Petition — U.S. House of Representatives v. Consumer Energy Council

ALEXANDER L STEVAS.

No. — CLERK

In the Supreme Court of the United States

Ocrosrr TI, 1982

Umtrep States House or REPRESENTATIVES, PETITIONER

v.

ConsuMErR Enercy Cou Nc oF AMERICA, ET AL., RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

EUGENE GRESSMAN,

Special Counsel,

U.S. House of Representatives,

Fordham University School of Law,

140 West 62nd Street

New York, N.Y. 10023.

(212) 841-5242

Counsel of Record

STANLEY M. BRAND,

General Counsel to the Clerk,

U.S. House of Representatives,

Washington, D.C. 20515.

(202) 225-7000

Counsel for Petitioner

1. Whether the legislative review procedures set forth in

Section 202(c) of the Natural Gas Policy Act of 1978 constitute

“necessary and proper means of executing the legislative

power of Congress over commerce in natural gas, and are con-

sistent with the letter and spirit of other provisions of the

Constitution.

2. Whether Section 202(c) of the Natural Gas Policy Act of

1978 is severable from other provisions of Section 202.

3. Whether a federal court, having invalidated the sole provi-

sion of a statute by which an administrative rule-proposal can

become effective, has power to declare the rule-proposal effec-

tive by its own fiat.

4. Whether private parties have Article III standing to chal-

lenge the constitutionality of Section 202(c), pursuant to

which the House of Representatives disapproved by resolution

a proposed administrative rule that might have benefited the

private parties.

5. Whether, under Article III, an inter-Branch constitutional

controversy can be resolved by a federal court in a proceeding

where the contending Branches appear only as amici curiae.

6. Whether a controversy over the execution of the Neces-

sary and Proper Clause constitutes a nonjusticiable political

question.

7. Whether a judical review proceeding is moot where the

administrative rule under review has never become effective as

a matter of law.

PARTIES BELOW

There were three petitioners in the proceedings below: Con-

sumers Energy Council of America, Consumer Federation of

America, and Public Citizen.

The sole party respondent was the Federal Energy Regula-

The United States participated as amicus curiae in support

of the petitioners.

0

There were seven intervenors in support of the respondent:

Petrochemical Energy Group, Process Gas Consumers Group,

American Gas Association, Georgia Industrial Gas Group,

American Iron and Steel Institute, Interstate Natural Gas

Association of America, and United Distribution Companies.

The United States House of Representatives and the United

States Senate participated as amici curiae in support of the con-

stitutionality of Section 202(c) of the Natural Gas Policy Act

of 1978.

After judgment, the United States, the House and the Senate

were granted leave to intervene by the court below.

CONTENTS

Page

1 1

. 2

Constitutional and Statutory Provisions Involved 3

„ 4

Reasons for Granting the Writ. ...............--.-.--.--- 14

1. By unduly restricting the “necessary and proper“

legislative authority of the Congress, the decision

below creates “far-reaching effects on the opera-

tion of the National Government 14

2. The decision below poses important questions as to

the severability of Section 202(c) and the judicial

power to mandate that a proposed Phase II rule

be made effective contrary to the statutory

ͤ— NQ.) 18

3. The decision below raises important case or con-

troversy problems involving constitutional at-

tacks on the legislative review device 20

SS aaa ae a ae 23

AUTHORITIES

Cases:

Atkins v. United States, 556 F. 2d 1028 (Ct. Cls.

1977), cert. denied, 434 U.S. 1009 (1978) 15

Baker v. Carr, 369 U.S. 186 (1962) )))) 21

Buckley v. Valeo, 424 U.S. 1 (19760) 19

Chadha v. INS, 634 F. 2d 408 (9th Cir. 1980) 14, 19

Co. v. Corporation Commission,

e .cenceendadiionasnenmpesnece 19

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) 16

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) 16

Fairbank v. United States, 181 U.S. 283 (1901) 15

Gladstone, Realtors v. Village of Bellwood, 441 U.S.

T 20

INS v. Chadha, Nos. 80-1832, 80-2170, 80-2171 11, 14

Linda R. S. v. Richard D., 410 U.S. 614 (1973) 20

Cases—Continued

Liverpool Steamship Co. v. Commissioners of Emigra- Page

Ga, BES WE BS CRED wc ccccacccecccenccesccce 21

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

eee 14, 15, 18

Nixon v. Administrator of General Services, 433 U.S.

een . 16, 17

Simon v. Eastern Kentucky Welfare Rights Org., 426

// / / . ee 20

United States v. Jackson, 390 U.S. 570 (1932) 19

United States v. Union Pacific R. Co., 91 U.S. 72

1 Ae 20

Valley Forge Christian College v. Americans United,

102 S. Ct. 752, 70 L. Ed. 2d 700 (1982) 21

Constitution and Statutes:

CEE .. 3, 16

Article I, Section 7, Clauses 2 and 333 3, 16, 17

Article I, Section 8, Clauses 3 and 188 3, 14, 15, 16, 17

E scien 3

ST SN 3

Article III, Sections 1 and 3....................... 3

Administrative Procedure Act 9

Natural Gas Policy Act, Section 2111 3, 4, 18

Natural Gas Policy Act, Section 2022 passim

Natural Gas Policy Act, Section 206(d)-........---- 4

Natural Gas Policy Act, Section 506 (a)) 4,9

Miscellaneous:

Javits & Klein, Congressional Oversight and the Legis-

lative Veto: A Constitutional Analysis, 52 N. I. U. L.

ee a i aa 12

IN THE SUPREME COURT OF THE UNITED STATES

Ocrosrr Term, 1982

No. —

Unirep States House or REPRESENTATIVES, PETITIONER

v.

