Effect of INS v. Chadha on the Authority of the Secretary of Defense to Reorganize the Department of Defense Under U.S.C. § 125

Effect of INS v. Chadha on the Authority of the
Secretary of Defense to Reorganize the
Department of Defense Under U.S.C. § 125

The Secretary o f Defense retains authority under 10 U.S.C. § 125 to effect reorganizations o f all
functions o f the Department of D efense, notwithstanding the Supreme C ourt’s decision in INS
v. Chadha invalidating the legislative veto. An analysis o f the legislative history of 10 U.S.C.
§ 125 with respect to the presum ptions in favor o f severability indicates that the unconstitu­
tional veto provisions in that statute, which permitted either House o f Congress to reject a
proposed reorganization involving a “major combatant function” that would “tend to impair
the defense o f the United States,” as determ ined by its Armed Services Committee, are
severable from the delegation o f authority to the Secretary. However, the Secretary must
continue to report all reorganization plans to Congress and wait thirty days before taking
action.

April 26, 1984

M em orandum O p in io n for th e A c t in g G e n e r a l C o u n s e l ,
D epartm ent of D efen se

This memorandum responds to a request for our interpretation of the statu­
tory authority of the Secretary of Defense (Secretary) to reorganize the Depart­
ment of Defense, 10 U.S.C. § 125, notwithstanding the Supreme Court’s
decision in INS v. Chadha, 462 U.S. 919 (1983). Because the statute provides
for a one-house veto, a device held unconstitutional in Chadha, we have been
asked, specifically, to determine (1) whether the Secretary continues to have
the power to reorganize “major combatant functions,” after reporting his inten­
tions to Congress; and (2) whether the Secretary may continue to effect a
reorganization of responsibilities not involving major combatant functions,
after reporting its terms to Congress. Based on the analysis set forth below, we
have concluded that the Secretary’s statutory authority to effect reorganiza­
tions of all functions of the Department of Defense is severable from the
unconstitutional veto provision, and therefore remains effective.1 The Secre­
tary must, however, continue to report all reorganization plans to Congress and
wait thirty days before taking action.
1 O u r analysis and conclusions relate o n ly to the statutory authority granted to the Secretary in § 125(a). We
do not attem p t to resolve whether the President could delegate reorganizational authority to the Secretary as
a resu lt o f his constitutionally com m itted power as Com m ander-in-C hief.

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 I. The Statute

Section 125, part of the Department of Defense Reorganization Act of 1958,2
sets out the requirements for transfer, reassignment, consolidation, or abolition
(hereinafter collectively referred to as “reorganization”) of functions, powers
and duties assigned by law to the Department of Defense. Under the statute, the
Secretary may propose to reorganize any such functions, but must report the
details to the Committees on Armed Services of both the Senate and the House.
10 U.S.C. § 125(a). The reorganization becomes effective following thirty days
of continuous session after the report is made unless either committee, before
that time, has reported to its respective House a resolution rejecting the plan. A
committee may report a resolution to reject the proposal only if the proposal
involves reorganization of a “major combatant function,” as determined by the
committee,3 and would, in the committee’s judgment, “tend to impair the
defense of the United States.” Id. Once a resolution of disapproval is reported
by one of the two committees, the affected House has an additional forty days
in which to adopt the resolution. If the resolution of disapproval is not adopted,
the reorganization goes into effect on the forty-first day following the
committee’s report.
Three types of reorganizations need not be reported to the committees. The
President may make temporary reorganizations during hostilities, for which no
report is required. Id. § 125(c). Additionally, the Secretary is explicitly autho­
rized to assign or reassign (but not to abolish) responsibility for developing and
operating new weapons or weapons systems. If the plan involves substantial
reduction or elimination of a major weapons system, however, the proposed
action must be reported to Congress. Id. No veto mechanism is involved.
Finally, the statute excludes from both the reporting requirement and the veto
power the transfer of supply or service activities common to more than one
military department. Id. § 125(d).
In short, all reorganizations, except the three just mentioned, must be re­
ported to the two Armed Services Committees of Congress. Unless the reorga­
nization involves major combatant functions, however, the committees have no
authority to recommend, nor the Houses to implement, a veto of the plan.

