INS v. Chadha - Oral Reargument

ORAL ARGUMENT OF EUGENE GRESSMAN, ESQ., ON BEHALF OF PETITIONER, THE UNITED STATES HOUSE OF REPRESENTATIVES

Chief Justice Burger: Next we will hear argument in Immigration and Naturalization Service versus Chadha.

Mr. Gressman, I think you may proceed when you are ready.

Mr. Gressman: Mr. Chief Justice and may it please the Court:

I speak again on this reargument on behalf of the House of Representatives.

This time I proceed directly to the two critical arguments or contentions of those who seek invalidation of Section 244(c)(2) of the Immigration and Nationality Act.

Those two arguments are:

One, that the legislative review device in that section collides with the presentment clauses of Article I, Section 7.

The second contention is that the use of this device violates the general separation of powers doctrine.

These arguments must be examined in light of House Resolution 926, an Act adopted in 1975 by which Section 244(c)(2) has been implemented in this case.

That examination, I suggest, will show that these two critical contentions in the context of this case are illusory and misplaced, and that the faults in these arguments are so pervasive as to implicate Article III justiciability problems.

Now, turning to the first argument, the presentment clause argument, one finds that that argument is undermined and indeed destroyed by the negative nature of House Resolution 926.

Unidentified Justice: Where do we find the text of that resolution, Mr. Gressman?

Mr. Gressman: The resolution is incorporated, I think, at page 69A of the appendix to the Government's jurisdictional statement.

It reads in whole:

"That the House of Representatives does not... does not approve the granting of permanent residence in the United States to certain named aliens. "

including Mr. Chadha.

That is the total text of House Resolution 926.

Now, on its face as well as in its legal effect it contains a number of significant negative propositions.

Let me count the ways in which it is negative:

One, it does not order the deportation of Mr. Chadha.

Mr. Chadha came into this Section 244 proceeding conceding that he is deportable because he had earlier violated the statute which... by overstaying his student visa by which he entered this country, and under the statute that overstaying of a visa renders him deportable.

That is not an issue and never has been in this case.

Two, House Resolution 926 does not alter Mr. Chadha's legal status quo, which is one of deportability.

It has no effect on it.

Three, it does not adjust Mr. Chadha's status to that of a permanent resident alien, which is what he requested.

Three... or four, this resolution does not alter or affect any of Mr. Chadha's personal or individual rights.

It is long established that an alien, a deportable alien who applies for this kind of relief comes to that proceeding with no rights.

It is a... as we pointed out last argument, this is essentially a plea for mercy, a plea for grace on the part of the alien who seeks to get his status changed by dispensation.

Unidentified Justice: Is it not true that had the resolution not passed all four of the consequences you've described would have taken place?

Mr. Gressman: That is true, but that is not this case.

This is a negative.

This is a legislative no to all of these consequences that might well ensue.

That would be a different case, Your Honor.

If either house had disapproved this application, then certain things would have ensued.

Then we would have had, presumably, some kind of alteration in the legal status quo.

But the critical point here is that by saying no, none of those consequences occurred and there is no change in the legal status quo.

To put it differently, there is certainly no kind of enactment of positive law which results from the House action saying no.

Now, it is significant, I think, that the opponents of this legislative review device, as well as the court below, have been unable to identify any kind of positive law change that occurred as a result of the adoption of House Resolution 926, and that a determination of a positive law change, an identification of it is absolutely essential to the presentment clause argument.

And I think they have utterly failed to demonstrate that there is any positive law change here.

You simply cannot change a legislative no into a legislative yes.

Now, this goes straight to what Justice White was speaking about in his opinion in Buckley against Valeo, where he said that the power of either house to vote to disapprove is not the equivalent of legislation or to an order, resolution or vote within the meaning of Article I, Section 7, which requires the concurrence of both houses.

Nor does a one-house no require any kind of presentment to the President.

This is non-legislation.

This is what happens every day across the street when a house votes down a proposal made by one of its members.

Unidentified Justice: Well, if it's non-legislation I suppose you would have to say it happens across the street 365 days a year--

Mr. Gressman: That's right.

Unidentified Justice: --whether Congress is in session or not.

Mr. Gressman: That's right.

This no is the equivalent of non-legislation, and it cannot bring into operation the presentment clauses.

Unidentified Justice: What is the consequence of 926 on the action of the Service and of the Attorney General?

Mr. Gressman: Well, the statute provides, not House Resolution, but the statute provides that upon the disapproval by one house the Attorney General is directed by statute to execute the lawful order of deportation.

Unidentified Justice: Then I'm confused about your statements which I thought I heard that this didn't alter Chadha's rights.

Mr. Gressman: That is true, Your Honor.

Unidentified Justice: You mean he had no rights in the first place?

Mr. Gressman: He had no rights to get this, an affirmative vote granting him status as a permanent resident.

Unidentified Justice: Well, did he have a right to have the Attorney General grant the dispensation?

