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of governing himself, then who among us has the capacity

to govern someone else? All of us together, in and out of

government, must bear the burden. The solutions we seek

must be equitable, with no one group singled out to pay a

higher price.

We hear much of special interest groups. Well, our

concern must be for a special interest group that has been

too long neglected. It knows no sectional boundaries or

ethnic and racial divisions, and it crosses-political party

lines. It is made up of men and women who raise our food,

patrol our streets, man our mines and factories, teach our

children, keep our homes, and heal us when we’re sick—

professionals, industrialists, shopkeepers, clerks, cabbies,

and truckdrivers. They are, in short, “We the people,” this

breed called Americans.

Well, this administration’s objective will be a healthy,

vigorous, growing economy that provides equal opportuni-

ties for all Americans, with no barriers born of bigotry or

discrimination. Putting America back to work means

putting all Americans back to work. Ending inflation means

freeing all Americans from the terror of runaway living

costs. All must share in the productive work of this “new

beginning,” and all must share in the bounty of a revived

economy. With the idealism and fair play which are the core

of our system and our strength, we can have a strong and

prosperous America, at peace with itself and the world.

So, as we begin, let us take inventory. We are a nation

that has a government—not the other way around. And

this makes us special among the nations of the Earth. Our

government has no power except that granted it by the

people. It is time to check and reverse the growth of gov-

ernment, which shows signs of having grown beyond the

consent of the governed.

It is my intention to curb the size and influence of the

Federal establishment and to demand recognition of the

distinction between the powers granted to the Federal

Government and those reserved to the States or to the

people. All of us need to be reminded that the Federal

Government did not create the States; the States created

the Federal Government.

Now, so there will be no misunderstanding, it’s not my

intention to do away with government. It is rather to make

it work—work with us, not over us; to stand by our side,

not ride on our back. Government can and must provide

opportunity, not smother it; foster productivity, not stifle it.

If we look to the answer as to why for so many years

we achieved so much, prospered as no other people on

Earth, it was because here in this land we unleashed the

energy and individual genius of man to a greater extent

than has ever been done before. Freedom and the dignity

of the individual have been more available and assured

here than in any other place on Earth. The price for this

freedom at times has been high, but we have never been

unwilling to pay that price.

It is no coincidence that our present troubles parallel

and are proportionate to the intervention and intrusion in

our lives that result from unnecessary and excessive

growth of government. It is time for us to realize that we’re

too great a nation to limit ourselves to small dreams. We’re

not, as some would have us believe, doomed to an

inevitable decline. I do not believe in a fate that will fall on

us no matter what we do. I do believe in a fate that will fall

on us if we do nothing. So, with all the creative energy

at our command, let us begin an era of national renewal.

Let us renew our determination, our courage, and our

strength. And let us renew our faith and our hope.

We have every right to dream heroic dreams. Those

who say that we’re in a time when there are not heroes,

they just don’t know where to look. You can see heroes

every day going in and out of factory gates. Others, a hand-

ful in number, produce enough food to feed all of us then

the world beyond. You meet heroes across a counter, and

they’re on both sides of that counter. There are entre-

preneurs with faith in themselves and faith in an idea who

create new jobs, new wealth and opportunity. They’re indi-

viduals and families whose taxes support the government

and whose voluntary gifts support church, charity, culture,

art, and education. Their patriotism is quiet, but deep.

Their values sustain our national life.

Now, I have used the words “they” and “their” in

speaking of these heroes. I could say “you” and “your,” be-

cause I’m addressing the heroes of whom I speak—you,

the citizens of this blessed land. Your dreams, your hopes,

your goals are going to be the dreams, the hopes, and the

goals of this administration, so help me God.

We shall reflect the compassion that is so much a part

of your makeup. How can we love our country and not love

our countrymen; and loving them, reach out a hand when

they fall, heal them when they’re sick, and provide oppor-

tunity to make them self-sufficient so they will be equal in

fact and not just in theory?

Can we solve the problems confronting us? Well, the

answer is an unequivocal and emphatic “yes.” To para-

phrase Winston Churchill, I did not take the oath I’ve just

taken with the intention of presiding over the dissolution

of the world’s strongest economy.

In the days ahead I will propose removing the road-

blocks that have slowed our economy and reduced pro-

ductivity. Steps will be taken aimed at restoring the

balance between the various levels of government.

Progress may be slow, measured in inches and feet, not

miles, but we will progress. It is time to reawaken this

industrial giant, to get government back within its means,

and to lighten our punitive tax burden. And these will be

1662 ERA 10: Contemporary United States

our first priorities, and on these principles there will be no

compromise.

On the eve of our struggle for independence a man

who might have been one of the greatest among the

Founding Fathers, Dr. Joseph Warren, president of the

Massachusetts Congress, said to his fellow Americans,

“Our country is in danger, but not to be despaired of. . .On

you depend the fortunes of America. You are to decide the

important questions upon which rests the happiness and

the liberty of millions yet unborn. Act worthy of your-

selves.”

Well, I believe we, the Americans of today, are ready

to act worthy of ourselves, ready to do what must be done

to ensure happiness and liberty for ourselves, our children,

and our children’s children. And as we renew ourselves

here in our own land, we will be seen as having greater

strength throughout the world. We will again be the exem-

plar of freedom and a beacon of hope for those who do not

now have freedom.

To those neighbors and allies who share our freedom,

we will strengthen our historic ties and assure them of our

support and firm commitment. We will match loyalty with

loyalty. We will strive for mutually beneficial relations. We

will not use our friendship to impose on their sovereignty,

for our own sovereignty is not for sale.

