Constitutionality of Committee Approval Provision in Department of Housing and Urban Development Appropriations Act

Constitutionality of Committee Approval Provision in
Department of Housing and Urban Development
Appropriations Act

Provision for prior congressional com m ittee approval of an executive officer's exercise of statutory
authority is an unconstitutional legislative veto, and is of no legally binding effect. Accordingly,
such a provision in the D epartm ent of H ousing and Urban Developm ent (HUD) appropriations act
cannot operate to prohibit the Secretary o f HUD from undertaking certain otherw ise authorized
actions in connection with a planned departm ental reorganization.

October 27, 1982

MEMORANDUM OPINION FOR THE GENERAL COUNSEL,
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

This responds to your request for our opinion regarding the legal effect of a
provision in the Housing and Urban Development-Independent Agencies Appro­
priations Act, 1983, Pub. L. No. 97-272, 96 Stat. 1160, 1164 (1982), (HUD
appropriations bill), which purports to require that no appropriated funds be used
prior to January 1,1983, “ to plan, design, implement or administer any reorgan­
ization of the Department without the prior approval of the Committees on
Appropriations.”
For reasons set forth in detail below, we believe that this so-called “ committee
approval” provision is unconstitutional, and therefore has no legal effect. Be­
cause it is attached to the general HUD appropriations bill and not to specific
authority conferred on the Secretary, we do not believe that its unconstitutionality
prevents the Secretary from exercising the substantive powers which this com­
mittee approval device was apparently intended to control. As several Presidents
have stated in similar circumstances, such provisos in general appropriations
legislation, because they are unconstitutional, are not to be regarded as control­
ling the actions of executive agencies. We will set forth the constitutional analysis
that leads us to this result in part I. In part II, we will apply this analysis to the two
particular questions you raised in your October 19 letter.

I. Constitutional Principles

The Executive Branch long has taken the position that “ committee approval”
provisions such as contained in your agency’s appropriations legislation are
unconstitutional. See, e .g ., 37 Op. Att’yGen. 56 (1933); 41 Op. Att’y Gen. 230
(1955); 41 Op. Att’y Gen. 300 (1957). Based upon these historic assertions of

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unconstitutionality, Presidents Eisenhower and Johnson, in signing into law bills
containing such provisions, explicitly instructed their subordinates to disregard
them. See Pub. Papers cf D wight D . Eisenhower 688-89 (1955); Pub. Papers cf
Lyndon B. Johnson 104-105 (1963-1964).
The reasoning underlying this long-held view is the same as that underlying
the Executive Branch’s position in pending litigation before the Supreme Court,
which has been accepted unanimously by the full Court of Appeals for the
District of Columbia Circuit and by the Court of Appeals for the Ninth Circuit.
See Consumer Energy Council c f America v. Federal Energy Regulatory Com ­
mission; 673 F.2d 425 (D.C. Cir. 1982), pending before the Supreme Court as
Nos. 81-2008, 81-2020, 81-2151, 81-2171 and 82-209; Consumers Union of
the United States v. Federal Trade Commission, 691 F.2d 575 (D.C. Cir. 1982)
(en banc); Immigration and Naturalization Service v. Chadha, 634 F.2d 408 (9th
Cir. 1980), pending before the Supreme Court as Nos. 80-1832, 80-2170 and
80-2171.* Congress may not by a resolution of one or two Houses of Congress
or, in this case, one or more of its committees, impose new legal responsibilities
or limitations on the Executive Branch unless the resolution is first adopted by
both Houses of Congress and presented to the President for approval or veto. See
Art. I, § 7, els. 2 & 3. Furthermore, committees of Congress may not, by the
approval resolution mechanism contemplated by the HUD appropriations statute,
control the execution of the laws by an executive agency, because such control, if
accomplished other than by plenary legislation, violates the principle of separa­
tion of powers. Under that principle, it is for Congress to legislate, and for the
Executive to execute the laws.
It would be no response to suggest that appropriations acts are in some ways
distinguishable from other acts and thus should be treated differently for pur­
poses of constitutional analysis. As Attorney General William D. Mitchell wrote
in 1933:

