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On October 5, 1981, the petitions of the House and Senate for certiorari were granted and consolidated. [454 U.S. 812] The question of jurisdiction to hear the appeal of INS was postponed.

On November 19, 1981, the House filed its brief. In it, the House alleged that: (1) section 244(c)(2) constituted a "necessary and proper" means of executing the sovereign legislative power of Congress over the status and deportation of aliens; (2) the INS, as a prevailing party below, had no standing to appeal the Ninth Circuit's ruling; (3) the Ninth Circuit had no jurisdiction to consider the constitutionality of section 244(c)(2) since section 106(a) of the INA gives circuit courts the power to review only final orders of deportation made pursuant to administrative proceedings; (4) Mr. Chadha, by conceding his deportability, lacked standing to challenge the House resolution, which "simply denied Chadha's plea for mercy" [Brief of the United States House of Representatives, November 19, 1981, at 45]; (5) the action presented no case or controversy in that both Mr. Chadha and INS had agreed that section 244(c)(2) was unconstitutional; (6) the case presented a nonjustifiable political question in that the Congressional power over aliens, together with the Necessary and Proper Clause, prevented judicial review of the section 244(c)(2) procedure; and (7) because section 244(c)(2) was not severable from the remainder of section 244, any invalidation of section 244(c)(2) would invalidate all of section 244, thus abolishing the suspension of deportation statute itself and rendering it impossible for Mr. Chadha to be granted the relief he sought.

The Senate's brief, which was also filed on November 19, made four arguments. It repeated the challenges raised by the House with respect to: (1) the nonseverability of section 244(c)(2); (2) the absence of circuit court jurisdiction under INA section 106(a); and (3) the omnipotence of Congress, under the Necessary and Proper Clause, to control the status and deportation of aliens. In addition, the Senate argued that by marrying a U.S. citizen on August 10, 1980, Mr. Chadha now had the right to have his immigration status adjusted to that of a lawful permanent resident. Because that option was available, said the Senate, it would be imprudent and unnecessary for the Court to pass upon the constitutionality of section 244(c)(2).

On December 31, 1981, Mr. Chadha filed a brief in which he responded to the arguments put forth by the House and Senate. With respect to the House's argument that section 244(c)(2) constituted a necessary and proper exercise of the Congressional power to control immigration, Mr. Chadha asserted that the section 244(c)(2) proceeding was not proper because it: (1) violated the separation of powers doctrine by usurping essential Judicial and Executive branch functions; (2) deprived the President of the right to veto Congressional actions having the effect of law; (3) violated the principle of bicameralism, which requires the concurrence of both houses on decisions affecting the public; and (4) was unconstitutional under the delegation doctrine, which prevents Congress from conferring overly broad and judicially unreviewable powers on either the Executive or Legislative branches of Government. Next, Mr. Chadha argued that even though he had conceded his deportability he had never conceded the validity of the deportation order,

which was issued as a direct result of the House's decision to deny him suspension of deportation. Thus, said Mr. Chadha, the court of appeals did have jurisdiction under INA section 106(a). Turning to the question of standing, Mr. Chadha asserted that it was little more than sophistry to term the 244(c)(2) resolution a denial of a plea for mercy. The disapproval resolution, said Mr. Chadha, was clearly a veto, and it resulted in direct injury to him. Regarding adverseness, Mr. Chadha stated that it was not at all unusual for the parties to a suit to be in agreement. In such cases, said Mr. Chadha, the courts have approved the notion that the necessary adverseness could be supplied by amici. In support of this contention, Mr. Chadha cited two Supreme Court cases where amici allegedly supplied the requisite adverseness: United States v. Lovett, 328 U.S. 303 (1946), and Granville-Smith v. Granville-Smith, 349 U.S. 1 (1955). As to the political question argument, Mr. Chadha claimed that if either the Congressional power over immigration or the Necessary and Proper Clause conferred "anywhere near as wide a discretion as is suggested, no law would ever be declared unconstitutional under either of them." [Brief of Appellee-Respondent Jagdish Rai Chadha, December 31, 1981, at 24] Regarding severability, Mr. Chadha claimed that there was "not a word in the legislative history to support the assertion that if Congress knew it could not have the veto, then it would have given the Executive no power at all to cancel the deportation and adjust the status of aliens suffering extreme hardship." [Id. at 29] In fact, said Mr. Chadha, "the contrary is far more likely to be the case." [Id.] Finally, Mr. Chadha argued that his marriage to a U.S. citizen did not moot the action in that success in the case would result in his immediately becoming eligible for citizenship, whereas marriage to a U.S. citizen would only result in the granting of lawful permanent resident status.

