Alaska Airlines, Inc. v. Brock – Oral Argument – December 01, 1986

Media for Alaska Airlines, Inc. v. Brock

Audio Transcription for Opinion Announcement – March 24, 1987 in Alaska Airlines, Inc. v. Brock


William H. Rehnquist:

We will hear arguments next in Alaska Airlines against Brock.

Mr. Coleman, you may proceed whenever you’re ready.

William T. Coleman, Jr.:

Good afternoon, Mr. Chief Justice, and may it please the Court:

The issue here is would Congress have enacted the remaining provisions of the Section 43 Employment… Employee Protection Program in the broad language it did if it had known that the one-house legislative veto provision, exclusively applicable thereto, set forth in the same section, was unconstitutional.

First, the relevant facts.

Having made new entry and additional air service possible by replacing economic regulation with competition, Congress recognized that the Airline Deregulation Act of 1978 would expand airline employment.

The CAB and now the Department of Transportation already have authority to impose labor protective provisions as a condition of government approved private transactions.

Nevertheless, late in the legislative process, Congress added Section 43 to provide a single integrated employee protection program.

The House and Senate had each passed bills providing for government assistance, money paid by the government to airline employees who lost their job because of deregulation.

The House bill, in the traditional form of employee protection, conditioned the exercise of authority under the Deregulation Act, for example merger authority, on certification by the Secretary of Labor of protective arrangements similar to those set forth in Section 5(2)(f) of the Interstate Commerce Act.

Benefits paid by the airline would be reimbursed by the Government.

The Senate bill involved a completely new concept of employee protection.

If an airline went bankrupt or had a 15 percent workforce reduction caused by deregulation, its employees would be entitled to Government financial assistance, and, solely to offset the Government’s cost, the right of first hire by other pre-1978 certificated carriers; the same Section authorized the Secretary of Labor to issue regulations to effectuate the existence program and the duty-to-hire program.

All regulations were subject to one-house veto.

In reaching a compromise, the conference committee deferred several important basic policy decisions relating to benefit levels and eligibility for assistance in hiring preference.

Instead, it directed the Secretary of Labor to adopt, within six months of October 24, 1978… and that date appears in the statute, Your Honor… all regulations necessary to provide financial benefits and hiring preferences.

That delegation was subject to a unique set of procedural and time restraints that ensured Congress’ active involvement in the program’s development.

Congress reserved ultimate regulatory authority through the right of either House to exercise the legislative veto.

Section 43, nor anywhere else in the Deregulation Act, is there a severability clause.

In 1979, the Secretary of Labor proposed regulations to implement both the financial assistance and the hiring preference aspects of the program.

Final regulations were submitted to Congress on January 19th, 1981, but withdrawn 14 days later, which is long before the 60 day legislative period that they were to lay before the Congress.

For several years thereafter, there were no regulations; there was no employment protection program.

Then on June 23rd, 1983, this Court held legislative veto provisions unconstitutional.

Only thereafter were the regulations promulgated.

And they attempt to effectuate only the hiring preference.

Fourteen covered airlines challenged the regulations–

John Paul Stevens:

Mr. Coleman, could I interrupt you right there, because it’s something I’m not clear about in the statute.

During this four or five year period between the enactment of the statute and the finally… 1983, when they did promulgate regulations, did the statute have any effect at all?

William T. Coleman, Jr.:

–We don’t think it had any effect at all, Your Honor.

But to answer you completely, there is one case in the Southern District of New York where a plaintiff has claimed that the statute does have effect with respect to the right of first hire.

John Paul Stevens:

The first hire provision?

William T. Coleman, Jr.:

It’s not spelled out in the statute, and this raises a question that you get from time to time, where there’s a statutory provision which doesn’t say you have a private cause of action; do you?

And that’s on litigation.

But other than that, I know of no instances.

It’s the position of the airlines that the statute has no effect.

Certainly it’s the position of the airlines that the regulations completely change whatever effect the statute–

John Paul Stevens:

Well, I understand that.

I mean, they spell out… they give lists of employees and things like that, too.

William T. Coleman, Jr.:

–Yes, yes.

John Paul Stevens:

But your position is that until the regulations were promulgated, the statute was basically a nullity?

William T. Coleman, Jr.:

That’s our position, Your Honor.

And also, in that connection, I’d like to call your attention in the petition, in the appendix to the petition for cert, which is… which is the record in this case, on page 49, with respect to the regulations, it’s stated that the regulations were issued to effectuate the section which deals with the right of first hire.

In other words, that certainly the Administrator thought that he needed these regulations to effectuate the purpose of the statute.

John Paul Stevens:

Well, at least to completely effectuate it.

At least it would be arguable.

William T. Coleman, Jr.:

It says, effectuate it.

John Paul Stevens:

It might be arguable that even without the regulations, there were some employee rights that were–

William T. Coleman, Jr.:

But not clearly these regulations.

It’s these regulations that we’re trying to upset.

John Paul Stevens:


William T. Coleman, Jr.:

And also, since you also have before you the record, I’d like you to look at page 46A, where you see… where the Administrator says, his authority that he’s acting under is Section 43(f), and that’s the section that has the one-house veto in it.

