ees, AFL-CIO), and Congressman Martin Sabo, a member of the House Appropriations Committee. They allege that the proposed RIF was a "reorganization of the Department” of the type Congress meant to block through a provision in the HUD Appropriation Act precluding use of funds “prior to January 1, 1983, to plan, design, implement, or administer any reorganization without the prior approval of the Committees on Appropriations.” Department of Housing and Urban Development-Independent Agencies Appropriation Act, 1983, Pub. L. No. 97-272, 96 Stat. 1160, 1164 (1982).

The district court ruled that Congressman Sabo had standing to challenge the Secretary's action, did not decide whether the union or the HUD employees could pursue the case, assumed arguendo the unconstitutionality of the clause lifting the funding prohibition upon “the prior approval of the Committees on Appropriations, severed the approval clause, and applied the provision, as trimmed, to enjoin the RIF. Thus, under the order we review in this expedited appeal, the Secretary is estopped from using appropriated funds before December 31, 1982, to “plan, design, implement, or administer any reorganization of the Department.” We agree that Congressman Sabo has standing to commence this lawsuit, pretermit the question whether the district court was the appropriate forum for the employees' complaint, find the approval clause unconstitutional and not severable from the preceding portion of the sentence in which it is contained, and hold the provision invalid in its entirety.



[1] Congressman Sabo asserts that he has standing both in his ca. pacity as a legislator and as a member of the House Appropriations Committee. The district court found standing based on his membership in Congress, but did not explicitly consider the (305) significance of his membership on the House Appropriations Committee. We address the two grounds separately. For purposes of the standing issue, we accept as valid Congressman Sabo's pleaded legal theory. See Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975); Goldwater v. Carter, 617 F. 2d 697, 701-02 (D.C. Cir) (en banc), vacated on other grounds, 444 U.S. 996, 100 S. Ct. 533, 62 L. Ed. 2d 428 (1979). Essentially, his claim of injury rests on the premise that, under the governing law, a reorganization of HUD could not commence prior to January 1, 1983, without the approval of the Appropriations Committees. Congressman Sabo's membership in the House of Representatives.

With respect to this basis for standing, we disapprove the district court's reliance upon Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir. 1974), and find Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977), the controlling precedent. In Harrington, a congressman requested that the court examine the conduct of the Central Intelligence Agency, declare that it had misused funds, and enjoin such further conduct. Id. at 202. There, as here, the congressman's stake as a legislator was merely an interest in having laws executed properly. It was not, as in Kennedy, an interest in the process by which a bill becomes a law. Any interest that a congressman has in the execu

tion of laws would seem to be shared by all citizens equally. Injury to that interest is a "generalized grievance[ ] about the conduct of government,Flast v. Cohen, 392 U.S. 83, 106, 88 S.Ct. 1942, 1955, 20 L.Ed.2d 947 (1968), which lacks the specificity to support a claim of standing, See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Congressman Sabo's membership on the House Appropriations Com.

mittee This basis for standing, however, is controlled by Kennedy, which involved a challenge to President Nixon's alleged abuse of the pocket veto. Senator Kennedy asserted that a bill passed by both Houses of Congress had become law without signature of the President. We found that the Senator had standing because the President's actions had denied him the effectiveness of his vote in enacting the statute. He claimed an interest which he, as a senator, had in the legislative process, different from any interest that he, like any other citizen, may have had in the execution of the bill once enacted.

In the present case, the Appropriation Act gave Congressman Sabo the right, as a member of the Appropriation Committee, to participate in approval of any reorganization of HUD conducted before January 1, 1983. The Secretary's action injured him by depriving him of that specific statutory right to participate in the legislative process. That right, unique to members of the Appropriations Committee, is not a general interest in the faithful execution of laws, but rather a particular interest in the law as it related to their authority. Under currently governing procedent, therefore, Congressman Sabo has a sufficient personal stake in the outcome of the controversy,Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), to ensure that the dispute sought to be adjudicated will be presented in "a concrete factural context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge, supra, 454 U.S. at 472, 102 S.Ct. at 758.

