U nited S tates; If he 

ap p ro v es he shall sign it, but if not he shall retu rn it, w ith his O b jec tio n s to th a t H ouse 

in w h ich it shall h av e o rig in ated , w h o shall e n te r th e O b jectio n s at la rg e on th e ir 

Jo u rn al, an d p ro ceed to reco n sid er it. If a fter such R eco n sid eratio n tw o th ird s o f th at 

H o u se shall ag ree to pass th e Bill, it shall be sent, to g e th e r w ith th e O b jectio n s, to th e 

o th e r H ouse, by w h ich it shall likew ise be reco n sid ered , and if a p p ro v ed by tw o thirds 

o f th at House* it shall b eco m e a L aw .

23
If the negative of the President was confined to bills; it 

would be evaded by acts under the form and name of 

Resolutions, votes &c—[and he] proposed that “or 

resolve” should be added after “bill” . . . , with an exception as to votes of adjournment &c.

2 M. Farrand, Records o f the Federal Convention o f 1787 301 (rev. ed. 

1937).

Madison’s notes indicate that “after a short and rather confused 

conversation on this subject,” his proposal was at first rejected. However, at the commencement of the following day’s session, Mr. Randolph, “having thrown into a new form” Madison’s proposal, renewed 

it. It passed by vote of 9-1. Id., 301-35. Thus, the Constitution today 

provides, in addition to Clause 2 of § 7 dealing with the passage of 

“bills,” an entirely separate clause, Article I, § 7, cl. 3, as follows:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be 

necessary (except on a question of Adjournment) shall be 

presented to the President of the United States; and before 

the Same shall take effect, shall be approved by him, or 

being disapproved by him, shall be repassed by two-thirds 

of the Senate and House of Representatives, according to 

the Rules and Limitations prescribed by the Case of a 

Bill.

I believe it is manifest, from the wording of Clause 3 and the history 

of its inclusion in the Constitution as a separate clause apart from the 

clause dealing with “bills,” that its purpose is to protect against all

congressional attempts to evade the President’s veto power.4 The function of the Congress in our constitutional system is to enact laws, and 

all final congressional action of public effect, whether or not it is 

formally referred to as a bill, resolution, order or vote, must follow the 

procedures prescribed in Article I, § 7, including presentation to the 

President for his approval or veto.

* T h e P resident w as g iven his v eto p o w er, in p art, in o rd e r th at he m ight resist any en cro ach m en t 

on th e in teg rity o f th e e x e c u tiv e b ran ch . See The Federalist, N o. 48. H is p articip atio n in th e ap p ro v al 

o f legislation is also cru cial becau se o f his unique co n stitu tio n al statu s as rep resen tativ e o f all th e 

people. A s C h ie f Ju stice T a ft stated in 1926:

T h e P resid en t is a rep resen tativ e o f th e p eo p le ju s t as th e m em bers o f th e S en ate and 

o f th e H ouse are, an d it m ay be, at som e tim es, o n som e subjects, th at th e P resident 

elected by all th e p eo p le is ra th e r m o re rep resen tativ e o f them all than th e m em b ers o f 

e ith e r b o d y o f th e L eg islatu re. . . - 

M yers v. U nited States, 272 U .S. 52, 123 (1926).

24
B. The Separation o f Powers

1. Executing the law

The principle of separation of powers underlying the structure of our 

constitutional form of government generally provides for the separation 

of powers among the legislative, executive, and judicial branches, and 

provides for “checks and balances” to maintain the integrity of each of 

the three branches’ functions. Generally speaking, the separation of 

powers provides that each of the three branches must restrict itself to 

its allocated sphere of activity: legislating, executing the law, or interpreting the law with finality. This is not to say that every governmental 

function is inherently and of its very nature either legislative, executive, 

or judicial. Some activity might be performed by any of the three 

branches—and in that situation it is up to Congress to allocate the 

responsibility. See, e.g., Wayman v. Southard, 10 Wheat. 1, 42-43, 46 

(1825) (Chief Justice Marshall). Once Congress, by passing a law, has 

performed that function of allocating responsibility, however, the separation of powers requires that Congress cannot control the discharge of 

those functions assigned to the Executive or the Judiciary, except 

through the plenary legislative process of amendment and repeal.