II. Constitutionality

In INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court struck down the
one-house veto as an unconstitutional exercise of legislative power. Relying on

2 Ch. 412, 63 Stat. 514 (1958).
3 “C om batant functions” are described at 10 U .S.C . §§ 3062(b), 5012, 5013, 8062(c). These provisions set
forth the responsibilities for m aintaining armed forces in the D epartm ent of the Army, the D epartm ent o f the
Navy, the M arine C orps, and the A ir Force, respectively. The distinction betw een com batant and non-
com batant functions w as described by R epresentative Vinson, Chairman o f the House Armed Services
C om m ittee, as the difference between the fighting capacity o f a service and its business functions, such as
purchasing o f food, furnishing o f m edical services, and running o f Post exchanges. 104 C ong. Rec. 10891
(1958).

83
the significance accorded by the Framers of the Constitution to the legislative
procedures of bicameral passage and presentment of legislation to the President
for signature or veto, the Court held that any legislative action, if not specifi­
cally exempted in the Constitution itself, must comply with the procedures
articulated in the Presentment Clauses, U.S. Const, art. I, § 7, els. 2,3.462 U.S.
at 946-51. The test devised in Chadha for identifying legislative action is
whether the action has the effect of “altering the legal rights, duties and
relations of persons, including . .. Executive Branch officials . . ., outside the
legislative branch.” Id. at 952. If the action constitutes an exercise of “legisla­
tive power,” then the constitutional procedures of bicameral passage and
presentment must be observed.
Section 125(a) authorizes two actions the constitutionality of which is af­
fected by Chadha. First, it permits the Armed Services Committees of both
Houses to determine what functions are “major combatant functions” and
whether a proposed reorganization will “tend to impair the defense of the
United States.” Second, the statute permits either House to prevent a reorgani­
zation by passing a resolution disapproving it.
The first of these actions effectively empowers a committee of Congress
either to approve a plan submitted by the Secretary or to take preliminary steps
to postpone or defeat it. The committee is directed to use its own discretion to
distinguish between “major” combatant functions and others and to make
decisions regarding the defense of the United States. Thus the Secretary’s
statutory right to effect reorganizations and their timing are entirely contingent
upon the committee’s judgment as to whether the veto mechanism should be
invoked. This function of the committee affects the rights, duties and relations
of Executive Branch officials by subjecting the Secretary’s plan to a possible
one-house resolution and by triggering an additional forty-day continuous
session waiting period during which the proposed action is suspended. The
committee discretion authorized by § 125 is a legislative action, which must be
accomplished, if at all, through the plenary legislative process.
The one-house veto authorized by the statute has the effect of nullifying the
statutory discretion of the Secretary or reversing the exercise of that discretion,
and thus alters the rights and relations of Executive Branch officials. This veto
procedure, effected through the device of a one-house resolution, is precisely
the kind of mechanism that the Supreme Court struck down in Chadha. As will
be shown below, it was devised explicitly for the purpose of circumventing the
plenary legislative process. This purpose is further evidence that the one-house
action is legislative in character.
Finally, neither the committee action nor the one-house action authorized by
§ 125(a) falls among the exemptions from bicameral passage and presentment
expressed clearly and unambiguously in the Constitution. See 462 U.S. at 955
(listing four constitutional provisions authorizing one-house action). Thus,
both the committee suspension provision and the one-house veto device of
§ 125 are prohibited under INS v. Chadha.
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 III. Severability
A. Presumptions

