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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 petitir for rehearing. (No. 80-2184] Following FERC's October 2d deni u 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)
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
On May 26, 1981, CECA filed its response to the amici's May 8th motion to dismiss. With respect to the jurisdictional challenge raised by the amici, CECA argued that it was objecting to the revocation of the rule; it was not challenging FERC's decision not to adopt a rule. Turning to the merits, CECA claimed that because the NGPA required FERC to issue incremental pricing rules, FERC had no authority to revoke the rule. The NGPA, argued CECA, gave FERC the power to amend rules, but the power to amend, continued CECA, did not include the power to revoke. Next, CECA asserted that even if FERC had the power to revoke the rule, FERC's revocation violated the notice and comment requirements of 5 U.S.C. $ 553. These notice and comment requirements, said CECA, can be waived only if the agency shows some valid reason why they should not be followed. FERC made no such showing, asserted CECA, when it revoked the rule. With respect to severability, CECA maintained that nothing in the NGPA or its legislative history suggested that there would have been no authority to issue incremental pricing rules without the legislative veto provision. Turning to the constitutionality of section 3342(c)(1), CECA asserted that the legislative veto exercised here prevented an otherwise valid rule from becoming law. Accordingly, said CECA, since the veto operated to change or repeal the law, it was legislative in character and had to be exercised in accordance with the Constitution, which requires that all legislative actions having the effect of law be the product of House and Senate concurrence coupled with presentation to the President for his approval. Since the veto was exercised without House and Senate approval and without presentation to the President, it was, concluded CECA, an unauthorized and therefore unconstitutional form of legislation.
On January 29, 1982, the circuit court issued its decision. [Consumer Energy Council of America v. Federal Energy Regulatory Commission, 673 F.2d 425 (D.C. Cir. 1982), Section 3342(c)(1) was declared unconstitutional. Accordingly, the court remanded the case to FERC and instructed it to reinstate the rule.
Before reaching the merits, the court addressed the various jurisdictional issues. First, the court found that FERC's rule was a final rule. Thus, the circuit court, rather than the district court, was the proper forum for the case. Further, under WWHT v. FCC, 656 F.2d 807 (D.C. Cir. 1981), said the court, the courts of appeal clearly have jurisdiction to entertain allegations that an agency should have adopted a rule. In short, regardless of whether one interpreted FERC's action as a failure to adopt a rule or as an attempt to revoke a rule, the circuit court had jurisdiction.
Next, the court discussed severability. After conducting a lengthy review of the legislative history of the NGPA, the court found that Congress would have intended that section 3342 remain in effect even without the legislative veto. Thus, subsection (c) was held to be severable from the remainder of section 3342 and from the rest of the NGPA.
The court then addressed the issue of mootness. The case, said the court, was not rendered moot by FERC's revocation of the rule, since the revocation itself was improper under section 553 of the Administrative Procedure Act, which requires that notice and an opportunity to comment be provided prior to an agency's decision to revoke a rule.
Finally, the court reached the merits. It found that section 3342(c)(1) violated the separation of powers doctrine, deprived the President of his right to veto legislation, and unconstitutionally permitted one house of Congress to act on behalf of both houses.
With respect to the issue of whether the Necessary and Proper Clause provided a sufficient constitutional basis to support the section, the court held that it did not. Said the court:
As the Ninth Circuit noted in Chadha (v. INS, 634 F.2d 408, 433 (9th Cir. 1980)] the clause "authorizes Congress to 'make all laws,' not to exercise power in any way it deems convenient. That a power is clearly committed to Congress does not sustain an unconstitutional form in the exercise
of the power." [Id. at 455) With respect to the separation of powers doctrine, the amici had argued that because FEŘC was an independent agency the legislative veto could not be construed as interfering with any function of the Executive branch. The court rejected this argument, stating that "rulemaking is substantially a function of administering and enforcing the public law. As such, Congress may not create a device enabling it, or one of its houses to control agency rulemaking." [Id. at 471] The danger of such interference, said the court, is that it allows Congress “to expand its role from one of oversight, with an eye to legislative revision, to one of shared administration. This overall increase in congressional power contravenes the fundamental purpose of the separation of powers doctrine.” (Id. at 474]
The Court further found that section 3342(c)(1) usurped not only Executive, but also Judicial branch functions:
The function of courts in reviewing agency action is to interpret the statutory delegation and determine whether the administrative decision is in compliance with that delegation. The problems that arise when one house of Congress assumes this role are clear. If one house vetoes a rule, the courts are prevented from exercising review, even though under prior decisions on the same statute, or on analogous statutes, they might have upheld the agency's exercise of discretion. And if the rule is not vetoed, the courts are presented with a difficult question of how much weight, if any, to give to the implicit congressional finding that the rule represents a proper exercise of statutory discretion.