The underlying reason, well stated by James Madison, is that otherwise the concentration of executive and legislative power in the hands 

of one branch might “justly be pronounced the very definition of 

tyranny.” The Federalist, No. 47, at 324 (Cooke ed. 1961). The shifting 

of executive power to the legislative branch which would be occasioned by these legislative veto devices is, I believe, undeniable; the 

concentration of this blended power is precisely what the Framers 

feared and what they set about to prevent.

The Constitution’s overall allocations of power may not be altered 

under the guise of an assertion by the Congress of its power to pass 

laws that are “necessary and proper for carrying into Execution . . . 

Powers vested by [the] Constitution in the Government of the United 

States, or in any Department or Officer thereof,” Art. I, § 8, cl. 18.5 As 

the Supreme Court made clear in Buckley v. Valeo, 424 U.S. I (1976), 

the exercise of power by Congress pursuant to the Necessary and 

Proper Clause is limited both by other express provisions of the Constitution and by the principles of separation of powers.

In Buckley, it was argued that officers of the Congress could, under 

the Necessary and Proper Clause, appoint commissioners of the Federal

5 It is fundam ental to o u r co n c ep t o f lim ited federal g o v ern m en t that p o w e r exercised by th e 

legislative, ex ecu tiv e an d ju d icial b ran ch es be traced to a p rovision o f th e C o n stitu tio n o r to a statu te 

w h ich is expressly o r im pliedly au th o rized by a p ro v isio n o f th e C o n stitu tio n . T h u s, a so u rce o f 

a u th o rity for C o n g ress to exercise p o w e r u n d er legislative v eto d ev ices m ust be found in the 

C o n stitu tio n in o rd e r for th at a u th o rity to be reco g n ized as legitim ate. A s w e d em o n strate below , the 

N ecessary and P ro p er C lause d o es not g r a n t's u c h au th o rity ; n o r d o es an y o th e r p ro v isio n o f th e 

C onstitution.

25
Election Commission, notwithstanding the fact that Article II, § 2, 

clause 2 of the Constitution placed the appointment power in the 

President. With regard to the relationship between the exercise of 

power under the Necessary and Proper Clause and other provisions of 

the Constitution, the Court stated the rule as follows:

Congress could not, merely because it concluded that 

such a measure was “necessary and proper” to the discharge of its substantive legislative authority, pass a bill of 

attainder or ex post facto law contrary to the prohibitions 

contained in section 9 of Art. I. No more may it vest in 

itself, or in its officers, the authority to appoint officers of 

the United States when the Appointments Clause by clear 

implication prohibits it from doing so.

424 U.S. at 135.

The Constitution establishes the President’s veto power as clearly as 

it establishes the appointment power or prohibits bills of attainder and 

ex post facto laws. Under Buckley, the only reasonable implication of the 

Framers’ inclusion of Article I, § 7, clause 3 in the Constitution is that 

the Necessary and Proper Clause is not a source of power for evasion 

of these specific limitations through the enactment of legislative veto 

devices. I would add that, in reaching its holding in Buckley, the Court 

considered and relied upon earlier cases that seem most relevant to the 

constitutionality of legislative veto devices. In quoting from Myers v. 

United States, 272 U.S. 52 (1926), the Court recognized the relationship 

between the grant of executive power to the President and the issue 

before it. 424 U.S. at 135-136.6 I believe that Buckley and the cases 

relied on by the Buckley Court foreclose arguments that the Necessary 

and Proper Clause grants Congress the power to provide for legislative 

veto devices.

