An Act of Congress authorizing the transfer of operating control of two major airports from the Federal Government to the Metropolitan Washington Airports Authority (MWAA) conditioned the transfer on the creation by MWAA of a unique "Board of Review" composed of nine Members of Congress and vested with veto power over decisions made by MWAA's Board of Directors.
In 1940, Congress authorized the Executive Branch to acquire a tract of land a few miles from the Capitol and to construct what is now Washington National Airport (National). 54 Stat. 686. From the time it opened until 1987, National was owned and operated by the Federal Government. The airport was first managed by the Civil Aeronautics Agency, a division of the Commerce Department. 54 Stat. 688. In 1959, control of National shifted to the newly created Federal Aviation Administration (FAA), an agency that, since 1967, has been a part of the Department of Transportation. See 72 Stat. 731; 80 Stat. 932, 938.
A few years after National opened, the Truman administration proposed that a federal corporation be formed to operate the airport. See Congressional Research Service, Federal Ownership of National and Dulles Airports: Background, Pro-Con Analysis, and Outlook 4 (1985) (CRS Report), reprinted in Hearings before the Subcommittee on
National and Dulles are the only two major commercial airports owned by the Federal Government. A third airport, Baltimore Washington International (BWI), which is owned by the State of Maryland, also serves the Washington metropolitan area. Like Dulles, it is larger than National and located in a rural area many miles from the Capitol. Because of its location, National is by far the busiest and most profitable of the three.
Throughout its history, National has been the subject of controversy. Its location at the center of the metropolitan area is a great convenience for air travelers, but flight paths over densely populated areas have generated concern among local residents about safety, noise, and pollution. Those living
Despite the FAA's history of profitable operation of National and excellent management of both airports, the Secretary of Transportation concluded that necessary capital improvements could not be financed for either National or Dulles unless control of the airports was transferred to a regional authority with power to raise money by selling tax-exempt bonds.
The Commission recommended that the proposed authority be created by a congressionally approved compact between Virginia and the District, and that its Board of Directors be composed of 11 members serving staggered 6-year terms, with 5 members to be appointed by the Governor of Virginia, 3 by the Mayor of the District, 2 by the Governor of Maryland, and 1 by the President, with the advice and consent of the Senate. See App. 17. Emphasizing the importance of a "non-political, independent authority," the Commission recommended that members of the board "should not hold elective or appointive political office." Ibid. To allay concerns that local interests would not be adequately represented, the Commission recommended a requirement that all
In 1985, Virginia and the District both passed legislation authorizing the establishment of the recommended regional authority. See 1985 Va. Acts, ch. 598; 1985 D. C. Law 6-67. A bill embodying the advisory commission's recommendations passed the Senate. See 132 Cong. Rec. 7263-7281 (1986). In the House of Representatives, however, the legislation encountered strong opposition from Members who expressed concern that the surrender of federal control of the airports might result in the transfer of a significant amount of traffic from National to Dulles. See Hearings on H. R. 2337, H. R. 5040, and S. 1017 before the Subcommittee on Aviation of the House Committee on Public Works and Transportation, 99th Cong., 2d Sess., 1-3, 22 (1986).
Substitute bills were therefore drafted to provide for the establishment of a review board with veto power over major actions of MWAA's Board of Directors. Under two of the proposals, the board of review would clearly have acted as an agent of the Congress. After Congress received an opinion from the Department of Justice that a veto of MWAA action by such a board of review "would plainly be legislative action that must conform to the requirements of Article 1, section 7 of the Constitution,"
Subparagraph (1) of § 2456(f) specifies that the Board of Review "shall consist" of nine Members of the Congress, eight of whom serve on committees with jurisdiction over transportation issues and none of whom may be a Member from Maryland, Virginia, or the District of Columbia.
On March 2, 1987, the Secretary of Transportation and MWAA entered into a long-term lease complying with all of the conditions specified in the then recently enacted Transfer Act. See App. to Pet. for Cert. 163a-187a. The lease provided for a 50-year term and annual rental payments of $3 million "in 1987 dollars." Id., at 170a, 178a. After the lease was executed, MWAA's Board of Directors adopted bylaws providing for the Board of Review, id., at 151a-154a, and Virginia and the District of Columbia amended their legislation to give MWAA power to establish the Board of Review, 1987 Va. Acts, ch. 665; 1987 D. C. Law 7-18. On September 2, 1987, the directors appointed the nine members of the Board of Review from lists that had been submitted by the Speaker of the House of Representatives and the President pro tempore of the Senate. App. 57-58.
