Warren E. Burger: We'll hear arguments next in Immigration and Naturalization Service against Chadha, Mr. Gressman, you may proceed when you are ready.
Eugene Gressman: Chief Justice Burger, and may it please the Court, this is something of an historic occasion. Never before have the two Houses of Congress been forced to intervene as litigating parties before this Court. They have been forced to intervene to protest another episode in the... what this Court once described as the tug of war between the executive and the legislative branches of government. The House of Representatives, which I represent here, views this attack upon the legislative powers of Congress as directed primarily at the historic, necessary, and proper power of the Congress to enact legislation which it deems appropriate and necessary in execution of its vested legislative powers. I suggest that that is the proper place for starting the constitutional analysis of the validity of Section 244(c)(2) of the Immigration and Nationality Act of 1952. But before we get to that analysis, we must understand that, as I stated before, while the assault here comes upon that particular provision of the Immigration and Nationality Act, this is but one episode in the far-flung, orchestrated war declared by the executive branch against the device that is popularly and often inaccurately known as the legislative veto. In case after case where private parties seek to raise this constitutional attack upon the so-called legislative veto, the executive branch immediately drops all opposition and concedes that the veto provision is indeed unconstitutional. That has forced the two Houses of Congress to become litigating parties, which is not their basic function, but we have been forced by the fact that there is no one in the executive department that sees fit to defend or state the case for the constitutionality of these provisions. Now, that very fact, as in this case, gives rise to a tremendous number of severe problems, threshold problems about whether or not that is a case or controversy, or whether there are other reasons why such a momentous constitutional question should be addressed under the circumstances in which this case arises. We have in this case alone critical problems about the jurisdiction of the lower court to consider this constitutional question. We have problems of justiciability. We have problems about the standing of Mr. Chadha to institute this kind of constitutional challenge based not on his personal claims or rights but upon the executive's claims with respect to the legislative veto. We have a severe problem with respect to the lack of any adverse parties in the court below, and there are other prudential considerations, to say nothing of a critical severability problem which may preclude resolving the constitutional question, a matter which my colleague, the Senate legal counsel, will address. To take but one brief look at the technical appeal problem that is before this Court in Number 80-1832, where the government has sought to take an appeal to this Court under Section 1252 as a non-aggrieved party. I will not add anything to what has been said in our written briefs on this subject, except to call attention to the Court's procuring of a ruling one month ago, on January 11th, in Donovan against Richmond County Association, which I suggest makes even more severe the government's problem in trying to take an appeal to this Court under Section 1252. But to get back to the other issues in this case, I suggest that the key to understanding all these threshold problems as well as the basic constitutional question, lies in an appreciation of the actual meaning and scope of the statutory scheme issue, to wit, Section 244 of the Immigration and Nationality Act. Now, the executive and Mr. Chadha would begin and end their constitutional analysis by referring to the two constitutional objections that are repeated over and over again in all this litigation respecting the so-called legislative veto. That is an objection based upon the presentment clause, Article I, Section 7 of the Constitution, which typifies the bicameral method of legislating, subject to presentment to the President for his approval or veto. The other claim, the only other constitutional objection raised, again by Mr. Chadha as well as by the executive, is that this provision somehow violates the general separation of powers doctrine, not that it violates any function vested expressly in the President or the judiciary, but that it violates simply Baron de Montesquieu's original theory of separation of powers. It seems to me, however, that that is turning constitutional analysis upside down. We must begin analysis where this Court has always begun to evaluate Congressional legislation, and that is, let's see what Congress was actually doing, what power was it trying to execute when it adopted this provision in the Immigration and Nationality Act. Basically, I rely upon the analysis that was established by Chief Justice Marshall in McCulloch versus Maryland in 1819, and has been followed literally hundreds of times by this Court in evaluating the constitutionality of Congressional legislation, where Congress is trying to exercise some of its given power. It is not difficult to state that standard that Marshall laid down. In the first part, he says, let the end be legitimate. Let it be within the constitutional scope of Congressional powers. Secondly, he said that all means which Congress considers appropriate to a legitimate end are constitutional, and this Court has said many times that that simply means that there must be a rational connection between the means and the end. And thirdly, the McCulloch opinion says that the means selected by the Congress in exercise of its vast discretion under this necessary and proper clause must be consistent with the letter and spirit of the Constitution. Now, he also added another part to that last step. In order for any other provision in the Constitution to inhibit or restrict the means selected by the Congress, he says, at Page 408 of the McCulloch opinion, that those other words of the Constitution must imperiously require a restriction upon the means.
Speaker: Well, Mr. Gressman, do you think that cases like United States against Myers involving the firing of a postmaster, and Buckley against Valeo, involving the method of appointment to the Federal Election Commission, violate McCulloch against Maryland?
Eugene Gressman: Not at all, Your Honor. It seems to me that the appointments clause in Article II, I think it is, imperiously inhibits any means selected by Congress whereby Congress is trying to appoint an officer of the United States. So it is entirely consistent. I am not objecting to the use of the separation of powers doctrine. I am merely saying that somehow, if that is the objection, the doctrine must be reduced to a specific imperious restriction, as it is when you have some vested Presidential power that is specified in Article II, where Congress seeks to invade or utilize. I think that is a clear imperious restriction upon Congressional power.
Speaker: Does United States against Lovett have something to do with this, too?
Eugene Gressman: No, I don't believe the Lovett case had anything to do with the power of Congress vis-a-vis the executive.
Speaker: Well, wasn't that an effort, at least so Justice Black's opinion reached a conclusion that Congress was undertaking to terminate the employment of an executive branch officer without any due process.
Eugene Gressman: Yes, without any due process, and it was considered to be a bill of attainder, which was a right adhering to the private parties in those cases. That was... the Congress was not there attempting to execute some kind of power that was vested in the President. It was simply that Congress violated the bill of attainder clause. Now, I say that that is another good example of a provision in the Constitution which might imperiously restrict the means selected in a given case.
Speaker: I take it you think the bill of attainder is the only basis on which that result is supportable in the Lovett case.
Eugene Gressman: Well, as I read the majority opinion and the briefs in that case, that was the main and the only issue that became decisive in this Court's opinion, and it was not conceived of as an executive-legislative conflict. Now, to quickly address the McCulloch analysis to the provisions in Section 244, I think it is without any doubt that the end being sought in this legislation was within the legitimate powers of the Congress under the Constitution. The Immigration and Nationality Act and Section 244 thereof are directed toward the Congressional control over aliens and deportation, and as this Court said as late as 1977 in Fiallo versus Bell, in 430 U. S., this Court has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens. Our cases have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the government's political departments, largely immune from judicial control. So, the end sought here, that is, the control over aliens, is certainly a legitimate end. Secondly, let us look at the means selected by the Congress to achieve that kind of control or end. Was it appropriate? Well, we have attempted time and again in our briefs to outline the meaning and the significance of Section 244. Any way you look at it, it is by intention and by language a procedure for petitioning the Congress of the United States to be excused from compliance with a lawful deportation order. It replaces the private bill technique for attaining identical kind of relief through private bill legislation. Section 244 also delegates to the Attorney General certain limited functions in the consideration of those petitions or applications.
Speaker: Mr. Gressman, may I ask you, you rely on the power to pass private naturalization bills, I understand. Are those bills consistent with the constitutional requirement that naturalization bills must be uniform?
Eugene Gressman: Well, I am not sure that those are the types of legislation, private legislation I am referring to. These are simply ones that permit by private bill an alien to stay within this country, not to be naturalized.
Speaker: Well, isn't that... Oh, I see.
Eugene Gressman: It is a different operation, but--
Speaker: It has nothing to do, you suggest, with naturalization?
Eugene Gressman: --No, not the kind of private bill, nor does Section 244 have anything to do with naturalization. It merely is a--
Speaker: Even if it doesn't, is a naturalization bill a little broader than just--
Eugene Gressman: --I would think it is broader than to--
Speaker: --I mean, does it include deportation bills, too?