Antonin Scalia:

Mr. Coleman, do you disagree with the argument that the… that what the legislative veto was mainly directed at, what consisted of the main degree of discretion here, was not the issuance of regulations dealing with the right of first hire, but rather, the regulations dealing with the obtaining of Federal assistance, that that’s what the Congress was worried that the Secretary was going to do something–

William T. Coleman, Jr.:

We disagree 100 percent, Your Honor.

When you read every page that the Government cites in this book here, you will find that what is being described is the employee protection program.

There is one program.

And that program consisted of both parts.

Another evidence of that fact, and the Government calls your attention to the Zorinsky amendment, where he said that he wanted to exclude the financial payment part, but he wanted to have the right to hire part.

They don’t tell you that when you look at the amendment you will find that with respect to the right to hire part, he still had the veto provision.

And so we say, it goes to both.

Because when you read the statute, when you reread the statute, you will find that it’s impossible to work out the program that’s in the regulations without having the regulation.

William T. Coleman, Jr.:

When this was before Judge Gesell, he determined that the legislative veto provision of Section 483 was inextricably bound with the remainder of that Section, and that Congress would not have enacted the remainder of the Section 43 in its absence.

He therefore declared the entire Section 43 unconstitutional.

The Court of Appeals reversed.

The language and structure of Section 43, as it emerged from the conference, House conference, Senate conference, showed that the legislative veto was essential in the unique legislative-executive partnership established in Section 43 to develop a single integrated employment program for protection.

Respondents ignore the veto’s importance in the structure of Section 43, relying mainly on the lack of a big floor debate, espousing the virtues of legislative vetoes.

But this Court has said, on many occasions, the statute itself is the most important aspect of Congressional intent.

And as Dean Griswold said in that wonderful casebook he had on tax, don’t think great thoughts about the Internal Revenue Code; read the statute.

And so therefore, I would ask the Court to look at the statute.

It appears beginning on page 38A in the appendix.

The heart is Section 43(f), which provides elaborate and detailed constraints on whatever regulatory authority was granted the Secretary, who incidentally, was the head of an agency not otherwise involved in air deregulation or subject to the aviation committee of Congress.

Look at Section 43.

It contains four interrelated provisions.

William H. Rehnquist:

–Section 43(f).

William T. Coleman, Jr.:

43(f), yes, sir, which is on page 42A.

The regulations to be issued are those, quote, necessary for the administration of, and, quote, to carry out Section 43.

All regulations must be promulgated within six months after October 24, 1978.

All proposed regulations must be submitted to the aviation committee for 30 legislative days.

All final regulations must be submitted to Congress for 60 legislative days, during which period either House may disapprove them.

These four interrelated constraints on the Secretary’s authority was exclusively applied to Section 43 to ensure active Congressional participation in adopting and EPP program by many of the same committee members who drafted the Act.

It is quite significant in establishing the tight time restraints, Congress reserved to itself a substantial amount of time for this legislative-executive collaboration.

And that, I call your attention to Section 43(f)(4).

It is also significant that of the four interrelated constraints, two were added by the conference committee.

The legislative veto has always been a part of the controversial Senate EPP proposal.

But in reaching the compromise, Congress decided to defer certain basic policy questions dealing with the scope of the program.

It therefore made the veto substantially more effective by strengthening the collaborative process; by retaining ultimate authority over the Secretary’s regulations, both Houses of Congress, who each had… incidentally, had different viewpoints with respect to labor protection–

William H. Rehnquist:

Mr. Coleman, I presume all of this goes to formulating the answer which you think we should come to to the proper question.

William T. Coleman, Jr.:


William H. Rehnquist:

Now what is the question we should ask?

William T. Coleman, Jr.:

The question you should ask is, whether, when you read this statute, would Congress have enacted the statute in the form it did if it did not have the legislative veto?

If you conclude that they would not have, then you at that point, you determine that the Section is unconstitutional.

Antonin Scalia:

What if we are in equipoise?

We can’t really figure out either way?

William T. Coleman, Jr.:

Judge… Mr. Justice, that-would be very unfamiliar to almost anybody on this Court to be in equipoise.

You all do come down one way or the other.

But leaving that aside–

Antonin Scalia:

Just imagine.

William T. Coleman, Jr.:


Antonin Scalia:

If we really… you know, we’re very honest, and we say, I really can’t tell what Congress would have done.

And suppose we say that.

William T. Coleman, Jr.:

Well, you then should say, the one thing–

Antonin Scalia:

Then who wins?

Does it stay or go?

William T. Coleman, Jr.:

–the one thing that’s clear, you should say at that point, how can I let them issue regulations which clearly were subject to be rewritten by the Congress, and let those regulations stand.

Antonin Scalia:

So you’re saying, unless we can find that they would have adopted it in this form without this provision, we should strike down the whole thing?

William T. Coleman, Jr.:

You strike down the whole thing.

Antonin Scalia:

And the burden is on those who want to retain the provision without the legislative veto to show that that is–

William T. Coleman, Jr.:

Yes, that one ought not to be able to come in and say, I have authority to do something, but the person who gave me authority also put a restriction on it.

The restriction is bad, but I still have the authority.

And that’s, it seems to me, is the issue that you have before you.

