The Court's holding that veto provisions are unconstitutional does not end all judicial inquiry. A critical determi nation must be made with respect to each and every exist. ing provision whether the offending veto can simply be excised, leaving the remainder of the statute intact, or whether the veto and the delegated authority to which it is attached are so inextricably interwined that both must fall. Resolution of this issue in each instance is of vital im portance. Where only the veto provision is excised, leaving the Executive with a new unencumbered power, Congress is faced with the possibility that it will have to muster twothirds majorities to retrieve a delegated authority that the President wants to keep.

In Chadha the Court reaffirmed its traditional three-part severability test. First, a court will look for the presence or absence of a severability clause which provides that the invalidation of part of an enactment does not invalidate the whole or any other part of it. Such clauses create a presumption that Congress did not intend the validity of the act to depend upon the invalidity of any of its parts. Next, since the presence of a severability clause is not conclusive, a court must look to the legislative history of the act to see whether Congress supplied any evidence that it would not have enacted the provision in question independently of the portion that has been found unconstitutional. A court will attempt to interpret the legislative history in each particular circumstance, a task the Chadha Court described as an "elusive inquiry." Finally, consideration must be given to whether the provision, absent the excised part, "survives as a workable administrative mechanism." By implication, if a provision without the veto is not functionally operable, the entire provision or act falls.

The statute in Chadha contained a severability clause and after analyzing the legislative history of the act, the Court found indications that even without a legislative veto, the act would serve some of Congress' purposes and therefore would have been enacted absent the veto. It also noted that effective congressional oversight over the delegated authority remained since the Attorney General would still have to report his actions to the Congress.

While this test portends a case-by-case resolution is in the offing, and a period of uncertainty for existing statutory authorities, there is some indication that the Court may view the presumption of severability in veto cases as

stronger than in other cases. The absence of a severability clause was apparently not a serious impediment to the Court's summary affirmance of the gas pricing case. Lower courts may be inclined to accept severability as the rule in order to avoid prolonged uncertainty or possible wholesale invalidations.

Congressional Responses

A sampling of the immediate congressional reaction to the Chadha decision gives some indication of the variety, and vagaries, of the possible responses. It may also provide the basis for a vehicle for developing a considered institutional approach.

Congress' time-honored response to fast-breaking, controversial political events is to hold a hearing. The announcement of the legislative veto decision proved no exception. But instead of becoming vehicles for the excoriation of the Court or calls for legislative defiance or means of subverting or evading the ruling, the sessions were for the most part exercises in information gathering, self-education, and airing of genuine Member concerns over the High Court ruling. They reflected to an unusual degree the deliberative aspect of the legislative process in its best sense. Hearings before the House Committees on the Judiciary and Foreign Affairs and the Senate Committees on Foreign Relations, Judiciary and Finance, provided forums for exchanges between Members, administration and agency officials, legal experts, and academic scholars that appeared to deflect any institutional tendency toward a "Chicken Little" attitude or an impulse for an immediate global response.*

Some of the Members did present comprehensive proposals. Representative Jacobs and Senator DeConcini proposed constitutional amendments (H.J. Res. 313, S.J. Res. 135) which would allow one or two-House vetoes of agency rules. Both proposals assume the essentiality of the device but would limit its availability to the rulemaking process alone. In view of the long, unresolved controversy over the veto's efficacy, in addition to foreseeable difficulties in defining basic terms (what is a rule?), such a significant alteration of our fundamental law presents many problems.

Certain to be a popular substitute for the veto will be the joint resolution. Senators Levin, Boren, Grassley, Kasten and DeConcini have sponsored one version (S. 1650) which would provide for a joint resolution of disapproval of all agency rules. Representative Lott introduced a bill under which a major rule could not take effect unless Congress enacts a joint resolution of approval within 90 days. Minor rules may take effect after 90 days unless a joint resolution of disapproval is enacted within that period (H.R. 3939). A harbinger of the use of this control device unfolded during the House debate on the Consumer Product Safety Amendments of 1983 (H.R. 2688), six days after the announcement of the Chadha decision. In an effort to fill the void left by the now defunct two-House veto of Consumer Product Safety Commission rules, the House adopted an amendment offered by Representative Waxman permitting Congress to disapprove Commission rules within 90 days by joint resolution. The House also adopted an amendment by Representative Levitas requiring Congress to approve Commission rules by joint resolution before they can go into effect. These mutually exclusive provisions are now in conference committee for resolution.

