Argued and Submitted before a panel consisting of Ely, Carter and Kennedy, Circuit Judges, April 10, 1978.
Reassigned to a panel consisting of Ely, Kennedy and Hug, Circuit Judges, August 13, 1980.
Rehearing and Rehearing En Banc Denied March 25, 1981.
KENNEDY, Circuit Judge:
Petitioner, Jagdish Rai Chadha, seeks review of an order of deportation issued by the Immigration and Naturalization Service (INS). The Executive branch of the Government, acting by an inquiry officer who conducted an administrative hearing on the record, determined that Chadha, though otherwise deportable, should remain in the United States to avoid extreme hardship. Subsequently the Congress, acting only by the House of Representatives, sought to reverse that determination. If given effect, the congressional action would require Chadha's deportation. We hold that the statutory mechanism by which the Congress acted to reverse the administrative determination is unconstitutional, and therefore that the deportation order is invalid.
Chadha, a native of Kenya and a holder of a British passport, lawfully entered the United States as a nonimmigrant student in 1966. After he received his bachelor's and his master's degrees, his student visa expired in 1972. In 1974, the INS issued an order to show cause why Chadha should not be deported. A special inquiry officer then held a deportation hearing pursuant to Immigration and Nationality Act (INA) section 242(b), 8 U.S.C. § 1252(b) (1976). At the hearing, Chadha conceded his deportable status, but requested a suspension of deportation pursuant to INA section 244(a)(1), 8 U.S.C. § 1254(a) (1) (1976). The special inquiry officer granted Chadha's request, in part because he found that "it would be extremely difficult, if not impossible, for [Chadha] to return to Kenya or go to Great Britain by reason of his [East Indian] racial derivation."
At the close of the hearing, the officer found that Chadha met the requirements of section 244(a)(1): he had been in the United States for over seven years, was of good moral character and would suffer "extreme hardship" if deported. The officer then suspended deportation pending congressional action. The officer further ordered, however, that the proceedings would be reconvened should Congress take adverse action.
On December 16, 1975, the House of Representatives passed House Resolution 926 disapproving the suspension of Chadha's deportation. 121 Cong.Rec. 40,800 (1975). This disapproval had the effect of overriding the special inquiry officer's decision. INA § 244(c)(2), 8 U.S.C. § 1254(c)(2) (1976). Accordingly, Chadha's deportation proceedings were reconvened, and the INS special inquiry officer entered a final order of deportation. Chadha then unsuccessfully appealed to the Board of Immigration Appeals and now petitions this court pursuant to INA section 106(a), 8 U.S.C. § 1105a(a) (1976).
Chadha contends that the procedure for congressional disapproval provided by section 244(c)(2), 8 U.S.C. § 1254(c)(2) (1976), is unconstitutional. Although he raised this contention before both the special inquiry officer and the Board of Immigration Appeals, neither decided this question as both concluded they had no power to decide the constitutionality of statutes. On this petition for review, respondent Immigration and Naturalization Service agrees that section 244(c)(2) is unconstitutional. We therefore requested both the House of Representatives and the Senate to file briefs as amici curiae. See, e. g., Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9, 88 S.Ct. 1970, 1973 n.9, 20 L.Ed.2d 1037 (1968); Atkins v. United States, 556 F.2d 1028, 1058 (Ct.Cl.1977) (per curiam) (en banc), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978). They have done so, and before we reach the merits, we must first answer various challenges to our jurisdiction and the justiciability of Chadha's case.
I. Procedural Questions
Amici initially contend that this court lacks jurisdiction. Their claim is based on
Amici's first argument, that Chadha seeks review not of a decision made during "administrative proceedings" but of a legislative decision made outside of section 242(b), is without merit. Amici would have us read "final orders ... made ... pursuant to administrative proceedings under section 242(b)" to limit appellate review to only the actual decisions and conclusions made by the special inquiry officer during a section 242(b) hearing. We think that this construction of "final orders" is inconsistent with both congressional intent and a sensible interpretation of the statute. We conclude the phrase "final orders" includes all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing. Under amici's construction our review would be essentially empty, for we could review only the special inquiry officer's ministerial execution of a substantive decision that was made elsewhere.
Our construction is consistent with well established precedent in this circuit. In Waziri v. INS, 392 F.2d 55 (9th Cir. 1968), for example, an alien challenged the validity of an INS rescission of his permanent resident status. While this decision rendered Waziri immediately deportable, id. at 56-57, it was not appealable under section 106. See Bachelier v. INS, 548 F.2d 1157, 1158 (5th Cir. 1977). After a section 242(b) hearing Waziri was ordered deported. On petition to this circuit, he attempted to challenged the validity of the INS rescission, but was met with the argument that the rescission was a determination made outside of a section 242(b) proceeding and thus was not reviewable under section 106. The court rejected this argument, stating that section 106 included the power to review "logical predicates" to deportation orders that are "integrally related" to and interdependent with the final order. 392 F.2d at 56-57. The INS rescission order belonged to this class: it rendered an alien immediately deportable, was not directly appealable, and reduced the section 242(b) proceeding to a mere execution of the consequences of being deportable. The court reasoned that if section 106 did not permit review, the possibility existed for numerous other challenges, by way of district court habeas corpus petitions, to the same deportation order. Id. at 57. This was found contrary to the congressional intent of consolidating review of deportation orders. Id. Further, since the "technical correctness" of the order could not be questioned, the court found that Congress would not have desired such a "routine" or "perfunctory" approval of deportation orders in the Court of Appeals. Id. In such cases then, the court found that the power of review under section 106 permitted review of the substantive matters underlying the final deportation order. See also Bachelier v. INS, 625 F.2d 902, 904 (9th Cir. 1980); Ferrante v. INS, 399 F.2d 98 (6th Cir. 1968).