Eugene Gressman: --Well, they are different, is all I can say. I think they are conceptually different.
Speaker: In any event, what you are saying is... of course, I guess the question isn't here... that the uniformity provision in any event does not apply.
Eugene Gressman: No. Well, as I said, the Attorney General is given a limited function, to wit, he is given a certiorari-like weeding-out process, a screening process whereby he weeds out the ineligible and the unworthy applicants who seek this relief, and he is authorized to give temporary stays or suspensions of deportation to those who he considers worthy of relief. Then, he reports those to Congress for a final consideration, and only after Congress considers this under 244(c)(2) can the alien be excused from deportation.
Speaker: Well, now, you couldn't do that in the case of the judicial branch, could you?
Eugene Gressman: No.
Speaker: Say that a court is given kind of certiorari-like jurisdiction to make recommendations to Congress.
Eugene Gressman: Absolutely not, Your Honor, and I think there is a vast difference in the interrelationships between Article I and Article II as--
Speaker: Does that suggest, Mr. Gressman, that... I gather the action of the Attorney General, suppose he refuses to grant the suspension. That is judicial review, isn't it?
Eugene Gressman: --That is judicial review.
Speaker: And suppose that it is reviewed, and the court says, no, the Attorney General is wrong, he should have granted the suspension.
Eugene Gressman: I don't think--
Speaker: May Congress then step in under the statute and--
Eugene Gressman: --No. I don't think that... I don't think the court has ever said that you must grant a deportation. But you raise a very interesting point, Justice Brennan, and that is that if the Attorney General grants this temporary relief, that is not reviewable by the courts. There is no aggrieved party in that situation.
Speaker: --No, that is not the case I put to you.
Eugene Gressman: I know.
Speaker: It is where he refuses it.
Eugene Gressman: That's right.
Speaker: And the court says he should have granted it.
Eugene Gressman: Well, I would think that--
Speaker: Then my interest was whether or not the Congress then could step in and pass a suspension.
Eugene Gressman: --No, I don't think that that is likely to happen, and I don't know of any instance where it ever followed through. I don't think Congress would overturn, seek to overturn a judicial determination of that nature.
Speaker: Well, I gather what was said in Waterman rather indicates that Congress could not, doesn't it?
Eugene Gressman: I would think that might be the case, yes. But the point finally is that neither the presentation... the presentment clause nor the general separation of powers doctrine can be said to be an imperious restriction upon the choice of means selected by Congress to execute its power over the naturalization or deportation of aliens. The clause, in other words, as was... the Section 244, as this case... as this Court said in Jay versus Boyd, Section 244 really calls upon the Congress to commit an act of grace. It is just like a pardon given by the President. Congress is authorized itself in exercise of its necessary and proper clause to pardon, to excuse a lawful deportation requirement.
Speaker: Well, except, Mr. Gressman, this was an action of the Immigration Subcommittee, wasn't it? And what the Immigration Subcommittee said was, it was the feeling of the Committee that Chadha did not meet the statutory requirements, particularly as it relates to hardships. Now, is that a legislative act?
Eugene Gressman: It is a legislative act of grace. That is what Jay versus Boyd said.
Speaker: Well, what it said was that Chadha did not meet statutory requirements.
Eugene Gressman: That is right.
Speaker: Isn't that an adjudicatory act?
Eugene Gressman: Not at all, Your Honor, any more than when a prisoner seeks to get a pardon. As Jay versus Boyd says--
Speaker: I know, but what is involved, I think, is, did Congress perform a legislative act in that determination? Congress can't do other than legislative action, can it?
Eugene Gressman: --If you... if you describe a legislative act as including a legislative act of grace, well and good, and I think there is a world of difference.
Speaker: Where does Congress get the right to pardon?
Eugene Gressman: That is an analogy drawn by this Court in Jay versus Boyd, an analogy to what Congress is--
Speaker: That gave Congress the right to pardon?
Eugene Gressman: --To pardon.
Speaker: Yes, sir.
Eugene Gressman: We have nothing--
Speaker: That is your word. You said pardon.
Eugene Gressman: --That is right, by analogy to the pardon power of the President, but here, Congress has established--
Speaker: Well, all of us can point to the pardon power of the President.
Eugene Gressman: --Right.
Speaker: In haec verba. But you can't even get close to verba, let alone in haec, as to the Congress.
Eugene Gressman: Well--
Speaker: Am I right?
Eugene Gressman: --All I can do is to repeat the words of this Court in the Jay case, that an applicant for suspension, like Mr. Chadha, comes to the INS and to Congress not as a matter of right but as a matter of grace. It is like probation or suspension of criminal sentence. It comes as an act of grace and cannot be demanded as a right, and they footnote the analogy to the Presidential pardon power. Well, I see my time has expired, but I will only conclude by saying that as we have developed at some length in the brief, the separation of powers doctrine, the general separation doctrine simply does not imperiously prohibit this kind of action, this kind of act of grace by the Congress. Now, you will note in that connection that the opposing parties are totally confused as to what this act is. When they talk about the presentment clause, they talk about it as if it were a legislative act.
Warren E. Burger: Mr. Gressman, you are now cutting into your colleague's time.
Eugene Gressman: But I would only... I would conclude by repeating or emphasizing what we have said in our briefs concerning the total lack of adverseness of parties and the lack of standing of Mr. Chadha to raise the executive's powers vis-a-vis the Congress in this situation.
Warren E. Burger: Mr. Davidson.
Michael Davidson: Chief Justice Burger, and may it please the Court, between 1934 and 1940, the Congress and the executive were at an impasse over the question of relief from deportation. The impasse had resulted from the inability of those two branches to reconcile the desire of the executive for discretionary authority to waive mandatory deportation laws, and the prevalent belief in the Congress that to grant such discretion would be to advocate its responsibility over the Immigration Act. In 1940, the Congress and the executive resolved their stalemate by agreeing to a compromise, since amended into Section 244, by which they have since cooperated in granting permanent residence to thousands of deportable aliens. The executive now asserts that there was a fundamental constitutional defect in that accommodation, and that this Court should now revise the legislative bargain to give to the executive the very power which the Congress had refused to grant to it.
Speaker: When the Congress took the kind of action that you just described, was that after a proceeding in the Immigration Service or before?
Michael Davidson: All actions by the Congress under this statute are after proceedings before the Immigration Service, where the Immigration Service makes two judgments by delegation from the Attorney General.
Speaker: You are speaking now of the private bill process.
Michael Davidson: No, I am talking only about this--
Speaker: No, but I am talking about what was actually taking place in the past, not--
Michael Davidson: --Prior to 1940, and only several years prior to that, the Congress considered these matters as private bills. Up to 1937, it had in fact insisted on mandatory adherence to mandatory deportation laws. One of the ironies of this case is that the prescription which is given to the Congress, that it should be more exact in its legislative classifications, was indeed the very illness of the times. The Congress was exact. The laws were precise, and there was no relief from them. The executive came to the Congress and said, in the interest of humanity, there should be a procedure for relief. But year after year, the Congress refused to grant that until they fashioned this accommodation whereby both branches would participate in that decision. Two principal questions are presented by the executive's claim. The first is whether the Court may sever and refashion the statute to grant to the executive the precise statutory power which the Congress had refused to delegate to that branch. Second is whether the doctrine of separation of powers requires the Court to deny to the two political branches that means of compromise and accommodation. Severability is a statutory question, but in this case it is also an important question of separation of powers. The court of appeals concluded that the introductory subsection to 244 could be severed from the remainder of the section, and stand as an independent grant of final authority to the executive, but Respondents do not defend that precise holding in their briefs. The central feature of the compromise of 1940 was participation by the Congress in the granting of permanent residence to deportable aliens. The text of the statute confirms this, because the Attorney General may only cancel a deportation if neither house disapproves. This is why Respondents urge this Court to ask a very different question than has ever been put to the Court on the question of severability, and that is, what would Congress have done if it had known that this Court years later would find unconstitutional a procedure chosen by Congress. The degree to which the Respondents' test would ask the Court to become involved in the legislative process is illustrated by the history of Section 244. The Congress chose and adhered to the basic design of this section in the course of rejecting a variety of alternatives. Even if the Court thought that it was within its power to make a second choice for the Congress, it would be difficult to know which second choice to make. Among the diverse second choices rejected by the Congress have been the following. In 1937, Representative Diaz proposed that the executive be granted this final authority, but for only a limited number of aliens, for a limited number of years. The second possibility was the House bill in 1939, which might very well have become the law but for the Senate compromise, and that was to give the executive the power to suspend deportations temporarily, and ask the Congress for legislation to cancel those deportations. A third was President Eisenhower's proposals in 1956 and 1957 to give to the Attorney General this final authority but for only certain classes of aliens, such as clergymen and veterans. And a fourth was what the Congress was fully prepared to do prior to the 1940 Act, and that was to do nothing except expect compliance with mandatory deportation laws. There is no judicial standing by which the Court may now determine what alternative choice to make for the Congress.
