INS v. Chadha/Concurrence Powell

by Lewis Franklin Powell, Jr.

JUSTICE POWELL, concurring in the judgment.

The Court's decision, based on the Presentment Clauses, Art. I, 7, cls. 2 and 3, apparently will invalidate every use of the legislative veto. The breadth of this holding gives one pause. Congress has included the veto in literally hundreds [p960] of statutes, dating back to the 1930's. Congress clearly views this procedure as essential to controlling the delegation of power to administrative agencies. ^[1] One reasonably may disagree with Congress' assessment of the veto's utility, ^[2] but the respect due its judgment as a coordinate branch of Government cautions that our holding should be no more extensive than necessary to decide these cases. In my view, the cases may be decided on a narrower ground. When Congress finds that a particular person does not satisfy the statutory criteria for permanent residence in this country, it has assumed a judicial function in violation of the principle of separation of powers. Accordingly, I concur only in the judgment.

I A

The Framers perceived that

[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

The Federalist No. 47, p. 324 (J. Cooke ed.1961) (J. Madison). Theirs was not a baseless fear. Under British rule, the Colonies suffered the abuses of unchecked executive power that were attributed, at least popularly, to a hereditary monarchy. See Levi, Some Aspects of Separation of Powers, 76 Colum.L.Rev. 369, 374 (1976); The Federalist No. 48. During the Confederation, [p961] the States reacted by removing power from the executive and placing it in the hands of elected legislators. But many legislators proved to be little better than the Crown.

The supremacy of legislatures came to be recognized as the supremacy of faction and the tyranny of shifting majorities. The legislatures confiscated property, erected paper money schemes, [and] suspended the ordinary means of collecting debts.

Levi, supra, at 374-375.

One abuse that was prevalent during the Confederation was the exercise of judicial power by the state legislatures. The Framers were well acquainted with the danger of subjecting the determination of the rights of one person to the "tyranny of shifting majorities." Jefferson observed that members of the General Assembly in his native Virginia had not been prevented from assuming judicial power, and "‘[t]hey have accordingly in many instances decided rights which should have been left to judiciary controversy.'" ^[3] The Federalist No. 48, supra, at 336 (emphasis in original) (quoting T. Jefferson, Notes on the State of Virginia 196 (London ed. 1787)). The same concern also was evident in the reports of the Council of the Censors, a body that was charged with determining whether the Pennsylvania Legislature had complied with the State Constitution. The Council found that, during this period,

[t]he constitutional trial by jury had been violated; and powers assumed, which had not been delegated by the Constitution. . . . [C]ases belonging [p962] to the judiciary department, frequently [had been] drawn within legislative cognizance and determination.

The Federalist No. 48, at 336-337.

It was to prevent the recurrence of such abuses that the Framers vested the executive, legislative, and judicial powers in separate branches. Their concern that a legislature should not be able unilaterally to impose a substantial deprivation on one person was expressed not only in this general allocation of power, but also in more specific provisions, such as the Bill of Attainder Clause, Art. I, § 9, cl. 3. As the Court recognized in United States v. Brown, 381 U.S. 437, 442 (1965),

the Bill of Attainder Clause was intended not as a narrow, technical . . . prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply — trial by legislature.

This Clause, and the separation of powers doctrine generally, reflect the Framers' concern that trial by a legislature lacks the safeguards necessary to prevent the abuse of power.

I B

The Constitution does not establish three branches with precisely defined boundaries. See Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per curiam). Rather, as Justice Jackson wrote:

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (concurring in judgment). The Court thus has been mindful that the boundaries between each branch should be fixed "according to common sense and the inherent necessities of the governmental coordination." J. W. Hampton & Co. v. United States, 276 U.S. 394, 406 (1928). But where one branch has impaired or sought to assume a power central to another branch, the [p963] Court has not hesitated to enforce the doctrine. See Buckley v. Valeo, supra, at 123.

