An Act of Congress (hereinafter the Transfer Act) authorized the
transfer of operating control of Washington National Airport
(National) and Dulles International Airport (Dulles) from the
federal Department of Transportation to petitioner Metropolitan
Washington Airports Authority (MWAA), which was created by a
compact between Virginia and the District of Columbia. Both
airports are located in the Virginia suburbs of the District.
Dulles is larger than National, and lies in a rural area miles from
the Capitol. National is a much busier airport, due to the
convenience of its location at the center of the metropolitan area,
but its flight paths over densely populated areas have generated
concern among residents about safety, noise, and pollution. Because
of congressional concern that surrender of federal control of the
airports might result in the transfer of a significant amount of
traffic from National to Dulles, the Transfer Act authorizes the
MWAA's Board of Directors to create a Board of Review (Board). The
Board is to be composed of nine congressmen who serve on committees
having jurisdiction over transportation issues, and who are to act
"in their individual capacities." The Board is vested with a
variety of powers, including the authority to veto decisions made
by MWAA's directors. After the directors adopted bylaws providing
for the Board, and Virginia and the District amended their
legislation to give MWAA powers to establish the Board, the
directors appointed the Board's nine members from lists submitted
by Congress. The directors then adopted a Master Plan providing for
extensive new facilities at National, and the Board voted not to
disapprove that Plan. Subsequently, respondents -- individuals
living along National flight paths and Citizens for the Abatement
of Aircraft Noise, Inc. (CAAN), whose members include persons
living along such paths, and whose purposes include the reduction
of National operations and associated noise, safety, and air
pollution problems -- brought this action seeking declaratory and
injunctive relief, alleging that the Board's veto power is
unconstitutional. Although ruling that respondents had standing to
maintain the action, the District Court granted summary judgment
for petitioners. The Court of Appeals reversed, holding,
inter
alia, that Congress' delegation of the
Page 501 U. S. 253
veto power to the Board violated the constitutional doctrine of
separation of powers.
Held:
1. Respondents have standing. Accepting as true their claims
that the Master Plan will result in increased noise, pollution, and
accidents, they have alleged "personal injury" to themselves that
is "fairly traceable" to the Board's veto power.
See Allen v.
Wright, 468 U. S. 737,
468 U. S. 751.
This is because knowledge that the Plan was subject to that power
undoubtedly influenced MWAA's directors when they drew up the Plan.
Moreover, because invalidation of the veto power will prevent
enactment of the Plan, the relief respondents have requested is
"likely to . . . redres[s]" their alleged injury.
Ibid.
Furthermore, the harm they allege is not confined to the
consequences of a possible increase in National activity, since the
Board and the Master Plan injure CAAN by making it more difficult
for it to fulfill its goal of reducing that activity. Pp.
501 U. S.
264-265.
2. Congress' conditioning of the airports' transfer upon the
creation of a Board of Review composed of congressmen and having
veto power over the MWAA directors' decisions violates the
separation of powers. Pp.
501 U. S.
265-277.
(a) Petitioners argue incorrectly that this case does not raise
any separation-of-powers issue because the Board is a state
creation that neither exercises federal power nor acts as an agent
of Congress. An examination of the Board's origin and structure
reveals an entity created at the initiative of Congress, the powers
of which Congress has mandated in detail, the purpose of which is
to protect an acknowledged federal interest in the efficient
operation of airports vital to the smooth conduct of Government and
congressional business, and membership in which is controlled by
Congress and restricted to Members charged with authority over air
transportation. Such an entity necessarily exercises sufficient
federal powers as an agent of Congress to mandate separation of
powers scrutiny. Any other conclusion would permit Congress to
evade the Constitution's "carefully crafted" constraints,
INS
v. Chadha, 462 U. S. 919,
462 U. S. 959,
simply by delegating primary responsibility for execution of
national policy to the States, subject to the veto power of Members
of Congress acting "in their individual capacities."
Cf.
Bowsher v. Synar, 478 U. S. 714,
478 U. S. 755
(STEVENS, J., concurring in judgment). Nor is there merit to
petitioners' contention that the Board 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 under Article IV, § 3, cl. 2.
South Dakota
v. Dole, 483 U. S. 203,
483 U. S. 212,
distinguished. Pp.
501 U. S.
265-271.
Page 501 U. S. 254
(b) Congress has not followed a constitutionally acceptable
procedure in delegating decisionmaking authority to the Board. To
forestall the danger of encroachment into the executive sphere, the
Constitution imposes two basic and related constraints on Congress.
It may not invest itself, its Members, or its agents with executive
power.
See, e.g., J. W. Hampton, Jr., & Co. v. United
States, 276 U. S. 394,
276 U. S. 406;
Bowsher, supra, 478 U.S. at
478 U. S. 726.
And when it exercises its legislative power, it must follow the
"single, finely wrought and exhaustively considered procedures"
specified in Article I.
Chadha, supra, 462 U.S. at
462 U. S. 951.
If the Board's power is considered to be executive, the
Constitution does not permit an agent of Congress to exercise it.
However, if the power is considered to be legislative, Congress
must, but has not, exercised it in conformity with the bicameralism
and presentment requirements of Article I, § 7. Although Congress
imposed its will on the MWAA by means that are unique and that
might prove to be innocuous, the statutory scheme by which it did
so provides a blueprint for extensive expansion of the legislative
power beyond its constitutionally defined role. Pp.
501 U. S.
271-277.
286 U.S.App.D.C. 334, 917 F.2d 48 (CADC 1990), affirmed.
STEVENS, J., delivered the opinion of the Court, in which
BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined.
WHITE, J., filed a dissenting opinion, in which REHNQUIST, C.J.,
and MARSHALL, J., joined,
post, p.
501 U. S.
277.
Page 501 U. S. 255
JUSTICE STEVENS delivered the opinion of the Court.
An Act of Congress authorizing the transfer of operating control
of two major airports from the Federal Government to the
Metropolitan Washington Airport 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. [
Footnote 1] The principal question presented
is whether this unusual statutory condition violates the
constitutional principle of separation of powers, as interpreted in
INS v. Chadha, 462 U. S. 919
(1983),
Bowsher v. Synar, 478 U.