As for the enemies of freedom, those who are poten-

tial adversaries, they will be reminded that peace is the

highest aspiration of the American people. We will negoti-

ate for it, sacrifice for it; we will not surrender for it, now

or ever.

Our forbearance should never be misunderstood. Our

reluctance for conflict should not be misjudged as a failure

of will. When action is required to preserve our national

security, we will act. We will maintain sufficient strength to

prevail if need be, knowing that if we do so we have the

best chance of never having to use that strength.

Above all, we must realize that no arsenal or no

weapon in the arsenals of the world is so formidable as the

will and moral courage of free men and women. It is a

weapon our adversaries in today’s world do not have. It is

a weapon that we as Americans do have. Let that be under-

stood by those who practice terrorism and prey upon their

neighbors.

I’m told that tens of thousands of prayer meetings are

being held on this day, and for that I’m deeply grateful. We

are a nation under God, and I believe God intended for us

to be free. It would be fitting and good, I think, if on each

Inaugural Day in future years it should be declared a day

of prayer.

This is the first time in our history that this ceremony

has been held, as you’ve been told, on this West Front of

the Capitol. Standing here, one faces a magnificent vista,

opening up on this city’s special beauty and history. At the

end of this open mall are those shrines to the giants on

whose shoulders we stand.

Directly in front of me, the monument to a monu-

mental man, George Washington, father of our country. A

man of humility who came to greatness reluctantly. He led

America out of revolutionary victory into infant nation-

hood. Off to one side, the stately memorial to Thomas Jef-

ferson. The Declaration of Independence flames with his

eloquence. And then, beyond the Reflecting Pool, the dig-

nified columns of the Lincoln Memorial. Whoever would

understand in his heart the meaning of America will find it

in the life of Abraham Lincoln.

Beyond those monuments to heroism is the Potomac

River, and on the far shore the sloping hills of Arlington

National Cemetery, with its row upon row of simple white

markers bearing crosses or Stars of David. They add up to

only a tiny fraction of the price that has been paid for our

freedom.

Each one of those markers is a monument to the kind

of hero I spoke of either. Their lives ended in places called

Belleau Wood, The Argonne, Omaha Beach, Salerno, and

halfway around the world on Guadalcanal, Tarawa, Pork

Chop Hill, the Chosin Reservoir, and in a hundred rice

paddies and jungles of a place called Vietnam.

Under one such marker lies a young man, Martin

Treptow, who left his job in a small town barbershop in

1917 to go to France with the famed Rainbow Division.

There, on the western front, he was killed trying to carry a

message between battalions under heavy artillery fire.

We’re told that on his body was found a diary. On the

flyleaf under the heading, “My Pledge,” he had written

these words: “America must win this war. Therefore I will

work, I will save, I will sacrifice, I will endure, I will fight

cheerfully and do my utmost, as if the issue of the whole

struggle depended on me alone.”

The crisis we are facing today does not require of us

the kind of sacrifice that Martin Treptow and so many

thousands of others were called upon to make. It does

require, however, our best effort and our willingness to

believe in ourselves and to believe in our capacity to per-

form great deeds, to believe that together with God’s help

we can and will resolve the problems which now confront

us.

And after all, why shouldn’t we believe that? We are

Americans.

God bless you, and thank you.

Source:

Public Papers of the Presidents of the United States: Ronald Rea-

gan, 1981–1988. Washington, D.C.: Government Printing

Office, 1982–91.

Domestic Politics 1663

Immigration and Naturalization Service

v. Chadha, 1983

This case dealt with a device, first used in 1932, called a con-

gressional or legislative veto. Usually applied to domestic

questions, it was a way for Congress to control executive

authority. When placed in a law, it required certain presiden-

tial decisions to be subject to congressional disapproval, either

by one or both houses. In some instances, Congress further

delegated the veto to a committee or even a subcommittee so

as not to burden the entire house. This process allowed Con-

gress to respond to changing circumstances and make adjust-

ments. Although legislative veto cases had come before the

Supreme Court before,

Chadha

was the first time it dealt with

its merits.

Chadha, a foreign national, was admitted to the United

States on a student visa, and, after his visa had expired, an

immigration judge suspended his deportation. By the terms of

the Immigration and Nationality Act, which authorized either

house of Congress to invalidate the decision of the executive

branch allowing a particular deportable alien to remain in the

United States, the House of Representatives vetoed this sus-

pension. Chadha subsequently challenged the constitutional-

ity of the act. The Supreme Court ruled 7-2, with Associate

Justices White and Rehnquist dissenting, that the congres-

sional veto provision of the act was unconstitutional. Chief

Justice Burger, writing for the majority, reasoned that this

action was legislative and subject to the procedural require-

ments for legislative action. A one-house veto, he held, is

inherently unconstitutional, and by implication, so was a two-

house veto. Congress continued to insert legislative veto pro-

visions in statutes, but

Chadha

was cited when the Court, in

Clinton v. New York

(524 U.S. 681 [1998]), struck down the

president’s line-item veto in budget bills.

________________________

_______________________

(excerpt)

Chief Justice Burger delivered the opinion of the Court.

We granted certiorari. Each [case] presents a chal-

lenge to the constitutionality of the provision in Section

244(c)(2) of the Immigration, 66 Stat. 216, as amended, 8

U.S.C. Section 1254(c)(2), authorizing one House of

Congress by resolution, to invalidate the decision of the

Executive Branch, pursuant to authority delegated by

Congress to the Attorney General of the United States, to

allow a particular deportable alien to remain in the United

States.