Functionally, the doctrine may be violated in two ways. One branch may interfere impermissibly with the other's performance of its constitutionally assigned function. See Nixon v. Administrator of General Services, 433 U.S. 425"]433 U.S. 425, 433 (1977); 433 U.S. 425, 433 (1977); United States v. Nixon, 418 U.S. 683 (1974). Alternatively, the doctrine may be violated when one branch assumes a function that more properly is entrusted to another. See Youngstown Sheet & Tube Co. v. Sawyer, supra, at 587; Springer v. Philippine Islands, 277 U.S. 189, 203 (1928). These cases present the latter situation. ^[4]

II

Before considering whether Congress impermissibly assumed a judicial function, it is helpful to recount briefly Congress' actions. Jagdish Rai Chadha, a citizen of Kenya, stayed in this country after his student visa expired. Although he was scheduled to be deported, he requested the Immigration and Naturalization Service to suspend his deportation because he met the statutory criteria for permanent residence in this country. After a hearing, ^[5] the Service granted Chadha's request and sent — as required by [p964] the reservation of the veto right — a report of its action to Congress.

In addition to the report on Chadha, Congress had before it the names of 339 other persons whose deportations also had been suspended by the Service. The House Committee on the Judiciary decided that six of these persons, including Chadha, should not be allowed to remain in this country. Accordingly, it submitted a resolution to the House which stated simply that "the House of Representatives does not approve the granting of permanent residence in the United States to the aliens hereinafter named." 121 Cong.Rec. 40800 (1975). The resolution was not distributed prior to the vote, ^[6] but the Chairman of the Judiciary Subcommittee on Immigration, Citizenship, and International Law explained to the House:

It was the feeling of the committee, after reviewing 340 cases, that the aliens contained in the resolution did not meet [the] statutory requirements, particularly as it relates to hardship; and it is the opinion of the committee that their deportation should not be suspended.

Ibid. (remarks of Rep. Eilberg). Without further explanation and without a recorded vote, the House rejected the Service's determination that these six people met the statutory criteria.

On its face, the House's action appears clearly adjudicatory. ^[7] The House did not enact a general rule; rather, it [p965] made its own determination that six specific persons did not comply with certain statutory criteria. It thus undertook the type of decision that traditionally has been left to other branches. Even if the House did not make a de novo determination, but simply reviewed the Immigration and Naturalization Service's findings, it still assumed a function ordinarily entrusted to the federal courts. ^[8] See 5 U.S.C. § 704 (providing generally for judicial review of final agency action); cf. Foti v. INS, 375 U.S. 217 (1963) (holding that courts of appeals have jurisdiction to review INS decisions denying suspension of deportation). Where, as here, Congress has exercised a power "that cannot possibly be regarded as merely in aid of the legislative function of Congress," [p966] Buckley v. Valeo, 424 U.S. at 138, the decisions of this Court have held that Congress impermissibly assumed a function that the Constitution entrusted to another branch, see id. at 138-141; cf. Springer v. Philippine Islands, 277 U.S. at 202.

The impropriety of the House's assumption of this function is confirmed by the fact that its action raises the very danger the Framers sought to avoid — the exercise of unchecked power. In deciding whether Chadha deserves to be deported, Congress is not subject to any internal constraints that prevent it from arbitrarily depriving him of the right to remain in this country. ^[9] Unlike the judiciary or an administrative agency, Congress is not bound by established substantive rules. Nor is it subject to the procedural safeguards, such as the right to counsel and a hearing before an impartial tribunal, that are present when a court or an agency ^[10] adjudicates individual rights. The only effective constraint on Congress' power is political, but Congress is most accountable politically when it prescribes rules of general applicability. When it decides rights of specific persons, those rights are subject to "the tyranny of a shifting majority." [p967]

Chief Justice Marshall observed:

It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.

Fletcher v. Peck, 6 Cranch 87, 136 (1810). In my view, when Congress undertook to apply its rules to Chadha, it exceeded the scope of its constitutionally prescribed authority. I would not reach the broader question whether legislative vetoes are invalid under the Presentment Clauses.

