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resolutions :

even though the action Congress may be

something less than formally legislating, it is still

modification of a statute; although Congress could have

taken the same action when it passed the enabling statute

as it does when vetoing a rule, the fact remains that it

did not do so, and there is no reason why a reservation in

the delegation should relieve Congress of the need to sub

mit enactments to the President.

Even so, it could still be maintained in de fense of

the bill that Congress is not acting in a manner envis

aged by Article Is 7 when it vetoes a rule.

While it

is undoubtedly molding policy, it is doing so indirectly

by nullifying interpretations of policy.

Congress is

not specifying what policy the executive must pursue

in promulgating other rules; and in fact enunciates no

affirmative policy at all.

Even were it so doing, Con

gress would only be specifying rules for interpretation of

the statute.

For all the problems this raises in the field

of separation of powers, this is not fatal to the bill

under Article I S 7.

This influence on executive action

is but a formalized version of the pressures Congress

brings to bear in other ways--by oversight and appropria

tions committees, through the GAO and by other means.

It

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is an articulation of policy that the Constitution permits

in the interests of flexibility.

See Sibbach v. Wilson,

302 u.s. 1, 15 (1941). And, in fact, Congress often enun

ciates policy to an even greater degree when it declines

to take action on matters pending before it.

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Constitutionality of H.R. 3658 from the Standpoint
of Separation of Powers

The principle of separation of powers mandates that

no one branch of the federal government may invade the

powers held by the others.

"Legislative power, as dis

tinguished from executive power, is the authority to make

laws, but not to enforce them.

Springer v. United States,

277 U.S. 289, 202 (1927).

Congress violates the principle

of separation of powers when it usurps executive functions

or so interferes with the administration of the laws that

it is acting executively.

Instances where congressional action has been consti

tutionally attacked as an usurpation of executive functions

are rare, and generally involve legislative attempts to

exercise pardoning power, Ex Part Garland, 4 Wall. 333

(1866), Brown v. Walker, 161 U.S. 591 (1896) or to remove

government officials, Myers v. United States, 272 U.S. 52

(1926).

Similarly, there are few cases involving separation

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of powers attacks in the administrative context, chiefly

because this "fourth branch" of the government involves

a sharing of legislative and executive powers.

One of

the few cases to address the issue of usurpation in this

context, Springer v. Phillipine Islands, supra, dealt

with a situation where members of the legislative branch

of the Phillipine territorial government were empowered

to exercise voting rights of shares in the election of

officers in a government-owned corporation.

The Supreme

Court declared the action unconstitutional on the grounds

that the legislature had assumed an executive function.

However, insofar as actual usurpation of executive func

tions, as in Springer, is concerned, H.R. 3658 presents

no real problem; here, Congress will be acting only in

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in the administrative context according to the "executive,"

"legislative" or "judicial" nature of the function involved.

Humphrey's Executor v. United States, 295 U.S. 602 (1935);

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Wiener v. United States, 357 U.S, 349 (1958).

A more substantial attack on H.R. 3658 would be on

the theory that it permits Congress to interfere unduly

with the operations of the executive branch.

While Con

gress is undoubtedly authorized to legislate on any of the

subjects covered by the rules H.R. 3658 would embrace,

excessive legislative participation in the administrative

process can be unconstitutional.

The constitutional in

firmities of H.R. 3658 in this respect are much less

severe if the bill is viewed as establishing a procedure

whereby Congress vetoes rules pursuant to its legislative

powers, as discussed in the section IV,

supra.

If, how

ever, the bill is thought of as creating a means for

Congress to exercise some inherent power of administration,

see Opinion of the Justices, 266 A.28 823 (s. Ct. N.H, 1970),

or some other mode of non-legislating congressional action,

see Watkins, supra., the separation of powers problem be

comes significant.

In any event, the controlling consti

tutional principles remain the same however the activity

is viewed.

It is difficult, if not impossible, to distinguish

legislating from executing laws.

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The line has not been exactly drawn which separates
those important subjects, which must be entirely
regulated by the legislature itself, from those of
less interest, in which a general provision may be
made, and power given to those who are to act under
such general provisions to fill up the details.
Wayman v. Southard, 23 What. 1 (1825).

The most accurate distinction is also the most vague: legis

lating involves the creation of general rules of policy,

execution involves the molding of this policy into proce

dures suitable for its implementation.

That there is an

element of policy-making in all enforcement is hardly a

new idea, see Jaffe, "Delegation of Legislative Power",

47 Colum. L. Rev. 359, 369 (1947), and undoubtedly most

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process as to be an interference with the functioning of

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alone, and even then just those rules that carry criminal

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