Committee Approval Provision in the

Simpson-Mazzoli Immigration Bill

The provision in the Simpson-M azzoli immigration bill, which gives the House and Senate Judiciary 

Committees power to dispense with certain otherwise applicable statutory requirements for an 

employment eligibility system , is unconstitutional, whether viewed as allowing a congressional 

committee to exercise delegated executive power, or as authorizing a legislative act without the 

necessary requirem ents of bicameralism and presentation to the President

July 15, 1982

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

This memorandum addresses the question whether the committee approval 

provision in the Simpson-Mazzoli immigration bill comes within the class of socalled “ legislative veto” provisions to which the Department of Justice objects 

on constitutional grounds. We believe that it does, for reasons set forth in this 

memorandum.

The relevant provision is § 10l(c)ofS. 2222, which provides in pertinent part 

as follows:

(c)(1) Within three years after the date of the enactment of this 

section, the President shall implement such changes in or additions to the requirements of subsection (b) [which deals with 

eligibility for employment] as may be necessary to establish a 

secure system to determine employment eligibility in the United 

States, which system shall conform to the requirements of paragraph (2).

(2) Such system shall be designed in a manner so that—

(A) the system will reliably determine that a person with the 

identity claimed by an employee or prospective employee is 

eligible to work, and that the employee or prospective employee is not claiming the identity of another individual;

(B) if the system requires an examination by an employer of any 

document, such document must be in a form which is resistant 

to counterfeiting and tampering, unless the President and the

Judiciary Com m ittees o f the Congress have determ ined that

such form is unnecessary to the reliability cfth e system ....

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S. 2222, reprinted in S. Rep. No. 4 8 5 ,97th Cong., 2d Sess. 32(1982) (emphasis 

added). The italicized language contains the committee approval mechanism. 

The President is directed by subsection (c)(1) to “ implement such changes in or 

additions to the requirements” of subsection (b) “ as may be necessary to 

establish a secure system to determine employment eligibility in the United 

States . . . .” The system “shall conform to the requirements of paragraph (2),” 

which includes the committee approval mechanism. In particular, if the system 

requires an examination by an employer of any document, such document “ must 

be in a form which is resistant to counterfeiting and tampering, unless the

P resident and the Judiciary Com m ittees c f the Congress have determ ined that

such form is unnecessary to th e reliability o f the system ...” (emphasis 

added). We interpret this language to mean that so long as the system requires an 

employer to look at any document, the document must be tamper-proof unless 

there is, in effect, agreement between the President and the House and Senate 

Judiciary Committees that such tamper-proof requirements are not needed to 

assure a reliable system.

When the provision is so interpreted, it purports to allow the Judiciary 

Committees to exercise delegated power under the statute. The Judiciary Committees would be given power to decide whether or not a tamper-proof system of 

documentation will or will not be required. If the President were to determine that 

tamper-proof requirements were unnecessary in any particular instance, he 

nevertheless would have to implement such requirements if the Judiciary Committees did not agree with him. The exercise by the Committees of this kind of 

governmental power, as an analytical matter, is necessarily either an executive or 

a legislative action for constitutional purposes. (We believe that it would clearly 

not be a judicial action, for it constitutes the exercise of delegated power to 

establish what the law will be, not the adjudication of a case or controversy on 

particular facts.) This being so, the question is whether the Judiciary Committees 

may be authorized by statute to play the role in the execution of this bill 

contemplated in subsection (c)(2)(B). The answer, in our view, is no.

Assuming that the exercise of such authority by the Judiciary Committees were 

sought to be justified on the ground that it constitutes an appropriate exercise of 

Article I legislative power, the exercise of such power must follow a constitutionally prescribed procedure. The Constitution plainly bars Congress from 

assigning to one or more of its committees alone the authority to exercise 

legislative power by adopting measures intended to have legal effect outside the 

Legislative Branch. Such lawmaking power may be accomplished only by the 

combined action of both Houses of Congress and the President, or if there is a 

presidential veto, by two-thirds of both Houses of Congress.

Article I, § 1 of the Constitution vests “ [a]ll legislative powers herein 

granted” “ in a Congress of the United States, which shall consist of a Senate and 

House of Representatives.” The legislative power granted by the Constitution is 

“ the authority to make laws,” Buckley v. Valeo, 424 U.S. 1,139 (1976), quoting 

Springer v. Philippine Islands, 277 U.S. 189, 202 (1928). Alexander Hamilton 

emphasized this basic point when asking rhetorically: “ What is a legislative

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power but a power of making Laws? What are the means to execute a legislative 

power but laws?” The Federalist No. 33 (A. Hamilton), at 204—205 (J. Cooke ed. 

1961) (emphasis in original).

The procedure for passing laws, whether called bills or resolutions or votes 

before passage, is set forth in Article I, § 7, Clauses 2 & 3. Clause 2 provides in 

pertinent part:

Every Bill which shall have passed the House of Representatives 

and the Senate, shall, before it becomes a Law, be presented to the 

President of the United States; if he approve he shall sign it, but if 

not he shall return it, with his Objections to that House in which it 

shall have originated ....

