b'Waiver of Sovereign Immunity With Respect to\nWhistleblower Provisions of Environmental Statutes\nThe federal government\xe2\x80\x99s sovereign immunity has been waived with respect to the whistleblower\nprovisions of the Solid Waste Disposal Act and the Clean Air Act, but not with respect to the\nwhistleblower provision of the Clean Water Act.\n\nSeptember 23, 2005\n\nLETTER OPINION FOR THE SOLICITOR\nDEPARTMENT OF LABOR\nThis letter will confirm the conclusions of our Office that the federal government\xe2\x80\x99s sovereign immunity has been waived with respect to the whistleblower\nprovisions of the Solid Waste Disposal Act (\xe2\x80\x9cSWDA\xe2\x80\x9d), 42 U.S.C. \xc2\xa7 6971 (2000),\nand the Clean Air Act (\xe2\x80\x9cCAA\xe2\x80\x9d), 42 U.S.C. \xc2\xa7 7622 (2000), but not with respect to\nthe whistleblower provision of the Water Pollution Prevention and Control Act\n(commonly known as the Clean Water Act (\xe2\x80\x9cCWA\xe2\x80\x9d)), 33 U.S.C. \xc2\xa7 1367 (2000).\nThese questions arose in May 2004 in the context of an interagency dispute within\nthe Executive Branch concerning the application of these statutes. See Exec. Order\nNo. 12146, \xc2\xa7 1-401, 3 C.F.R. 409, 411 (1979 Comp.), reprinted in 28 U.S.C. \xc2\xa7 509\nnote (2000); 28 C.F.R. \xc2\xa7 0.25(a) (2004).\nI.\nThe SWDA and the CWA prohibit, inter alia, discrimination against an employee\nwho \xe2\x80\x9chas filed, instituted, or caused to be filed or instituted any proceeding under\nthis chapter.\xe2\x80\x9d SWDA, 42 U.S.C. \xc2\xa7 6971(a); CWA, 33 U.S.C. \xc2\xa7 1367(a). The CAA\nsimilarly prohibits, inter alia, discrimination against an employee who has \xe2\x80\x9ccommenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter\xe2\x80\x9d or who has \xe2\x80\x9cassisted or participated in or is\nabout to assist or participate in any manner in such a proceeding or in any other\naction.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 7622(a). The Secretary of Labor is authorized to resolve these\nwhistleblower claims, with limited review available in federal court. See SWDA, 42\nU.S.C. \xc2\xa7 6971(b); CWA, 33 U.S.C. \xc2\xa7 1367(b); CAA, 42 U.S.C. \xc2\xa7 7622(c).\nThe relevant provision in the SWDA provides:\nNo person shall fire, or in any other way discriminate against, or\ncause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such\nemployee or representative has filed, instituted, or caused to be filed\nor instituted any proceeding under this chapter or under any applicable implementation plan, or has testified or is about to testify in any\n\n171\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nproceeding resulting from the administration or enforcement of the\nprovisions of this chapter or of any applicable implementation plan.\n42 U.S.C. \xc2\xa7 6971(a). An aggrieved employee may file a complaint against \xe2\x80\x9cany\nperson,\xe2\x80\x9d id. \xc2\xa7 6971(b), which the SWDA defines as \xe2\x80\x9can individual, trust, firm,\njoint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State,\nor any interstate body and shall include each department, agency, and instrumentality of the United States,\xe2\x80\x9d id. \xc2\xa7 6903(15) (2000).\nThe relevant provision in the CAA provides:\nNo employer may discharge any employee or otherwise discriminate\nagainst any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any\nperson acting pursuant to a request of the employee)\xe2\x80\x94\n(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter\nor a proceeding for the administration or enforcement of any requirement imposed under this chapter or under any applicable\nimplementation plan,\n(2) testified or is about to testify in any such proceeding, or\n(3) assisted or participated or is about to assist or participate in\nany manner in such a proceeding or in any other action to carry\nout the purposes of this chapter.\n42 U.S.C. \xc2\xa7 7622(a). The CAA does not define the term \xe2\x80\x9cemployer\xe2\x80\x9d but permits\naggrieved employees to file a complaint against \xe2\x80\x9cany person,\xe2\x80\x9d id. \xc2\xa7 7622(b)(1),\nwhich the CAA defines as \xe2\x80\x9can individual, corporation, partnership, association,\nState, municipality, political subdivision of a State, and any agency, department,\nor instrumentality of the United States and any officer, agent, or employee\nthereof,\xe2\x80\x9d id. \xc2\xa7 7602(e) (2000).\nThe relevant provision in the CWA provides:\nNo person shall fire, or in any other way discriminate against, or\ncause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such\nemployee or representative has filed, instituted, or caused to be filed\nor instituted any proceeding under this chapter, or has testified or is\nabout to testify in any proceeding resulting from the administration\nor enforcement of the provisions of this chapter.\n\n172\n\n\x0cWaiver of Sovereign Immunity With Respect to Whistleblower Provisions\n\n33 U.S.C. \xc2\xa7 1367(a). An aggrieved employee may file a complaint against \xe2\x80\x9cany\nperson,\xe2\x80\x9d id. \xc2\xa7 1367(b), which the CWA defines as \xe2\x80\x9can individual, corporation,\npartnership, association, State, municipality, commission, or political subdivision\nof a State, or any interstate body,\xe2\x80\x9d id. \xc2\xa7 1362(5) (2000).\nII.\nIt is axiomatic that the government may not be sued without its consent. FDIC\nv. Meyer, 510 U.S. 471, 475 (1994). Where Congress chooses to waive that\nimmunity, its intent \xe2\x80\x9cmust be unequivocally expressed in statutory text.\xe2\x80\x9d Lane v.\nPena, 518 U.S. 187, 192 (1996). Waivers of immunity, furthermore, \xe2\x80\x9cmust be\nconstrued strictly in favor of the sovereign and not enlarged beyond what the\nlanguage requires.\xe2\x80\x9d Dep\xe2\x80\x99t of Energy v. Ohio, 503 U.S. 607, 615 (1992) (internal\nquotation marks, citations, and alterations omitted); see also Lane, 518 U.S. at 192\n(noting that \xe2\x80\x9ca waiver of the Government\xe2\x80\x99s sovereign immunity will be strictly\nconstrued, in terms of its scope, in favor of the sovereign\xe2\x80\x9d). These principles\ngoverning waivers of sovereign immunity apply not just in cases pending before\nArticle III courts, but also in adjudications before agencies and non-Article III\ncourts, because it is Congress, not the Executive Branch, that determines the scope\nof such waivers. See, e.g., Ardestani v. INS, 502 U.S. 129, 137 (1991) (holding\nthat sovereign immunity barred fee award to prevailing party in INS proceeding);\nUnited States v. Nordic Village, 503 U.S. 30, 34 (1992) (holding sovereign\nimmunity presumptions apply in bankruptcy court proceedings); Foreman v. Dep\xe2\x80\x99t\nof Army, 241 F.3d 1349, 1352 (Fed. Cir. 2001) (applying sovereign immunity\nprinciples in holding that the Merit System Protection Board lacks authority to\nimpose monetary damages).\nA.\nThe SWDA permits whistleblower claims against any \xe2\x80\x9cperson,\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 6971(b), which is elsewhere defined to include \xe2\x80\x9ceach department, agency, and\ninstrumentality of the United States,\xe2\x80\x9d id. \xc2\xa7 6903(15). This express language\nsatisfies the stringent test for waiver of immunity. In Department of Energy, for\nexample, the Supreme Court held that statutory language in the CWA (not at issue\nhere) authorizing citizen suits against \xe2\x80\x9c\xe2\x80\x98any person (including . . . the United\nStates)\xe2\x80\x99\xe2\x80\x9d sufficed to waive the government\xe2\x80\x99s immunity from such suits. 503 U.S.\nat 615 (quoting 33 U.S.C. \xc2\xa7 1365(a)). Although the definition of \xe2\x80\x9cperson\xe2\x80\x9d here is\nfound not in the whistleblower provision itself, but rather in a separate provision\ndefining various terms used in the SWDA, this cross-reference does not dull the\nclarity of the waiver of immunity. Cf. Kimel v. Florida, 528 U.S. 62, 76 (2000)\n(noting, in the similar context of congressional abrogation of state sovereign\nimmunity, that Supreme Court \xe2\x80\x9ccases have never required that Congress make its\n\n173\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nclear statement in a single section or in statutory provisions enacted at the same\ntime\xe2\x80\x9d).\nB.\nThe CAA prohibits whistleblower retaliation by any \xe2\x80\x9cemployer,\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 7622(a), which is not defined, and permits aggrieved employees to file a\ncomplaint against any \xe2\x80\x9cperson,\xe2\x80\x9d id. \xc2\xa7 7622(b)(1), which is elsewhere defined to\ninclude \xe2\x80\x9cany agency, department, or instrumentality of the United States and any\nofficer, agent, or employee thereof,\xe2\x80\x9d id. \xc2\xa7 7602(e). Although the term \xe2\x80\x9cemployer\xe2\x80\x9d\nis not defined, the relevant provision in section 7622 authorizes whistleblower\nsuits against any \xe2\x80\x9cperson,\xe2\x80\x9d and the federal government is expressly included in the\ndefinition of \xe2\x80\x9cperson.