S. 714 (1986), and
Springer v. Philippine
Islands, 277 U. S. 189
(1928). We conclude, as did the Court of Appeals for the District
of Columbia Circuit, that the condition is unconstitutional.
I
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
Page 501 U. S. 256
Governmental Efficiency and the District of Columbia of the
Senate Committee on Governmental Affairs, 99th Cong., 1st Sess., p.
404 (1985). The proposal was endorsed by the Hoover Commission in
1949, but never adopted by Congress. Instead, when Congress
authorized construction of a second major airport to serve the
Washington area, it again provided for federal ownership and
operation. 64 Stat. 770. Dulles International Airport (Dulles) was
opened in 1962 under the direct control of the FAA.
See
CRS Report 1-2.
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. [
Footnote 2] Although proposals for the joint
operating control of all three airports have been considered, the
plan that gave rise to this litigation involves only National and
Dulles, both of which are located in Virginia. Maryland's interest
in the overall problem explains its representation on the Board of
Directors of MWAA.
See 49 U.S.C. App. § 2456(e)(3)(C).
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
Page 501 U. S. 257
closest to the airport have provided the strongest support for
proposals to close National or to transfer some of its operations
to Dulles.
See CRS Report 3.
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. [
Footnote 3] In 1984, she therefore appointed an
advisory commission to develop a plan for the creation of such a
regional authority.
Id. at 6.
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 five members to be
appointed by the Governor of Virginia, three by the Mayor of the
District, two by the Governor of Maryland, and one by the
President, with the advice and consent of the Senate.
See
App. 17. Emphasizing the importance of a "nonpolitical, 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
Page 501 U. S. 258
board members except the Presidential appointee reside in the
Washington metropolitan area.
Ibid.
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 647. 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
& 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, § 7 of the Constitution," [
Footnote 4] the Senate adopted a version of the review
Page 501 U. S. 259
board that required Members of Congress to serve in their
individual capacities as representatives of users of the airports.
See 132 Cong.Rec. 28372-28375, 28504, 28521-28525 (1986).
The provision was further amended in the House,
id. at
32127-32144, and the Senate concurred,
id. at 32483.
Ultimately, § 2456(f) of the Transfer Act as enacted defined the
composition and powers of the Board of Review in much greater
detail than the Board of Directors.
Compare 49 U.S.C. App.
§ 2456(f) with § 2456(e).
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. [
Footnote
5] Subparagraph
Page 501 U. S. 260
4(B) details the actions that must be submitted to the Board of
Review for approval, which include adoption of a budget,
authorization of bonds, promulgation of regulations, endorsement of
a master plan, and appointment of the chief executive officer of
the Authority. [
Footnote 6]
Subparagraph 4(D) explains that disapproval by the Board will
prevent submitted actions from taking effect. [
Footnote 7] Other significant provisions of the
Act include paragraph 5, which authorizes the Board of Review to
require Authority directors to consider any action relating to the
airports; [
Footnote 8]
subsection (g), which requires that any action changing the hours
of operation at either National or Dulles be taken by regulation,
and therefore be subject to veto by the Board of Review; [
Footnote 9] and
Page 501 U. S. 261
subsection (h), which contains a provision disabling MWAA's
Board of Directors from performing any action subject to the veto
power if a court should hold that the Board of Review provisions of
the Act are invalid. [
Footnote
10]
On March 2, 1987, the Secretary of Transportation and the 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 three million dollars "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.
II
In November, 1988, Citizens for the Abatement of Aircraft Noise,
Inc., and two individuals who reside under flight
Page 501 U. S. 262
paths of aircraft departing from and arriving at National
(collectively CAAN) brought this action. CAAN sought a declaration
that the Board of Review's power to veto actions of MWAA's Board of
Directors is unconstitutional, and an injunction against any action
by the Board of Review, as well as any action by the Board of
Directors that is subject to Board of Review approval.
Id.
at 10. The complaint alleged that most of the members of CAAN live
under flight paths to and from National, and that CAAN's primary
purpose is to develop and implement a transportation policy for the
Washington area that would include balanced service among its three
major airports, thus reducing the operations at National and
alleviating noise, safety, and air pollution problems associated
with such operations.
Id. at 4. The complaint named MWAA
and its Board of Review as defendants.
Id. at 5.
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: [
Footnote 11]
first, because the master plan will facilitate increased activity
at National that is harmful to plaintiffs, and second, because the
composition of the Board of Review diminishes the influence of CAAN
on airport user issues, since local congressmen and senators are
ineligible for service on the Board.
Id. at 980-982. On
the merits, the District Court concluded that there was no
violation of the doctrine of separation of powers, because the
members of the Board of Review acted in their individual capacities
as representatives of airport users, and therefore the Board was
not an agent of Congress.
Id. at 985. Moreover, the
Board's powers were derived from the legislation enacted by
Virginia and the District, as implemented by MWAA's bylaws, rather
than from the Transfer
Page 501 U. S. 263
Act.
Id. at 986. "In short, because Congress exercises
no federal power under the Act, it cannot overstep its
constitutionally designated bounds."
Ibid.
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
Page 501 U. S. 264
States has again taken the position that the Transfer Act is
constitutional. [
Footnote
12]
III
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,
468 U. S. 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,
422 U. S. 501
(1975). If we accept that the master plan's provisions will result
in increased noise, pollution, and danger of accidents,
Page 501 U. S. 265
this "personal injury" to respondents is "fairly traceable" to
the Board of Review's veto power, because knowledge that the master
plan was subject to the veto power undoubtedly influenced MWAA's
Board of Directors when it drew up the plan. Because invalidation
of the veto power will prevent the enactment of the master plan,
see 49 U.S.C. App. § 2456(h), the relief respondents have
requested is likely to redress their alleged injury. Moreover, the
harm respondents have alleged is not confined to the consequences
of a possible increase in the level of activity at National. The
harm also includes the creation of an impediment to a reduction in
that activity.
See App. 8. The Board of Review was created
by Congress as a mechanism to preserve operations at National at
their present level, or at a higher level if possible.
See
supra at
501 U. S. 258.
The Board of Review and the Master Plan, which even petitioners
acknowledge is, at a minimum, "noise-neutral," Brief for
Petitioners 37-38, therefore injure CAAN by making it more
difficult for CAAN to reduce noise and activity at National.
[
Footnote 13]
IV
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.
