as prohibiting HUD from using appropriated funds for certain purposes but empowering both Appropriations Committees, acting together, 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). 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 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 The language quoted by the Buckley Court, and relied upon by the district court, appears in Champlin Refining Co. v. Čorporation 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 0-83-37 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 HUD 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 Reversed. Before ROBINSON, Chief Judge, and WRIGHT, TAMM, MacKINNON, WILKEY, WALD, MIKVA, EDWARDS, GINSBURG, BORK and SCALIA, Circuit Judges. PER CURIAM. ORDER 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,” 673 F.2d at 451, and thus presented clear situations of congressional intrusion into an executive branch function. This case, on the other hand, involves a legislative review provision in an appropriations act that would require committee approval of an executive branch reorganization before appropriated funds could be expended. At least to this extent, the present case requires a different analysis of the constitutional interplay between the two branches. We write separately to underscore our concern that language in the panel's opinion not be read to foreclose careful consideration in subsequent cases of historical experience, practical working relationships, and the deference due Congress when it establishes its own procedures under the Constitution. For example, we note that both the Reorganization Act of 1977, 5 U.S.C. § 906 (Supp. V 1981), and the Congressional Budget and Impoundment Act of 1974, 31 U.S.C. § 1403 (1976), include provisions permitting either house of Congress to disapprove of proposed executive actions. We are convinced that these and similar statutes cannot simply be invalidated under the reasoning of our prior opinions without detailed examination of how such arrangements operate and what they are designed to accomplish. Cf. Consumer Energy, 673 F.2d at 457-60 (recognizing possible exceptions, including presidential plans for executive branch reorganization, to the court's holding); Atkins v. United States, 214 Ct.Cl. 186, 556 F.2d 1028 (1977) (per curiam) (upholding legislative review provision in Federal Salary Act of 1967), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978). Various factors-whether related to the subject area covered by the statute [309] or the particular procedures mandated-remain to be considered in the specific context of future cases. Courts should examine closely the constitutional issues raised by each legislative review provision before invalidating on a pro forma basis all statutes that provide for after-the-fact congressional oversight. Given that the expedited opinion in the present case was released only one day after oral argument, and was based on briefs that barely addressed potential differences among relevant statutes, such an in-depth examination has not yet occurred. The emergency that gave rise to this panel opinion should neither overwhelm nor pretermit more deliberation in the future before defining and taking sides on so fundamental a consitutional clash between branches of government. We anticipate that this court will move in a measured fashion in its treatment of this explosive and far-reaching controversy between Congress and the executive branch. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN FOREIGN SERVICE ASSOCIATION, PLAINTIFF V. M. PETER MCPHERSON, DEFENDANT Civil Action No. 81-2073 MEMORANDUM On October 6, 1978, Congress enacted the International Development and Food Assistance Act, which in part called for the establishment of a new personnel system in the Agency for International Development (AID). Pub. Law No. 95-424, 92 Stat. 937 et seq. Section 401 of the Act-commonly referred to as the "Obey Amendment" provides that the President shall submit to Congress regulations establishing a unified personnel system for all employees of AID. 22 U.S.C. § 2385a(a). The Act further provides that such regulations shall not become effective if, during a 90-day period, either House of Congress adopts a resolution disapproving of the regulations. 22 U.S.C. § 2385a(b). Pursuant to the statutory directive, the President submitted regulations to Congress-known as the "Obey regulations" 2—which became effective on October 1, 1979. In August, 1981, however, AID published in the Federal Register a final rule amending the Obey regulations.3 46 Fed. Reg. 42841 (1981). These amendments to the Obey regulations are challenged in this action by plaintiff, which is the exclusive bargaining representative for Foreign Service employees in the AID. Plaintiff attacks the 1981 amendments of the Obey regulations on several grounds. Initially, it is argued that the amendments are invalid because they had not been submitted to Congress in accordance with the legislative veto process provided for in the Obey Amendment. However, as plaintiff now concedes, Congress' attempted retention of veto power over regulations implementing the Obey Amendment is unconstitutional under the decisions of the Court of Appeals for the Circuit in Consumers Union of U.S., Inc. v. FTC, No. 82-1737 (D.C. Cir. October 22, 1982) (en banc), and Con This section-added to the Act by a floor amendment proposed by Representative David Obey-was aimed at integrating AID's Washington personnel, which had previously been divided between the General Schedule and Foreign Service systems, into a new personnel structure based primarily upon the Foreign Service system. H.R. Rep. No. 95-1545, 95th Cong., 2d Sess. 42 (1978). 2 The Obey regulations extended the Foreign Service personnel system to employees of AID who are responsible for planning AID's overseas development programs and activities 22 C.F.R. $220.02. AID positions were to be designated as Foreign Service positions. unless they are primarily clerical or administrative or unless they require continuous domestic assignment. 22 C.F.R. § 220.04(b). General Schedule employees who occupied Foreign Service positions were given the right to retain their jobs; however, once such positions are vacated, they may only be occupied by Foreign Service appointees, unless the number of non-Foreign Service employees filling Foreign Service positions in AID's Washington office does not exceed ten percent of such positions. 22 C.F.R. § 220.04(c)(1). 3 The 1981 amendments to the regulations added two more exceptions to the general rule that a vacant Foreign Service position may be filled only by a Foreign Service employee. The first exception provides that, in order to avoid a reduction in force, the director of the Office of Personnel Management, AID, is authorized to assign a General Schedule employee to a vacant position which has been designated as a Foreign Service position. 22 C.F.R. § 220.04(c)(2). The second exception provides that up to fifteen Foreign Service-designated positions may be filled on a time-limited appointment basis by non-Foreign Service personnel, if the Administrator of AID grants his approval on a case-by-case basis. 22 C.F.R. § 220.04(c)3). |