On March 16, 1988, MWAA's Board of Directors adopted a master plan providing for the construction of a new terminal at National with gates capable of handling larger aircraft, an additional taxiway turnoff to reduce aircraft time on the runway and thereby improve airport capacity, a new dual-level roadway system, and new parking facilities. Id., at 70-71, 89-91. On April 13, the Board of Review met and voted not to disapprove the master plan. Id., at 73-78.
In November 1988, Citizens for the Abatement of Aircraft Noise, Inc., and two individuals who reside under flight
The District Court granted the defendants' motion for summary judgment. 718 F.Supp. 974 (DC 1989). As a preliminary matter, however, the court held that plaintiffs had standing to maintain the action for two reasons:
A divided panel of the Court of Appeals for the District of Columbia Circuit reversed. 286 U. S. App. D. C. 334, 917 F.2d 48 (1990). The court agreed that plaintiffs had standing because they had alleged a distinct and palpable injury that was "fairly traceable" to the implementation of the master plan and a favorable ruling would prevent MWAA from implementing that plan. Id., at 339, 917 F. 2d, at 53. On the merits, the majority concluded that it was "wholly unrealistic to view the Board of Review as solely a creature of state law immune to separation-of-powers scrutiny" because it was federal law that had required the establishment of the Board and defined its powers. Id., at 340, 917 F. 2d, at 54. It held that the Board was "in essence a congressional agent" with disapproval powers over key operational decisions that were "quintessentially executive," id., at 343, 917 F. 2d, at 57, and therefore violated the separation of powers, ibid. The dissenting judge, emphasizing the importance of construing federal statutes to avoid constitutional questions when fairly possible, concluded that the Board of Review should not be characterized as a federal entity but that, even if it were so characterized, its members could, consistent with the Constitution, serve in their individual capacities even though they were Members of Congress. Id., at 345-347, 917 F. 2d, at 59-61.
Because of the importance of the constitutional question, we granted MWAA's petition for certiorari. 498 U.S. 1045-1046 (1991). Although the United States intervened in the Court of Appeals to support the constitutionality of the Transfer Act, see 28 U. S. C. § 2403(a), the United States did not join in MWAA's petition for certiorari. As a respondent in this Court pursuant to this Court's Rule 12.4, the United
Petitioners (MWAA and the Board of Review) renew the challenge to respondents' standing that was rejected by the District Court and the Court of Appeals. To establish standing, respondents "must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751 (1984). Petitioners argue that respondents' asserted injuries are caused by factors independent of the Board of Review's veto power and that the injuries will not be cured by invalidation of the Board of Review. We believe that petitioners are mistaken.
Respondents alleged that the master plan allows increased air traffic at National and a consequent increase in accident risks, noise, and pollution. App. 10. "For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint." Warth v. Seldin, 422 U.S. 490, 501 (1975). If we accept that the master plan's provisions will result in increased noise, pollution, and danger of accidents,
Petitioners argue that this case does not raise any separation-of-powers issue because the Board of Review neither exercises federal power nor acts as an agent of Congress. Examining the origin and structure of the Board, we conclude that petitioners are incorrect.
Control over National and Dulles was originally in federal hands, and was transferred to MWAA only subject to the condition that the States create the Board of Review. Congress placed such significance on the Board that it required that the Board's invalidation prevent MWAA from taking any action that would have been subject to Board oversight. See 49 U. S. C. App. § 2456(h). Moreover, the Federal Government has a strong and continuing interest in the efficient operation of the airports, which are vital to the smooth conduct of Government business, especially to the work of Congress, whose Members must maintain offices in both Washington and the districts that they represent and must shuttle back and forth according to the dictates of busy and often unpredictable schedules. This federal interest was identified in the preamble to the Transfer Act,
That the Members of Congress who serve on the Board nominally serve "in their individual capacities, as representatives of users" of the airports, § 2456(f)(1), does not prevent this group of officials from qualifying as a congressional agent exercising federal authority for separation-of-powers purposes. As we recently held, "separation-of-powers analysis does not turn on the labeling of an activity," Mistretta v. United States, 488 U.S. 361, 393 (1989). The Transfer Act imposes no requirement that the Members of Congress who are appointed to the Board actually be users of the airports. Rather, the Act imposes the requirement that the Board members have congressional responsibilities related to the federal regulation of air transportation. These facts belie the ipse dixit that the Board members will act "in their individual capacities."