Chadha is an East Indian who was born in Kenya and holds

a British passport. He was lawfully admitted to the United

States in 1966 on a nonimmigrant student visa. His visa

expired on June 30, 1972. On October 11, 1973, the Dis-

trict Director of the Immigration and Naturalization Ser-

vice ordered Chadha to show cause why he should not be

deported for having “remained in the United States for a

longer time than permitted.” . . . A deportation hearing

was held before an Immigration Judge on January 11,

1974. Chadha conceded that he was deportable for over-

staying his visa and the hearing was adjourned to enable

him to file an application for suspension of deportation.

[The section of the Immigration and Nationality Act] at

the time in question, provided:

“. . . the Attorney General may, in his discretion, sus-

pend deportation and adjust the status to that of an alien

lawfully admitted for permanent residence, in the case of

an alien who applies to the Attorney General for suspen-

sion of deportation and—

“(1) is deportable . . . ; has been physically present in

the United States for a continuous period of not less than

seven years immediately preceding the date of such appli-

cation, and proves that during all of such period he was

and is a person of good moral character; and is a person

whose deportation would, in the opinion of the Attorney

General, result in extreme hardship to the alien or to his

spouse, parent, or child, who is a citizen of the United

States or an alien lawfully admitted for permanent resi-

dence.”

After Chadha submitted his application for suspension

of deportation, the deportation hearing was resumed on

February 7, 1974. On the basis of evidence adduced at the

hearing . . . the Immigration Judge, on June 25, 1974,

ordered that Chadha’s deportation be suspended. . .and a

report of the suspension was transmitted to Congress.

Once the Attorney General’s recommendation for sus-

pension of Chadha’s deportation was conveyed to

Congress, Congress had the power . . . to veto the Attor-

ney General’s determination that Chadha should not be

deported. . . .

* * *

On December 12, 1975, Representative Eilberg, Chairman

of the Judiciary Subcommittee on Immigration, Citizen-

ship, and International Law, introduced a resolution oppos-

ing “the granting of permanent residence in the United

States to [six] aliens,” including Chadha. The resolution was

referred to the House Committee on the Judiciary. On

December 16, 1975, the resolution was discharged from

further consideration by the House Committee on the

Judiciary and submitted to the House of Representatives

for a vote. The resolution had not been printed and was

not made available to other Members of the House prior

to or at the time it was voted on. So far, as the record

1664 ERA 10: Contemporary United States

before us shows, the House consideration of the resolution

was based on Representative Eilberg’s statement from the

floor that

[i]t was the feeling of the committee, after reviewing

340 cases, that the aliens contained in the resolution

[Chadha and five others] did not meet these statutory

requirements, particularly as it relates to hardship; and it is

the opinion of the committee that their deportation should

not be suspended.

The resolution was passed without debate or recorded

vote. Since the House action was pursuant to Section

244(c)(2), the resolution was not treated as an Art. I leg-

islative act; it was not submitted to the Senate or presented

to the President for his action.

After the House veto of the Attorney General’s deci-

sion to allow Chadha to remain in the United States, the

Immigration Judge reopened the deportation proceedings

to implement the House order deporting Chadha. Chadha

moved to terminate the proceedings on the ground that

Section 244(c)(2) is unconstitutional. The Immigration

Judge held that he had no authority to rule on the consti-

tutional validity of Section 244(c)(2). On November 8,

1976, Chadha was ordered deported pursuant to the

House action.

Chadha appealed the deportation order to the Board

of Immigration Appeals, again contending that Section

244(c)(2) is unconstitutional. The Board held that it had

“no power to declare unconstitutional an act of Congress”

and Chadha’s appeal was dismissed.

. . .Chadha filed a petition for review of the deporta-

tion order in the United States Court of Appeals for the

Ninth Circuit. The Immigration and Naturalization Ser-

vice agreed with Chadha’s position before the Court of

Appeals and joined him in arguing that Section 244(c)(2) is

unconstitutional. In light of the importance of the ques-

tion, the Court of Appeals invited both the Senate and the

House of Representatives to file briefs amici curiae.

. . .The Court of Appeals held that the House was

without constitutional authority to order Chadha’s depor-

tation; accordingly it directed the Attorney General “to

cease and desist from taking any steps to deport this alien

based upon the resolution enacted by the House of Rep-

resentatives.” The essence of its holding was that Section

244(c)(2) violates the constitutional doctrine of separation

of powers.

We . . . now affirm.

Before we address the important question of the constitu-

tionality of the one-House veto provision of Section

244(c)(2), we first consider several challenges to the

authority of this Court to resolve the issue raised.

Appellate Jurisdiction

[1] Both Houses of Congress contend that we are

without jurisdiction under 28 U.S.C. Section 1252 to

entertain the INS appeal. . .:

“Any party may appeal to the Supreme Court from an

interlocutory or final judgment, decree or order of any

court of the United States, the United States District

Court for the District of the Canal Zone, the District

Court of Guam and the District Court of the Virgin Islands

and any court of record of Puerto Rico, holding an Act of

Congress unconstitutional in any civil action, suit, or pro-

ceeding to which the United States or any of its agencies,

or any officer or employee thereof, as such officer or

employee, is a party.”

. . .The express requisites for an appeal under Section

1252, therefore, have been met.

. . .Both Houses contend that the INS has already

received what it sought from the Court of Appeals, is not

an aggrieved party, and therefore cannot appeal from the

decision of the Court of Appeals. We cannot agree.

. . .The INS brief to the Court of Appeals did not alter

the agency’s decision to comply with the House action

ordering deportation of Chadha. The Court of Appeals set

aside the deportation proceedings and ordered the Attor-

ney General to cease and desist from taking any steps to

deport Chadha; steps that the Attorney General would

have taken were it not for that decision.