Widespread use of the joint resolution mechanism, however, may be soon limited if the House Rules Committee

has its way. Its popularity in large part rests on the proce dures for expedited floor consideration that normally accompany it. The prospect of continued proliferation of such automatic discharge provisions has raised Committee concerns that their cumulative effect has the potential for disrupting the legislative process by giving high priority to too many measures, thereby "prevent[ing] the House from reaching matters of greater importance to which no special procedures attach." These factors, plus the implications for the Rules Committee's jurisdictional authority over floor access, may limit the appeal of this review device.

Chadha has also inspired the revival of the so-called Bumpers Amendment, a proposal which would enlist the courts as more active participants in the effort to make the administrative bureaucracy more responsive to the will of the people as expressed by Congress. In its current version (S. 1766), any presumption for or against the validity of a rule on review before a court is removed and the factual basis of rules under scrutiny have to have "substantial support" in the record of the agency proceeding. In the past the proposal has been criticized for its potential for causing even greater delay in agency action and inspiring excessive litigation. Critics have also questioned whether fostering increased intervention in the administrative process by the courts is an appropriate judicial role. An earlier version of the Bumpers Amendment passed the Senate in 1982 as part of the Regulatory Reform Act (S. 1080).

Another device sure to find expanded use is the "report and wait" requirement which in its usual form delays the effectiveness of administrative action for a specified period to allow Congress time to consider passage of legislation. The Supreme Court in Chadha reaffirmed the legal standing of such provisions. Suggested departures from the basic report-and-wait format, however, raise constitutional issues. For example, requirements that allow a committee to waive part of the wait period, or permit a committee to trigger an additional period of time for congressional consideration, are suspect. Arguably, such committee actions are in themselves legislative acts which have an effect "of altering legal rights, duties and relations... outside the legislative branch" and thus run afoul of Chadha. The Justice Department has adopted this position.

A number of proposals have sought to avoid Chadha's strictures by cesting review provisions in a way that makes them appear to be exercises of legislative rulemak. ing authority affecting only internal congressional concerns. A typical provision might authorize a certain executive action but allow for passage of a concurrent resolution urging administrative modification or cancellation of the action. The adoption of such a resolution would make it out of order for either House to consider appropriations which would fund the disapproved activity. This mechanism in the limited form described would appear to unaffected by Chadha. The direct and immediate effect of the concurrent resolution is confined to the House and Senate in the matter of appropriations. Although denying funds would impact on executive agency plans, that is a direct result of appropriations action and only tangentially from the concurrent resolution.

An Institutional Approach

The remedial approaches just described represent largely ad hoc responses that are neither unexpected nor inutile. Chadha abruptly upset a broad range of congressional expectations, understandings, and lawmaking habits. The de

sire to substitute familiar forms or to reestablish familiar working arrangements is natural. If trial and error should prove that old methods no longer provide the flexibility or desired result in addressing executive actions, that may encourage the creation of new and more useful forms of response.

The ad hoc approach, however, suffers from the serious disadvantage of limited view. One lesson to be learned from the 50 years experience with the legislative veto is that for all the legal controversy it engendered, it most often was used in a discrete, situation-oriented manner and often succeeded in facilitating interbranch accommodations in areas of great political sensitivity. It seems that only when the congressional appetite for control of executive action by means of the mechanism appeared to become insatiable, particularly after 1980, and increased resort to its generic use became more common, did judicial sensitivity become aroused. It may be speculated that passage by the Senate in 1982 of a legislative veto provision encompassing all government rules as part of a broad regulatory reform package influenced the Supreme Court's deliberations on the Chadha case then pending before it. The prospect that Congress might now be ready to take a preemptive role in administration may go far in explaining why the Court chose as narrow a factual circumstance as the Chadha case to issue so broad and definitive a ruling.

