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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.
is undoubtedly molding policy, it is doing so indirectly
by nullifying interpretations of policy.
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
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.
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.
Constitutionality of H.R. 3658 from the Standpoint
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
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.
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.
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
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);
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.
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,
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
In any event, the controlling consti
tutional principles remain the same however the activity
It is difficult, if not impossible, to distinguish
legislating from executing laws.
The line has not been exactly drawn which separates
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
process as to be an interference with the functioning of
alone, and even then just those rules that carry criminal