Waziri's rationale extends to Chadha's case. Like the status rescission involved in Waziri, the congressional disapproval of section 244(c)(2) is a substantive decision made outside of a section 242(b) proceeding but which nevertheless directly leads to a final order of deportation. In addition, if we find that section 106 precludes review, the distinct possibility exists that there will be
Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968), relied upon by amici, is not contrary. In that case, the Court held that a circuit court had no jurisdiction to review a denial of a stay of deportation, an order controlled not by section 242(b) but by administrative regulations. Further, the alien in Cheng Fan Kwok had filed for the discretionary relief after a final order of deportation had been entered, whereas Chadha's request here was made at his deportation hearing. Thus, Cheng was not appealing from a final order, but rather was appealing from an independent denial of discretionary relief. Following its prior case of Foti v. INS, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), the Court then found that the Attorney General's denial of Cheng's application for discretionary relief, independent of a final order of deportation, was not a determination "made during and incident to the administrative proceeding," Foti, 375 U.S. at 229, 84 S.Ct. at 314, and thus held that the circuit court lacked jurisdiction. Cheng Fan Kwok, 392 U.S. at 215-18, 88 S.Ct. at 1975. See also Reyes v. INS, 571 F.2d 505, 507 (9th Cir. 1978); Ruiz-Mancilla v. INS, 571 F.2d 510 (9th Cir. 1978). In formulating its holding, the Court in Cheng Fan Kwok stated that section 106 extended jurisdiction not only to petitions challenging orders entered during section 242(b) proceedings, but also to petitions "directly challenging deportation orders themselves." 392 U.S. at 215, 88 S.Ct. at 1975.
Chadha's deportation order in the second administrative proceeding flowed directly from the one-house disapproval. In the first stage of his deportation hearing, Chadha applied for and received a suspension of deportation. Congress then disapproved of his suspension. The Attorney General, in accordance with section 244(c)(2), then began to have Chadha "deport[ed] ... in the manner provided by law" by reconvening the original section 242(b) proceeding and ordering Chadha deported. It blinks reality to hold, as amici urge, that such congressional action was not "incident to" the proceeding, Foti, 375 U.S. at 229, 84 S.Ct. at 314, or "integrally related" to Chadha's deportation order, Waziri, 392 F.2d at 56. As the validity of the final deportation order is contingent upon the validity of the congressional action under section 244(c) (2), Chadha is very clearly "directly challenging [the] deportation order [itself]," Cheng Fan Kwok, 392 U.S. at 215, 88 S.Ct. at 1975, and thus jurisdiction exists under section 106.
The consequences of finding an absence of jurisdiction would, moreover, be directly contrary to Congress' intent in enacting section 106. All parties agree that if jurisdiction is absent, Chadha would be relegated to challenging the INA's constitutionality in a district court habeas corpus petition.
Amici would have us ignore this history. To adopt their position, in cases where both deportability and the INA are challenged, would require one hearing in the court of appeals on deportability and, if all appeals are taken, potentially three other hearings in the federal court system on the constitutional challenge. The waste of judicial resources and the delay entailed by such a scheme directly contradict Congress' intent to have one "single, separate, statutory form of judicial review." H.Rep.No. 565, 87th Cong., 1st Sess. 1 (1961). See Marcello v. Attorney General, 495 F.2d 171, 173 (D.C.Cir.1974) (Leventhal, J.). Further, Congress was acutely aware that many of the dilatory judicial proceedings it sought to limit included constitutional attacks on the INA. H.Rep.No. 565, supra, at 2, 11. It would be anomalous then, for Congress to provide a single form of review for deportability determinations, yet preclude from that same appeal any questions of the INA's constitutionality.
Amici's second argument, that since the INS was unable to adjudicate the INA's constitutionality it could make no finding forming the basis of constitutional review under section 106, misconceives the nature of our review. It is immaterial that the INS lacked the power to pass on the INA's constitutionality. The adjudication of constitutional questions has, and always will be, the primary responsibility of the Judiciary. As we recently stated in Hernadez-Rivera v. INS, 630 F.2d 1352, 1355 (9th Cir. 1980), the task of passing on the constitutionality of the INA "is within the exclusive province of the federal courts." Thus, this court, as well as courts of other circuits, has found jurisdiction under section 106 to adjudicate the constitutionality of the INA. See, e. g., Hernandez-Rivera, supra; Menezes v. INS, 601 F.2d 1028, 1032-35 & n.7 (9th Cir. 1979); Rubio de Cachu v. INS, 568 F.2d 625, 627 (9th Cir. 1977); Pilapil v. INS, 424 F.2d 6, 9 (10th Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 752, 27 L.Ed.2d 147 (1970); Te Kuei Liu v. INS, 483 F.Supp. 107, 108 (S.D.Tex. 1980) (restating earlier unpublished findings); Shodeke v. Attorney General, 391 F.Supp. 219 (D.D.C. 1975); Riva v. Attorney General, 377 F.Supp. 1286, 1288 (D.D.C. 1974) (per curiam) (three-judge court). But see Andres v. INS, 460 F.2d 287 (6th Cir. 1972).
Indeed, amici's argument would produce untenable results. Their argument is that deportable aliens could only raise the unconstitutionality of the INA in separate proceedings in district courts. But Riva v. Attorney General, supra, is directly contrary. There, an alien appealed only his deportability determination to the circuit court and later challenged the INA's constitutionality in district court. The three-judge court found that section 106 vested in the circuit courts the exclusive jurisdiction
Amici next contend that Chadha's claim is nonjusticiable. Specifically, they allege that Chadha does not have standing, that his case presents a political question, and that, since the INS has agreed that section 244(c)(2) is unconstitutional, his case lacks the necessary adverseness. We address each of these claims in turn.