Mr. Gressman: No.

That... Jay versus Boyd clearly demonstrated that he comes into the application at the initial stage before the Attorney General having absolutely no rights to get a favorable determination.

It's purely discretionary on the part of the Attorney General, as well as discretionary on the part of the Congress or either house when it considers that.

So it can be... it's a privilege at the most, not a right that he seeks.

Unidentified Justice: Mr. Gressman, if the bill... instead of having the resolution having been agreed to, supposing the majority had voted down the resolution.

Would that have been an act of legislation or non-legislation?

Mr. Gressman: If they had agreed to--

Unidentified Justice: If this resolution had been submitted but it had failed, and the vote and the action in not passing the resolution, in your view would that have been legislation or non-legislation?

Mr. Gressman: --And the other house had not disapproved as well?

Unidentified Justice: No, they just never submitted it to the other house.

It just was this particular bill had failed.

Mr. Gressman: Well--

Unidentified Justice: That would have resulted in a change of status, would it not?

Mr. Gressman: --Under the statute you get a change of status only if both... neither house disapproved.

Unidentified Justice: Well, there's no action presented to the Senate.

Mr. Gressman: Right.

Unidentified Justice: And the only thing that is presented is a House resolution is presented and it fails.

Now, does the vote on that result in legislation or non-legislation?

Mr. Gressman: I don't think that is... that's incomplete legislation.

Unidentified Justice: Well, it would have resulted in a change of status, though, wouldn't it, assuming no action in the Senate?

Mr. Gressman: Well, no action in the Senate, yes, then it would have achieved that, certain consequences which would change his status and permit him to remain in this country.

Unidentified Justice: And my question is--

Mr. Gressman: If either house disapproved or took any action--

Unidentified Justice: --would that have been legislation or non-legislation?

Mr. Gressman: --That is a form of legislation.

Now, that is not this case.

That is the critical point.

Unidentified Justice: So it depends on whether the resolution carries or not--

Mr. Gressman: Of course.

Unidentified Justice: --as to what the character of it is?

Mr. Gressman: That is true.

That's true with any bill that's proposed over there.

If it fails, that's the end of it as far as legislative change of legal status quo is concerned.

Now, the other critical point I want to mention is that House Resolution 926 has three characteristics which reflect a unique sovereign power vested exclusively in the Congress and therefore there can be and is no violation of the separation of powers doctrine.

First, this Court has repeatedly held, and as recently as three weeks ago in Landon against Placencia, that the power to admit or exclude aliens is a sovereign prerogative that implicates many of our problems with foreign countries and involves consideration of our political and economic circumstances at the time.

And virtually all of that sovereign power is vested in the Congress, and Congress has in effect created a kind of a public right or a public privilege here which it can dispense in accordance with what it sees most desirable.

The second point is that House Resolution 926 is essentially a negative answer to a political question.

Ever since the Fong Yue Ting decision in 1893, this Court has repeatedly said that the exercise of this power over aliens, this sovereign power, involves answering political questions, in the best sense of that term.

And this Court has frequently referred to the purely political nature of the legislative power over aliens.

So that when Congress was saying no or when the House was saying no, it was saying... giving a negative answer to a political question.

Finally, House Resolution 926 is saying no within the traditional area of legislative discretion, discretion that is built into 244(c)(2), and is inherent discretion in a legislative body to say no.

So we suggest that a combination of these circumstances will, an understanding of what these arguments entail, suggests that both the presentment clause argument and the separation of powers doctrine simply do not apply under the circumstances of this particular case and this particular statute.

Unidentified Justice: Let me ask you a question, without charging your colleague for the time, Mr. Gressman.

You are familiar with the statutory provision in which the Congress has delegated to the district courts the trial of cases for contempt of Congress.

Suppose one of those cases is delegated to the District Court of the District of Columbia Circuit and it tries it and finds the man not guilty of contempt.

Can the House reverse that, or the Senate, or both of them together?

Mr. Gressman: Reverse a judicial determination on contempt?

No, I would think not, Your Honor.

I think that, having invoked the judicial power, that's something--

Unidentified Justice: Having delegated--

Mr. Gressman: --that would be a violation of the specific separation--

Unidentified Justice: --But it wasn't a judicial power in the first instance.

Mr. Gressman: --No.

Unidentified Justice: It was a power that belonged to the House and the Senate individually.

Mr. Gressman: That is true.

But I suppose that is again a kind of a public right, which Congress may or may not delegate to the courts as it sees fit.

Unidentified Justice: Now, I assume--

Mr. Gressman: Once it does delegate that function, that kind of a trial to the courts, then it becomes involved with the whole inherent judicial power over cases or controversies.

Unidentified Justice: --Now, one of the reasons, if not the dominant reason, for Congress taking that action was that it was too much of a burden on the Congress to undertake to try contempt cases--

Mr. Gressman: Precisely.

