tional rights were infringed. Once embarked on the slip-
pery slope of judicial intrusion into legislative coalitions,
the courts would be awash in internecine political contests,
all without any demonstration that the alleged injury is
"fairly traceable" or causally connected to the defendant
legislator's acts.

[Id. at 29-30]

On January 22, 1982, the plaintiffs filed a reply brief which argued, inter alia, that the standing issue was not properly before the appeals court since the question had been decided by the lower court in the plaintiffs' favor and no cross-appeal was taken by the defendants. The brief also urged the appeals court to adopt a balancing test as a guide for this and future cases:

The limits on the immunity of a political caucus to decide
fundamental Constitutional issues without judicial review
must be declared. The requirement of balancing the rules
power of a House of Congress with Constitutional voting
rights of Members must be reviewed by the judicial
branch. Some instruction in the required review and the
relative weights to be balanced would be helpful to the
trial court. For the reasons outlined, appellants urge the
remand of this cause to the trial court with appropriate
instructions. [Reply Brief of Appellants, January 22, 1982,
at 16]

Status-The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit. Oral argument is scheduled for March 19, 1982.

The complete text of the October 8, 1981 memorandum of the district court is printed in the "Decisions" section of this report at page 652.

Williams v. Bush

[See page 105.]

VII. The Constitutionality of the Legislative Veto and the
Legislative Directive

Chadha v. Immigration and Naturalization Service

Nos. 80-2170, 80-2171, and 80–1832 (U.S. Supreme Court) Jagdish Rai Chadha, a native of Kenya, was lawfully admitted to the United States as a student in 1966. When his authorized period of stay expired in 1972, he was summoned by the Immigration and Naturalization Service ("INS") to show cause why he should not be deported pursuant to section 241(a)(9) of the Immigration and Nationality Act ("INA") (8 U.S.C. § 1251(a)(9)). A hearing was held before an immigration judge on January 11, 1974, at which Mr. Chadha requested a suspension of deportation pursuant to section 244(a)(1) of the INA (8 U.S.C. § 1254(a)(1)).

On June 25, 1974, the immigration judge issued his decision, ordering that the deportation be suspended pursuant to section 244(a)(1).

Section 244(a)(1) provides that suspensions may be granted when an alien: (1) has been physically present in the United States for at least 7 years immediately preceding his application; (2) is of good moral character; and (3) would suffer extreme hardship if deported. (Although this authority is granted to the Attorney General, it has been delegated to "immigration judges," with an appeal to the Board of Immigration Appeals.)

Once the decision to suspend deportation is made, notice of the action is transmitted to Congress with a detailed explanation and justification for the decision. The suspension does not become effective until the close of the session of Congress following the one in which the decision is transmitted, and then only if during both sessions neither House has passed a simple resolution disapproving the decision, pursuant to section 244(c)(2) of the INA.

Mr. Chadha and five aliens whose deportation had been suspended by immigration judges lost their suspensions when on December 12, 1975, the House of Representatives passed House Resolution 926 (95th Cong., 1st Sess. (1975)).

On August 4, 1976, the immigration judge ordered Mr. Chadha deported pursuant to the House resolution. The Board of Immigration Appeals affirmed the order on February 11, 1977.

Mr. Chadha filed a petition for review of the deportation order with the U.S. Court of Appeals for the Ninth Circuit on July 18, 1977. The filing of the petition automatically stayed his deportation.

The petition challenged the constitutionality of the one-house veto as contained in INA section 244(c)(2). It argued that neither the constitutional provisions granting Congress the power to regulate immigration nor the Necessary and Proper Clause of the Constitution empowered Congress to contravene other constitutional provisions, and it asserted that the one-house veto did this in three ways. First, section 244(c)(2) violated the separation of powers doctrine. The petitioner claimed that the constitutional history of this doctrine demonstrated that one branch cannot perform the functions or control the performance of another, and that since section 244(c)(2) allowed a single house of Congress to perform nonlegislative functions and control the actions of an executive agency, it was unconstitutional.