The "case or controversy" requirement of article III is satisfied when a party demonstrates "injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury...." Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 79, 98 S.Ct. 2620, 2633, 57 L.Ed.2d 595 (1978). Further, the Court has stated that "parties with sufficient concrete interests at stake have been held to have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights." Buckley v. Valeo, 424 U.S. 1, 12 n.10, 96 S.Ct. 612, 631 n.10, 46 L.Ed.2d 659 (1976) (per curiam). Against this background, amici attack Chadha's standing on three fronts. They claim that Chadha has suffered no injury in fact, that he is asserting a nonjusticiable generalized government grievance, and that he is impermissibly asserting the rights of others.
While amici's claim that Chadha has not suffered an injury in fact may seem odd, inasmuch as Chadha is here contesting his deportation, amici argue that the INA subsection that Chadha attacks is part of an indivisible and unseverable whole. In other words, they argue that Chadha's attack on section 244(c)(2) necessarily includes an attack on all of section 244. This is relevant, they claim, because Chadha's deportation was suspended pursuant to section 244(a), and if all of section 244 is invalidated, there would then be no authority for the Executive's discretionary grant of suspension, and he would be deportable in any event. Amici conclude that if Chadha succeeds, we must invalidate the very section which allows him to remain in this country. It is argued that without such authority, Chadha must be deported regardless of our result and, therefore, he suffers no injury in fact.
In considering the general principle of severability, the Supreme Court has said:
Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976) (per curiam) (quoting Champlin Refining Co. v. Corporation Comm'n, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed. 1062 (1932)). In addition, where Congress has enacted a severability clause, the Court has stated:
Electric Bond & Share Co. v. SEC, 303 U.S. 419, 434, 58 S.Ct. 678, 683, 82 L.Ed. 936 (1938). See also United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); Pearce v. Wichita County, 590 F.2d 128, 131-32 (5th Cir. 1979).
Here, Congress has enacted a severability clause. Section 406 of the INA states that
This burden has not been met. At most, amici's citation to the many Immigration and Nationality Act amendments shows that when the several Congresses were presented with the question of the Attorney General's discretion, they preferred to retain some supervisory power, rather than relinquish it. It has not, however, been shown that the rest of section 244 is not "functionally independent," United States v. Jackson, 390 U.S. at 586, 88 S.Ct. at 1218, or that a "total frustration" of Congress' basic purpose would attend section 244(c)(2)'s invalidation. Id. at 591, 88 S.Ct. at 1221. Indeed, the legislative history of the INA's predecessor, which first gave the Attorney General discretion to suspend deportation, indicates that section 244's purpose was to alleviate the onerous burden of numerous private bills. Representative Dies then stated:
81 Cong.Rec. 5542 (1937). Congress' objective of reducing its private bill docket will not be frustrated by ruling section 244(c)(2) invalid; Congress will not now be required to entertain numerous private petitions.
Further, contrary to amici's assertions, section 244(a) operates independently of section 244(c)(2), thus buttressing our analysis of congressional intent. Section 244(a) states, in relevant part, that "[a]s hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence [for all aliens meeting the provisions of either section 244(a)(1) or section 244(a)(2)]." Fairly read, this section gives the Attorney General the power to adjust the status of the alien. The section's first clause merely places conditions on the exercise of that discretion: subsection (c) and its mechanism of congressional disapproval is grouped with other provisions, some of which are plainly nonessential, regulating the Attorney General's discretion.
We thus find that Chadha has indeed suffered injury in fact: the Attorney General will deport him should his challenge fail.
Amici argue, however, that various prudential doctrines of standing preclude us from deciding Chadha's case. Specifically, they contend that Chadha asserts "a generalized grievance shared by a large number of citizens in a substantially equal measure," Duke Power Co., 438 U.S. at 80, 98 S.Ct. at 2634; United States v. Richardson, 418 U.S. 166, 175, 94 S.Ct. 2940, 2945, 41 L.Ed.2d 678 (1974), and that his claim to relief impermissibly rests on "the legal rights or interests of third parties." Duke Power Co., 438 U.S. at 80, 98 S.Ct. at 2634; Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). We reject both claims.
While it may be true that Chadha asserts a claim common to all citizens interested in separation of powers, it is true only in a trivial sense. He also has the added motive, crucial to a sharp presentation of the issues, of being injured by the operation of the statute he challenges. See Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206. Since the Attorney General will deport Chadha pursuant to section 244(c)(2) unless we rule in Chadha's favor, it is easily seen that Chadha's claim "is not a generalized grievance. Instead ... it focuses on a particular [statute] and is not dependent on speculation about the possible actions of third parties not before the court." Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 562, 50 L.Ed.2d 450 (1977). Chadha's claim is thus specific and concrete: his injury stems directly from the operation of the statute he challenges. His injury presents the necessary "actionable causal relationship." Id.; Warth v. Seldin, 422 U.S. 490, 507, 95 S.Ct. 2197, 2209, 45 L.Ed.2d 343 (1975). It is immaterial that his claim of section 244(c)(2)'s unconstitutionality is shared by many; he presents a specific instance of injury flowing directly from the statute's operation. In a separation of powers claim, this type of concrete injury is sufficient for standing purposes. Buckley v. Valeo, 424 U.S. 1, 12 n.10, 96 S.Ct. 612, 631 n.10, 46 L.Ed.2d 659 (1976) (per curiam).