Unidentified Justice: --because it interfered with their business.

Mr. Gressman: Precisely.

But that is basic to the whole public rights concept, that if it is something that Congress creates then it has a great deal of discretion in farming out some of those functions to the other branches as it may see fit.

Once it does farm out or delegate to the courts a matter which properly may be said to be a case or controversy, then Congress loses all kind of control to review a judicial decision.

But that is not what has happened in this case.

Unidentified Justice: Thank you, Mr. Gressman.

Mr. Gressman, may I inquire also whether historically the Congress has used its sovereign power over aliens to enact specific legislation to deport specific individuals?

Mr. Gressman: I believe that... I'm not aware that they've ever used that power.

Now, they have had a number of private bills in the past to give them relief from--

Unidentified Justice: To give them relief--

Mr. Gressman: --That is right.

Unidentified Justice: --or give them status as permanent residents.

Mr. Gressman: That is true.

Unidentified Justice: But not to deport.

Mr. Gressman: But not to deport.

I'm not aware.

That might bring into play a bill of attainder operations.

At least that kind of an objection might be made to that.

But I'm not aware that they have ever used that kind of private legislation.

Unidentified Justice: Mr. Davidson, you have 15 minutes, without being charged with any of our recent colloquy.

ORAL ARGUMENT OF MICHAEL DAVIDSON, ESQ., ON BEHALF OF PETITIONER, THE UNITED STATES SENATE

Mr. Davidson: Thank you.

Chief Justice and may it please the Court:

Justice O'Connor, in response to your question, in our reply brief we describe the incident in 1940 in which the Congress considered legislation to deport Harry Bridges.

Attorney General Jackson roundly denounced that effort as totally unprecedented and a violation of all cardinal constitutional principles, and the Congress did not enact that legislation.

And this was at the very time that Attorney General Jackson had been advising the President that he may sign the Alien Registration Act of 1940, which initiated these procedures that are now under review.

Last term I stated Petitioner's argument why the judgment of the Court of Appeals should be reversed because of the inseverability of the statute or vacated because of the availability of alternative relief.

It remains our conviction that this is not an appropriate case in which to decide the merits of legislative review.

However, it is also the view of the Senate that it will serve the public interest to obtain, in an appropriate case or cases, the judgment of this Court on the constitutionality of legislative review procedures.

To that end, the Senate yesterday docketed in this Court an appeal from the en banc judgment of the District of Columbia Circuit in the Federal Trade Commission case.

The statute in that case authorizes the Congress to disapprove trade regulation rules of the Federal Trade Commission by concurrent resolutions of the Congress.

That statute is severable and the Congress in the Federal Trade Commission Improvements Act of 1980 established a special procedure to obtain judicial review and the judgment of this Court on its constitutionality.

We are therefore asking in that case that the Court reach the merits and decide the constitutional questions presented.

Unidentified Justice: You're adhering to your position here in this particular case that the statute is not severable?

Mr. Davidson: That is correct, and because it is not severable there is no relief which may be provided to the Petitioner and the issue should be taken up in a case in which effective judicial relief under Article III may be provided.

In determining whether to ask the Court to resolve the disagreement between its coordinate branches over legislative review, Petitioner has weighed competing considerations.

On the one side is the need for stability in the structure of government which has been developed in recent years by the political branches.

The executive paints a history of legislative overreaching and we have described a history of executive acquiescence or agreement.

But in fairness and in some detachment, I believe we can all step back and agree that the political participants have joined in the creation of these contemporary governmental arrangements and share responsibility for that.

Although the branches may be contending for relative advantage now, the ultimate interest is that of the Government of the United States as a whole in cautiously approaching the devices which are presently used to mediate political powers over arms sales, budget authority, and numbers of other matters to which legislative review has been applied.

These procedures serve important governmental purposes even when they do not result in actual disapproval, because they establish a framework for consultation and agreement between the political branches.

It is one of the ironies of this case that the Senate may be more in agreement with the Ninth Circuit than are the Respondents.

That court saw the need for restraint and the need to limit its decision in preference to a precipitous redistribution of present political power and responsibility.

The need for caution must be balanced, however, against the need for authoritative constitutional guidance.

The Congress may be expected to turn again to legislative review to solve new problems, and it is critically important to know whether such resolutions can be founded securely on procedures for legislative review or whether the Congress and the executive should look to other ways to accommodate their differences.

Therefore, when a controversy is presented in which the severability of the statute or the lack of alternative relief makes a judgment on the merits appropriate, the Senate will ask the Court, as in the Federal Trade Commission case, to decide the merits of the constitutional issue on appropriately narrow grounds.

On the merits of the present case, the claim is made that Section 244 abridges the President's role in the legislative process and his responsibility to faithfully execute the laws.

However, the history of the statute and an examination of its text shows that the statute preserves the balance between the branches while, in Representative Celler's words in 1940,

"providing a humane and reasonable solution to an issue over which the Congress and the executive have been at impasse. "

A case which brings into question the process of legislation must begin with a decision made through that process to limit immigration.

