Speech #970003416

The purpose of the resolution is to authorize and direct Senate legal counsel to intervene as a party on behalf of the Senate in this legislation. The U.S. Court of Appeals for the Ninth Circuit has recently handed down a major ruling on the constitutionality of legislative vetoes. holding that a legislative review of the Immigration Act violates the principle of separation of powers. The resolution which follows will direct the Senate legal counsel to intervene in the name of the Senate to represent the Senates interest in this controversy. Jagdish Rai Chadha is of Indian ancestry. torn and previously a resident of Kenya. and the holder of a British passport. He came to the United States as a student in 1966 and overstayed his student visa. At his deportation hearing he sought relief under section 244(c) of the Immigration Act which authorizes the Attorney General to suspend the deportation of an alien on the ground of extreme hardship. Pursuant to this statute. if the Attorney General suspends deportation he must then report to the Congress and either House may disapprove of his action. If neither House disapproves within the requisite time the deportation is canceled and the alien is admitted as a permanent resident. The special inquiry officer who heard Chadhas case granted suspension and the matter was reported to Congress. The Senate took no action. but the House of Representatives passed a resolution disapproving the suspension. The Immigration Service then ordered him to be deported. Chadha petitioned the U.S. Court of Appeals to review the deportation order and challenged the constitutionality of the legislative review provis.on of the Immigration and Naturalization Act. After the Immigration Service informed the court that it agreed that the statute was unconstitutional. the court inv:ted the Senate and the House to file briefs as amicus curiae. The Senates position in support of the statute was briefed. and argued in 1978. by private counsel retained by the Senate. The case was assigned to the Office of Senate Legal Counsel in 1979. after that office was established. while the case was under consideration in the ninth circuit. On December 22. 1980. the court of appeals held that the legislative review provision in section 244(c) of the Immigration Act violates the principle of separation of powers and is unconstitutional. Although the Department of Justice prevailed in the ninth circuit. the Department has filed a notice of appeal to the Suoreme Court. It appears that the Department is seeking a broad ruling on the constitutionality of legislative vetoes. an issue which has concerned the executive and legislative branches for 50 years. There have been developments in the law. namely. the passage of the Refugee Act of 1980. and in petitioners personal situation. he has married a U.S. citizen and is entitled to be a permanent resident for that reason. which may render it unnecessary to decide the constitutional issue in this case. Senate legal counsel is studying these possibilities. in conjunction with House counsel. and has obtained with House counsel an extension until February 4. 1981 to petition for rehearing or suggest that the case be reheard en banc bv the ninth circuit. To enable the Senate legal counsel to represent the Senates views on rehearing in the ninth circuit. and to frame the congressional position in the Supreme Court if the case cannot be resolved on rehearing in the appellate court. it is important to provide to Senate Counsel the procedural opportunities available to parties.