Amici's third party standing claim fails for similar reasons. Amici claim that, by asserting invalidity under a separation of powers rubric, Chadha is actually asserting the rights of the Executive and Judicial branches. This argument, however, simply proves too much. If taken to its limit, no individual could ever challenge a congressional act using a separation of powers argument. Our constitutional history, however, is contrary. See, e. g., Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 441-43, 97 S.Ct. 2777, 2789, 53 L.Ed.2d 867 (1977); Buckley v. Valeo, 424 U.S. at 119-24, 96 S.Ct. at 682. Thus, by demonstrating a concrete injury-deportation-flowing from section 244(c)(2)'s operation, and by showing that this court could redress that injury, Chadha has established standing to challenge section 244(c)(2). Buckley v. Valeo, 424 U.S. at 12 n.10, 96 S.Ct. at 631 n.10; Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206.
2. Political Question
Amici's next claim focuses not on Chadha's personal stake, but on the nature of his claim. Their contention is that Chadha's claim presents a nonjusticiable political question. At first glance, this argument may appear to have merit: the Naturalization Clause, U.S.Const. art. I, § 8, cl. 4, when read in conjunction with the Necessary and Proper Clause, U.S.Const. art. I, § 8, cl. 18, gives Congress considerable power over aliens. See, e. g., Fiallo v. Bell, 430 U.S. 787,
A more fundamental reason, however, underlies our conclusion that this case does not present a political question. The Supreme Court has explicitly recognized that the political question doctrine is based on a judicial recognition of the principle of separation of powers. Gilligan v. Morgan, 413 U.S. 1, 10-11, 93 S.Ct. 2440, 2445, 37 L.Ed.2d 407 (1973); Powell v. McCormack, 395 U.S. at 517, 89 S.Ct. at 1961. It would stand the political question doctrine on its head to require the Judiciary to defer to another branch's determination that its acts do not violate the separation of powers principle. It is the Judiciary's prerogative, after a showing that the source of a claimant's appeal is not textually committed to another branch, to adjudicate a claimed excess by a coordinate branch of its constitutional powers. In this case, Chadha suffers injury due to the operation of a statute he claims violates the separation of powers principle. This type of claim is subject to judicially manageable standards, see, e. g., Buckley v. Valeo, 424 U.S. at 119-24, 96 S.Ct. at 682, and we therefore reject amici's claim.
Amici's final point is that Chadha's claim presently lacks the necessary adverseness. They argue that since the INS has agreed that section 244(c)(2) is unconstitutional, we should decline to pass on Chadha's case. This argument misconceives the adverseness requirement. The controversy "must be a real and substantial [one] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937). Here, Chadha has asserted a concrete controversy, and our decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold section 244(c)(2), the INS will execute its order and deport him. Courts often, moreover, adjudicate disputes in which legal or factual matters are conceded.
Finally, if we accepted amici's argument and dismissed the appeal for lack of adversity, we would implicitly approve the untenable result that all agencies could insulate unconstitutional orders and procedures from appellate review simply by agreeing that what they did was unconstitutional. Where, as here, the agency fully intends to enforce its order, it would be a perversion of the judicial process to dismiss the appeal and thereby permit the order to be enforced on such grounds.
Against this background, and with arguments for the constitutionality of the statute ably advanced by amici, we find that the issues are presented in a sufficiently concrete and specific manner for us to reach the merits of the case.
A. Separation of Powers as a Legal Standard
Executive or legislative actions which contravene the principle of separation of powers are unconstitutional. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 441-46, 97 S.Ct. 2777, 2789, 53 L.Ed.2d 867 (1977); Buckley v. Valeo, 424 U.S. 1, 118-24, 96 S.Ct. 612, 681-84, 46 L.Ed.2d 659 (1976) (per curiam); United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). We conclude the statutory mechanism reviewed here violates the constitutional doctrine of separation because it is a prohibited legislative intrusion upon the Executive and Judicial branches.
We explain in detail our reasons for that conclusion, but preface our discussion by a consideration of some elementary principles. This is necessary because no circuit or Supreme Court authority we have found
The most recent Supreme Court case declaring that a legislative action violated the separation of powers doctrine was Buckley v. Valeo. The Supreme Court there restated the separation of powers doctrine as a rule of general application, but found also
The Supreme Court has placed it beyond dispute that the doctrine of separation of powers is vital for constitutional government. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 441-46, 97 S.Ct. 2777, 2789-91, 53 L.Ed.2d 867 (1977); id. at 491-92, 97 S.Ct. at 2813 (Blackmun, J., concurring in part and concurring in the judgment); id. at 492-504, 97 S.Ct. at 2813-2820 (Powell, J., concurring in part and concurring in the judgment); id. at 504-20, 97 S.Ct. at 2820-29 (Burger, C.J., dissenting); id. at 545-61, 97 S.Ct. at 2841-49 (Rehnquist, J., dissenting); Buckley v. Valeo, 424 U.S. 1, 118-24, 96 S.Ct. 612, 681-84, 46 L.Ed.2d 659 (1976) (per curiam); id. at 284-86, 96 S.Ct. at 757-58 (White, J., concurring in part and dissenting in part). As James Madison affirmed in the beginning, the separation of powers concept is neither doctrinaire nor rigid.
Buckley, 424 U.S. at 120-21, 96 S.Ct. at 682-83. The doctrine is at once pervasive and fluid, and of necessity there will be instances where the proper means for its
An explanation of the purposes and dynamics of the separation of powers rule will assist in understanding the standard we formulate for its application. Although an exhaustive historical study of the doctrine is not practical here,
The Federalist No. 51 (J. Madison) at 349 (J. Cooke ed. 1961).
Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160 (1926) (Brandeis, J., dissenting).
The goal of preventing undue concentrations of power is furthered by the natural
1 W. Blackstone, Commentaries * 146-47. See also id. at * 269-70 (discussion of executive and judicial powers). If the doctrine is given this competitive cast, it might be implied that the proper remedy for a violation lies in the branch encroached upon. Under this view one could argue that an executive agency can defy an attempt by another branch to exercise a prerogative of the former.
The framers had a second motive for adopting the principle of separation of powers. The doctrine serves also as a practical measure to facilitate administration of a large nation by the assignment of numerous labors to designated authorities. Thomas Jefferson made this point in some detail:
4 T. Jefferson, The Writings of Thomas Jefferson 424-25 (P. Ford ed. 1894) (Letter to E. Carrington, Aug. 4, 1787).
There are two respects in which the separation of powers doctrine enhances the responsible autonomy of each branch and thereby the efficiency of the government as a whole. The doctrine protects the Legislative branch, for example, from cumbersome entanglement in the myriad instances of execution of its laws and policy. Certain
Courts cannot, however, parse every allocation of power under the separation doctrine. We are not the ideal arbiters of efficient administration in many instances because we are not constituted to choose and to apply optimal theories of political and organizational science applicable to the routine operation of the Government. An examination of the many instances in which strict separation is not observed, cases both actual and conceivable, shows at one extreme a mere tinkering with the balance, of limited scope or temporal duration, growing out of a great practical necessity, and presenting a realistic threat neither to individual liberty nor to the orderly functioning of a coordinate branch. An example approved in the case law is the congressional prerogative to grant standing to persons otherwise barred by internal prudential rules developed by the courts to govern litigation before them. See, e. g., Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975).
There are, nevertheless, other instances in which judicial action is required to correct constitutional violations. In contrast to temporary, necessary, and minor departures from the norm, there are departures that are axiomatically unconstitutional, departures which undermine both the purpose mutually to check component powers and that to promote government efficiency. Examples would be an attempt by the Executive to enact a federal criminal code without congressional approval, or an attempt by Congress to exercise the prosecutorial and adjudicative responsibilities of enforcing the criminal law. No doubt all would agree that these schemes would violate the Constitution.
In the amorphous expanse between these poles, however, there will be certain accommodations
In response, it must further be acknowledged that the existence of "vast stretches of ambiguous territory" does not preclude the existence of other zones of power that are judicially ascertainable. These latter instances, in which the arrogation of excess and unwonted power is radical and unambiguous, comprise the occasions when a court must act to maintain the constitutional design.
We come then to define the judicial standard governing whether an attempted exercise of authority by one branch contravenes the rule of separation of powers. The twin purposes of preventing concentrations of power dangerous to liberty and of promoting governmental efficiency are served if we define a constitutional violation of the separation of powers as an assumption by one branch of powers that are central or essential to the operation of a coordinate branch, provided also that the assumption disrupts the coordinate branch in the performance of its duties and is unnecessary to implement a legitimate policy of the Government. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977). If an exercise of functions which lie at the center of another branch is attempted on a long-term and routine basis, a violation of the constitutional rule requiring separation of powers is more easily established. Before we determine whether the congressional disapproval device here reviewed violates the standard we have set forth, it is necessary to examine in detail the statutory duties Congress has required the Executive and Judiciary to perform.
B. The Process for Suspension of Deportation
Until 1940 deportation of aliens illegally within the United States was mandatory. The strict rule produced harsh results in many cases. Hardships were exacerbated after the adoption in 1924 of permanent numerical restrictions on immigrations and
The INA entitles an alien to a hearing on whether he is deportable. During this hearing, an alien "may apply to the special inquiry officer for suspension of deportation under section 244(a) of the Act [8 U.S.C. § 1254(a) (1976)]," 8 C.F.R. § 242.17(a) (1979); upon completion of the necessary forms, the inquiry officer receives evidence on the issues of grounds for deportability and for suspension. Id. § 244.1; 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure, §§ 7.9a(5), 7.9d(4), 7.9f (rev. ed. 1980). If granted, the suspension allows the Attorney General eventually to "adjust the status to that of an alien lawfully admitted for permanent residence," 8 U.S.C. § 1254 (1976). The suspension proceeding "has two phases: a determination whether the statutory conditions have been met, which generally involves a question of law, and a determination whether relief shall be granted, which [ultimately] ... is confided to the sound discretion of the Attorney General [and his delegates]." 2 C. Gordon & H. Rosenfield, supra, § 7.9a(5), at 7-134.
At this point, there are subclassifications for aliens, depending on the grounds for their deportability. These do not concern us. For our purposes of sketching the statutory scheme, it is important to note the following principal statutory prerequisites which, if met, entitle an alien to be considered for the discretionary grant of suspension: period of residence in the United States, good moral character, and hardship. See INA § 244(a), 8 U.S.C. § 1254(a) (1976); 2 C. Gordon & H. Rosenfield, supra, at § 7.9d(2), (3), (5). Each of these prerequisites requires a legal determination of a traditional sort, the contents of which are explicated by an orderly history of administrative practice and judicial review and interpretation.
The burden is also on the alien to demonstrate the existence of such substantial equities,
If these two hurdles, the satisfaction of statutory prerequisites and a favorable exercise of discretion, are cleared, a third and final one awaits. It is the one-house disapproval mechanism, described as follows:
Id. § 7.9f, at 7-174 to 7-176 (footnotes omitted).
The substantive elements governing the suspension decision cannot be understood fully without considering the elements of standard procedure and review that constitute a final decision. Therefore, we describe the administrative procedure and judicial review mechanisms that govern section 244 proceedings until the point of congressional action.