But from the outset that basic legislative decision has been the subject of stresses resulting from the openness of borders and the nation's hospitality to tourists and students and others.

Unidentified Justice: Well, is anyone challenging the plenary power of Congress over these broad matters of immigration?

Mr. Davidson: No, but what is being asked in this case is to transmute a very limited effort to provide relief into a general authority on the part of the executive to confer amnesty subject to no review.

And what I would like to do is to describe to the Court the nature of the legislative decision that was made, to see--

Unidentified Justice: Doesn't that bear on your severability argument, too?

Mr. Davidson: --Oh, it bears very directly, and it is indeed very difficult to separate the severability point from our analysis on the merits.

Our analysis on the merits is to demonstrate that this particular sharing of power... and it is a sharing of power... is quite unique under the laws; and the two parts of it, the discretion of the Attorney General to make recommendations and the power of the Congress to allow an alien to change his status from deportable under the laws to lawful permanent residence, are integrally related.

One response to the tensions which have resulted from restrictions on immigration has been the periodic consideration of amnesty, and from time to time the Congress has granted discretion to the executive to register as permanent residents aliens who had entered the United States prior to statutorily designated dates, and we are now at a critical moment in the consideration by the Congress of the broadest grant of amnesty ever.

Section 244 began in the 1930's as an executive request to the Congress for the power to confer amnesty.

The proposal encountered all the problems which amnesty proposals have since encountered.

It is difficult to strike a balance between the compelling circumstances of individuals and the strong national desire to enforce the legislative decision to limit immigration.

In the course of the seven-year debate which ensued, the Congress considered but could not obtain agreement on various of the alternatives which the Solicitor General has properly described as constitutional.

For example, the Solicitor General correctly suggests that Congressional control may be maintained by a legislative decision to limit a delegation of authority to a specified period of years.

The House bill in 1937 would have done that, by limiting the availability of relief for a period of four years.

But that proposal failed in the Senate, which had been opposed to the grant of any discretion to the executive to grant permanent residence to deportable aliens.

Or, as the Solicitor General indicated last term, the statute might have been passed to authorize the executive to recommend cancellations of deportations, but to require legislation to actually cancel those deportations.

Indeed, the House-passed bill in 1939 would have established that very procedure.

But the Administration rejected that as inadequate.

At that point the Congress could have determined that neither bicameral agreement nor agreement with the executive branch to a relief procedure was possible.

It could have declared that it had done its constitutional best and simply let the affected class be deported.

But by that time it was May and June of 1940 and an alternative to deportation in time of a world at war was deemed essential.

The Congress persisted in its effort to resolve the seven-year impasse and invoked those procedures which contribute to successful political resolutions.

First the Congress consulted with the executive.

Professor Mansfield relates in a contemporary account that the Senate Judiciary Committee substituted a Labor Department draft, and Senator Connally described to the Senate how the Judiciary Committee had called on the Department of Justice

"and had the Solicitor General with us. "

I cannot say what attention the Solicitor General paid to the relief provisions of the Alien Registration Act, as there were other important provisions.

But that Act is not lengthy, and Senator Connally further stated,

"We went over all the existing laws and worked the new provisions into existing laws so as to make a harmonious whole. "

Important in this respect, Congress incorporated into the Immigration Act the legislative review procedures of the Reorganization Act of 1939, which Presidents continued to support and which the Department of Justice has supported for decades, until disowning it in this litigation.

And then, after fashioning this statute in consultation with the executive, the bill received bicameral support and was presented formally to the executive for the approval of the President, which it received.

Section 244 establishes a procedure to grant permanent residence.

It is not a deportation statute.

The only status which may be changed by Section 244 is from deportability to lawful permanent residence.

Under these arrangements, the legal authority for the Attorney General to record the permanent residence of a deportable alien derives from the Act, which had been approved through the process of bicameral agreement and presentation.

The procedures of Section 244 preserve the balance among the three participants in the legislative process, the two houses and the executive.

Each must concur in the form established by the statute for there to be a change in the legal status of an alien from deportable to lawful resident.

Unidentified Justice: How does the executive get into the process at the stage of Resolution 926?

Mr. Davidson: The executive precedes it.

This is an arrangement which changes the order of decision but preserves the role of each branch.

The legal status of a deportable alien may not be changed unless the executive initiates the request to the Congress and unless the two houses, through the mode of acquiescence or, in the case of criminal aliens, through a positive resolution of approval, concur.

And in fact, that was one of the purposes of the statute in 1939 and '40, which was to take the burden from the alien of initiating private relief procedures by finding a member who would introduce a bill and conferring that burden on first the Department of Labor and then the Attorney General to screen, to recommend, while leaving effective control in the Congress to determine whether the law may be suspended.

And that's a significant element of this case.