Because to characterize the power exercised by the two Houses 

under § 1232(d) as “legislation” would necessarily require Congress to 

respect the President’s veto power by presenting its resolutions for his 

approval, it is necessary for proponents of such power to deny that the 

power is “legislation” in the constitutional sense. They argue instead 

that the device is a means for Congress to oversee the execution of the

6 T h e C o u rt w en t on, in h o ld in g th e ap p o in tm en t o f F ed eral E lectio n C om m ission m em bers by 

officers o f C o n g ress to be u n co n stitu tio n al, to q u o te th e fo llo w in g lan g u ag e from its ea rlier decision in 

Springer v. Philippine Islands. 227 U .S. 189, 202 (1928):

L eg islativ e p o w e r, as d istinguished from ex ecu tiv e p o w er, is th e au th o rity to m ake 

law s, but not to en fo rce th em o r ap p o in t th e ag en ts c h a rg e d w ith th e d u ty o f such 

en fo rcem en t. T h e la tte r a re ex ecu tiv e functions. It is un n ecessary to en larg e fu rth er 

u po n th e g en eral su b ject, since it has so recen tly receiv ed th e full co n sid eratio n o f this 

co u rt. M yers v. U nited States. ....

N ot h av in g th e p o w e r o f ap p o in tm en t, unless expressly g ran ted o r incidental to its 

p o w ers, th e leg islatu re can n o t en g raft ex ecu tiv e duties upon a legislative office, since 

th a t w o u ld be to u surp th e p o w er o f ap p o in tm en t by in d irectio n , th o u g h th e case 

m ight be d ifferen t if th e ad d itio n al d u ties w ere d ev o lv ed upon an ap p o in tee o f the 

E xecutive.

26
law by the Executive, in aid of undoubted constitutional powers to pass 

legislation and appropriations. Such an argument, however, cannot 

withstand scrutiny. Without a legislative veto, the regulations of your 

Department, unless invalidated by a court, would have the force of 

law. In depriving them of that force, the necessary effect of a legislative veto is to block further execution of a statutory program until the 

Executive promulgates further regulations in compliance with the current views of a Congress that may well be different from the Congress 

that enacted the substantive: law.7 The difference between this kind of 

congressional “oversight” and the legitimate oversight powers of Congress in their effect on the constitutional allocation of powers could not 

be more profound. By its nature, for example, the exercise of a legislative veto would be beyond judicial review because the exercise of such 

powers could be held to no enforceable standards. In exercising its 

veto, I believe it clear that Congress is dictating its interpretation of the 

permissible bounds for execution of an existing law; a result that can be 

accomplished only by legislation.

The foregoing discussion demonstrates the flaw in the argument, 

occasionally made, that the doctrine of separation of powers protects 

the executive branch only in areas that are inherently executive, and 

that Congress may reserve to itself control over activities entrusted to 

the Executive which are not “truly” executive in nature. This reasoning 

overlooks the basic truth that there are few activities that are clearly 

executive, legislative, or judicial. The first two categories, in particular, 

overlap to an enormous extent. Much, if not indeed most, executive 

action can be the subject of legislative prescription. To contend, therefore, that Congress can control the Executive whenever the Executive 

is performing a function that Congress might have undertaken itself is 

to reduce the doctrine of separation of powers to a mere shadow.

The test is not whether an activity is inherently legislative or executive but whether the activity has been committed to the Executive by 

the Constitution and applicable statutes. In other words, the Constitution provides for a broad sweep of possible congressional action; but 

once a function has been delegated to the executive branch, it must be 

performed there, and cannot be subjected to continuing congressional 

control except through the constitutional process of enacting new legislation.

