b'Effect of INS v. Chadha on the Authority of the\nSecretary of Defense to Reorganize the\nDepartment of Defense Under U.S.C. \xc2\xa7 125\nThe Secretary o f Defense retains authority under 10 U.S.C. \xc2\xa7 125 to effect reorganizations o f all\nfunctions o f the Department of D efense, notwithstanding the Supreme C ourt\xe2\x80\x99s decision in INS\nv. Chadha invalidating the legislative veto. An analysis o f the legislative history of 10 U.S.C.\n\xc2\xa7 125 with respect to the presum ptions in favor o f severability indicates that the unconstitu\xc2\xad\ntional veto provisions in that statute, which permitted either House o f Congress to reject a\nproposed reorganization involving a \xe2\x80\x9cmajor combatant function\xe2\x80\x9d that would \xe2\x80\x9ctend to impair\nthe defense o f the United States,\xe2\x80\x9d as determ ined by its Armed Services Committee, are\nseverable from the delegation o f authority to the Secretary. However, the Secretary must\ncontinue to report all reorganization plans to Congress and wait thirty days before taking\naction.\n\nApril 26, 1984\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nD epartm ent\n\nA c t in g G e n e r a l C o u n s e l ,\n\nof\n\nD efen se\n\nThis memorandum responds to a request for our interpretation of the statu\xc2\xad\ntory authority of the Secretary of Defense (Secretary) to reorganize the Depart\xc2\xad\nment of Defense, 10 U.S.C. \xc2\xa7 125, notwithstanding the Supreme Court\xe2\x80\x99s\ndecision in INS v. Chadha, 462 U.S. 919 (1983). Because the statute provides\nfor a one-house veto, a device held unconstitutional in Chadha, we have been\nasked, specifically, to determine (1) whether the Secretary continues to have\nthe power to reorganize \xe2\x80\x9cmajor combatant functions,\xe2\x80\x9d after reporting his inten\xc2\xad\ntions to Congress; and (2) whether the Secretary may continue to effect a\nreorganization of responsibilities not involving major combatant functions,\nafter reporting its terms to Congress. Based on the analysis set forth below, we\nhave concluded that the Secretary\xe2\x80\x99s statutory authority to effect reorganiza\xc2\xad\ntions of all functions of the Department of Defense is severable from the\nunconstitutional veto provision, and therefore remains effective.1 The Secre\xc2\xad\ntary must, however, continue to report all reorganization plans to Congress and\nwait thirty days before taking action.\n1 O u r analysis and conclusions relate o n ly to the statutory authority granted to the Secretary in \xc2\xa7 125(a). We\ndo not attem p t to resolve whether the President could delegate reorganizational authority to the Secretary as\na resu lt o f his constitutionally com m itted power as Com m ander-in-C hief.\n\n82\n\n\x0cI. The Statute\n\nSection 125, part of the Department of Defense Reorganization Act of 1958,2\nsets out the requirements for transfer, reassignment, consolidation, or abolition\n(hereinafter collectively referred to as \xe2\x80\x9creorganization\xe2\x80\x9d) of functions, powers\nand duties assigned by law to the Department of Defense. Under the statute, the\nSecretary may propose to reorganize any such functions, but must report the\ndetails to the Committees on Armed Services of both the Senate and the House.\n10 U.S.C. \xc2\xa7 125(a). The reorganization becomes effective following thirty days\nof continuous session after the report is made unless either committee, before\nthat time, has reported to its respective House a resolution rejecting the plan. A\ncommittee may report a resolution to reject the proposal only if the proposal\ninvolves reorganization of a \xe2\x80\x9cmajor combatant function,\xe2\x80\x9d as determined by the\ncommittee,3 and would, in the committee\xe2\x80\x99s judgment, \xe2\x80\x9ctend to impair the\ndefense of the United States.\xe2\x80\x9d Id. Once a resolution of disapproval is reported\nby one of the two committees, the affected House has an additional forty days\nin which to adopt the resolution. If the resolution of disapproval is not adopted,\nthe reorganization goes into effect on the forty-first day following the\ncommittee\xe2\x80\x99s report.\nThree types of reorganizations need not be reported to the committees. The\nPresident may make temporary reorganizations during hostilities, for which no\nreport is required. Id. \xc2\xa7 125(c). Additionally, the Secretary is explicitly autho\xc2\xad\nrized to assign or reassign (but not to abolish) responsibility for developing and\noperating new weapons or weapons systems. If the plan involves substantial\nreduction or elimination of a major weapons system, however, the proposed\naction must be reported to Congress. Id. No veto mechanism is involved.\nFinally, the statute excludes from both the reporting requirement and the veto\npower the transfer of supply or service activities common to more than one\nmilitary department. Id. \xc2\xa7 125(d).