William H. Rehnquist:

–Put another way, perhaps, the question is, would the principal have given the agent that authority knowing that he could not restrict it?

William T. Coleman, Jr.:

That’s right, yes, sir.

John Paul Stevens:

Of course, this principal could have restricted it any time after the Chadha decision by simply repealing this Section of the Act, couldn’t it?

William T. Coleman, Jr.:

It could have restricted it… well, but that’s a whole new legislative process.

John Paul Stevens:

It requires two Houses of Congress instead of one.

William T. Coleman, Jr.:

Oh, not only that.

John Paul Stevens:

And the President has to–

William T. Coleman, Jr.:

It also requires the action by the President.

And even if he vetoes it, then there has to be a two-House overrule.

And this is completely different here, because it’s clear here that what happened… and this is very dramatic; I’ve asked you to examine the evidence as to what happened as long as the legislative veto was out there.

John Paul Stevens:

–No, but my question is directed to the period after the legislative veto was clearly no longer out there.

John Paul Stevens:

Did anybody in Congress say, hey, we better repeal this provision, because otherwise somebody might go ahead and issue some regulations?

William T. Coleman, Jr.:

No, nobody… nobody… nobody said that, because, frankly, we had a legislative situation which has existed, that on the one hand, the unions wanted much more money.

On the other hand, the airlines felt that the program should be limited only to the airline that was the cause of the loss, or at most, only in those instances where the Act caused the unemployment.

When this was before President Carter, and he finally submitted a program which had both parts, it never moved through the Congress, either way, because the unions thought there should be more money, and the airlines thought the coverage of the regulation was too broad.

And so nothing happened until after the election, and one day before the change of administration, final regulations were published.

Fourteen days later they were withdrawn.

Thereafter, the new administration published proposed regulations.

The legislative veto is still in effect; I mean, at least you haven’t declared it unconstitutional yet.

The new administration would not send those regulations up to the Hill for the 30-day legislative period.

It was only after the Court declared the veto unconstitutional that the legislation… I mean, the regulations were sent up.

And then, because one who wanted to change the situation either way, no longer had the effective power over the executive to bring about those changes.

Now, that’s the reason why you… the majority of your in Chadha said that you can’t have that separation of power.

I’m not going to stand here and agree whether you were right or wrong, because that’s already been decided.

But once you decide that, I just ask you that if there’s been a legislative process, and on the tough issues both sides stood down and said, let’s wait for the regulation and we will have this additional activity before they become effective, and then that is destroyed, can you in good conscience say that that’s what Congress intended.

Now, this legislative veto is different from those in a lot of other statutes.

This is not a case where you have a broad, big statute, and you have a lot of different provisions for issuing regulations, and then someplace in the statute, there’s a veto provision.

In fact, in the Deregulation Act, there are 25 regulatory delegations, but only one is subject to the one-house veto, and that’s the one in Section 43, and it applies exclusively to the employee protection program.

In fact the conference committee rejected the only other legislative veto provision from the Senate passed bill at the same time it was strengthening this particular provision.

Now, as I read the respondents’ brief, they concede that the veto was an important Congressional constraint on the financial assistance part of the EPP.

But they then search the legislative history in vain to support their argument that the legislative veto was only essential to a check on the financial guidelines.

And that’s where they point to Senator… or Zorinsky, and as I indicated, when he made the amendment, he kept the one-house veto.

But I’d like, more to the point, to take you to the language in the structure of Section 43.

There’s nothing in there where Congress limits the veto to regulations implementing Section 43(a)(1), which is the financial assistance subsection.

Section 43 expressly applies the elaborate legislative oversight provisions to all regulations issued pursuant to Section 43.

In fact, as I said, the Secretary here claims that any authority he has comes from Section 43(f).

When you look at the structure of Section 43, you realize that the Congress was talking about one program.

If you have any doubt about that, look at Section 22 of the Senate bill, from which Section 43 emerged.

In that bill, both the hiring preference and the financial payments were triggered by the same 15 percent reduction in workforce, or bankruptcy, and in both cases, there was a legislative veto.

Then look at Section 43 itself.

On page 38A, the title, Employee Protection Program.

William T. Coleman, Jr.:

And look at the definition section.

And then look at the section which is on page 44A, which is (j), the termination.

And it says that “the provisions of this section”… and that’s both the financial payments and the duty to hire…

“terminate on th last day the Secretary if required to make. “

the payment.

So it seems to us, Your Honor, that once you say that the legislative veto is bad, that certainly thereafter you cannot put the parties in the place where they would be.

It is no longer possible to have a committee involved in the rewriting of this provision.

And under those circumstances–

John Paul Stevens:

Mr. Coleman, can I ask you one other question?

William T. Coleman, Jr.:


John Paul Stevens:

How do you respond to Judge Starr’s argument that one thing is fairly clear, and that is, that after the Congress compromised… he didn’t use these words… between the union position and the employer position, they at least decided this much, that there should be some form of employee protection.

And if you sustain your position here, there’ll be no employee protection, which would really give the airlines even greater relief than if they’d won the legislative battle about how much the benefit should be?