2. Interpreting the law

Section 1232(d) authorizes disapproval of a regulation by concurrent 

resolution if Congress “findfs] that the final regulation is inconsistent

7 In such a situation, th e E x ecu tiv e, as a p ractical m atter, m ay be giving up a m easure o f au th o rity 

g ran ted by th e statu te being ad m in istered w h ich th e co u rts in an a p p ro p riate case w o u ld h av e found to 

have been d eleg ated to th e E x ecu tiv e, if C o n g ress had not in terv en ed . S uch a d im inution o f au th o rity 

m ust, in m y view , be v iew ed an aly tically as a repeal o f th e su b stan tiv e statu te to that extent.

27
with the Act from which it derives its authority . . . That section, 

on its face, purports to vest in the two Houses of Congress an extralegislative power to perform the function reserved by the Constitution 

to the courts of determining whether a particular executive act is 

within the limits of authority established by an existing statute.® It is 

clear that the President constitutionally can be overruled in his interpretation of the law, by the courts and by the Congress. But the 

Congress can do so only by passing new legislation, and passing it over 

the President’s veto if necessary. That is the constitutional system.

Proponents of the legislative veto, however, argue that such devices 

actually fortify the separation of powers by providing Congress with a 

check on an agency’s exercise of delegated power. No doubt congressional review provides a check on agency action, just as committee 

review or committee chairman review would provide a check. But such 

review involves the imposition on the Executive of a particular interpretation of the law—the interpretation of the Congress, or one 

House, or one committee, or one chairman—without the check of the 

legislative process which includes the President’s veto. In that case 

Congress is either usurping the power of the President to execute the 

law, or of the courts to construe it; or Congress is legislating. If it is 

legislating, the Constitution is explicit that the President must have the 

opportunity to participate in that process by vetoing the legislation.

II.

Because it is my opinion that § 1232(d) is unconstitutional, it is 

necessary for me to consider whether that provision is severable from 

the underlying grants of statutory authority upon which the regulations 

promulgated by you were based. Section 1232(d) was enacted in 1974. 

When the various authorities for the four regulations disapproved by 

Congress were enacted in the Education Amendments of 1978, Congress gave no indication that the substantive rulemaking powers delegated to you were to be extinguished if the legislative veto device in 

§431 were to be found unconstitutional. Thus, I conclude that §431 is 

severable from this basic grant of substantive power. See, e.g., Champlin

8T h e role o f th e Ju d iciary in req u irin g co n fo rm an ce by th e tw o political b ran ch es to con stitu tio n al 

stan d a rd s an d in co n fin in g th e E x e cu tiv e to ex ecu tio n o f th e law w ithin th e bou n d s established by 

statu te is to o fam iliar to req u ire elab o ratio n . It is th e refo re not su rp risin g that th e S uprem e C o u rt has 

c o n sisten tly taken th e position th at “ th e view s o f a subsequent C o n g ress form a h azard o u s basis for 

in ferrin g th e intent o f an ea rlier one/* th u s d en y in g any C o n g ress an y bin d in g role in th e in terp retatio n 

o f an ea rlier Congress* acts. U nited States v. Philadelphia N a tio n a l Bank, 374 U .S. 321, 348-49 (1963), 

q u o tin g U nited States v. Price, 361 U .S. 304, 313 (1960). T h e C o u rt, in taking this position, has 

reco g n ized b o th th e political n atu re o f th e legislative p ro cess an d d ifferen ces betw een th e functional 

co m p eten cies o f th e c o u rts and C ongress. See U nited States v. U nited M in e W orkers o f Am erica, 330 

U.S. 258, 282 (1947). I n o te that in th ese th re e cases in w h ich th e C o u rt cau tio n ed against p erm ittin g 

th e view s o f a subsequent C o n g ress to influence in terp retin g th e intent o f an ea rlier C o n g ress in 

passing a p articu lar statu te, th e C o u rt w as faced w ith situ atio n s in w h ich th e subsequent expression o f 

C o n g ress' v iew cam e in th e co n tex t o f th e passage o f legislation. T h u s, in th o se cases, ev en any 

m arginal relev an ce o f th e subsequent co n g ressio n al expression w o u ld h av e been subject, to th e P resid en t's v eto u n d er A rtic le I, § 7.

