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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
Constitution and the constitutional requirement that the
Senate and House of Representatives act concurrently.
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
criminal sanctions, however, it would be more to the advan
tage of the bill to view it largely as a measure that allows
Congress to exercise its non-legislative authority.
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
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
of Administrative Regulations, " 30 N.Y.U. Intra. L. Rev.
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).
could also be characterized as setting up a procedure
whereby Congress can take non-legislative action.
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
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).
Constitutionality of Legislative Action under H.R. 3658
Constitutional Problems of Effecting the Veto
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
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