Notes

1. . As JUSTICE WHITE'S dissenting opinion explains, the legislative veto has been included in a wide variety of statutes, ranging from bills for executive reorganization to the War Powers Resolution. See post at 968-972. Whether the veto complies with the Presentment Clauses may well turn on the particular context in which it is exercised, and I would be hesitant to conclude that every veto is unconstitutional on the basis of the unusual example presented by this litigation.
2. . See Martin, The Legislative Veto and the Responsible Exercise of Congressional Power, 68 Va.L.Rev. 253 (1982); Consumer Energy Council of America v. FERC, 218 U.S.App.D.C. 34, 84, 673 F.2d 425, 475 (1982).
3. . Jefferson later questioned the degree to which the constitution insulates the judiciary. See D. Malone, Jefferson the President: Second Term, 1805-1809, pp. 304-305 (1974). In response to Chief Justice Marshall's rulings during Aaron Burr's trial, Jefferson stated that the judiciary had favored Burr — whom Jefferson viewed as clearly guilty of treason — at the expense of the country. He predicted that the people "‘will see then and amend the error in our Constitution, which makes any branch independent of the nation.'" Id. at 305 (quoting Jefferson's letter to William Giles). The very controversy that attended Burr's trial, however, demonstrates the wisdom in providing a neutral forum, removed from political pressure, for the determination of one person's rights.
4. . The House and the Senate argue that the legislative veto does not prevent the executive from exercising its constitutionally assigned function. Even assuming this argument is correct, it does not address the concern that the Congress is exercising unchecked judicial power at the expense of individual liberties. It was precisely to prevent such arbitrary action that the Framers adopted the doctrine of separation of powers. See, e.g., Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).
5. . The Immigration and Naturalization Service, a division of the Department of Justice, administers the Immigration and Nationality Act on behalf of the Attorney General, who has primary responsibility for the Act's enforcement. See 8 U.S.C. § 1103. The Act establishes a detailed administrative procedure for determining when a specific person is to be deported, see § 1252(b), and provides for judicial review of this decision, see § 1105a; Foti v. INS, 375 U.S. 217 (1963).
6. . Normally the House would have distributed the resolution before acting on it, see 121 Cong.Rec. 40800 (1975), but the statute providing for the legislative veto limits the time in which Congress may veto the Service's determination that deportation should be suspended. See 8 U.S.C. § 1254(c)(2). In this case Congress had Chadha's report before it for approximately a year and a half, but failed to act on it until three days before the end of the limitations period. Accordingly, it was required to abandon its normal procedures for considering resolutions, thereby increasing the danger of arbitrary and ill-considered action.
7. . The Court concludes that Congress' action was legislative in character because each branch "presumptively act[s] within its assigned sphere." Ante at 952. The Court's presumption provides a useful starting point, but does not conclude the inquiry. Nor does the fact that the House's action alters an individual's legal status indicate, as the Court reasons, see ante at 952-954, that the action is legislative, rather than adjudicative in nature. In determining whether one branch unconstitutionally has assumed a power central to another branch, the traditional characterization of the assumed power as legislative, executive, or judicial may provide some guidance. See Springer v. Philippine Islands, 277 U.S. 189, 203 (1928). But reasonable minds may disagree over the character of an act, and the more helpful inquiry, in my view, is whether the act in question raises the dangers the Framers sought to avoid.
8. . The Court reasons in response to this argument that the one-House veto exercised in this case was not judicial in nature, because the decision of the Immigration and Naturalization Service did not present a justiciable issue that could have been reviewed by a court on appeal. See ante at 957, n. 22. The Court notes that, since the administrative agency decided the case in favor of Chadha, there was no aggrieved party who could appeal. Reliance by the Court on this fact misses the point. Even if review of the particular decision to suspend deportation is not committed to the courts, the House of Representatives assumed a function that generally is entrusted to an impartial tribunal. In my view, the Legislative Branch, in effect, acted as an appellate court by overruling the Service's application of established law to Chadha. And unlike a court or an administrative agency, it did not provide Chadha with the right to counsel or a hearing before acting. Although the parallel is not entirely complete, the effect on Chadha's personal rights would not have been different in principle had he been acquitted of a federal crime and thereafter found by one House of Congress to have been guilty.
9. . When Congress grants particular individuals relief or benefits under its spending power, the danger of oppressive action that the separation of powers was designed to avoid is not implicated. Similarly, Congress may authorize the admission of individual aliens by special Acts, but it does not follow that Congress unilaterally may make a judgment that a particular alien has no legal right to remain in this country. See Memorandum Concerning H.R. 9766 Entitled "An Act to Direct the Deportation of Harry Renton Bridges," reprinted in S.Rep. No. 2031, 76th Cong., 3d Sess., pt. 1, p. 8 (1940). As Attorney General Robert Jackson remarked, such a practice "would be an historical departure from an unbroken American practice and tradition." Id. at 9.
10. . We have recognized that independent regulatory agencies and departments of the Executive Branch often exercise authority that is "judicial in nature." Buckley v. Valeo, 424 U.S. 1, 140-141 (1976). This function, however, forms part of the agencies' execution of public law, and is subject to the procedural safeguards, including judicial review, provided by the Administrative Procedure Act, see 5 U.S.C. § 551 et seq. See also n. 5, supra.