\xe2\x80\x9d In reviewing an assertion of tribal sovereign immunity\nfrom a claim brought under the whistleblower provision of the Safe Drinking\nWater Act, 42 U.S.C. \xc2\xa7 300j-9 (2000)\xe2\x80\x94which, like the CAA, separately prohibits\nretaliation by \xe2\x80\x9cemployer[s]\xe2\x80\x9d and permits suits against \xe2\x80\x9cperson[s]\xe2\x80\x9d\xe2\x80\x94the Tenth\nCircuit similarly focused its analysis on the term \xe2\x80\x9cperson\xe2\x80\x9d: \xe2\x80\x9cwhere Congress\ngrants an agency jurisdiction over all \xe2\x80\x98persons,\xe2\x80\x99 defines \xe2\x80\x98persons\xe2\x80\x99 to include\n\xe2\x80\x98municipality,\xe2\x80\x99 and in turn defines \xe2\x80\x98municipality,\xe2\x80\x99 to include \xe2\x80\x98Indian Tribe[s],\xe2\x80\x99 . . .\nit has unequivocally waived tribal immunity.\xe2\x80\x9d Osage Tribal Council ex rel. Osage\nTribe of Indians v. Dep\xe2\x80\x99t of Labor, 187 F.3d 1174, 1182 (10th Cir. 1999). The\ndefinitional connection here is more direct, and by expressly including the \xe2\x80\x9cUnited\nStates\xe2\x80\x9d in the definition of \xe2\x80\x9cperson,\xe2\x80\x9d Congress has waived the government\xe2\x80\x99s\nimmunity from suit under the CAA\xe2\x80\x99s whistleblower provision.\nC.\nThe CWA permits whistleblower claims against any \xe2\x80\x9cperson,\xe2\x80\x9d 33 U.S.C.\n\xc2\xa7 1367(a), which is elsewhere defined to include \xe2\x80\x9can individual, corporation,\npartnership, association, State, municipality, commission, or political subdivision\nof a State, or any interstate body,\xe2\x80\x9d id. \xc2\xa7 1362(5). The definition thus does not\ninclude the United States, see Dep\xe2\x80\x99t of Energy, 503 U.S. at 617\xe2\x80\x9318 (noting that the\nCWA does not \xe2\x80\x9cdefine[] \xe2\x80\x98person\xe2\x80\x99 to include the United States\xe2\x80\x9d and stating that an\n\xe2\x80\x9comission has to be seen as a pointed one when so many other governmental\nentities are specified\xe2\x80\x9d), 1 and we therefore believe that section 1367 does not\nabrogate the federal government\xe2\x80\x99s sovereign immunity.\n1\nWe do not read the term \xe2\x80\x9cinterstate body\xe2\x80\x9d to refer unequivocally to the United States. The CWA\nelsewhere defines \xe2\x80\x9cinterstate agency\xe2\x80\x9d to mean \xe2\x80\x9can agency of two or more States established by or\npursuant to an agreement or compact approved by the Congress, or any other agency of two or more\nStates, having substantial powers or duties pertaining to the control of pollution[.]\xe2\x80\x9d 33 U.S.C.\n\xc2\xa7 1362(2). We think it likely that \xe2\x80\x9cinterstate body\xe2\x80\x9d has a similar meaning, but for present purposes it is\nsufficient to state that the term does not unequivocally include the federal government, which is the test\nfor waiver of sovereign immunity.\n\n174\n\n\x0cWaiver of Sovereign Immunity With Respect to Whistleblower Provisions\n\nWe note, however, that a limited waiver of sovereign immunity is found in a\nseparate provision of the CWA addressing the discharge or runoff of pollutants at\ncertain federal facilities. See 33 U.S.C. \xc2\xa7 1323(a). That section provides:\nEach department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity\nresulting, or which may result, in the discharge or runoff of pollutants . . . shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process\nand sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges.\nThe preceding sentence shall apply (A) to any requirement whether\nsubstantive or procedural (including any recordkeeping or reporting\nrequirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or\nlocal administrative authority, and (C) to any process and sanction,\nwhether enforced in Federal, State, or local courts or in any other\nmanner.\nId. It might be argued that the whistleblower provision in section 1367 is a means\nto enforce pollution control and is, therefore, a \xe2\x80\x9crequirement[] . . . respecting the\ncontrol and abatement of water pollution\xe2\x80\x9d for which sovereign immunity is\nwaived. Even accepting arguendo that that is a possible construction of the CWA,\nit is certainly not the only one, and we believe that section 1323 does not unequivocally indicate a waiver of sovereign immunity with respect to section 1367 as\nrequired by Supreme Court precedents.\nThe phrase \xe2\x80\x9crequirements . . . respecting the control and abatement of water\npollution\xe2\x80\x9d is not defined in the CWA. Interpreting an earlier version of section\n1323, the Supreme Court indicated a narrow reading of \xe2\x80\x9crequirement\xe2\x80\x9d to refer\n\xe2\x80\x9csimply and solely to substantive standards, to effluent limitations and standards\nand schedules of compliance.\xe2\x80\x9d EPA v. California, 426 U.S. 200, 215 (1976)\n(internal quotation marks and citations omitted). Applying the canon that waivers\nof sovereign immunity are to be narrowly construed, the Court in EPA held that\n\xe2\x80\x9crequirement\xe2\x80\x9d did not include state permits or other procedural mechanisms\ndesigned to ensure compliance with substantive pollution control standards. Id. at\n213\xe2\x80\x9327. As previous Labor Department decisions have pointed out, however,\nCongress overruled the holding in EPA in 1977 by amending section 1323 to\nwaive sovereign immunity from, inter alia, \xe2\x80\x9cany requirement whether substantive\nor procedural.\xe2\x80\x9d See Jenkins v. EPA, No. 92-CAA-6, 1994 WL 897221, at *3 (May\n18) (\xe2\x80\x9cCongress amended the Federal facilities provision of the CWA . . . to\noverrule EPA . . . and to clarify that the Federal Government was required to\n\n175\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\ncomply with State permit, reporting and other procedural requirements.\xe2\x80\x9d); Conley\nv. McClellan Air Force Base, No. 84-WPC-1, 1993 WL 831968, at *4 (Sept. 7)\n(same). Although there was no congressional discussion of the CWA\xe2\x80\x99s whistleblower provision during the enactment of these amendments, the Labor Department has read the history of section 1323 to \xe2\x80\x9csuggest[] that [Congress] also\nintended all requirements of the [CWA] to apply\xe2\x80\x9d to federal facilities. Jenkins,\n1994 WL 897221, at *3; see also Conley, 1993 WL 831968, at *4 (same).\nNumerous courts, however, have concluded that the 1977 amendments \xe2\x80\x9cdid not\nchange the extent to which section [1323] waived immunity from state or local\ncontrol; it merely made it clear that where federal agencies are subject to state or\nlocal regulation they must comply with state or local procedural as well as substantive requirements.\xe2\x80\x9d United States v. Tenn. Water Quality Control Bd., 717 F.2d 992,\n997 (6th Cir. 1983); cf. Parola v. Weinberger, 848 F.2d 956, 961 (9th Cir. 1988)\n(finding that legislative reaction to EPA indicates that \xe2\x80\x9crequirement\xe2\x80\x9d also includes\n\xe2\x80\x9cthe procedural means by which [substantive environmental] standards are implemented: including permit requirements, reporting and monitoring duties, and\nsubmission to state inspections\xe2\x80\x9d). That is, Congress intended to overrule the specific\nholding in EPA by authorizing state procedural enforcement mechanisms, but it did\nnot necessarily intend to expand the phrase \xe2\x80\x9crequirements . . . respecting the control\nand abatement of water pollution\xe2\x80\x9d beyond \xe2\x80\x9csubstantive standards\xe2\x80\x9d or \xe2\x80\x9ceffluent\nlimitations.\xe2\x80\x9d According to these courts, \xe2\x80\x9cthe \xe2\x80\x98requirements\xe2\x80\x99 referred to in the\nCWA . . . relate only to pollution standards that a State might impose as part and\nparcel of its environmental programs.\xe2\x80\x9d N.Y. State Dep\xe2\x80\x99t of Envtl. Conservation v.\nDep\xe2\x80\x99t of Energy, 772 F. Supp. 91, 97 (N.D.N.Y. 1991); see also New York v. United\nStates, 620 F. Supp. 374, 382 (E.D.N.Y. 1985) (\xe2\x80\x9c[T]o the degree the Supreme\nCourt\xe2\x80\x99s ruling in [EPA] construed the substantive \xe2\x80\x98requirements\xe2\x80\x99 of [section 1323] to\nmean effluent limitations, such ruling was unaffected by the 1977 amendments\nenacted by Congress.\xe2\x80\x9d); Kelley v. United States, 618 F. Supp. 1103, 1108 (W.D.\nMich. 