Although the legislative history is not necessary to our conclusion that the Board members act in their official congressional capacities, the floor debates in the House confirm our view. See, e. g., 132 Cong. Rec. 32135 (1986) (The bill "also provides for continuing congressional review over the major decisions of the new airport authority. A Congressional Board will still have veto power over the new airport authority's: annual budget; issuance of bonds; regulations; master plan; and the naming of the Chief Executive Officer") (Rep. Lehman); id., at 32136 ("In addition, the motion provides continued congressional control over both airports. Congress would retain oversight through a Board of Review made up of nine Members of Congress. This Board would have the right to overturn major decisions of the airport authority") (Rep. Coughlin); id., at 32137 ("Under this plan, Congress retains enough control of the airports to deal with any unseen pitfalls resulting from this transfer of authority
Congress as a body also exercises substantial power over the appointment and removal of the particular Members of Congress who serve on the Board. The Transfer Act provides that the Board "shall consist" of "two members of the Public Works and Transportation Committee and two members of the Appropriations Committee of the House of Representatives from a list provided by the Speaker of the House," "two members of the Commerce, Science, and Transportation Committee and two members of the Appropriations Committee of the Senate from a list provided by the President pro tempore of the Senate," and "one member chosen alternately . . . from a list provided by the Speaker of the House or the President pro tempore of the Senate, respectively." 49 U. S. C. App. § 2456(f)(1). Significantly, appointments must be made from the lists, and there is no requirement that the lists contain more recommendations than the number of Board openings. Cf. 28 U. S. C. § 991(a) (Sentencing Reform Act upheld in Mistretta required only that the President "conside[r]" the recommendations of the Judicial Conference); 31 U. S. C. § 703(a) (Congressional
We thus confront an entity created at the initiative of Congress, the powers of which Congress has delineated, the purpose of which is to protect an acknowledged federal interest, and membership in which is restricted to congressional officials. Such an entity necessarily exercises sufficient federal power as an agent of Congress to mandate separation-of-powers scrutiny. Any other conclusion would permit Congress to evade the "carefully crafted" constraints of the Constitution, INS v. Chadha, 462 U.S. 919, 959 (1983), simply by delegating primary responsibility for execution of national
Petitioners contend that the Board of Review should nevertheless be immune from scrutiny for constitutional defects because it was created in the course of Congress' exercise of its power to dispose of federal property. See U. S. Const., Art. IV, § 3, cl. 2.
Our holding in Dole did not involve separation-of-powers principles. It concerned only the allocation of power between the Federal Government and the States. Our reasoning that, absent coercion, a sovereign State has both the incentive and the ability to protect its own rights and powers, and therefore may cede such rights and powers, see id., at 210-211, is inapplicable to the issue presented by this case. Here, unlike Dole, there is no question about federal power to operate the airports. The question is whether the maintenance of federal control over the airports by means of the Board of Review, which is allegedly a federal instrumentality, is invalid, not because it invades any state power, but because Congress' continued control violates the separation-of-powers principle, the aim of which is to protect not the States but "the whole people from improvident laws." Chadha, 462 U. S., at 951. Nothing in our opinion in Dole implied that a highway grant to a State could have been conditioned on the State's creating a "Highway Board of Review" composed of Members of Congress. We must therefore consider whether the powers of the Board of Review may, consistent with the separation of powers, be exercised by an agent of Congress.
Because National and Dulles are the property of the Federal Government and their operations directly affect interstate
The structure of our Government as conceived by the Framers of our Constitution disperses the federal power among the three branches—the Legislative, the Executive, and the Judicial—placing both substantive and procedural limitations on each. The ultimate purpose of this separation of powers is to protect the liberty and security of the governed. As former Attorney General Levi explained:
Violations of the separation-of-powers principle have been uncommon because each branch has traditionally respected the prerogatives of the other two. Nevertheless, the Court has been sensitive to its responsibility to enforce the principle when necessary.