The Secretary’s statutory authority to reorganize combatant and non-com­
batant functions, notwithstanding the unconstitutionality of the veto mecha­
nism, depends upon whether the delegation of power to do so under § 125 is
severable from the unconstitutional provisions contained in the statute.
The severability of an unconstitutional provision from the rest of a statute
presents a question of legislative intent: would Congress have wished the
remainder of the statute to continue in effect had it recognized that the provi­
sion was unconstitutional? See D orchy v. Kansas, 264 U.S. 286, 290 (1924).
“Unless it is evident that the Legislature would not have enacted those provi­
sions which are within its power, independent of that which is not,” the invalid
portion should be severed and the remaining statutory authority upheld. INS v.
Chadha, 462 U.S. at 932 (citations omitted; emphasis added).
The Supreme Court thus expressed a presumption that constitutional provi­
sions survive the excision of unconstitutional provisions, absent clear congres­
sional intent to the contrary. The Court in Chadha declared that a further
presumption of severability is accorded any statute that contains a severability
clause. 462 U.S. at 932. Finally, the Court recognized a third important pre­
sumption in favor of severability: a provision is “presumed severable if what
remains after severance ‘is fully operative as a law.’” Id. at 934 (quoting
Champlin Refining Co. v. Corporation Com m ’n, 286 U.S. 210, 234 (1932)).
Identifying a severability clause that is specifically applicable to § 125 is a
rather complicated endeavor. When this section was enacted as part of the
Department of Defense Reorganization Act of 1958, that Act did not contain a
severability clause. The National Security Act of 1947, however, which the
1958 Act amended, originally contained a severability clause. Ch. 343,61 Stat.
509 (1947). Moreover, the Act which codified the National Security Act into
positive law in 1956 also included a severability clause:
If a part of this Act is invalid, all valid parts that are severable
from the invalid part remain in effect. If a part of this Act is
invalid in one or more of its applications, the part remains in
effect in all valid applications that are severable from the invalid
applications.4
We believe that this severability clause applies to the reorganization section at
issue because of that section’s status as an amendment to the National Security
Act of 1947. Generally an amended statute is to be understood in the same
sense as if it had been composed originally in its amended form.5 B lair v.
4 A ct of Aug 10, 1956, ch. 1041, § 49, 70A Stat. 640. The 1956 A ct repealed all sections o f the 1947 Act
that were covered by the provisions newly codified. Id. § 53, 70A Stat at 641.
5 The reorganization section, originally codified as 5 U .S.C § 171a, was transferred to Title 10 in 1962.
Pub. L. No. 8 7 -6 5 1 , title II, § 201(a), 76 Slat. 515 (1962). Congress at that tim e did not intend to make any
substantive changes in the statute. S. Rep. No. 1876,87th C o n g , 2d Sess. 6, reprinted in 1962 U.S.C C.A.N. 2456.

85
 Chicago, 201 U.S. 400, 475 (1906). Under Chadha, the severability clause
creates an additional presumption of severability, which can be overcome only
if legislative history demonstrates, clearly and unmistakably, that Congress
would not have delegated the authority at issue if it had known that the veto
mechanism was unconstitutional. See 462 U.S. at 932.
The third presumption, arising when what remains after severance is “fully
operative as a law,” is also applicable in the present circumstances. Without the
legislative veto, which applies only to reorganizations of combatant functions,
the Secretary’s statutory power to reorganize combatant functions would oper­
ate just as his powers over non-combatant functions have operated. Thus any
reorganization plan would be reported to the Armed Services Committees of
both Houses, as specified in § 125, and would take effect after thirty days of
continuous session if no preventative legislation were passed. The Secretary
would be empowered to reorganize all statutory functions in the manner now
prescribed for non-combatant functions alone — a report-and-wait scheme like
the one upheld in Chadha. Id. at 935 & n.9.

B. L egislative H istory

In assessing the effect of the various presumptions in the context of § 125,
legislative history is the guide to congressional intent. During consideration of
the Department of Defense Reorganization Act of 1958, Congress explicitly
addressed the issue of how much control it wished to retain over the Secretary’s
exercise of delegated reorganization authority, but it did not allude to the
possibility that the one-house veto might be an impermissible means for
effecting this control. Rather, Congress appears to have considered three
options: to maintain the then-existing scheme under which the Secretary had no
statutory power to reorganize combatant functions, to permit these reorganiza­
tions in the unrestricted discretion of the Secretary subject only to a report-and-
wait obligation, or to grant the reorganization power while retaining control
over its exercise through some form of a congressional veto mechanism.
Congress chose the last of these three options.
Before the 1958 amendments were passed, separate statutory sections gov­
erned the reorganization of non-combatant functions and combatant functions.
The National Security Act of 1947, as amended, provided that all authorized
functions of the Department o f Defense other than combatant functions could
be reorganized if a report was submitted in advance to the Armed Services
Committees.6 Combatant functions, however, with no further delineation made
between “major” and “minor,” could not be reorganized at all under the
statute.7
The provision that finally became law as § 125 represented a compromise
among the various stances urged by the President, the House, and the Senate,