We're not talking about the creation of new rights through the process of resolution.

We are talking about the suspension of existing mandates of the Congress to deport individuals who meet certain standards or who fail to meet them.

And in order to give that individual a new status, the status of a permanent resident with eligibility for citizenship, it was determined fundamentally important that all participants in the legislative process take part, even though the order of consideration would change, the initiative would come from the executive and consideration then be had by the Congress.

The concurrence by the Congress in the grant of permanent residence to a deportable alien only confirms the view of the executive that permanent residence should be granted, and is of course totally beneficial to the aliens whose status is changed.

And therefore, even if questions may be asked about legislative review in other contexts, there is no one before the Court who may claim to be injured by the procedures for granting permanent residence through Section 244.

I would like to reserve the balance of my time for rebuttal.

Chief Justice Burger: Mr. Solicitor General.

ORAL ARGUMENT OF REX E. LEE, ESQ., ON BEHALF OF APPELLANT/RESPONDENT, THE IMMIGRATION AND NATURALIZATION SERVICE

Mr. Lee: Mr. Chief Justice and may it please the Court:

The power to legislate is the power to make law, to change people's rights and obligations.

It is the most important power of government and in the view of those who wrote the Constitution it has the greatest potential for abuse.

The Constitution is unusually explicit concerning how this legislating power, this power to make laws, is to be accomplished: either passage by both houses of Congress and presentation to the President for his approval or, in the event of veto by the President, passage by two-thirds of both houses of Congress over his veto.

In recent times Congress has invented a device which circumvents these basic constitutional requirements, eliminates the President from his constitutionally guaranteed participation in the lawmaking process, and switches the authority to legislate, to make changes in the legal rights and obligations that people would otherwise have, to Congress acting alone by majority vote or to a single house or committee of Congress.

The legislative veto in this case suffers from the same defect as the legislative veto in any other case.

Whatever labels one may choose to attach to it, no label can obscure the fact that a legislative veto is something that Congress does.

It is an official governmental act by Congress.

If it is not legislative, if it is, as Mr. Gressman said, non-legislation, then Congress doesn't have the authority to do it, because as this Court made clear in Buckley versus Valeo and Springer versus Philippine Islands, the legislative power is the power to make laws.

And if it is legislative in character, then it must comply with the constitutional prerequisites for legislation, passage by two houses and approval by the President.

Whether it's a legislative no or a legislative yes is beside the point.

Congress has in any event made law.

It has affected people's rights.

Absent what the House did to Mr. Chadha in this case, his status would have been adjusted from deportability to a lawful permanent residence, a very important change, and today he would be a citizen of the United States.

It is true, as Mr. Davidson says, that he had no right to have the Attorney General change his status prior to enactment of the original legislation, the Immigration and Nationality Act of 1952.

But that legislation made law, made it in the proper way, two-thirds passage over President Truman's veto.

That statute gave to the Attorney General the authority to make law as to Mr. Chadha and others like him, and from that point forward he did have the right to have the dispensation that the Attorney General gave to Mr. Chadha and others like him in this particular case.

In those few instances in which the Constitution authorizes Congress to act other than through legislation, the textual authorization is explicit and narrow.

Examples are treaty ratification and appointment confirmation by the Senate and the proposal of constitutional amendments.

When the framers intended to authorize exceptions, they knew how to do so and they did so in narrow and explicit terms.

Other than those exceptions, the authority granted to Congress is, as this Court said in Buckley and Springer, the authority to make laws.

Unidentified Justice: Well, what makes you think that you're going to find explicit provision for everything the Congress can do in the Constitution?

The President certainly has issued innumerable executive orders since the beginning of the nation and I don't think there's anything in Article I that talks about executive orders... Article II.

Mr. Lee: The difference is, Justice Rehnquist, of course that the Constitution is explicit on this one point, and that is that if Congress is to act other than in a non-legislative fashion, such as dealing with adjournment, ratification of treaties and so forth, it must present its work product to the President for his approval.

On one day the framers passed clause 2 of Article I, Section 7, in which they said that all bills must be presented to the President, and then in explicit fear that Congress might be able to act to affect people's rights other than by a bill, they added the next day clause 3 of Article I, Section 7, which expanded that to all orders, votes and resolutions.

The Senate also suggests that the legislation requirement was met in this case by the original legislation when the Immigration and Nationality Act first became law in 1952.

This is nothing less than an invitation to rewrite the Constitution in its most fundamental respect.

It would mean that Congress, acting all by itself by a two-thirds vote, could remove both the bicameralism and the presentation requirements from all future lawmaking efforts.

And in fact, this case involves nothing less than that issue.

If one house of Congress can lawfully change the otherwise applicable law establishing Mr. Chadha's rights as it did in this case, then I know of no intellectually defensible way to distinguish a statute in which Congress makes every action, rulemaking or adjudication, by every department or administrative agency in the Government subject to veto by one or both houses or even one committee.