The abuses by the monarch recounted in the Declaration of Independence provide dramatic evidence of the threat to liberty posed by a too powerful executive. But, as James Madison recognized, the representatives of the majority in a democratic society, if unconstrained, may pose a similar threat:
To forestall the danger of encroachment "beyond the legislative sphere," the Constitution imposes two basic and related constraints on the Congress. It may not "invest itself or its Members with either executive power or judicial power." J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928). And, when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified in Article I. INS v. Chadha, 462 U. S., at 951.
The first constraint is illustrated by the Court's holdings in Springer v. Philippine Islands, 277 U.S. 189 (1928), and Bowsher v. Synar, 478 U.S. 714 (1986). Springer involved the validity of Acts of the Philippine Legislature that authorized a committee of three—two legislators and one executive—to vote corporate stock owned by the Philippine Government. Because the Organic Act of the Philippine Islands incorporated the separation-of-powers principle, and because the challenged statute authorized two legislators to perform
The second constraint is illustrated by our decision in Chadha. That case involved the validity of a statute that authorized either House of Congress by resolution to invalidate a decision by the Attorney General to allow a deportable alien to remain in the United States. Congress had the power to achieve that result through legislation, but the statute was nevertheless invalid because Congress cannot exercise its legislative power to enact laws without following the bicameral and presentment procedures specified in Article I. For the same reason, an attempt to characterize the budgetary action of the Comptroller General in Bowsher as legislative action would not have saved its constitutionality because Congress may not delegate the power to legislate to its own agents or to its own Members.
Respondents rely on both of these constraints in their challenge to the Board of Review. The Court of Appeals found it unnecessary to discuss the second constraint because the
One might argue that the provision for a Board of Review is the kind of practical accommodation between the Legislature and the Executive that should be permitted in a "workable government."
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE MARSHALL join, dissenting.
Today the Court strikes down yet another innovative and otherwise lawful governmental experiment in the name of separation of powers. To reach this result, the majority must strain to bring state enactments within the ambit of a doctrine hitherto applicable only to the Federal Government and strain again to extend the doctrine even though both Congress and the Executive argue for the constitutionality of
For the first time in its history, the Court employs separation-of-powers doctrine to invalidate a body created under state law. The majority justifies this unprecedented step on the ground that the Board of Review "exercises sufficient federal power . . . to mandate separation-of-powers scrutiny." Ante, at 269. This conclusion follows, it is claimed, because the Board, as presently constituted, would not exist but for the conditions set by Congress in the Metropolitan Washington Airports Act of 1986 (Transfer Act), 49 U. S. C. App. § 2456(h)(1). This unprecedented rationale is insufficient on at least two counts. The Court's reasoning fails first because it ignores the plain terms of every instrument relevant to this case. The Court further errs because it also misapprehends the nature of the Transfer Act as a lawful exercise of congressional authority under the Property Clause. U. S. Const., Art. IV, § 3, cl. 2.
Both the Airports Authority (Authority) and the Board are clearly creatures of state law. The Authority came into being exclusively by virtue of acts passed by the Commonwealth of Virginia, 1985 Va. Acts, ch. 598, § 2, and the District of Columbia, 1985 D. C. Law 6-67, § 3.
