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I.

Conclusions

H.R. 3658 encounters a number of constitutional prob

lems, the most significant being those attendant to the

requirements that both Houses of Congress act concurrently

in passing legislation, and all legislation be submitted

to the President for approval or veto, and to the princi

ple of separation of powers.

The impact of these issues

depends to a large degree on the characterization given

to Congress's action in vetoing administrative rules under

the bill. If Congress is seen as engaging in a mode of

are legislation, the problems raised by Article Is 7 of the

raised

Constitution and the constitutional requirement that the

Senate and House of Representatives act concurrently.

On

the other hand, if Congress is thought of as exercising

some form of non-legislative authority over the executive,

the chief constitutional issue becomes whether H.R. 3658

is an undue intrusion upon the domain of the executive

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criminal sanctions, however, it would be more to the advan

tage of the bill to view it largely as a measure that allows

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Congress to exercise its non-legislative authority.

II.

H.R. 3658

usi

H.R. 3658, "A Bill to permit either Howe of Congress

to disapprove certain rules proposed by executive agencies

"creates in Congress a veto power over proposed rules

that contain criminal sanctions.

The bill would take

effect as an amendment to s 553 of the Administrative Pro

cedure Act, 5 U.S.C. S 551 et. seg.

In addition to the

requirements of notice and publication, submission of ar

guments and data by interested parties, etc., already

found in the Act, the amended s 553 as proposed would

require the proposed rule to be laid before Congress for

thirty days.

If no resolution disapproving the rule

is passed by either House, the rule will take effect after

the expiration of thirty days.

If a resolution is referred

by motion to the appropriate committee for closer scrutiny,

the rule will take effect after sixty days, absent a

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of Administrative Regulations, " 30 N.Y.U. Intra. L. Rev.

1031.

Such procedures are generally defended constitutionally - 3

on the ground they are a valid exercise of legislative

power, and there is nothing about H.R. 3658 to indicate

this argument could not be used in the instant case.'

Nonetheless, the constitutional difficulties attendant to

H.R. 3658 if it is considered as a bill creating a power

to legislate are substantial (see IV, infra).

The bill

could also be characterized as setting up a procedure

whereby Congress can take non-legislative action.

See

Watkins, "Congress Steps Out:

A Look at Congressional

Control of the Executive, " 63 Calif. L. Rev. 983 (1975).

While such congressional activity is extremely suspect

constitutionally, there is some evidence that congress can

assume administrative powers in addition to its legislative

authority and act in modes that are not purely legislative.

In addressing the constitutionality of a statute that gave

the fiscal committee of the state legislature authority

to veto the salaries fixed by the governor for the execu

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Congress of action taken by other branches of government

pursuant to a congressional delegation of power, the Su

preme Court sustained the power of review on grounds that

a could be seen as ef non-legislative activity. Sibbuch

v. Wilson & Co., 302 U.S. 1, 15 (1941).

IV.

Constitutionality of Legislative Action under H.R. 3658

A.

Constitutional Problems of Effecting the Veto
by Means of a Resolution of a Single House

It is unquestioned that Congress could, by passing

appropriate legislation, nullify an administrative rule

promulgated, as are rules bearing criminal sanctions, under

an executive agency's quasi-legislative authority. While

H.R. 3658 could be considered as establishing a procedure

for the exercise of such legislative power, the fact that

a veto can be effected by a single house resolution

cal

seems to violate constitutiones requirements that legisla

tion pass both Houses and meet the President's approval.

The primary defense of the single house resolution

lies in the theory that congress may condition its delega

tions as it sees fit; once accepted by the President upon

his signing of the relevant statute or created by Congress

over his veto, the delegation, subject to certain other

constitutional requirements, (see v, infra), operates

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