‘ N ational Security A ct o f 1947, § 202(c)(1), as am ended, ch. 412, 63 Stat. 580 (1949).
’ N ational S ecurity A ct o f 1947, § 202(c)(5), as am ended, ch. 412, § 5, 63 Stat. 580 (1949).

86
respectively. Under a bill submitted by the President,8 the Secretary of Defense
would have had the ability to reorganize all functions, including combatant
functions, thirty days after making a report to the Committees on Armed
Services. Congress could have prevented a proposed reorganization only by
plenary legislation presented to the President for signature.9
The House Committee on Armed Services criticized the bill on the ground
that the President could be expected to veto any legislation that sought to
prevent a reorganization proposed by the Secretary. The House anticipated that
a two-thirds majority of each House would have been required to override a
Presidential veto and prevent any reorganization.10 “Here the Committee on
Armed Services was faced with one of its most difficult problems: how to
retain its constitutional responsibility11 and at the same time give the Secretary
of Defense the necessary flexibility to take action in the interests of economy
and efficiency that would not impinge upon the responsibilities of the
Congress.”12
The House solution to its dilemma was a bill authorizing the Secretary to
reorganize any non-combatant function by notifying Congress and waiting
thirty days. Combatant functions, however, could be reorganized only after the
Secretary had consulted with the Joint Chiefs of Staff, reported to Congress and
waited thirty days. If objection were raised by any of the Joint Chiefs of Staff,
a combatant function would become a “major” combatant function. The bill
permitted Congress to prevent the reorganization of a major combatant func­
tion by adopting a concurrent resolution opposing the Secretary’s plan.13 Thus,
under the House bill, congressional prevention of “minor” combatant and non-
combatant reorganizations would have required enactment of a law and Presi­
dential approval or a two-thirds vote in each House overriding the President,
while a legislative veto of “major” combatant reorganizations would have
required only opposition by a simple majority of each of the Houses of
Congress. In the words of the House Report,
The committee does not believe that it could give to the Secre­
tary of Defense, or any member of the executive branch of the
Government, the right to abolish, consolidate, transfer or reas­
sign a major combatant function by simply notifying the Con­
gress and then waiting 30 days. Such a grant of authority on the
part of the Congress to the executive branch of the Government

'H .R . 11958, 85th Cong., 2d Sess. (1958).
9 Report o f the H ouse Com m ittee on Armed Services, H.R. Rep. No. 1765, 85th Cong., 2d Sess. 12 (1958)
(House Report).
10M. at 12.
11 W e assum e that this reference to “constitutional responsibility” relates to C ongress’ A rticle 1 powers to
raise and support arm ies, to provide and m aintain a navy, and to make rules for the governm ent of the land
and naval forces. U .S. Const, art. 1., § 8, els. 12-15. Legislative history does not reveal w hether the asserted
responsibility was view ed as extending beyond the legislation necessary merely to constitute and to fund the
arm ed forces.
12 H ouse Report, supra , at 12-13.
,3/d. at 13.