\nIn short, all reorganizations, except the three just mentioned, must be re\xc2\xad\nported to the two Armed Services Committees of Congress. Unless the reorga\xc2\xad\nnization involves major combatant functions, however, the committees have no\nauthority to recommend, nor the Houses to implement, a veto of the plan.\nII. Constitutionality\nIn INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court struck down the\none-house veto as an unconstitutional exercise of legislative power. Relying on\n2 Ch. 412, 63 Stat. 514 (1958).\n3 \xe2\x80\x9cC om batant functions\xe2\x80\x9d are described at 10 U .S.C . \xc2\xa7\xc2\xa7 3062(b), 5012, 5013, 8062(c). These provisions set\nforth the responsibilities for m aintaining armed forces in the D epartm ent of the Army, the D epartm ent o f the\nNavy, the M arine C orps, and the A ir Force, respectively. The distinction betw een com batant and noncom batant functions w as described by R epresentative Vinson, Chairman o f the House Armed Services\nC om m ittee, as the difference between the fighting capacity o f a service and its business functions, such as\npurchasing o f food, furnishing o f m edical services, and running o f Post exchanges. 104 C ong. Rec. 10891\n(1958).\n\n83\n\n\x0cthe significance accorded by the Framers of the Constitution to the legislative\nprocedures of bicameral passage and presentment of legislation to the President\nfor signature or veto, the Court held that any legislative action, if not specifi\xc2\xad\ncally exempted in the Constitution itself, must comply with the procedures\narticulated in the Presentment Clauses, U.S. Const, art. I, \xc2\xa7 7, els. 2,3.462 U.S.\nat 946-51. The test devised in Chadha for identifying legislative action is\nwhether the action has the effect of \xe2\x80\x9caltering the legal rights, duties and\nrelations of persons, including . .. Executive Branch officials . . ., outside the\nlegislative branch.\xe2\x80\x9d Id. at 952. If the action constitutes an exercise of \xe2\x80\x9clegisla\xc2\xad\ntive power,\xe2\x80\x9d then the constitutional procedures of bicameral passage and\npresentment must be observed.\nSection 125(a) authorizes two actions the constitutionality of which is af\xc2\xad\nfected by Chadha. First, it permits the Armed Services Committees of both\nHouses to determine what functions are \xe2\x80\x9cmajor combatant functions\xe2\x80\x9d and\nwhether a proposed reorganization will \xe2\x80\x9ctend to impair the defense of the\nUnited States.\xe2\x80\x9d Second, the statute permits either House to prevent a reorgani\xc2\xad\nzation by passing a resolution disapproving it.\nThe first of these actions effectively empowers a committee of Congress\neither to approve a plan submitted by the Secretary or to take preliminary steps\nto postpone or defeat it. The committee is directed to use its own discretion to\ndistinguish between \xe2\x80\x9cmajor\xe2\x80\x9d combatant functions and others and to make\ndecisions regarding the defense of the United States. Thus the Secretary\xe2\x80\x99s\nstatutory right to effect reorganizations and their timing are entirely contingent\nupon the committee\xe2\x80\x99s judgment as to whether the veto mechanism should be\ninvoked. This function of the committee affects the rights, duties and relations\nof Executive Branch officials by subjecting the Secretary\xe2\x80\x99s plan to a possible\none-house resolution and by triggering an additional forty-day continuous\nsession waiting period during which the proposed action is suspended. The\ncommittee discretion authorized by \xc2\xa7 125 is a legislative action, which must be\naccomplished, if at all, through the plenary legislative process.\nThe one-house veto authorized by the statute has the effect of nullifying the\nstatutory discretion of the Secretary or reversing the exercise of that discretion,\nand thus alters the rights and relations of Executive Branch officials. This veto\nprocedure, effected through the device of a one-house resolution, is precisely\nthe kind of mechanism that the Supreme Court struck down in Chadha. As will\nbe shown below, it was devised explicitly for the purpose of circumventing the\nplenary legislative process. This purpose is further evidence that the one-house\naction is legislative in character.\nFinally, neither the committee action nor the one-house action authorized by\n\xc2\xa7 125(a) falls among the exemptions from bicameral passage and presentment\nexpressed clearly and unambiguously in the Constitution. See 462 U.S. at 955\n(listing four constitutional provisions authorizing one-house action). Thus,\nboth the committee suspension provision and the one-house veto device of\n\xc2\xa7 125 are prohibited under INS v. Chadha.\n84\n\n\x0cIII. Severability\nA. Presumptions\nThe Secretary\xe2\x80\x99s statutory authority to reorganize combatant and non-com\xc2\xad\nbatant functions, notwithstanding the unconstitutionality of the veto mecha\xc2\xad\nnism, depends upon whether the delegation of power to do so under \xc2\xa7 125 is\nseverable from the unconstitutional provisions contained in the statute.