Page 501 U. S. 266
Petitioners lay great stress on the fact that the Board of
Review was established by the bylaws of MWAA, which was created by
legislation enacted by the State of Virginia and the District of
Columbia. Putting aside the unsettled question whether the District
of Columbia acts as a State or as an agent of the Federal
Government for separation of powers purposes, we believe the fact
that the Board of Review was created by state enactments is not
enough to immunize it from separation of powers review. Several
factors combine to mandate this result.
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 the Airports Authority 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,
[
Footnote 14] justified a
Presidential appointee on the Board of Directors, and motivated the
creation of the Board of Review, the structure and the powers of
which Congress mandated in detail,
see § 2456(f). Most
significant,
Page 501 U. S. 267
membership on the Board of Review is limited to federal
officials, specifically members of congressional committees charged
with authority over air transportation.
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 State, 488 U.
S. 361,
488 U. S. 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 regulation. 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. . .
.
Page 501 U. S. 268
We are getting our cake and eating it too. . . . The beauty of
the deal is that Congress retains its control without spending a
dime") (Rep. Smith);
id. at 32141 ("There is, however, a
congressional board which is established by this. . . . [T]hat
board has been established to make sure that the Nation's interest,
the congressional interest was attended to in the consideration of
how these two airports are operated") (Rep. Hoyer);
id. at
32142 (The bill does "not give up congressional control and
oversight -- that remains in a Congressional Board of review")
(Rep. Conte);
id. at 32143 ("I understand that one concern
of Members is that, by leasing these airports to a local authority,
we would be losing control over them. But, in fact, under this
bill, exactly the opposite is true. We will have more control than
before") (Rep. Hammerschmidt).
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
Page 501 U. S. 269
Commission only "recommend[s]" individuals for selection as
Comptroller General). The list system, combined with congressional
authority over committee assignments, guarantees Congress effective
control over appointments. Control over committee assignments also
gives Congress effective removal power over Board members, because
depriving a Board member of membership in the relevant committees
deprives the member of authority to sit on the Board.
See
49 U.S.C. App. § 2456(f)(1) (Board "shall consist" of relevant
committee members). [
Footnote
15]
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,
462 U. S. 959
(1983), simply by delegating primary responsibility for execution
of national
Page 501 U. S. 270
policy to the States, subject to the veto power of Members of
Congress acting "in their individual capacities."
Cf. Bowsher
v. Synar, 478 U. S. 714,
478 U. S. 755
(1986) (STEVENS, J., concurring in judgment). [
Footnote 16]
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.
[
Footnote 17] In
South
Dakota v. Dole, 483 U. S. 203
(1987), we held that a grant of highway funds to a State
conditioned on the State's prohibition of the possession of
alcoholic beverages by persons under the age of 21 was a lawful
exercise of Congress' power to spend money for the general welfare.
See U.S.Const., Art. I, § 8, cl. 1. Even assuming that
"Congress might lack the power to impose a national minimum
drinking age directly," we held that this indirect "encouragement
to state action" was a valid use of the spending power.
Id. at
483 U. S. 212.
We thus concluded that Congress could endeavor to accomplish the
federal objective of regulating the national drinking age by the
indirect use of the spending power even though that regulatory
authority
Page 501 U. S. 271
would otherwise be a matter within state control pursuant to the
Twenty-first Amendment. [
Footnote 18]
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
483 U. S.
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, at
462 U. S. 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.
V
Because National and Dulles are the property of the Federal
Government and their operations directly affect interstate
Page 501 U. S. 272
commerce, there is no doubt concerning the ultimate power of
Congress to enact legislation defining the policies that govern
those operations. Congress itself can formulate the details, or it
can enact general standards and assign to the Executive Branch the
responsibility for making necessary managerial decisions in
conformance with those standards. The question presented is only
whether the Legislature has followed a constitutionally acceptable
procedure in delegating decisionmaking authority to the Board of
Review.
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:
"The essence of the separation of powers concept formulated by
the Founders from the political experience and philosophy of the
revolutionary era is that each branch, in different ways, within
the sphere of its defined powers and subject to the distinct
institutional responsibilities of the others, is essential to the
liberty and security of the people. Each branch, in its own way, is
the people's agent, its fiduciary for certain purposes."
* * * *
"Fiduciaries do not meet their obligations by arrogating to
themselves the distinct duties of their master's other agents."
Levi, Some Aspects of Separation of Powers, 76 Colum.L.Rev.
385-386 (1976).
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.
Page 501 U. S. 273
"Time and again, we have reaffirmed the importance in our
constitutional scheme of the separation of governmental powers into
the three coordinate branches.
See, e.g., Bowsher v.
Synar, 478 U.S. at
478 U. S. 725 (citing
Humphrey's Executor, 295
U.S. [602], at
295 U. S. 629-630 (1935)).
As we stated in
Buckley v. Valeo, 424 U. S. 1
(1976), the system of separated powers and checks and balances
established in the Constitution was regarded by the Framers as
'self-executing safeguard against the encroachment or
aggrandizement of one branch at the expense of the other.'
Id. at
424 U. S. 122. We have not
hesitated to invalidate provisions of law which violate this
principle.
See id. at
424 U. S.
123."
Morrison v. Olson, 487 U. S. 654,
487 U. S. 693
(1988).
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:
"It will not be denied that power is of an encroaching nature,
and that it ought to be effectually restrained from passing the
limits assigned to it."
* * * *
"The founders of our republics . . . seem never for a moment to
have turned their eyes from the danger to liberty from the
overgrown and all-grasping prerogative of an hereditary magistrate,
supported and fortified by an hereditary branch of the legislative
authority. They seem never to have recollected the danger from
legislative usurpations which, by assembling all power in the same
hands, must lead to the same tyranny as is threatened by executive
usurpations. . . . [I]t is against the enterprising ambition of
this department that the people ought to indulge all their jealousy
and exhaust all their precautions."
"The legislative department derives a superiority in our
governments from other circumstances. Its constitutional
Page 501 U. S. 274
powers being at once more extensive and less susceptible of
precise limits, it can, with the greater facility, mask under
complicated and indirect measures, the encroachments which it makes
on the coordinate departments. It is not unfrequently a question of
real nicety in legislative bodies whether the operation of a
particular measure will or will not extend beyond the legislative
sphere."