CONSTITUTIONALITY OF THE PROVISO [2] The challenged provision of the HUD Appropriation Act can be interpreted (306) in two ways. First, it may be regarded as creating a power in either Appropriations Committee to prevent otherwise-authorized expenditures of funds. This reading would make the provisions a legislative veto in the usual sense, in this case a veto power placed by law in a single committee of the House or the Senate. Second, the passage may be seen (perhaps more naturally) as prohibiting HUD from using appropriated funds for certain purposes but empowering both Appropriations Committees, acting to gether, to lift the prohibition and authorize HUD to make such use of the funds. We examine both readings of the statute under the law established by Consumer Energy Council v. FERC, 673 F.2d 425 (D.C.Cir.1982), appeals docketed, Nos. 81-2151 etc., 50 U.S.L.W. 3949 (U.S. May 21, 1982), which was unanimously adopted by the en banc court in Consumers Union, Inc. v. FTC, 691 F.2d 575 (D.C.Cir.1982), jurisdictional statement filed (U.S. Dec. 6, 1982).

* The interest Congressman Sabo asserts here is closely analogous to the interest asserted in Goldwater v. Carter, 617 F.2d 697 (D.C.Cir.) (en banc), vacated on other grounds, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979). There, a group of senators challenged the President's authority to terminate a treaty without a vote of the Senate. We found standing because the President's action injured the senators' alleged constitutional right to vote on a treaty termination.

Appellees suggest that if the provision is interpreted as a veto then this case is not ripe for adjudication because no veto has been cast by either committee. Brief of Appellees at 13-18. This does not help appellees' case. If one of the committees must act in order for the prohibition to be effective, the fact that no vote has been taken means that the President is free to reorganize HUD headquarters. Appellees have inadvertently provided an alternative ground for dismissing their suit. If they mean to suggest that committee inaction constitutes a veto, then a veto has in fact been cast.

Consumer Energy holds that a one-house veto of otherwise permitted executive action is an act of legislative power, 673 F.2d at 464-70, and violates the Constitution in three respects. Legislative power may be exercised only as provided in article I, section 7 of the Constitution, id. at 464. A one-house veto impermissibly makes law without a vote by both Houses of Congress and circumvents the President's power to veto. Legislative vetoes also violate the principle of separation of powers. They provide a means for Congress to control the executive without going through the full lawmaking process, thus unconstitutionally enhancing congressional power at the expense of executive power. Consumer Energy, 673 F.2d at 476; Consumers Union, 691 F.2d at 577. As a one-house veto, the power contained in the HUD Appropriation Act is thus violative of the Constitution and void. That conclusion is only reinforced by the fact that the Act does not even provide a one-house veto but a one-committee veto.

The provision can also be taken as granting the Appropriations Committee the power to lift a congressionally-imposed restriction on the use of appropriated funds. In this light, the directive is nothing more or less than a grant of legislative power to two congressional committees. It is plainly violative of article I, section 7, which prescribes the only method through which legislation may be enacted and which "restrict[s] the operation of the legislative power to these policies which meet the approval of three constituencies, or a super-majority of two." Consumer Energy, 673 F.2d at 464 (footnote omitted). Although bicameralism is in a sense present under the contested procedure-a committee of each house is involved-it is in the more significant sense lacking, since neither house itself is fully involved in the legislative act. In any event, the lack of presentment of the “legislation” to the President is enough to invalidate the provision. Separation-of-powers principles are offended because Congress has attempted to enlarge its powers in relation to the President's by making him subject to committee lawmaking

SEVERABILITY [3] The provision at issue reads in full:

Provided, That none of the funds made available in this
paragraph may be used prior to January 1, 1983, to plan,
design, implement, or administer any reorganization of the
Department without the prior approval of the Committees
on Appropriations. (Emphasis in original.)

Avoiding the constitutional question, the district court assumed arguendo the invalidity of the approval device. In the district court's judgment, the provision survived without it. Citing Buckley v. Valeo, 424 U.S. 1, 108, 96 S.CT. 612, 677, 46 L.Ed.2d 659 [307] (1976),5 and one item of legislative history, the House Report, H.R. Rep. No. 97-720, 97th Cong., 2d Sess. at 9-10 (1982) [House Report), the court declared as the governing law an absolute ban on all HUD reorganization-directed activity until January 1, 1983. But the legislative history reveals that neither House favored total foreclosure of HUD reorganization in 1982, indeed the Senate initially opposed any restraint on the Department. In the absence of indicators that Congress would have opted for an absolute prohibition on HUD reorganization, we conclude that the proviso is not divisible. Therefore it must fall in its entirety.