\nThe severability of an unconstitutional provision from the rest of a statute\npresents a question of legislative intent: would Congress have wished the\nremainder of the statute to continue in effect had it recognized that the provi\xc2\xad\nsion was unconstitutional? See D orchy v. Kansas, 264 U.S. 286, 290 (1924).\n\xe2\x80\x9cUnless it is evident that the Legislature would not have enacted those provi\xc2\xad\nsions which are within its power, independent of that which is not,\xe2\x80\x9d the invalid\nportion should be severed and the remaining statutory authority upheld. INS v.\nChadha, 462 U.S. at 932 (citations omitted; emphasis added).\nThe Supreme Court thus expressed a presumption that constitutional provi\xc2\xad\nsions survive the excision of unconstitutional provisions, absent clear congres\xc2\xad\nsional intent to the contrary. The Court in Chadha declared that a further\npresumption of severability is accorded any statute that contains a severability\nclause. 462 U.S. at 932. Finally, the Court recognized a third important pre\xc2\xad\nsumption in favor of severability: a provision is \xe2\x80\x9cpresumed severable if what\nremains after severance \xe2\x80\x98is fully operative as a law.\xe2\x80\x99\xe2\x80\x9d Id. at 934 (quoting\nChamplin Refining Co. v. Corporation Com m \xe2\x80\x99n, 286 U.S. 210, 234 (1932)).\nIdentifying a severability clause that is specifically applicable to \xc2\xa7 125 is a\nrather complicated endeavor. When this section was enacted as part of the\nDepartment of Defense Reorganization Act of 1958, that Act did not contain a\nseverability clause. The National Security Act of 1947, however, which the\n1958 Act amended, originally contained a severability clause. Ch. 343,61 Stat.\n509 (1947). Moreover, the Act which codified the National Security Act into\npositive law in 1956 also included a severability clause:\nIf a part of this Act is invalid, all valid parts that are severable\nfrom the invalid part remain in effect. If a part of this Act is\ninvalid in one or more of its applications, the part remains in\neffect in all valid applications that are severable from the invalid\napplications.4\nWe believe that this severability clause applies to the reorganization section at\nissue because of that section\xe2\x80\x99s status as an amendment to the National Security\nAct of 1947. Generally an amended statute is to be understood in the same\nsense as if it had been composed originally in its amended form.5 B lair v.\n4 A ct of Aug 10, 1956, ch. 1041, \xc2\xa7 49, 70A Stat. 640. The 1956 A ct repealed all sections o f the 1947 Act\nthat were covered by the provisions newly codified. Id. \xc2\xa7 53, 70A Stat at 641.\n5 The reorganization section, originally codified as 5 U .S.C \xc2\xa7 171a, was transferred to Title 10 in 1962.\nPub. L. No. 8 7 -6 5 1 , title II, \xc2\xa7 201(a), 76 Slat. 515 (1962). Congress at that tim e did not intend to make any\nsubstantive changes in the statute. S. Rep. No. 1876,87th C o n g , 2d Sess. 6, reprinted in 1962 U.S.C C.A.N. 2456.\n\n85\n\n\x0cChicago, 201 U.S. 400, 475 (1906). Under Chadha, the severability clause\ncreates an additional presumption of severability, which can be overcome only\nif legislative history demonstrates, clearly and unmistakably, that Congress\nwould not have delegated the authority at issue if it had known that the veto\nmechanism was unconstitutional. See 462 U.S. at 932.\nThe third presumption, arising when what remains after severance is \xe2\x80\x9cfully\noperative as a law,\xe2\x80\x9d is also applicable in the present circumstances. Without the\nlegislative veto, which applies only to reorganizations of combatant functions,\nthe Secretary\xe2\x80\x99s statutory power to reorganize combatant functions would oper\xc2\xad\nate just as his powers over non-combatant functions have operated. Thus any\nreorganization plan would be reported to the Armed Services Committees of\nboth Houses, as specified in \xc2\xa7 125, and would take effect after thirty days of\ncontinuous session if no preventative legislation were passed. The Secretary\nwould be empowered to reorganize all statutory functions in the manner now\nprescribed for non-combatant functions alone \xe2\x80\x94 a report-and-wait scheme like\nthe one upheld in Chadha. Id. at 935 & n.9.\nB. L egislative H istory\n\nIn assessing the effect of the various presumptions in the context of \xc2\xa7 125,\nlegislative history is the guide to congressional intent. During consideration of\nthe Department of Defense Reorganization Act of 1958, Congress explicitly\naddressed the issue of how much control it wished to retain over the Secretary\xe2\x80\x99s\nexercise of delegated reorganization authority, but it did not allude to the\npossibility that the one-house veto might be an impermissible means for\neffecting this control. Rather, Congress appears to have considered three\noptions: to maintain the then-existing scheme under which the Secretary had no\nstatutory power to reorganize combatant functions, to permit these reorganiza\xc2\xad\ntions in the unrestricted discretion of the Secretary subject only to a report-andwait obligation, or to grant the reorganization power while retaining control\nover its exercise through some form of a congressional veto mechanism.