The specific features of the Board are consistent with its status as a state-created entity. As the Transfer Act and
As the Court has emphasized, "[g]oing behind the plain language of a statute in search of a possibly contrary . . . intent is `a step to be taken cautiously' even under the best of circumstances." American Tobacco Co. v. Patterson, 456 U.S. 63, 75 (1982) (quoting Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 26 (1977)). Nowhere should this caution be greater than where the Court flirts with embracing "serious constitutional problems" at the expense of "constru[ing a] statute to avoid such problems." Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575 (1988); see Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804) (Marshall, C. J.). The majority nonetheless offers three reasons for taking just these steps. First, control over the airports "was originally in federal hands," and was transferred "only subject to the condition that the States create the Board." Ante, at 266. Second, "the Federal Government has a strong and continuing interest in the efficient operation of the airports." Ibid. Finally, and "[m]ost significant, membership on the Board of Review is limited to federal officials." Ante, at 266-267. In other words, Congress, in effect, created a body that, in effect, discharges an ongoing interest of the Federal Government
This picture stands in stark contrast to that drawn in each of the applicable enactments and agreements which, as noted, establish a state-created authority given the power to create a body to safeguard the interests of nationwide travelers by means of federal officials serving in their individual capacities. We have, to be sure, held that separation-of-powers analysis "does not turn on the labeling of an activity," but instead looks to "practical consequences," Mistretta v. United States, 488 U.S. 361, 393 (1989). This observation, however, does not give the Court a license to supplant the careful work of the Authority, Virginia, the District, the Federal Executive, and Congress with its own in-house punditry. This is especially so when the instruments under consideration do not merely "label" but detail an arrangement in which any unconstitutional consequences are pure speculation.
As an initial matter, the Board may not have existed but for Congress, but it does not follow that Congress created the Board or even that Congress' role is a "factor" mandating separation-of-powers scrutiny. Congressional suggestion does not render subsequent independent state actions federal ones. Aside from the clear statutory language, the majority's conclusion ignores the entire series of voluntary and intervening actions, agreements, and enactments on the part of the Federal Executive, Virginia, the District, and the Authority, without which the Transfer Act would have been a nullity and the Board of Review would not have existed. Congress commonly enacts conditional transfers of federal resources to the States. See, e. g., Fullilove v. Klutznick, 448 U.S. 448, (1980); Lau v. Nichols, 414 U.S. 563 (1974); Steward Machine Co. v. Davis, 301 U.S. 548 (1937). Separation-of-powers doctrine would know few bounds if such transfers compelled its application to the state enactments that result.
Considered as a creature of state law, the Board offends no constitutional provision or doctrine. The Court does not assert that congressional membership on a state-created entity, without more, violates the Incompatibility or Ineligibility Clauses. U. S. Const., Art. I, § 6, cl. 2. By their express terms, these provisions prohibit Members of Congress from serving in another federal office. They say nothing to bar congressional service in state or state-created offices. To the contrary, the Framers considered and rejected such a bar. 1 M. Farrand, Records of the Federal Convention of
The Court's haste to extend separation-of-powers doctrine is even less defensible in light of the federal statute on which it relies. Far from transforming the Board into a federal entity, the Transfer Act confirms the Board's constitutionality inasmuch as that statute is a legitimate exercise of congressional authority under the Property Clause. U. S. Const., Art. IV, § 3, cl. 2. To overlook this fact the Court must once again ignore plain meaning, this time the plain meaning of the Court's controlling precedent regarding Congress' coextensive authority under the Spending Clause. Ibid.
As the majority acknowledges, in South Dakota v. Dole, 483 U.S. 203 (1987), the Court held that Congress could condition a grant of federal funds to a State on the State's raising the drinking age to 21, even assuming that Congress did not have the power to mandate a minimum national drinking age directly. As the majority fails to acknowledge, the Court's holding in no way turned on a State's "incentive and. . . ability to protect its own rights and powers." Ante, at
Dole states only that Congress may not induce the States to engage in activities that would themselves have been unconstitutional in the absence of the inducement. The decision does not indicate that Congress can act only when its actions implicate "the allocation of power between the Federal Government and the States" ante, at 271, as opposed to principles, "the aim of which is to protect not the States but `the whole people from improvident laws.'" Ibid. Nor could it. In the context of 42 U. S. C. § 1983, the Court has rejected any broad distinction between constitutional provisions that allocate powers and those that affirm rights. Dennis v. Higgins, 498 U.S. 439, 447-448 (1991). The majority's own application of its test to this case illustrates the difficulties in its position. The Court asserts that Dole cannot safeguard
There is no question that Dole, when faithfully read, places the Board outside the scope of separation-of-powers scrutiny. As noted, no one suggests that Virginia and the District of Columbia could not have created a board of review to which nonfederal officers would appoint Members of Congress had Congress not offered any inducement to do so. The Transfer Act, therefore, did not induce the States to engage in activities that would themselves be unconstitutional. Nor is there any assertion that this case involves the rare circumstance in which "the financial inducement offered by Congress might be so coercive as to pass the point at which `pressure turns into compulsion'" Dole, supra, at 211 (quoting Steward Machine Co., 301 U. S., at 590). In Dole, Congress authorized the Secretary of Transportation to withdraw funding should the States fail to comply with certain conditions. Here, Congress merely indicated that federal control over National and Dulles Airports would continue given a failure to comply with certain conditions. Virginia and the District may sorely have wanted control over the airports for themselves. Placing conditions on a desire, however, does not amount to compulsion. Dole therefore requires precisely what the majority denies—the rejection of separation-of-powers doctrine as an "independent bar" against Congress conditioning the lease of federal property in this case.