1985) (noting that \xe2\x80\x9c\xe2\x80\x98requirements\xe2\x80\x99 language has generally been held to mean\n\xe2\x80\x98relatively precise standards capable of uniform application\xe2\x80\x99\xe2\x80\x9d and that section 1323\nonly waives sovereign immunity with respect to \xe2\x80\x9cobjective, quantifiable standards\nsubject to uniform application\xe2\x80\x9d) (citations omitted). Indeed, the language that the\nSupreme Court interpreted in EPA\xe2\x80\x94\xe2\x80\x9c\xe2\x80\x98requirements respecting control and abatement of pollution,\xe2\x80\x99\xe2\x80\x9d 426 U.S. at 209 (quoting 33 U.S.C. \xc2\xa7 1323 (Supp. IV 1970))\xe2\x80\x94is\nvirtually identical to the current language in section 1323.\nUnder this interpretation, it is difficult to see how section 1367\xe2\x80\x94which establishes remedies for employer whistleblower retaliation\xe2\x80\x94is a \xe2\x80\x9crequirement,\xe2\x80\x9d let\nalone a \xe2\x80\x9crequirement[] . . . respecting the control and abatement of water pollution.\xe2\x80\x9d The CWA whistleblower provision is not a quantifiable restriction on\npollutants and there is substantial doubt whether it could even be viewed as a\nmeans for ensuring compliance with such requirements. This doubt is fatal to a\nfinding of a waiver of sovereign immunity, for the Supreme Court has held that\nwhere there are two plausible interpretations of a provision, with only one waiving\n\n176\n\n\x0cWaiver of Sovereign Immunity With Respect to Whistleblower Provisions\n\nsovereign immunity, such provision does not unequivocally indicate a waiver of\nsovereign immunity. See Nordic Village, 503 U.S. at 36\xe2\x80\x9337 (that there are\n\xe2\x80\x9cplausible\xe2\x80\x9d alternative readings of a provision that would not waive sovereign\nimmunity \xe2\x80\x9cis enough to establish that a reading imposing monetary liability on the\nGovernment is not \xe2\x80\x98unambiguous\xe2\x80\x99 and therefore should not be adopted\xe2\x80\x9d). 2\nConsidering that section 1367\xe2\x80\x94the whistleblower provision itself\xe2\x80\x94does not\nidentify the federal government as an entity subject to suit, and considering that\nthe term \xe2\x80\x9crequirement\xe2\x80\x9d has been narrowly construed by several courts notwithstanding the 1977 amendments, we do not believe that section 1323\xe2\x80\x99s reference to\n\xe2\x80\x9crequirements . . . respecting the control and abatement of water pollution\xe2\x80\x9d waives\nthe federal government\xe2\x80\x99s sovereign immunity from whistleblower claims under\nsection 1367.\nNor do we believe that other undefined language in section 1323\xe2\x80\x94subjecting\nfederal facilities to \xe2\x80\x9cadministrative authority\xe2\x80\x9d and \xe2\x80\x9cprocess and sanctions\xe2\x80\x9d\xe2\x80\x94\nwaives the government\xe2\x80\x99s sovereign immunity from whistleblower claims under\nsection 1367. First, \xe2\x80\x9cadministrative authority\xe2\x80\x9d would seem to refer to governmental entities charged with regulating water pollution, and perhaps to any fines or\npenalties that they might be authorized to impose. Cf. United States v. Tenn. Air\nPollution Control Bd., 185 F.3d 529, 532 (6th Cir. 1999) (holding that civil\npenalty assessed by a state administrative agency was an \xe2\x80\x9cadministrative remedy\nor sanction\xe2\x80\x9d within the meaning of the CAA\xe2\x80\x99s citizen suit provision). Section\n1367\xe2\x80\x94which creates a cause of action, not a regulatory regime\xe2\x80\x94does not\nnaturally, and certainly not unequivocally, fall within the meaning of \xe2\x80\x9cadministrative authority.\xe2\x80\x9d Second, the Supreme Court, in narrowly reading \xe2\x80\x9csanction\xe2\x80\x9d to\nmean only \xe2\x80\x9ccoercive\xe2\x80\x9d fines, reasoned that Congress\xe2\x80\x99s conjunction of the terms\n\xe2\x80\x9cprocess\xe2\x80\x9d and \xe2\x80\x9csanctions\xe2\x80\x9d was likely meant to refer to \xe2\x80\x9cthe procedure and\nmechanics of adjudication and the enforcement of decrees or orders that the\nadjudicatory process finally provides\xe2\x80\x9d or \xe2\x80\x9cforward-looking orders . . . characteristically given teeth by equity\xe2\x80\x99s traditional coercive sanctions for contempt.\xe2\x80\x9d Dep\xe2\x80\x99t\nof Energy, 503 U.S. at 623. A whistleblower claim is not an order or remedy\ndesigned to abate water pollution; it is a freestanding claim designed to provide\nemployment rights and remedies independent of the substantive requirements of\nthe CWA. But even if there were a broader gloss of \xe2\x80\x9cprocess and sanctions\xe2\x80\x9d than\nthat indicated by the Supreme Court, it cannot be maintained that the phrase\nunequivocally includes whistleblower claims under section 1367. For these\n2\nIn Department of Energy, for example, the Supreme Court narrowly read the term \xe2\x80\x9csanction\xe2\x80\x9d in\nsection 1323 to include \xe2\x80\x9ccoercive\xe2\x80\x9d but not \xe2\x80\x9cpunitive\xe2\x80\x9d fines. 503 U.S. at 627. Although the Court\nconceded that the \xe2\x80\x9cmeaning of \xe2\x80\x98sanction\xe2\x80\x99 is spacious enough to cover not only what we have called\npunitive fines, but coercive ones as well,\xe2\x80\x9d it determined that the use of the term in section 1323 \xe2\x80\x9ccarries\nno necessary implication that a reference to punitive fines is intended.\xe2\x80\x9d Id. at 621. Because Congress\ndid not make express any intent to subject federal facilities to punitive fines, the Supreme Court\ndetermined that the \xe2\x80\x9crule of narrow construction therefore takes the waiver no further than the coercive\nvariety.\xe2\x80\x9d Id. at 627.\n\n177\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nreasons, we do not read section 1323 to waive the government\xe2\x80\x99s sovereign\nimmunity from suit under the CWA\xe2\x80\x99s whistleblower provision.\nIII.\nIn sum, it is our conclusion that the government\xe2\x80\x99s sovereign immunity has been\nwaived by the whistleblower provisions of the SWDA, 42 U.S.C. \xc2\xa7 6971, and the\nCAA, id. \xc2\xa7 7622, but not with respect to the whistleblower provision of the CWA,\n33 U.S.C. \xc2\xa7 1367.\nSTEVEN G. BRADBURY\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n178\n\n\x0c'


b'The Legislative Veto and\nCongressional Review of Agency Rules\n[The following testimony discusses the constitutional objections to legislative vetoes,\nw hich are grounded in principles o f presentation, bicameralism, and separation of\npowers. The testimony also describes and responds to several theories advanced in\nsupport o f the constitutionality o f legislative vetoes. Finally, it outlines the Reagan\nAdministration\xe2\x80\x99s policy objections to legislative vetoes in the broader context o f con\xc2\xad\ngressional review o f agency actions, and suggests alternative ways in which Congress\nmay provide meaningful legislative oversight o f executive action consistent with appli\xc2\xad\ncable constitutional principles.]\n\nOctober 7, 1981\nSTATEM ENT OF TH EO D ORE B. OLSON, ASSISTANT\nATTORNEY GENERAL, O FFIC E OF LEGA L COUNSEL,\nBEFORE THE SUBCOMMITTEE ON RULES OF THE\nCOM M ITTEE ON RULES, UNITED STATES HOUSE OF\nREPRESENTATIVES\nIntroduction\n\nThank you for affording me the opportunity to appear before you\ntoday to discuss congressional review of agency rules and, in particular,\nlegislative vetoes.\nI hasten to acknowledge that there may be little that I can add to this\nSubcommittee\xe2\x80\x99s wisdom in this field. This Subcommittee performed a\nvaluable service during the 96th Congress by holding extensive hear\xc2\xad\nings on this topic. I may not be able to expand upon the wealth of\nmaterial contained in the several volumes published on this subject by\nthis Subcommittee last Congress.\nI should note at the outset that I supplied testimony in this area last\nApril to the Subcommittee on Agency Administration of the Commit\xc2\xad\ntee on the Judiciary of the United States Senate. Rather than take your\ntime with a repetition of the views expressed on that occasion, I am\nfurnishing your Subcommittee with a copy of that testimony and ask\nthat it be included as part of the record of today\xe2\x80\x99s hearing.\nIn my remarks today, I will expand upon this Administration\xe2\x80\x99s consti\xc2\xad\ntutional objections to legislative vetoes and discuss briefly the broader\nsubject of congressional review of agency rules. Consideration of alter\xc2\xad\nnative methods of congressional review of agency actions, including\n294\n\n\x0crules, should not be deterred by concentration exclusively on the legis\xc2\xad\nlative veto. There are numerous techniques that may better serve the\nobjectives of restraining and preventing agency or administrative abuses\nwithout deviating from fundamental constitutional requirements con\xc2\xad\ncerning the procedures by which Congress may legislate and the princi\xc2\xad\nple of the separation of powers.