\nCongress chose the last of these three options.\nBefore the 1958 amendments were passed, separate statutory sections gov\xc2\xad\nerned the reorganization of non-combatant functions and combatant functions.\nThe National Security Act of 1947, as amended, provided that all authorized\nfunctions of the Department o f Defense other than combatant functions could\nbe reorganized if a report was submitted in advance to the Armed Services\nCommittees.6 Combatant functions, however, with no further delineation made\nbetween \xe2\x80\x9cmajor\xe2\x80\x9d and \xe2\x80\x9cminor,\xe2\x80\x9d could not be reorganized at all under the\nstatute.7\nThe provision that finally became law as \xc2\xa7 125 represented a compromise\namong the various stances urged by the President, the House, and the Senate,\n\xe2\x80\x98 N ational Security A ct o f 1947, \xc2\xa7 202(c)(1), as am ended, ch. 412, 63 Stat. 580 (1949).\n\xe2\x80\x99 N ational S ecurity A ct o f 1947, \xc2\xa7 202(c)(5), as am ended, ch. 412, \xc2\xa7 5, 63 Stat. 580 (1949).\n\n86\n\n\x0crespectively. Under a bill submitted by the President,8 the Secretary of Defense\nwould have had the ability to reorganize all functions, including combatant\nfunctions, thirty days after making a report to the Committees on Armed\nServices. Congress could have prevented a proposed reorganization only by\nplenary legislation presented to the President for signature.9\nThe House Committee on Armed Services criticized the bill on the ground\nthat the President could be expected to veto any legislation that sought to\nprevent a reorganization proposed by the Secretary. The House anticipated that\na two-thirds majority of each House would have been required to override a\nPresidential veto and prevent any reorganization.10 \xe2\x80\x9cHere the Committee on\nArmed Services was faced with one of its most difficult problems: how to\nretain its constitutional responsibility11 and at the same time give the Secretary\nof Defense the necessary flexibility to take action in the interests of economy\nand efficiency that would not impinge upon the responsibilities of the\nCongress.\xe2\x80\x9d12\nThe House solution to its dilemma was a bill authorizing the Secretary to\nreorganize any non-combatant function by notifying Congress and waiting\nthirty days. Combatant functions, however, could be reorganized only after the\nSecretary had consulted with the Joint Chiefs of Staff, reported to Congress and\nwaited thirty days. If objection were raised by any of the Joint Chiefs of Staff,\na combatant function would become a \xe2\x80\x9cmajor\xe2\x80\x9d combatant function. The bill\npermitted Congress to prevent the reorganization of a major combatant func\xc2\xad\ntion by adopting a concurrent resolution opposing the Secretary\xe2\x80\x99s plan.13 Thus,\nunder the House bill, congressional prevention of \xe2\x80\x9cminor\xe2\x80\x9d combatant and noncombatant reorganizations would have required enactment of a law and Presi\xc2\xad\ndential approval or a two-thirds vote in each House overriding the President,\nwhile a legislative veto of \xe2\x80\x9cmajor\xe2\x80\x9d combatant reorganizations would have\nrequired only opposition by a simple majority of each of the Houses of\nCongress. In the words of the House Report,\nThe committee does not believe that it could give to the Secre\xc2\xad\ntary of Defense, or any member of the executive branch of the\nGovernment, the right to abolish, consolidate, transfer or reas\xc2\xad\nsign a major combatant function by simply notifying the Con\xc2\xad\ngress and then waiting 30 days. Such a grant of authority on the\npart of the Congress to the executive branch of the Government\n\'H .R . 11958, 85th Cong., 2d Sess. (1958).\n9 Report o f the H ouse Com m ittee on Armed Services, H.R. Rep. No. 1765, 85th Cong., 2d Sess. 12 (1958)\n(House Report).\n10M. at 12.\n11 W e assum e that this reference to \xe2\x80\x9cconstitutional responsibility\xe2\x80\x9d relates to C ongress\xe2\x80\x99 A rticle 1 powers to\nraise and support arm ies, to provide and m aintain a navy, and to make rules for the governm ent of the land\nand naval forces. U .S. Const, art. 1., \xc2\xa7 8, els. 12-15. Legislative history does not reveal w hether the asserted\nresponsibility was view ed as extending beyond the legislation necessary merely to constitute and to fund the\narm ed forces.\n12 H ouse Report, supra , at 12-13.\n,3/d. at 13.\n\n87\n\n\x0cwould constitute a complete surrender of a Constitutional re\xc2\xad\nsponsibility imposed upon the Congress.14\nThe Senate amendment to the House bill, substantially enacted in \xc2\xa7 125,\nprovided that all reorganizations must be reported to the two Armed Services\nCommittees and would take effect after thirty days of continuous session.15\nEither committee could report a resolution to its house recommending that the\nproposal be rejected if, in the judgment of the committee, the plan involved a\n\xe2\x80\x9cmajor combatant function\xe2\x80\x9d and \xe2\x80\x9cwould impair the defense of the United\nStates.