The lesson, then, may be that in meeting the situation created by Chadha, Congress is presented with the opportunity, if not the necessity, of developing a measured institutional response. Several institutional courses of action have been put forth. Senator Moynihan has proposed the creation of a 12-member bipartisan interbranch study commission which would report its recommendations within a year. Representative Moakley, in a wide-ranging assessment presented before the House Judiciary Committee on July 21, counseled congressional avoidance of the pitfall toward which he felt the veto was heading. He warned that Members should not immerse themselves in every item of agency regulation and adjudication, a task which the institution has no capacity to manage. Rather, individual situations should be met by measured responses tailored to the particular circumstances. Interbranch communications should be facilitated and the development of informal, cooperative arrangements should be encouraged.

Mr. Moakley concluded that a long-run strengthening of the Congress will require facing the need for major structural changes in congressional oversight techniques and the manner in which Congress legislates. In this regard he suggested further consideration of his proposal in the 97th Congress (H.R. 1) as a vehicle for coordinated review of administrative, congressional, and judicial aspects of regula tory reform. A central feature of the bill was establishment of a select committee with broad authority to review proposed and existing rules in a manner not possible under the existing committee system.

Congress, admittedly, has lost a tool which has, in its better applications, proved useful and efficient. But, by restraining Congress from immersing itself in every item of regulation and adjudication, the court has saved Con gress from drowning in detail it lacks the institutional capacity to manage, and freed it to act within the scope of its legitimate role for shaping national policy.

-Rep. Joe Moakley, statement before the House Committee on the Judiciary, July 21, 1983.

joint resolution that must be signed by the President and is therefore not affected by the Chadha decision. This action met the concerns of the Rules Committee, but since a joint resolution can be vetoed by the President, Congress might have to muster a two-thirds majority in each House to override the President.

Congress has used legislative veto provisions in the foreign policy field for many years to maintain a check on the President. Most of the legislative vetoes, however, have been added since the early 1970's when Congress became determined to play an expanded role in the making of foreign policy. If the leverage imparted by a legislative veto is no longer available, Congress may find it more difficult to check the President without reducing his flexibility, or to share effectively in the formulation of foreign policy without writing into legislation too many administrative details.

Congress has never actually carried out a legislative veto by simple or concurrent resolution in foreign affairs. On two occasions Congress came close. The House passed resolutions to disapprove the sale of nuclear materials to India in 1980 and an AWACS and F-15 enhancement package to Saudi Arabia in 1981, but each time the President waged a successful campaign in the Senate to prevent passage of these concurrent resolutions of disapproval.

On the other hand, experience suggests that the very existence of the legislative veto may have stimulated greater attention to, and respect for, congressional views.

War Powers Resolution

The continuation of the Vietnam War without a congressional declaration of war led to the War Powers Resolution. Passed over President Nixon's veto on November 7, 1973, the War Powers Resolution established an arrangement for mutual exercise of the war powers, which the Constitution divides between Congress (giving it the power to declare war and to maintain an army and navy) and the President (making him Commander-in-Chief).

The War Powers Resolution has two provisions that give teeth to its central purpose: namely, both Congress and the President should share in any decision that might involve U.S. armed forces in hostilities. One provision is a legislative veto of the type struck down by the Supreme Court. Section 5(c) requires the President to remove U.S. forces engaged in hostilities outside the United States "if the Congress so directs by concurrent resolution." The other provision utilizes a procedure that apparently is not affected by the Chadha decision. After a report on the introduction of U.S. armed forces into hostilities or imminent hostilities outside the United States is submitted "or is required to be submitted", Section 5(b) requires the President to terminate that use of the armed forces after 60 days (possibly extended to 90 days) unless Congress declares war, extends the period, or enacts a specific authorization for such use.