Even assuming that separation-of-powers principles apply, the Court can hold the Board to be unconstitutional only by extending those principles in an unwarranted fashion. The majority contends otherwise, reasoning that the Constitution requires today's result whether the Board exercises executive or legislative power. Ante, at 274-276. Yet never before has the Court struck down a body on separation-of-powers grounds that neither Congress nor the Executive oppose. It is absurd to suggest that the Board's power represents the type of "legislative usurpatio[n] . . . which, by assembling all power in the same hands . . . must lead to the same tyranny," that concerned the Framers. The Federalist No. 48, supra, at 309-310 (J. Madison). More to the point, it is clear that the Board does not offend separation-of-powers principles either under our cases dealing with executive power or our decisions concerning legislative authority.
Based on its faulty premise that the Board is exercising federal power, the Court first reasons that "[i]f the [Board's] power is executive, the Constitution does not permit an
As Bowsher made clear, a "critical factor" in determining whether an official is "subservient to Congress" is the degree to which Congress maintains the power of removal. Bowsher, supra, at 727. Congress cannot "draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of" the removal of a federal executive officer. Myers v. United States, 272 U.S. 52, 161 (1926). Here Congress exercises no such power. Unlike the statutes struck down in Bowsher and Myers, the Transfer Act contains no provision authorizing Congress to discharge anyone from the Board. Instead, the only express mention of removal authority over Board members in any enactment occurs in resolutions passed by the Board of Directors under the bylaws. These resolutions provide that members of the
The majority counters that Congress maintains "effective removal power over Board members because depriving a Board member of membership in [certain congressional] committees deprives the member of authority to sit on the Board." Ante, at 269. This conclusion rests on the faulty premise that the Transfer Act requires the removal of a Board member once he or she leaves a particular committee. But the Act does not say this. Rather, it merely states that members of the Board "shall consist" of Members of Congress who sit in certain specified committees. 49 U. S. C. App. § 2456(f)(1). Moreover, the Act elsewhere provides that the standard term of service on the Board is six years. § 2456(f)(2). This term, which spans three Congresses, suggests that a Board member's tenure need not turn on continuing committee or even congressional status. Nor, to date, has any member of the Board been removed for having lost a committee post. Tr. of Oral Arg. 11. Once again, the Court seizes upon a less plausible interpretation to reach a constitutional infirmity despite "`[t]he elementary rule . . . that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.'" DeBartolo Corp., 485 U. S., at 575 (quoting Hooper v. California, 155 U.S. 648, 657 (1895)); see Ashwander, 297 U. S., at 348.