\xe2\x80\x9d After a committee had reported such a resolution of disapproval to its\nhouse, that house had forty additional days in which to adopt it by simple\nmajority vote. The resolution of either house would defeat the Secretary\xe2\x80\x99s\nproposal.16\nIn conference, the House conferees agreed to the Senate amendment with\nthree modifications not here relevant.17 In the view of the Conference Commit\xc2\xad\ntee, \xe2\x80\x9cthe provision agreed to with respect to combatant functions recognizes the\nresponsibility of the Congress as provided in the Constitution of the United\nStates. It preserves to the Congress its prerogative of making the final determi\xc2\xad\nnation as to the military needs and requirements of our Nation.\xe2\x80\x9d18\nThus, both the House and the Senate appear to have agreed that reorganiza\xc2\xad\ntion of major combatant functions, albeit with somewhat different defini\xc2\xad\ntions,19 required some type of legislative control. Additionally, they agreed that\nsome alteration of the prior statutory scheme was necessary to provide flexibil\xc2\xad\nity to the Secretary.\nC. A nalysis\nChadha instructs that the severability question is to be resolved by determin\xc2\xad\ning whether Congress intended the remainder of an act to stand if any particular\nprovision were held invalid. 462 U.S. at 931-32. The severability clause, of\ncourse, attests to this intention. See Consumer Energy Council o f America v.\nFERC, 673 F.2d 425, 441 (D.C. Cir. 1982), a f f d sub nom. Process Gas\nConsum ers Group v. Consumer Energy Council o f America, 463 U.S. 1216\n14 H ouse R eport, supra, at 14.\n13 R eport o f the Senate Committee on Armed Services, S. Rep. N o 1845, 85th Cong., 2d Sess 6-7,\nreprinted in 1958 U .S.C.C.A.N . 3272, 3278 (Senate Report).\n16 The reason for the Senate\xe2\x80\x99s revision o f the method for determ ining \xe2\x80\x9c m ajor\xe2\x80\x9d com batant functions was that\nit believed no m ilitary official should h av e the pow er to delay a Presidential decision; rather, a com m ittee of\nC ongress should perform that function. 104 Cong. Rec. 14263 (1958) (statem ent o f Sen. Kefauver).\n17 H .R . C onf. Rep. No. 2261, 85th C ong., 2d Sess. 1 3 -1 4 , reprinted in 1958 U .S.C.C.A.N. 3272, 3284\n(C onference R eport). The modifications included a provision covering functions \xe2\x80\x9cnow or hereafter\xe2\x80\x9d assigned\nto the m ilitary services; an insertion o f the w ords \xe2\x80\x9ctend to \xe2\x80\x9d in the phrase \xe2\x80\x9cwould im pair the defense o f the\nU nited States\xe2\x80\x9d as a ground fo r committee recom m endation o f disapproval; and an addition o f words to clarify\nthat a resolution o f disapproval of eith er H ouse would require only a sim ple majority. Id.\n18 C onference Report, supra, at 14, reprinted in 1958 U .S.C.C A.N. at 3284-85.\n19 Compare H ouse R eport, supra, at 13 (com batant function becom es \xe2\x80\x9c major\xe2\x80\x9d if proposal objected to by\nJo in t C hiefs o f Staff) with Senate R eport, supra, at 5 -6 , reprinted in 1958 U S.C.C A.N at 3276 (\xe2\x80\x9cmajor\ncom batant functions\xe2\x80\x9d to be determined by Armed Services C om m ittees).\n\n88\n\n\x0c(1983). A presumption of severability is not lightly overcome, Carter v. Carter\nCoal Co., 298 U.S 238, 312 (1936), particularly in light of the Chadha Court\xe2\x80\x99s\ndelineation of three separate sources for such a presumption.\nUnder the Chadha discussion of severability, there are three possible inter\xc2\xad\npretations of the current effect of \xc2\xa7 125: First, it is possible that all of \xc2\xa7 125(a)\nis invalid and the Secretary has no power to reorganize any of the functions\nembraced by \xc2\xa7 125(a), combatant and non-combatant alike. This conclusion\nwould be required if the statute were not severable at all and the entire grant of\nauthority contained in \xc2\xa7 125(a) could no longer be given effect. Second, only\nthe delegation of authority which the statute subjects to a one-house veto would\nfall, meaning that the Secretary no longer has any power to reorganize major\ncombatant functions, but retains such authority with respect to all other func\xc2\xad\ntions. Such a reading would be the consequence of concluding that the uncon\xc2\xad\nstitutional legislative veto is severable from the grant of authority not subject to\nthat veto, but is not severable from the grant of authority directly controlled by\nthe veto. The third possibility is that the grant of reorganization authority\nstands, requiring only a report to Congress and a thirty-day wait for any\nreorganization to take effect. This interpretation would be the result of finding\nthat only the legislative veto need be stricken and that the remainder of the\nstatute is unaffected.