[2] . . .We hold that the INS was sufficiently aggrieved

by the Court of Appeals decision prohibiting it from taking

action it would otherwise take. . . . When an agency of the

United States is a party to a case in which the Act of

Congress it administers is held unconstitutional, it is an

aggrieved party for purposes of taking an appeal under Sec-

tion 1252. The appeal . . . is therefore properly before us.

Severability

Congress also contends that the provision for the one-

House veto in Section 244(c)(2) cannot be severed from

Section 244. Congress argues that if the provision for the

one-House veto is held unconstitutional, all of Section 244

must fall. If Section 244 in its entirety is violative of the

Constitution, it follows that the Attorney General has no

authority to suspend Chadha’s deportation under Section

244(a)(1) and Chadha would be deported. From this,

Congress argues that Chadha lacks standing to challenge

the constitutionality of the one-House veto provision

because he could receive no relief even if his constitutional

challenge proves successful.

Only recently this Court reaffirmed that the invalid

portions of a statute are to be severed “‘[u]nless it is

Domestic Politics 1665

evident that the Legislature would not have enacted those

provisions which are within its power, independently of

that which is not.’” . . . Congress itself has provided the

answer to the question of severability in Section 406 of the

Immigration and Nationality Act, note following 8 U.S.C.

Section 1101, which provides:

“If any particular provision of this Act, or the applica-

tion thereof to any person or circumstance, is held invalid,

the remainder of the Act and the application of such pro-

vision to other persons or circumstances shall not be

affected thereby.”

* * *

Standing

We must also reject the contention that Chadha lacks

standing because a consequence of his prevailing will

advance the interests of the Executive Branch in a separa-

tion-of-powers dispute with Congress, rather than simply

Chadha’s private interests. Chadha has demonstrated

“injury in fact and a substantial likelihood that the judicial

relief requested will prevent or redress the claimed injury

. . . .” If the veto provision violates the Constitution, and is

severable, the deportation order against Chadha will be

canceled. Chadha therefore has standing to challenge the

order of the Executive mandated by the House veto.

Alternative Relief

It is contended that the Court should decline to

decide the constitutional question presented by these

cases because Chadha may have other statutory relief

available to him. It is argued that since Chadha married a

United States citizen on August 10, 1980, it is possible that

other avenues of relief may be open under [other sec-

tions]. It is true that Chadha may be eligible for classifica-

tion as an “immediate relative” and, as such, could lawfully

be accorded permanent residence. Moreover, in March

1980, just prior to the decision of the Court of Appeals in

this case, Congress enacted the Refugee Act of 1980,

under which the Attorney General is authorized to grant

asylum, and then permanent residence, to any alien who is

unable to return to his country of nationality because of “a

well-founded fear of persecution on account of race.”

It is urged that these two intervening factors consti-

tute a prudential bar to our consideration of the constitu-

tional question presented in this case. If we could perceive

merit in this contention we might well seek to avoid decid-

ing the constitutional claim advanced. But at most these

other avenues of relief are speculative. It is by no means

certain, for example, that Chadha’s classification as an

immediate relative would result in the adjustment of

Chadha’s status from nonimmigrant to permanent resi-

dent. If Chadha is successful in his present challenge he

will not be deported and will automatically become eligi-

ble to apply for citizenship. A person threatened with

deportation cannot be denied the right to challenge the

constitutional validity of the process which led to his status

merely on the basis of speculation over the availability of

other forms of relief.

Jurisdiction

It is contended that the Court of Appeals lacked juris-

diction. . . . Congress argues that the one-House veto . . .

takes place outside the administrative proceedings . . . and

that the jurisdiction grant contained in Section 106(a) does

not encompass Chadha’s constitutional challenge. . . .

Here, Chadha’s deportation stands or falls on the validity

of the challenged veto; the final order of deportation was

entered against Chadha only to implement the action of

the House of Representatives. Although the Attorney

General was satisfied that the House action was invalid and

that it should not have any effect on his decision to sus-

pend deportation, he appropriately let controversy take its

course through the courts.

. . . Chadha directly attacks the deportation order

itself, and the relief he seeks—cancellation of deporta-

tion—is plainly inconsistent with the deportation order.

Accordingly, the Court of Appeals had jurisdiction. . . .

Case or Controversy

[9] It is also contended that this is not a genuine con-

troversy but “a friendly, nonadversary, proceeding” upon

which the Court should not pass. This argument rests on

the fact that Chadha and the INS take the same position

on the constitutionality of the one-House veto. But it

would be a curious result if, in the administration of jus-

tice, a person could be denied access to the courts because

the Attorney General of the United States agreed with the

legal arguments asserted by the individual.

A case or controversy is presented by these cases. . . .

Congress is both a proper party to defend the constitu-

tionality of Section 244(c)(2) and a proper petitioner under

28 U.S.C. Section 1254(1). Second, prior to Congress’

intervention, there was adequate Art. III adverseness even

though the only parties were the INS and Chadha. . . . We

agree with the Court of Appeals that “Chadha has asserted

a concrete controversy, and our decision will have real

meaning: if we rule for Chadha, he will not be deported; if

we uphold Section 244(c)(2), the INS will execute its order

and deport him.”

. . . We have long held that Congress is the proper

party to defend the validity of a statute when an agency of

1666 ERA 10: Contemporary United States

government, as a defendant charged with enforcing the

statute, agrees with plaintiffs that the statute is inapplica-

ble or unconstitutional.