The Federalist No. 48, pp. 332-334 (J. Cooke ed.1961) (J.
Madison).
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,
276 U. S. 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. 919,
462 U. S. 91
(1983). [
Footnote 19]
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
Page 501 U. S. 275
the executive function of controlling the management of the
government-owned corporations, the Court held the statutes invalid.
Our more recent decision in
Bowsher involved a delegation
of authority to the Comptroller General to revise the federal
budget. After concluding that the Comptroller General was, in
effect, an agent of Congress, the Court held that he could not
exercise executive powers:
"To permit the execution of the laws to be vested in an officer
answerable only to Congress would, in practical terms, reserve in
Congress control over the execution of the laws. . . . The
structure of the Constitution does not permit Congress to execute
the laws; it follows that Congress cannot grant to an officer under
its control what it does not possess."
Bowsher, 478 U.S. at
478 U. S.
726.
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. [
Footnote 20]
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
Page 501 U. S. 276
court was satisfied that the power exercised by the Board of
Review over "key operational decisions is quintessentially
executive." 286 U.S.App.D.C. at 342, 917 F.2d at 56. We need not
agree or disagree with this characterization by the Court of
Appeals to conclude that the Board of Review's power is
constitutionally impermissible. If the power is executive, the
Constitution does not permit an agent of Congress to exercise it.
If the power is legislative, Congress must exercise it in
conformity with the bicameralism and presentment requirements of
Art. I, § 7. In short, when Congress
"[takes] action that ha[s] the purpose and effect of altering
the legal rights, duties, and relations of persons . . . outside
the Legislative Branch,"
it must take that action by the procedures authorized in the
Constitution.
See Chadha, 462 U.S. at
462 U. S.
952-955. [
Footnote
21]
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."
[
Footnote 22] Admittedly,
Congress imposed its will on the regional authority created by the
District of Columbia and the Commonwealth of Virginia by means that
are unique,
Page 501 U. S. 277
and that might prove to be innocuous. However, the statutory
scheme challenged today provides a blueprint for extensive
expansion of the legislative power beyond its constitutionally
confined role. Given the scope of the federal power to dispense
benefits to the States in a variety of forms and subject to a host
of statutory conditions, Congress could, if this Board of Review
were valid, use similar expedients to enable its Members or its
agents to retain control, outside the ordinary legislative process,
of the activities of state grant recipients charged with executing
virtually every aspect of national policy. As James Madison
presciently observed, the legislature
"can, with greater facility, mask under complicated and indirect
measures the encroachments which it makes on the coordinate
departments."
The Federalist No. 48, at 334. Heeding his warning that
legislative "power is of an encroaching nature," we conclude that
the Board of Review is an impermissible encroachment. [
Footnote 23]
The judgment of the Court of Appeals is affirmed.
It is so ordered.
[
Footnote 1]
Metropolitan Washington Airports Act of 1986, 100 Stat. 3341, 49
U.S.C. App. §§ 24512461 (Transfer Act).
[
Footnote 2]
"Of the three airports, National, as the Nation's 14th busiest
airport (1983), handles by far the most traffic. In 1983, these
airports handled passenger volumes of: National, 14.2 million;
Dulles, 2.9 million; and BWI, 5.2 million. Other measures of
airport activity also indicate a much greater activity level at
National. On a combined basis, the [airports] earned the Federal
Government a profit of $11.4 million. This profit, however, is
entirely the result of activity at National, as Dulles consistently
operates at a deficit. BWI, which not long ago operated at a loss,
is now a consistent moneymaker for Maryland."
CRS Report 2.
[
Footnote 3]
"There is no question that the daily management of the airports
by the Metropolitan Washington Airports unit of FAA has been
excellent. However, inclusion of the airports in the unified
Federal budget has generally stymied most efforts to improve or
expand facilities at either airport to keep pace with the growing
commercial and air travel needs of the Washington area. No major
capital projects have been financed at either airport from Federal
appropriations since the construction of Dulles in the early
1960's. Given the continuing need to limit federal expenditures to
reduce Federal deficits, it is unlikely that any significant
capital improvements could be undertaken at the airports in the
foreseeable future."
S.Rep. No. 99-193, p. 2 (1985).
[
Footnote 4]
"Two of the suggestions made by the staff would present
substantial constitutional problems. The first of these proposals
would create a 'Federal Board of Directors,' consisting of three
members of the House, appointed by the Speaker, three members of
the Senate, appointed by the President
pro tempore, and
the Comptroller General. As proposed, this Federal Board would
clearly be unconstitutional. In reality, the Federal Board would be
no more than a committee of Congress plus the Comptroller General
-- who is clearly a legislative officer. This committee would be
authorized by the bill to veto certain types of actions otherwise
within the Airports Authority's power under applicable state law.
In the absence of the Federal Board, the Airports Authority could
implement those decisions without further review or approval.
Disapproval by the Federal Board of a particular action would thus
have 'the purpose and effect of altering the legal rights, duties,
and relations of persons . . . outside the Legislative Branch,'
INS v. Chadha, 462 U. S. 919,
462 U. S.
952 (1983), and would plainly be legislative action that
must conform to the requirements of Article 1, section 7 of the
Constitution: passage by both Houses and approval by the President.
Id. at
462 U. S. 954-955. Congress
cannot directly vest the Federal Board with authority to veto
decisions made by the Airports Authority any more than it can
authorize one House, one committee, or one officer to overturn the
Attorney General's decision to allow a deportable alien to remain
in the United States, to reject rules implemented by an executive
agency pursuant to delegated authority, to dictate mandatory budget
cuts to be made by the President, or to overturn any decision made
by a state agency."
App. 26-27 (footnotes omitted).
[
Footnote 5]
"The board of directors shall be subject to review of its
actions and to requests, in accordance with this subsection, by a
Board of Review of the Airports Authority. Such Board of Review
shall be established by the board of directors and shall consist of
the following, in their individual capacities, as representatives
of users of the Metropolitan Washington Airports:"
"(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).
[
Footnote 6]
"The following are the actions referred to in subparagraph
(A):"
"(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).