\nAs we have already noted, Congress distinguished between the two different\ntypes of reorganizations contained in \xc2\xa7 125: those that involve combatant\nfunctions and those that do not. The former are subject to a committee recom\xc2\xad\nmendation of disapproval; the latter are not. Under \xc2\xa7 125(a) a proposal to effect\na non-combatant reorganization simply becomes effective thirty days after the\nSecretaiy reports the plan to Congress. The provision as written provides a\nworkable report-and-wait scheme for non-combatant functions entirely unre\xc2\xad\nlated to the unconstitutional veto device. With respect to reorganizations of\nnon-combatant functions, we have found no clear evidence of a legislative\nintent which would overcome the presumptions of severability. To the con\xc2\xad\ntrary, the structure of the statute is entirely consistent with severability.\nThe history of this section lends additional support for the distinct consider\xc2\xad\nation of combatant and non-combatant functions, despite the current associa\xc2\xad\ntion of the two in \xc2\xa7 125(a). As discussed above, separate statutory sections\ngoverned the reorganization of the two classes of functions before 1958. When,\nin 1958, the President requested report-and-wait authority for all reorganiza\xc2\xad\ntions, Congress granted that request in part by readopting the report-and-wait\nscheme for non-combatant reorganizations. Both the House and Senate bills,\nalthough disagreeing on other aspects of the new plan, contained identical\ntreatment of the power to reorganize non-combatant functions. This provision\nprovoked no apparent controversy.\nThus, to strike all of \xc2\xa7 125(a) as not severable from the unconstitutional veto\nprovision would withdraw from the Secretary powers he enjoyed even before\nthe addition of the legislative veto over combatant reorganizations in 1958.\nCongress gave no indication that its reenactment of the non-combatant reorga\xc2\xad\n89\n\n\x0cnization power was in any way dependent upon the enactment of the separate\nveto governing combatant functions. We therefore conclude that to strike the\nentire delegation of authority is not warranted.\nThe second possible interpretation of \xc2\xa7 125(a), which would sever the power\nto reorganize non-combatant or \xe2\x80\x9cminor\xe2\x80\x9d combatant functions, but not the\npower to reorganize major combatant functions, is impeded somewhat by the\nphrasing of the statute. As \xc2\xa7 125(a) now reads, abbreviated for clarity:\na function . .. may not be substantially [reorganized] unless the\nSecretary reports the details . . . to the Committees on Armed\nServices of the Senate and House of Representatives. The [reor\xc2\xad\nganization] takes effect. . . after. . . 30 days . . . unless either of\nthose Committees, within that period, reports a resolution rec\xc2\xad\nommending that the [proposal] be rejected . . . because it . . .\nproposes to reorganize a major combatant function... and would, in\nits judgment, tend to impair the defense of the United States.\nThe manner in which Congress chose to word the statute makes differentiation\nbetween combatant and non-combatant reorganizations somewhat difficult\nmechanically. However, this problem could be overcome, because the legisla\xc2\xad\ntive history seems to support a conclusion that Congress designed the statute\nfor efficiency of words and not because it intended both types of reorganization\nto fail if the disapproval procedure regarding combatant reorganizations failed.\nA more serious barrier to this interpretation lies in an additional constitu\xc2\xad\ntional problem implicit in the committee\xe2\x80\x99s channeling function described above.\nIf the Secretary were to retain only the power to reorganize noncombatant and\n\xe2\x80\x9cminor\xe2\x80\x9d combatant functions, he would nonetheless be required to report all plans\nto the Armed Services Committees and to wait thirty days before implementing\nthem. Combatant functions are defined by statute. The statute offers no guidance,\nhowever, for breaking down the \xe2\x80\x9ccombatant\xe2\x80\x9d category into \xe2\x80\x9cmajor\xe2\x80\x9d and \xe2\x80\x9cminor.\xe2\x80\x9d\nThis determination is vested by \xc2\xa7 125(a) in the sole discretion of the committees.\nThus, under this interpretation, if the Secretary were to submit a plan\nbelieved by him to contemplate the reorganization of \xe2\x80\x9cminor\xe2\x80\x9d combatant\nfunctions not impairing the national defense and thus within his power, his\ncharacterization of the plan would be subject to review and revision by the\ncommittees. If they disagreed with the Secretary\xe2\x80\x99s characterization, the com\xc2\xad\nmittees\xe2\x80\x99 contrary characterization would have the effect of nullifying autho\xc2\xad\nrized Executive Branch actions. The committees, by hypothesis, would decide\nwhether the particular power at issue fell within the portion of authority that\nhad been stricken or within the portion that had been retained by the Secretary.