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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,20 823, 826 (1970)
the New Hampshire Supreme Court held that since a legisla
ture can withold a delegation altogether it may properly
impose conditions upon the exercise of that delegated
The United States Supreme Court has taken a similar
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.
bach 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 al
lowed 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
ment, at least sub silentio, as an element of their inter
Moreover, cases indicate that courts accept
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. 20
738 (S. Ct. N.H. 1950).
Further authority for a single
hous e resolution comes from the fact that a single house
"negative affirmance" procedure is like passing legislation
initially: just as either house could initially have limita
ed the delegation in question by refusing to pass the por
tions 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 proce
dure 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
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
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 recon
cile opposite holdings with this view in any meaningful
The New Hampshire Opinion of the Justice, 266
A.28 823 (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
Constitutionality of the Negative Affirmance
The Constitution, Article I S 7, provides that
Every Bill which shall have passed the House of
While the single house resolutions called for in H.R. 3658
are strictly speaking neither a bill nor an order, resolu
tion or vote to which both Houses must concur, a defense
of H.R. 3658 on the grounds that the procedure it creates
is only a mode of legislating would be hard pressed to
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 S 7, as each represents a presumably valid
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.
37 Concurrent Resolutions," A.B.A.J. 421 (1951).
concurrent resolutions have been held valid where specifi
cally called for by statute only where they could be charac
terized as a finding of fact or as an advisory opinion
could fit either of these categories. cf. Moran v. La
The argument used above in discussing the constitu
tionality of legislating by a single house, i.e., that
H.R. 3658 creates a reservation in the delegation of authori
ty to the executive, in which Congress may act as it sees
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