William T. Coleman, Jr.:

Well, number one, I think when you reread the battle that went on, you realize that most of the certificated airline did not want the deregulation.

So you start with a false premise.

John Paul Stevens:

No, but–

William T. Coleman, Jr.:

This is not something that the airlines wanted.

But taking yours–

John Paul Stevens:

–I mean… I mean… I’m just directing my remarks to employee protection.

William T. Coleman, Jr.:


John Paul Stevens:

They didn’t want employee protection.

Or at least this much.

William T. Coleman, Jr.:

Well, what I say to that is, Your Honor, when you reread that legislative history, you will find what the unions really, really wanted was the financial payments by the government.

John Paul Stevens:

Which they’re not getting.

William T. Coleman, Jr.:

That they don’t get.

Now I really think–

John Paul Stevens:

Now they don’t even get their second choice.

William T. Coleman, Jr.:

–Now I really think… I really think it’s unfair for the Government to be here saying that even though Section 43(a)(1) says, there should be financial payments, and if you look at the… if you look at the provision that they say is the determination was, that this changed the public should pay for, they’re not going to pay for a penny.

But yet, they have passed regulations which are far beyond the statute.

Put if you just say the regulations are bad, I’ll take my chances on the statute.

Because they cannot get out of the statute what they got out of the regulation.

William T. Coleman, Jr.:

Now it just seems to me that under those circumstances, if… until… and as long as that happened, the process worked.

As long as the Government was willing to come up and take care of its financial contribution, the Congressional process was working.

It was only when they split the program… and I think we’ve demonstrated that you can’t split the program; it’s supposed to be one program.

I think I’ll reserve the rest of my time for rebuttal.

William H. Rehnquist:

Thank you, Mr. Coleman.

We’ll hear now from you, Mr. Cohen.

Louis R. Cohen:

Mr. Chief Justice, and may it please the Court:

I propose to argue two propositions.

First, the Court of Appeals chose the proper rule for determining whether an otherwise valid part of a statute must be invalidated along with an unconstitutional part.

And second, in this case, the evidence against throwing the employee protection baby out with the legislative veto bathwater was, as the Court of Appeals said, overwhelming.

The Court of Appeals said it was following the rule articulated in Chadha.

The invalid portions of a statute are to be severed, and the balance sustained, unless it is evident that the legislature would not have enacted those provisions which are within its power independently of that which is not.

Antonin Scalia:

0 xxx.

Louis R. Cohen:


Antonin Scalia:

That makes a big difference, don’t you think?

Louis R. Cohen:

But what the Court said in Chadha–

Antonin Scalia:

I mean, there Congress told us what to do; that basically, it wants us to salvage as much as we can.

Louis R. Cohen:

–That’s correct.

And after stating the test, which the Court had stated in previous cases, the Court said in Chadha, we need not make that… I think the words were… elusive inquiry here, because Congress has told us the answer.

It is correct that in this case the inquiry must be made, as the Court of Appeals made it.

But the test, as stated in Chadha, is… and I believe the parties are in agreement on this… whether it is evident that Congress would not have enacted the provision that is before us, the duty-to-hire provisions–

William H. Rehnquist:

Well, are you suggesting that the task is the same regardless of whether or not there’s a severability clause, Mr. Cohen?

Louis R. Cohen:

–Yes, I’m suggesting that it is perhaps easier to satisfy the test when there is a severability clause in which Congress has told you what its intent is.

But the question, in each case, is whether, based on an assessment of Congressional intent, you conclude that Congress… that it is evident that Congress would not have enacted the–

William H. Rehnquist:

You would factor in the existence of a severability clause, then, as simply… as weighing evidence of what Congress wanted?

Louis R. Cohen:

–As Congress’ direct statement of its intention, yes.

Sandra Day O’Connor:

Mr. Cohen, do you think there’s a presumption of severability in the absence of a severability clause?

Louis R. Cohen:

Well, I think that when the Court stated the test as being whether it is evident that Congress would not have enacted the otherwise valid portion in the absence of the unconstitutional part, it was certainly suggesting a presumption or suggesting that the burden of proof must be on those who would strike down more of the legislation than Congress… than the Constitution requires.

Harry A. Blackmun:

Mr. Cohen, while you’re interrupted, what is the present status of the monthly assistance clause?

Louis R. Cohen:

First, it is dormant, and will remain dormant unless and until Congress–

Harry A. Blackmun:


Louis R. Cohen:

–appropriates funds.

Its status in this case, I think, is this: It was not challenged by petitioners in their complaint.

The District Court, nevertheless, said that the… that all of the remaining provisions of Section 43 would have to be invalidated along with the legislative veto.

The Court of Appeals reversed, saying the financial assistance provisions are not before us; but saying later in the opinion that all of the remaining provisions are severable.

So I think the financial assistance provisions are not… are not before you.

Harry A. Blackmun:

–Do you think it ever will be made undormant, if there is such a word?

Louis R. Cohen:

I have no reason to believe that it will.

Harry A. Blackmun:

Do you also… well, I’ll ask you: Could we come out with one answer about severability with respect to the monthly assistance provision and another answer with respect to the hire provision?

Louis R. Cohen:

I think there would be no occasion to reach the first of those questions in this case.