ConsuMER Enercy Cou Nc oF AMERICA, ET AL., RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

The United States House of Representatives, acting through

the Speaker of the House pursuant to H. Res. 49, 97th Cong.,

Ist Sess., 127 Cong. Rec. H260 (daily ed., Jan. 29, 1981), re-

spectfully requests that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Appeals

for the District of Columbia Circuit, entered on January 29,

1982, in proceedings there captioned Consumer Energy Coun-

cil of America, et al. v. Federal Energy Regulatory Commis-

sion, Nos. 80-2184, 80-2312.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

District of Columbia Circuit is reported at 673 F.2d 425. The

opinion is reproduced, as originally issued, in the appendix to

the jurisdictional statement filed in a related case before this

(1)

Court, No. 81-2008, by the Process Gas Consumers Group, et

al. App. la—104a.*

On May 6, 1980, the Federal Energy Regulatory Commis-

sion issued Order No. 80, which contains the rule-proposal in

question. Order No. 80 is reported at 45 Fed. Reg. 31622, and

is reprinted herein at App. 123a—195a.

On August 1, 1980, the Commission issued an order denying

rehearing and revoking the rule-proposal contained in Order

No. 80. That order is reported at 45 Fed. Reg. 54741, and is

reprinted herein at App. 196a—203a.

On October 2, 1980, the Commission issued an order denying

a second petition for rehearing, addressed to the revocation por-

tion of the order of August 1, 1980. The October 2 order is

reported at 45 Fed. Reg. 71780, and is reprinted herein at App.

204a-206a.

JURISDICTION

Judicial review proceedings were instituted in the District of

Columbia Circuit by the respondents Consumer Energy Council

of America, Consumer Federation of America, and Public Citi-

zen (“CECA”).* Jurisdiction was grounded on Section 506(a)

(4) of the Natural Gas Policy Act of 1978, 15 U.S. C. § 2416

(a) (4).

On January 29, 1982, the District of Columbia Circuit entered

a judgment which (a) adjudged “that the one-house veto pro-

vision in section 202(c) of the NGPA is unconstitutional,” (b)

reversed “the orders of the Federal Energy Regulatory Commis-

sion under review,” and (c) remanded the cases “to the Com-

mission for further proceedings consistent with the opinion of

this Court filed herein this date.” App. 208a-209a.

On March 2, 1982, the District of Columbia Circuit entered

an order granting the timely “motions of the United States

* References herein to “App.” are to the appendix filed jointly by all

aggrieved parties in the various proceedings now before this Court growing

out of the decision below. This 231-page appendix accompanied the juris-

dictional statement filed on April 29, 1982, by the Process Gas Consumers

Group, et al., No. 81-2008.

References herein to CA App.“ are to the appendix filed by the parties

in the proceedings before the District of Columbia Circuit.

These three non-profit organizations, respondents before this Court, are

referred to collectively herein as “CECA.”

House of Representatives, the United States Senate, and the

United States for leave to intervene.” App. 105a. All three

entities had sought intervention solely to acquire standing to

pursue their interests as parties before this Court, having ap-

peared before the Circuit only as amici curiae.

On March 10, 1982, the District of Columbia Circuit denied a

timely petition for rehearing and a suggestion for rehearing

en banc, filed by the American Gas Association. The Association

had been an intervenor in the proceedings below; it filed a

timely notice of appeal on March 26, 1982, pursuant to 28 U.S.C.

1252, and docketed the appeal in this Court on May 24, 1982,

No. 81-2171. Three other intervening groups have docketed

appeals in this Court, pursuant to 28 U.S.C. § 1252. See Nos.

81-2008, 81-2020, 81-2151. These intervenors also secured a

stay of the mandate of the District of Columbia Circuit.

On May 26, 1982, the Chief Justice granted a timely applica-

tion by the House of Representatives to extend the time

for filing this petition for writ of certiorari to and including

August 7, 1982. This petition is being filed within that extended

The House of Representatives invokes this Court’s jurisdic-

tion under 28 U.S.C. § 1254(1).

As set forth in the appendix now before this Court in these

related cases, the following constitutional and statutory provi-

sions, or relevant portions thereof, are deemed pertinent:

1. Article I, Section 1, of the Constitution. App. 222a.

2. Article I, Section 7, Clauses 2 and 3, of the Constitution.

App. 222a-223a.

3. Article I, Section 8, Clauses 3 and 18, of the Constitution.

App 223a.

4. Article II, Section 1, of the Constitution. App. 223a.

5. Article II. Section 3, of the Constitution. App. 224a.

6. Article ITT, Section 1, of the Constitution. App. 224a.

7. Section 201 of the Natural Gas Policy Act of 1978, 15

U.S.C. § 3341. App. 224a-225a.

8. Section 202 of the Natural Gas Policy Act of 1978, 15

U.S.C. § 3342. App. 225a-227a.

+

9. Section 206(d) of the Natural Gas Policy Act of 1978, 15

US.C. § 3346(d). App. 227a-228a.

10. Section 506(a) of the Natural Gas Policy Act of 1978, 15

U.S.C. § 3416(a). App. 228(a)-231a.

As the court below observed, this is a controversy that

represents a clear disagreement between the political branches

as to the meaning of the Constitution.” App. 49a. For sixty

years “there has been ‘a long tug of war between the Executive

and Legislative Branches of the Federal Government’ over the

constitutionality of legislative review devices.” App. 48a.

But the story of this particular case is how the Judicial

Branch sought to resolve this controversy in favor of the Execu-

tive Branch in a proceeding (a) instituted by private parties

said to have “an important stake in the resolution of this

[inter-branch] issue, App. 47a, and (b) where the Legisla-

tive and Executive Branches appeared not as parties but as

amici curiae. And the story is one that concludes with a judicial

decree that the administrative rule in question “shail take

effect,’ App. 104a, absent further agency action, despite the

absence of any statutory authorization for such a decree.

A. THE STATUTORY SCHEME

The story begins with the enac.ment of the Natural Gas

Policy Act of 1978, 15 U.S.C. $§ 230! 2542, duly signed into

law by President Carter. Title II of that Act requires the Fed-

eral Energy Regulatory Commissio:. (“FERC”) to implement

a so-called “incremental pricing” program under which certain

gas acquisition costs incurred by interstate pipelines «re col-

dential, commercial and other high- priority users.