Next, Mr. Chadha argued, section 244(c)(2) deprived the President of the opportunity to exercise his veto power under Article I, Section 7. The Framers of the Constitution, said Mr. Chadha, intended that a single executive would be given the opportunity to veto every Congressional action having the effect of law. Thus, since section 244(c)(2) was not subject to Presidential veto, it was unconstitutional.

Finally, Mr. Chadha claimed that the one-house veto provision violated the requirement of a bicameral legislature. According to Mr. Chadha, the Framers of the Constitution intended that every power of the legislative branch not expressly granted to a single house would be exercised by both concurrently. Therefore, since section 244(c)(2) allowed a single house to make law without the concurrence of the other, it was unconstitutional.

On November 4, 1977, INS filed a brief in which it concurred with Mr. Chadha's contention that section 244(c)(2) was unconstitu

tional. INS argued that the statute: (1) violated the principles of bicameralism; (2) denied the President his role in the passage of legislation; and (3) unconstitutionally usurped executive and judicial branch powers. Section 244(c)(2) and similar statutes, said INS, had significantly altered the constitutional distribution of powers to the detriment of fair and effective administration of law. Accordingly, INS asked the court to set aside the deportation order and reinstate the original suspension granted by the immigration judge at INS.

Because INS agreed that section 244(c)(2) was unconstitutional, the court asked both the House of Representatives and the Senate to file briefs as amici curiae defending the constitutionality of the statute. The House and Senate complied.

On December 22, 1980, the Court of Appeals for the Ninth Circuit issued its decision. The court held that the one-house veto provision of section 244(c)(2) of the INA constituted an unlawful assumption of essential judicial and executive branch functions and therefore violated the constitutional doctrine of separation of powers. [Chadha v. Immigration and Naturalization Service, 634 F.2d 408 (9th Cir. 1980)]

Before reaching the merits, the court addressed amici's claim that the case was nonjusticiable. In support of this claim, amici had argued that: (1) Mr. Chadha lacked standing; (2) the instant case presented a political question; and (3) by concurring with Mr. Chadha's claim that section 244(c)(2) was unconstitutional, INS failed to provide the adverseness of interest necessary for a judicial resolution of the case. Regarding standing, amici had argued that Mr. Chadha was asserting a generalized grievance shared by a large number of other individuals. They had also claimed that Mr. Chadha was actually asserting the rights of the executive and judicial branches. The court dismissed these arguments, stating that while it might be true that Mr. Chadha's grievance was shared by others, Mr. Chadha himself would be deported should his challenge fail. As to the assertion that Mr. Chadha was asserting rights belonging to the executive and judicial branches, the court stated that if this argument were taken to its limit, no individual could ever challenge a Congressonal act on separation of powers grounds. By demonstrating a concrete injury-deportation-flowing from section 244(c)(2), Mr. Chadha, said the court, established standing to challenge the statute. Addressing next amici's political question challenge, the court stated that the political question doctrine is based on a judicial recognition of the principle of separation of powers and that it would "stand the political question doctrine on its head to require the Judiciary to defer to another branch's determination that its acts do not violate the separation of powers principle." [634 F.2d at 419] Amici's claim that Mr. Chadha's claim lacked the necessary adverseness was dealt with next. The court found that the necessary adverseness in this case was supplied by amici. Also, if the suit were dismissed for lack of adverseness the court would be implicitly approving the untenable result that all agencies could insulate unconstitutional orders from judicial review simply by agreeing that what they ordered was unconstitutional, while at the same time having every intention of enforcing those orders.

In addressing the merits, the court held that the statutory mechanism reviewed in this decision, the one-house veto provision affecting suspension of deportation cases, violated the constitutional doctrine of separation of powers because it was an unnecessary legislative intrusion upon the executive and judicial branches.

The court set forth a judicial standard to determine whether an attempted exercise of authority by Congress contravened the rule of separation of powers. The test for such a violation was declared to be whether the assumption by one branch of an essential function of another, especially on a long-term and routine basis, was both disruptive and unnecessary to the attainment of a legitimate purpose.