Political Question

It is also argued that these cases present a nonjusticia-

ble political question because Chadha is merely challeng-

ing Congress’ authority under the Naturalization Clause,

U.S. Const., Art. I, Section 8, cl. 4, and the Necessary and

Proper Clause, U.S.Const., Art. I, Section 8, cl. 18. It is

argued that Congress’ Art. I power “To establish an uni-

form Rule of Naturalization,” combined with the Neces-

sary and Proper Clause, grants it unreviewable authority

over the regulation of aliens. The plenary authority of

Congress over aliens under Art. I, Section 8, cl. 4, is not

open to question, but what is challenged here is whether

Congress has chosen a constitutionally permissible means

of implementing that power. “. . . Congress has plenary

authority in all cases in which it has substantive legislative

jurisdiction so long as the exercise of that authority does

not offend some other constitutional restriction.”

* * *

It is correct that this controversy may, in a sense, be

termed “political.” But the presence of constitutional

issues with significant political overtones does not auto-

matically invoke the political question doctrine. Resolution

of litigation challenging the constitutional authority of one

of the three branches cannot be evaded by courts because

the issues have political implications in the sense urged by

Congress.

* * *

III A

We turn now to the question whether action of one House

of Congress under Section 244(c)(2) violates strictures of

the Constitution. We begin, of course, with the presump-

tion that the challenged statute is valid. Its wisdom is not

the concern of the courts; if a challenged action does not

violate the Constitution, it must be sustained. . . .

* * *

By the same token, the fact that a given law or procedure is

efficient, convenient, and useful in facilitating functions of

government, standing alone, will not save it if it is contrary

to the Constitution. Convenience and efficiency are not the

primary objectives—or the hallmarks—of democratic gov-

ernment and our inquiry is sharpened rather than blunted

by the fact that congressional veto provisions are appearing

with increasing frequency in statutes which delegate

authority to executive and independent agencies. . . .

* * *

Justice White undertakes to make a case for the proposi-

tion that the one-House veto is a useful “political inven-

tion,” and we need not challenge that assertion. . . . But

policy arguments supporting even useful “political inven-

tions” are subject to the demands of the Constitution

which defines powers and, with respect to this subject, sets

out just how those powers are to be exercised.

Explicit and unambiguous provisions of the Constitu-

tion prescribe and define the respective functions of the

Congress and of the Executive in the legislative process.

Since the precise terms of those familiar provisions are

critical to the resolution of these cases, we set them out

verbatim. Article I provides:

“All legislative Powers herein granted shall be vested

in a Congress of the United States, which shall consist of a

Senate and House of Representatives.” Art. I, Section 1.

(Emphasis added.)

“Every Bill which shall have passed the House of Rep-

resentatives and the Senate, shall, before it becomes a law,

be presented to the President of the United States . . . .”

“Every Order, Resolution, or Vote to which the Con-

currence of the Senate and House of Representatives may

be necessary (except on a question of Adjournment) shall

be presented to the President of the United States; and

before the Same shall take Effect, shall be approved by

him, or being disapproved by him, shall be repassed by two

thirds of the Senate and House of Representatives, accord-

ing to the Rules and Limitations prescribed in the Case of

a Bill.”

These provisions of Art. I are integral parts of the con-

stitutional design for the separation of powers. . . . The

very structure of the Articles delegating and separating

powers under Arts. I, II, and III exemplifies the concept of

separation of powers. . . .

* * *

The Constitution sought to divide the delegated powers of

the new Federal Government into three defined cate-

gories, Legislative, Executive, and Judicial, to assure, as

nearly as possible, that each Branch of government would

confine itself to its assigned responsibility. The hydraulic

pressure inherent within each of the separate Branches to

exceed the outer limits of its power, even to accomplish

desirable objectives, must be resisted.

Although not “hermetically” sealed from one another,

the powers delegated to the three Branches are function-

ally identifiable. When any Branch acts, it is presumptively

exercising the power the Constitution has delegated to it.

When the Executive acts, he presumptively acts in an exec-

utive or administrative capacity as defined in Art. II. And

Domestic Politics 1667

when, as here, one House of Congress purports to act, it is

presumptively acting within its assigned sphere.

Beginning with this presumption, we must neverthe-

less establish that the challenged action under Section

244(c)(2) is of the kind to which the procedural require-

ment of Art. I, Section 7, apply. . . .Whether actions taken

by either House are, in law and fact, an exercise of legisla-

tive power depends not on their form but upon “whether

they contain matter which is properly to be regarded as

legislative in its character and effect.”

Examination of the action taken here by one House

pursuant to Section 244(c)(2) reveals that it was essentially

legislative in purpose and effect. In purporting to exercise

power defined in Art. I, Section 8, cl. 4, to “establish an

uniform Rule of Naturalization,” the House took action

that had the purpose and effect of altering the legal rights,

duties, and relations of persons, including the Attorney

General, Executive Branch officials and Chadha, all out-

side the Legislative Branch. Section 244(c)(2) purports to

authorize one House of Congress to require the Attorney

General to deport an individual alien whose deportation

otherwise would be canceled under Section 244. The one-

House veto operated in these cases to overrule the Attor-

ney General and mandate Chadha’s deportation; absent

the House action, Chadha would remain in the United

States. Congress has acted and its action has altered

Chadha’s status.

The legislative character of the one-House veto in

these cases is confirmed by the character of the congres-

sional action it supplants. Neither the House of Represen-

tatives nor the Senate contends that, absent the veto

provision in Section 244(c)(2), either of them, or both of

them acting together, could effectively require the Attor-

ney General to deport an alien once the Attorney General,

in the exercise of legislatively delegated authority, had

determined the alien should remain in the United States.

