Opinion
No. 83-5889.
Argued April 30, 1984.
Decided September 4, 1984. Rehearing and Rehearing En Banc Denied November 5, 1984.
Stephen H. Biller (argued), Heiskell, Donelson, Bearman, Adams, Williams Kirsch, P.C., Stephen D. Wakefield, Memphis, Tenn., for plaintiffs-appellants.
Lawrence J. Kamenetsky, Zelma Phillips Brown, E.E.O.C., W. Hickman Ewing, U.S. Atty., Vivian Donelson, Memphis, Tenn., for defendant-appellee.
Herschel L. Abbott, Jr., H. Mark Adams, Jones, Walker, Waechter, Poitevent, Carrere Denegre, New Orleans, La., Rodger A. Kershner, Detroit, Mich., Joseph M. Wells, Marjorie Nemzura, Lombard, Ill., for amicus curiae, ANR Pipeline Company and Natural Gas Pipeline Company of America.
Appeal from the United States District Court for the Western District of Tennessee.
The issue in this appeal is whether the existence of an unexercised one-House legislative veto provision in the Reorganization Act of 1977 prevents the Equal Employment Opportunity Commission (EEOC) in 1982 from issuing and enforcing an administrative subpoena ordering the appellant to produce records in an age discrimination investigation, the enforcement authority under the Age Discrimination in Employment Act (ADEA) having been transferred from the Department of Labor to the EEOC in 1978 pursuant to the Reorganization Act.
For the reasons stated in this opinion, we hold that the transfer of enforcement authority from the Department of Labor to the EEOC was valid and the EEOC has the power to issue and enforce its administrative subpoena.
This action was brought by plaintiffs Muller Optical and its president, Robert E. Long, seeking a temporary restraining order or a preliminary injunction prohibiting the defendant, EEOC, from requiring Long to appear at a deposition and to produce certain documents pursuant to an administrative subpoena. The EEOC had issued the subpoena in connection with its attempts to investigate charges of age discrimination filed by an employee discharged by Muller Optical. Muller Optical had resisted all efforts by the EEOC to investigate the charge, making the subpoena necessary.
The plaintiffs argued that the EEOC lacked authority to investigate the age discrimination charges because the Reorganization Act of 1977, which authorized the transfer of authority to enforce the ADEA, was invalid because it contained a one-House legislative veto found unconstitutional by the Supreme Court in Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983).
The District court denied the request for a preliminary injunction, holding that the offending provision was severable from the rest of the act and, in the alternative, that subsequent acts of Congress had ratified the transfer of enforcement authority under the ADEA from the Department of Labor to the EEOC. The case is now on appeal from that decision.
As a preliminary matter, the EEOC argues that Muller Optical lacks standing to bring this suit because it can demonstrate no injury. The claim is that Muller Optical suffers no more injury if it is investigated by the EEOC than it would if investigated by he Department of Labor. The district court rejected this argument as have other courts presented with this issue. Muller Optical Company v. EEOC, 574 F. Supp. 946 (W.D.Tenn. 1983); EEOC v. Allstate Insurance Company, 570 F. Supp. 1224 (S.D.Miss. 1983). See also, EEOC v. Chrysler Corp., No. 81-72347, slip op. at 8-10 (E.D.Mich. Jan. 23, 1984). In this case the plaintiffs have been subpoenaed by the EEOC and ordered to produce documents. The plaintiffs claim that the EEOC lacks authority to investigate the age discrimination claims and, therefore, lacks authority to issue the subpoena. The plaintiffs have alleged sufficient injury to meet the requirements for standing and the district court was correct in rejecting this frivolous argument. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102, 752, 758, 70 L.Ed.2d 700 (1982); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976).
The Court has entertained and granted motions on behalf of Chrysler Corporation and ANR Pipeline Company and Natural Gas Pipeline Company of America to file briefs amici curiae. The material provided by counsel has been of assistance to the Court in resolving this matter.