In applying the test as to whether a violation of the separation of powers doctrine occurred, the court viewed section 244(c)(2) as having three possible types of functional impact. First, the legislative disapproval could be viewed as a device through which Congress corrected misapplications of the law. Second, the device could be viewed as a means for sharing the administration of the statute with the executive branch. Third, it could be viewed as an exercise of a residual legislative power.

Turning first to the view that the legislative disapproval was a corrective device, the circuit court stated that it is an essential role of the judiciary, not the Congress, to determine whether a statute has been correctly applied. In this regard, the court stated:

Here, the Legislative branch has disrupted or severed the Judiciary's relation to the alien in a substantial way. Aliens are no longer guaranteed the constraints of articulated reasons and stare decisis in the interpretation of the Immigration and Nationality Act.

Adjudications they have obtained in the Judicial branch may be set aside for any reason, or no reason at all, so that judicial decisions may be for naught. . . . This vertical impact of the disapproval mechanism diminishes the strength of the Judiciary's structural check on the Executive, which is one of the twin purposes behind the separation of powers principle. [Id. at 431 (footnote omitted)] In addition to this "vertical" disruption, the court found a “horizontal" disruption to the workings of the judicial branch:

There is a further disruption, horizontal in its impact. On this plane the Legislative interferes with the central or essential function of coordinate branches. The Judiciary's duty to decide cases now becomes subject to review by the Legislature, thus undermining the integrity of the third branch. There are virtually no procedural constraints on the ultimate Congressional decision nor any provision for review of Congress' legal or factual conclusions. We are of the view that this departure from the separation of powers norm is not necessary. [Id.]

The court then addressed the view that section 244(c)(2) was designed as a means for Congress to share in the administration of the statute. The court found such an interpretation to constitute a usurpation of essential functions of the Executive branch:

Here there is interference with essential executive functions because the Executive's decision that the House reversed was reached after the Executive had given consideration to an individual case. Summary reversal of the Executive's decision in a single case, without an indication of a need to change the standards or general rules to be applied, detracts from the authority of the second branch, and to that extent undermines its powers. Inasmuch as the legislative interference was not an attempt to alter future conduct of the Executives or to change its instructions, and because no principled basis was articulated for the decision from which the Executive could determine with specificity the manner in which it erred, the legislative action was both disruptive of and unnecessary to the sound administration of the law. [Id. at 432]

Finally, the court dicussed the unicameral aspect of the section 244(c)(2) process. The court began its discussion by stating the argument advanced by proponents of the one-house disapproval device:

Perhaps it will be objected that Congress has enacted a mechanism reserving to itself the right to deny discretionary relief from deportation under a separate set of standards, operating as it were as an alternate and supplementary procedure, consisting of the one-house disapproval mechanism. In effect, the argument would characterize the legislative disapproval as a separate and essentially legislative procedure operating only after executive and judicial procedures have been completed. [Id. at 433 (footnote omitted)]

This argument, which is based on Congress' Article I power over aliens, was found by the court to be constitutionally deficient for three reasons:

First . . . the disapproval here in question generally follows an elaborate series of administrative proceedings. The proposition that one house of Congress has the power to withhold discretionary relief from all deportable aliens in all cases under another regime, such as that of private bills, in which Congress assumes full administrative responsibility, does not establish that that power may also be exercised after the Executive or Judiciary have already exercised their delegated responsibilities. Plenary power for making laws does not import authority to revise particular administrative dispositions. This is a case in which the greater power definitely does not include the lesser, because the exercise of the lesser power here entails the unnecessary disruption of the operation of the other two branches as we have outlined it above.

Second, amici's characterization requires us to acknowledge that the power to "make all laws" has important formal and procedural limitations. It is most significant that both houses of Congress must concur in the enactment of positive law that alters individuals' substantive rights. U.S. Const., art. I, § 7. To adopt either Chadha's or