Without the challenged provision in Section 244(c)(2), this

could have been achieved, if at all, only by legislation

requiring deportation. Similarly, a veto by one House of

Congress under Section 244(c)(2) cannot be justified as an

attempt at amending the standards set out in Section

244(a)(1), or as a repeal of Section 244 as applied to

Chadha. Amendment and repeal of statutes, no less than

enactment, must conform with Art. I.

The nature of the decision implemented by the one-

House veto in these cases further manifests its legislative

character. After long experience with the clumsy, time-

consuming private bill procedure, Congress made a delib-

erate choice to delegate to the Executive Branch, and

specifically to the Attorney General, the authority to allow

deportable aliens to remain in this country in certain spec-

ified circumstances. It is not disputed that this choice to

delegate authority is precisely the kind of decision that can

be implemented only in accordance with the procedures

set out in Art. 1. Disagreement with the Attorney General’s

decision on Chadha’s deportation—that is, Congress’ deci-

sion to deport Chadha—no less than Congress’ original

choice to delegate to the Attorney General the authority to

make that decision, involves determinations of policy that

Congress can implement in only one way; bicameral pas-

sage followed by presentment to the President. Congress

must abide by its delegation of authority until that delega-

tion is legislatively altered or revoked.

Finally, we see that when the Framers intended to

authorize either House of Congress to act alone and out-

side of its prescribed bicameral legislative role, they nar-

rowly and precisely defined the procedure for such action.

There are four provisions in the Constitution, explicit and

unambiguous, by which one House may act alone with the

unreviewable force of law, not subject to the President’s

veto:

(a) The House of Representatives alone was given the

power to initiate impeachment’s.

(b) The Senate alone was given the power to conduct

trials following impeachment on charges initiated by the

House and to convict following trial.

power to approve or to disapprove Presidential appoint-

ments.

(d) The Senate alone was given unreviewable power to

ratify treaties negotiated by the President.

Clearly, when the Draftsmen sought to confer special

powers on one House, independent of the other House, or

of the President, they did so in explicit, unambiguous

terms. These carefully defined exceptions from present-

ment and bicameralism underscore the difference

between the legislative functions of Congress and other

unilateral but important and binding one-House acts pro-

vided for in the Constitution. These exceptions are narrow,

explicit, and separately justified; none of them authorize

the action challenged here. On the contrary, they provide

further support for the conclusion that congressional

authority is not to be implied and for the conclusion that

the veto provided for in Section 244(c)(2) is not authorized

by the Constitutional design of the powers of the Legisla-

tive Branch.

Since it is clear that the action by the House under

Section 244(c)(2) was not within any of the express consti-

tutional exceptions authorizing one House to act alone,

and equally clear that it was an exercise of legislative

power, that action was subject to the standards prescribed

in Art. I. The bicameral requirement, the Presentment

Clauses, the President’s veto, and Congress’ power to over-

ride a veto were intended to erect enduring checks on each

1668 ERA 10: Contemporary United States

Branch and to protect the people from the improvident

exercise of power by mandating certain prescribed steps.

To preserve those checks, and maintain the separation of

powers, the carefully defined limits on the power of each

Branch must not be eroded. To accomplish what has been

attempted by one House of Congress in this case requires

action in conformity with the express procedures of

the Constitution’s prescription for legislative action: pas-

sage by a majority of both Houses and presentment to the

President.

The veto authorized by Section 244(c)(2) doubtless

has been in many respects a convenient shortcut; the

“sharing” with the Executive by Congress of its authority

over aliens in this manner is, on its face, an appealing com-

promise. In purely practical terms, it is obviously easier for

action to be taken by one House without submission to the

President; but it is crystal clear from the records of the

Convention, contemporaneous writings and debates, that

the Framers ranked other values higher than efficiency.

The records of the Convention and debates in the states

preceding ratification underscore the common desire to

define and limit the exercise of the newly created federal

powers affecting the states and the people. There is unmis-

takable expression of a determination that legislation by

the national Congress be a step-by-step, deliberate and

deliberative process.

The choices we discern as having been made in the

Constitutional Convention impose burdens on govern-

mental processes that often seem clumsy, inefficient,

even unworkable, but those hard choices were con-

sciously made by men who had lived under a form of gov-

ernment that permitted arbitrary governmental acts to go

unchecked. There is no support in the Constitution or

decisions of this Court for the proposition that the cum-

bersomeness and delays often encountered in complying

with explicit constitutional standards may be avoided,

either by the Congress or by the President. With all the

obvious flaws of delay, untidiness, and potential for

abuse, we have not yet found a better way to preserve

freedom than by making the exercise of power subject to

the carefully crafted restrains spelled out in the Consti-

tution.

We hold that the congressional veto provision in Section

244(c)(2) is severable from the Act and that it is unconsti-

tutional. Accordingly, the judgment of the Court of

Appeals is

Affirmed.

Source:

Supreme Court Reporter, Vol. 103, pp. 2,764–2,817.

Texas v. Johnson, 1989

U.S. Supreme Court decision issued June 21, 1989, declaring

that burning the American flag as a form of symbolic speech

was an action protected by First Amendment guarantee of free

expression. In its 5-4 decision, the Court ruled that the govern-

ment “may not prohibit the expression of an idea simply be-

cause society finds the idea itself offensive or disagreeable.”

The case involved Gregory Johnson, a member of a Communist

Party youth organization, who was convicted of defiling the flag

after he burned one during the 1984 Republican National Con-

vention in Dallas, Texas. The ruling invalidated state and fed-

eral laws against desecrating the flag and led to proposals for a

U.S. constitutional amendment to prohibit flag burning.