Speaker: --What is your proposal as to the test we should apply for severability?
Michael Davidson: The Court must ask two questions. One is, what is left? Is that fully operative as law? The court of appeals thought that it could take the introductory subsection of 244 and make it into the entire section as a full and final grant to the executive, but the problem with that, which we think is recognized in the briefs in this case, is that that section begins and is hereinafter proscribed and incorporates all the procedures which follow. This is a tightly interwoven section which either must be accepted or rejected as a whole. Without being able to make any individual part a complete statute by itself, there is nothing for the Court to sever, which then brings the Court--
Speaker: What does the Court do with the severability clause that Congress itself enacted, then?
Michael Davidson: --In the 1952 Act, there is a severability clause which applies to the vastness of the Immigration and Nationality Act, and quite certainly the diverse provisions of that Act, which include quotas for immigration, rules for naturalization, procedures of all kinds, many of those provisions are severable from each other, but here, in this one section, where the statutory procedures refer quite explicitly, and in which there is no way to grant the final relief sought here unless Section 244(c)(2) is in its entirety an effective provision, then the Court may not do what only the Congress can do, which is to make the second choice, what powers should exist if these powers are invalid. I think this brings the Court to the second question, and it is one that is briefed by both sides. If it is impossible to sever this statute without being unfaithful to the intent of the Congress, that the judgment of the Attorney General is only a preliminary judgment, and that legal effect may only be given with the approval of the Congress, then the Court must decide, is there any basis upon which it can give relief to the alien respondent. If the statute is inseverable, then the entire system for discretionary relief falls, and the issue goes back to the Congress to decide whether it should be replaced at all, but if that is the case, then there is no benefit that the particular individual who brought this proceeding has to gain from the Court's judgment. The Respondents argue nonetheless that the Court should proceed to decide the issue, that the Court has never decided a case in which there is no benefit to be conferred either immediately or potentially on the individual who invokes the Court's jurisdiction.
Speaker: But you don't get to severability until you first decide the constitutional question, do you?
Michael Davidson: This Court's ordinary approach to statutory and constitutional matters is to determine statutory issues first, in order--
Speaker: But that hasn't been true in cases where we have been dealing with the constitutional argument that a part of a statute is invalid. There is just no need to pass on the issue of severability until you find that part of a statute is invalid.
Michael Davidson: --The ultimate question is of the Court's role, and particularly of the Court's role in a dispute between its coordinate branches. If a ruling on severability establishes that there is no basis for granting relief, then it is within the Court's tradition not to reach a constitutional issue of the dimensions presented here.
Speaker: Is there any case you can cite for that proposition, that you first take up severability and then the constitutional issue?
Michael Davidson: There is a direct conflict between the decision in this case and the decision of the court of appeals for the Fourth Circuit, because that court, in a legislative review case, decided explicitly that it should reach the question of severability. It found that the statute was non-severable, and that it should therefore not render an advisory opinion on the constitutionality of the statute.
Speaker: Any case from this Court that takes up severability before constitutionality?
Michael Davidson: We have cited the Carter Company coal case, in which the Court did not reach the question of the constitutionality of wage... of price control provisions under the NIRRA, because it had decided that those provisions fell on account of the inseverability of the statute. The only cases in which the Court has dealt with both issues is when it was simply a matter of the structuring of its opinions, but we have now a question of the role of the Court. It is very important, because this case not only implicates this statute, but implicates a constellation of other relationships between the executive and legislative branch, from war powers to control of arms sales, budget, rulemaking throughout the national government, that the Court not depart from traditional rules of restraint and determine whether a statutory question must be resolved in a way which makes the constitutional issue unavoidable.
Speaker: Mr. Davidson, are you going to reach the... are you going to touch upon or are you going to leave to your brief the question... the related question of whether Mr. Chadha has other... possible other grounds for relief that would also perhaps serve to avoid the constitutional issue?
Michael Davidson: Let me address those quite briefly. Mr. Chadha does have two other grounds. Fortunately for Mr. Chadha, this case has become an academic matter. He has married, is married to a United States citizen. He has been married since August, 1980. He is eligible for permanent residence on that basis. Additionally, the Congress in the Refugee Act of 1980 has provided a system to deal with the problem that may have concerned the immigration judge, and there are now a whole set of procedures in an important Act of Congress to deal with--
Speaker: That Act has been adopted since the decision of the court of appeals.
Michael Davidson: --No, it was adopted nine months prior to the decision of the court of appeals.
Speaker: Prior to it. Then, when was his marriage?
Michael Davidson: His marriage was in August of 1980. The decision of the court of appeals was in December of that year.
Speaker: So both of these developments occurred prior to the decision of the court of appeals.
Michael Davidson: That is correct.
Speaker: And they were both presented to the court of appeals and rejected?
Michael Davidson: No. No one informed the court of appeals of the Refugee Act until the petition for rehearing. However, the court of appeals was informed of the marriage. The Senate and the House asked for an opportunity to brief that issue, but the court rendered its decision before receiving briefs.
Speaker: Was that in connection with the motion for rehearing en banc?
Michael Davidson: No, prior to it. You will see in the record a letter from the House and Senate in response to information provided by Mr. Chadha's counsel that he was married, that this was an important issue which should be considered.
Speaker: May I ask you another question, perhaps not related? Could the House or the Congress delegate this veto function to the Judiciary Committee of either House or of the two Houses acting together?
Michael Davidson: This case does not require the Court to anticipate its response to any statute which, one, goes beyond the field of Immigration and Nationality, and two, delegates authority to anything other than a constitutional unit of government, an entire House. I think it is important in this and many other respects that the Court approach this case, which is a rather singular controversy, in the most narrow manner possible. There have from time to time been statutes which have delegated authority to Committees. They are not in very much use now. In fact, there aren't very many that are actually in force. But in any event, they pose quite distinct problems. In establishing this system, the Congress was attempting to maintain the essential relationship between the executive and its houses on the question of relief. There must be concurrence by the executive and by each House expressed in the forms of this statute before there may be what is very significant, a variation from the otherwise mandatory effect of the deportation laws, an act of dispensation. We do not ask the Court to intimate at all what the result would be if there were to be a further delegation to a subunit of Congress.
Speaker: Do you find any significance in the fact that the Constitution explicitly grants certain powers to the Senate acting alone, that is, the treaty and the appointment powers, but that the Constitution is silent on this subject?
Michael Davidson: We don't think the Constitution should be read as a contract in which those particular methods of blending power are thought to be exclusive. By bicameral agreement and presentation to four Presidents, this device has obtained that consensus through constitutional means necessary to establish a governmental procedure, and we think that those are... the other illustrations are illustrations where the Constitution mandates cooperation, but does not preclude the Congress and the President from agreeing that there are other important areas which should be resolved through related mechanisms.