In testifying before the House Foreign Affairs Committee on July 20, 1983, Deputy Secretary of State Kenneth W. Dam expressed the view that the legislative veto provision was clearly unconstitutional but reaffirmed "the Administration's strong commitment to the principles of consulting and reporting" called for in the resolution.

The problem is that many in Congress have not been satisfied with the executive branch's reporting and consultation. Presidents have filed reports under the resolution in nine situations. Usually the reporting and consultation occurred after the decision to send troops had been made,

however, or the reports were not made under the provision that activated the 60-day time limitation. This was the case in the dispatch of Marines to Lebanon that led Congress to determine for itself that congressional authorization under Section 5(b) of the War Powers Resolution was required. In the Multinational Force in Lebanon Resolution, Congress determined that the requirement to report the introduction of troops into hostilities became operative on August 29, 1983, and, consistent with Section 5(b), authorized continued participation in the multinational force for 18 months. In certain other situations, including the increase of military advisers in El Salvador in 1981, the President has not filed a report at all.

In the decade since the enactment of the War Powers Resolution, no U.S. forces have been committed to longterm hostilities. It is doubtful that Presidents have refrained from such commitments because of the legislative veto in the War Powers Resolution. It would be equally doubtful that Presidents will now feel freer of restraints because of Chadha. The lesson of recent history is that a President cannot sustain a major military involvement without Congressional and public support.

-Kenneth W. Dam, Deputy Secretary of State, statement before the House Committee on Foreign Affairs, July 20, 1983.

Nevertheless, many Members of Congress believe that the War Powers Resolution has served effectively as a restraint on the President, making him more cautious in the dispatch of troops abroad and more sensitive of the views of Congress. To what extent such restraint will be affected by the Chadha decision remains to be tested by experience and in the courts.

Emergency powers legislation

Towards the end of the Vietnam War, Congress focused on the fact that the United States had lived under a state of national emergency, with its implications for growth of executive authority, since 1933. The National Emergencies Act of 1976 allows Congress by concurrent resolution to terminate a declared emergency after six months and requires Congress at six month intervals to consider a vote on such a disapproval resolution. Under the International Emergency Economic Powers Act of 1977, certain presidential authorities may be abated if the national emergency is terminated by Congress pursuant to the legislative veto provision of the National Emergencies Act.

President Carter first invoked the National Emergencies Act to activate the International Emergency Economic Powers Act on November 14, 1979, to deal with the seizure of American hostages in Iran and to block the assets of the Iranian government within the jurisdiction of the United States. The proclamation was continued in 1980, 1981, and 1982. Six months after the first declaration of national emergency, both the House Foreign Affairs and Senate Foreign Relations Committees sent letters advising the President that they supported continuation of the emergency and therefore were not taking action under the legis lative veto procedure to terminate it.

Foreign Assistance

Legislative veto provisions have not played a conspicu ous role in foreign aid. Congress has been able to maintain reasonable control because it regularly authorizes and appropriates funds for the program. However, the Foreign

Assistance Act of 1961, as amended, has always had a broad legislative veto in Section 617, providing that unless ended sooner by the President, assistance to any country under any provision of the act may be terminated by concurrent resolution of Congress. Congress has never utilized this section to terminate assistance and only a few resolu tions have been introduced under it.

Other legislative veto provisions have been added on subjects with which Congress became particularly concerned. Concern over human rights prompted Section 116 that provided for disapproval by concurrent resolution of aid to countries whose governments consistently violate internationally recognized human rights standards unless that aid directly benefits the needy people in those countries. The potential spread of nuclear weapons prompted Section 669 and 670 that provide for concurrent resolutions of disapproval of continued aid to countries that supply or receive items needed for uranium enrichment or reprocessing of spent fuel. After administration resettlement of debts owed by India, France, and the Soviet Union for less than face value, Section 321 of the International Development and Food Assistance Act of 1975 required two-House approval of the settlement of debts by any country under the development and food aid program for less than the full amount.