The Act provides that the incremental vricing program will

be implemented in two phases, Phase I and Phase II. In Phase

I, embodied in Section 201, 15 U.S.C. § 3341, FERC is directed

to “prescribe and make effective” rule respecting the costs of

natural gas only as to industr al boiler fuel facilities” as

defined by FERC; there is no prov ision for legislative review of

a Phase I rule.’ But in Phase II, embodied in Section 202, 15

US.C. § 3342, FERC is directed to expand the incremental

pricing program to “any industrial facility which is within a

category defined by the Commission” and not otherwise

exempt. FERC is directed by Section 202(a)(1) to make the

expansion no later than 18 months after November 9, 1978, and

to do so in the form of “an amendment to the rule required”

under Phase I. It is that amendment that constitutes the so-

called Phase II rule, which is the center of this litigation.

Unlike the Phase I rule, the Phase II rule does not become

effective when issued by FERC. Section 202(a)(2) provides

that the Phase II amendment or rule “shall take effect only as

provided under subsection (c) of this section.” And Section

202(c), the subsection that the court below held uncoMstitu-

tional, plainly provides that the amending rule “shall take

effect” only after a copy of the rule has been submitted to each

House of Congress and a specified 30-day period of continuous

session of Congress has expired thereafter—“unless during such

30 day period of continuous session of Congress, either House

of the Congress adopts a resolution of disapproval.”

Section 202(c)(2) further provides that if either House

adopts a resolution of disapproval with respect to the Phase II

amending rule, FERC may thereafter submit to each House

another rule, to take effect only after the same legislative

review procedures have been satisfied.

It is noteworthy that no part of Section 202 refers to the

Phase II rule to be prescribed by FERC as a “final rule” or

as anything other than a rule that becomes effective “only

as provided under subsection (e), the legislative review

subsection.

B. FERC’S PROPOSED PHASE II AMENDMENT

On May 6, 1980, after holding hearings and receiving com-

ments, FERC issued its proposed Phase II rule amendment,

what it called “Final Rule, Subject to Congressional Review.”

App. 123a. This so-called “final rule” was embraced in FERC’s

Order No. 80. In the official summary of the rule-proposal,

FERC stated (App. 123a):

* FERC promulgated Phase I regulations in 1979 in Order No. 49.

The rule is subject to Congressional review and will

not become effective if disapproved by either House of

Congress. If not disapproved, the rule will expand the

scope of the incremental pricing program to all industrial

end-users not exempt under the NGPA, and provide that

those users of natural gas other than as boiler fuel be per-

manently subject to incremental pricing surcharges up to

the price of high-sulfur No. 6 fuel oil.

Effective date: Such date as represents the ninety-first

day following expiration of 30-day Congressional review

period if not disapproved by either House.

FERC further made clear at the outset of its rule-proposal

(App. 125a) that

The Commission believes that it was neither requested

nor authorized to second-guess the social and economic

judgments that the Congress made in enacting Title II.

The role of the Commission under Section 202 is more

limited. Instead, the Commission is instructed to bring

its technical expertise to bear on the design of a workable

Phase II rule that can best advance the purposes set by

Congress. It is up to the Congress to decide whether this

Phase II [rule] submitted meets adequately the social

and economic goals of the incremental pricing program

or, indeed, whether those goals are still appropriate.

By virtue of the very [Congressional] review proce-

dures built into section 202, it seems clear that the

Congress sought to have this Commission develop a

meaningful Phase II rule. The Congress would not have

a meaningful choice if the Commission were to offer no

rule, or a very narrow rule, for its review. The Congress

has reserved to itself the fundamental judgment as to

whether an expansion of incremental pricing is consistent

with current national priorities.

The Commssion believes that this Phase II rule presents

a meaningful choice to the Congress.

C. HOUSE DISAPPROVAL OF THE FERC PROPOSAL

On the same day FERC issued its proposal, May 6, 1980,

the rule-proposal was transmitted to Congress as required by

7

Section 202(c)(1). A resolution of disapproval was quickly

introduced in the House (H. Res. 655) and referred to the

House Committee on Interstate and Foreign Commerce. On

May 12, 1980, the Committee prepared a report entitled “In-

cremental Pricing of Natural Gas,” H. Rep. No. 96-938, 96th

Cong., 2d Sess. (1980), reproduced at App. 107a~121a. In that

report, the Committee recommended that the resolution of

disapproval “do pass.” Among the significant comments in the

report are the following:

II] The Natural Gas Policy Act of 1978 (NGPA) re-

quires the Federal Energy Regulatory Commission to

develop and submit to Congress, by May 9, 1980, a pro-

posal for incrementally pricing natural gas sold w indus-

trial nonboiler fuel facilities identified by the Commission.

Incremental pricing under the NGPA mandates the al-

locaton of a portion of the acquisition costs of natural gas

to industrial boiler fuel users and requires the Commis-

sion, subject to Congressional review, to extend incre-

mental pricing to such other nonboiler industrial users as

it deems appropriate. . . The Commission’s proposal

will become effective unless it is disapproved by either

House of Congress within 30 days (of continuous session)

of its submission by the Commision. [App. 107a].

[2] The committee finds that acknowledged uncertainty,

current circumstances, and problems raised by the Com-

mission's alternative fuel price mechanism preclude imple-

mentation of this rule. [App. 119a].

3] Accordingly, the committee finds that current uncer-

tainties with respect to Phase II of incremental pricing

must be substantially reduced before it would consider

implementation of a Phase II rule. The committee accepts

the Commission’s determination that incremental pricing,

as embodied in this rule, is ill-suited to accomplish market

ordering or price sheltering. Current market conditions do

not support the need for an expansion of incremental

pricing beyond phase I. [App. 119a—120a].

[4] House Resolution 655 does not change any existing

law. [App. 120a].

The resolution of disapproval went to the floor of the House

on May 20, 1980, where it was adopted 369 to 34. See 126 Cong.