Speaker: Mr. Davidson, may I follow up on the Chief Justice's question about delegation to a Committee? I can understand why you say that would be a different case when we are considering the issue of separation of powers, but when we are considering what I understand to be your principal argument, namely, the necessary and proper clause, why couldn't that be equally necessary and proper to use a more efficient way of processing these things?
Michael Davidson: The Senate's position in this case is that the key issue is separation of powers. The question that should be asked of any of these arrangements is, does it preserve the essential balance.
Speaker: But let me be sure you understand my question. If we were focusing on the necessary and proper clause, then we could not distinguish an action by the whole House and action by a Committee, could we?
Michael Davidson: The necessary and proper clause--
Speaker: If we are buying Mr. Gressman's argument.
Michael Davidson: --The necessary and proper clause must be exercised consistent with the limitations of the Constitution, and we accept as a major limitation adherence to the separation of powers. Once authority is delegated in a way which changes the relationship of the two Houses of Congress to the President, there may be questions raised for this Court that are not presented in a case such as this. Another factor in this case is that it does deal with authority over immigration, an area which the Court has historically deferred to the political branches. This is a very special arrangement. There is no other legislative review statute that concerns individuals.
Speaker: Which political branch would you have us defer to here? 0 [Generallaughter.]
Michael Davidson: I would have you defer to the joint decision of the Congress and the four Presidents to whom these statutes were presented and approved.
Speaker: Well, but in Myers, the President in office at the time the law was passed had signed it. In Buckley against Valeo, the President in office at the time the Act was passed had signed it. That has never been thought to be a reason for finally resolving the separation of powers on kind of an estoppel basis.
Michael Davidson: We are not arguing that the Congress and the President may amend the Constitution, but when the question is separation of powers, and not compliance with a specific provision of Article II, it is a factor that none of the Presidents, that none of the Attorney Generals who advised the Congress, and whose opinions were sought during the period of this legislation, in any way intimated that any function of the executive branch would be disrupted by this cooperative arrangement.
Speaker: Is this something like a waiver?
Michael Davidson: No, I am not arguing that the Congress and the President may waive. The opinion of the Court of Appeals focused on what it thought to be the disruption of the office of the Attorney General in the administration of the Immigration Act. There is in fact no record of disruption. There is a legal argument in this case. There is the experience of Attorney General after Attorney General considering this matter, with the responsibilities he has over the Immigration Service, and not finding that this provision in any way rendered him unable or less able to fairly administer this statute.
Speaker: Well, which one of the four Presidents said that?
Michael Davidson: These bills were approved by--
Speaker: You mean they just didn't take any action.
Michael Davidson: --Well, more than--
Speaker: But you said they approved it and they loved it.
Michael Davidson: --They approved. They were doing this at a time--
Speaker: Were you just about to say they loved it?
Michael Davidson: --No, I won't say that.
Speaker: Not quite, but you-- --I won't say they loved it. In fact, for administrative reasons, some may have wished it to be done in another way, as President Eisenhower proposed an alternative mechanism. This legislation was considered in tandem in 1939 through 1962 with the reorganization legislation, and in the reorganization field, Presidents repeatedly asked for the renewal of that authority as a cooperative relationship which they thought important to both branches. In this area, Attorney Generals would ask for renewal or revisions of the authority without indicating at all that there was a constitutional problem. It is important before the Court involve itself in that kind of issue to determine whether this has been fairly considered in the executive and with the Congress. And although there have been executive objections to other legislative review statutes, there has been none to this. It was enacted, revised, and has worked a totally beneficial purpose. Mr. Davidson, I guess we don't reach these questions unless we get over the various justiciability hurdles that have been raised, and you spoke about one of them, and mentioned that because Mr. Chadha now is married to a citizen, and because of the passage of the Refugee Act of 1980, that he has gotten everything that he wanted. Let me just ask you a further question about that, if I may. Now, I assume that if this Court were to affirm the lower court, that then Mr. Chadha would be immediately eligible to apply for citizenship, whereas if we did not do that, these other Acts would not enable him to do that for a number of years. Does that make a difference, so the questions really are not resolved?
Michael Davidson: It is not at all clear that he would be immediately eligible for citizenship. The judgment of the court of appeals was that the deportation should be cancelled. The statute provides no means for retroactive grant of permanent residence. It provides explicitly that permanent residence shall be recorded upon the cancellation of deportation. That is an event with the stay of the mandate that is yet to occur. So he will not become eligible for permanent residence until there is a mandate, and would have to wait three years. There is a footnote, not the judgment of the court of appeals, that the court thinks that permanent residence would be retroactive to some earlier time, but this Court and the court before has jurisdiction to review a deportation order. He essentially raises a naturalization question, and a question which would require the Court to read some other term into the statute, because as the statute is now written, his permanent residence is prospective only. Thank you.
Warren E. Burger: Mr. Solicitor General.
Rex E. Lee: Mr. Chief Justice, and may it please the Court, any attempt to defend the constitutionality of a legislative veto faces, I submit, an insoluble dilemma. The reason is that there are two separate constitutional demands that that device has to satisfy. They are, first, the twin requirements for lawmaking specified in Article I of the Constitution, passage by both Houses of Congress and presentation to the President, and the second is separation of powers. And now the dilemma. Any attempt to explain a legislative veto in such a way as to blunt the separation of powers problems, that this is not really enforcement of the law, or this is not really interpretation of the law, only serves to highlight the fact that whatever else may be involved, the Congress is clearly exercising legislative power, making new law, and is doing so by one House of Congress and without participation by the President.
Speaker: Has there ever been a statute held invalid by this Court beginning with the jurisdictional statute that was involved in Marbury against Madison, in which it could not be said that the statute had the blessing of the two Houses and the President?
Rex E. Lee: Not to my knowledge, Mr. Chief Justice, and that is the most fundamental underpinning of Article I and it is also the most fundamental underpinning of the... of the Framers' intention. If there is one thing that is clear from the constitutional history, it is, Number One, that they were concerned above all, as this Court observed in Buckley versus Valeo, about an overweening Congress, and Number Two, that the two protections that they built into the Constitution against that very eventuality was, Number One, bicamerality, if there is such a word, the requirement of two Houses of Congress, and Number Two, the Presidential veto. In an understandable attempt by the House and Senate to focus this Court's attention on the separation of powers issue on that issue alone, and I will deal with that in just a moment, the House and Senate stressed the fact that this is legislation. The House brief asserts, for example, that Congress is here executing its own vested legislative powers, and with that statement I agree. It is only part of the case, but it is a correct statement.
Speaker: Mr. Solicitor General--
Rex E. Lee: Yes, sir.
Speaker: --may I just interrupt you on that?
Rex E. Lee: Yes, sir.
Speaker: When the Attorney General exercises his power to suspend deportation, is he exercising legislative power?
Rex E. Lee: No, he is not. This Court held in Buckley versus Valeo that rulemaking was an executive power. A fortiori, in my view, adjudication of this kind is an executive power, carrying out the intent of the... or carrying out the statute.
Speaker: Couldn't one argue that what the House does is precisely the same thing the Attorney General has done?