If the President disapproves the bill, “ it shall become a Law” only if two-thirds 

of both Houses of Congress override the disapproval.

If Clause 2 appeared alone in the Constitution, it could be argued that the 

requirements of bicameral passage of a legislative measure and presentation to 

the President could be evaded by using some mechanism other than a “ Bill,” 

such as, for instance, a “ resolution” or a committee “ vote” or determination 

such as contemplated by the present bill that is not cast in terms of any formal 

procedure. This possibility was foreseen by the Framers. As a result, Clause 3 

was added, which provides:

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 in the case of a Bill.

The “Concurrence” of the Senate and House of Representatives is “ necessary” 

under the Constitution whenever Congress attempts to exercise the legislative 

power granted by Article I. Accordingly, when the Judiciary Committees seek to 

determine whether a tamper-proof system of identification will or will not be 

required, they are exercising legislative powers. Such exercise of authority is 

subject to the bicameralism and presentation requirements if that exercise is to be 

legally binding.

We note that the Senate Judiciary Committee interpreted Article I, § 7, 

Clause 3 in a manner consistent with our analysis in a thorough historical study 

conducted in 1897. The Committee concluded at that time that the concurrence of 

both Houses and presentation to the President are required with respect to all 

resolutions that “ contain matter which is properly to be regarded as legislative in 

its character and effect.” S. Rep. No. 1335, 54th Cong., 2d Sess. 8 (1897).

Furthermore, the principles we have put forward have been embraced by the 

United States Court of Appeals for the District of Columbia Circuit in Consumer

Energy Council o f Am erica v. Federal Energy Regulatory Commission, 673 F.2d

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425 (D.C. Cir. 1982). In this case, the court, without dissent, ruled that a 

provision of the Natural Gas Policy Act of 1978 purporting to authorize one 

House of Congress to invalidate an incremental pricing regulation promulgated 

by FERC was unconstitutional. As the court noted, “ [t]he primary basis of this 

holding is that the one-house veto violates Article I, Section 7, both by preventing the President from exercising his veto power and by permitting legislative 

action by only one house of Congress.” Id. at 448. See also Chadha v. Immigration and N aturalization Service, 634 F.2d 408, 433 (9th Cir. 1980) (“ Having 

vested all legislative power in the Congress, the framers deemed it necessary not 

only to design checks on that power by means of the other branches, but also to 

use the internal checks of bicameralism.” ).'

We understood that a question about the foregoing analysis has been raised on 

the ground that the committee approval mechanism in the Simpson-Mazzoli bill 

would purport to empower the Judiciary Committees to eliminate the tamperproof requirement, rather than to impose a new requirement. The suggestion 

appears to be that whenever Congress seeks to authorize its committees to excuse 

the Executive Branch from an otherwise-applicable legal requirement, rather 

than to impose a new legal constraint, Congress may do so as a constitutional 

matter without complying with Article I, § 7, Clauses 2 & 3.

We believe that this suggestion finds no support whatsoever in the Constitution’s text, history or purposes. It makes no difference whether the committee 

action would seek to add new requirements, or to repeal, withdraw or waive old 

restrictions. So long as the committee action constitutes an exercise of legislative 

power, it is invalid unless it conforms to the constitutionally prescribed procedures in Article I, § 7, Clauses 2 & 3. Congress surely may block the execution 

of any law by the President if it chooses to do so. However, it is our view that in 

order to do so, Congress must pass plenary legislation subject to the President’s 

veto.

The underlying legal deficiency of the foregoing suggestion is illustrated by 

extending the argument to its rational conclusion. Under the suggested logic, it 

would be acceptable, for instance, for a statute to require the Executive Branch to 

halt all programs and activities presently authorized, unless the Judiciary Committees approve (along with the Executive Branch) of the continuation of a given 

program or activity. This kind of realignment of power in the national government, albeit extreme, is different only in degree from the rearrangement contemplated by the committee approval provision in the Simpson-Mazzoli bill. 

Such a statutory arrangement would purport to give to the Judiciary Committees 

the power to decide whether legal requirements will or will not be imposed on 

(and rights conferred on) the Executive Branch or, indeed, private persons. The 

exercise of such power is consummately a legislative decision. As we have 

discussed, under our Constitution such a decision may be made only after 

compliance with the plenary legislative process mandated by Article I, § 7, 

Clauses 2 & 3.

1 In Chadha, the court of appeals held unconstitutional a provision of the Immigration and Nationality Act that 

purports to allow one House of Congress to overturn the decision of the Attorney General suspending the deportation 

of an alien. The case is presently pending before the Supreme Court, having been recently set down for reargument 

during the coming term of the Court

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In addition, the attempt to confer on committees of Congress power to 

determine whether or not tamper-proof documentation will be necessary “ to the 

reliability of the system” also may be seen as an attempt to confer on congressional committees executive power. Executive power is the power to execute 

the laws. As Chief Justice Marshall observed, “ [t]he difference between the 

departments undoubtedly is, that the legislature makes, the executive executes, 

and the judiciary construes the law.” Wayman v. Southard, 23 U.S. (10 Wheat.)