The President would surely veto the original scheme, but by a two-thirds vote overriding that veto Congress could eliminate the President's constitutionally vested power to participate in lawmaking and thereby bring to pass the very result that was the framers' most deeply held separation of powers concern.

And from that point on Congress would be home free with a new power not recognized in the Constitution, and all that it took to bring that about is a two-thirds vote by Congress itself.

Mr. Gressman refers again to the unique sovereign power vested exclusively in Congress to deal with aliens.

The Constitution does in fact grant broad power over matters of alienage, but it is not a power that belongs to Congress alone.

When this Court ruled in our favor in the Placencia case just a few weeks ago, it was dealing with a statute that was enacted by the legislative process: both houses of Congress with the approval of the President.

The power to deal with aliens is a power, therefore, that belongs to a majority of both houses with the concurrence of the President or to a two-thirds majority of both houses acting together, following the President's disapproval.

And for the same reason, the necessary and proper clause gives by its own terms the power to make all laws which shall be necessary and proper.

We deal here with constitutional commands which are unusually explicit and concerning whose purposes the framers left no doubt.

No. 73 of the Federalist Papers referred to the propensity of the legislative department to intrude upon and absorb the powers of the other departments.

And this Court in Buckley versus Valeo observed, quoting from... excuse me... observed that the debates of the Constitutional Convention and the Federalist Papers are replete with expressions of fear that the legislative branch of the national government will aggrandize itself at the expense of the other two branches.

That is a correct statement.

Anyone who reads those debates and the Federalist Papers comes away with the unmistakable conclusion that there was no concern that more dominated the debates of that summer of 1787 and the period of passage and ratification between 1787 and 1789 than that which Justice White characterized in his separate opinion in Buckley versus Valeo as an overweening Congress.

And it is equally clear what the framers did in response to that concern, that with specific regard to that very concern they built into the Constitution two requirements: the first, that laws be passed by two separate houses of Congress; and second, that any Congressional attempt to make law, to change people's rights and obligations, must be presented to the President.

Let me say just a brief word about separation of powers.

The Immigration and Nationality Act is a massively complex Act, with literally hundreds of provisions.

Congress assigned the responsibility of carrying out most of those provisions to the Attorney General.

But in the case of Section 244(c)(2) it assigned the enforcement job to itself, acting through either House.

The fact that Congressional law enforcement occurs only after executive enforcement, and then only in the event that either house disagrees with the executive, helps not at all.

It lies outside the power of Congress to say, we will wait and see how you execute this law we have passed and if we don't like the way you have done it we will take over the job ourselves.

Congress has also squarely usurped the judicial function.

In this very case, Congressman Eilberg explained the reason for this particular veto.

It was that Chadha and five others

"did not meet the statutory requirements. "

Plain performance of a plain judicial function.

Unidentified Justice: General Lee, as I recall it the Ninth Circuit's opinion rested both on the usurping or interference with the executive power and also on interference with the judicial power.

Do you assert both of those grounds here?

Mr. Lee: Yes, I do.

Yes, I do.

In this particular instance it was a clear exercise of the judicial power.

Congressman Eilberg explained the reason that Congress should take the particular position that it did.

Unidentified Justice: Well, who had exercised the judicial power that was being interfered with?

Mr. Lee: Well, it is well settled and has never been a matter of dispute that the Attorney General initially has the authority in implementation of the statute to make the determination that he makes.

Unidentified Justice: Well, that isn't a judicial determination.

Mr. Lee: That is correct.

That is an executive determination.

But in this particular instance, it was Congress itself rather clearly that said, we conclude that he did not comply with the judicial standards... or excuse me, did not comply with the statutory standards.

Now, if that were the case that's an issue that should have been raised in court, either by Mr. Chadha in the event that he contended... if it had gone the other way it could have been raised in court by Mr. Chadha.

Unidentified Justice: Well, but it didn't go the other way.

Mr. Lee: That is correct, and for that reason Congress in effect stepped in and in effect appealed from that determination, and necessarily exercised a judicial power.

Unidentified Justice: Congress' overriding of the Attorney General's executive decision is an interference with the judicial power?

Mr. Lee: It is an... it is an interference with the executive power by exercising a judicial power, which was to interpret the statute.

Unidentified Justice: Would it not be more accurate to describe the Attorney General's power, whatever it is, as something in the nature of a quasi-judicial power?

Mr. Lee: He does exercise something like judicial authority.

He exercises a conglomerate of authority that is necessary to his implementation of the statute and that necessarily also includes--

Unidentified Justice: Are there other areas where that kind of quasi-judicial power is delegated to the Attorney General?

Mr. Lee: --I know of few instances of either adjudication or rulemaking, particularly rulemaking, that do not require some exercise of a judicial type power.

Finally, notwithstanding the framers' concerns and the unusual precision with which they required not only passage by two houses, but also that all bills, orders, votes be presented to the President, the House and the Senate consistently suggest that legislative vetoes ought to be sustained because our system needs them.

