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that the Houses act concurrently in passing legislation. That both the House of Representatives and the Senate must pass all legislation is a requirement of the Constitution. See Moran v. La Guardia, supra: Montgomery v. Ellis, 364 F.Supp. 517, fn. at 532 (1973). It is difficult to reconcile opposite holdings with this view in any meaningful fashion. The New Hampshire Opinion of the Justice, 266 A.2d 823 (1970), can be explained on the grounds that the court interpreted the committee activity as administrative and not legislative. Sibbach is easily distinguishable, since Congress could react against the Federal Rules only by jointly rejecting them during the time they lay before

it.

B.

Constitutionality of the Negative Affirmance
Procedure under Article I § 7

The Constitution, Article I § 7, provides that
Every Bill which shall have passed the House of
Representatives and the Senate, shall, before it
becomes a Law, be presented to the President of
the United States; ... Every Order, Resolution,
or Vote to which the Concurrence of the Senate
and House of Representatives may be necessary
shall be presented to the President....Cls. § 2,3.

...

While the single house resolutions called for in H. R. 3658 are strictly speaking neither a bill nor an order, resolution or vote to which both Houses must concur, a defense

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of H. R. 3658 on the grounds that the procedure it creates is only a mode of legislating would be hard pressed to deny the force of Article I § 7. The fact the bill in no way requires the President's approval of resolutions voiding administrative rules raises constitutional prob

lems.

The most notable exception to the requirements of Article I § 7 are certain resolutions passed concurrently by the houses of Congress, which have usually been held valid even if not submitted to the President for approval. Despite their differences, single house and concurrent resolutions are analytically identical for the purposes of Article I § 7, as each represents a presumably valid form of congressional action. Nonetheless, the exception carved for concurrent resolutions does not avail the single house resolutions that H. R. 3658 calls for. It is generally accepted that concurrent resolutions, absent Presidential approval, are valid forms of legislative activity only for those matters, such as adjournment, creation of joint committees and printing of congressional documents, that are non-legislative, do not make policy and involve solely the internal functions of Congress.

"Congressional

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Concurrent Resolutions,"

37

A.B.A.J. 421 (1951). Other

concurrent resolutions have been held valid where specifi

cally called for by statute only where they could be characterized as a finding of fact or as an advisory opinion

requested by the President. Ginane, "The Control of

federal Administration by Congressional Resolutions
and Committees," 66 Harv. L. Rev. 569. It seems unlikely
that the congressional determinations H. R. 3658 calls for
could fit either of these categories. Cf. Moran v. La
Guardia, supra.

The argument used above in discussing the constitutionality of legislating by a single house, i.e., that H.R. 3658 creates a reservation in the delegation of authority to the executive, in which Congress may act as it sees fit, is equally available here. As with the problem the constitutionality of single house action, it could be argued that legislative action taken under H.R. 3658, while legislative, is not legislating. Rather, it is articulation of a delegation and the policy embodied in the enabling statute, because it is something less than formal legislation, a congressional veto need not meet the President's approval.

However, this argument suffers

the same weaknesses as it did when applied to single house

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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 submit enactments to the President.

Even so, it could still be maintained in defense of the bill that Congress is not acting in a manner envisaged by Article I § 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, Congress 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 § 7. This influence on executive action is but a formalized version of the pressures Congress brings to bear in other ways--by oversight and appropriations 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 enunciates policy to an even greater degree when it declines to take action on matters pending before it.

V.

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 distinguished 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 constitutionally 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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