Rec. H3839-3855. The floor discussion reflected many of the

same concerns raised by the Committee. For the most part, the

supporters of the resolution believed that FERC’s proposal was

in keeping with the mandate of Congress, but ti:at the policy

considerations of Phase II had changed since the passage of the

Act. See, e.g., H3841, col. 3. Others believed that FERC had not

carried out the legislative intent with respect to providing

protection for consumers. See H3847, H3854. As thus passed,

House Resolution 655 reads (App. 222a) :

Resolved, That the House of Representatives does not

approve the proposed rule under section 202 of the Natural

Gas Policy Act of 1978 (relating to incremental pricing of

natural gas) a copy of which was transmitted to the Con-

gress on May 6, 1980.

D. REHEARING PROCEEDINGS BEFORE FERC

On June 5, 1980, CECA filed its first application for rehearing

of Order No. 80, containing FERC’s disapproved rule-proposal.

CECA requested FERC to delete the Congressional review

language wherever it appeared in Order No. 80, “thereby mak-

ing the rules effective in accordance with the remaining terms

thereof.” C.A.App. 1. The basis for the application was said to

be that “the Veto Provision, the statute on which it is based,

15 U.S.C. § 3342(c), and the Resolution of Disapproval passed

by the House of Representatives on May 20, 1980 (H. Res.

655) are unconstitutional.” Id.

On August 1, 1980, FERC by order denied CECA’s rehearing

application. App. 196a—203a. In refusing to pass upon the con-

stitutionality of the Congressional review provisions of the Act,

FERC adhered to the view “that sound administrative practice

requires the presumption of constitutional validity of statutes

entrusted to this Commission for implementation.” App. 198a.

In the same August 1 order, FERC also exercised “its au-

thority under sections 201 and 202 to amend the rule under

section 201 to revoke the [Phase II] amendments made by

Order No. 80.” App. 201a. It revoked Order No. 80 even on the

assumption that, if the Congressional review procedure of Sec-

tion 202 (e) were found invalid, the Phase IT rule-proposal could

take effect. It did so for a variety of reasons: (a) FERC itself,

in submitting the proposal to Congress, had made no evaluation

of the social and economic goals of Phase II, believing that Con-

gress had that responsibility; (b) Order No. 80 thus was not

“the product of reasoned decision-making and the Commission

is neither authorized nor required to place it into effect” (App.

199a); (e) even were FERC to make an independent social and

economic evalaution, “we believe as an initial matter that we

might well have very serious reservations as to the wisdom of

making the Phase II rule effective“ (App. 199a-200a) ; (d) the

proposed rule does not “appear to be capable of carrying out

the market ordering function of incremental pricing . . . [and]

might be an imperfect instrument for sheltering high-priority

users from the economic impacts of rapidly increasing natural

gas prices” (App. 200a). Finally, FERC determined that a

variety of imponderables, “and other major social and economic

issues raised by Order No. 80, simply must be addressed, and a

reasoned judgment reached upon them, before the rule takes

effect.” Aj 20la.

CECA then sought rehearing of that portion of FERC’s

August 1 order that revoked Order No, 80. C.A.App. 16. In this

second rehearing application, CECA claimed that FERC lacked

power to revoke a Phase II rule inasmuch as it was under a

statutory mandate to issue such a rule. And it was asserted that

the revocation was not in accordance with the notice and com-

ment requirements of the Administrative Procedure Act, 5

USC. § 553.

On October 2, 1980, FERC issued an order denying rehearing

on the revocation issue. App. 204a—207a.

k. CECA’S PETITIONS FOR JUDICIAL REVIEW

The CECA organizations sought judicial review in the court

below of the two FERC orders, dated August 1 and October 2,

that had denied CECA’s two petitions for rehearing. These were

deemed to be “final orders” within the meaning of Section

506(a)(4) of the Natural Gas Policy Act, 15 U.S.C. § 3416

10

(a)(4), which authorizes judicial review at the instance of

any person “who is a party to a proceeding under this chapter

aggrieved by any final order issued by the Commission in such

proceeding.” Separate petitions for review having been filed as

to each denial of rehearing, the petitions (Nos. 80-2184,

80-2312) were consolidated by court order on November 7, 1980.

The CECA organizations claim to represent many individual

high-priority consumers of natural gas.* They allege that they

were aggrieved by the two FERC orders denying rehearing,

inasmuch as the effect was to preclude Phase II “incremental

pricing rules from going into effect.” C.A.App. 1. Those rules,

had they become effective, “would have shifted some of the

costs of natural gas to industrial users and away from con-

sumers.” And, without such rules, “the cost of natural gas to the

consumers who are members of the organizations comprising

petitioner CECA will be increased thereby.” /d.

While CECA’s ensuing brief on the merits in the court below

briefly described the revocation matter in its statement of the

case (pp. 19-20), the sole Question Presented was “Is it con-

stitutional for one House of Congress to veto a rule issued by

an agency of the executive branch of the federal government?”

Brief, p. 2. Or, as CECA asserted in the conclusion of its brief

(p. 63), “The crucial question which this Court must answer is

whether the Framers intended to permit a single House of

Congress the virtually unlimited authority to override a duly

enacted statute through the mechanism of vetoing the regula-

tions which are needed to carry it out.”

»The three CECA organizations have described themselves as non-profit

organizations composed variously of individual and organizational members.

The Consumer Energy Council in particular has described itself as “a broad-

based coalition of consumer, labor, farm, public power, rural electric co-

operative, urban, senior citizen, and low income organizations established

to represent the consumer voice in national energy policy, including pricing

policies for natural gas.” CA App. 1.

Many of the individual members and cuntributors to the three CECA

organizations are said to be high-priority consumers of natural gas. In addi-

tion, Public Citizen is also the owner of a building located at 215 Pennsyl-

vania Avenue, S. E., Washington, D.C., which is heated, in part, by natural

gas.” CA App. 2.

11

The CECA brief then proceeded to present the stock argu-

ments that the legislative review device, as embodied here in

Section 202 (e) of the Natural Gas Policy Act, exceeds the legis-

lative powers of Congress, violates the general separation of

powers doctrine, and deprives the President of the opportunity

to exercise his veto power under Article I, Section 7, of the

Constitution.’ No claim was made, however, that Section

202(e) violates any procedural or other constitutional right

of CECA or members thereof. The sole constitutional claim

was that the constitutional powers of the Executive, and to

some extent those of the Judiciary, have been breached by

Congress.