87
 would constitute a complete surrender of a Constitutional re­
sponsibility imposed upon the Congress.14
The Senate amendment to the House bill, substantially enacted in § 125,
provided that all reorganizations must be reported to the two Armed Services
Committees and would take effect after thirty days of continuous session.15
Either committee could report a resolution to its house recommending that the
proposal be rejected if, in the judgment of the committee, the plan involved a
“major combatant function” and “would impair the defense of the United
States.” After a committee had reported such a resolution of disapproval to its
house, that house had forty additional days in which to adopt it by simple
majority vote. The resolution of either house would defeat the Secretary’s
proposal.16
In conference, the House conferees agreed to the Senate amendment with
three modifications not here relevant.17 In the view of the Conference Commit­
tee, “the provision agreed to with respect to combatant functions recognizes the
responsibility of the Congress as provided in the Constitution of the United
States. It preserves to the Congress its prerogative of making the final determi­
nation as to the military needs and requirements of our Nation.”18
Thus, both the House and the Senate appear to have agreed that reorganiza­
tion of major combatant functions, albeit with somewhat different defini­
tions,19 required some type of legislative control. Additionally, they agreed that
some alteration of the prior statutory scheme was necessary to provide flexibil­
ity to the Secretary.

C. A nalysis

Chadha instructs that the severability question is to be resolved by determin­
ing whether Congress intended the remainder of an act to stand if any particular
provision were held invalid. 462 U.S. at 931-32. The severability clause, of
course, attests to this intention. See Consumer Energy Council o f America v.
FERC, 673 F.2d 425, 441 (D.C. Cir. 1982), a f f d sub nom. Process Gas
Consum ers Group v. Consumer Energy Council o f America, 463 U.S. 1216

14 H ouse R eport, supra, at 14.
13 R eport o f the Senate Committee on Armed Services, S. Rep. N o 1845, 85th Cong., 2d Sess 6-7,
reprinted in 1958 U .S.C.C.A.N . 3272, 3278 (Senate Report).
16 The reason for the Senate’s revision o f the method for determ ining “ m ajor” com batant functions was that
it believed no m ilitary official should h av e the pow er to delay a Presidential decision; rather, a com m ittee of
C ongress should perform that function. 104 Cong. Rec. 14263 (1958) (statem ent o f Sen. Kefauver).
17 H .R . C onf. Rep. No. 2261, 85th C ong., 2d Sess. 1 3 -1 4 , reprinted in 1958 U .S.C.C.A.N. 3272, 3284
(C onference R eport). The modifications included a provision covering functions “now or hereafter” assigned
to the m ilitary services; an insertion o f the w ords “tend to ” in the phrase “would im pair the defense o f the
U nited States” as a ground fo r committee recom m endation o f disapproval; and an addition o f words to clarify
that a resolution o f disapproval of eith er H ouse would require only a sim ple majority. Id.
18 C onference Report, supra, at 14, reprinted in 1958 U .S.C.C A.N. at 3284-85.
19 Compare H ouse R eport, supra, at 13 (com batant function becom es “ major” if proposal objected to by
Jo in t C hiefs o f Staff) with Senate R eport, supra, at 5 -6 , reprinted in 1958 U S.C.C A.N at 3276 (“major
com batant functions” to be determined by Armed Services C om m ittees).