LEGISLATIVE HISTORY
Age Discrimination in Employment Act
[10] Congress passed the Age Discrimination in Employment Act in 1967 and placed enforcement authority under the Department of Labor. The Secretary of Labor was given the authority to appoint agents and retain employees necessary to enforce the act, to issue necessary rules and regulations, to make investigations and to enforce the provisions of the act in accordance with the powers, remedies and procedures contained in designated sections of the Fair Labor Standards Act, 29 U.S.C. § 625, 626, and 628.The Reorganization Act of 1977
In 1977 Congress passed the Reorganization Act, authorizing the President to reorganize the executive branch and its agencies to increase efficiency and to promote the better execution of the laws. 5 U.S.C. § 901. Section 901 describes the broad policies of the Reorganization Act; sections 903 and 904 describe the methods by which the reorganization might be accomplished; and section 905 outlines the limitations on the reorganization power. The President was required to transmit each reorganization plan to both Houses of Congress, 5 U.S.C. § 903, and the plan would become effective after the passage of 60 days. However, the statute permitted either House of Congress to prevent the plan from taking effect.
[A] reorganization plan is effective at the end of the first period of sixty calendar days of continuous session of Congress after the date on which the plan is transmitted to it unless, between the date of transmittal and the end of the sixty day period, either House passes a resolution stating in substance that the House does not favor the reorganization plan.
5 U.S.C. § 906. The Reorganization Act also provided that a resolution disapproving each reorganization plan would be automatically introduced in the House of Representatives and in the Senate on the first day of session following transmittal of the plan. 5 U.S.C. § 909-10. The plan would be reviewed by the Committee on Governmental Affairs of the Senate and by the Committee on Government Operations of the House and reported out of committee within 45 days. If the plan was not reported within 45 days, it would be placed on the calendar of the appropriate House for consideration. 5 U.S.C. § 911.
Reorganization Plan No. 1 of 1978
Reorganization Plan No. 1 of 1978 transferred the authority to enforce the ADEA to the EEOC. 43 F.R. 19807, 92 Stat. 3781, reprinted at 5 U.S.C.App. at 111 (Supp. 1984). The transfer of authority under the ADEA was complete and did not alter the substance of the enforcement authority in any way. The power of government over individuals and corporations was not enlarged nor was it diminished by the reorganization. The effect was merely to transfer the authority provided under the ADEA from the Labor Department to the EEOC.
See Appendix I for complete text of Reorganization Plan No. 1 of 1978.
Neither House of Congress exercised the legislative veto provision contained in § 906 with respect to the Reorganization Plan No. 1 of 1978. The House rejected the resolution of disapproval by a vote of 356 to 39. See 124 Cong.Rec. 1136-37. The Senate Committee on Government Operations unfavorably reported a similar resolution of disapproval by a unanimous vote and, by unanimous consent, the Senate indefinitely postponed consideration of the resolution. See 124 Cong.Rec. 10,912, 12,888. The actions occurred after lengthy hearings by both committees assigned to review the Reorganization Plan of 1978. The transfer of authority to enforce the ADEA was implemented on July 1, 1979, pursuant to the Reorganization Act and the Reorganization Plan No. 1 of 1978, and the EEOC has enforced the Act since that date. See Executive Order No. 12,144, 44 Fed.Reg. 37, 193 (June 26, 1979).
See note 7, infra.
Post Transfer Congressional Action
Since the transfer was effectuated, Congress has appropriated funds requested by the EEOC for the functions transferred. The appropriation bills for fiscal years 1981 and 1983 contain citations to both the Equal Pay Act and the Age Discrimination in Employment Act in connection with the appropriation made to the EEOC. Hearings held in connection with budget submissions on behalf of the EEOC contain testimony referencing the enforcement of the Equal Pay Act and ADEA as an EEOC function.
For the fiscal year 1983, Congress appropriated funds "[f]or necessary expenses of the Equal Employment Opportunity Commission as authorized by Title VII of the Civil Rights Act of 1964, as amended, 29 U.S.C. § 206(d) and 621-634. . . ." Act of Dec. 21, 1982, Pub.L. No. 97-377, 96 Stat. 1830, 1874. In 1981 Congress appropriated a sum not to exceed $18,500,000 "for payments to State and local enforcement agencies for services to the Commission pursuant to Title VII of the Civil Rights Act, as amended, and sections 6 and 14 of the Age Discrimination in Employment Act." Act of Dec. 15, 1981, Pub.L. No. 97-92, 95 Stat. 1183, 1192 (1981). See also, Act of Nov. 28, 1983, Pub.L. No. 98-166, 97 Stat. 1071, 1088 (Appropriations for 1984 fiscal year containing reference identical to that for 1983 appropriation).