[
Footnote 7]
"An action disapproved under this paragraph shall not take
effect. Unless an annual budget for a fiscal year has taken effect
in accordance with this paragraph, the Airports Authority may not
obligate or expend any money in such fiscal year, except for (i)
debt service on previously authorized obligations, and (ii)
obligations and expenditures for previously authorized capital
expenditures and routine operating expenses."
§ 2456(f)(4)(D).
[
Footnote 8]
"The Board of Review may request the Airports Authority to
consider and vote, or to report, on any matter related to the
Metropolitan Washington Airports. Upon receipt of such a request
the Airports Authority shall consider and vote, or report, on the
matter as promptly as feasible."
§ 2456(f)(5).
[
Footnote 9]
"Any action of the Airports Authority changing, or having the
effect of changing, the hours of operation of or the type of
aircraft serving either of the Metropolitan Washington Airports may
be taken only by regulation of the Airports Authority."
§ 2456(g).
[
Footnote 10]
"If the Board of Review established under subsection (f) of this
section is unable to carry out its functions under this subchapter
by reason of a judicial order, the Airports Authority shall have no
authority to perform any of the actions that are required by
paragraph (f)(4) of this section to be submitted to the Board of
Review."
§ 2456(h).
[
Footnote 11]
The District Court also rejected the arguments that the case was
not ripe for review, and that plaintiffs had failed to exhaust
administrative remedies. 718 F. Supp. at 979-980.
[
Footnote 12]
Rule 12.4 provides that
"[a]ll parties to the proceeding in the court whose judgment is
sought to be reviewed shall be deemed parties in this Court, unless
the petitioner notifies the Clerk of this Court in writing of the
petitioner's belief that one or more of the parties below has no
interest in the outcome of the petition. . . . All parties other
than petitioners shall be respondents. . . ."
Even though the United States is technically a respondent under
Rule 12.4, we shall use the term "respondents" to refer solely to
plaintiffs.
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 the 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.
[
Footnote 13]
In the lower courts, petitioners also challenged this action on
ripeness grounds. Although petitioners do not press this issue on
appeal, it concerns our jurisdiction under Article III, so we must
consider the question on our own initiative.
See Liberty Mutual
Ins. Co. v. Wetzel, 424 U. S. 737,
424 U. S. 740
(1976). We have no trouble concluding, however, that a challenge to
the Board of Review's veto power is ripe even if the veto power has
not been exercised to respondents' detriment. The threat of the
veto hangs over the Board of Directors like the sword over
Damocles, creating a "here-and-now subservience" to the Board of
Review sufficient to raise constitutional questions.
See
Bowsher v. Synar, 478 U. S. 714,
478 U. S. 727,
n. 5 (1986).
[
Footnote 14]
"The Congress finds that --"
* * * *
"(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.
[
Footnote 15]
Thus, whether or not the statute gives the Airports Authority
formal appointment and removal power over the Board of Review is
irrelevant. Also irrelevant for separation of powers purposes is
the likelihood that Congress will discipline Board members by
depriving them of Committee membership.
See Bowsher, 478
U.S. at
478 U. S. 730
(rejecting relevance of likelihood that Congress would actually
remove the Comptroller General). The dissenting judge on the Court
of Appeals suggested that a constitutional problem could be avoided
by reading the statute's requirement that Board members be members
of particular congressional committees as applying only at the time
of appointment.
See 286 U.S.App.D.C. 334, 347, 917 F.2d
48, 61 (1990) (Mikva, J., dissenting). We do not dispute that
statutes should be interpreted, if possible, to avoid
constitutional difficulties.
See, e.g., Edward J. DeBartolo
Corp. v. Florida Gulf Coast Building & Construction Trades
Council, 485 U. S. 568,
485 U. S. 575
(1988). However, the statutory language unambiguously requires that
the Board of Review "shall consist" of members of certain
congressional committees. The Transfer Act cannot fairly be read to
impose this requirement only at the time of appointment.
[
Footnote 16]
Petitioners and the United States both place great weight on the
fact that the Framers at the Constitutional Convention expressly
rejected a constitutional provision that would have prohibited an
individual from holding both state and federal office. Brief for
Petitioners 15; Brief for United States 21-23. The Framers
apparently were concerned that such a prohibition would limit the
pool of talented citizens to one level of government or the other.
See 1 M. Farrand, Records of the Federal Convention of
1787, pp. 221, 217, 386, 389, 428-429 (1911). Neither Petitioners
nor the United States, however, point to any endorsement by the
Framers of offices that are nominally created by the State but for
which concurrent federal office is a prerequisite.
[
Footnote 17]
U.S.Const., Art. IV, § 3, cl. 2 provides in relevant part:
"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."
[
Footnote 18]
U.S.Const., Amdt. 21 provides:
"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."
[
Footnote 19]
"As we emphasized in Chadha, when Congress legislates, when it
makes binding policy, it must follow the procedures prescribed in
Article I. Neither the unquestioned urgency of the national budget
crisis nor the Comptroller General's proud record of
professionalism and dedication provides a justification for
allowing a congressional agent to set policy that binds the Nation.
Rather than turning the task over to its agent, if the Legislative
Branch decides to act with conclusive effect, it must do so through
a process akin to that specified in the fallback provision --
through enactment by both Houses and presentment to the
President."
Bowsher v. Synar, 478 U. S. 714,
478 U. S.
757-759 (1986) (STEVENS, J. concurring in the
judgment).
[
Footnote 20]
"If Congress were free to delegate its policymaking authority to
one of its components, or to one of its agents, it would be able to
evade 'the carefully crafted restraints spelled out in the
Constitution.'
Id. at
462 U. S.
959"
Bowsher, 478 U.S. at
478 U. S. 755
(STEVENS, J., concurring in the judgment).
[
Footnote 21]
The Constitution does permit Congress or a part of Congress to
take some actions with effects outside the Legislative Branch by
means other than the provisions of Art. 1, § 7. These include at
least the power of the House alone to initiate impeachments, Art.
1, § 2, cl. 5; the power of the Senate alone to try impeachments,
Art. 1, § 3, cl. 6; the power of the Senate alone to approve or
disapprove Presidential appointments, Art. II, § 2, cl. 2; and the
power of the Senate alone to ratify treaties, Art. II, § 2, cl. 2.