88
(1983). A presumption of severability is not lightly overcome, Carter v. Carter
Coal Co., 298 U.S 238, 312 (1936), particularly in light of the Chadha Court’s
delineation of three separate sources for such a presumption.
Under the Chadha discussion of severability, there are three possible inter­
pretations of the current effect of § 125: First, it is possible that all of § 125(a)
is invalid and the Secretary has no power to reorganize any of the functions
embraced by § 125(a), combatant and non-combatant alike. This conclusion
would be required if the statute were not severable at all and the entire grant of
authority contained in § 125(a) could no longer be given effect. Second, only
the delegation of authority which the statute subjects to a one-house veto would
fall, meaning that the Secretary no longer has any power to reorganize major
combatant functions, but retains such authority with respect to all other func­
tions. Such a reading would be the consequence of concluding that the uncon­
stitutional legislative veto is severable from the grant of authority not subject to
that veto, but is not severable from the grant of authority directly controlled by
the veto. The third possibility is that the grant of reorganization authority
stands, requiring only a report to Congress and a thirty-day wait for any
reorganization to take effect. This interpretation would be the result of finding
that only the legislative veto need be stricken and that the remainder of the
statute is unaffected.
As we have already noted, Congress distinguished between the two different
types of reorganizations contained in § 125: those that involve combatant
functions and those that do not. The former are subject to a committee recom­
mendation of disapproval; the latter are not. Under § 125(a) a proposal to effect
a non-combatant reorganization simply becomes effective thirty days after the
Secretaiy reports the plan to Congress. The provision as written provides a
workable report-and-wait scheme for non-combatant functions entirely unre­
lated to the unconstitutional veto device. With respect to reorganizations of
non-combatant functions, we have found no clear evidence of a legislative
intent which would overcome the presumptions of severability. To the con­
trary, the structure of the statute is entirely consistent with severability.
The history of this section lends additional support for the distinct consider­
ation of combatant and non-combatant functions, despite the current associa­
tion of the two in § 125(a). As discussed above, separate statutory sections
governed the reorganization of the two classes of functions before 1958. When,
in 1958, the President requested report-and-wait authority for all reorganiza­
tions, Congress granted that request in part by readopting the report-and-wait
scheme for non-combatant reorganizations. Both the House and Senate bills,
although disagreeing on other aspects of the new plan, contained identical
treatment of the power to reorganize non-combatant functions. This provision
provoked no apparent controversy.
Thus, to strike all of § 125(a) as not severable from the unconstitutional veto
provision would withdraw from the Secretary powers he enjoyed even before
the addition of the legislative veto over combatant reorganizations in 1958.
Congress gave no indication that its reenactment of the non-combatant reorga­
89
nization power was in any way dependent upon the enactment of the separate
veto governing combatant functions. We therefore conclude that to strike the
entire delegation of authority is not warranted.
The second possible interpretation of § 125(a), which would sever the power
to reorganize non-combatant or “minor” combatant functions, but not the
power to reorganize major combatant functions, is impeded somewhat by the
phrasing of the statute. As § 125(a) now reads, abbreviated for clarity:
a function . .. may not be substantially [reorganized] unless the
Secretary reports the details . . . to the Committees on Armed
Services of the Senate and House of Representatives. The [reor­
ganization] takes effect. . . after. . . 30 days . . . unless either of
those Committees, within that period, reports a resolution rec­
ommending that the [proposal] be rejected . . . because it . . .
proposes to reorganize a major combatant function... and would, in
its judgment, tend to impair the defense of the United States.
The manner in which Congress chose to word the statute makes differentiation
between combatant and non-combatant reorganizations somewhat difficult
mechanically. However, this problem could be overcome, because the legisla­
tive history seems to support a conclusion that Congress designed the statute
for efficiency of words and not because it intended both types of reorganization
to fail if the disapproval procedure regarding combatant reorganizations failed.
A more serious barrier to this interpretation lies in an additional constitu­
tional problem implicit in the committee’s channeling function described above.
If the Secretary were to retain only the power to reorganize noncombatant and
“minor” combatant functions, he would nonetheless be required to report all plans
to the Armed Services Committees and to wait thirty days before implementing
them. Combatant functions are defined by statute. The statute offers no guidance,
however, for breaking down the “combatant” category into “major” and “minor.”
This determination is vested by § 125(a) in the sole discretion of the committees.
Thus, under this interpretation, if the Secretary were to submit a plan
believed by him to contemplate the reorganization of “minor” combatant
functions not impairing the national defense and thus within his power, his
characterization of the plan would be subject to review and revision by the
committees. If they disagreed with the Secretary’s characterization, the com­
mittees’ contrary characterization would have the effect of nullifying autho­
rized Executive Branch actions. The committees, by hypothesis, would decide
whether the particular power at issue fell within the portion of authority that
had been stricken or within the portion that had been retained by the Secretary.
This action of reviewing and revising is foreclosed by Chadha because it
constitutes the exercise of legislative power, which may only be accomplished
in the manner prescribed for legislation by the Constitution.20
20 A lternatively, a com m ittee’s in terpretation and enforcem ent o f statutory directives could be viewed as an
ex ercise o f executive pow er, which th e Suprem e C ourt has held to be reserved to officers o f the U nited States
C ontinued