Rex E. Lee: Well, the dilemma that the House faces is not that... we do not face the same dilemma that the House faces for this reason. They are two separate constitutional hurdles, and you have to get over both of them. And any... as I say, any attempt to highlight... or to downplay the separation of powers clause does highlight the presentment and bicameral requirements. The same is simply not true insofar as the executive's position is concerned, because we contend that this is... that it doesn't matter what you call it, and this is one instance in which labels clearly can become an enemy of analysis, that whatever else it is, it is a violation of Article I, Section 1, for this reason. Maybe Mr. Gressman is right, maybe Mr. Gressman is not right when he says that what Congress was doing here was exercising legislative power. It doesn't matter, for this reason. There are certain instances in which the Constitution authorizes Congress to take action other than by legislating, such as proposal of constitutional amendments, treaty ratification, confirmation, and disciplining of Members, and there are some others, but not even the best friends of the legislative veto contend that that device falls into any one of those categories. All right. So that aside from those categories, the only way that Congress can act is by legislation. If Section 244(c)(2), then, of the Immigration and Nationality Act is not legislation, then Congress lacks the constitutional power to do it. And if it is legislation, then the bicameralism and the presentation requirements must be met. For that reason, you don't need to characterize it as either legislation or not legislation, because one thing that is clear is that it is something that Congress has attempted to do. If it is legislation, then bicameralism and presentation must be complied with. If it is not legislation, then Congress lacks the authority to do it.
Speaker: I observe, Mr. Solicitor General, that both you and your friends have referred to this as legislative veto, not as it is sometimes called, one House veto. Does that mean in your view and perhaps his it wouldn't make any difference whether it was one House or both Houses if it isn't legislative action in what you have just described as the traditional way?
Rex E. Lee: Absolutely. The two Houses--
Speaker: In other words, if both the House and the Senate had taken this action, you would be--
Rex E. Lee: --Same result. Same result. It satisfies the bicameralism requirement. It does not satisfy the presentation requirement.
Speaker: --Mr. Lee, I think that the House and Senate, though, have taken the position that this particular legislation was in fact passed by both Houses and presented to the President, and therefore met all the requirements. Would you address yourself to that?
Rex E. Lee: That is a very easy question, or very easy argument to answer, and it is simply that the House and Senate by two-thirds vote at least, as I read the Constitution as I came into Court this morning, cannot amend the Constitution. This one was in fact passed over President Truman's veto, but that is immaterial. Neither the House and Senate acting together with the President nor the House and Senate by two-thirds vote have the power to eliminate the very clear requirements in Article I, Section 1 of the Constitution that legislative power means... that legislative power means power that is to be exercised by two Houses, and the requirement in Article I, Section 7, that any exercise of legislative power must be presented to the President, and that is the defect also with the... excuse me.
Speaker: Well, I just want to press your argument a moment. Legislative power, I presume, could be delegated in some situations to somebody that will act other than by... through the presentment process.
Rex E. Lee: Well, I won't--
Speaker: Say, delegate to an administrative agency the process of drafting regulation.
Rex E. Lee: --Yes, sir. It then becomes execution of the laws, in my view, Justice Stevens, and that, I think, follows naturally from both this Court's decisions of a half-century ago and also even more so Buckley versus Valeo.
Speaker: What if, in this statute, instead of having a one-House veto they created a special administrative review board, some special, unusual name for it, of three persons appointed by the President, or something like that, who would then make precisely the decision at the same end of the process that the full House now makes. Would that be constitutional?
Rex E. Lee: It would not violate, in my view--
Speaker: It would execute the law through that--
Rex E. Lee: --That is right. So long as it is not a Congressional... that gets you into the Buckley versus Valeo appointments problem. Then it would be constitutional. And parenthetically, let me mention that if, as this Court held in Buckley versus Valeo, Congress may not constitutionally appoint officers of the United States, a fortiori, they may not perform the executive function themselves by stepping in and in effect appointing themselves.
Speaker: --So that it would follow a fortiori also they couldn't give such power to a Committee of Congress.
Rex E. Lee: Absolutely. I would think it's really a fortiori. I think it is the same case. Similarly, the Petitioners' arguments with respect to Congress's power over aliens and the necessary and proper clause simply will not wash under the constitutional provisions of Article I, Section 1 and--
Speaker: What if the requirement in the statute was simply that the recommendations of the Attorney General for hardship relief lie on the table of Congress for 60 days, will not become effective?
Rex E. Lee: --No problem. No problem. It is constitutional.
Speaker: What is the... is there that much difference?
Rex E. Lee: Well, because it gives to Congress the opportunity to pass... to exercise its legislative powers.
Speaker: But it is also putting a tail end limitation on what would otherwise be the final action of the executive.
Rex E. Lee: You can make an argument that that is a violation of separation of powers. I think that given this Court's decision in Sibbach versus Wilson, it wouldn't be a very strong argument, and we are not pursuing it here.
Speaker: What if the law just said that the Attorney General should take these cases and then make a recommendation to Congress as to whether... as to wherever he thought suspension was authorized. The same result as here?
Rex E. Lee: The same result. It is constitutional.
Speaker: It is constitutional?
Rex E. Lee: It is constitutional. If he is just making the recommendation, and absent any... absent any--
Speaker: Yes, but he makes a recommendation, he makes a recommendation for suspension.
Rex E. Lee: --For suspension, but it is only a recommendation, and if Congress does nothing, it is not sustained.
Speaker: Well, I know, but what if the law says, please, Mr. Attorney General, look at these cases and make recommendations where you think suspension should be authorized, and then one House would have the power to disagree.
Rex E. Lee: Yes, but what if Congress doesn't, under your hypothetical--
Speaker: No, take my example, Mr. Solicitor General.
Rex E. Lee: --But I just want to test your example. 0 [Generallaughter.] If Congress does nothing, then does it become... Did I misunderstand?
Speaker: No, no, you just didn't listen. Mr. Attorney General, please give a recommendation, and then if one House vetoes your recommendation, then he is going to be deported.
Rex E. Lee: What I have to know, Justice White, is what happens in the event that neither House does anything, what happens to that recommendation? Does the deportation get suspended or not?
Speaker: The Attorney General's judgment stands.
Rex E. Lee: Oh, then it is unconstitutional.
Speaker: Just like this.
Rex E. Lee: That's correct.
Speaker: So it really isn't the adjudication or judicial review or anything else. He just makes a recommendation.
Rex E. Lee: That is correct. Let me return--
Speaker: Let me ask you another question. Before this statute was passed, or before they... in the era of private bills--
Rex E. Lee: --Yes.
Speaker: --in order to suspend deportation, there had to be legislative action.
Rex E. Lee: That is correct.
Speaker: Now, this bill leaves the President and the Congress, talking about the separation of powers issue--
Rex E. Lee: Right, okay.
Speaker: --in relatively the same position, doesn't it? The President takes the initiative here, and recommends a suspension, and that would take the agreement of both Houses.
Rex E. Lee: I do not agree that it is relatively the same insofar as separation of powers is concerned, for this reason. Before, all that the Attorney General could do was to make recommendations, and then Congress would consider it. Now, effectively, what Congress has done insofar as separation of powers is concerned is to say, we passed this 1952 Nationality and Immigration Act. It is a massively complex statute. Over every provision except for two, the enforcement is going to be vested in the Attorney General. But as to two provisions, and one of them is this 244(c)(2), we are going to wait and see how it is that the executive decides to enforce the statute, and then, in the event that we decide we don't like the way the executive enforces the statute, then we will do the job ourselves.
Speaker: But it still takes on... it would still leave the... in order to have a suspension, it would still take the agreement of the President and both Houses of Congress, under this statute.
Rex E. Lee: That is correct, but as the House itself says in its brief, Congress has withheld from the executive some part of the functions of executing the whole of the statute, and we agree completely that that is exactly what Congress has done, and that is exactly what Congress--
Speaker: Well, that's true, but it still leaves the... in relatively the same position as before the statute was--
Rex E. Lee: --Well, relatively the same position if all the Constitution was talking about was the matter of the total package of power on the President's side and the total package of power on the Congress's side.
Speaker: --With respect to suspension of deportation.
Rex E. Lee: With respect to suspension. But the Constitution also requires more. Number One, there is also an Article I of the Constitution, and Number Two, the Constitution does address in what respect those powers are in fact exercised vis-a-vis the other branch.
Speaker: Where does the government stand on severability?
Rex E. Lee: That it is really not... that it is one of the less important severability issues, less serious severability issues that this Court has--
Speaker: Why does the government take any position on severability?