See e.g., Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriations for 1980: Hearings before a Subcommittee of the House Committee on Appropriations, 96th Cong., 1st Sess. 79-81, 97-104, 110-11, 120, 139, 145, 150 (1979); Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriations, Fiscal Year 1980: Hearings Before the Subcommittee of the Senate Committee on Appropriations, (Part 2) 96th Cong., 1st Sess. 1493, 1495, 1499, 1500-05, 1517-19, 1532 (1979); Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriations for 1981: Hearings Before a Subcommittee of the House Committee on Appropriations, (Part 8) 96th Cong.2nd Sess. 241, 243; Departments of State, Justice, Commerce, the Judiciary, and Related Agencies Appropriations for 1982: Hearings Before the Senate Committee on Appropriations (Part 2), 97th Cong., 1st Sess. 242-43.
The Civil Service Reform Act of 1978 contains a specific reference to Reorganization Plans 1 and 2 of 1978, stating that any provision of either plan which was inconsistent with the Act was superceded. 5 U.S.C. § 1101 note at 93 (Supp. 1984). Nothing in the Civil Service Reform Act of 1978 was inconsistent with the transfer of ADEA enforcement authority contained in Reorganization Plan No. 1 of 1978.
THE CHADHA DECISION
In Immigration and Naturalization Service v. Chadha, supra, the Supreme Court held that the exercise of a one-House veto, authorized by statute, was unconstitutional because it enabled Congress to act in a legislative capacity without complying with the procedural requirements of Article I. Chadha addressed the one-House veto provision contained in § 244(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1254(c)(2), which had been exercised to reverse a decision by the Attorney General granting permanent residence to six aliens, including Chadha. Section 244(c)(1) of the Act gave the Attorney General discretionary power to suspend the deportation of an alien under certain conditions. Upon exercising this power, the Attorney General was required to prepare a detailed report for submission to Congress, which would enable it to review the decision. Under § 244(c)(2) either House could pass a resolution reversing the decision of the Attorney General and the House of Representatives passed such a resolution. The Supreme Court found that Congress had delegated the authority to the Attorney General and could not alter the decision to suspend deportation, if at all, except through the established legislative process of Article I of the Constitution. The exercise of the one-House veto in Chadha was a legislative act which altered rights, duties and relations and, as such, was an exercise of power unauthorized by the Constitution.
Examination of the action taken here by one House pursuant to § 244(c)(2) reveals that it was essentially legislative in purpose and effect. In purporting to exercise power defined in Art. 1, § 8, cl. 4 to "establish an uniform Rule of Naturalization," the House took action that had the purpose and effect of altering the legal rights, duties and relations of persons, including the Attorney General, executive branch officials and Chadha, all outside the legislative branch. Section 244(c)(2) purports to authorize one House of Congress to require the Attorney General to deport an individual alien whose deportation otherwise would be cancelled under § 244. The one-House veto operated in this case to overrule the Attorney General and mandate Chadha's deportation; absent the House action, Chadha would remain in the United States. Congress has acted and its action has altered Chadha's status.
The legislative character of the one-House veto in this case is confirmed by the character of the Congressional action it supplants. Neither the House of Representatives nor the Senate contends that, absent the veto provision in § 244(c)(2), either of them, or both of them acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise of legislatively delegated authority, had determined the alien should remain in the United States. Without the challenged provision in § 244(c)(2), this could have been achieved, if at all, only by legislation requiring deportation.
Chadha, supra, 103 S.Ct. at 2784-85. It is clear from the decision in Chadha that the exercise of a one-House veto is unconstitutional. It is not altogether clear, however, how this decision affects statutes containing one-House veto provisions that Congress has chosen not to exercise. That is precisely the problem presented in this case and the problem that looms over a significant number of statutes passed by Congress.
If Chadha applies to potentially invalidate all statutes containing legislative veto provisions, whether exercised or not, a substantial amount of legislation will be drawn into question as well as agency action thereunder. See Chadha, supra, 103 S.Ct. at 2811-16 (Appendix to dissenting opinion of J. White). Justice White, in his dissenting opinion in Chadha, states that legislative veto provisions have been included in nearly 200 statutes covering a variety of areas. The Reorganization Act of 1977 alone, which is the subject of this case, was the basis for ten different reorganization plans which became effective between 1977 and 1980. See 5 U.S.C.App. I at 98-152 (Supp. 1984). The various plans created offices and agencies, transferred functions among agencies, and consolidated functions to eliminate duplication — all as directed by Congress in the Reorganization Act. The present case is merely one of the many possible ways a dispute might arise challenging a specific act of reorganization.