See also Art. II, § 1, and Amdt. 12 (Congressional role in
Presidential election process); Art. V (Congressional role in
Amendment process). Moreover, Congress can, of course, manage its
own affairs without complying with the constraints of Art. I, § 7.
See Chadha, 462 U.S. at
462 U. S. 954,
n. 16 (1983);
Bowsher, 478 U.S. at
478 U. S.
753-756 (STEVENS, J., concurring).
[
Footnote 22]
"While the Constitution diffuses power the better to secure
liberty, it also contemplates that practice will integrate the
dispersed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but
reciprocity."
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.
S. 579,
343 U. S. 635
(1952) (concurring opinion).
[
Footnote 23]
Because we invalidate the Board of Review under basic separation
of powers principles, we need not address respondents' claim that
Members of Congress serve on the Board in violation of the
Incompatibility and Ineligibility Clauses.
See U.S.Const.,
Art. 1, § 6. We also express no opinion on whether the appointment
process of the Board of Review contravenes the Appointments Clause,
U.S.Const., Art. 11, § 2, cl. 2.
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
Page 501 U. S. 278
the arrangement which the Court invalidates. These efforts are
untenable, because they violate the
"'cardinal principle that this Court will first ascertain
whether a construction of [a] statute is fairly possible by which
the [constitutional] question may be avoided.'"
Ashwander v. TVA, 297 U. S. 288,
297 U. S. 348
(1936) (Brandeis, J., concurring), (quoting
Crowell v.
Benson, 285 U. S. 22,
285 U. S. 62
(1932)). They are also untenable because the Court's separation of
powers cases in no way compel the decision the majority
reaches.
I
For the first time in its history, the Court employs separation
of powers doctrine to invalidate a body created under state law. T
he 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
501 U. S. 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, 49
U.S.C. App. § 2456(f)(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.
A
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. [
Footnote 2/1] These enactments
Page 501 U. S. 279
expressly declared that the Authority would be a "public body
corporate and politic . . . independent of all other bodies" with
such powers as "conferred upon it by the legislative authorities of
both the Commonwealth of Virginia and the District." 1985 Va. Acts,
ch. 598, § 2; 1985 D.C.Law 6-67, § 3. The Transfer Act acknowledged
that the authority was to have only "the powers and jurisdiction as
are conferred upon it jointly by the legislative authority of the
Commonwealth of Virginia and the District of Columbia," § 2456(a),
and was to be "independent of the . . . Federal Government," 49
U.S.C. App. § 2456(b)(1). Under the Transfer Act, the Secretary of
Transportation and the Authority negotiated a lease that defined
the powers and composition of the Board to be established. Lease,
Art. 13,
see App. to Pet. for Cert. 175a-176a. Even then,
the Board could not come into existence until the state-created
Authority adopted bylaws establishing it. Bylaws, Art. IV,
see App. to Pet. for Cert. 151a-154a. To allay any doubt
about the Board's provenance, both Virginia and the District
amended their enabling legislation to make explicit the Authority's
power to establish the Board under state law.
See 1987
Va.Acts, ch. 665, § 5, subd. A, par. 5; 1987 D.C.Law 7-18, §
3(c)(2).
The specific features of the Board are consistent with its
status as a state-created entity. As the Airports Act and
Page 501 U. S. 280
the lease contemplated, the bylaws provide that the Board
consist of nine Members of Congress whom the Board of Directors
would appoint. 49 U.S.C. App. § 2456(f)(1); Lease, Art. 13A, App.
to Pet. for Cert. 175a; Bylaws, Art. IV, § 1, App. to Pet. for
Cert. 151. But, again as contemplated by both the Transfer Act and
lease, the bylaws also make clear that the Members of Congress sit
not as congressional agents, but "in their individual capacities,"
as "representatives of the users of the Metropolitan Washington
Airports."
Id. at 151a. To ensure that the Board members
protect the interests of nationwide users, the bylaws further
provide that Members of Congress from Virginia, Maryland, and the
District of Columbia would be ineligible.
Id. at 152a.
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,
456 U. S. 75
(1982) (quoting
Piper v. Chris-Craft Industries, Inc.,
430 U. S. 1,
430 U. S. 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,
485 U. S. 575
(1988);
See Murray v. The Charming
Betsy, 2 Cranch 64,
6 U. S. 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
501 U. S. 266.
Second, "the Federal Government has a strong and continuing
interest in the efficient operation of the airports."
Id.
at 266-267. Finally, "and most significant, membership on the Board
of Review is limited to federal officials."
Ibid. In other
words, Congress, in effect, created a body that, in effect,
discharges an ongoing interest of the Federal Government
Page 501 U. S. 281
through federal officials who, in effect, serve as congressional
agents.
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 the activity," but instead looks to "practical
consequences,"
Mistretta v. United States, 488 U.
S. 361,
488 U. S. 393
(1989). This observation, however, does not give the Court a
license to supplant the careful work of the Airports 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 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.
Page 501 U. S. 282
Likewise, nothing charges the Board with oversight of any strong
and continuing interest of the Federal Government, much less with
conducting such oversight as an agent of Congress. Despite
disclaimers, the majority is quick to point to portions of the
legislative history in which various Members of Congress state
their belief that the Board would insure congressional control over
the airports.
Ante at
501 U. S.
267-268. But that is not all the legislative history
contains. Other statements support the declaration in all the
relevant enactments that Members of Congress are to sit on a
state-created body in their individual capacities to safeguard the
interests of frequent, nationwide users. On this point, Members of
the House, the Senate, and the Executive agreed. Representative
Hammerschmidt, for example, stated that the purpose of a "board of
review composed of Congressmen is . . . to protect the interests of
all users of the two airports." 132 Cong.Rec. 32143 (1986). Senator
Kassebaum contended that members of Congress could further this
purpose, since "[m]ost Members are intensely interested in the
amount of service to and from certain cities, from both National
and Dulles."
Id. at 6069. Secretary of the Treasury Dole
echoed these sentiments, testifying that "Members of Congress are
heavy users of the air transportation system." Hearing 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., 110 (1986).
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, The
Records of the Federal Convention of
Page 501 U. S. 283
1787, pp. 20-21, 217, 386, 389, 428-429 (1966 ed). As Roger
Sherman observed, maintaining a state ineligibility requirement
would amount to "erecting a Kingdom at war with itself."
