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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 FERC 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 stand-
ardless 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 judi-
cial 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 t statute was enacted, but rather to
the "intent" at th
ent. This permits Congress effec-

tively to alter the meaning of a statute as circumstances
and the composition of Congress change over time. As-
sumption of this power diminishes the role of the Judici-
ary and expands that of Congress. Accordingly, it violates
the separation of powers doctrine. [Id. at 478 (footnotes
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

1 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.

tion 21(a) of the Act) were unconstitutional because they: (1) usurped essential functions of the Executive and Judicial branches; (2) deprived the President of his constitutional right to veto legislative actions having the effect of law; and (3) contained no standards to guide the exercise of the powers they purported to confer.

By way of relief, the plaintiffs asked that the court enter an order, pursuant to 15 U.S.C. § 57a-1(f)(1), certifying the question of the constitutionality of section 21(a) to the U.S. court of appeals. The plaintiffs also asked the court of appeals to declare the disapproval resolution null and void and to order the FTC to reinstate the Used Car Rule.

On June 25, 1982, the plaintiffs filed a motion to certify the constitutional issues to the court of appeals for a ruling en banc. In their accompanying memorandum, the plaintiffs alleged that the FTC had stipulated that the complaint raised the three constitutional issues described above.

On June 29, 1982, District Judge John Garrett Penn granted the plaintiffs' motion, and the case was certified to the U.S. Court of Appeals for the District of Columbia Circuit.

On July 8, 1982, the House and Senate filed a motion for relief from the June 29th order of Judge Penn. The House and Senate argued that the stipulation between the FTC and the plaintiffs was invalid because the FTC had aligned itself with the plaintiffs by agreeing that section 21(a) was unconstitutional. Thus the stipulation "was only an agreement by parties on the same side of the case, and was not a stipulation of the parties on the opposing sides of this controversy." [Motion of the United States Senate and House of Representatives for Relief From Order of June 29, 1982, July 8, 1982 at 3] The House and Senate thus urged that they be given the opportunity-which they allegedly had not been givento present to the district court their proposals for findings of fact on the issues presented in the complaint. In addition, the House and Senate requested an opportunity to have the district court certify an additional question, namely, whether the action involved a justiciable case or controversy under Article III of the Constitution.

On July 12, 1982, the FTC filed a memorandum in opposition to the motion of the House and Senate. The FTC argued that the facts in the case were of a public and documentary nature and thus required no supplementation by the House or Senate. The FTC also argued that the House and Senate had failed to identify a single fact not already included in the stipulation.

On July 23, 1982 Judge Penn issued a memorandum order in which the motion of the House and Senate for relief from the June 29th order was denied. The court noted that on July 13 it had directed the House and Senate to file their proposed findings of facts and their proposed constitutional questions. The court further noted that when it reviewed the House and Senate's proposed findings of facts on July 16 it became apparent that there were no true issues of material facts. Moreover, said the court, the proposed additional constitutional question-namely, whether the action was justiciable was a question that did not have to be certified, since jurisdictional questions could always be presented to a Federal court. Thus, Judge Penn found that there was no reason to request that the circuit court remand the case for further proceedings.

On July 30, 1982, the Senate filed an answer in the court of appeals. In its answer, the Senate took the position that the complaint failed to state a claim upon which relief could be granted, and that, in any event, the disapproval resolution and section 21(a) were constitutional.

On August 6, 1982, the FTC filed its answer to the complaint. After admitting most of the factual allegations of the complaint, the FTC noted that the allegation that the disapproval resolution and section 21(a) were unconstitutional was a conclusion of law to which no answer was required.

On August 23, 1982, the plaintiffs filed a brief in the court of appeals. The brief likened the instant case to two other legislative veto cases, Consumer Energy Council of America v. Federal Energy Regulatory Commission, 673 F.2d 425 (D.C. Cir. 1982), appeals and petitions for certiorari pending, Nos. 81-2008, 81-2020, 81-2171, 82177 and 82-209 (U.S. Sup. Ct.) and Chadha v. Immigration and Naturalization Service, 634 F2.d 408 (9th Cir. 1980) cert. granted, 454 U.S. 812 (1981) (see pages 312 and 322 respectively, of this report for a discussion of those cases), and concluded that the legislative veto of the Used Car Rule possessed the same constitutional infirmities as the vetoes at issue in Consumer Energy and Chadha. The plaintiffs then proceeded to expound on the arguments originally outlined in the complaint.

On the same day, August 23, an amicus curiae brief was filed by 16 Members of the House of Representatives.2 The amici agreed with the plaintiffs that section 21(a) and the disapproval resolution were unconstitutional. They also agreed that the Congressional actions in question violated the Presentment Clause of the U.S. Constitution 3 and the separation of powers doctrine. The amici further alleged that although they and the plaintiffs sought the same result, their interests were different. All legislative veto statutes, said the amici, have a particularly pernicious impact on the Congressional lawmaking process. After noting that more than 80 legislative veto provisions have been enacted by Congress since 1970, the amici argued that the pervasive use of legislative vetoes would have the following effects:

1. It will tend to loosen standards controlling delegation of powers to agencies, because Congress will perceive that it can retract the authority granted.

2. It will confuse the process of judicial review by introducing a congressional determination of the proper application of a statute.

3. It will give Congress inherently ungovernable power to participate in the execution of the laws.

2 The amici were Representatives Henry A. Waxman, Toby Moffett, Richard L. Ottinger, James H. Scheuer, Edward L. Markey, Cardiss Collins, Don Edwards, Robert W. Kastenmeier, John Conyers, Phillip Burton, Benjamin S. Rosenthal, Sidney R. Yates, John L. Burton, Anthony L. Beilenson, Thomas J. Downey and Charles E. Schumer.

3 The Presentment Clause provides that: "Every Order, Resolution or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill." [art. I, § 7, cl. 3]

21-618 0-83--22

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