As easily predicted, there have been a number of cases since Chadha challenging statutes containing legislative veto provisions and courts have used a variety of approaches in dealing with the problem. All of the arguments and approaches to the problem used in these cases have been thoroughly explored by the interested parties in this case.
See, e.g., EEOC v. Hernando Bank, 724 F.2d 1188 (5th Cir. 1984) (EEOC has authority to enforce Equal Pay Act; one-House veto provision of Reorganization Act of 1977 unconstitutional but severable); EEOC v. Pan American World Airways, 576 F. Supp. 1530 (S.D.N.Y. 1984) (Reorganization Act of 1977 unconstitutional and, therefore, compliance with subpoena stayed); Allen v. Carmen, 578 F. Supp. 951 (D.C.D.C. 1983) (One-House veto provision of the Presidential Records and Materials Preservation Act unconstitutional but severable; regulations revised by virtue of the exercise of the veto power were invalid); In re Dept. of Energy Stripper Well Exemption Litigation, 578 F. Supp. 586 (D.Kan. 1983) (District Court not authorized to rule on constitutionality of Energy Petroleum Allocation Act and Energy Policy and Conservation Act; issue certified to the Temporary Emergency Court of Appeals); EEOC v. Allstate Ins. Co., 570 F. Supp. 1224 (S.D.Miss. 1983) (Reorganization Act of 1977 unconstitutional and provision cannot be severed; ratification argument likewise rejected).
ANALYSIS
The EEOC argues that the court should not apply Chadha for two reasons:
1. The unconstitutional one-House veto provision can be severed to preserve the substantive portions of the Reorganization Act and thereby to validate the Reorganization Plans implemented pursuant to the Act. In Chadha, supra, the Supreme Court found that the one-House veto provision of the Immigration and Nationality Act was severable from the remaining provisions based upon the presence of a severability clause and the legislative history of the Act. The Reorganization Act contains no severability clause but the EEOC argues that severability can be drawn from the legislative history.
2. Congressional action subsequent to the Reorganization Act has impliedly ratified the transfer of ADEA enforcement authority to the EEOC. The Commission contends that the subsequent appropriations to the EEOC, which cite enforcement of the Equal Pay Act and the ADEA as part of the basis for the appropriation, and the reference to the Reorganization Plan No. 1 of 1978 in the Civil Service Reform Act support a finding of ratification.
An amicus asserts that the transfer of enforcement authority to the EEOC was not consistent with Congressional intent demonstrated in the legislative history surrounding the provision of the Age Discrimination in Employment Act which vested enforcement authority in the Department of Labor. That amicus argues that Congress carefully considered the placement of enforcement authority and specifically chose the Department of Labor instead of the newer and more inexperienced EEOC and that the transfer directly contravenes the original action of Congress.
All of these arguments assume that the presence of the one-House veto in the Reorganization Act is alone sufficient to invalidate the Act, without regard to the fact that the veto was not exercised in this case. The Court is not persuaded that Chadha dictates this conclusion or necessitates framing the issues in this way.
The basis for the decision in Chadha is the doctrine of separation of powers which is integral to the constitutional scheme. Under Art. I, § 1, "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives." Article II, Section 1 provides "The executive Power shall be vested in a President of the United States of America". And Article III, Section 1 vests in the "Supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish" the "judicial power of the United States".
The President may not circumvent the constitution by attempting to legislate by Executive Order. Youngstown Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). Congress may not usurp the appointment power vested in the President pursuant to Art. II, § 2, cl. 2 Buckley v. Valeo, 424 U.S. 1, 120-43, 96 S.Ct. 612, 682-94, 46 L.Ed.2d 659 (1976). Congress may not exercise judicial power by legislating deprivations for specific individuals or groups of individuals in violation of the Bill of Attainder Clause. United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965); United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). The constitution dictates each of these results through the specific delegations of power in Articles I, II, and III.
The Supreme Court in Chadha found that the exercise of one-House veto violated the constitution because in substance it was an attempt to legislate by one-House of Congress. In using the veto, the House of Representatives purported to exercise more power than it had been given by the constitution. For a particular bill to become law, it must be passed by both Houses of Congress and presented to the President and neither requirement was met. The exercise of the veto in Chadha also invaded the authority of the Executive Branch in that it sought to require the Attorney General to deport an alien after he had decided, in the exercise of properly delegated authority, that the alien should be permitted to stay.