But I think that it would theoretically be possible for the Court, were both questions before it, to conclude that the financial assistance provision must be invalidated along with the legislative veto.

And that would not invalidate the duty-to-hire provisions.

Antonin Scalia:

Mr. Cohen, I’d like to come back to the difference between statutes that contain a severability clause and those that don’t.

I mean, Congress thinks these things mean something, because they have a regular practice of putting them in sometimes, and not putting them in other times, and they think there’s a difference.

Now, what do you assert that difference is?

I thought you said at first that there’s no difference at all, but then in response to Justice O’Connor, I thought you said there was a difference.

Louis R. Cohen:

I think that the presence of a severability clause does not change the test; it changes the task of the Court, which is applying the test.

It means that the Court has to look at the structure of the statute, and the legislative history, to determine Congressional intent without the guide that the severability clause may provide.

Antonin Scalia:

What guide is the… I don’t… you say it, but I don’t understand it.

What guide does the severability clause provide?

Louis R. Cohen:

What the Court said in Chadha was, that the severability clause told the Court that it was Congress’ intention that one of the… that the substantive provision in that case should survive not withstanding the demise of the veto.

Antonin Scalia:

Well, then, that’s a different test, I would say.

And I would say that when there’s a severability clause, you’re asserting that so long as the things can mechanically work without the legislative veto, Congress is telling us, apply it.

And whether it can mechanically work is quite a different test from whether… whether Congress would have enacted the one without the other.

I mean, I’m very reluctant to come to a decision in this case that’s going to, you know, make no difference between this and cases in which there is a severability clause.

Louis R. Cohen:

I think that you can come to a conclusion in this case based on the evidence derived from the structure and the legislative history of this statute.

I think that even in a case where there is a severability clause, there can be an open question as to whether the effect of the invalidation of one provision is to change the rest of the statute into something other than Congress intended and enacted.

And… but I think that if the effect of invalidation of one provision is to leave an operative balance of the statute, then the existence of a severability clause, as the Court thought it did in Chadha, pretty much ends the inquiry.

John Paul Stevens:

Well, may I just pursue that a moment?

In this case, the question isn’t whether there shall be any severability.

John Paul Stevens:

It’s… the question is how much you sever.

Because even Judge Gesell severed 43 from the rest of the statute.

And you’re saying we should only sever the veto from the rest of the statute.

Louis R. Cohen:


It seems to me that one of the reasons why there should be… I think there are two reasons why there ought to be a presumption in favor of severability, and in favor of saving what the Constitution does not itself invalidate.

One of those reasons is that courts have no power to invalidate statutes except the command of the Constitution or the State or inferred intent of Congress.

And the best evidence of what Congress wanted is what it wrote.

And the court should not, I suggest, infer a contrary intent unless the evidence supporting the inference is clear.

But second, if a court doesn’t demand a convincing showing before it invalidates a statute… before it invalidates more of a statute than the Constitution requires… there’s no stopping place.

And some very large horses will be lost over some very small nails.

In this case, for example, the parties agree that the legislative veto must go.

The question is: How much more must go with it?

Petitioners would cut all of Section 43, but that would leave airline deregulation with no employee protection.

And as we and others, particularly the Airlines Pilots Association and the AFL-CIO, demonstrate in the briefs, there is a good deal of evidence that Congress might not have enacted airline deregulation without employee protection.

I think to get a stopping place, one must apply the test as it was formulated in Chadha, and ask, is it evident that Congress would not have enacted a part of the statute that is not in and of itself unconstitutional if it had known–

Antonin Scalia:

Mr. Cohen, how does Congress know how we’re going to come out on this thing?

I mean, the people in one House don’t know what the people in the other House are saying, or will say, if the other House is going to act later.

It seems to me there’s going to be a constant game of legislative chicken with some lawmakers putting in provisions that are arguably unconstitutional; some legislators may vote for them, thinking they’ll be stricken and the rest will stand; and others may vote for them thinking they’ll be stricken and the rest will fall.

It creates chaos.

Wouldn’t be better off to adopt a clear… a clear line that the members of Congress, when they vote on provisions of dubious Constitutionality, will know what the result will be if it falls down?

And what you’re proposing is not a clear line at all.

Now, you could adopt a line that says if there’s a severability clause, the matter will stand, so long as you can mechanically implement it.

When there’s no severability clause, the entire provision to which the legislative veto, for example, is attached, will fall.

Louis R. Cohen:

–I don’t think that works.

And I don’t think it works for two reasons.

One, obviously, Congress doesn’t always know when it is adopting something that will create Constitutional trouble later on.

But second, the question of severability does not and cannot disappear merely because there is a severability clause, as the… because it doesn’t tell you the answer to the question which is in fact the question presented in this case, where do you cut?

If you… the debate between the… between the plurality and Justice Brennan on the question of severability in Regan v. Time, Inc., was a debate about whether the effect of a… the excision of some words in a statute changed the meaning of the statute.

I don’t think a severability clause would have resolved that issue.

I think the Court was right when it said in the Jackson case that the presence or absence of a severability clause will rarely determine the issue, and the question is, is the Court going to seek to preserve the balance of what Congress enacted whenever it can.