The procedural requirements applicable to both the eligibility and discretionary parts of the suspension of deportation decision have varied over time. It is a process that has sometimes seemed nearly free of procedural restraints but which has gradually been channeled into the clearer and more regular mainstreams of administrative procedure. Although the Supreme Court held in 1950 that the requirements of the Administrative Procedure Act (APA) applied to deportation proceedings, Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950), five years later the Court held that intervening legislation was intended to exempt these proceedings from the APA's coverage by the provision of special procedures, Marcello v. Bonds, 349 U.S. 302, 305-11, 75 S.Ct. 757, 759-62, 99 L.Ed. 1107 (1955).
These procedural requirements are more fully understood in light of the standard of review applied to the record developed during the administrative proceeding,
Wong Wing Hang v. INS, 360 F.2d 715, 716, 719 (2d Cir. 1966) (Friendly, J.). It is clear that courts will treat section 244's statutory criteria for eligibility like any other statutory prerequisites, and reverse when they have been misapplied. See, e. g., Prapavat v. INS, 638 F.2d 87 (9th Cir. 1980); Bastidas v. INS, 609 F.2d 101 (3d Cir. 1979); So Chun Chung v. INS, 602 F.2d 608 (3d Cir. 1979); Rassano v. INS, 492 F.2d 220 (7th Cir. 1974); Siang Ken Wang v. INS, 413 F.2d 286 (9th Cir. 1969); Git Foo Wong v. INS, 358 F.2d 151 (9th Cir. 1966).
In fine, our detailed examination of the section 244 statutory scheme for suspension of deportation leads us to the following capsule description. Section 244 establishes criteria for a government dispensation, criteria applied by the administrative agency in an ongoing program of individual adjudicative-type determinations. Although the ultimate determination is discretionary, a fair consistency in the treatment of aliens is guaranteed, up to the point of review by Congress, by appropriate procedural safeguards. These procedures are, in turn, enforced by judicial review of various substantive and procedural aspects of the Attorney General's decision, in both its legal and discretionary phases. Finally, in cases where relief is granted, there is congressional review of the application of both the statutory and equitable criteria as they have been developed and applied by administrative and judicial interpretation. It is this last step we turn to now.
C. The Legislative Disapproval as a Constitutional Violation
Chadha's case presents the question whether the one-house disapproval disrupts an essential function of the judicial office or of the executive office. The test set out above for detecting a judicially correctable violation of the separation of powers rule was the assumption by one branch of an essential function of another, especially on a long-term and routine basis, if that assumption of power is both disruptive and unnecessary to the attainment of a legitimate purpose. In applying this test to section 244(c)(2), it is important to specify the precise character of the disapproval mechanism. This character is most clearly and concretely drawn by considering how one might view the impact of the disapproval on the scheme in functional terms. We consider three types of functional impact in turn. First, the disapproval could be viewed as a correction of judicial or executive misapplication of the statute, especially the eligibility criteria. Second, the device could be viewed as a means for sharing the administration of the statute with the Executive on an ongoing basis. Third, it may be argued that the disapproval is the exercise of a residual legislative power to define substantive rights under the law, an exercise falling short of statutory amendment, which would, of course, require the observance of formal constitutional procedures for legislation.
We turn first to view the legislative disapproval as a corrective device. Aliens are clearly entitled to a fair and uniform application of the statutory criteria of which the courts are the ultimate guarantor.
The duty of the Judiciary under this and numerous other statutory schemes is to determine, at the conclusion of administrative proceedings, whether the Executive branch has correctly applied the statute that establishes its authority. See generally L. Jaffe, Judicial Control of Administrative Action 320-94, 546-653 (1965). For instance, courts have reviewed orders of deportation and held that a brief visit to another country does not interrupt the statutory minimum period of residency prescribed for suspension of deportation.
The congressional action is disruptive in two senses. Initially, there is a vertical disruption. The nature of the federal system is such that the national government has a direct relation of power over and
There is a further disruption, horizontal in its impact. On this plane the Legislature interferes with the central or essential function of coordinate branches. The Judiciary's duty to decide cases now becomes subject to review by the Legislature, thus undermining the integrity of the third branch. There are virtually no procedural constraints on the ultimate congressional decision nor any provision for review of Congress' legal or factual conclusions. We are of the view that this departure from the separation of powers norm is not necessary. There is no indication that the Judiciary is incapable of determining whether the Attorney General has abused his discretion or applied a statutory standard improperly. If there were a perceived danger that hearing officers would err by misapplying the statutory criteria in favor of the alien, provision for judicial review of suspensions of deportation would be the ordinary solution. The Legislature thus disrupts the judicial system by retaining a selective power to override individual adjudications, in lieu of changing standards prospectively by the usual, corrective device of a statutory amendment.