On January 12, 1982, INS filed its brief. Like Mr. Chadha, INS argued that: (1) section 244(c) 2) violated the principle of bicameralism and the requirement that legislative measures be presented to the President for his approval; (2) the section violated the separation of powers doctrine; (3) the Ninth Circuit had jurisdiction under section 106(a) of the INA; (4) there was no lack of adverseness; (5) section 244(c)2) was severable from the remainder of section 244; and (6) Mr. Chadha's marriage did not bar the instant case.

On January 8, 1982, the American Bar Association ("ABA") filed a motion for leave to file an amicus curiae brief. In its brief, the ABA stated that it had a special interest in this litigation not only because its charter demanded that it uphold and defend the Constitution, but also because "the legislative veto, particularly in its increasingly frequent application to rulemaking [under] the Administrative Procedure Act, directly affects the practice of its members before federal administrative agencies." [Motion for Leave to File and Brief of American Bar Association as Amicus Curiae, January 8, 1982, at ii.] Terming the general use of legislative vetoes "a serious threat to effective regulatory administration and fundamental constitutional principles," the ABA brief repeated many of the arguments already made by INS and Mr. Chadha as to the unconstitutionality of section 244 c 2). The ABA, however, differed with INS as to the effect of legislative vetoes. In the ABA's view, legisla

tive veto statutes in many instances serve to increase the power of the Executive branch. This happens when the power that is subject to the veto would not, absent the veto provision, have been given to the Executive branch at all. "In such situations," continued the ABA, "Congress and the Executive sometimes have combined to erect a structure that will deprive the people of their democratic right to have their representatives vote on major, often controversial, changes from the status quo-changes which Congress has not conditionally approved, but which it later approves by inaction, in declining to veto the Executive's 'proposal'." [Id. at 22] On January 18, the motion for leave to file an amicus brief was granted.

Also on January 8, several Members of the House of Representatives filed a motion for leave to file an amicus curiae brief. The Members-Phillip Burton, John Conyers, Jr., Don Edwards, James J. Florio, Robert W. Kastenmeier, Richard L. Ottinger, Benjamin S. Rosenthal, Fortney H. Stark, and Henry A. Waxman-agreed with Mr. Chadha and INS that section 244(c)(2) was unconstitutional. According to the Members, the statute violated the separation of powers doctrine, the principles of bicameralism, and the Presentment Clause. On January 18, 1982, the motion for leave to file was granted.

Reply briefs were filed on February 11 and 12, 1982 by the Senate and House respectively.

The case was argued before the Supreme Court on February 22, 1982.

On July 2, 1982, the Supreme Court decided to restore the case to the calendar for reargument. [102 S. Ct. 3507]

On December 7, 1982, the case was reargued before the Supreme Court.

Status-The case is pending in the U.S. Supreme Court.

The complete text of the December 22, 1980 opinion of the circuit court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.

Consumer Energy Council of America v. Federal Energy Regulatory

Commission

Nos. 80-2184 and 80-2312 (D.C. Cir.)

Process Gas Consumers Group v. Consumer Energy Council of
America No. 81-2008-AFX (U.S. Supreme Court)

Nos. 81-2008, 81-2020, 81-2151, 81-2171, 82-177, 82-209 (U.S.
Supreme Court)

Title II of the Natural Gas Policy Act of 1978 ("NGPA"), 15 U.S.C. §§ 3341 et seq., directs the Federal Energy Regulatory Commission ("FERC") to develop regulations providing that a certain portion of natural gas acquisition costs incurred by an interstate pipeline be allocated to an "incremental pricing account" to be passed on to specified natural gas users. The NGPA further provides that certain specified types of amendments (i.e. rules) issued by FERC pursuant to the NGPA shall not take effect if either house of Congress passes a resolution disapproving the rule. Specifically, the Congressional review provision, 15 U.S.C. § 3342(c)(1), states:

IN GENERAL.-Any amendment, the effectiveness of which is subject to this subsection, shall take effect beginning with the first month which begins more than 30 days after the first 30 calendar days of continuous session of Congress (determined in accordance with section 507(b)) after a copy of such amendment has been submitted to each House of the Congress or on such later date, not more than 90 days thereafter, as may be provided in such amendment unless, during such 30 day period of continuous session of Congress, either House of the Congress adopts a resolution of disapproval described in section 507(c)(3) with respect to such amendment.

On May 6, 1980, FERC issued an incremental pricing rule. [45 F.R. 31622 (May 13, 1980)] The rule specifically stated that its effectiveness was dependent upon Congressional review. Two weeks. later, the U.S. House of Representatives passed House Resolution 655 disapproving the rule. (See 126 Cong. Rec. H3839-H3855.)