\nThis action of reviewing and revising is foreclosed by Chadha because it\nconstitutes the exercise of legislative power, which may only be accomplished\nin the manner prescribed for legislation by the Constitution.20\n20 A lternatively, a com m ittee\xe2\x80\x99s in terpretation and enforcem ent o f statutory directives could be viewed as an\nex ercise o f executive pow er, which th e Suprem e C ourt has held to be reserved to officers o f the U nited States\nC ontinued\n\n90\n\n\x0cUnder this interpretation, therefore, the committees would not act merely as\nagents of Congress to receive executive reports pursuant to a valid report-andwait procedure. Rather, they would hold discretionary and legislative powers\nunconstitutionally delegated to them by \xc2\xa7 125(a). The committees\xe2\x80\x99 unconstitu\xc2\xad\ntional role in reviewing the Secretary\xe2\x80\x99s decisions precludes any interpretation\nof the statute that preserves the distinction between \xe2\x80\x9cmajor\xe2\x80\x9d combatant func\xc2\xad\ntions and others, as Congress has not chosen legislatively to define the differ\xc2\xad\nence. Consequently, we conclude that this interpretation is not consistent with\nChadha.\n\nThe final of the three options identified above involves severance only of the\nunconstitutional veto mechanism and is consistent with the presumptions in\nfavor of severability. It would leave undisturbed the Secretary\xe2\x80\x99s grant of\nauthority to reorganize all functions, subject only to a report-and-wait requirement.\nIn 1958, when Congress amended the National Security Act of 1947, the\nSecretary\xe2\x80\x99s power to reorganize the statutorily defined functions of the Depart\xc2\xad\nment of Defense extended only to non-combatant functions. At that time,\nCongress determined that \xe2\x80\x9c[o]ur defense organization must be flexible; it must\nbe responsive to rapidly changing technologies; it must be dynamic and versa\xc2\xad\ntile,\xe2\x80\x9d House Report, supra, at 2, and that the existing scheme was inadequate to\nmeet those articulated needs. The House and Senate Reports reveal no dis\xc2\xad\nagreement with the proposition that the reorganization authority was in need of\nexpansion; rather, the disagreement focused only on the manner in which such\nauthority would be defined. The 1958 amendments, therefore, appear rooted in\na consensus that the Executive Branch should be given increased flexibility in\nthe area of defense reorganization.\nAs the legislative history discloses, however, Congress declined to allow the\nSecretary to enjoy this flexibility completely free of committee control. Simply\nsevering the unconstitutional veto provision and leaving the Secretary\xe2\x80\x99s reor\xc2\xad\nganization authority otherwise intact would, of course, effectively resurrect the\nscheme urged by the President in his bill at the time that Congress was\nconsidering the Department of Defense Reorganization Act of 1958. Both the\nHouse21 and the Senate22 expressed dissatisfaction with such report-and-wait\nauthorization and preferred to retain a congressional veto for reorganizations of\ncombatant functions. These objections unquestionably reflect a reluctance on\nthe part of Congress to delegate unfettered discretion to the Secretary, given the\nclearly preferable alternative of retaining some congressional control. How\xc2\xad\never, \xe2\x80\x9c[a]lthough it may be that Congress was reluctant to delegate final\n20 ( . . . continued)\nappointed pursuant to A rticle II. Buckley v. Valeo, 424 U.S. 1, 141 (1976). Furtherm ore, the com m ittee\'s\nputative authority could be construed as judicial pow er, insofar as it involves the interpretation o f the statute\nand review o f executive action. This is a function reserved to the judiciary as established by A rticle III. See\nChadha, 462 U.S. at 966 (Powell, J., concurring). U nder any o f these interpretations, the com m ittee\'s\nauthority to perform this function in the m anner designated is inconsistent w ith the constitutional separation\no f powers.\n21 See supra note 14 and accom panying text.\n22 \xe2\x80\x9cThe H ouse A rm ed Services C om m ittee quite rightly rejected this blank check to the adm inistration.\xe2\x80\x9d\n104 Cong. Rec. 14263 (1958) (statem ent o f Sen. K efauver).\n\n91\n\n\x0cauthority . . . , such reluctance is not sufficient to overcome the presumption of\nseverability.\xe2\x80\x9d Chadha, 462 U.S. at 932.\nRather, the question is \xe2\x80\x9cwhat Congress would have intended,\xe2\x80\x9d had it antici\xc2\xad\npated that the veto provision was unavailable. Consumer Energy Council o f\nAm erica v. FERC, 673 F.2d 425, 442 (D.C. Cir. 1982) (emphasis in original),\na f f d sub nom. P rocess Gas Consum ers Group v. Consumer Energy Council o f\nAm erica, 463 U.S. 1216 (1983). And, the presumptions all line up in favor of\nseverability unless there is clear evidence of legislative intent to the contrary.\nIn this context, we attempt to discern what Congress would have chosen to do if\nit had been required to choose between the complete executive flexibility\nafforded by the report-and-wait legislation on the one hand, and the complete\ninflexibility of the then prevailing law on the other. Unless the evidence clearly\nfavors the latter interpretation, Chadha compels us to choose the former.