Nor has Congress improperly influenced the appointment process, which is ordinarily a less important factor in separation-of-powers analysis in any event. The Authority's Bylaws, reflecting the lease and the Transfer Act, provide that the Board consist of two members each from the House
Twice in recent Terms the Court has considered similar mechanisms without suggesting that they raised any constitutional concern. In Bowsher, the Court voiced no qualms concerning Presidential appointment of the Comptroller General from a list of three individuals suggested by the House Speaker and the President pro tempore. 478 U. S., at 727. Likewise, in Mistretta, the Court upheld Congress' authority to require the President to appoint three federal judges to the Sentencing Commission after considering a list of six judges recommended by the Judicial Conference of the United States. 488 U. S., at 410, n. 31. The majority attempts to distinguish these cases by asserting that the lists involved were merely recommendations whereas the Board "must" be chosen from the submitted lists at issue here. Ante, at 268-269. A fair reading of the requirement shows only that the Board may not be chosen outside the lists. It is perfectly plausible to infer that the directors are free to reject any and all candidates on the lists until acceptable names are submitted. It is difficult to see how the marginal difference that would remain between list processes in Bowsher and Mistretta on one hand, and in this case on the other, would possess any constitutional importance. In sharp contrast, Springer can be readily distinguished. In that instance, as in Buckley v. Valeo, 424 U.S. 1 (1976), the Court struck down a scheme in which the Legislature usurped for
Our recent case law also compels approval of the Board's composition. The majority makes much of the requirement that appointees to the Board must be members of the enumerated congressional committees. Ante, at 269. Committee membership, the argument goes, somehow belies the express declaration that Members of Congress are to sit in their individual capacities as representatives of frequent, nationwide travelers. Mistretta, however, refused to disqualify federal judges, sitting in their individual capacities, from exercising nonjudicial authority simply because they possessed judicial expertise relevant to their posts on the Sentencing Commission. It is difficult, then, to see why Members of Congress, sitting in their individual capacities, should be disqualified from exercising nonlegislative authority because their legislative expertise—as enhanced by their membership on key transportation and finance committees—is relevant to their posts on the Board. I refuse to invalidate the Board because its members are too well qualified.
The majority alternatively suggests that the Board wields an unconstitutional legislative veto contrary to INS v. Chadha, 462 U.S. 919, 952-955 (1983). If the Board's "power is legislative," the Court opines, "Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7." Ante, at 276. The problem with this theory is that if the Board is exercising federal power, its power is not legislative. Neither does the Board itself serve as an agent of Congress in any case.
The majority never makes up its mind whether its claim is that the Board exercises legislative or executive authority.
More important, the case for viewing the Board as a "congressional agent" is even less compelling in the context of Article I than it was with reference to Article II. Chadha dealt with a self-evident exercise of congressional authority in the form of a resolution passed by either House. 462 U. S., at
The majority claims not to retreat from our settled rule that "`[w]hen this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, . . . it should only do so for the most compelling constitutional reasons.'" Mistretta, 488 U. S., at 384 (quoting Bowsher, supra, at 736 (STEVENS, J.)). This rule should apply with even greater force when the arrangement under challenge has also been approved by what are functionally two state legislatures and two state executives.
Since the "compelling constitutional reasons" on which we have relied in our past separation-of-powers decisions are insufficient to strike down the Board, the Court has had to inflate those reasons needlessly to defend today's decision. I cannot follow along this course. The Board violates none of the principles set forth in our cases. Still less does it provide
"(A) two members of the Public Works and Transportation Committee and two members of the Appropriations Committee of the House of Representatives from a list provided by the Speaker of the House;
"(B) two members of the Commerce, Science, and Transportation Committee and two members of the Appropriations Committee of the Senate from a list provided by the President pro tempore of the Senate; and
"(C) one member chosen alternatively from members of the House of Representatives and members of the Senate, from a list provided by the Speaker of the House or the President pro tempore of the Senate, respectively.
"The members of the Board of Review shall elect a chairman. A member of the House of Representatives or the Senate from Maryland or Virginia and the Delegate from the District of Columbia may not serve on the Board of Review." 49 U. S. C. App. § 2456(f)(1).
"(i) the adoption of an annual budget;
"(ii) the authorization for the issuance of bonds;
"(iii) the adoption, amendment, or repeal of a regulation;
"(iv) the adoption or revision of a master plan, including any proposal for land acquisition; and
"(v) the appointment of the chief executive officer." § 2456(f)(4)(B).
The United States does not support the position taken by petitioners and the dissent. The United States argues that "[i]f the exercise of state authority were sufficient in itself to validate a statutorily imposed condition like the one in this case, a massive loophole in the separation of powers would be opened." Brief for United States 31. According to the United States, the condition in this case is constitutional only because "there is here a reasonable basis for the appointment of Members of Congress `in their individual capacities.'" Id., at 33.
. . . . .
"(3) the Federal Government has a continuing but limited interest in the operation of the two federally owned airports, which serve the travel and cargo needs of the entire Metropolitan Washington region as well as the District of Columbia as the national seat of government." 49 U. S. C. App. § 2451.
"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."
"SECTION 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
"SEC. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
"SEC. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress."