rule making

In April 1996 Congress enacted the Line Item Veto Act, which took effect on January 1, 1997, and authorized the President to cancel in whole any dollar amount of discretionary budget authority, any item of new direct spending, or any limited tax benefit. On August 5, 1997, Congress passed the Balanced Budget Act of 1997, which included section 4722(c) deeming certain New York health-care-provider taxes permissible and in compliance with federal Medicaid requirements. On the same day Congress passed the Taxpayer Relief Act of 1997, which included section 968 granting a limited tax benefit allowing owners of certain food refiners and processors to defer recognition of gain when selling stock to eligible farmers' cooperatives. On August 11, 1997, President Clinton transmitted notices canceling section 4722(c) of the Balanced Budget Act and section 968 of the Taxpayer Relief Act. The City of New York, two hospital associations, one hospital, and two unions representing health-care employees filed suit challenging the cancellation of section 4722(c). Snake River Potato Growers, Inc., a farmers' cooperative formed in May 1997 to acquire potato-processing facilities, and one of its members filed a separate action challenging the cancellation of section 968. The District Court for the District of Columbia consolidated the two actions and held that at least one plaintiff in each case had Article III standing. It ruled on the merits that the cancellations did not conform to the constitutionally mandated procedures for the enactment or repeal of laws. Earlier, six Members of Congress who had voted against the Line Item Veto Act had brought a separate challenge; the District Court had held the Act unconstitutional, but the Supreme Court dismissed that action for lack of standing in Raines v. Byrd, 521 U.S. 811 (1997). After the President exercised the cancellation authority, the present appellees filed suit challenging the two cancellations, and the District Court again held the statute invalid.

In 1967 the Atomic Energy Commission granted Vermont Yankee a construction permit for a nuclear power plant in Vernon, Vermont, after the required adjudicatory hearing and reviews. Vermont Yankee later applied for an operating license; NRDC intervened and objected to exclusion of fuel-reprocessing and waste-disposal impacts from the hearing. In November 1972 the Commission opened a separate rulemaking proceeding on those fuel-cycle issues, noticed two alternative approaches based on its Environmental Survey, and conducted a February 1973 hearing at which more than forty participants submitted comments but no discovery or cross-examination occurred. In April 1974 the Commission adopted a rule assigning numerical values to fuel-cycle impacts and applied it prospectively. In January 1969 Consumers Power applied for permits to build two nuclear reactors in Midland, Michigan. After staff and ACRS review, Saginaw and Mapleton intervened and raised 119 environmental contentions, including seventeen on energy conservation. The Licensing Board held hearings on radiological issues, the staff issued a final environmental impact statement in March 1972, and further hearings occurred in May and June 1972; Saginaw declined to participate in the later hearings or submit proposed findings. The Licensing Board granted the construction permit, the Appeal Board affirmed, and the Commission declined further review. In November 1973 the Commission ruled in another case that energy-conservation evidence meeting threshold tests could be considered, but it later refused Saginaw's motion to reopen the Consumers Power record. NRDC appealed the Vermont Yankee license and rule to the D.C. Circuit; Saginaw and others appealed the Consumers Power permit. In 1976 the Court of Appeals remanded both matters, holding the fuel-cycle rulemaking procedures inadequate, the Consumers Power environmental impact statement defective for omitting energy conservation, and the ACRS report insufficiently explained. The Supreme Court granted certiorari in 1977. The Commission is the successor agency to the Atomic Energy Commission under the Energy Reorganization Act of 1974. All licensing proceedings followed the two-stage process of construction permit followed by operating license under the Atomic Energy Act of 1954, with NEPA environmental reviews added after 1969.

In 1966 Jagdish Rai Chadha, an East Indian born in Kenya who held a British passport, was lawfully admitted to the United States on a nonimmigrant student visa that expired on June 30, 1972. In October 1973, the District Director of the Immigration and Naturalization Service informed Chadha that he had remained longer than permitted and was therefore deportable. Chadha conceded deportability but applied for suspension under section 244(a)(1) of the Immigration and Nationality Act of 1952. On June 25, 1974, an Immigration Judge acting on behalf of the Attorney General suspended Chadha's deportation and adjusted his status to permanent resident after finding that he satisfied the statutory criteria of seven years' continuous presence, good moral character, and extreme hardship. A report of the suspension was transmitted to Congress as required by the Act. On December 16, 1975, the House of Representatives passed a resolution disapproving the suspension for Chadha and five other aliens on the ground that they did not meet the statutory requirements, particularly as to hardship. Pursuant to the House resolution, the Immigration Judge reopened the deportation proceedings. Chadha moved to terminate them on constitutional grounds, but the Immigration Judge ruled that he lacked authority to declare the resolution unconstitutional and ordered Chadha deported. Chadha appealed to the Board of Immigration Appeals, which likewise held that it had no authority to pass on the constitutionality of the resolution and dismissed the appeal. Chadha then filed a petition for review in the United States Court of Appeals for the Ninth Circuit. The Immigration and Naturalization Service appeared and urged the court to hold the House resolution unconstitutional. After inviting briefs from the Senate and House as amici curiae, the Court of Appeals held the resolution unconstitutional because it was a legislative act that failed to satisfy the requirements of Article I, sections 1 and 7, and set aside the deportation order. The Supreme Court granted certiorari in the consolidated cases to address the constitutional question.

The cases involve two nuclear power projects regulated by the Atomic Energy Commission. In December 1967, the Commission granted Vermont Yankee Nuclear Power Corp. a permit to build a nuclear power plant in Vernon, Vermont. Vermont Yankee subsequently applied for an operating license, prompting an adjudicatory hearing in August 1971 at which the Natural Resources Defense Council participated and objected to the exclusion of fuel reprocessing and waste disposal environmental effects. In November 1972 the Commission began informal rulemaking to address the environmental effects of the uranium fuel cycle for light water reactors, publishing notice of two proposed alternatives based on its Environmental Survey. Hearings occurred in February 1973 with over forty participants submitting written comments; the Commission allowed oral statements but prohibited discovery and cross-examination, instead permitting questioning by the Commission itself. The Commission adopted the second alternative in April 1974, incorporating numerical values into a table for cost-benefit analyses. In January 1969 Consumers Power Co. applied for a construction permit for two nuclear reactors in Midland, Michigan. Intervenors including Saginaw and Mapleton submitted numerous environmental contentions and discovery requests, which the Licensing Board largely denied before holding hearings in 1972. Although Saginaw raised energy conservation issues in comments on the draft environmental impact statement, it did not present evidence at the hearings or participate further after the final statement issued. The Court of Appeals for the District of Columbia Circuit in 1976 remanded both the Vermont Yankee operating license and the Consumers Power construction permit. It found the fuel cycle rulemaking procedurally inadequate and required consideration of energy conservation alternatives as well as further development of the Advisory Committee on Reactor Safeguards report. The Supreme Court granted certiorari in 1977.