\nBecause the emphasis of the 1958 deliberations was a recognized need to\nremedy a flawed statutory scheme, we cannot conclude with confidence that\nthe legislators would have refused to make any change in that scheme even if\nthe only alternative had been to delegate discretion to the Secretary subject\nonly to advance notice to Congress and the constitutional power legislatively to\noverride the Secretary. Far from supporting a conclusion that Congress would\nhave intended the Secretary\xe2\x80\x99s discretion to fall with the unconstitutional provi\xc2\xad\nsion, the legislative history is silent on this subject. Because the courts have\ndetermined that in the face of silence, the presumption of severability must\ncontrol,23 we conclude that the unconstitutional portions of \xc2\xa7 125(a) are sever\xc2\xad\nable from the delegation o f authority to the Secretary.24 The reports still\nrequired of the Secretary will provide Congress with oversight and the opportu\xc2\xad\nnity to exercise, through legislation, the control over reorganizations that it\nsought to preserve without undermining the constitutional scheme.\n\n23 Even in the absence o f a severability clause and in the face o f contrary statem ents by individual members\no f C ongress, the U nited States Court o f A ppeals for the Fifth C ircuit held a statute to be severable because\nthere was no evidence that severability w as actually considered. \xe2\x80\x9cM ere uncertainty about the legislature\xe2\x80\x99s\nintent is in su fficien t." EEOC v Hernando Bank, Inc., 724 F.2d 2053, 2058 (5th C ir 1984); accord Muller\nOptical Co. v. EEOC, 574 F. Supp. 946, 953 (W D. Tenn. 1983). Contra EEOC v. Allstate Ins. Co., 32 Fair\nEm pl. Prac. C as. (BN A ) 1337 (S.D. M iss. 1983) (sam e statute not severable because absence o f severability\nc lau se creates presum ption against severability). Sim ilarly, the D.C C ircuit found that the provision before it\nwas not \xe2\x80\x9c so essential to the legislative purpose that the statute w ould not have been enacted without it,\xe2\x80\x9d\ndespite som e leg islative history indicating that C ongress intended the veto provision to protect against\nundesirable consequences. Consumer Energy Council o f America v. FERC, 673 F.2d 425, 443, 445 n.70\n(D .C. C ir. 1982), a ff\'d sub nom. Process Gas Consumers Group v. Consumer Energy Council o f America,\n463 U .S. 1216 (1983). It thus rejected th e test devised by the Fourth C ircuit in McCorkle v. United States, 559\nF.2d 1258, 1261 (4th C ir. 1977), cert, denied, 434 U.S. 1011 (1978), that severability is inappropriate when\nthe v eto restricts a grant o f power. This te st would have the effect o f m aking \xe2\x80\x9call veto provisions pnm a facie\ninsev erab le,\xe2\x80\x9d Consumer Energy Council, 673 F.2d at 445 n.70, a result clearly at odds w ith the subsequently\ndecided Chadha case.\n24 T his conclusion is facilitated by the language o f the statute itself, w hich provides that any reorganization\ntakes effect a fte r thirty d ays unless veto actio n is initiated. The effect o f severance is accom plished m erely by\nstriking the qualifications following th e w ord \xe2\x80\x9cunless.\xe2\x80\x9d Sim ilarly, this conclusion obviates consideration of\nthe ad d itio n al forty-day waiting period. That period is triggered by one unconstitutional action and is\ndesigned to facilitate an o th er We believe, therefore, th at it is no longer effective.\n\n92\n\n\x0cWe defer to officials of the Department of Defense to analyze the effect of\nour conclusions upon the validity of any particular plan of reorganization\ncurrently under consideration. We do not believe we should attempt to resolve\nthe specific issues that you have raised, which undoubtedly implicate areas in\nwhich your experience and knowledge are superior. However, should you\ncontinue to have questions about specific proposals, we would be pleased to\naddress them in the context of a detailed factual background.\nConclusion\nIn the absence of clearly expressed legislative intent regarding what Con\xc2\xad\ngress would have done had it known that the legislative veto alternative was\nconstitutionally unavailable, we have concluded that the delegation of author\xc2\xad\nity to the Secretary of Defense to reorganize all functions is severable from the\none-house veto controlling the exercise of certain aspects of that authority.\nBecause the veto contained in \xc2\xa7 125 is unconstitutional under Chadha, and\nbecause Congress failed to indicate clearly and unmistakably that the delega\xc2\xad\ntion would not have been made if Congress could not have retained a veto\npower, we believe the courts would find that the reorganization authority\nsurvives the fall of the veto. Thus we conclude that the Secretary, under the\nvalid remainder of \xc2\xa7 125(a), may exercise the statutory grant of power to effect\nreorganizations of all functions, subject only to a thirty-day report-and-wait\nrequirement.\nT h eo do re B. O lson\n\nA ssistant Attorney General\nOffice o f Legal Counsel\n\n93\n\n\x0c'