William H. Rehnquist:

I have some doubt as to the correctness… perhaps the Court did say this in Jackson… that the presence or absence of a severability clause should never… should seldom make any difference.

That’s the best expression we have from Congress addressing to the situation where some part of the statute is held unconstitutional.

Louis R. Cohen:

I think that you have in this case, also from Congress, the adoption of the remaining portion of the statute as an indication of what it wanted done.

And, again, the problem of where do you cut is the hard… is the hard problem here.

The… if… if the doctrine were that in the absence of a severability clause, everything that might be thought to have been part of a package in any Congressman’s mind, with the unconstitutional provision might go, I don’t know how you stop short of the work of an entire session of Congress.

Antonin Scalia:

Well, at least with the legislative veto provision, which… and there are a lot of them out there.

How many are remaining in existing statutes that have to be determined sooner or later?

Louis R. Cohen:

The only number I know is Justice White’s 200.

Antonin Scalia:

Yes, but some of those may have… I mean the legislation may have lapsed since then, I don’t know.

Louis R. Cohen:

And this Court, of course, has affirmed the severance of several.

Antonin Scalia:

But at least as to the legislative veto provision, you could say that the entire regulation provision to which the veto is attached falls if there is no severability clause, and it doesn’t fall, so long as it can mechanically work, if there is one.

That’s quick and easy and clear.

And it eliminates a lot of litigation.

Louis R. Cohen:

First of all, even if that were said in this case, the duty-to-hire program would not, I suggest, fall with the legislative veto.

And let me turn to that.

The Court of Appeals, I think, was correct when it said that there’s ample evidence that the employee protection program was deemed by Congress to be an important aspect of the Act, and not a shred of evidence that the legislative veto was deemed by–

The briefs list the evidence that employee protection was an important part of this complex legislative bargain.

Petitioners only response is that there were also expectations that deregulation would lead to increased employment in the industry.

But of course, this was an insurance program, important even if the patient stayed healthy.

And beside that, as the Senate report makes clear, the Senate feared that some airlines might contract while the rest of the industry was growing, and the duty of growing airlines to give a hiring preference to displaced employees of the shrinking ones–

John Paul Stevens:

Mr. Cohen, can I interrupt, because I just realized, I’m not sure I know what the issue is here.

Are they contending that Section 43(f) is invalid, or that Section 43 in its entirety is invalid?

Louis R. Cohen:

–I think they are contending that Section 43(f) and Section 43(d)–

Antonin Scalia:


Louis R. Cohen:

–are both invalid.

John Paul Stevens:

But the… but using Justice Scalia’s test, only Section 43(f) would fall, and Section 43(d) would survive, because there’s no legislative veto with regard to 43(d); is that right?

Louis R. Cohen:

Well, the answer to that is that there are two different parts of 43(d).

John Paul Stevens:

Right, but one of them deals with the preferential hiring; one of the two.

Louis R. Cohen:

Section 43(d)(1) imposes a duty to hire as a direct obligation.

John Paul Stevens:

That’s right.

Louis R. Cohen:

That is not subject to any veto or any other contingency.

It confers–

John Paul Stevens:

And my question is whether that section… I should have said, not just (d), but (d)(1).

Is that being challenged in this litigation?

I think it is.

Louis R. Cohen:

–I think it is.

Antonin Scalia:

I thought… I thought Mr. Coleman said he’d be willing to take his chances with the statute; that it’s only the regulations that give him trouble.

I’m sure he’d like to see (d) go as well, but I think he… he’s willing to–

Louis R. Cohen:

Well, I’m very happy if he’s conceded that Section 43(d)(1)–

Antonin Scalia:

–Well, that’s what I thought he said.

I guess he’ll have time to respond later.

Louis R. Cohen:

–that Section 43(d)(1) is valid, because it imposes a duty to hire–

Antonin Scalia:

And it’s your view, I take it–

Louis R. Cohen:

–a well defined on, directly on a well defined class of carriers, and it confers a right of first hire directly on–

John Paul Stevens:

–And it’s your view that duty existed during the period before the promulgation of the regulations?

Louis R. Cohen:

–Yes, and that, by the way, to answer something that Mr. Coleman said, is also the Secretary’s view of the regulations, say, at page 47A, nothing in these regulations shall preclude the exercise of statutory rights and duties between October 24, 1978, and the effective date of these regulations.

William H. Rehnquist:

Certainly (d)(1) doesn’t appear to depend for its efficacy on the issuance of regulations.

Louis R. Cohen:

I think it does not.

Now, the regulations we are talking about are, in part, provided for in Section 43(d)(2), a separate subsection, which gives the Secretary of Labor some assignments, but it gives him, I suggest, no assignments that there’s any reason to think Congress would not have given him if it had known it could not have a legislative veto.

It just doesn’t delegate any responsibility that there’s any reason to think Congress wouldn’t have been willing to delegate unconditionally.

It directs the Secretary to maintain and publish lists of available jobs; it authorizes the Secretary to require carriers to provide the necessary information; it directs him to make every effort to assist an eligible protected employee in finding other employment; and then finally, subsection (f)(1) says that the Secretary may issue such rules as may be necessary for the administration of the section.