\nAs a preliminary matter, I would like to address two points. First,\nmy testimony represents the position of the Administration concerning\nthe constitutionality of legislative veto provisions. As a matter of\npolicy, however, and as I will discuss in more detail later in my\ntestimony, the Administration is not opposed to all congressional over\xc2\xad\nsight devices. Without in any way diminishing its responsibility to\nchallenge the constitutionality of such matters in the courts, in the\nlegislative process the Administration may not necessarily oppose cer\xc2\xad\ntain legislative oversight measures relative to selected \xe2\x80\x9cindependent\xe2\x80\x9d\nagencies. The President might well decide to sign a bill containing such\na proposal; indeed, every modem President has signed similar laws in\nthe past. However, the Administration would be compelled to oppose\nany legislative veto provision that applied to Executive Branch agen\xc2\xad\ncies under the direct supervision and control of the President.\nSecond, I would like to address the notion, mistaken in my view, that\nlegislative vetoes present \xe2\x80\x9cliberal-conservative\xe2\x80\x9d issues. Characterization\nin this manner tends to confuse the debate, divert attention from the\nreal concerns, and utterly misconstrue the nature of the relevent legal\nand policy considerations.\nLegislative vetoes implicate two general areas of constitutional con\xc2\xad\ncern: (1) how laws are created and (2) how the power to execute laws\nis allocated under our Constitution. It is neither accurate nor illuminat\xc2\xad\ning to characterize concern for the principles that laws may only be\ncreated by the affirmative votes of both Houses of Congress and the\nconcurrence of the President or a congressional override of his veto as\n\xe2\x80\x9cliberal\xe2\x80\x9d or \xe2\x80\x9cconservative.\xe2\x80\x9d Moreover, the elaboration of constraints\nplaced by the principle of separation of powers on the Executive or\nLegislative Branches is not, and in rational terms cannot, be analyzed in\nterms of considerations that usually are viewed as \xe2\x80\x9cconservative\xe2\x80\x9d or\n\xe2\x80\x9cliberal.\xe2\x80\x9d Neither end of the political spectrum has an exclusive claim\nto the conviction that the executive power is vested by the Constitution\nin the President.\nThere is obviously a great deal more than partisanship involved in\nopposition to a technique by Presidents ranging from Roosevelt,\nTruman, Kennedy, and Johnson to Hoover, Eisenhower, Nixon, and\nFord. I do not believe that either \xe2\x80\x9cliberal\xe2\x80\x9d or \xe2\x80\x9cconservative\xe2\x80\x9d leanings\nprompted one of my predecessors, then Assistant Attorney General,\nnow Supreme Court Justice William Rehnquist, to refer to legislative\n295\n\n\x0cvetoes as \xe2\x80\x9cclearly . . . a violation of the separation of powers.\xe2\x80\x9d 1 The\nsame may be said of a 1977 American Enterprise Institute-sponsored\nstudy which stated that the legislative veto device \xe2\x80\x9cis, almost necessar\xc2\xad\nily, unconstitutional.\xe2\x80\x9d 2\nPartisan labeling of this issue simply does not promote analysis or\nunderstanding. The issue must be approached and addressed from the\ndual standpoints of how a particular legislative veto might rearrange\nthe manner in which laws are created\xe2\x80\x94either without participation by\nthe President or without both the President and some portion of the\nCongress\xe2\x80\x94and the extent to which a particular form of legislative veto\nmight revise the President\xe2\x80\x99s constitutional responsibility to enforce and\nadminister the laws that Congress enacts.\nWith this background in mind, I would like to turn to an analysis of\nthe constitutionality of legislative vetoes.\nI. The Legislative Veto\n\nBecause the term \xe2\x80\x9clegislative veto\xe2\x80\x9d has been used to describe a wide\nrange of congressional oversight techniques, it is analytically useful to\nprovide a definition of the term. It is a statutory provision under which\nCongress, or a unit of Congress, is purportedly authorized to adopt a\nresolution that will impose on the Executive Branch a specific require\xc2\xad\nment to take or refrain from taking an action. A key characteristic of\nall legislative veto provisions is that a resolution pursuant to such a\nprovision is not presented to the President for his approval or veto.\nSuch a provision contemplates a procedure under which one or both\nHouses of Congress or a committee of one House may act contrary to\nthe constitutional procedure for enacting laws to overrule, reverse,\nrevise, modify, suspend, prevent, or delay an action by the President or\nsome other part of the Executive Branch.\nThe two-House legislative veto consists of both Houses acting affirm\xc2\xad\natively by concurrent resolution (as in the case of motor vehicle safety\nstandards, 15 U.S.C. \xc2\xa7 1410(d) (1976)). A variation is the active involve\xc2\xad\nment by one House of Congress and the passive acquiescence or failure\nto disagree by the other House\xe2\x80\x94which is termed a \xe2\x80\x9cone-and-one-half\nHouse\xe2\x80\x9d legislative veto (as in S. 890, 97th Cong., 1st Sess. (1981), the\nproposed Regulatory Reduction and Congressional Control Act of\n1981). A legislative veto provision may provide for a veto by one\nHouse of Congress (as in the Federal Pay Comparability Act of 1970, 5\nU.S.C. \xc2\xa7 5305(c)(2) (1976), or in the Congressional Budget and Im\xc2\xad\npoundment Control Act o f 1974, 31 U.S.C. \xc2\xa7 1403(b) (1976)), or by one\ncommittee of one House of Congress (as in the case of the Federal\n1 Address by William H. Rehnquist, \xe2\x80\x9cCommittee Veto: Fifty Years o f Sparring Between the\nExecutive and Legislature\xe2\x80\x9d 9-10 (Aug. 12t 1969) (Speech before the Section on Administrative Law of\nthe Am erican Bar Association)\n2 J. Bolton, T he Legislative Veto: Unseparating the Powers 49 (1977).\n\n296\n\n\x0cLand Policy and Management Act of (1976), 43 U.S.C. \xc2\xa7 1714(e)\n(1976)). Legislative veto provisions are contained in statutes dealing\nwith rulemaking by Executive Branch departments and agencies (for\ninstance, rulemaking by the Department of Education, 20 U.S.C.\n\xc2\xa7 1232(d) (1976 & Supp. IV 1980)), as well as with rulemaking by\n\xe2\x80\x9cindependent\xe2\x80\x9d agencies and commissions (for instance, rulemaking by\nthe Federal Trade Commission, in view of \xc2\xa7 20 of the Federal Trade\nCommission Improvements Act of 1980, 15 U.S.C. \xc2\xa7 57a-l (Supp. IV\n1980)). They also are contained in legislation under which Executive\nBranch officials are called upon to execute the law in particular cases\xe2\x80\x94\nfor instance, when the Attorney General suspends the deportation of an\nalien, 8 U.S.C. \xc2\xa7 1254 (1976 & Supp. IV), when the President approves\nexecution of an agreement with another nation for atomic energy co\xc2\xad\noperation, 42 U.S.C. \xc2\xa7 2153(d) (Supp. IV 1980), or when the National\nRailroad Passenger Corporation seeks to alter Amtrak\xe2\x80\x99s basic route\nsystem, 45 U.S.C. \xc2\xa7 564(c) (1976 & Supp. IV 1980).\nA. Constitutional Defects\n\nFor purposes of constitutional analysis, all of the types of legislative\nvetoes that I have outlined share two substantial infirmities. First,\nbecause they do not provide for presentation to the President of a\nresolution purporting to bind the Executive Branch, they violate the\nconstitutionally mandated procedures for legislative action set forth in\nthe Presentation Clauses of Article I, \xc2\xa7 7, clauses 2 and 3. A related\ndefect of legislative veto provisions other than two-House vetoes is that\nthey violate the constitutional principle of bicameralism, under which\nall exercises of the legislative power having binding effect on the\nExecutive Branch must first involve passage of a resolution or bill by\nboth Houses of Congress\xe2\x80\x94not just one House or one committee\xe2\x80\x94\nbefore presentation to the President. This is also a requirement of\nArticle I, \xc2\xa7 7, clauses 2 and 3.\nSecond, since legislative vetoes would allow the Legislative Branch\n(or some unit of it) to substitute its judgment about how best to execute\nthe law for the discretion of the Executive Branch, legislative veto\nprovisions violate the underlying constitutional principle of the separa\xc2\xad\ntion of powers, under which the Legislature is to legislate and the\nExecutive is to execute the law.\nI will discuss these constitutional defects in turn.