Not surprisingly, CECA’s constitutional claim was such as

to attract the full support of the Executive Branch. Appearing

sub nom. “United States,” the Executive Branch filed a brief

amicus curiae “to present its views on this important constitu-

tional issue. Brief, pp. 2-3. The Executive Branch expressed

its total agreement with CECA’s constitutional positions, add-

ing only tnat Section 202(c) is severable trom the other provi-

sions of the Act. The Executive Branch’s brief also announced,

p. 3, that “we have transmitted a report to each House of

Congress providing notification that we will contest the con-

stitutionality of a statute. .. . We would welcome de par-

ticipation in this case of the Senate and the House of Repre-

sentatives as amici curiae, in order to provide this Court with

full argument on the issue of the constitutionality of Section

[202(c)]}.”

The Senate and House responded to this notification that

the Executive Branch desired a constitutional confrontation

with the Legislative Branch by filing a joint brief amici curiae.

The two Houses sought to advise the court that Section 202(c)

represented a proper exercise of the broad authority of Con-

gress under the Necessary and Proper Clause to provide for a

limited kind of delegation of quasi-legislative functions, and

that no other provision in the Constitution precluded this

»The constitutional arguments advanced on behalf of CECA are identical

to those advanced on behalf of Chadha in the Chadha cases now pending

before this Court for reargument, Nos. 80-1832, 80-2170, 80-2171. Counsel

for CECA also represents Chadha.

12

choice of means of implementing the commerce power. In addi-

tion, the two Houses argued that Section 202(c) is not sever-

able from the remainder of the statute. and that FERC’s revoca-

tion of the Phase II proposal made the review proceedings

moot. By leave of court, the two Houses also filed a motion to

dismiss on the ground that the case should have been brought

in a district court, not in the appellate court under Section

506(a) (4).

In the meantime, the sole party respondent before the court

below—FERC—filed a brief taking no position on the con-

stitutionality of Section 202(c). FERC argued that the con-

stitutional issue need not be reached since (a) the Phase II

order was but a proposal to Congress, and hence could not

stand absent a Congressional mandate of some sort authorizing

that it be made effective; (b) FERC in any event had author-

ity to revoke the proposal; and (c) Section 202(c) is insever-

able from the remaining Phase II subsections of Section 202.

Various groups of gas utility and related corporations inter-

vened as respondents, basically in support of FERC’s statutory

positions. Several intervenors also supported the constitu-

tionality of Section 202(c).

CECA addressed the revocation, severability and jurisdic-

tional issues for the first time in its reply brief.

F. THE RULING BELOW

In a wide-ranging 104-page opinion, the court below held

“that the revocation order was invalid, that section 202(c)

is unconstitutional, and that the Phase II rule should become

effective absent further Commission action to postpone or

amend it.” App. 16a. It rejected every jurisdictional, prudential

and constitutional argument put forth by the two Houses in

their amici capacity, as well as several arguments advanced by

proponents of the legislative review device that the two Houses

did not see fit to advance.

The court spent three pages, App. 96a-98a, rebutting certain arguments

ascribed to former Senator Javits in a 1977 law review article. Javits &

Klein, Congressional Oversight and the Legislative Veto: A Constitutional

Analysis, 52 N. V. U L. Rev. 455 (1977).

See also App. 52a-54a, n. 127, where the court spends a long footnote

— 1 article by Professor Van Alstyne of Duke University

of Law.

The court dismissed any thought that a political question

might be present in the case. App. 43a-49a. And it quickly

found that the Necessary and Proper Clause “fails to ad-

vance the argument on behalf of the one-house veto.” App.

52a. The main thesis of the opinion was that Section 202(c)

is unconstitutional in that (a) it violates the Presentment

Clauses of Article I, Section 7, both by preventing the Presi-

dent from exercising his veto power and by permitting legisla-

tive action by only one House of Congress, and (b) it

contravenes the separation of powers doctrine implicit in

Articles I, II, and II because it authorizes the Congress to

share powers properly exercisable only by the other two

branches.

Having thus proceeded to invalidate Section 202(c), the

court concluded by decreeing that FERC’s Phase II proposal

“shall take effect,” App. 104a, absent “further Commission

action to postpone or amend it, App. 16a. The court cited no

statutory or other authorization for a judicial declaration of

the effectiveness of a Phase II proposal made by FERC, par-

tioularly one that FERC itself believes to be unwise and

ineffective.

G. THE POST-JUDGMENT INTERVENTIONS

The court below did in fact resolve “a clear disagreement

between the political branches as to the meaning of the Con-

stitution.” App. 49a. But since those political branches par-

ticipated in the proceedings only as amici curae, they found

themselves in a quandary. They had no standing to take the

initiative beforé this Court to pursue or protect their respec-

tive interests. The House and Senate in particular had no

assurance that any of the parties opposing CECA in the pro-

ceedings below would appeal the constitutional issue, let alone

adequately represent the critical concerns of the two Houses.

For those reasons, the House and the Senate, as well as the

Executive Branch, sought and obtained leave of court to in-

tervene after judgment. The House and Senate are now in

this Court as petitioners. The Executive Branch is here as a

party respondent and appellee.

14

REASONS FOR GRANTING THE WRIT

1. BY UNDULY RESTRICTING THE “NECESSARY AND PROPER” LEG-

ISLATIVE AUTHORITY OF THE CONGRESS, THE DECISION BELOW

CREATES “FAR-REACHING EFFECTS ON THE OPERATION OF THE

NATIONAL GOVERNMENT”

The two Houses of Congress come to this Court, for the

second time within the recent past,’ to protest a lower court

decision that restructures and deprecates the “necessary and

proper” legislative powers of Congress.

The decision below touches a matter of profound concern to

the Congress and the National Government, as well as to the

entire Nation. As Chief Justice Marshall said in McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819), the ability of

Congress to select those means deemed appropriate to the

execution of the great powers of government is a matter “on

which the welfare of a nation essentially depends.” And if that

capacity of Congress, embodied in the affirmative grant of leg-

islative power by the Necessary and Proper Clause (Article I,

Section 8, Clause 18), be unduly retracted, then the Constitu-

tion may indeed become but “a splendid bauble.” Id., at 421.