Congress holds the purse strings, and it may grant or withhold
appropriations as it chooses, and when making an appropriation
may direct the purposes to which the appropriation shall be
devoted and impose conditions in respect to its use, provided
always that the conditions do not require operation of the Govern­
ment in a way forbidden by the Constitution. Congress may not,
by conditions attached to appropriations, provide fo r a discharge
c f the functions of Government in a manner not authorized by the
Constitution. If such a practice were permissible, Congress could
subvert the Constitution. It might make appropriations on con­
dition that the executive department abrogate its functions.

37 Op. Att’y Gen. at 61 (emphasis added).

* N o te : The Supreme C ourt's opinion in Chadha, affirming the Ninth Circuit, can be found at 462 U.S. 919
(1983). See also the Supreme C ourt’s affirmance of the D.C Circuit in Process Gas Consumers Group v Consumer
Energy Council o f Am erica, 463 U S. 1215 (1983). Ed

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See also United States v. Lovett, 328 U.S. 303 (1946) (establishing the principle
that exercises of Congress’ spending power must be scrutinized in terms of other
applicable constitutional requirements); Buckley v. Valeo, 424 U.S. 1, 132
(1976) (stating that Congress may not exercise its powers “ in such a manner as to
offend . . . constitutional restrictions stemming from the separation of powers” ).

II. Particular Issues

You have asked not only for our general views on this “ committee approval”
provision— which, as we have stated, is in our view unconstitutional and of no
legally binding effect— but also for our response to two particular questions, as
follows.
(1) First, you note that 42 U.S.C. § 3535(p) provides that a plan for reorgani­
zation of any regional or field office of the Department may take effect only upon
the expiration of 90 days after publication in the Federal Register of a cost-benefit
analysis of the plan’s effects. You state that such an analysis has been prepared
with respect to certain planned reorganization measures. You also state that
publication of the cost-benefit analysis in the Federal Register has been deferred
in deference to the wishes of the chairman of the pertinent subcommittee of the
House Committee on Appropriations. You ask whether the cost-benefit analysis
may be published in the Federal Register before January 1, 1983, in view of the
limiting language of the “ committee approval” provision quoted at the outset of
this memorandum.
We will assume arguendo that the “ committee approval” provision’s ban on
spending funds prior to January 1, 1983, to “ plan” a reorganization would
comprehend the publication of a cost-benefit analysis for purposes of 42 U.S.C.
§ 3535(p). Even so, we do not believe that the “ committee approval” provision
has legal force in this context because of the provision’s constitutional infirmities
as discussed above. In our view, the provision cannot operate to prohibit publica­
tion of the cost-benefit analysis prior to January 1, 1983.'
(2) Second, you state that a limited reduction-in-force (RIF) at the Depart­
ment’s central headquarters has been instituted. You state that although there is
doubt that a RIF is a “ reorganization” as that term is generally understood, there
is some legislative history that could be interpreted to suggest that this RIF would
be subject to the “ committee approval” provision in your Department’s appro­
priation statute.2 For present purposes, you have assumed that a RIF would be
covered by the plain terms of the “ committee approval” provision, and on that
basis you have asked whether that provision would prohibit the RIF absent
committee approval.
Once again, for the same reasons laid out above, we conclude that the
“committee approval” provision does not have legally binding effect, and that it

1 At the same time, we do not believe that the unconstitutionahty of the “ committee approval” provision would
affect the legally binding nature of the requirements set forth in 42 U S C § 3535(p), which, as you have
recognized, must be followed before a reorganization covered by that section takes effect.
2 See H.R. Rep. No. 720. 97th Cong., 2d Sess. 10 (1982)

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cannot prevent the Secretary from undertaking action otherwise authorized by
applicable statutes.

T heodore B. O lso n
Assistant Attorney General
Office c f Legal Counsel

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