\n1. Article I, \xc2\xa7 7\n(a) The Presentation Clauses\nA resolution adopted pursuant to a legislative veto provision is neces\xc2\xad\nsarily an exercise of Congress\xe2\x80\x99 Article I power to take legislative\naction. Article I is the source of Congress\xe2\x80\x99 power to impose legal\nrequirements on the Executive Branch. As noted earlier, while some\n297\n\n\x0cforms of legislative vetoes apply to purely executive actions, Congress\nsimply may not execute the law. That power is given to the President.\nArticle II, \xc2\xa7 1, clause 1 states that executive power \xe2\x80\x9cshall be vested in\n[the] President.\xe2\x80\x9d With certain express exceptions (e.g., the Senate\xe2\x80\x99s\nadvice and consent regarding presidential appointments), when Con\xc2\xad\ngress acts, it is exercising its legislative powers.\nHowever, the Constitution did not leave it to the discretion of Con\xc2\xad\ngress to decide how it will exercise its legislative power. Specific proce\xc2\xad\ndures must be followed as prescribed in Article I, \xc2\xa7 7, clauses 2 and 3.\nArticle I, \xc2\xa7 7, clause 2 provides that every \xe2\x80\x9cbill\xe2\x80\x9d \xe2\x80\x9cbefore it become[s] a\nLaw\xe2\x80\x9d shall have been passed by both Houses of Congress and shall\nhave been presented to the President for his approval or veto. If the\nPresident disapproves of a \xe2\x80\x9cbill\xe2\x80\x9d and vetoes it, the bill may still become\nlaw if it is re-passed by a two-thirds vote of both Houses of Congress.\nThe Framers anticipated and closed the \xe2\x80\x9cloophole\xe2\x80\x9d that might have\nbeen thought to exist under clause 2 which might, standing alone, have\nbeen perceived to have allowed Congress to avoid the presentation\nrequirement by legislating in the form of resolutions rather than \xe2\x80\x9cbills.\xe2\x80\x9d\nThey added to the text o f the Constitution Article I, \xc2\xa7 7, clause 3,\nwhich provides in language that in many respects tracks clause 2, that\n\xe2\x80\x9c[e]very Order, Resolution, or Vote\xe2\x80\x9d requiring concurrent action\n(except resolutions of adjournment) 3 \xe2\x80\x9cshall be presented to the Presi\xc2\xad\ndent,\xe2\x80\x9d who may approve or veto the order, resolution, or vote. Like\nclause 2, clause 3 provides that after a proposal is vetoed, it may still\nbecome law if it is subsequently passed by a two-thirds vote of both\nHouses of Congress. Thus, clause 3, read in conjunction with clause 2,\nmakes quite plain that the Framers intended that all exercises of legisla\xc2\xad\ntive power having the substantive effects of legislation, irrespective of\nthe form of congressional action, must follow the specified legislative\nprocedure.4\nClauses 2 and 3 demonstrate that the Framers intended that all\nexercises of legislative power must follow the required process, which\nincludes passage by both Houses of Congress and then presentation to\n3 A rticle I, \xc2\xa7 5 , clause 4 prevents adjournment for more than 3 days without the consent of each\nHouse. Because such adjournments thus must be accomplished by concurrent action, a specific proviso\nm Article I, \xc2\xa7 7, clause 3 was necessary to prevent Congress from having to submit adjournment\nresolutions to the President. It would be inappropriate for Congress to have to present adjournment\nresolutions to the President for his approval or veto since the President is able to convene Congress in\nany event. See A rticle II, \xc2\xa7 3; S. Rep. N o. 1335, 54th Cong., 2d Sess. 6 (1897).\n4 T he history o f the adoption of clauses 2 and 3 confirms that conclusion. During the debate on the\npresidential veto provision, James M adison observed that\nif the negative o f the President was confined to bills, it would be evaded by acts under\nthe form and name o f resolutions, votes [etc. He] proposed that \xe2\x80\x9cor resolve\xe2\x80\x9d should be\nadded after "billy\' . . . with an exception as to votes of adjournment [etc.]. (Emphasis\nin original.)\n5 J. Elliot, D ebates on the Adoption o f the Federal Constitution, 431 (1876). Although Madison\'s\nproposal was initially rejected, it was renewed during the following day\'s session by Mr. Randolph,\nw ho put the proposal in a new form substantially as it now appears. It was then adopted by a 9 - 1\nvote. 2 M. Farrand, Records of the Federal Convention o f 1787, 304-08 (rev. ed. 1937).\n\n298\n\n\x0cthe President.5 As one commentator noted, "[i]t would be difficult to\nconceive of language and history which would more clearly require\nthat all concurrent action of the two Houses be subject to the Presi\xc2\xad\ndent\xe2\x80\x99s approval or veto.\xe2\x80\x9d 6 Legislative veto provisions fall short of\ncompliance with these requirements in that they do not permit the\nPresident to exercise his power to approve or veto a legislative veto\nresolution.\nThe presentation requirement is critical to our constitutional scheme\nof government. The separation of powers that distinguishes our Consti\xc2\xad\ntution is counter-weighted with a system of checks by each branch\nover the other two. The President\xe2\x80\x99s power to approve or veto actions\nof Congress is absolutely necessary to the preservation of the Presi\xc2\xad\ndency and to the system of checks and balances. See The Federalist,\nNos. 48 & 73 (J. Madison & A. Hamilton) (J. Cooke ed. 1961); 2 M.\nFarrand, Records of the Federal Convention of 1787, 299-300, 586-87\n(rev. ed. 1937). The Constitution\xe2\x80\x99s Framers feared that, absent a presi\xc2\xad\ndential veto, \xe2\x80\x9cthe legislative and executive powers might speedily come\nto be blended in the same hands.\xe2\x80\x9d The Federalist No. 73, at 494 (A.\nHamilton) (J. Cooke ed. 1961). The Framers also believed that the\nPresident\xe2\x80\x99s veto power could operate on behalf of the public interest to\nprotect against the effects of special interests in our public life. See The\nFederalist No. 73, supra. Without the veto power, as Alexander Hamil\xc2\xad\nton observed, the President \xe2\x80\x9cwould be absolutely unable to defend\nhimself against the depredations of the [Legislative Branch]. He might\ngradually be stripped of his authorities by successive resolutions or\nannihilated by a single vote.\xe2\x80\x9d 7\nLegislative veto provisions purport to authorize congressional resolu\xc2\xad\ntions that change the law without being subject to the presidential veto.\nThey circumvent one of the President\xe2\x80\x99s most important constitutional\npowers\xe2\x80\x94in a sense, his only defense. They are therefore not constitu\xc2\xad\ntionally permissible.\n5 Exercises o f legislative power having the substantive effect of legislation and subject to the\nprocedures of A rticle I, \xc2\xa7 7 are distinguishable from: (1) acts that \'may be taken by one or both Houses\no f Congress or their committees because they are merely m aid of Congress\xe2\x80\x99 legislative power and do\nnot purport to bind the Executive Branch, such as investigations, oversight hearings, or requests for\ninformation from the Executive Branch, and (2) acts by one or both Houses of Congress expressly\nauthorized by a constitutional provision that does not require the procedures in Article I, \xc2\xa7 7. The\nlatter class of actions includes the power of the House of Representatives to impeach (Article I, \xc2\xa7 2,\nclause 5); the Senate\'s power to try all impeachments (Article I, \xc2\xa7 3, clause 6) and to ratify treaties and\npass upon presidential nominations (Article II, \xc2\xa72, clause 2), the power of both Houses to pass a\nconcurrent resolution of adjournment that is not presented to the President (Article I, \xc2\xa7 7, clause 3),\nand the power of each House to establish rules governing its own proceedings (Article I, \xc2\xa7 5, clause\n2) See also Article V and Hollingsworth v Virginia, 3 U S. (3 Dali.) 378 (1798) (power o f both Houses\nby a two-thirds vote to propose constitutional amendments) In addition, of course, one or both\nHouses of Congress can employ a resolution as a means o f expressing an opinion of the House that\npurports to have no binding effect on the Executive Branch.\n6Ginnane, The Control o f Federal Administration by Congressional Resolutions and Committees, 66\nHarv L. Rev. 569, 573 (1953).\n7 The Federalist No. 73, at 494 (A. Hamilton) (J. Cooke ed. 1961).\n\n299\n\n\x0cThe argument that legislative veto provisions directed at agency rules\ndo not contemplate the exercise of legislative power does not survive a\nstraightforward analysis. Typically, Congress delegates rulemaking au\xc2\xad\nthority to an agency to implement policy objectives mandated by stat\xc2\xad\nute. Agency regulations adopted pursuant to such an authorization have\nthe force and effect of law if they are within the substantive delegation\nof the rulemaking power. See, e.g., Chrysler Corp. v. Brown, 441 U.S.