The foregoing assumes that the purpose and effect of the legislative intervention is, at least in part, to correct mistaken exercises of executive or judicial power. In response, amici appear to argue that the purpose of the disapproval device is for Congress to share in the administration of the statute. Under this view, Congress, through section 244(c)(2), fills the interstices of statutory criteria and thereby supplements the Executive's implementation of the statute. This addition of more precise statutory criteria on an accretive, case-by-case basis
We turn first to the horizontal disruption caused by one branch assuming the power of another. The Executive evolves its skills and expertise from the administration of a statute over time. This process can be thwarted if legislative interference, constant in its potentiality, can be exercised in any given case without a change in the general standards the legislature has initially decreed. The integrity of the Executive's processes is preserved if stability exists in the steps it takes to effect a legislative policy. Here, there is interference with essential executive functions because the Executive's decision that the House reversed was reached after the Executive had given consideration to an individual case. There was first a quasi-judicial hearing, followed by a review in which the Attorney General was required to exercise a legal discretion. The discretion retained by the political branches was necessarily broad in the case because of the subject matter, the status of aliens; but in the hands of the Executive it was exercisable only in relation to the rights of a particular person under a legal standard subject to judicial interpretation and control for abuse. The Executive's decision, therefore, was a reasoned one, rendered under the law. As such, it was an action that carried all of the weight and dignity that necessarily attends deliberative decisions by one of the highest officers in the Executive branch. Summary reversal of the Executive's decision by the Legislature in a single case, without an indication of a need to change the standards or general rules to be applied, detracts from the authority of the second branch, and to that extent undermines its powers. Inasmuch as the legislative interference was not an attempt to alter future conduct of the Executive or to change its instructions, and because no principled basis was articulated for the decision from which the Executive could determine with specificity the manner in which it erred, the legislative action was both disruptive of and unnecessary to the sound administration of the law. The horizontal interference with the executive power is egregious in this case, undercutting the second purpose of the separation of powers doctrine, which is to insure efficient administration by the unambiguous assignment of responsibility to specific branches.
The vertical aspects of the interference with the powers of the Executive branch are secondary, but nonetheless significant from a constitutional standpoint. By its action, the Legislature interfered with a relation between the second branch and persons governed by its decisions. The Legislature overrode an administrative process that, gradually, has developed procedural protection for aliens, and one which is characterized by the general, if flexible, requirement of administrative stare decisis.
We are of the view that this departure from the separation of powers norm is not necessary. Although the practicality of alternatives to legislative disapproval in other
We come finally to the third possible characterization of the disapproval's impact on the operation of the statute. Prominent in this case, as it was presented on appeal, were the contentions of the parties as to whether the action by the House was invalid by reason of its unicameral character. We have concluded that the essence of the violation here was the violation of the separation of powers rule, for the reasons stated above. Perhaps it will be objected that Congress has enacted a mechanism reserving to itself the right to deny discretionary relief from deportation under a separate set of standards, operating as it were as an alternate and supplementary procedure, consisting of the one-house disapproval mechanism. In effect the argument would characterize the legislative disapproval as a separate and essentially legislative procedure operating only after executive and judicial procedures have been completed.
The foundation of this argument is the great power allocated to Congress by article I of the Constitution:
U.S.Const., art. I, § 8, cls. 1, 3, 4, 18. See also Kleindienst v. Mandel, 408 U.S. 753, 765-70, 92 S.Ct. 2576, 2582-85, 33 L.Ed.2d 683 (1972). We note that this authorizes Congress to "make all laws," not to exercise power in any way it deems convenient. That a power is clearly committed to Congress does not sustain an unconstitutional form in the exercise of the power.
Having vested all legislative power in the Congress, the framers deemed it necessary not only to design checks on that power by means of the other branches, but also to use the internal check of bicameralism. The legislative authority was seen by the framers as the most extensive and, therefore, the one most open to abuse. See, e. g., 2 M. Farrand, The Records of the Federal Convention of 1787, at 25-27; 449-53 (1911). This proposition was stressed repeatedly by the authors of the Federalist Papers. The Federalist Nos. 47 (J. Madison); 48 (same); 49 (same); 51 (same); 62 (same); 71 (A. Hamilton); 73 (same). Alexander Hamilton warned of "the tendency of the legislative authority to absorb every other." The Federalist No. 71 (A. Hamilton) at 483 (J. Cooke ed. 1961). As James Madison wrote:
The Federalist No. 51 (J. Madison) at 350 (J. Cooke ed. 1961).
The principal structural utilities of bicameralism are to restrain the legislative power, to operate to correct its abuse, and to contribute to the integrity of its exercise. 3 M. Farrand, supra, at 110 (remarks of Charles Pinckney); The Federalist No. 62 (J. Madison); 1 J. Story, Commentaries on the Constitution of the United States § 554, at 413 (5th ed. M. Bigelow 1891). See Buckley v. Valeo, 424 U.S. 1, 129, 96 S.Ct. 612, 687, 46 L.Ed.2d 659 (1976) (per curiam); Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.L.Rev. 983, 1030-32 (1975).
From a reading of the Federalist Papers as a whole, the point emerges with singular clarity that bicameralism was deemed to be one of the most fundamental of the checks on governmental power. The critical function of bicameralism as a restraint on power was explained in the Federalist Papers explicitly, early, and at length. It was one of the principal arguments used, particularly by Madison, to convince the people that the federal government would operate responsibly.
There are three reasons why we do not believe that Congress' article I power over aliens may be relied on to sustain the disapproval of Chadha's suspension of deportation by the statutory mechanism here in question. First, the legitimacy of a particular exercise of this power cannot be decided in the abstract. The disapproval here in question generally follows an elaborate series of administrative proceedings. The proposition that one house of Congress has the power to withhold discretionary relief from all deportable aliens in all cases under another regime, such as that of private bills, in which Congress assumes full administrative responsibility, does not establish that that power may also be exercised after the Executive or Judiciary have already exercised their delegated responsibilities. Plenary power for making laws does not import authority to revise particular administrative dispositions. This is a case in which the greater power definitely does not include the lesser, because the exercise of the lesser power here entails the unnecessary disruption of the operation of the other two branches as we have outlined it above.
Second, amici's characterization requires us to acknowledge that the power to "make all laws" has important formal and procedural limitations. It is most significant that both houses of Congress must concur in the enactment of positive law that alters individuals' substantive rights. U.S.Const., art. I, § 7. To adopt either
We consider these two formal difficulties with amici's characterization of the disapproval mechanism decisive. For this reason we need only note that the third difficulty, the potential for unfair or discriminatory use of lawmaking directed at named individuals, presents troublesome issues which we need not reach.