The court below conceded that its decision creates “far-

reaching effects on the operation of the National Government.”

The House submits that those effects are so manifold, so ill-

conceived, so destructive of the constitutional design envisioned

in McCulloch v. Maryland, that the reasons for plenary review

of the decision below become compelling. In capsule form, the

ill effects that must be examined by this Court are:

First. The court below, in addressing the constitutionality

of Section 202(c) of the Natural Gas Policy Act, ignores the

precepts that all presumptions “are in favor of constitution-

ality” and that “before à court is justified in holding that the

On June 22, 1981, the House and Senate filed petitions for certiorari to

review the ruling of the Ninth Cireuit, Chadha v. INS, 634 F.2d 408 (9th

Cir. 1980), holding unconstitutional the legislative review provisions of

Section 244(c)(2) of the Immigration and Nationality Act. Nos. 80-2170,

80-2171. Review was granted, and oral argument was had on February 22,

1982, along with the INS appeal in the case, No. 80-1832. On July 2, 1982,

the Court restored all three cases to the calendar for reargument.

15

legislative power has been exercised beyond the limits granted,

or in conflict with restrictions imposed by the fundamental law,

the excess or conflict should be clear.” Fairbank v. United

States, 181 U.S. 283, 288 (1901).

Here, the “excess or conflict” is anything but clear. More

importantly, the failure to accord presumptive validity to See-

tion 202(c) exacerbates the court’s refusal (App. 52a) to give

serious consideration to Congress’ theory of the constitution-

ality of Section 202(c). The theory is that the Necessary and

Proper Clause confers legislative power on Congress to pass

laws that delegate and/or retain certain quasi-legislative func-

tions. That theory is a modern manifestation of the principles

of McCulloch v. Maryland; and it is the theory used by the

Court of Claims in Atkins v. United States, 556 F.2d 1028, 1057

1071 (Ct. Cls. 1977), cert. denied, 434 U.S. 1009 (1978), to

validate the legislative review device in the federal Salary Act.

The decision below thus directly conflicts with Atkins in terms

of the use of the “necessary and proper analytical approach to

the legislative review device.

Second. The McCulloch decision makes clear that the Neces-

sary and Proper Clause is something more than a benign clause,

with no role to play in constitutional analysis other than to

bring into focus what the court below calls “other constitutional

infirmities” (App. 52a). McCulloch, as the Court of Claims

emphasizes in Atkins, establishes that the Clause is an affirma-

tive and independent grant of legislative power, “an additional

power, not a restriction on those already granted.” 17 US. (4

Wheat.) at 420.

In the context of assessing the validity of the legislative

review device, the McCulloch analytical model requires a court

first to ask whether the affirmative thrust of the Clause permits

Congress, as part of a duly enacted statute, to retain and exer-

cise some of the quasi-legislative functions that are otherwise

delegable to an administrative agency. If the answer is affirma-

tive, then the question is whether any other provision of the

Constitution “imperiously” (/d., at 408) prohibits or withholds

such “necessary and proper” choice of means. And where the

alleged infirmity is an invasion of a function constitutionally

assigned to another branch, there must be a weighing process to

determine if the invasion is justified by an overriding need to

promote objectives within the constitutional authority of Con-

gress.” Nixon v. Administrator of General Services, 433 U.S.

425, 443 (1977).

Third. The court below has significa utly recast the infrastruc-

ture of legislative power vested in Congress. It has done so in

several ways:

(a) It has read Sections 1 and of Article I in such way as

to confine the legislative power of Congress to the enactment

of plenary legislation, subject to presidential veto.

(b) It has thereby seriously impaired the legislative power

implicit in the Necessary and Proper Clause to provide by

statute for various ways of performing quasi-legislative func-

tions within that statute.

(c) It has thrown into confusion the doctrine that, by virtue

of the Necessary and Proper Clause, Congress can delegate to

governmental departments and agencies the exercise of quasi-

legislative authority . . subject to limitations which that

body imposes.” Chrysler Corp. v. Brown, 441 U.S. 281, 302

(1979). For if Congress is constitutionally forbidden to engage

in the quasi-legislative function of approving or disapproving

administrative lawmaking without enacting a new plenary

statute each time it so acts, how can administrative agencies

be delegated that same function without being subject to the

same plenary legislation requirements?

(d) It has failed to recognize the historic distinction between

plenary legislation and quasi-legislation. Until now, only

plenary legislation has been thought subject to the bicameral

processes of Article I, Section 7, while quasi-legislation has been

the peculiar concern of the discretionary judgments of Congress

in exercise of its “necessary and proper” legislative powers.

(e) The ultimate reorganization attempted by the court

below is to read the quasi-legislative aspects of the Necessary

and Proper Clause as being overruled by, or inconsistent with,

the Presentment Clauses, as well as the separation doctrine. But

as was said long ago in Cohens v. Virginia, 19 U.S. (6 Wheat.)

264, 393 (1821), it is the duty of a court “so to construe the

17

constitution as to give effect to both provisions, as far as it is

possible to reconcile them, and not permit their seeming

repugnancy to destroy each other.” The court below made no

effort to give effect to the Necessary and Proper Clause, or to

reconcile it with the Presentment Clauses or the separation

doctrine.

Fourth. In approaching the constitutional problem, the court

below repeatedly asserts and assumes that Congress sought to

impose legislative review and a one-House veto” on an other-

wise “final” and “effective” order of FERC. See App. 33a, n.

74; 74a-76a. The House emphatically rejects that interpreta-

tion of Section 202(c). That section, as well as FERC’s Order

No. 80 and the House resolution of disapproval, are replete with

references to Congressional review of a proposed rule a pro-

posed rule that “shall take effect” only if neither House adopts

“a resolution of disapproval” within a specified period after

submission. Congress, in other words, has not delegated to

FERC the quasi-legislative authority to make effective a Phase

II rule. It has only asked FERC to assist the Congress by for-

mulating a proposed rule for Congress to consider. And at no

time has FERC acted as though it had authority to finalize its

Order No. 80.