The judiciary, like the other two branches of government, is confined to the power granted by the constitution and can act only within the context of a case or controversy brought in conformity with the jurisdictional grant of Article III, § 2. The policy of judicial restraint is consistent with the separation of powers inherent in the constitutional scheme and the idea that courts should be reluctant to act absent a specific case brought within the constitutional grant of jurisdiction was articulated long ago in Hayburn's Case, 2 U.S. (2 Dall.) 408, 1 L.Ed. 436 (1792) and in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). The duty to avoid decisions of constitutional questions and the various doctrines related to advisory opinions, political questions, ripeness, etc., are all based upon the general policy of judicial restraint. Consequently, this court must seek to avoid the constitutional determination and must attempt to preserve the legislation in question, if possible. See, e.g., Johnson v. Robison, 415 U.S. 361, 366-67, 94 S.Ct. 1160, 1165-66, 39 L.Ed.2d 389 (1974); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 rehearing denied, 403 U.S. 924, 91 S.Ct. 2221, 29 L.Ed.2d 702 (1971); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932); Trade-Mark Cases, 100 U.S. 82, 96, (10 Otto) 82, 96, 25 L.Ed. 550 (1879).
It is with these principles in mind that the court approaches the question of the constitutionality of the Reorganization Act and the Reorganization Plan No. 1 of 1978. It is clear that Chadha dictates and expressly holds that the exercise of the one-House veto is unconstitutional. In exercising the veto Congress purported to act in a legislative capacity. This action was a violation of Article I. In the present case, Congress did not exercise the veto and did not act to legislate contrary to its constitutional grant of power.
The Reorganization Act expressly delegated the power to the President to reorganize and restructure the executive branch consistent with the policies and the limitations of the Act. 5 U.S.C. § 901-912. The President prepared the Reorganization Plan No. 1 of 1978 in conformity with the power delegated. The plan did not alter the substance of any right conferred under the Age Discrimination in Employment Act but merely transferred the authority to enforce substantive rights to the EEOC. It is clear from the legislative history that Congress was satisfied that the President had complied with the standards set forth in the Act. As discussed earlier, the House voted against the resolution of disapproval and the Senate unanimously consented to table the resolution after receiving the recommendation from its Committee on Government Operations that the resolution of disapproval be rejected. Both the House and Senate committees charged with reviewing the reorganization plan conducted hearings on the advisability of the transfer of enforcement authority prior to presenting recommendations on the resolutions.
See Reorganization Plan No. 1 of 1978, supra, reproduced in Appendix I.
See also, Appendix II for the complete text of the Message of the President transmitted with Reorganization Plan No. 1 of 1978, reprinted at 5 U.S.C.App. at 113 (Supp. 1984). The message of the President outlines the purpose of the transfer of enforcement authority.
Four days of hearings regarding the transfer were conducted by the Senate Committee on Government Affairs. See S.Rep. No. 95-750, 95th Cong., 2nd Sess., 5. Four days of hearings were also held by the House Subcommittee of the Committee on Government Operations. H.Rep. No. 95-1069, 95th Cong., 2nd Sess., 2 ("During the hearings . . . the new Chairperson of the EEOC [was] interrogated closely on these matters. The committee is satisfied that with effective leadership the Commission will be able to carry out all its duties.").
See also, Reorganization Plan No. 1 of 1978: Hearings Before the Committee on Governmental Affairs of the United States Senate, 95th Cong., 2nd Sess. (1978); Reorganization Plan No. 1 of 1978 (Equal Employment Opportunity); Hearings Before A Subcommittee of the House Committee on Government Operations, 95th Cong., 2nd Sess. (1978). See also Discrimination in the Federal Government: Hearings Before the Sub-Committee on Investigations of the House Committee on Post Office and Civil Service, 95th Cong., 2nd Sess. (1978).
In enacting the Reorganization Act, Congress tried, through the legislative veto, to put a string on the power delegated to the President in much the same way as it tried to put a string on the power delegated to the Attorney General in Chadha. As in Chadha, the veto provision could not be validly exercised. However, in the present case, the one-House veto was never exercised and the legislative history surrounding the Reorganization Plan No. 1 of 1978 demonstrates that the President acted in accordance with the wishes of Congress. The Reorganization Act itself was enacted in conformance with Article I and Congress did not veto the plan and then did not act in an unconstitutional manner in violation of Article I as occurred in Chadha. The legislative and executive branches of government never came into conflict as they did in Chadha to create a constitutional confrontation that would require judicial intervention. When there is no confrontation, the court should not create one and should not decide questions in the hypothetical.
