- 2 Congress to exercise its non-legislative authority. II. H.R. 3658 us H.R. 3658, "A Bill to permit either Howe of Congress Howe 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 § 553 of the Administrative Procedure Act, 5 U.S.C. § 551 et. seg. In addition to the requirements of notice and publication, submission of arguments and data by interested parties, etc., already found in the Act, the amended § 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 resolution of either House disapproving the rule. III. The Nature of Congressional Action under H.R. 3658 "negative affirmance." 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 executive branch, the New Hampshire Supreme Court declared that a legislative committee could validly have an administrative function. Opinion of the Justices, 266 A.2d 823, 826-7 (1970). In its only decision dealing with the constitutionality of statutes requiring consideration by Congress of action taken by other branches of government pursuant to a congressional delegation of power, the Supreme Court sustained the power of review on grounds that could be seen as non-legislative activity. v. Wilson & Co., 302 U.S. 1, 15 (1941). IV. a Sibbuch 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 constitutione requirements that legislation 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 delegations 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 - 5 conditional to this reservation. While serious separation of powers issues are often raised, it appears that Congress can create reservations in its delegations of authority. In Opinion of the Justices, 266 A.2d 823, 826 (1970) the New Hampshire Supreme Court held that since a legislature can withold a delegation altogether it may properly impose conditions upon the exercise of that delegated power. The United States Supreme Court has taken a similar view: The valve of the reservation of the power to examine proposed rules, laws and regulations before they become effective is well understood by Congress. It is frequently, as here, employed to make sure that the action under the delegation squares with the Congressional purpose. Sibbach v. Wilson & Co., 302 U.S. 1, 15 (1941). It can be argued that if such a reservation may be validly made, the procedure for the exercise of that power may be whatever Congress deems adequate. The large number of statutes that have reserved powers in Congress and allowed Congress to exercise its authority in a mode short of formally legislating would seem to indicate that this theory has been accepted by all three branches of govern - 6 ment, at least sub silentio, as an element of their internal relations. Moreover, cases indicate that courts accept this view. E.g., Opinion of the Justices, supra; Sibbach v. Wilson & Co., supra; but see Moran v. La Guardia, 1 N. E. 2d 961 (1936), and cf. Opinion of the Justices, 83 A.2d 738 (S. Ct. N.H. 1950). Further authority for a single house resolution comes from the fact that a single house "negative affirmance" procedure is like passing legislation initially: just as either house could initially have limit¬ ed the delegation in question by refusing to pass the portions of the relevant enabling statute under which a rule is: promulgated, either house, under H.R. 3658, can veto the rule in question. If the negative affirmance procedure of the bill is to be supported on the ground that it is subsequent legislative action on the enabling statute, a single house veto is the most appropriate mode of effecting it. The problem remains, however, that if Congress is going to justify its veto of an administrative rule on the grounds that it is only exercising a legislative power, it must, then, actually legislate. There can be no denying that Congress could not agree within itself, even with executive approval, to abolish the requirement |