Fifth. The court below, in taking away from Congress much

of its “necessary and proper” quasi-legislative power, has trans-

ferred that power to the Executive Branch. Cast by the court

in constitutional concrete, that transfer wreaks havoc with the

separation of powers doctrine. By destroying the healthy and

growing cooperation between the Legislative and Executive

Branches, the court returns to the “archaic view of the separa-

tion of powers as requiring three airtight departments of gov-

ernment.” Nixon, 433 U.S. at 425. In the court’s view, Congress

is now restricted to enacting plenary legislation, while the

Executive has exclusive power to execute plenary statutes as he

sees fit. Congress can no longer put conditions or limitations on

Executive exercise of delegated quasi-legislative power, save by

passing a new plenary statute.

Thus the District of Columbia Circuit succeeds in diluting

the Necessary and Proper Clause to the point where it will be

difficult for the Clause’s quasi-legislative grant to “be adapted

to the various crises of human affairs. McCulloch, at 415. The

decision below serves “to deprive the legislature of the capacity

to avail itself of experience, to exercise its reason, and to accom-

modate its legislation to circumstances.” Id., at 415-416.

The effect of the constitutional principles announced below

is to preclude Congress, in implementing the complex economic

and social policies of the Natural Gas Policy Act, from instruct-

ing FERC to bring its technical expertise to bear on the design

of a workable Phase II rule that can best advance the purposes

set by Congress.” See App. 125a. The court states that if Con-

gress doesn’t like that constitutional block to granting such

limited quasi-legislative power to FERC, “it may by statute

take it back or may in the future enact more specific delega-

tions.” App. 98a. That remark seems to make no sense, govern-

mentally or constitutionally. Why should Congress be forced to

legislate on difficult economic and social matters with its

“necessary and proper” hands tied behind its back? And what

does the Executive hope to gain by corralling all quasi-legis-

lative rulemaking functions within the vested Executive

power?

2. THE DECISION BELOW POSES IMPORTANT QUESTIONS AS TO THE

SEVERABILITY OF SECTION 202(C) AND THE JUDICIAL POWER

TO MANDATE THAT A PROPOSED PHASE II RULE BE MADE EFFEC-

TIVE CONTRARY TO THE STATUTORY SCHEME

The court below misunderstood the critical role that Section

202(c)—the subsection found to be unconstitutional—plays in

making a Phase II rule-proposal effective. Section 202(a)(1)

authorizes FERC to “prescribe” a Rule II amendment, while

Section 202(a)(2) says that such an amendment “shall take

effect only as provided” in Section 202(c). And Section 202

(e) (I) allows the amendment submitted by FERC to “take

effect” in the prescribed 30-day period “unless during such 30

day period . . . either House of the Congress adopts a resolu-

tien of disapproval.” If such disapproval occurs, as happened

here, FERC may not propose another Phase II rule for at least

six months (Section 202 (e) (2)(B)), and loses all power to

submit a proposed rule after two years (Section 202

(e)(2)(B)).

Several problems emerge from the ruling below severing the

whole of Section 202(c), invalidating it, and then decreeing

that FERC’s Phase II rule-proposal be made effective.

First. There is no severability clause in the Natural Gas

Policy Act. How, then, can a court sever and invalidate the

sole statutory mechanism for making 1 Phase II rule-proposal

effective? The court below answers that it can sever if it finds

that Congress “wou!d have intended” that a Phase II rule be

made effective even without the legislative review mechanism

of Section 202(c). See App. 2la-30a; Buckley v. Valeo, 424

U.S. 1, 108 (1976); United States v. Jackson, 390 US. 570,

585 (1968); Champlin Refining Co. v. Corporation Commis-

sion, 286 U.S. 210, 234 (1932).

But the cited cases in this Court make clear the inadequacy

of that answer. Buckley, Jackson and Champlin all state that

reliance on legislative intent to determine severability is ap-

propriate only “if what is left [after severance) is fully opera-

tive as a law.” In this instance, “what is left” after severing

Section 202(c) is inoperative; a Phase II rule amendment au-

thorized by Section 202(a) (1) and (2) can take effect only

in accordance with the severed Section 202(c).

Thus the severability problem here is traceable to the lower

court's desire to read finality into an administrative order or

rule, a finality that the unsevered remainder of the statute will

not support. It is the same kind of severability problem that

plagued the Ninth Circuit in Chadha, now scheduled for re-

argument before this Court. The severability issue common

to both cases can be considered together.

Second. As the Ninth Circuit did in Chadha with respect to

decreeing cancellation of an INS deportation order, the court

below decreed finality to a Phase II rule-proposal. Both courts,

having severed and invalidated the only statutory bases for

such finalization, can cite no authority for their judicial decrees

other than their own fiat.

Such judicial action, unauthorized by statute, amounts to

judicial legislation in contravention of the separation of pow-

ers. Courts cannot supply omissions in legislation, nor afford

relief because they are supposed to exist.” United States v.

Union Pacific R. Co., 91 US. 72, 85 (1875). Certainly, courts

have no greater power to decree relief where the omission stems

from severance and invalidation of the sole statutory basis for

relief. If a court can find no basis for relief in “what is left”

in @ statute after severance, that should end the matter.

This judicial excess deserves plenary review and correction

by this Court. The Congress simply does not want Order No ,80

made effective. FERC does not want it made effective. And

nothing in the opinion below purports to assess the economic

and social policies that alone can justify putting a Phase II

rule into effect.

3. THE DECISION BELOW RAISES IMPORTANT “CASE OR CONTRO-

VERSY" PROBLEMS INVOLVING CONSTITUTIONAL ATTACKS ON

THE LEGISLATIVE REVIEW DEVICE

Like the Chadha litigation now before the Court, the instant

judicial review proceeding poses critical justiciability prob-

lems in the context of private party assaults on the constitu-

tionality of the legislative review device in Section 202(c).