And if we are to apply the test of whether it is evident, or indeed, whether there is any significant likelihood at all that Congress would have been unwilling to give the Secretary of Labor those assignments if it had known it could not have a legislative veto, the answer is that there is not.

Mr. Coleman implies that the statute leaves gaps to be filled in by regulation.

His principal one is that there is some question, he says, whether an employee was meant to be protected if his unemployment is not demonstrably due to deregulation.

He made that argument to Judge Gesell who pointed out that there is nothing in the statute to support it, and rejected it as without merit.

Now, while there’s nothing in the Secretary’s assignment in connection with the duty to hire that there’s any reason to think that any Member of Congress might have wanted to veto, there is an evident reason for the legislative veto, and that is, that the committees did want to have a second look at the levels of assistance that were to be set by the Secretary under the now inoperative financial assistance program.

That was the hot issue, and indeed, the only mention of the legislative veto in the committee reports, and one of the two mentions of it in the entire legislative history, appears in the Senate report where the Senate committee says, the amount of such payments would be determined by regulations promulgated by the Department of Labor.

These regulations will be subject to Congressional review.

Petitioners response to this is that the duty to hire and the financial assistance were supposed to operate in tandem.

But that is true only in the sense that the duty to hire was the primary remedy expected to reduce the financial burden on the Government from the fallback… from the Government’s fallback remedy of financial assistance.

Louis R. Cohen:

The statute itself provided for financial assistance only until the recipient obtains other employment.

There isn’t any reason to assume that someone who wanted to veto the financial assistance would have wanted to veto requiring an airline that was otherwise hiring to give first preference, on whatever conditions the airline prescribes, to displaced employees.

And the… there’s nothing whatever to support petitioners’ suggestion that the continuation of their duty to hire, notwithstanding the dormancy of the financial assistance program, is either unfair to them or contrary to the intent of Congress.

Their argument that the Congress would not have enacted the duty to hire if it could not have a legislative veto is based on what the Court of Appeals called circumstantial evidence.

They point out that this is the only section in the statute that contains a veto.

But the absence of a veto provision in other sections tells us nothing whatever about whether this veto is an important provision or an unimportant provision.

And in this particular case, the presence of the veto is explained by the financial assistance program, which is not before the Court; and the absence of the veto in other sections is explained by the fact that this is primarily a deregulatory statute.

Mr. Coleman says that there are 25 other regulatory provisions.

He has only listed four of them in his brief.

And I think that we adequately demonstrate that each of the four was a minor and technical one.

Petitioners argue that two other legislative oversight features… the six-month provision and the report and wait provision… show the special importance of this legislative veto.

But apart from the fact that these provisions, too, relate primarily to financial assistance… indeed, the six-month requirement for the promulgation of regulations is directly linked to that in the statute… both provisions make it less likely; both the six-month provision and the duty-to-hire provision make it less likely that Congress, if it had been told, you can’t have a legislative veto, would have scrapped the duty-to-hire program.

The six-month provision shows that Congress was sufficiently concerned about labor protection to want to be sure regulations were in place promptly.

The report and wait provision gave Congress a valid method of oversight; that is, the Court observed in Chadha, made the veto even less important.

Petitioners suggestion that the legislative veto was part of a deliberate trade at conference is, I have to say, a figment of their imagination.

The statute itself, the conference report, and the postconference debate, contain no evidence that there was any bargaining that related in anyway to the veto.

Certainly there is no suggestion that the House, which had a bill providing more protection and much more discretion, which did not contain a legislative veto, demanded a legislative veto as the price of accepting the Senate bill.

In sum, if, as I think you should, you assume that even in the absence of a severability clause, which the Court told Congress would rarely make a difference, if you assume that even in the absence of a severability clause, the Court’s job is to see whether there is evidence in the structure and history of the statute that Congress would not have enacted a particular provision if it had known it could not have another provision, the answer as to both the statutory duty under Section 43(d)(1), and the authorization to write regulations that were incidental that duty, would clearly, I think in this case, have been enacted in any event.

Antonin Scalia:

Am I correct that the only regulations that are required to be issued under the Act are the guidelines under (b)(1), the financial assistance guidelines?

Are they the only ones that are required to be issued?

Louis R. Cohen:


Antonin Scalia:

So everything else, in implementing that chapter, the Secretary could have done by adjudication instead of… instead of by rule, right?

Louis R. Cohen:

Well, let me qualify it to say that the Secretary’s own assignments, the assignments to prepare and maintain and publish lists of available jobs, and to obtain information from the airlines for that purpose, are assignments that presumably called for him to issue regulations.

Antonin Scalia:


You think that’s a regulation, publishing… periodically publishing a comprehensive list of jobs available?

Louis R. Cohen:


Antonin Scalia:

That’s not a regulation.

Louis R. Cohen:

No, no, no.

Publishing, the mechanics for that process, publishing regulations; which is what these regulations do, which say that airlines shall file information about available jobs with the Secretary and so forth.

Antonin Scalia:

I’m not sure.

Antonin Scalia:

I’m not sure you would need regulations for the Secretary to do anything else under this Act, except the financial assistance portion.

So in requiring the approval of Congress, really the only thing for which the approval of Congress was unquestionably required was the establishment of the guidelines for the monthly assistance payments.