1, 46 (1825). See also Buckley v. Valeo, 424 U.S. 1, 139 (1976), quoting 

Springerw. Philippine Islands, 277U.S. 189, 202(1928). Under the principle of 

the separation of powers— which is one of the basic principles underlying the 

Constitution— it is unconstitutional as a substantive matter to confer on a Legislative Branch entity, such as a committee of Congress, power to execute the laws. 

As the Supreme Court wrote in Buckley v. Valeo, supra, 424 U.S. at 121-122, 

quoting Hampton & C o. v. United States, 276 U.S. 394, 406 (1928), “ ‘it is a 

breach of the National fundamental law if Congress . . . by law attempts to invest 

itself or its members with either executive power or judicial power.’”

The substantive unconstitutionality of attempting to vest in the Judiciary 

Committees power to determine whether or not tamper-proof documentation will 

be required follows directly, in our view, from the Supreme Court’s decision in 

Buckley, supra. In that case, the Court held unconstitutional a statutory provision 

authorizing the President pro tempore of the Senate and the Speaker of the House 

of Representatives to appoint members of the Federal Election Commission. See

424 U.S. at 109—4 J. In discussing this matter, the Court extensively reviewed the 

doctrine of separation of powers and, in particular, its expression in the Appointments Clause, Article II, § 2, Clause 2. The Court concluded that any “ significant governmental duty . . . pursuant to a public law” (id. at 141)— which 

includes promulgating regulations, issuing advisory opinions, determining eligibility for benefits and otherwise executing the law— must be exercised by 

“ Officers of the United States” appointed by the President or otherwise in 

conformity with the Appointments Clause. Such duties, the Court held, cannot 

be exercised by officials appointed by Congress. Id. at 138-141; see also id. at 

125-126.

Under the Simpson-Mazzoli bill, Congress would purport to authorize the 

Judiciary Committees to make the determination that a tamper-proof documentation system is or is not necessary for the reliability of the Nation’s employment 

eligibility system. Such exercise of authority plainly constitutes the exercise of 

significant governmental duties that involve the discharge of executive power. 

That kind of action, as Buckley held, can be exercised only by officers of the 

Executive Branch, not by members of the Judiciary Committees.

The underlying substantive defect of the attempt to confer on the Judiciary 

Committees power to determine whether or not a tamper-proof identification 

system will be required is essentially similar to the defect found to exist by the 

Court of Appeals for the Ninth Circuit in Chadha v. Immigration and N aturalization Service, supra, in a provision allowing one House of Congress to overturn a 

decision to suspend an alien’s deportation. In both cases, the separation of powers 

principle is violated by attempts to vest executive decisionmaking authority in a

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Legislative Branch entity. The effect of such a scheme is to render the efforts of 

the Executive Branch faithfully to execute the laws entirely tentative and conditional on action— whether by means of disapproval or approval— by legislative 

authorities. The Chadha court summarized as follows its rejection of such 

legislative provisions on the basis of the separation of powers principle:

We cannot accept that definite, uniform, and sensible criteria 

governing the conferral of government burdens and benefits on 

individuals should be replaced by a species of non-legislation, 

wherein the Executive branch becomes a sort of referee in making 

an initial determination which has no independent force or validity, even after review and approval by the Judiciary, save and 

except for the exercise of final control by the unfettered discretion 

ofCongressastoeachcase. . . . In such a world, the Executive’s 

duty of faithful execution of the laws becomes meaningless, as the 

law to be executed in a given case remains tentative until after 

action by the Executive has ceased.

634 F.2d at 435-36. In response to the argument that the Necessary and Proper 

Clause of Article I, § 8, should permit Congress to reserve to itself power to 

determine whether a requirement will or will not be imposed on the Executive 

Branch, Chadha noted that this Clause “ authorizes Congress to ‘make all laws,’ 

not to exercise power in any way it deems convenient. That a power is clearly 

committed to Congress does not sustain an unconstitutional form in the exercise 

of the power.” Id. at 433.

In sum, if the committee approval mechanism in the Simpson-Mazzoli bill is 

sought to be justified as an exercise of Congress’ Article I power, it is invalid 

because it does not contemplate the exercise of legislative authority by means of 

the procedures set forth in Article I, § 7, Clauses 2 & 3. In addition, to the extent 

that the committee approval mechanism would authorize the Judiciary Committees to determine when a tamper-proof system is necessary and when it is not, the 

provision would seek to authorize the Committees to act as if they were Executive 

Branch officials, which they are not. Thus, the provision also violates the 

separation of powers principle.

We note in closing that the procedural and substantive limitations discussed in 

this memorandum are not mere formalities or empty legalisms that are being 

employed to seek a result desired on other grounds. To the contrary, these 

principles lie at the core of our nation’s constitutional scheme. They could not be 

more fundamental. As a result, since they apply directly to the committee 

approval provision in the Simpson-Mazzoli bill, we are constrained to object 

strongly to that provision.

T h e o d o r e B. O l s o n

Assistant Attorney G eneral

Office o f Legal Counsel

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