First. Do the private parties, the respondent CECA organiza-

tions, have standing to institute in federal ec an inter-

Branch controversy over the legislative review aevice? * Can

they show, in other words, that they personally “suffered some

actual or threatened injury as a result of the putatively illegal

conduct of the defendant,” Gladstone, Realtors v. Village of

Bellwood, 441 US. 91, 99 (1979), and that the injury “fairly

can be traced to the challenged action” and “is likely to be

redressed by a favorable decision, Simon v. Eastern Kentucky

Welfare Rights Org., 426 U.S. 26, 38, 41 (1976)?

The answers to those questions are not easy. COCA has not

alleged that the proposed Phase II rule created any legal

right, “the invasion of which creates standing,” Linda RS. v.

* While this question is not addressed in the opinion below, the question

was raised by Circuit Judge Edwards at oral argument. The court does

without elaboration, that the private parties have “an important

in the resolution of this [constitutional] issue.” App. 47a.

15

Richard D., 410 U.S. 614, 617, n. 3 (1973). CECA seems to have

suffered no injury other than the disappoiniment any prospec-

tive beneficiary of a proposal suffers when the pruposai is not

enacted into law. Even that disappointment rises no higher

“the psychological consequence presumably produced by

observation of conduct with which one disagrees.”’ Valley Forge

Christian College v. Americans United, 102 S. Ct. 752, 765, 70

L.Ed. 2d 700, 718 (1982). Moreover, CECA’s disappointment

is not the result of “the putatively illegal conduct” of the sole

defending party, FERC. CECA’s only challenge is to “the

putatively illegal conduct of the Legislative Branch, a factor

which leads to a question whether CECA is within “the zone

of interests to be protected by the Presentment Clauses or the

separation of powers doctrine. Obviously, these hard questions

must be addressed.

Second. The court below correctly observes that this case

involves a clear disagreement between the political branches

as to the meaning of the Constitution.” App. 49a. The observa-

tion brings into focus the incongruity of resolving that dis-

agreement when the political branches are before the court only

in an amicus posture.

It is a basic Article III premise that no federal court can

pronounce a statute unconstitutional “except as it is called

upon to adjudge the legal rights of litigants in actual contro-

versy.” Liverpool Steamship Co. v. Commissioners of Emigra-

tion, 113 U.S. 33, 39 (1885); Baker v. Carr, 369 U.S. 186, 204

(1962). That means that the controversy must involve the

litigants or the parties to the case. But those who may appear

us amicus curiae cannot supply the necessary adverseness upon

which “the court so largely depends for illumination of difficult

constittuional questions.” Jd. To adjudicate controversies

between amici implicates the advisory opinion doctrine. The

court simply did not have before it the actual parties to the

controversy.

A variant of this problem is present in the Chadha case.

There the Ninth Circuit purported to resolve an inter-Branch

controversy with only one Branch before the court as a party;

the two Houses of Congress appeared only as amici. Here,

neither Branch is a party. And in both cases the two Houses

find their legislative powers being adjudicated without being

allowed to participate fully as a party and to introduce what-

ever evidence that might support their constitutional

arguments.

The House of Representatives protests this judicial permis-

siveness that allows the constitutional powers of a coordinate

Branch to be assessed and resolved on no firmer Article III

basis than the appearance of that Branch as amicus.’

Third. The court below, like the Ninth Cireuit in Chadha,

rejected the political question doctrine on the ground that a

judicial resolution is “appropriate” since there is “a clear dis-

agreement between the political branches as to the meaning

of the Constitution.” App. 49a. But the court assumes that the

disagreement relates only to the Presentment Clauses and the

general separation of powers doctrine. Not so. Properly under-

stood, this case involves a Congressional determination of what

is “necessary” and “proper,” by way of providing a legislative

review mechanism, to implement the vested power of Congress

over commerce in natural gas.

The determination of whether a legislative review provision

is “necessary and proper” to that end is a matter textually com-

mitted to the Legislative Branch. McCulloch v. Maryland, 4

Wheat. at 423, made clear that for a court to inquire into the

degree of necessity or propriety “would be to pass the line which

cireumscribes the judicial department, and to tread on legis-

lative ground.” Recognition that the Necessary and Proper

Clause is in essence a political) legislative proposition serves to

strengthen its consistency with the Presentment Clauses and

the general separation doctrine.

Fourth. Important problems of mootness are raised by the

fact that the proposed Phase II rule has never achieved legal ef-

fectiveness, and by the fact that FERC took action to revoke

that proposal. The court below sought to avoid mootness by rul-

After the court below rendered its opinion and judgment, the House, the

Senate and the Executive Branch obtained leave from the court to inter-

vene in the proceeding. The sole purpose was to allow the two Branches

to proceed further in this Court as parties, rather than as amici. Such

intervention, of course, had no effect on their status as amici in the pro-

ceeding before the Dit riet of Columbia Cirenit.

ing that the proposal was really final since the administrative

rulemaking process “was at that point complete,” App. 33a, n.

74, and that the revocation by FERC did not comply with the

APA hearing and comment requirements, App. 3la-36a. And

the court added that the “veto of the Phase II rule effectively

changed the law by altering the scope of FERC’s discretion and

preventing an otherwise valid regulation from taking effect.“

App. 74a.

But none of these judicial explanations of the finality of

FERC’s proposal answers the provision of Section 202(a) (2)

that a Phase II proposal “shall take effect” only as provided in

Section 202(c). The enigma remains. How can a live controversy

be generated over an administrative proposal that, as a matter

of law, never became effective?

Were this Court to accept any of the foregoing considerations,

it would be unnecessary to enter the constitutional thicket sur-

rounding the legislative veto device.

For these various reasons, this petition for a writ of certiorari

should be granted.

Respectfully submitted,

EvGENE GRESSMAN,

Special Counsel, U.S. House of Representatives,

Fordham University Scheol of Law,

140 West 62nd Street, New York, N.Y. 10023

(212) 841-5242

Srax tr M. Branp,

General Counsel to the Clerk,

U.S. House of Representatives,

Washington, D.C. 20518.

(202) 225-7000

Counsel for Petitioner

Avucust 1982.

O