And the rest could conceivably have been done without regulation anyway, and could have been beyond the control of Congress.

Louis R. Cohen:

Well, I think it’s correct that Congress not only… that Congress did not… not only didn’t expect to veto any regulations with respect to the duty to hire, but that there’s no sign that they had any affirmative expectation that whole provision, which is the only thing before us, would involve the issuance of regulations at all.

Antonin Scalia:

There’s no requirement there that he issue any regulations.

Whereas there is for the monthly assistance computation.

He’s mandated, guidelines are mandated.

Louis R. Cohen:

That’s correct.

And when Congress does to say, regulations shall be sent up to us within six months, it says, the regulations under subsection (b) relating to the financial assistance program, and such other regulations as the Secretary may wish… may wish to promulgate.

And that’s what the statute says.

If the Court has no further questions, I would ask it to affirm.

William H. Rehnquist:

Thank you, Mr. Cohen.

Mr. Coleman, you have four minutes remaining.

William T. Coleman, Jr.:

Justice Scalia, your question, that’s the reason why I called your attention to 46A of the record.

The Secretary says that his authority that he’s exercising to issue these regulations is that authority contained in Section 43(f).

He cites no other authority.

Antonin Scalia:

This is on page 46A of–

William T. Coleman, Jr.:

Of the appendix, which is the record in the case.

Antonin Scalia:

–Right, right.

William T. Coleman, Jr.:

He says–

Antonin Scalia:

Oh, authority, Section 43(f) of the Airline Deregulation Act.

William T. Coleman, Jr.:

–That’s what he says he’s acting under.

Now, our position is that the entire Section 43 is null and void.

I would just urge you to read the legislative history–

Antonin Scalia:

Oh, but that’s not the point.

I don’t doubt that he’s acting under 43(f).

William T. Coleman, Jr.:


Antonin Scalia:

What I doubt is that he had to be… he had to act under… he had to issue any rules and regulations under 43(f).

William T. Coleman, Jr.:


Antonin Scalia:

You see, by reason of… by reason of 43(d)… I’m sorry, (b)(1), he had to proceed by regulation with respect to financial assistance.

Antonin Scalia:

But I see nothing in there that required him to proceed by regulation with regard to employee hiring.

William T. Coleman, Jr.:

–Well, I’d like to disagree with you, Your Honor, because–

Antonin Scalia:

I mean, he might do it.

He’s authorized to issue regulations.


William T. Coleman, Jr.:

–if you go on and read that… if you go on and read the rest of the section, that he’s also required to issue the other rules and regulations which the Secretary deems necessary to carry out this Section.

Antonin Scalia:

–Where are you reading from?

William T. Coleman, Jr.:

I’m reading the same Section you’re reading from, from (f)(2).

It says, he’s supposed to issue the guidelines with respect to the money, but also, any other regulations which he deems necessary to carry out this section.

Antonin Scalia:

If he wants to.

He has to do it within six months.

William T. Coleman, Jr.:

That’s right.

Antonin Scalia:

But there’s nothing that says he has to issue any regulations.

If he issues them, they have to be issued within six months.

William T. Coleman, Jr.:

But the one issue he had to issue was the financial regulation; he’s never done it.

Antonin Scalia:

Well, that’s right.

And that one–

William T. Coleman, Jr.:

And it seems to me that if you have a statute where the one thing it’s clear that he was supposed to do, he hasn’t done, I don’t think you then say, well, I’m going to save another part of the statute where it’s clear that the regulations that he’s trying to issue is to enforce the second part of that statute.

Antonin Scalia:

–I have no doubt he’s proceeding under (f).

But my point is, he didn’t have to proceed under (f).

He could have done it without the issuance of regulations.

William T. Coleman, Jr.:

I mean, if he moved on another… if he cited some other authority, I may not be in Court.

But it seems to me, when the Secretary says, I’m proceeding under this Section, he’s got to defend his authority under that Section.

I’m not saying he may not have another section.

And what I’d like to say just in closing–

Antonin Scalia:

I’m not sure you understand why I think it important, Mr. Coleman.

I think it important because there is no way, as this statute is set up, for the Congress… for the Secretary to do an end run around the legislative veto as far as financial assistance is concerned.

The only way he can get financial assistance out there is by issuing regulations.

He is mandated to do it by regulation.

He could have done an end run around the legislative veto on the remaining portion, because–

William T. Coleman, Jr.:

–He could not.

He could not, sir.

Because if he’d done what he was supposed to have done under the statute, he would have had both up there, because he was supposed to have one program.

In conclusion, may I say, as I understand your cases, you really have two sets of cases.

One set says, if Congress does four different things exercising four different powers, and you determine that one of the four is invalid, does that mean that the other three are also invalid?

It seems to me that’s the El Paso Railroad Case; that’s Carter Coal Company; and all those cases.

A separate and distinct set of cases is where Congress exercises one power and puts a condition on that power, can you say that the condition is invalid, but you leave the executive with the power?

And it seems to–

William H. Rehnquist:

Your time has expired, Mr. Coleman.

The case is submitted.

The Honorable Court is now adjourned until tomorrow at 10:00.