28
Refining Co. v. Corporation Commission o f Oklahoma, 286 U.S. 210, 234 

(1932), quoted with approval in Buckley v. Valeo, supra, 424 U.S. 

at 108.

III.

Within their respective spheres of action the three branches of government can and do exercise judgment with respect to constitutional 

questions, and the judicial branch is ordinarily in a position to protect 

both the government and the citizenry from unconstitutional action, 

legislative or executive; but only the executive branch can execute the 

statutes of the United States. For that reason alone, the Attorney 

General must scrutinize with caution any claim that he or any other 

executive officer may decline to defend or enforce a statute whose 

constitutionality is merely in doubt. Any claim by the Executive to a 

power of nullification, even a qualified power, can jeopardize the equilibrium established by our constitutional system.

At the same time, the Executive’s duty faithfully to execute the law 

embraces a duty to enforce the fundamental law set forth in the Constitution as well as a duty to enforce the law founded in the Acts of 

Congress, and cases arise in which the duty to the one precludes the 

duty to the other. In rendering this opinion on the constitutionality of 

§ 431, I have determined that the present case is such a case.

Section 431 intrudes upon the constitutional prerogatives of the Executive. To regard these concurrent resolutions as legally binding 

would impair the Executive’s constitutional role and might well foreclose effective judicial challenge to their constitutionality.9 More important, I believe that your recognition of these concurrent resolutions as 

legally binding would constitute an abdication of the responsibility of 

the executive branch, as an equal and coordinate branch of government 

with the legislative branch, to preserve the integrity of its functions 

against constitutional encroachment. I, therefore, conclude that you are 

authorized to implement these regulations.

Sincerely.

B e n j a m i n R . C i v i l e t t i

9 T h e h isto ry o f so-called “ legislative v e to ” d ev ices, o f w h ich §431 o f th e G E P A is one, illu strates 

th e difficulty in ach iev in g ju d icial reso lu tio n o f such an issue. A lth o u g h C o n g ress en a cted th e first 

su ch m echanism in 1932, o n ly a few rep o rte d cases h av e p o ten tially in v o lv ed th e co n stitu tio n al 

question inherent in th e legislative veto, an d a c o u rt has reach ed th e issue o n ly o n ce. In A tk in s v. 

U nited States. 556 F .2d 1028 (C t. C l. 1977), cert, denied. 434 U .S. 1009 (1978), th e C o u rt o f C laim s 

held, fo u r-to -th ree, th at th e p ro v isio n o f th e F ed eral S alary A ct o f 1967, 2 U .S.C . § 359(1)(B), w h ich 

perm its o n e house o f C o n g ress to d isap p ro v e th e P resid en t's p ro p o sed pay sch ed u le u n d er th e A ct, is 

not unco n stitu tio n al, an d th at th e S en ate's v eto o f a p ro p o sed ju d icia l salary in crease w as th e refo re 

law ful. T h is D ep artm en t, rep resen tin g th e U nited States, arg u ed th at th e v eto w as u n co n stitu tio n al, 

but that, because th e v eto a u th o rity w as n o t sev erab le from th e rem ain d er o f th e S alary A ct, th e 

plaintiffs had no rig h t to ad d itio n al pay. T h e la tte r v iew w as su stain ed in M cC orkle v. U nited States,

559 F .2d 1258 (4th C ir. 1977), cert, denied, 434 U .S. 1011 (1978).

O th e r cases in w h ich th e v alid ity o f a legislative v eto d ev ice has been arg u ed in clu d e C hadha v. 

Im m igration a n d N aturalization Service. N o. 77-1702 (9th C ir.. arg u ed A pril 10, 1978); an d C lark v. 

Valeo. 599 F .2d 642 (D .C . C ir.) a ffd . 431 U .S. 950 (1977) (issue not rip e for d eterm in atio n ).

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