Rex E. Lee: --Well, we take exactly the same position that was implied in your colloquy with Mr. Davidson. It shouldn't be reached here. And let me fill that out just a bit and give you a few of the cases that you were asking Mr. Davidson about. We have examined, Justice Rehnquist, the cases that we can find, and I do not represent that it was exhaustive, but it was as exhaustive as we could make it. I do not know of any single case... we found about 25 of them... I do not know of any single case, and certainly Carter versus Carter Coal is not one of them, in which this Court has ever considered the issue of severability prior to the issue on the merits. Now, in fairness, I must say that there is never any case in which the issue was exactly as Mr. Davidson has argued, and I understand what his argument is, but I will also say that I agree completely with the proposition that there is simply no reason even to reach the severability issue unless and until you first reach the issue on the merits.
Speaker: Well, supposing we reach the issue on the merits, and decide it in your favor. Then what is your position on severability?
Rex E. Lee: That it is not severable, for these reasons. Mr. Morrison will develop this in more detail, because it pertains more to his client, but in the first place, severability is merely an aspect of the more general and the broader constitutional principle that the function of the Court is to save rather than to destroy. Now, using Mr. Davidson's own characterization in that respect, that the question is whether the balance could stand if we took out this particular provision, it can stand very, very well. You take out 244(c)(2) and just put them out of the statute. The rest of it functions very nicely.
Speaker: Well, I should think that future administrations might have some cause to regret you analysis of severability when they go to Congress and want legislation, because in effect Congress gives more than it otherwise would have in return for the legislative veto, and then the next day after signing it the President sends his Attorney General to court to challenge the legislative veto. So in effect the compromise is just washed out.
Rex E. Lee: What that is saying is, of course, exactly what my opponents... this is a major theme in their briefs, that there are some practical reasons that the legislative veto has something to say for it, and my answer, of course, to that is, whatever those practical reasons may be, they have to yield to the examination of the principles--
Speaker: Well, there is no question on the merits, but on the severability issue it seems to me you are being kind of piggy. 0 [Generallaughter.]
Rex E. Lee: --If the Court will agree with me on the second proposition, that it should not reach... our preferred approach would be never to reach the severability issue, but in response to the question, how should you rule if you do, I am simply responding to that question.
Speaker: Well, don't you have to reach it if you decide the merits?
Rex E. Lee: Oh, of course. If you decide the merits, then you have to reach the severability issue. It is excisable. There is the general strong presumption that you save rather than destroy. In this particular instance Congress said, we want as much saved as possibly can be saved, because there is a severability clause, and perhaps strongest of all, if our view prevails, that is, that the statute... that this particular provision is severable, then the net result is going to be the same as has occurred over the 42 years of this statute's history, in over 96 percent of the cases, whereas if the statute is not severable, then the result is going to be the same as it has been in less than 4 percent of the cases.
Speaker: Mr. Lee, let me get straight, with respect to our previous colloquy, if the statute simply said, please recommend suspensions of deportation, look over the cases and recommend, but if we don't do anything at all, then there will be no suspension, that is constitutional, I take it.
Rex E. Lee: If we don't do anything at all, there will be no suspension. That one is constitutional.
Speaker: Mr. Solicitor General, is there any analogy at all to the rulemaking process that we have where the judicial conference after studying criminal, civil, or appellate rules, proposes rules, and then they come to the judicial conference, then they come to this Court, then they go over to Congress, and if nothing happens over there within a specified period, they become defective? Now--
Rex E. Lee: I think it is the same basic analysis. The constitutional defect is when Congress attempts to pick a foil, if you will, some funnel, some laundromat through which they can run a policy decision and then have that policy decision reflect back before them so that they can make the policy choice absent compliance with bicameral... with the two House and presentation requirements.
Speaker: --Take particularly the code of evidence, which was cast in terms of rule. Congress made a significant number of changes, or at least there were significant changes, if not great in number. Was that making law?
Rex E. Lee: See, I am... if... I am not certain which was the evidence and which was the rules of civil procedure. If Congress simply changes by legislation, that is, by going... by running the matter by passage, the changes by both Houses of Congress and presentation to the President, then it is constitutional. If it is simply a matter of everything has to be varied only by one House of Congress or by both Houses of Congress, then it is unconstitutional, and that is also the basic defect with my opponents' reliance on the Congressional power over aliens, or their asserted Congressional power over aliens, and also the necessary and proper clause. Mr. Gressman referred, for example, to Congress's vast power over aliens. That is simply just a wrong statement. It is not a Congressional power over aliens. It is a power to make laws dealing with aliens, and in order to bring that power into existence, the constitutional prerequisites for lawmaking must be observed. The same deficiency applies to Petitioner's reliance on the necessary and proper clause.
Speaker: Mr. Solicitor General, perhaps you have already told us, but I have forgotten. What is your reaction to the effect, if any, of the recent marriage of Mr. Chadha?
Rex E. Lee: Oh. Mr. Morrison will deal more completely with that, because it is his client.
Speaker: All right.
Rex E. Lee: But the short answer, Justice Brennan, is that it makes a very great difference to him, because he becomes a citizen about two years earlier if this Court affirms the court of appeals than if he has to go through the other procedures.
Speaker: Well, what bearing does it have on whether or not we should reach the constitutional question?
Rex E. Lee: Well, it has this bearing, that he clearly does have standing to raise the constitutional issue, because he is one who is aggrieved by what the... by what the House--
Speaker: Well, he's got standing, but... but not reaching constitutional issues is prudential, isn't it?
Rex E. Lee: --Well, it certainly can be done on prudential--
Speaker: It isn't jurisdictional.
Rex E. Lee: --But I don't know... that is correct, but I don't know of any instance where this Court, faced with the kind of detriment, actual detriment that Mr. Chadha faces, would... has declined to consider a constitutional issue such as the one that Mr. Chadha... that Mr. Chadha raises, because while it may be true that he now has a way around deportability, certainly citizenship is a very important interest, and citizenship... citizenship sooner is a much greater advantage than citizenship later. If Mr. Gressman were correct that the only test under the necessary and proper clause was whether there were this fit between means and end, it would repeal Article I, Section 7. Article I, Section 7, does not say that Congress has the power to do anything that it deems to be necessary and proper. Article I, Section 7, says... or Article I, Section 8, says that Congress has the power to make all laws which may be necessary and proper for carrying to execution the foregoing power. There is no defect more fundamental to my opponents' case than simply the fact that they have completely ignored Article I of the Constitution, the requirement in Section 1 of bicameral passage, and in Section 7 of presentation to the President, and the necessary and proper clause helps them not at all, because it gives them only the power to enact laws. I simply close where I started, that there was no concern manifest by the Framers of our Constitution any greater than that that was expressed in Buckley versus Valeo, to protect the other branches of the government against an overweaning Congress.
Speaker: Well, Mr. Lee, in the reorganization situation, where there is a... is there a one-House veto?
Rex E. Lee: I will take the hardest case there. Where it is a two-House veto, it is still unconstitutional, because of the fact that it fails of presentment.
Speaker: So the President is proposing a reorganization which is proper unless Congress--
Rex E. Lee: That is the hardest case.
Speaker: --And you say that is unconstitutional.
Rex E. Lee: That is unconstitutional, because that is an instance where, even though it is just as good to do it that other way, do it a way other than the Constitution prescribes--
Speaker: Well, you pretty well have to take that position, I suppose, to--
Rex E. Lee: --Well, in order to be... in order to be--
Speaker: --to have it here.
Rex E. Lee: --Yes, and in order to be faithful to my oath of office, faithfully to carry out the laws and the Constitution of the United States, I would have to take that position. Thank you.
Speaker: Mr. Lee, do you think the Reorganization Act is severable, so the President could just reorganize by himself? 0 [Generallaughter.]
Rex E. Lee: I think that under those circumstances, Justice Rehnquist, there might be serious severability questions.