Either way, the congressional review is entirely standardless and may be conducted without equal participation of interested parties. If there is a dispute between the houses as to the statutory intent, the rule is defeated, and the interested parties are prevented from gaining a judicial interpretation. Moreover, the reviewing body-which in practice may well be a congressional committee-will inevitably look not primarily to the objective legislative intent at the time the statute was enacted, but rather to the "intent" at the present. This permits Congress effec
tively to alter the meaning of a statute as circumstances
omitted)] On March 15, 1982, Process Gas Consumers Group, which had intervened in the case as a party-defendant, filed a notice of appeal to the U.S. Supreme Court. [No. 81-2008-AFX) Subsequently, appeals were also filed by other intervenors as follows: Interstate Natural Gas Association of America [No. 81-2020]; Petrochemical Energy Group (No. 81-2151]; and American Gas Association (No. 81-2171).
On August 2, 1982, the Senate filed a petition for writ of certiorari. (No. 82–177] A petition for writ of certiorari was filed by the House of Representatives on August 6, 1982. [No. 82–209]
Status—The case is pending in the U.S. Supreme Court.
The complete text of the January 29, 1982 opinion of the circuit court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1982. Consumers Union v. Federal Trade Commission
No. 82-1737 (D.C. Cir.) On June 2, 1982, Consumers Union of U.S., Inc. ("CU") along with Public Citizen, Inc., filed a one count complaint for declaratory relief in the U.S. District Court for the District of Columbia. (Civil Action No. 82–1512] Named as defendants were the Federal Trade Commission ('FTC”), the U.S. House of Representatives, and the U.S. Senate. Jurisdiction was invoked under 15 U.S.C. § 57a1(f)(1) and 28 U.S.C. $ 1331.
The complaint explained that on August 3, 1981 the FTC, pursuant to its authority under 15 U.S.C. $$ 109(b) and 2309(b), promulgated a rule concerning the sale of used motor vehicles (the “Used Car Rule"). The Used Car Rule required dealers to post a sticker on the windows of used cars offered for sale to consumers. These stickers were to list all major mechanical defects known to the dealer. The complaint further explained, however, that the Used Car Rule never went into effect, for on May 18 and 26, 1982 the Senate and House respectively, acting pursuant to their authority under section 21(a) of the Federal Trade Commission Improvements Act of 1980 (the "Act"), 15 U.S.C. $ 57a-1(a), approved Senate Concurrent Resolution 60 which vetoed the Used Car Rule. 1
According to the complaint, the disapproval resolution (Concurrent Resolution 60) and the statute upon which it was based (sec
Section 21(a) provides:
(aX1) The Federal Trade Commission, after promulgating a final rule, shall submit such final rule to the Congress for review in accordance with this section. Such final rule shall be delivered to each House of the Congress on the same date and to each House of the Congress while it is in session. Such final rule shall be referred to the Committee on Commerce, Science, and Transportation of the Senate and to the Committee on Energy and Commerce of the House, respectively,
(2) Any such final rule shall become effective in accordance with its terms unless, before the end of the period of 90 calendar days of continuous session after the date such final rule is submitted to the Congress, both Houses of the Congress adopt a concurrent resolution disapproving such final rule.