Id. at 386. The historical practice of the First Congress
confirms the Conventions sentiments, insofar as several Members
simultaneously sat as state legislators and judges.
See,
e.g., Biographical Directory of the United States Congress,
1774-1989, pp. 748, 1389, 1923 (1989). As the Court has held,
actions by Members of the First Congress provide weighty evidence
on the Constitution's meaning.
Bowsher v. Synar,
478 U. S. 714,
478 U. S.
723-724 (1986). Constitutional text and history leave no
question but that Virginia and the District of Columbia could
constitutionally agree to pass reciprocal legislation creating a
body to which nonfederal officers would appoint Members of Congress
functioning in their individual capacities. No one in this case
contends otherwise.
B
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
Airports 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
Page 501 U. S. 284
501 U. S. 271.
Rather, the Court stated that Congress could exercise its spending
authority so long as the conditional grant of funds did not violate
an "
independent constitutional bar.'" Dole, supra, at
483 U. S. 209
(quoting Lawrence County v. Lead-Deadwood School Dist.,
469 U. S. 256,
469 U. S.
269-270 (1985)). Dole defined this constraint
as follows:
"[T]he 'independent constitutional bar' limitation on the
spending power is not . . . a prohibition on the indirect
achievement of objectives which Congress is not empowered to
achieve directly.
Instead, we think that the language in our
earlier opinions stands for the unexceptional proposition that the
[spending] power may not be used to induce the States to engage in
activities that would themselves be unconstitutional. Thus,
for example, a grant of federal funds conditioned on invidiously
discriminatory state action or the infliction of cruel and unusual
punishment would be an illegitimate exercise of the Congress' broad
spending power. . . . Were South Dakota to succumb to the
blandishments offered by Congress and raise its drinking age to 21,
the State's action in so doing would not violate the constitutional
rights of anyone."
483 U.S. at
483 U. S.
210-211 (emphasis added).
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
501 U. S. 271,
as opposed to principles, "the aim of which is not to protect the
States but
the whole people, from improvident laws.'"
Ibid. Nor could it. In the context of § 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,
498 U. S.
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
Page 501 U. S. 285
the Board, because separation-of-powers doctrine, ultimately,
protects the rights of the people. By this logic,
Dole
itself would have had to come out the other way, since the
Twenty-first Amendment reinstated state authority over liquor,
which, in turn, strengthened federalism, which, in turn,
theoretically protects the rights of the people no less than
separation of powers principles.
See The Federalist No.
51, p. 323 (C. Rossiter ed.1961) (J. Madison).
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 Airports 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, 483 U.S. at 483 U. S. 211
(quoting Steward Machine Co., 301 U.S. at 301 U. S.
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 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. [Footnote 2/2]
Page 501 U. S. 286
II
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
501 U. S.
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. [
Footnote 2/3]
A
Based on its faulty premise that the Board is exercising federal
power, the Court first reasons that "[if] the [Board's] power is
executive, the Constitution does not permit an
Page 501 U. S. 287
agent of Congress to exercise it."
Ante at
501 U. S. 276.
The majority does not, however, rely on the constitutional
provisions most directly on point. Under the Incompatibility and
Ineligibility Clauses, Members of Congress may not serve in another
office that is under the authority of the United States.
U.S.Const., Art. I, § 6, cl. 2. If the Board did exercise executive
authority that is federal in nature, the Court would have no need
to say anything other than that congressional membership on the
Board violated these express constitutional limitations. The
majority's failure is either unaccountable or suggests that it
harbors a certain discomfort with its own position that the Board,
in fact, exercises significant federal power. Whichever is the
case, the Court instead relies on expanding nontextual principles
as articulated in
Bowsher v. Synar, 478 U.
S. 714 (1986).
Bowsher, echoing
Springer v.
Philippine Islands, 277 U. S. 189
(1928), held that the Constitution prevented legislative agents
from exercising executive authority.
Bowsher, supra, 478
U.S. at
478 U. S. 726.
The Court asserts that the Board, again in effect, is controlled by
Congress. The analysis the Court has hitherto employed to recognize
congressional control, however, show this not to be the case.
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
478 U. S. 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,
272 U. S. 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
Page 501 U. S. 288
Board shall sit for fixed terms, but may be removed by the Board
of Directors for cause.
See Resolution No. 87-12 (June 3,
1987), App. 47-48; Resolution No. 87-27 (Sept. 2, 1987), App. 60.
This arrangement is consistent with the settled principle that "the
power of removal result[s] by a natural implication from the power
of appointing." 1 Annals of Cong. 496 (1789) (statement of Rep.
Madison).
See Carlucci v. Doe, 488 U. S.
93,
488 U. S. 99
(1988);
Myers, supra, 272 U.S. at
272 U. S.
119.
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
501 U. S. 269.
This conclusion rests on the faulty premise that the Airports 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 is that every reasonable construction must be resorted to, in
order to save a statute from unconstitutionality.'" DeBartolo
Corp., 485 U.S. at 485 U. S. 575
(quoting Hooper v. California, 155 U.
S. 648, 155 U. S. 657
(1895)); see Ashwander, 297 U.S. at 297 U. S.
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
Page 501 U. S. 289
Appropriations Committee, the House Public Works Committee, the
Senate Appropriations Committee, and the Senate Commerce, Science
and Transportation Committee, as well as an additional Member from
the House or Senate. Bylaws, Art. IV, § 4, App. to Pet. for Cert.
153a;
see Lease, Art. 13A, App. to Pet. for Cert. 175a; 49
U.S.C.App. § 2456(f)(1). The Board of Directors appoints members
from lists provided by the Speaker of the House and the President
pro tempore of the Senate. To the majority, these
provisions add up to impermissible congressional control. Our cases
point to the opposite conclusion.
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
478 U. S. 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
488 U. S. 410,
n. 31. The majority attempts to distinguish these cases by
asserting that the lists involved were merely recommendations,
whereas Board "
must " be chosen from the submitted lists
at issue here.
Ante at
501 U. S.
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
Page 501 U. S. 290
itself the appointment authority of a coequal, coordinate branch
of government.
Springer, 277 U.S. at
277 U. S. 203.
Here Congress has neither expressly nor substantively vested
appointment power in itself or appropriated appointment power
properly lodged with the President.