Citations have been removed.

________________________

_______________________

Justice Brennan delivered the opinion of the Court.

After publicly burning an American flag as a means of

political protest, Gregory Lee Johnson was convicted of

desecrating a flag in violation of Texas law. This case pre-

sents the question whether his conviction is consistent

with the First Amendment. We hold that it is not.

While the Republican National Convention was taking

place in Dallas in 1984, respondent Johnson participated

in a political demonstrations dubbed the “Republican War

Chest Tour.” As explained in literature distributed by the

demonstrators and in speeches made by them, the purpose

of this event was to protest the policies of the Reagan

administration and of certain Dallas-based corporations.

The demonstrators marched through the Dallas streets,

chanting political slogans and stopping at several corporate

locations to stage “die-ins” intended to dramatize the con-

sequences of nuclear war. On several occasions they spray-

painted the walls of buildings and overturned potted

plants, but Johnson himself took no part in such activities.

He did, however, accept an American flag handed to him

by a fellow protester who had taken it from a flagpole out-

side one of the targeted buildings.

The demonstration ended in front of Dallas City Hall,

where Johnson unfurled the American flag, doused it with

kerosene, and set it on fire. While the flag burned, the

protester chanted: “America, the red, white, and blue, we

spit on you.” After the demonstrators dispersed, a witness

to the flag burning collected the flag’s remains and buried

them in his backyard. No one was physically injured or

threatened with injury, though several witnesses testified

that they had been seriously offended by the flag burning.

Of the approximately 100 demonstrators, Johnson

alone was charged with a crime. The only criminal offense

Domestic Politics 1669

with which he was charged was the desecration of a vener-

ated object in violation of Tex.Penal Code. After a trial,

he was convicted, sentenced to one year in prison, and

fined $2,000. The Court of Appeals for the Fifth District

of Texas at Dallas affirmed Johnson’s conviction, but

the Texas Court of Criminal Appeals reversed, holding

that the State could not, consistent with the First Amend-

ment, punish Johnson for burning the flag in these cir-

cumstances.

The Court of Criminal Appeals began by recognizing

that Johnson’s conduct was symbolic speech protected by

the First Amendment: “Given the context of an organized

demonstration, speeches, slogans, and the distribution of

literature, anyone who observed appellant’s act would have

understood the message that appellant intended to convey.

The act for which appellant was convicted was clearly

‘speech’ contemplated by the First Amendment.” To jus-

tify Johnson’s conviction for engaging in symbolic speech,

the State asserted two interests: preserving the flag as a

symbol of national unity and preventing breaches of the

peace. The Court of Criminal Appeals held that neither

interest supported his conviction.

Acknowledging that this Court had not yet decided

whether the Government may criminally sanction flag des-

ecration in order to preserve the flag’s symbolic value, the

Texas court nevertheless concluded that our decision in

West Virginia Board of Education v. Barnette suggested

that furthering this interest by curtailing speech was

impermissible. “Recognizing that the right to differ is the

centerpiece of our First Amendment freedoms,” the court

explained, “a government cannot mandate by fiat a feeling

of unity in its citizens. Therefore, that very same govern-

ment cannot carve out a symbol of unity and prescribed a

set of approved messages to be associated with that symbol

when it cannot mandate the status or feeling the symbol

purports to represent.” Noting that the State had not

shown that the flag was in “grave and immediate danger”

of being stripped of its symbolic value, the Texas court also

decided that the flag’s special status was not endangered by

Johnson’s conduct.

As to the State’s goal of preventing breaches of the

peace, the court concluded that the flag-desecration

statute was not drawn narrowly enough to encompass only

those flag burnings that were likely to result in a serious

disturbance of the peace. And in fact, the court empha-

sized, the flag burning in this particular case did not

threaten such a reaction. “Serious offense’ occurred,” the

court admitted, “but there was no breach of peace nor

does the record reflect that the situation was potentially

explosive. One cannot equate ‘serious offense’ with incite-

ment to breach the peace.” The court also stressed that

another Texas statute prohibited breaches of the peace.

Citing Boos v. Barry, the court decided that Section 42.01

demonstrated Texas’ ability to prevent disturbances of the

peace without punishing this flag desecration.

Because it reversed Johnson’s conviction on the

ground that Section 42.09 was unconstitutional as applied

to him, the state court did not address Johnson’s argument

that the statute was, on its face, unconstitutionally vague

and overbroad. We granted certiorari and now affirm.

Johnson was convicted of flag desecration for burning the

flag rather than for uttering insulting words. This fact

somewhat complicates our consideration of his conviction

under the First Amendment. We must first determine

whether Johnson’s burning of the flag constituted expres-

sive conduct, permitting him to invoke the First Amend-

ment in challenging his conviction. If his conduct was

expressive, we next decide whether the State’s regulation is

related to the suppression of free expression. If the State’s

regulation is not related to expression, then the less strin-

gent standard we announced in United States v. O’Brien

for regulations of noncommunicative conduct controls. If

it is, then we are outside of O’Brien’ s test, and we must ask

whether this interest justifies Johnson’s conviction under a

more demanding standard. A third possibility is that the

State’s asserted interest is simply not implicated on these

facts, and in that event the interest drops out of the pic-

ture.

The First Amendment literally forbids the abridgment

only of “speech,” but we have long recognized that its pro-

tection does not end at the spoken or written word. While

we have rejected “the view that an apparently limitless

variety of conduct can be labeled ‘speech’ whenever the

person engaging in the conduct intends thereby to express

an idea,” we have acknowledged that conduct may be “suf-

ficiently imbued with elements of communication to fall

within the scope of the First and Fourteenth Amend-

ments. . . .”

In deciding whether particular conduct possesses suf-

ficient communicative elements to bring the First Amend-

ment into play, we have asked whether “[a]n intent to

convey a particularized message was present, and

[whether] the likelihood was great that the message would

be understood by those who viewed it.” Hence, we have

recognized the expressive nature of students’ wearing of

black armbands to protest American military involvement

in Vietnam; of a sit-in by blacks in a “whites only” area to

protest segregation; of the wearing of American military

uniforms in a dramatic presentation criticizing American

involvement in Vietnam; and of picketing about a wide

variety of causes.

Especially pertinent to this case are our decisions rec-

ognizing the communicative nature of conduct relating to

flags. Attaching a peace sign to the flag, refusing to salute

1670 ERA 10: Contemporary United States

the flag, and displaying a red flag, we have held, all may

find shelter under the First Amendment. That we have

had little difficulty identifying an expressive element in

conduct relating to flags should not be surprising. The very

purpose of a national flag is to serve as a symbol of our

country; it is, one might say, “the one visible manifestation

of two hundred years of nationhood. Thus, we have

observed:

“[T]he flag salute is a form of utterance. Symbolism is

a primitive but effective way of communicating ideas. The

use of an emblem or flag to symbolize some system, idea,

institution, or personality, is a short cut from mind to mind.

Causes and nations, political parties, lodges and ecclesias-

tical groups seek to knit the loyalty of their followings to a

flag or banner, a color or design.”

Pregnant with expressive content, the flag as readily

signifies this Nation as does the combination of letters

found in “America.”

We have not automatically concluded, however, that

any action taken with respect to our flag is expressive.

Instead, in characterizing such action for First Amend-

ment purposes, we have considered the context in which it

occurred. . . .

The State of Texas conceded for purposes of its oral

argument in this case that Johnson’s conduct was expres-

sive conduct, and this concession seems to us . . . prudent

. . . . Johnson burned an American flag as part—indeed, as

the culmination—of a political demonstration that coin-

cided with the convening of the Republican Party and its

renomination of Ronald Reagan for President. The expres-

sive, overtly political nature of this conduct was both inten-

tional and overwhelmingly apparent. At his trial, Johnson

explained his reasons for burning the flag as follows: “The

American Flag was burned as Ronald Reagan was being

renominated as President. And a more powerful statement

of symbolic speech, whether you agree with it or not,

couldn’t have been made at that time. It’s quite a [juxtapo-

sition]. We had new patriotism and no patriotism.” In these

circumstances, Johnson’s burning of the flag was conduct

“sufficiently imbued with elements of communication” to

implicate the First Amendment.

III

The government generally has a freer hand in restricting

expressive conduct than it has in restricting the written or

spoken word. It may not, however, proscribe particular

conduct because it has expressive elements. “[W]hat might

be termed the more generalized guarantee of freedom of

expression makes the communicative nature of conduct an

inadequate basis for singling out that conduct for proscrip-

tion. A law directed at the communicative nature of con-

duct must, like a law directed at speech itself, be justified

by the substantial showing of need that the First Amend-

ment requires.” It is, in short, not simply the verbal or non-

verbal nature of the expression, but the governmental

interest at stake, that helps to determine whether a restric-

tion on that expression is valid.

Thus, although we have recognized that where

“‘speech’ and ‘nonspeech’ elements are combined in the

same course of conduct, a sufficiently important govern-

mental interest in regulating the nonspeech element can

justify incidental limitations on First Amendment free-

doms,” we have limited the applicability of O’Brien’s rela-

tively lenient standard to those cases in which “the

governmental interest is unrelated to the suppression of

free expression.” In stating, moreover, that O’Brien’s test

“in the last analysis is little, if any, different from the stan-

dard applied to time, place, or manner restrictions,” we

have highlighted the requirement that the governmental

interest in question be unconnected to expression in order

to come under O’Brien’s less demanding rule.

In order to decide whether O’Brien’s test applies here,

therefore, we must decide whether Texas has asserted an

interest in support of Johnson’s conviction that is unrelated

to the suppression of expression. If we find that an interest

asserted by the State is simply not implicated on the facts

before us, we need not ask whether O’Brien’s test applies.

The State offers two separate interests to justify this con-

viction: preventing breaches of the peace and preserving

the flag as a symbol of nationhood and national unity. We

hold that the first interest is not implicated on this record

and that the second is related to the suppression of expres-

sion.

Texas claims that its interest in preventing breaches of the

peace justifies Johnson’s conviction for flag desecration.

However, no disturbance of the peace actually occurred or

threatened to occur because of Johnson’s burning of the

flag. Although the State stresses the disruptive behavior of

the protesters during their march toward City Hall, Brief

for Petitioner 34-36, it admits that “no actual breach of the

peace occurred at the time of the flagburning or in

response to the flagburning.”The State’s emphasis on the

protesters’ disorderly actions prior to arriving at City Hall

is not only somewhat surprising given that no charges were

brought on the basis of this conduct, but it also fails to

show that a disturbance of the peace was a likely reaction

to Johnson’s conduct. The only evidence offered by the

State at trial to show the reaction to Johnson’s actions was

the testimony of several persons who had been seriously

offended by the flag burning.

The State’s position, therefore, amounts to a claim that

an audience that takes serious offense at particular expres-

sion is necessarily likely to disturb the peace and that the

expression may be prohibited on this basis. Our prece-

Domestic Politics 1671