Speaker: Despite your own.
Warren E. Burger: Mr. Morrison.
Alan B. Morrison: Mr. Chief Justice, and may it please the Court, much of the debate in this case involves what Mr. Gressman referred to as a tug of war between the executive branch and the Congress. While those concerns are important, there are other interests at stake as well, and it is important not to lose sight of the fact that legislative vetoes in general, and this one in particular, affect the lives of many people subject to the laws of this country. I want to begin by answering the question posed about the effect of Mr. Chadha's marriage and the Refugee Act, something that was called an academic matter by counsel for the Congress. If Mr. Chadha's decision here is affirmed, he will be a citizen by the 4th of July. He has filed a naturalization petition which has been accepted by the Naturalization Service in San Francisco. He is only awaiting the issuance of the mandate before he will become a citizen. That means that he will be able to vote, he will have other rights that aliens do not have, and he will have it almost immediately. On the other hand, if he has to go the other route, he will be told that his wife will then have to file a petition to adjust his status. That will take about a year or so to be acted upon in the ordinary course of business. Thereafter, he will then have to wait three additional years before he becomes a citizen.
Speaker: Well, Mr. Morrison, this all happens if we do what, or don't do what?
Alan B. Morrison: If you don't determine the merits of this case, that is, if the decision below is affirmed, Mr. Chadha will be a citizen immediately.
Speaker: And if we don't?
Alan B. Morrison: He will then have to go through this other process. He will then have to... His wife will then have to file an application in his behalf to adjust his status. When that application is--
Speaker: Well, if we don't reach the constitutional question by reason of his marriage, what then will we do with the judgment below?
Alan B. Morrison: --I would assume you would set it aside, and vacate the judgment on grounds not of mootness, because the Senate and House do not contend it is moot, but on the grounds of prudential consideration. He will be told that this case, which was filed in 1977, arising out of a determination by the Immigration Service in 1974, and a veto in December of 1975, all this was to nought, because while the case was awaiting decision of the court of appeals, he and his wife were married.
Speaker: And what will happen to his case? It will be, what, dismissed?
Alan B. Morrison: That is correct.
Speaker: As if it were moot?
Alan B. Morrison: I assume that is what would happen, yes.
Speaker: And if we remand for exploration of the matters raised in the colloquy?
Alan B. Morrison: Well, I don't know there is much to remand. My client readily concedes, indeed, if he loses this case on any other grounds, would have to embrace the notion that he could be... remain in this country on the grounds of the marriage and the Refugee Act.
Speaker: Did he take any actions under... Did he ask his wife to file a petition as soon as he was married, or did he take--
Alan B. Morrison: He did not.
Speaker: --some actions under the Refugee Act?
Alan B. Morrison: He did not. We believe that--
Speaker: Could he have?
Alan B. Morrison: --Yes, he could have.
Speaker: And would have been succeeded by now?
Alan B. Morrison: No, he would not be a citizen by now, because he... the marriage took place in August of 1980.
Speaker: I see.
Alan B. Morrison: So this was several months before the decision, and we were concerned--
Speaker: So it would be then still maybe three more years.
Alan B. Morrison: --Four years... we estimate... and three years is clear from the face of the statute. The other time is a matter of some flexibility, but it is about a year, and he was advised at that time that he could be a citizen sooner, and since he very much wants to be a citizen, he insisted upon pressing this case. He also feels quite strongly about this case and the way he has been... his case has been handled, and feels that the separation of powers is an interesting concept as far as the Senate and the House and the President are concerned, but it also affects people. It has affected his life very greatly during this time.
Speaker: And the House and Senate are in this case only as intervenors, aren't they?
Alan B. Morrison: That is correct. They appeared as amicus--
Speaker: The actual case is between him and the Service.
Alan B. Morrison: --That is correct. He filed his petition for review, and the Service took the position that it had no choice but to deport Mr. Chadha unless a court agreed with the Service that the provision is unconstitutional. At this point, the Service contacted the Senate and House and asked them to file amicus briefs, and then after judgment they intervened.
Speaker: Mr. Morrison, perhaps I missed it in the record, but why was the submission to the Ninth Circuit withheld for over two years?
Alan B. Morrison: I think I understand the answer to that. What happened was that during the course of oral argument, the court raised a question about the jurisdiction of the court of appeals, that is, whether we were in the right court. That matter had been alluded to in the House... in the Congress's brief in the Ninth Circuit, but had not been briefed extensively. The court asked us to file briefs, and shortly after briefs were filed, we received an order saying... shortly after the briefs were ordered to be filed, we received an order from the court saying, the matter is withdrawn from submission. Now, I don't know whether that is an internal operating procedure of the Ninth Circuit, but that is the order we received. Incidentally, one of the judges passed away while the case was--
Speaker: Yes, but the withholding order was within four days of the--
Alan B. Morrison: --Yes.
Speaker: --original argument.
Alan B. Morrison: Yes, and that is the... the withholding order was issued at the same time as the order to submit supplemental briefs. Both sides, that is, the Senate and House, saying we were in the wrong court, and the Justice Department and I saying we were in the right court, submitted those supplemental briefs, and either through a clerical error or some other reason, the matter was not ordered to be resubmitted and reinstated on the calendar. That's the only... there is nothing else in the record on that, Justice Blackmun, but those are the sequences of events from which I presume that it had... the withdrawal from the calendar had to do with that.
Speaker: Was it reargued?
Alan B. Morrison: It was not reargued. In this case, Mr. Chadha succeeded in persuading the Immigration and Naturalization Service that deportation would result in extreme hardship, but that was not enough, for a year and a half later the House of Representatives meted out what the court of appeals aptly described as a summary reversal, and told Mr. Chadha and five other aliens out of 340 that they may not remain in the country. As a result, the Immigration Service had no choice but to order his deportation. Despite this clear causal connection, both the House and the Senate insist that Mr. Chadha has no place being in court. They say he lacks standing, that there is no adverseness, it's a political question, and that he's even in the wrong court. Indeed, according to the Congress, one of the principal reasons why he is barred from the courthouse door is that the Attorney General, the chief law enforcement officer in this country, has concluded that the veto here is unconstitutional. The court of appeals fully considered and rejected each of these arguments. Our brief has replied to them also. I only want to discuss the one today upon which the Congress seems to place principal reliance, and that is the issue of severability. The Congress has said that the veto is inseparable from the rest of the statute, that the veto was at the core of scheme, and that if the veto is invalid, then Mr. Chadha is not entitled to relief, therefore the hardship scheme must fall in its entirety. Now, in answering this question of severability, it is vital to focus on the proper inquiry. This Court held in both Buckley against Valeo and the Champlin Refining Company that an unconstitutional provision is severable... and these are the Court's words... "unless it is evident that Congress would have intended to strike the constitutional portion with the unconstitutional portion. " Thus, under this Court's test, the burden of proof lies with the party seeking to deny severability. Moreover, the burden increases, as in this case, when we have a severability provision, as we do in Section 406.
Speaker: Did the 1940 Act in which this provision originally appeared have a severability provision?
Alan B. Morrison: It did not, Mr. Justice Rehnquist, as far as I am able to determine. The 1940 Act was an amendment to an earlier provision of the... the existing Immigration Act. The 1952 amendments were a comprehensive revision of the Act.
Speaker: That was the McCarran-Ferguson Act.
Alan B. Morrison: That is correct. I might point out that in 1962, when... when the final change was made in Section 244(c)(2), to change the group of people who had to go through the one-House veto as opposed to the two-House approval, which still remains for some categories, that that was an amendment and there was no additional severability provision at that time, but the only severability provision is that, and we don't place great reliance on it, but we think it is some additional burden that is placed upon the party seeking to destroy. Most of the discussion by the Senate and House here has been offered to show that Congress wanted to retain the veto device. Of course it did. It put it in there in the first place. It augmented the powers of Congress to have it. This is not a case in which an outside group was lobbying for inclusion. This was a provision intended to increase the power of the Congress vis-a-vis the legislature and the people. The proper question, we submit, and the question which is simply stated in another way in Buckley and Champlin, is what would Congress have done if it had known that the veto was unconstitutional? The question here is, and it must... I must emphasize that it is a question that we have to ask in each specific case, and I would agree with Justice Rehnquist, for instance, that the question of severability in the Reorganization Act is a much harder case. There are no reorganization powers currently extant, so we don't have to deal with that.