They are, we are told, hybrids that work.

Parenthetically, it would appear from the only empirical study on the subject and from the experience of the American Bar Association that that premise is in fact lacking.

But the real defect is that whether correct or incorrect the argument is irrelevant.

Constitutional defects cannot be cured by practical expediency.

In this case and two others now pending on petitions for certiorari and appeals before this Court, eleven members of two separate Courts of Appeals have unanimously concluded that the Constitution means what it says.

Those eleven judges were correct and the judgment of the Ninth Circuit Court of Appeals in this case should be affirmed.

Chief Justice Burger: Thank you, Mr. Solicitor General.

Mr. Morrison.

ORAL ARGUMENT OF ALAN B. MORRISON, ESQ. ON BEHALF OF APPELLEES JAGDISH RAI CHADHA ET AL.

Mr. Morrison: Mr. Chief Justice and may it please the Court:

In defending against the presentation clause and separation of powers arguments made by Respondents here, the Senate and House argue most clearly perhaps in the House of Representatives supplemental brief that what is at issue here is the power of Congress over aliens.

We submit that that is no more true here than was the question of the power of Congress over elections at issue in Buckley against Valeo, or the power of Congress over bankruptcy at issue last term in the Marathon Pipeline case.

The question is not, we submit, what is the power of Congress, but by what means must Congress exercise that power over aliens in this case.

Any time it wants, Congress, that is two houses and the President concurring together, can change the law.

They can eliminate Section 244 entirely.

They can make us go back to the days of private bills.

They can import new standards of flexibility.

They can have more or less of it as Congress chooses.

What Congress cannot do, what the Constitution forbids it from doing, is to delegate to one house of Congress the power to make those changes in the law and to perform those functions regarding aliens.

Now, Congress tries to avoid this argument and by avoiding the argument of the requirements of Article I by saying that we don't have action by Congress here and that all that happened was that the Attorney General had made a recommendation to Congress and that recommendation failed passage in the House of Representatives, and therefore like so many other recommendations that fail it does not implicate the requirements of Article I, Section 7, of the Constitution.

The difficulty with that argument is that it neither comports with the operation of Section 244 nor does it deal with or fit in with our constitutional requirements under Article I for lawmaking.

This is best illustrated, I suggest, by examining the entire matter that was before Congress in 1975 when Mr. Chadha and five others were vetoed.

340 aliens had the Attorney General's approval.

Only six, Mr. Chadha among them, were disapproved by House Resolution 926.

Viewed alone, that might be seen simply as saying that they failed of approval like other recommendations failed of approval.

This, however, doesn't account for the fact that 334 other aliens who were sent up in the same general time frame as Mr. Chadha became three days later than the House Resolution 926 was passed entitled to have their status adjusted, simply because of the passage of time and the fact that no resolution of disapproval had been introduced in either house for them.

So that we have a situation in which 334 aliens had their status adjusted, according to the Senate and the House, by the passage of time and acquiescence by silence, and Mr. Chadha and five other unfortunate aliens had their status referred back to deportability by the action of a single house of Congress.

Unidentified Justice: Would you say that that silence equated to non-legislation?

Mr. Morrison: Well, I have trouble with the non-legislation versus legislation.

It seems to me that what silence means is much more clearly in terms of it defining what the action meant.

That is, that the action was adverse action to Mr. Chadha and five others and it wasn't simply the failure of recommendation, because silence under our Constitution, Article I, Section 7, does not enable a law to be passed.

Laws are passed by two houses of Congress with the concurrence of the President or a two-thirds vote overriding his veto, and that is not what happened with respect to any of the 334 aliens.

Therefore, I conclude that the description as mere failure of approval of Mr. Chadha and five others is wholly inaccurate, as it would be inaccurate and unconstitutional to say that the other 334 could have successfully had their status changed simply by the passage of time.

In fact, of course in this case the reason that Mr. Chadha's status was adjusted was because of the veto, and this veto is not something that's authorized by the Constitution.

Ours is a system of limited powers.

The framers did not provide for one-house vetoes over aliens, although they did provide for two one-house vetoes in the Constitution itself, both of them by the Senate, over the power of the President to make treaties and the President's powers of appointment.

Those are explicit one-house vetoes.

They're contained in the Constitution, and their absence here makes it more compelling that the Court should not imply that Congress is authorized through one house to veto actions of the executive.

It is for this reason that we contend that the action by the House of Representatives here is unauthorized under the Constitution and hence is not proper within the meaning of the necessary and proper clause so heavily relied upon by the House and Senate.

In defining the scope of the term "proper" in the necessary and proper clause, this Court in Marbury versus Madison required that the legislation be both necessary and proper and, in terms of propriety, that it meet both the letter and spirit of the Constitution.

Not only does this veto run contrary to the specific requirements of the Constitution, but it also violates its spirit.