Therefore, the court concludes that it is not necessary to examine the legislative history to determine whether the veto provision is severable. Nor is it necessary to determine if subsequent actions of Congress constitute a ratification of the President's reorganization plan. These issues are simply not relevant in this case. When the President Acts in accordance with the wishes of Congress and Congress does not act in an unconstitutional manner by attempting to legislate by means of the one-House veto, there is no need to go further and examine the severability question as was necessary in Chadha. If Congress had attempted to legislate in this unconstitutional manner, then the issue would be relevant. But when Congress does not act unconstitutionally, the severability of a provision permitting unconstitutional action should not be part of the proper analysis of the problem.
The central question for the consideration of severability is whether Congress would have passed the statute absent the offending provision. The difficulty arises when an invalid provision is an integral part of the scheme contemplated by the statute. It is hard to see the logic of this inquiry under the circumstances of the present case. Congress has long since reviewed the President's reorganization plan and has long since chosen not to exercise the one-House veto. Congress and the President were apparently in accord with respect to the transfer of authority to the EEOC. To inquire at this point in time whether Congress would have passed the Reorganizational Act without the one-House veto provision and, thereby, whether the substantive provisions of the Act are effective absent the provision, makes no sense when Congress has already declined to use the veto provision and thus has already approved the plan. Such an inquiry would involve the court in needless speculation and would require it to manufacture a conflict between Congress and the President when no conflict in fact exists.
Not only is a consideration of the severability of the veto provision not relevant for all the reasons stated, but also severance in the absence of a clearly expressed legislative intent is a murky endeavor and the resting of a constitutional decision involving the transfer of executive power on such an exercise filled with the subjective feelings so necessary to this type of analysis should be avoided. Instead, a court faced with the claim made in this case should endeavor to provide analysis and guidance that does not involve the subjective opinions of individuals and that will help solve the constitutional claims in the hundreds of other cases arising as a result of more than half a century of inclusion of a legislative veto provision in statutes. The correct analysis is that Congress did not act unconstitutionally when it passed the Reorganization Act of 1977. Congress did not act unconstitutionally by attempting to exercise a one-House veto. No conflict existed between Congress and the executive. The existence of an unused portion of the statute which, if used, would not be valid does not make invalid the exercise of power directed by the statute.
The conclusion, that the existence of a one-House veto provision in a statute does not render the statute invalid but only renders the act of Congress, if it attempts to exercise its one-House veto invalid, does not end the court's inquiry in this case.
Congress may not delegate legislative authority without establishing a set of standards to guide, direct and circumscribe the exercise of that authority. Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948); Schechter Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935).
It is thought by some that the legislative veto has been used by Congress to avoid the difficult problem of designing standards sufficiently detailed to provide guidance, See Chadha, supra, 103 S.Ct. at 2792-96 (J. White dissenting). As Professor Tribe said prior to Chadha, the inclusion of a legislative veto should not cure an overbroad delegation of authority. L. Tribe, American Constitutional Law, 162 (1978). On the other hand, he likewise observed that a properly limited delegation is not rendered overbroad by the inclusion of a legislative veto. Id.
The real issue facing this court in this case, and in all cases involving statutes in which the legislative veto has not been exercised, is whether the delegation of authority is accompanied by sufficient standards to permit the executive to constitutionally exercise the power given.
The legislative history of the Reorganization Act demonstrates than Congress was mindful of the possible constitutional problems with the one-house veto and included standards in the statute to increase Congressional control over the reorganization process and to increase the likelihood that the statute would be found constitutional.
The Reorganization Act of 1977 was a compromise between bills sponsored by the Administration (S. 626, H.R. 3047 and H.R. 3442) and a bill drafted by Representative Jack Brooks (H.R. 3131). The former bills were drawn along the lines of past reorganization bills and contained a one-House veto and broad delegations of power. The bill proposed by Representative Brooks made enactment of a Reorganization Plan contingent upon approval by vote of both houses and signature of the President. H.R. 3131 was rejected because Congress wanted to expedite the reorganization. The bills sponsored by the Administration were rejected as an overbroad delegation. See H.R. Rep. No. 95-105, 95th Cong., 1st Sess., reprinted in 1977 U.S. Code Cong. Ad.News 41.