\n281, 295-96 (1979). Such a statutory delegation, which requires the\nconcurrence of both Houses of Congress and presentation to the Presi\xc2\xad\ndent, may be withdrawn or modified only by following the same\nprocedure for legislation. In contrast, a legislative veto provision would\nerect a fundamentally different scheme. It would allow Congress\xe2\x80\x94\nwhether two Houses, one House, or otherwise\xe2\x80\x94to overrule or block a\nrule or decision by the Executive Branch that had been issued pursuant\nto statutory authorization. The effect would amount to repealing or\npartially modifying the prior statutory authorization without following\nthe prescribed process of presenting to the President resolutions having\na public, legally binding effect.8 Hence, the resolutions constitute legis\xc2\xad\nlative actions and, to be constitutional, they must be presented to the\nPresident for his concurrence or veto.\n(b) The Bicameralism Principle\nLegislative vetoes that contemplate action by Congress without\naffirmative approval by both Houses of Congress also violate the Con\xc2\xad\nstitution\xe2\x80\x99s bicameralism principle. This principle, like the presentation\nrequirement, is embodied in Article I, \xc2\xa7 7, clauses 2 and 3. These two\nclauses, which I have already discussed, require that any measure that\nhas the effect of an exercise of legislative power, whether in the form\nof a bill, resolution, or otherwise, must be affirmatively approved by both\nHouses o f Congress. 9 This conclusion is buttressed by the language of\nArticle I, \xc2\xa7 1, which vests \xe2\x80\x9c[a]ll legislative Powers herein granted\xe2\x80\x9d in\n\xe2\x80\x9ca Congress of the United States, which shall consist of a Senate and\nHouse of Representatives\xe2\x80\x9d (emphasis added).\n8 Because under most forms of legislative veto devices, such rules go into effect (subject to judicial\nreview) w ithout any further action by Congress, it cannot plausibly be argued that such rules\nconstitute mere "proposals\xe2\x80\x9d or "recommendations,\xe2\x80\x9d the veto o f which does not affect the legal \xe2\x80\x9cstatus\nquo.*\xe2\x80\x99\n9See S. Rep. No. 1335, 54th Cong., 2d Sess. 1-2, 6-8 (1897). Any suggestion that by assigning\n\xe2\x80\x9cveto\xe2\x80\x9d pow er to one House, rather than both, Congress may avoid the strictures of Article I, \xc2\xa7 7,\nclause 3 would appear to be a constitutional absurdity. See Watson, Congress Steps Out: A Look at\nCongressional Control o f the Executive, 63, Calif. L. Rev. 983, 1066 n.428 (1975) (it \xe2\x80\x9cverges on\nirrationality to maintain that action by concurrent resolution, whereby Congress is at least held in\ncheck by its own structure, is invalid because the veto clause so states, but that the invalidity o f a\nsimple resolution, wherein a single House acts without check, is more in doubt\xe2\x80\x9d). As another\ncom m entator put it: \xe2\x80\x9c It surely must be true that a power not permitted to both houses of Congress by\nthe Constitution cannot suddenly be \'made available by delegating it to one house.\xe2\x80\x9d J. Bolton, The\nLegislative Veto: Unseparating the Pow ers, 39 (1977).\n\n300\n\n\x0cThe bicameralism principle of Article I, \xc2\xa7 7 contemplates actual pas\xc2\xad\nsage of a resolution by both Houses\xe2\x80\x94not mere passive \xe2\x80\x9cacquiescence\xe2\x80\x9d\nby one of the two Houses with respect to the action of the other\nHouse. Legislative veto provisions that contravene this bicameralism\nprinciple are invalid for that reason alone.\n2. The Principle of the Separation of Powers\nThe additional constitutional defect of legislative veto provisions is\nthat, to the extent that they permit Congress to reserve to itself powers\nvested by the Constitution in the Executive and Judicial Branches, they\nviolate the principle of the separation of powers. This principle, one of\nthe two or three most fundamental premises that underlie our Constitu\xc2\xad\ntion, is directly reflected in the Constitution\xe2\x80\x99s structure, which estab\xc2\xad\nlishes the three branches of government in Articles I, II, and III, for\nthe purposes of legislating, executing the laws, and adjudicating, respec\xc2\xad\ntively. It also is reflected in several other provisions, including Article\nI, \xc2\xa7 7, clauses 2 and 3 (the Presentation Clauses); Article I, \xc2\xa7 6, clause 2\n(the Ineligibility and Incompatibility Clause); and Article II, \xc2\xa7 2, clause\n2 (the Appointments Clause). See generally Buckley v. Valeo, 424 U.S. 1,\n120-37 (1976).\nThe principle of the separation of powers is based on the premise\nthat if one branch of government could, on its own initiative, merge\nlegislative, executive, or judicial powers, it could easily become domi\xc2\xad\nnant and tyrannical. In such a circumstance, it would not be subject to\nthe checks on governmental power that the Framers considered a\nnecessary protection of freedom. See The Federalist Nos. 47 & 73 (J.\nMadison & A. Hamilton) (J. Cooke ed. 1961). The three branches of\ngovernment are not \xe2\x80\x9cwatertight compartments\xe2\x80\x9d acting in isolation of\neach other. Springer v. Government o f the Philippine Islands, 277 U.S.\n189, 211 (1928) (Holmes, J., dissenting); see Youngstown Sheet & Tube\nCo. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).\nRather, the Framers conceived of national government as involving the\ndynamic interaction between the three branches, with each \xe2\x80\x9cchecking\xe2\x80\x9d\nthe others and \xe2\x80\x9cbalancing\xe2\x80\x9d the powers conferred on the others with its\nown assertions of power. At the core of this concept is the precept that\nno single branch can usurp or arrogate to itself the essential functions\nof the other branches.\nThe Framers realized that \xe2\x80\x9c[i]n republican government, the legisla\xc2\xad\ntive authority, necessarily, predominates.\xe2\x80\x9d The Federalist No. 51, at 350\n(J. Madison) (J. Cooke ed. 1961). One of their major concerns was to\nensure that this most powerful branch of government did not become\ntoo powerful. \xe2\x80\x9c[I]t is against the enterprising ambition of this depart\xc2\xad\nment, that the people ought to indulge all their jealousy and exhaust all\ntheir precautions.\xe2\x80\x9d The Federalist No. 48, at 334 (J. Madison) (J. Cooke\ned. 1961). The Framers knew, as Blackstone had observed, that \xe2\x80\x9c[i]n all\n301\n\n\x0ctyrannical governments, the supreme magistracy, or the right both of\nm aking and enforcing the laws, is vested in one and the same man, or\none and the same body o f men.\xe2\x80\x9d 1 W. Blackstone, Commentaries 146\n(Cooley 4th ed., 1899) (emphasis in original). Madison observed that the\naccumulation of legislative, executive, and judicial power in one depart\xc2\xad\nment was \xe2\x80\x9cthe very definition of tyranny.\xe2\x80\x9d The Federalist No. 47, at\n324 (J. Madison) (J. Cooke ed. 1961). He cited Montesquieu for the\nproposition that \xe2\x80\x9c \xe2\x80\x98there can be no liberty where the legislative and\nexecutive powers are united in the same person, or body of magis\xc2\xad\ntrates.\xe2\x80\x99 \xe2\x80\x9d Id. at 325. Precisely in order to prevent such an accumulation\nof power, the Constitution was structured so that \xe2\x80\x9c[t]he magistrate in\nwhom the whole executive power resides cannot of himself make a law,\nthough he can put a negative on every law\xe2\x80\x9d and \xe2\x80\x9c[t]he entire legislature\n. . . can exercise no executive prerogative. . . .\xe2\x80\x9d Id. at 326 (emphasis\nadded).\nThe boundary between legislative and executive action is set in the\nfirst instance by Congress when it decides how much discretion to\ndelegate to the Executive Branch in implementing policies established\nby statute. Once such an authorization is enacted, however, the imple\xc2\xad\nmentation of the statutory policies is an executive function. Indeed, it is\nthe core of the Executive Branch\xe2\x80\x99s function. The statute sets a boundary\nbeyond which the Executive Branch may not go without intruding on\nthe legislative function. It similarly sets a boundary within which the\nExecutive must be allowed to function without congressional vetoes or\nrequirements except as adopted through the constitutional process of\nlegislation. If it were otherwise, Congress would be able to arrogate to\nitself the essence of the Executive\xe2\x80\x99s function. In that circumstance,\nthere would be no place for the Executive as a separate, co-equal\nbranch of government.