The Consumer Energy Council of America, the Consumer Federation of America, and Public Citizen (collectively referred to as "CECA") represent a coalition of consumer, farm, public power, rural electric cooperative, urban, senior citizen and low income organizations. On June 5, 1980, CECA filed a petition with FERC for a rehearing on that portion of FERC's May 6th rule which conditioned the effectiveness of the rule on the failure of either house to pass a resolution of disapproval within 30 days. The petition argued that the one-house veto statute (15 U.S.C. § 3342(c)(1)) violated the separation of powers doctrine and was therefore unconstitutional. On August 1, 1980, FERC entered an order denying the petition. Subsequently, FERC revoked the vetoed rule.

On September 2, 1980, CECA again sought a rehearing, arguing that FERC had no authority to revoke the rule. CECA also argued that even if FERC did have the authority, the revocation was invalid because FERC had not afforded interested persons an opportunity to comment, as required by 5 U.S.C. § 553. On October 2, 1980, CECA's second petition for rehearing was denied.

On September 26, 1980, CECA filed in the U.S. Court of Appeals for the District of Columbia Circuit a petition for review of FERC's denial of CECA's first petiti for rehearing. [No. 80-2184] Following FERC's October 2d den of CECA's second petition for rehearing, CECA, on October 24, 1980, filed a second petition for review with the court. [No. 80-2312] The two petitions for review were consolidated by the court, sua sponte, on November 7, 1980.

On January 12, 1981, CECA filed its brief, reiterating its argument that the Congressional disapproval device was violative of the separation of powers doctrine. Specifically, CECA charged that section 3342(c)(1) deprived the President of his constitutional right under Article I, Section 7, clause 2 to veto legislative actions having the effect of law. In addition, said CECA, section 3342(c)(1)

1 Article I, Section 7, clause 2 provides, in pertinent part: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approves he shall sign it, but if not he shall return it with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it."

was a usurpation by the legislative branch of both executive and judicial branch functions.

On February 11, 1981, the Justice Department filed an amicus curiae brief in which it agreed with CECA's contention that section 3342(c)(1) was unconstitutional. Like CECA, the Justice Department argued that the statute deprived the President of his right to veto legislative actions having the force of law. The Government also argued that the constitutional principle of bicameralism prevented one house of Congress from acting on behalf of both houses. The Government concluded its argument by stating that section 3342(c)(1) was severable from the other provisions of the NGPA and that therefore a finding by the court that section 3342(c)(1) was unconstitutional would not invalidate FERC's May 6th incremental pricing rule.

On March 24, 1981, FERC filed a brief in which it argued that there was no need for the court to address the constitutionality of 15 U.S.C. § 3342(c)(1). In support of this assertion, FERC stated that it had acted within its authority when it revoked the vetoed rule. The 5 U.S.C. § 553 duty to provide interested persons an opportunity to comment on the revocation of a rule, continued FERC, was inapplicable in the instant case because the rule in question was never operative and effective in the first place. Thus, argued FERC, the question of the constitutionality of 15 U.S.C. § 3342(c)(1) had been rendered moot by FERC's valid revocation of the rule. In addition, FERC argued that subsection 3342(c)(1) was not severable from the rest of section 3342. As a result, if the legislative veto provision was deemed unconstitutional all of section 3342 would fall and FERC would have no authority to issue the incremental pricing rule at issue here. There would therefore be no rule to contest.

On May 8, 1981, the U.S. Senate and the Speaker of the U.S. House of Representatives filed a motion for leave to file an amicus curiae motion to dismiss for lack of jurisdiction. Permission to file the motion to dismiss was granted on June 9, 1981.

In support of their motion to dismiss, the Speaker and the Senate ("amici") asserted that under section 506 of the NGPA (15 U.S.C. §3416) the court of appeals had jurisdiction to review FERC adjudicative orders or rules. However, said the amici, the instant case involved neither an adjudicative order nor a rule; it involved an attempt by CECA to adopt the proposed incremental pricing rule as a final rule. Citing NRDC v. SEC, 606 F. 2d 1031 (D.C Cir. 1979), the amici argued that suits to compel agencies to adopt rules must commence in the district, not the circuit, courts.

Also on May 8, the amici filed a brief in which they responded to CECA's (and the Justice Department's) remaining claims. Like FERC, the amici asserted that subsection 3342(c)(1) was not severable from the rest of section 3342 and that the case had been rendered moot when FERC revoked the challenged rule. In addition, the amici argued that under the Necessary and Proper Clause of the U.S. Constitution (art. I, § 8, cl. 18) Congress was empowered to enact the veto provision at issue here. They further claimed that section 3342(c)(1) in no way interfered with the operation of the Executive branch, and therefore was not violative of the separation of powers doctrine.

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