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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

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ment, at least sub silentio, as an element of their inter

nal 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. 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

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

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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 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

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Constitutionality of the Negative Affirmance
Procedure under Article I S 7

The Constitution, Article I S 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. S 2,3.

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

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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

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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

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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.


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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

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could fit either of these categories. cf. Moran v. La

Guardia, supra.

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

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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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