\nThis principle is violated by legislative veto provisions to the extent\nthat they would give to the Houses of Congress or even committees of\nCongress the power to intervene, apart from the passage of legislation,\ndirectly in the process by which the Executive Branch executes the law\nin particular cases or by rulemaking. They would effectively transform\nexecutive decisions into tentative actions, rather like those of congres\xc2\xad\nsional committees, having no force and effect of their own but merely\nachieving legal status if Congress, for example, does not disapprove\nthem. In essence, a legislative veto of agency rules would set up the\nHouses of Congress as final administrative authorities over the whole\nrange of regulatory matters. Legislative vetoes of purely executive\ndecisions take the power from the Executive Branch and vest it in the\nCongress just as surely as if the President were simply an advisory\nofficial, suggesting proposed actions to Congress. This system might be\nwhat some may prefer, but it is not the system that our Constitution\ncreated.\n302\n\n\x0cIt must be conceded that there have been abuses of power by Execu\xc2\xad\ntive Branch agencies. Congress is properly disturbed when an agency\nexceeds the limits on its discretion or ignores the manifest will of the\nLegislature. But in our system, the Judiciary, not Congress, corrects\nsuch abuses absent the adoption of plenary legislation. As members of\nthis Subcommittee repeatedly have observed, it is your right and your\nresponsibility to set policies and to insist that the policies you estab\xc2\xad\nlished will be implemented. However, as Justice Brandeis noted, the\ndoctrine of the separation of powers was adopted \xe2\x80\x9c. . . not to promote\nefficiency but to preclude the exercise of arbitrary power . . . not to\navoid friction, but . . . to save the people from autocracy.\xe2\x80\x9d Myers v.\nUnited States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).\nB. Responses to Proponents o f Legislative Vetoes\n\nI would like to respond briefly to the major rejoinders by those who\nsupport legislative veto provisions and believe that they are not uncon\xc2\xad\nstitutional.\nFirst, although some argue otherwise, there is no meaningful consti\xc2\xad\ntutional distinction to be drawn between legislative vetoes of rulemak\xc2\xad\ning and of other types of agency action. Rulemaking is a form of\nexecutive action. See Buckley v. Valeo, 424 U.S. at 140-41. Like other\nsuch actions, it is lodged in the Executive Branch under Article II of\nthe Constitution. The distinction between rulemaking and other forms\nof executive action carries no weight with respect to compliance with\nthe constitutionally prescribed procedure for the exercise of legislative\npower. Article I, \xc2\xa7 7, clauses 2 and 3 specify the process to be followed\nby all legislative action having the force of law and not otherwise\ncovered by constitutional sections specifically providing for a different\nprocedure, regardless whether the action affects rulemaking, adjudica\xc2\xad\ntion, or other decisions by agencies.\nSecond, it has been argued that the adoption of a resolution disap\xc2\xad\nproving an agency rule pursuant to a legislative veto provision is not\nreally an exercise of legislative power and is not therefore subject to\nthe constitutional provisions that I have described, but rather is the\nexercise of a condition on agency discretion under a statute giving the\nagency rulemaking power in the first place. Viewed in that light,\noriginal grants of rulemaking discretion to agencies in organic statutes\nwould be changed by amendments containing legislative veto provi\xc2\xad\nsions to \xe2\x80\x9cconditional delegations.\xe2\x80\x9d The analogy is to grants of statutory\npower made contingent upon findings of fact by an Executive Branch\nofficer, or upon the favorable vote of persons who will be affected by\nproposed governmental action. See H.R. Rep. No. 120, 76th Cong., 1st\nSess. 6 (1939). Such an argument is, in the first instance, semantic in\nthat it presupposes that affixing another label to the final act of the\nlegislative body which determines what the law will or will not be can\n303\n\n\x0crender it not an exercise o f legislative power. That supposition simply\nexalts the label over the reality of what is occurring. Moreover, the\nfatal analytical deficiency in this argument is that it assumes that the\ndelegation of power to a person or entity outside the Legislative\nBranch is constitutionally equivalent to the delegation of power to the\nHouses of Congress, which are within the Legislative Branch and thus\nsubject to the strictures o f Article I. That assumption is insupportable.\nThe Framers of our Constitution did not want Congress to have the\npower that they gave to the Executive. Whenever power is vested\noutside Congress, it is not concentrated within it. The undue concentra\xc2\xad\ntion of power in Congress is what the separation of powers is specifi\xc2\xad\ncally designed to avoid. Hence, a provision allowing persons or bodies\noutside Congress to determine whether conditions on the exercise of\ndelegated authority have been met does not present the same constitu\xc2\xad\ntional separation of power questions that vesting such power within\nCongress raises.\nThe other deficiency in the \xe2\x80\x9cconditional delegation\xe2\x80\x9d argument is that\nif carried to its obvious and natural extreme, it would allow a single\nmember of Congress to be authorized to veto any or every executive\naction\xe2\x80\x94an obvious absurdity.\nThird, it is no response to the constitutional objections to legislative\nvetoes to assert that they are authorized by the Necessary and Proper\nClause, Article I, \xc2\xa7 8, clause 18, which grants Congress power to\n\xe2\x80\x9cmake all Laws which shall be necessary and proper for carrying into\nExecution the foregoing [enumerated] Powers, and all other Powers\nvested by this Constitution in the Government of the United States, or\nin any Department or Officer thereof.\xe2\x80\x9d The exercise of Article I power\nby Congress pursuant to the Necessary and Proper Clause is limited by\nother express provisions o f the Constitution, including Article I, \xc2\xa7 7,\nclauses 2 and 3 and by the principle of the separation of powers. See\nBuckley v. Valeo, 424 U.S. at 135. As the United States Court of\nAppeals for the Ninth Circuit noted in Chadha v. INS, 634 F.2d 408,\n433 (1980), petition for cert, pending No. 80-1832 (filed May 1, 1981),\nthe Necessary and Proper Clause \xe2\x80\x9cauthorizes Congress to \xe2\x80\x98make all\nlaws,\xe2\x80\x99 not to exercise power in any way it deems convenient. That a\npower is clearly committed to Congress does not sustain an unconstitu\xc2\xad\ntional form in the exercise of the power.\xe2\x80\x9d\nC. Policy Objections\nIn addition to their serious constitutional defects, legislative vetoes\nare objectionable for a variety of other reasons. First, they do nothing\nto cure the root causes o f regulatory excesses, duplication, or ineffi\xc2\xad\nciency, namely, broad, relatively standardless delegations to agencies.\nIn fact, they have a natural tendency to encourage broader statutory\ndelegations, for they provide the superficial reassurance that Congress\n304\n\n\x0cmay have a role in implementing a statute after it is passed and thus\nneed not carefully define an agency\xe2\x80\x99s powers and limits before the law\nis enacted. The result of overbroad delegation is excessive agency\ndiscretion that could not possibly be monitored carefully by Congress.\nLegislative vetoes also have been said measurably to increase the\namount of behind-the-scenes negotiation between agencies and commit\xc2\xad\ntee staffs and single members of Congress to the detriment of a public,\nfully accountable administrative process.10 In addition, many veto pro\xc2\xad\nvisions foster delay, for even though only few rules or actions would\nlikely be vetoed, all matters referred to Congress would be subject to\ndeferral and uncertainty.\nTo the extent that legislative vetoes may be passed by less than two\nHouses of Congress, they undermine the accountability of all members\nof Congress for actions of Congress. They thus encourage the tendency\nof decentralization of power within Congress to the detriment of the\nbody as a whole. Furthermore, to the extent that Congress as a body\ndoes get seriously involved in reviewing rules or other executive ac\xc2\xad\ntions subject to legislative vetoes, Congress predictably will get hope\xc2\xad\nlessly mired in details. As Jefferson wrote:\nNothing is so embarrassing nor so mischievous, in a great\nassembly, as the details of execution. The smallest trifle of\nthat kind occupies as long as the most important act of\nlegislation, and takes place of everything else. Let any\nman recollect, or look over, the files of Congress; he will\nobserve the most important propositions hanging over,\nfrom week to week, and month to month, till the occa\xc2\xad\nsions have passed them, and the things never done. I have\never viewed the executive details as the greatest cause of\nevil to us, because they in fact place us as if we had no\nfederal head, by diverting the attention of that head from\ngreat to small subjects . . . .n\nIn short, legislative vetoes do not solve the problems of administra\xc2\xad\ntive excess that they are intended to correct, and they have several\npolicy infirmities of their own.