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
501 U. S. 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.
B
The majority alternatively suggests that the Board wields an
unconstitutional legislative veto contrary to
Chadha.
See 462 U.S. at
462 U. S.
952-955. 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
501 U. S. 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.
Page 501 U. S. 291
The Court of Appeals, however, had no doubts, concluding that
the Board's authority was "quintessentially executive." 286
U.S.App.D.C. 334, 342, 917 F.2d 48, 56 (1990). Judge Mikva, in
dissent, operated on the same assumption.
See id. at
344-347, 917 F.2d at 58-61.
Accord, 718 F.
Supp. 974 986 (DC 1989);
Federal Firefighters Association,
Local 1 v. United States, 723 F. Supp. 825, 826 (DC 1989). If
federal authority is being wielded by the Board, the lower courts'
characterization is surely correct. Before their transfer to the
Airports Authority, National and Dulles were managed by the Federal
Aviation Administration, which in turn succeeded the Civil
Aeronautics Agency.
Ante at
501 U. S. 255.
There is no question that these two agencies exercised paradigmatic
executive power, or that the transfer of the airports in no way
altered that power, which is now in the hands of the Authority. In
Chadha, by contrast, there was no question -- at least
among all but one member of the Court -- that the power over alien
deportability was legislative. 462 U.S. at
462 U. S.
951-959;
id. at
462 U. S. 976,
462 U. S.
984-989 (WHITE, J., dissenting).
But see id. at
462 U. S. 959,
462 U. S.
964-967 (Powell, J., concurring in judgment).
Chadha is therefore inapposite. Even more questionable is
reliance on
Bowsher to suggest that requirements of
bicameralism and presentment apply to the actions of a
"quintessentially executive" entity. While a concurrence in that
case explored this theory, 478 U.S. at
478 U. S. 755
(STEVENS, J., concurring in judgment), the Court never so held,
id. at
478 U. S. 732.
The Board's authority is not of an order that the Court has ever
held to be "an exercise of legislative power . . . subject to the
standards prescribed in Art. I."
Chadha, supra, 462 U.S.
at
462 U. S. 957.
The majority can make it so only by reaching past our
precedents.
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
Page 501 U. S. 292
462 U. S. 925.
Bowsher involved a situation in which congressional
control was at least arguable, since the Comptroller General
labored under numerous, express statutory obligations to Congress
itself.
See 478 U.S. at
478 U. S.
741-746 (STEVENS, J., concurring in judgment). Even
then, the Court did not adopt the theory that such control
subjected the actions of the Comptroller General to bicameralism
and presentment requirements, but instead held that Congress' power
of removal amounted to an unconstitutional intrusion on executive
authority.
Id. at
478 U. S. 727-734. Here, by contrast, the Board operates
under no obligations to Congress of any sort. To the contrary,
every relevant instrument declares that Members of Congress sit in
their "individual capacities" as "representatives of the users of
the Metropolitan Washington Airports." Bylaws, Art. IV, § 1, App.
to Pet. for Cert. 151a; Lease, Art. 13A, App. to Pet. for Cert.
175a; 49 U.S.C. App. § 2456(f)(1). There may well be instances in
which a significant congressional presence would mandate an
extension of the principles set forth in
Chadha. This
plainly is not one.
III
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
488 U. S. 384
(quoting
Bowsher, supra, 478 U.S. at
478 U. S. 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
Page 501 U. S. 293
a "blueprint for extensive expansion of the legislative power
beyond its constitutionally confined role."
Ante at
501 U. S. 277.
This view utterly ignores the Executive's ability to protect itself
through, among other things, the ample power of the veto. Should
Congress ever undertake such improbable projects as transferring
national parklands to the States on the condition that its agents
control their oversight,
see Brief for Respondents 39,
there is little doubt that the President would be equal to the task
of safeguarding his or her interests. Least of all, finally, can it
be said that the Board reflects "[t]he propensity of the
legislative department to intrude upon the rights, and to absorb
the powers, of the other departments" that the Framers feared. The
Federalist No. 73, at p. 442 (A. Hamilton). Accordingly, I
dissent.
[
Footnote 2/1]
The District of Columbia, of course, is not a State under the
Constitution.
See, e.g., 6 U. S. Ellzey,
2 Cranch 445,
6 U. S. 452-453
(1805). Nonetheless, neither respondents nor the Court of Appeals
contend that the Airports Authority is a federal entity because it
derives its authority from a delegation by the District as well as
Virginia. For the purposes of separation of powers limitations, the
power that the District delegated to the authority operates as the
functional equivalent of state or local power.
Cf. Key v.
Doyle, 434 U. S. 59,
434 U. S. 68, n.
13 (1977);
District of Columbia v. John R. Thompson Co.,
346 U. S. 100,
346 U. S. 110
(1953). This conclusion follows with additional force since the
District currently acts under "home rule" authority.
See
District of Columbia Self-Government and Governmental
Reorganization Act, Pub.L. 93-198, 87 Stat. 774 (1973). The
majority does not suggest that the Authority's partial District of
Columbia parentage furnishes a basis for subjecting the Board to
separation of powers analysis.
Ante at
501 U. S.
266.
[
Footnote 2/2]
This is not to say that Congress could condition a grant of
property on a State enactment consenting to the exercise of
federal lawmaking powers that Congress or its individual
members could not exercise consistent with Article I. We do not
have that situation here, for as explained, the Board does not
exercise federal power.
[
Footnote 2/3]
For these reasons, the Court's historical exposition is not
entirely relevant. The majority attempts to clear the path for its
decision by stressing the Framers' fear of overweaning legislative
authority.
Ante at
501 U. S.
272-274. It cannot be seriously maintained, however,
that the basis for fearing legislative encroachment has increased
or even persisted, rather than substantially diminished. At one
point, Congress may have reigned as the preeminent Branch, much as
the Framers predicted.
See W. Wilson, Congressional
Government 40-57 (1885). It does so no longer. This century has
witnessed a vast increase in the power that Congress has
transferred to the Executive.
See INS v. Chadha,
462 U. S. 919,
462 U. S.
968-974 (1983) (WHITE, J., dissenting). Given this shift
in the constitutional balance, the Framers' fears of legislative
tyranny ring hollow when invoked to portray a body like the Board
as a serious encroachment on the powers of the Executive.