Congress holds all legislative powers. We do not think that body would confess itself unable to formulate deportation rules or policies applicable to individual cases that are sufficiently clear for compliance by the Executive and for ascertainment by the Judiciary. We cannot accept that definite, uniform, and sensible criteria governing the conferral of government burdens and benefits on individuals should be replaced by a species of nonlegislation, wherein the Executive branch becomes a sort of referee in making an initial determination which has no independent force or validity, even after review and approval by the Judiciary, save
Having so held, we underscore that no malevolent design or purpose can be discerned in the congressional scheme. The statute was enacted for the most humanitarian of considerations. Questions of constitutional power, however, necessarily require us to examine enactments from the standpoint of the framers, who were concerned that defects in formal structure be corrected before leading to real or perceived abuses of power at a later date. The case is within our mandatory jurisdiction and it is our duty, after reviewing the statutory provision in this light, to say that it is void.
The decision by the Attorney General to stay deportation is deemed final. The deportation proceedings are deemed cancelled within the meaning of section 244(d) of the Immigration and Nationality Act, and the Attorney General is ordered to cease and desist from taking any steps to deport this alien based upon the resolution enacted by the House of Representatives. It is so ordered.
Each of these subsections seeks to limit the Attorney General's discretion, but this does not establish that each is somehow essential to Congress' purpose. From a reading of the section, and given the purpose of alleviating the number of cumbersome private bills, it is obvious that Congress enacted each subsection in order to further what it thought to be the proper handling of hardship cases; it is not evident that each subsection, and more particularly subsection (c), was absolutely necessary to the attainment of that goal.
We note, moreover, that filing an immediate relative petition does not ensure certain and permanent relief. INA §§ 204, 205, 8 U.S.C. §§ 1154, 1155 (1976). Compare Menezes v. INS, 601 F.2d 1028 (9th cir. 1979) with Dabaghian v. Civiletti, 607 F.2d 868 (9th Cir. 1979). Thus, Chadha's marriage confers neither permanent resident status nor a guarantee thereof. Until an immediate relative petition is filed, Chadha remains subject to a final order of deportation. The dispute remains as a case or controversy.
Even if it were appropriate to assume, arguendo, that the INS would eventually grant Chadha's wife's petition-a petition which has not yet been, and may not be made-the case would not be moot. A case does not become moot during appeal so long as a party retains a personal stake in the appeal's outcome. Powell v. McCormack, 395 U.S. 486, 495-500, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969); Jones v. Diamond, 594 F.2d 997 (5th Cir. 1979); McLaughlin v. Hoffman, 547 F.2d 918 (5th Cir. 1977); Carter-Wallace, Inc. v. Otte, 474 F.2d 529, 532-34 (2d Cir. 1972) (Friendly, J.), cert. denied, 412 U.S. 929, 93 S.Ct. 2753, 37 L.Ed.2d 156 (1973). See also Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 100 S.Ct. 2177, 64 L.Ed.2d 804 (1980) (disposition of litigant's substantive claim in class action suit does not destroy personal stake in outcome of class certification); United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (same). Chadha would suffer significant collateral detriment should we relegate him to the relief afforded by the immediate relative petition. The most obvious detriment is that he would be required to wait longer in order to be eligible for citizenship status. Under our disposition today, Chadha's status as a legal resident will have commenced when he received the initial grant of administrative suspension. Inasmuch as Chadha's deportation was suspended in 1974, the five-year waiting period for citizenship has already expired, thus making Chadha eligible to apply for naturalization. See 8 U.S.C. § 1427(a) (1976) (five-year period for citizenship). Under an immediate relative petition, however, Chadha could not gain permanent resident status until and unless that petition might be granted, and three more years would have to pass before Chadha might file for citizenship. See 8 U.S.C. § 1430(a) (1976). By this difference in dates when permanent resident status is granted, Chadha thus retains a personal interest in the disposition of this petition, even though an immediate relative petition may ostensibly grant similar relief. Cf. Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196 (1946) (appeal of conviction not rendered moot by petitioner's having served sentence because conviction may impede petitioner should he apply for naturalization). In addition, a case is not rendered moot simply because there is the bare possibility, or even probability, that the outcome of a separate administrative proceeding may grant the litigant identical or similar relief. Sierra Club v. Train, 557 F.2d 485 (5th Cir. 1977); Consumers Union v. Miller, 84 F.R.D. 240 (D.D.C. 1979).
The Federalist No. 47 (J. Madison) at 324-26 (J. Cooke ed. 1961).
1 J. Adams, A Defence of the Constitutions of Government of the United States of America 375-76 (London ed. 1794), reprinted in 4 J. Adams, Works of John Adams 583-84 (C. Adams ed. 1851). See generally, L. Jaffe, Judicial Control of Administrative Action 28-33 (1965). For a discussion of the distinction between essential and incident powers in a similar context, see Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 40 Law & Contemp.Prob. 102 (Spring 1976).
Id. at 28, reprinted in  U.S.Code Cong. & Ad.News 2972.
It appears that the House in this instance did view its action as a correction of a misapplication of the statutory criteria governing eligibility for exercise of the Attorney General's discretion:
121 Cong.Rec. 40,800 (1975) (Remarks of Rep. Eilberg, explaining House disapproval of suspension for Chadha and five other aliens). If Congress has the power to reserve to itself the ultimate determination of whether extreme hardship is present, decisions such as Prapavat v. INS, 638 F.2d 87, (9th Cir. 1980), would be mere advisory opinions.