The House Report concludes as follows:
The committee recommends that the President be delegated limited authority to reorganize the Federal Government. Under the authority, the President would submit reorganization plans to the Congress which would become effective after 60 days unless either House of Congress has adopted a resolution disapproving such plan. Procedures assuring a vote on each plan if any Member of Congress asks for it, are incorporated in the bill.
In the course of the hearings on this legislation, the constitutionality of the key provision of this bill was questioned. It was contended that the bill makes too broad a delegation of legislative authority to the President by permitting plans submitted by the President to become law without the approval of Congress.
The question remains unresolved, but it is the position of the committee that the risk of an unfavorable ruling by the courts, while still remaining, may have been lessened by the adoption of the new voting procedure and the added limitations on the use of the reorganization authority.
It is the intention of the committee to examine carefully each reorganization plan submitted under this authority and to assure the participation of Congress in the reorganization process to the fullest extent possible.
H.R. Rep. No. 95-105, supra at 17, 1977 U.S. Code Cong. Ad.News at 57. (emphasis supplied)
The standards provided are of varying kinds and, taken as a whole, guide, direct and circumscribe the President in reorganizing the executive branch.
First, Congress directed that the reorganization plans should be designed to further one or more of the following purposes:
Promote better executive of the laws;
Promote more effective management of the executive branch and its agencies;
Promote he effective administration of the public business;
Reduce expenditures;
Promote economy;
Increase efficiency;
Coordinate and consolidate agencies and functions according to major purposes;
Reduce the number of agencies by consolidating those with similar functions and abolish such agencies or functions thereof as may not be necessary to efficient government;
Eliminate overlapping and duplicating effort.
5 U.S.C. § 901. These are explicit guides and directives to the President which provide a careful framework for the authority granted. Furthermore, these are not the only standards provided in the statute.
The Act is specific in excluding certain activity of the executive department from its operation. 5 U.S.C. § 902 (excluding the General Accounting Office and the Comptroller General). The President is also prohibited from "creating a new executive department, abolishing or transferring an executive department of independent regulatory agency, or all the functions thereof, or consolidating two or more executive departments or two or more independent regulatory agencies, or all of the functions thereof." 5 U.S.C. § 905(a)(1). He is proscribed from extending the life of an agency and from authorizing an agency to exercise a function which is not expressly authorized by law at the time of the plan. 5 U.S.C. § 905(a)(2)-(4).
The statute provides both general and specific directives for the exercise of the reorganization power as well as a number of circumscribing limitations upon the exercise of that power. The transfer of ADEA enforcement functions from the Department of Labor to EEOC is not unconstitutional under these circumstances. We agree with the analysis of the court in E.E.O.C. v. Hernando Bank, Inc., 724 F.2d 1188 (5th Cir. 1984) in this regard:
The substantive limitations imposed retain for Congress control over the substantive operations of the federal government. The Act does nothing more than delegate to the President the authority to reorganize the complex bureaucratic machinery of the executive branch so as to implement most effectively Congress' substantive policies.
It is clear that "Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested." Schechter Corp. v. United States, supra, 295 U.S. at 529, 55 S.Ct. at 843 (quoted with approval in National Cable Television Ass'n. v. United States, 415 U.S. 336, 342, 94 S.Ct. 1146, 1150, 39 L.Ed.2d 370 (1974)). This does not mean, however, that Congress may never delegate authority.
Panama Refining Co. v. Ryan, supra and Schechter, supra, are the only cases in which the Supreme Court has held invalid a delegation of power to a governmental authority. 1 Davis, Administrative Law Treatise § 3:8 (2d Ed. 1978). Davis opines that the Panama decision would not be followed today and is explainable only by two extraneous factors: 1) broad delegation in other parts of the Act and 2) criminal penalties for violation code provisions the content of which were not readily ascertainable.
The Schechter case involved a broad delegation of authority to approve "codes of fair competition" to govern all business subject to federal authority. "In view of the scope of that broad declaration, and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered." 295 U.S. at 541-42, 55 S.Ct. at 848-49.
"If Congress shall lay down by legislative act an intelligible principle . . . such legislative action is not a forbidden delegation of legislative power." Hampton Co. v. United States, 276 U.S. 394, 409 [ 48 S.Ct. 348, 352, 72 L.Ed. 624]. Standards prescribed by Congress are to be read in light of the conditions to which they are to be applied. "They derive much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear." American Power Light Co. v. S.E.C., 329 U.S. 90, 104 [ 67 S.Ct. 133, 142, 91 L.Ed. 103].