\nII. Congressional Review of Agency Action in General\n\nAlthough the Administration believes that legislative veto provisions\nare unconstitutional and is taking that position in pending litigation,12\n10See Bruff and Gellhom , Congressional Control o f Administrative Regulation: A Study o f Legislative\nVetoes. 90 Harv. L. Rev. 1369, 1409-14 (1977).\n116 T. Jefferson, T he Writings of Thomas Jefferson 228 (A. Bergh ed. 1903) (letter to E.\nCarnngton, Aug. 4, 1787).\n12 Among the pending cases are Immigration and Naturalization Service v. Chadha, petition for cert,\npending No. 80-1832 (filed May 1, 1981), in which the Department o f Justice has filed a Jurisdictional\nStatement in the Supreme Court on behalf o f the Immigration and Naturalization Service; Consumer\nC ontinued\n\n305\n\n\x0cwe would stress that there are many full constitutional legislative and\noversight mechanisms that Congress can use to achieve the goals of\nmore effective review o f executive action, including rules. In organic\nstatutes, Congress can\xe2\x80\x94and undoubtedly should\xe2\x80\x94place specific and\nprecise limits on the authority of agencies to issue rules. Moreover,\nCongress always can override unwise, inappropriate, burdensome, or\nexcessive agency rules with legislation. To the extent that procedural\nhurdles within Congress impeding the enactment of legislation have\nfostered legislative veto proposals, Congress can adopt legislation assur\xc2\xad\ning early floor consideration of bills overturning agency rules.\nCongress also can authorize an agency to act for a limited period of\ntime, thereby forcing the agency to return to Congress for authority to\ncontinue to act when its authorization expires. Congress can hold over\xc2\xad\nsight hearings, at which explanations for agency rules that members of\nCongress may question can be sought and made part of a public record.\nCongress can adopt resolutions expressing its views that, while not\nlegally binding upon the Executive Branch unless adopted pursuant to\nthe plenary legislative process, can guide an agency in its implementa\xc2\xad\ntion of the law. Further, Congress has authority to appropriate the\nmoney with which agencies execute the law. In appropriations statutes,\nCongress can provide for limitations on the expenditure of funds for\ncertain purposes consistent with other applicable legal requirements.\nAnother alternative is one that I understand originated in this Sub\xc2\xad\ncommittee last year. It is the proposal to create a Select Committee on\nRegulatory Affairs that would be given broad jurisdiction over the\nrulemaking activities of the federal government. By virtue of its broad\njurisdiction, such a committee could investigate issues of regulatory\nEnergy Council o f America v Federal Energy Regulatory Commission, Nos. 80-2184, 80-2312, argued on\nSeptember 10, 1981, before a panel o f the United States Court o f Appeals for the District of Columbia\nCircuit; and Pacific Legal Foundation v. Watt, No. 81-141, and Mountain States Legal Foundation v.\nWatt, No. 81-168, two cases consolidated in the United States District Court for the District of\nMontana.\nT he only federal court yet to reach the issue o f the constitutionality of \xe2\x80\x9clegislative veto\xe2\x80\x9d devices\nother than the United States Court o f Appeals for the Ninth Circuit in Chadha v. INS, 634 F.2d 408\n(1980), is the United States Court o f Claims in Atkins v. United States. 556 F.2d 1028 (Ct. Cl. 1977),\ncert, denied 434 U.S. 1009 (1978). T h e 4-3 holding o f the Court of Claims in that case was narrowly\nrestricted to the context o f the Federal Salary Act o f 1967, 2 U.S.C. \xc2\xa7 359(1XB)(1970). See 556 F.2d at\n1059. T hree o f the seven judges forcefully disagreed with the per curiam opinion on the legislative\nveto device under consideration there. Cf. Buckley v. Valeo, 424 U.S. 1, 140 n.176 (1976) (declining to\naddress the question of the validity o f a one-House \xe2\x80\x9clegislative veto\xe2\x80\x9d provision in the Federal Election\nCampaign A ct o f 1971, 2 U.S.C. \xc2\xa7 438(c) (Supp. IV 1980), an issue not briefed by the United States);\n424 U.S. at 257 (White, J., concurring m part and dissenting in part) (concluding that the \xe2\x80\x9clegislative\nveto,\xe2\x80\x9d at least as applied to so-called \xe2\x80\x9cindependent agencies,\xe2\x80\x9d is not a usurpation o f the President\xe2\x80\x99s\nconstitutional power); McCorkle v. United States, 559 F.2d 1258 (4th Cir. 1977), cert, denied 434 U.S.\n1011 (1978) (declining to reach the issue of the constitutionality o f the same provision of the Federal\nSalary A ct that was at issue in Atkins v. United States, supra, on the ground that the provision was not\n\xe2\x80\x9cseverable\xe2\x80\x9d from the rest of the statute and, therefore, even if the statute were held unconstitutional,\nplaintiff would have no right to additional pay); Clark v. Valeo, 559 F.2d 642 (D.C. Cir.) (en banc),\na f f d mem. sub nom. Clark v. Kimmitt, 431 U.S. 950 (1977) (declining to consider the constitutionality\no f the \xe2\x80\x9clegislative veto\xe2\x80\x9d provision o f the Federal Election Campaign Act on the ground that the issue\nwas not ripe for adjudication), 559 F.2d at 678 (MacKinnon, J., dissenting) (concluding that the\nlegislative veto provision is unconstitutional).\n\n306\n\n\x0coverlap and duplication that presently prove difficult for standing com\xc2\xad\nmittees to address.\nThe common themes underlying these several alternative methods by\nwhich Congress actively can review agency rules is that they do not\ndisplace the President and the Executive Branch in the execution of the\nlaw. They respect the principle of the separation of powers, as well as\nthe presentation and bicameralism principles that apply to exercises of\nlegislative power.\nThere should be no doubt regarding this Administration\xe2\x80\x99s concern\nabout excessive and abusive agency actions. Indeed, the Administration\nhas taken numerous steps to assure that agency rules are carefully\nconsidered and limited in the manner provided by Congress. If further\noversight is necessary, we would support the use of joint resolutions\nproviding for consideration by both Houses of Congress, presentation\nto the President, and a congressional override of any presidential veto\nin the rare case in which it might occur. Such a method would include\nin the process all of the major elected officials in the national govern\xc2\xad\nment. As you know, the President shares your concern that the costs\nand burdens of government must be diminished. Any mutual attempts\nto achieve this objective that do not strip the President of his constitu\xc2\xad\ntional power would be welcomed.\nConclusion\n\nWe respect the views of those members of Congress who disagree\nwith us on the constitutional questions and we join in their desire for a\nreasonably prompt resolution of this dispute in the courts. In the mean\xc2\xad\ntime, we urge restraint against proposals that tend to rearrange the\npowers which our forefathers so carefully distributed among the three\nbranches.\nThe debate over legislative vetoes and alternative ways for Congress\nto oversee agency rules must be viewed in terms of the most basic\nstructural underpinnings of our system of government\xe2\x80\x94checks by the\nlegislature upon itself; the principle of bicameralism; checks by the\nPresident on the Congress in the form of presentment of legislation to\nhim for veto or approval; and the separation of powers between Con\xc2\xad\ngress and the Executive Branch. The temptation to vest greater power\nin Congress and to exercise greater control over the Executive Branch\nshould not provide the excuse for a major structural rearrangement in\nviolation of these principles.\nEach branch seems inclined to rectify perceived abuses in the other\ntwo by expediencies that the Constitution will not tolerate. We must be\never mindful that the genius that created the precious system which has\npreserved our freedom for nearly 200 years expressly eschewed reme\xc2\xad\ndies for temporary problems that pave a path for excessive domination\nby one branch of government.\n307\n\n\x0c'