90
 Under this interpretation, therefore, the committees would not act merely as
agents of Congress to receive executive reports pursuant to a valid report-and-
wait procedure. Rather, they would hold discretionary and legislative powers
unconstitutionally delegated to them by § 125(a). The committees’ unconstitu­
tional role in reviewing the Secretary’s decisions precludes any interpretation
of the statute that preserves the distinction between “major” combatant func­
tions and others, as Congress has not chosen legislatively to define the differ­
ence. Consequently, we conclude that this interpretation is not consistent with
Chadha.
The final of the three options identified above involves severance only of the
unconstitutional veto mechanism and is consistent with the presumptions in
favor of severability. It would leave undisturbed the Secretary’s grant of
authority to reorganize all functions, subject only to a report-and-wait requirement.
In 1958, when Congress amended the National Security Act of 1947, the
Secretary’s power to reorganize the statutorily defined functions of the Depart­
ment of Defense extended only to non-combatant functions. At that time,
Congress determined that “[o]ur defense organization must be flexible; it must
be responsive to rapidly changing technologies; it must be dynamic and versa­
tile,” House Report, supra, at 2, and that the existing scheme was inadequate to
meet those articulated needs. The House and Senate Reports reveal no dis­
agreement with the proposition that the reorganization authority was in need of
expansion; rather, the disagreement focused only on the manner in which such
authority would be defined. The 1958 amendments, therefore, appear rooted in
a consensus that the Executive Branch should be given increased flexibility in
the area of defense reorganization.
As the legislative history discloses, however, Congress declined to allow the
Secretary to enjoy this flexibility completely free of committee control. Simply
severing the unconstitutional veto provision and leaving the Secretary’s reor­
ganization authority otherwise intact would, of course, effectively resurrect the
scheme urged by the President in his bill at the time that Congress was
considering the Department of Defense Reorganization Act of 1958. Both the
House21 and the Senate22 expressed dissatisfaction with such report-and-wait
authorization and preferred to retain a congressional veto for reorganizations of
combatant functions. These objections unquestionably reflect a reluctance on
the part of Congress to delegate unfettered discretion to the Secretary, given the
clearly preferable alternative of retaining some congressional control. How­
ever, “[a]lthough it may be that Congress was reluctant to delegate final
20 ( . . . continued)
appointed pursuant to A rticle II. Buckley v. Valeo, 424 U.S. 1, 141 (1976). Furtherm ore, the com m ittee's
putative authority could be construed as judicial pow er, insofar as it involves the interpretation o f the statute
and review o f executive action. This is a function reserved to the judiciary as established by A rticle III. See
Chadha, 462 U.S. at 966 (Powell, J., concurring). U nder any o f these interpretations, the com m ittee's
authority to perform this function in the m anner designated is inconsistent w ith the constitutional separation
o f powers.
21 See supra note 14 and accom panying text.
22 “The H ouse A rm ed Services C om m ittee quite rightly rejected this blank check to the adm inistration.”
104 Cong. Rec. 14263 (1958) (statem ent o f Sen. K efauver).

91
authority . . . , such reluctance is not sufficient to overcome the presumption of
severability.” Chadha, 462 U.S. at 932.
Rather, the question is “what Congress would have intended,” had it antici­
pated that the veto provision was unavailable. Consumer Energy Council o f
Am erica v. FERC, 673 F.2d 425, 442 (D.C. Cir. 1982) (emphasis in original),
a f f d sub nom. P rocess Gas Consum ers Group v. Consumer Energy Council o f
Am erica, 463 U.S. 1216 (1983). And, the presumptions all line up in favor of
severability unless there is clear evidence of legislative intent to the contrary.
In this context, we attempt to discern what Congress would have chosen to do if
it had been required to choose between the complete executive flexibility
afforded by the report-and-wait legislation on the one hand, and the complete
inflexibility of the then prevailing law on the other. Unless the evidence clearly
favors the latter interpretation, Chadha compels us to choose the former.
Because the emphasis of the 1958 deliberations was a recognized need to
remedy a flawed statutory scheme, we cannot conclude with confidence that
the legislators would have refused to make any change in that scheme even if
the only alternative had been to delegate discretion to the Secretary subject
only to advance notice to Congress and the constitutional power legislatively to
override the Secretary. Far from supporting a conclusion that Congress would
have intended the Secretary’s discretion to fall with the unconstitutional provi­
sion, the legislative history is silent on this subject. Because the courts have
determined that in the face of silence, the presumption of severability must
control,23 we conclude that the unconstitutional portions of § 125(a) are sever­
able from the delegation o f authority to the Secretary.24 The reports still
required of the Secretary will provide Congress with oversight and the opportu­
nity to exercise, through legislation, the control over reorganizations that it
sought to preserve without undermining the constitutional scheme.

