Several aspects of § 43 lead the Court to conclude that Congress considered the legislative veto provision to be integral to the EPP and that Congress would not have enacted § 43 in its present form without such a provision. First, and most significant, § 43 is the only section in the entire Airline Deregulation Act where a legislative veto provision appears. Unlike with many other statutes, the Court is faced here not with a legislative veto provision which applies to an entire statute, but with a veto provision applicable to one, and only one, particular section of a long and comprehensive piece of legislation. It is apparent from the face of the statute, therefore, that Congress enacted § 43 with the understanding firmly in mind that regulations issued by the Secretary would be subject to legislative veto.
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 provisions enacted by Congress in the extent to which they ensure congressional control over the regulatory process.
The language of § 43's substantive provisions and the circumstances in which the ADA was enacted also support the view that Congress intended the veto provision to be integral to § 43. Both the assistance payment and first hire provisions provide the Secretary with only general guidance in determining how those programs should be structured and operated. Moreover, as the congressional debates make clear the effects of airline deregulation were highly uncertain. Congress obviously thus could not foresee the precise nature or cost of the EPP or the problems which might arise under it. Such circumstances are consistent with and reinforce indications in the language of the veto provision itself that Congress' grant of such broad authority to the Secretary was intended to be contingent on being subject to a legislative veto.
The government points out that there is relatively little discussion of the veto provision in the legislative history of the Act, at least with respect to the first hire program. The mere lack of extensive discussion of the veto provision, however, does not support the conclusion that Congress considered that provision insignificant, and what legislative history there is in fact supports the view that Congress considered the veto provision to be an important part of § 43. While the reasons for doing so are apparently not fully recorded, the Conference Committee report indicates that the legislative veto provision, taken from the Senate bill, was significantly strengthened before passage by the addition of the requirement that final regulations be submitted to Congress thirty days before they are issued. House Conf. R. No. 95-1779, 95th Cong., 2d Sess. 105-06 (1978). This refutes the notion that the veto provision was mere boilerplate with which Congress was little concerned. The legislative history thus casts "grave doubt" that Congress would have enacted the Employee Protection Program in its present form without the accompanying legislative veto provision. See Pierce, 697 F.2d at 307.
"Congress did not declare the [veto] clause . . . to be severable," Pierce, 697 F.2d at 307 n.5, and a court cannot simply assume that it is severable. In the words of Justice Frankfurter, construing legislation "is nothing like a mechanical endeavor. . . . Inevitably there enters into the construction of statutes the play of judicial judgment within the limits of the relevant legislative materials. Most relevant, of course, is the very language in which Congress has expressed its policy and from which the Court must extract the meaning most appropriate." Local 1976, United Brotherhood of Carpenters and Joiners of America v. NLRB, 357 U.S. 93, 100, 2 L. Ed. 2d 1186, 78 S. Ct. 1011 (1958). Here the statutory language directly links the admittedly unconstitutional provision with the specific grant of rulemaking authority under attack. Absent a responsible basis for concluding that Congress did not consider the veto provision a central if not essential component of that grant of authority, and would thus have enacted the remainder of § 43 in its present form without it, the veto provision cannot be severed and § 43 must be declared unconstitutional in its entirety. In the Court's judgment the other "relevant legislative materials" do not supply such a basis; if anything, they reinforce the view that the legislative veto provision was intended to be an integral part of the entire section.
Taking into account the content and structure of the Airline Deregulation Act, the circumstances surrounding its enactment, and its legislative history, the Court thus finds lacking "sufficient evidence that Congress would have enacted the [Employee Protection Plan] provision without regard to the clause [providing for a legislative veto]." Pierce, 697 F.2d at 307 n. 5. The Court therefore concludes that the unconstitutional legislative veto provision of § 43 is inextricably bound to the remainder of that section and that Congress would not have enacted the remainder of § 43 in its absence.
Accordingly, an Order declaring § 43 unconstitutional in its entirety has been filed herein.