All parties recognize that the reorganization funding restriction was "compromise legislation." Brief of Appellees at 4; see also Brief for Appellant at 36-39. The House version would have banned HUD's use of fiscal year 1983 funds for reorganization unless the Appropriations Committees approved. See House Report, supra, at 10. The Senate version contained no restriction. The Senate Committee report stated:

The Committee has deleted House bill language specifying that no funds may be used to plan or implement a reorganization of the Department without the prior approval of the Committees on Appropriation. The Committee believes that such legislation is overly restrictive and will impair the Department's ability to institute management

improvements and cost savings. S. Rep. No. 97–549, 97th Cong., 2d Sess. at 29 (1982). The conferees settled on retention of the funding prohibition coupled with the committee approval clause, but set a December 31, 1982, termination date for the restriction. See H.R. Rep. No. 97-891 (Conference), 97th Cong., 2d Sess. at 7 (1982).

This court has said with regard to severability, "the crucial inquiry [is] whether Congress would have enacted other portions of the statute in the absence of the invalidated provision." Consumer Energy, 673 F.2d at 442. Looking solely to the House Report, the district court observed that the Appropriations Committee "was concerned about the proposed RIF actions in (HUD's) central office and sought to avoid the use of appropriated funds for ‘any reorganization' prior to January 1, 1983." American Federation of Govern

5 The language quoted by the Buckley Court, and relied upon by the district court, appears in Champlin Refining Co. v. Corporation Comm'n, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed. 1062 (1932). The Supreme Court in Champlin Refining Co. rejected the argument that, because one section of a law is found unconstitutional, an entirely different section should also be invalidated: "The unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of the remaining provisions." Id. The district court in the instant case severed a clause within a sentence, not a separate section of a larger act. More importantly, the state law challenged in Champlin Refining Co. contained a severability clause, a section declaring, that the invalidity of any part of the Act would not affect the remaining parts. “That discloses," the Court noted, “an intention to make the Act divisible and creates a presumption that, eliminating invalid parts, the legislature would have been satisfied with what remained and that the scheme of regulation derivable from the other provisions would have been enacted without regard (to the stricken portion).” Id. at 235, 32 S.Ct. at 565. Congress did not declare the committee approval clause of the HUD Appropriation Act proviso to be severable. Nor, as we demonstrate, is there sufficient evidence that Congress would have enacted the proviso without regard to the clause.

21-618 0-8337

ment Employees, AFL-CIO v. Pierce, No 82 3111, slip op. at 6 (D.D.C. Nov. 15, 1982). This statement bears clarification, for the House never put forward a provision without a committee approval clause tied to it. Inexplicably, the district court overlooked the Senate Committee's clearly expressed reservations about the House version of the bill.

In sum, the legislative history casts grave doubt on any supposition that the Senate would have agreed to an absolute prohibition, a ban which would have precluded HUD from making personnel decisions that ordinarily accompany an agency's programmatic authority. We therefore hold the prohibition on HỦD reorganization "inextricably bound" to the invalid committee approval device. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 83, 96 S.Ct. 2831, 2847, 49 L.Ed.2d 788 (308) (1976). Accordingly, both parts of the single sentence Congress adopted are invalid.

For the foregoing reasons, the judgment of the district court is
Before ROBINSON, Chief Judge, and WRIGHT, TAMM, Mac-



Members of the Court have requested the taking of a vote on their sua sponte suggestion that this case be reheard by the Court en banc. The suggestion has been transmitted to the full Court. A majority of the Judges in regular active service have not voted in favor of the suggestion and, accordingly, this case will not be heard en banc.

Circuit Judges WRIGHT, WALD and MIKVA would grant rehearing en banc.

A statement of Ciruit Judges WALD and MIKVA concerning rehearing en banc is attached.

Statement of Circuit Judges WALD and MIKVA.

We would rehear this case en banc because vitally important issues of executive-legislative relations are articulated too broadly and explored inadequately in the panel opinion. We are especially concerned that the panel's opinion lumps together for automatic rejection under the rubric of “legislative vetoes” several different kinds of statutory provisons, each entailing a distinct accommodation between the executive and legislative branches. Such blackand-white treatment of these statutes ignores a largely gray area that has existed for 200 years in our constitutional scheme.

The statutory provison invalidated in this case-requiring that both the Senate and House Appropriations Committees approve any expenditure of funds "used prior to January 1, 1983, to plan, design, implement or administer any reorganization of (HUD)-is distinguishable from the legislative vetoes previously found to be unconstitutional by this court. Both Consumer Energy Council v. FERC, 673 F.2d 425 (D.C. Cir. 1982), appeal filed, 50 U.S.L.W. 3949 (U.S. June 1, 1982) (No. 81-2151), and Consumers Union, Inc. v. FTC, 691 F.2d 575 (D.C. Cir. 1982) (en banc) (per curiam), involved provisions permitting "legislative review of agency rulemaking,”

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