Lichter v. United States, supra, 334 U.S. at 785, 68 S.Ct. at 1316.
In Lichter the Supreme Court upheld a delegation of authority to renegotiate all contracts and subcontracts made by the War Department, the Navy Department or the Maritime Department. The Secretary of each department was instructed to require the contractor or subcontractor to renegotiate a contract whenever the Secretary determined that "excessive profits" had been realized or were likely to be realized. The Renegotiation Act did not define the term "excessive profits". The Court, however, found that the term itself was sufficiently clear in light of the factual background of the Act. Furthermore, the power authorized under the Act was for a limited period of time.
The standards provided in the Reorganization Act of 1977 are considerably more detailed than those in the Renegotiation Act found valid in Lichter. The authority to reorganize the executive branch was also conferred for a limited period of time.
The authority to reorganize was originally granted for three years from the date of enactment but was later extended to four years by amendment. See 5 U.S.C. § 905(b) (Supp. 1984).
Finally, the extent and the type of authority delegated in the Reorganization Act is an important consideration. The cases discussing the sufficiency of the standards needed to sustain a delegation of power use the phrase "in light of the conditions to which they are to be applied." Lichter, supra, 334 U.S. at 785, 68 S.Ct. at 1316. In 1978 Congress recognized that the government had grown over a number of decades by adding one agency on top of another, often with conflicting or duplicative authority. H.R. Rep. No. 95-105, supra at 4, 1977 U.S. Code Cong. Ad.News at 43-44. Congress also recognized that reorganization could be accomplished more speedily by the President "than by the enactment of specific legislation." 5 U.S.C. § 901(b). The President was given authority to streamline the executive branch as a manager would streamline a department of a company. He was not given authority to eliminate functions, to alter substantive rights, or to change the way in which statutes could be enforced. The standards provided in the Act are clearly sufficient, in light of the conditions to which they were to be applied and in light of the nature of the authority delegated. We do not construe the action by the Congress in this case to be an evasion of the Constitution by enactment of executive proposals by mere silence, See Chadha, 462 U.S. at ___ n. 22, 103 S.Ct. at 2787 n. 22, nor did the Congressional action in reorganization alter the substantive rights of parties subject to ADEA as was the case in Chadha where the substantive rights of the alien and I.N.S. were affected by one-House action, id. at ___, 103 S.Ct. at 2784.
An amicus argues that the Reorganization Act is an invalid delegation of authority because it contains insufficient limitations of § 905, citing the remarks of Professor Tribe reprinted in the House Report No. 95-105. Professor Tribe expressed some concern that the President could alter substantive rights by inappropriate transfers of functions. Professor Tribe's full remarks are found at H.R. Rep. No. 95-105, supra at 15-17, 1977 U.S. Code Cong. Ad.News at 55-56.
This argument overlooks the direction given the President in §§ 901 and 903 and assumes that the President might not act in good faith. Section 901(a)(1) says that the purpose of the Act is "to promote the better execution of the laws, the more effective management of the executive branch and of its agencies and functions, and the expeditious administration of the public business." Subsections (a)(4), (5) and (6) discuss grouping and consolidating similar functions "according to major purposes" to eliminate duplication. The policies outlined in this section are clear. An inappropriate transfer affecting substantive rights would violate the purpose of promoting the better execution of the laws in § 901(a)(1) and possibly the purpose of consolidating similar functions "according to major purposes" of subsections (a)(4) and (5). Inappropriate transfers might also violate the prohibition of § 903(a)(2) that no enforcement function or statutory program can be eliminated by the plan. If substantive rights were affected by the transfer, the specific transfer of authority might be subject to the charge that it effectively eliminated all or part of an enforcement function.
While the court has discussed the facts relative to the ratification argument set forth by the EEOC, we do not mean to imply that ratification is a proper ground for upholding the Reorganization Plan No. 1 of 1978. The facts do not support ratification, and we do not adopt EEOC's argument in this respect. However, the facts are relevant to the broader issue of whether the plan was, in fact, consistent with the standards articulated in the Reorganization Act, and to the lack of constitutional confrontation between the executive and legislative branches, and to the complete legislative history of this particular transfer of authority and have therefore been included.
For the reasons given above, the order of the district court denying the motion for a preliminary injunction is AFFIRMED.