Speaker: Isn't that... if you are talking about legislative intent, that is kind of a difficult inquiry to make 42 years after the Act was passed.
Alan B. Morrison: It is possible that it's difficult. I think that that is... that is in a way the inquiry which has been made in every one of these cases. Indeed, it is made in the case... cases involving equal protection when we have problems of underinclusion or overinclusion, what would Congress have wanted to do if it knew... if it couldn't have everything in the statute that it wanted to have, and this Court has had to deal with it. The case cited by Mr. Gressman, the California... Califano against Wescott had to deal with precisely the same question, and I might say dealt with it in every case after reaching the constitutional issue. And I agree that it is difficult in theory, but we have to make these determinations, and in this case, however, we suggest that the legislative history is very strong, and strongly supports the conclusion that Congress would not have, if you will, thrown out the baby with the bath water, if it had been faced with that choice, and I base that on the progression of changes that were made from 1940 through 1962, in which Congress showed a pattern of increasing the categories of eligible people, of making it easier for those found eligible to obtain a hardship stay of deportation, and further from the Congress's willingness to lessen the controls over the process. Indeed, if you put the options as between the private bill analogy, if you strike 242(c)(2), and leave it to the Attorney General alone analogy, Congress between 1948 and 1952 tried the private bill analogy within months after the bill was passed, and that bill required two-House approval upon a recommendation by the Attorney General. Everybody in Congress said it is unworkable. They couldn't deal with the problem. And so finally, in 1952, when the Immigration Act was next amended, they did away with the two-House approval for large segments of the aliens who were seeking hardship adjustments. In 1962, there was a further chipping away at that. The Congress consistently made it easier, showed that they did not want the job of going through the private bills.
Speaker: Mr. Morrison, you are using the term "Congress wanted" in a rather undifferentiated meaning, it seems to me. Which Congress do we look to for intent?
Alan B. Morrison: I would look to each of the Congresses that made a change in the law. That is, from... the first... the first change was made in 1940. Congress didn't like the private bill, so they gave up a little of their control. In 1948, having found that there were 21,000 of these applications that came in between 1940 and 1948, Congress decided it would try to exert a little more control, since it had vetoed none of them during that time. In 1948, Congress said, we will exert more control. In 1952, and in fact before, the next Congress moved in that progression, said, that is unworkable, and in 1962 they have... they continued that even further, and I recognize that you don't have an instant... you can't point to one... one Congress, but even the most recent consideration by the Congress, as the Solicitor General's brief points out, Congress is now considering abandoning the matter entirely. And my point is that the Court has to make a determination. It is not an easy determination to make. You have to try to figure out what Congress would have done. But the decisions of this Court make it clear that the burden is upon the party seeking to destroy, and not the party seeking to sever, and we respectfully suggest that it is not evident, as this Court has used the term, that Congress would have wanted to throw out this whole humanitarian program, and indeed perhaps call into question the legality of aliens who have already run the Congressional gauntlet, to throw this entire program out if it could not have retained the veto. It is just too small a portion. As the Solicitor General indicated, the vast majority of the people who have to go through the Congress make it through. Only two people have been vetoed since 1977, and ten in the previous six or seven years. I suggest that the Congress has not made its case for lack of severability. Whatever the case may be under another statute, such as the War Powers Act or Reorganization Act, it hasn't made its case here. Turning to the merits, I want to say that I fully agree with the Solicitor General's position here, support his argument, support the Ninth Circuit, and also the U.S. Court of Appeals for the District of Columbia Circuit in the Consumer Energy Council case. I want to focus, if I can, on the separation of powers arguments, and particularly before doing that I want to say a word about the necessary and proper clause upon which counsel for the House places such great reliance. It is no doubt true that the necessary and proper clause allowed the Congress to pass the Immigration and Nationality Act and Section 244. That is because those were passed by two Houses of Congress, with opportunity for Presidential decision. The question, though, is, does the necessary and proper clause and the alienage clause in Article I, Section 8, authorize the Congress to do what the House of Representatives did in this case, not to pass a statute, but to exercise control over a decision of the executive branch, and we suggest to you that whatever powers the Congress may have, those powers are exercised by two Houses of Congress and the President, with the exception of the specific provisions of the Constitution such as the treaty-making and appointments provision, which are themselves forms of one-House vetoes. The Congress has... the Framers specifically put those in, and as I noted in my brief, this Court in Myers said, we will not lightly imply other forms of one-House vetoes, and that is what we have here. So--
Speaker: Would you agree, counsel, that if the veto were to be exercised by an independent body, there would be nothing wrong with it?
Alan B. Morrison: --If by independent body you mean persons who are officers of the United States appointed by the President with the advice and consent of the Senate or otherwise officers within the meaning of Buckley against Valeo, I would agree with Your Honor that that would be constitutional. The problem here is that we have an interbranch blending of power, where the Congress... what has happened here is that Congress is seeking to assign to one branch of it the power to control the activities of the executive branch.
Speaker: What if this power to control were exercised by a body of six persons, two of whom were legislators?
Alan B. Morrison: That would be... well--
Speaker: The irony of your position, it seems to me, is that the one class of persons who may not exercise delegated legislative power are people whose primary business in government is lawmaking.
Alan B. Morrison: --That may be ironic, Mr. Justice Stevens, but I believe that that is the way our Constitution was set up. That is a terribly important aspect of what the Framers were concerned about. They were concerned, as the cases and the debates show, of blending the power to execute the law with the power to make the law. They were fearful of this concentration of power lest tyranny result, and the tyranny they were concerned with was the tyranny of the legislature, indeed, particularly the House of Representatives, and so whatever irony there may seem to be, I would suggest to you that that is an intentional irony in our Constitutional system, designed to prevent the kind of activity which took place in this case here.
Speaker: So you do suggest, then, that if the... if the body vested with the power to disapprove was the majority leader of the Senate and the Speaker of the House, it would be unconstitutional?
Alan B. Morrison: Yes. Buckley versus Valeo teaches me that. I feel compelled... Let me say a word... the Senate... the Congress's response to all of this is, there really isn't a veto here, that all we have is a recommendation going from the Attorney General to the Congress. The difficulty... there are two basic fallacies with that argument. First is, it mischaracterizes the process we have here. If four more days had taken place, had passed, Jagdish Rai Chadha would have successfully run the Congressional gauntlet, and he would now be a citizen of the United States. The fact is that Congress stepped in, not to act with regard to a recommendation, but to veto an act by the executive branch. The only thing that prevented his being a citizen now was his veto. Indeed, the House and Senate reports in 1952, when the process went back from two-House approval to one-House veto, described this process as action by the Congress of an adverse action on the alien, so it is pretty clear in terms it is not that. Moreover, all doubt is removed if you consider what happened to the other 334 aliens who were up before the Congress at the same time. According to the Congress, these recommendations were approved by silence, and that silence is the equivalent in constitutional terms to legislation. Thus, Justice Brennan, you asked earlier whether Congress still has a role after, for instance, the court of appeals decided something. I would say to you that nothing in the statute would change the role. It appears that once... the court of appeals would then issue a decision, it would go back to the executive, and then it would go up to the Congress. Our constitutional system provides that laws shall be made by the vote of the House and the Senate, and not by the silence of its Members, yet if you accept the recommendation analysis, you would have to accept that Members can vote by their silence. Thank Your Honors.
Warren E. Burger: Thank you, gentlemen. The case is submitted.