23 Even in the absence o f a severability clause and in the face o f contrary statem ents by individual members
o f C ongress, the U nited States Court o f A ppeals for the Fifth C ircuit held a statute to be severable because
there was no evidence that severability w as actually considered. “M ere uncertainty about the legislature’s
intent is in su fficien t." EEOC v Hernando Bank, Inc., 724 F.2d 2053, 2058 (5th C ir 1984); accord Muller
Optical Co. v. EEOC, 574 F. Supp. 946, 953 (W D. Tenn. 1983). Contra EEOC v. Allstate Ins. Co., 32 Fair
Em pl. Prac. C as. (BN A ) 1337 (S.D. M iss. 1983) (sam e statute not severable because absence o f severability
c lau se creates presum ption against severability). Sim ilarly, the D.C C ircuit found that the provision before it
was not “ so essential to the legislative purpose that the statute w ould not have been enacted without it,”
despite som e leg islative history indicating that C ongress intended the veto provision to protect against
undesirable consequences. Consumer Energy Council o f America v. FERC, 673 F.2d 425, 443, 445 n.70
(D .C. C ir. 1982), a ff'd sub nom. Process Gas Consumers Group v. Consumer Energy Council o f America,
463 U .S. 1216 (1983). It thus rejected th e test devised by the Fourth C ircuit in McCorkle v. United States, 559
F.2d 1258, 1261 (4th C ir. 1977), cert, denied, 434 U.S. 1011 (1978), that severability is inappropriate when
the v eto restricts a grant o f power. This te st would have the effect o f m aking “all veto provisions pnm a facie
insev erab le,” Consumer Energy Council, 673 F.2d at 445 n.70, a result clearly at odds w ith the subsequently
decided Chadha case.
24 T his conclusion is facilitated by the language o f the statute itself, w hich provides that any reorganization
takes effect a fte r thirty d ays unless veto actio n is initiated. The effect o f severance is accom plished m erely by
striking the qualifications following th e w ord “unless.” Sim ilarly, this conclusion obviates consideration of
the ad d itio n al forty-day waiting period. That period is triggered by one unconstitutional action and is
designed to facilitate an o th er We believe, therefore, th at it is no longer effective.

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 We defer to officials of the Department of Defense to analyze the effect of
our conclusions upon the validity of any particular plan of reorganization
currently under consideration. We do not believe we should attempt to resolve
the specific issues that you have raised, which undoubtedly implicate areas in
which your experience and knowledge are superior. However, should you
continue to have questions about specific proposals, we would be pleased to
address them in the context of a detailed factual background.

Conclusion

In the absence of clearly expressed legislative intent regarding what Con­
gress would have done had it known that the legislative veto alternative was
constitutionally unavailable, we have concluded that the delegation of author­
ity to the Secretary of Defense to reorganize all functions is severable from the
one-house veto controlling the exercise of certain aspects of that authority.
Because the veto contained in § 125 is unconstitutional under Chadha, and
because Congress failed to indicate clearly and unmistakably that the delega­
tion would not have been made if Congress could not have retained a veto
power, we believe the courts would find that the reorganization authority
survives the fall of the veto. Thus we conclude that the Secretary, under the
valid remainder of § 125(a), may exercise the statutory grant of power to effect
reorganizations of all functions, subject only to a thirty-day report-and-wait
requirement.

T h eo do re B. O lson
A ssistant Attorney General
Office o f Legal Counsel

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