Some quick thoughts on teaching INS v. Chadha

A colleague and I were just discussing INS v. Chadha, 462 U.S. 919 (1983), in which the Supreme Court struck down the "legislative veto." The legislative veto was a provision by which Congress could delegate authority to another entity, in this case the Attorney General, yet retain the ability to "veto" particular exercises of that authority without resort to enactment of a statute. The Court held that this procedure violated the Bicameralism and Presentment Clauses of the Constitution, in that such vetoes were legislation (because they altered the legal duties and obligations of individuals) yet were not passed by both Houses and were not signed by the President.

My colleague was wondering whether an argument could be made that had Congress known that it would not be able to retain some review authority through the legislative veto, it would not have delegated the power to the Attorney General in the first place. For some reason, I had the dim memory that Chadha did consider the severability issue, but it was just edited out of the casebook that we both use (Sullivan & Gunther). So we looked up the full opinion, and sure enough, in Part II.B, the Court decided that the legislative veto was severable from the delegation of authority.

There's something to be said for going back periodically to the full text of opinions. This is especially true for those of you taking Federal Courts and using the Hart & Wechsler casebook, which has edited the cases down so tightly that sometimes it's hard to understand them without reading more of the opinion than is presented.

On a related note, law clerk Seth Tillman has an article coming out in Texas Law Review with another way of looking at why Chadha was wrongly decided. I haven't read the article yet, but it looks interesting.