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ALASKA AIRLINES, INC. v. DONOVAN

May 18, 1984

ALASKA AIRLINES, INC., ET AL., Plaintiffs,
v.
RAYMOND J. DONOVAN, ET AL., Defendants; AIR LINE PILOTS ASSOCIATION, INTERNATIONAL ASSOCIATION OF FLIGHT ATTENDANTS and BROTHERHOOD OF RAILWAY AND AIRLINE CLERKS, ETC., Intervening Defendants



The opinion of the court was delivered by: GESELL

 This case challenges the validity of § 43 of the Airline Deregulation Act (ADA), Pub. L. No. 95-504, 92 Stat. 1705 (1978), as well as the validity of regulations implementing § 43. The federal government undertook extensive control over commercial airline operations beginning in the 1930's. The Civil Aeronautics Act of 1938 and its successor, the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq., granted to the Civil Aeronautics Board (CAB) broad powers to regulate nearly every aspect of the industry. This structure was dramatically altered in 1978, however, with the passage of the Airline Deregulation Act. In the sweeping provisions of this Act the CAB was directed to take steps to gradually lessen and finally abolish nearly all economic regulation of the airline industry; indeed, the Act provided for the CAB itself to go out of existence by 1985. *fn1"

 In anticipation of the upheaval and possible economic hardship which might result from deregulation, Congress enacted as § 43 of the Act an "Employee Protection Program" (EPP). This provision had two closely linked components: an "assistance payments" program by which the Secretary of Labor, "subject to such amounts as are provided in appropriations Acts," would make monthly assistance payments to certain "protected" airline employees laid off as a result of deregulation, and a "first hire" program by which carriers certificated by the CAB as of a particular date would be required to hire "protected" employees laid off by other carriers before hiring other individuals not previously furloughed by the hiring airline itself. Many aspects of these programs were left unresolved by the terms of § 43.

 The Secretary of Labor was directed by § 43(f) to issue the regulations necessary to carry out the Employee Protection Program within six months, subject to legislative veto before they became effective. Despite the six-month deadline, final regulations were not proposed for the "first hire" program until 1983. Airline Employee Protection Program, 48 Fed. Reg. 52,854 (Nov. 22, 1983). These regulations are now scheduled to become effective immediately. The Secretary has yet to issue regulations covering the assistance payments program, which Congress has never funded.

 Section 43(f) states:

 
(f) Rules and Regulations. -- (1) The Secretary may issue, amend, and repeal such rules and regulations as may be necessary for the administration of this section.
 
(2) The rule containing the guidelines which is required to be promulgated pursuant to subsection (b) of this section and any other rules or regulations which the Secretary deems necessary to carry out this section shall be promulgated within six months after the date of enactment of this section.
 
(3) The Secretary shall not issue any rule or regulation as a final rule or regulation under this section until 30 legislative days after it has been submitted to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Public Works and Transportation of the House of Representatives. Any rule or regulation issued by the Secretary under this section as a final rule or regulation shall be submitted to the Congress and shall become effective 60 legislative days after the date of such submission, unless during that 60-day period either House adopts a resolution stating that that House disapproves such rules or regulations, except that such rules or regulations may become effective on the date, during such 60-day period, that a resolution has been adopted by both Houses stating that the Congress approves of them.
 
(4) For purposes of this subsection, the term "legislative day" means a calendar day on which both Houses of Congress are in session.

 As the government concedes, the legislative veto provision found in § 43(f)(3) is unconstitutional under the Supreme Court's holding in INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983). The issue therefore is whether this defective portion of § 43 can be "severed" from the rest of that section and the remainder enforced as valid law, or whether the legislative veto provision is so fundamentally a part of that provision that it unconstitutionally infects the entire section.

 The proper analysis to be followed in determining the issue of severability is well established. "Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independent of that which is not, the invalid part may be dropped if what is left is fully operative law." Buckley v. Valeo, 424 U.S. 1, 108, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (per curiam), quoting Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 76 L. Ed. 1062, 52 S. Ct. 559 (1932). See also Chadha, 103 S. Ct. at 2774. "The crucial inquiry [is] whether Congress would have enacted other portions of the statute in the absence of the invalidated provision." American Federation of Government Employees v. Pierce, 225 U.S. App. D.C. 61, 697 F.2d 303, 307 (D.C. Cir. 1982), quoting Consumer Energy Council of America v. FERC, 218 U.S. App. D.C. 34, 673 F.2d 425, 442 (D.C. Cir. 1982), aff'd mem., 463 U.S. 1216, 103 S. Ct. 3556, 77 L. Ed. 2d 1402 (1983). *fn3"

 The importance to Congress of the legislative veto provision of § 43 is reinforced by the language of that section. Subsections 43(f)(3) and (4) provide very explicit procedures under which proposed regulations are subject to congressional review before they can become effective. Final regulations must be submitted for review to specific congressional committees 30 days before they are issued, and once issued do not become effective until both Houses of Congress have adopted resolutions approving the regulations or 60 "legislative" days have passed without either House adopting a resolution of disapproval. These elaborate procedures are, in fact, apparently unique among the nearly 200 statutory legislative veto ...


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