The veto here is nothing more than a legislative shortcut, and because of the legislative shortcut it eliminates the role of the President and the other house.

But it also runs counter to the entire process by which we... the framers established our lawmaking, under which deliberation was the keynote, and the precipitous action by a single house prevented... would not comport with the need to have well-considered deliberative decisions made.

This point about the need for deliberative decisions relates to another point I want to make, and that is that although the activities here are portrayed as an interbranch struggle, this case illustrates that the lives of individuals are very much at stake in controversies such as this.

That is, that the legislative veto is more than a battle between the President and the Congress.

Similarly, our constitutional system was established not simply to have a bicameral system with each house being individually represented and the President assured of a role as a means of satisfying three separate power blocs.

It was not given to do the lawmaking in order to assure that each had a share of the legislative pie.

The framers were concerned with the avoidance of unwise, oppressive, discriminatory or hasty legislation, and in order to do that they established procedures with sufficient checks and balances built into them to make it far more difficult for Congress to act in a precipitous manner.

And it is these institutional checks against unwarranted and unwise action, as much as the formal requirements of the Constitution, that the veto transgresses.

This case is a perfect example of it.

The Attorney General, after carefully considering the facts of this case, the statutes, the precedents, concluded in a formal proceeding that Mr. Chadha was entitled to an adjustment of status and to remain in this country.

Unidentified Justice: How do you characterize the Attorney General's power that was delegated to him, Mr. Morrison?

Mr. Morrison: I believe it is a power to carry out the laws and to administer the laws, an executive power.

I believe that the violation here can very well be seen as either lawmaking by the Congress through the House of Representatives or it can be viewed as improper interference with the executive carrying out of the function.

In the Senate supplemental brief they make four separate references to this desire to share the responsibility for carrying out the laws.

That is precisely what the Constitution forbids.

So if you view what the House did as lawmaking, it runs afoul of Article I, Section 7.

On the other hand, if you view it as sharing the responsibility, it runs afoul of the separation of powers principles which are throughout our Constitution.

Congress makes the law; it does not carry out the law.

Finally, to the extent that you could view what Congress did here... and in part because of the very hasty proceedings and the rather cryptic remarks by Congressman Eilberg, it's impossible to tell precisely what was in the minds of even Congressman Eilberg, let alone the rest of them.

If you view that as an action in which they were judging, as Article III judges would judge, whether the Attorney General had complied with the statute, then once again the Congress is performing a judicial function.

It is not, Mr. Justice Rehnquist, so much as though they are interfering with any Article III judge, but that members of Congress would be performing a function which our Constitution has reserved for Article III judges.

The point is important because it gets out of the conundrum of trying to figure out how to label the action of Congress.

In our view, it doesn't make any difference what the House of Representatives was doing.

If it was engaging in judicial activities or executive activities, then it runs afoul of separation of powers.

On the other hand, if it was engaged in legislative activities it failed to meet the requirements of Article I, Section 7.

So that viewed in any of these ways the legislative veto is improper.

Indeed, it makes it clear that it's improper whether or not the agency performing the function being vetoed was an executive agency or an independent regulatory commission, as it is in the two other cases that are pending.

Similarly, it makes no difference whether the activity was adjudication, either formal or informal adjudication, or whether it was rulemaking, formal or informal.

The focus in the challenge here and in the other cases is on the legality of what the House of Representatives or the two houses of Congress acting without the President did.

It makes no difference what the particular activity that the executive performed was, because we are questioning here the legality of what the Congress did.

And for that reason, a decision here would carry with it a decision that all of the vetoes are unconstitutional for the same analytical reasons that we've suggested here.

And it is for that reason that we say that the attempt to postpone the decision is not, an attempt to postpone the decision on this case, is one that ought to be accepted.

This case presents precisely what is wrong with the veto... a Congressional interference in a non-lawmaking capacity with what the executive branch has done.

And for that reason, under either of the three analyses I've set forth the veto is unconstitutional and should be set aside.

Thank you, Your Honor.

Chief Justice Burger: You have one minute remaining, Mr. Davidson, if you wish to use it.

ORAL ARGUMENT OF MICHAEL DAVIDSON, ESQ. ON BEHALF OF PETITIONER, THE UNITED STATES SENATE -- REBUTTAL

Mr. Davidson: To reiterate a point of the last argument, the question of severability in this case is very much a question of separation of powers also.

The entire history of this effort to reach accommodations between the two branches from the 1930's on has involved at critical points requests by the executive for new and enhanced authority, which as this history demonstrates often would not have been granted without--

Unidentified Justice: Mr. Davidson, if you lose this case Congress can recapture all the powers that it wants to recapture, just repeal the provision that's at issue.

Mr. Davidson: --It would in any case have to recapture that power over the veto of the President.

Our point is it should return, if at all, to the status quo ante and establish a new basis for shared power after that.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.