In addition to the above measures, foreign assistance appropriations acts have prohibited the transfer of foreign assistance funds between appropriation accounts, or the obligation of contingency funds under the Economic Support Fund, without prior written approval of both Appropriations Committees. The Carter and Reagan administrations maintained that this committee veto was unconstitutional, treating it as a requirement for prior notification only. Nevertheless, the executive branch has respected the opinions of the committees.

Arms Export Control Act

Congress has long been interested in arms transfers and gradually added more and more controls to insure that the intent of Congress in legislation was carried out. When arms transfers were made primarily through grants and loans, Congress had a method of control through authorization and appropriation legislation. The legislative veto became especially valuable as the bulk of weapons were transferred through sales.

First placed in the arms transfer legislation in 1974, the scope of the legislative veto gradually was extended and procedures refined to make it more effective in assuring a congressional voice in arms sales. Administration officials complained that the large number of transactions subject to reporting and congressional veto requirements were making the procedure burdensome and that Congress was too involved in operational details.

The principal arms transfer legislation in effect at the time of the Chadha decision, the Arms Export Control Act, allowed Congress to disapprove by concurrent resolution transactions in three categories: (1) cash, credit, or commercial sales of defense articles and services; (2) thirdcountry transfers of defense articles and services supplied by the United States; and (3) leases and loans of U.S. defense articles.

Congress never passed a concurrent resolution disapproving an arms transfer. Nevertheless, it appeared to be moving closer to doing so and in several instances the possibility appeared to have an influence on executive branch policy. In 1976, concurrent resolutions were intro

duced to block the sale of Hawk and Vulcan air defense systems to Jordan. Although the sale continued, the administration secured a pledge from Jordan that the Hawk missile system would be permanently installed at fixed sites as defensive weapons. In 1977 resolutions were introduced against the sale of Airborne Warning and Control System (AWACS) aircraft to Iran and appeared to influence the administration to obtain assurances from Iran on safeguarding the system. In 1978 the Senate rejected resolutions against a package of aircraft sales to Egypt, Israel, and Saudi Arabia, but only after the administration made concessions to alleviate congressional concerns.

Some observers believed that, even with the legislative veto, Congress was not able to influence adequately execu tive branch arms sales policy. Moreover, the unsuccessful attempt to disapprove the AWACS and F-15 enhancement package to Saudi Arabia in 1981 indicated the difficulty of obtaining enough votes in both the Senate and the House to override the President in a foreign policy confrontation. On the other hand, without the legislative veto, the President might listen to Congress even less on arms transfer policy.

Trade Legislation

Increasingly, Congress has delegated much foreign trade authority to the President. In doing so it has included sev eral legislative veto provisions in foreign trade legislation, but none of these provisions has been successfully used to overturn a Presidential decision. The veto provisions highlight areas in which Congress has been particularly interested in maintaining control: export controls on agricultural products, import relief, and trade with Commu

nist countries.

The Export Administration Act of 1979 authorized the President to impose export controls on the grounds of national security, foreign policy, or short supply. It contained two legislative vetoes relating to agricultural commodities and to the export of domestically produced crude oil. With the Act scheduled to expire on September 30, 1983, the Committee on Foreign Affairs reported a measure the day before the Chadha decision with several legislative veto provisions. Under pressure by the Rules Committee, the Foreign Affairs Committee subsequently amended the bill, usually by substituting joint resolutions of approval for concurrent resolutions of disapproval.

The Trade Act of 1974 includes four legislative veto provisions. One allows Congress to disapprove by concurrent resolution the President's determination not to provide import relief for injured industries exactly as recommended by the International Trade Commission. Other legislative vetoes covered the President's extension of trade privileges to non-market (i.e., Communist) countries that deny their citizens the right to emigrate. On August 1, 1983, the House decided to defer indefinitely three resolutions disapproving the President's recommendation to exercise his waiver authority and continue extending most-favored-nation status to Romania, Hungary, and China.

The Export-Import Bank Act of 1945 also contains a legislative veto on financial guarantees in connection with exports to the Soviet Union above $300 million.

Options for Congress

In considering the loss of the legislative veto after the Chadha decision, Congress can take two major approaches. One is to seek to maintain the same leverage over execu