Court from [a] . . . final judgment . . . of any court of the United States... holding an Act of Congress unconstitutional. . . . On February 4, 1981, both the House and Senate filed motions to intervene. On the same day, both the House and Senate filed petitions for rehearing, with the suggestion that the rehearing be en banc. On March 10, 1981, the Ninth Circuit granted the motions of the House and Senate to intervene and ordered that the petition for rehearing en banc be circulated to the active judges of the court. On March 25, 1981, the Ninth Circuit denied the petition for rehearing and rejected the suggestion for a rehearing en banc. On April 8, 1981, on an unopposed motion of the House and Senate, the court stayed its mandate pending the filing of petitions for certiorari on or before June 23, 1981. On June 22, 1981, the House and Senate each filed petitions for writ of certiorari with the U.S. Supreme Court. [Nos. 80-2170 and 80-1832, respectively] In addition, the House and Senate each filed motions to dismiss pursuant to Rule 16.1 of the U.S. Supreme Court Rules. In their motions to dismiss, the House and Senate both argued that 28 U.S.C. § 1252 did not permit a prevailing and non-aggrieved party, such as INS, to invoke the Supreme Court's appellate jurisdiction. In support of this argument, the House and Senate asserted that the words "any party" in section 1252 should not be read literally, for to do so would contradict the long-established rule of Federal appellate practice that a party who received all that was sought is not aggrieved by the judgment and cannot appeal from it. With respect to the petitions for certiorari, the issues raised by the House and Senate were not identical. In the House's view, the issues before the Court were as follows: 1. Whether, in a proceeding under Section 106(a) of the Immigration and Nationality Act to review a final order of deportation, a court of appeals has jurisdiction to review the constitutionality of Section 244(c)(2) of the Act, which establishes Congressional procedures for determining whether a particular deportation proceeding should be cancelled and the alien given permanent resident status. 2. Whether a concededly deportable alien has standing, in a Section 106(a) review proceeding, to challenge the constitutionality of Section 244(c)(2), pursuant to which the House of Representatives disapproved cancelling the deportation and granting the alien permanent resident status. 3. Whether such a review proceeding constitutes a constitutional case or controversy where (a) both the deportable alien and the Immigration and Naturalization Service, the only two parties to the proceeding, are in total agreement that Section 244(c)(2) is unconstitutional and that the deportation order should be cancelled, and (b) the deportable alien declines to seek other available relief from deportation, including the right to apply for permanent resident status following his recent marriage to an American citizen. 4. Whether the propriety of the Section 244(c)(2) procedures for Congressional adjustment of the status of deportable aliens is a "political question." 5. Whether Section 244(c)(2) of the Immigration and Nationality Act is severable from the remainder of Section 244, where any power the Attorney General may have to cancel deportation and adjust an alien's status is conditioned upon favorable Congressional action pursuant to Section 244(c)(2). 6. Whether the Congressional procedures specified in Section 244(c)(2) constitute "necessary and proper" means of executing the plenary, sovereign power of Congress over the status and deportation of aliens, and is consistent with the letter and spirit of other provisions of the Constitution, particularly the separation of powers doctrine. [Petition of U.S. House of Representatives for Writ of Certiorari, June 22, 1981, at I-II] According to the Senate, the issues before the Court were as fol lows: 1. Whether the court of appeals rendered an unnecessary judgment on the constitutionality of Section 244(c)(2) of the Immigration and Nationality Act, 8 U.S.C. 1254(c)(2), by failing to remand to the Immigration and Naturalization Service to determine the availability of alternative relief following the alien respondent's marriage to a United States citizen and the passage of the Refugee Act of 1980. 2. Whether Section 244(c)(2) is severable from the remainder of Section 244. 3. Whether the provision of Section 244 which cancels deportation and grants permanent residence to deportable aliens only after legislative review is a necessary and proper means of implementing the power of Congress over the admission of aliens. [The Senate also incorporated the following questions presented by the House of Representatives in its petition for certiorari:] 4. Whether, in a proceeding under Section 106(a) of the Immigration and Nationality Act to review a final order of deportation, a court of appeals has jurisdiction to resolve the constitutionality of Section 244(c)(2) of the Act, which establishes congressional procedures for determining whether a particular deportation proceeding should be cancelled and the alien given permanent residence status. 5. Whether a concededly deportable alien has standing, in a Section 106(a) review proceeding, to challenge the constitutionality of Section 244(c)(2), pursuant to which the House of Representatives disapproved granting the alien permanent residence status. 6. Whether such a review proceeding constitutes a constitutional case or controversy, where both the deportable alien and the Immigration and Naturalization Service, the only two parties to the proceeding, are in total agreement that Section 244(c)(2) is unconstitutional and that the de- 7. Whether the propriety of the Section 244(c)(2) proce- Status-The case is pending in the U.S. Supreme Court. The complete text of the December 22, 1980 opinion of the circuit court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981. Consumer Energy Council of America v. Federal Energy Regulatory Commission Nos. 80-2184 and 80-2312 (D.C. Cir.) Title II of the Natural Gas Policy Act of 1978 ("NGPA"), 15 U.S.C. §§ 3341 et seq., directs the Federal Energy Regulatory Commission ("FERC") to develop regulations providing that a certain portion of natural gas acquisition costs incurred by an interstate pipeline be allocated to an "incremental pricing account" to be passed on to specified natural gas users. The NGPA further provides that certain specified types of amendments (i.e. rules) issued by FERC pursuant to the NGPA shall not take effect if either house of Congress passes a resolution disapproving the rule. Specifically, the Congressional review provision, 15 U.S.C. § 3342(c)(1), states: IN GENERAL.-Any amendment, the effectiveness of which is subject to this subsection, shall take effect beginning with the first month which begins more than 30 days after the first 30 calendar days of continuous session of Congress (determined in accordance with section 507(b)) after a copy of such amendment has been submitted to each House of the Congress or on such later date, not more than 90 days thereafter, as may be provided in such amendment unless, during such 30 day period of continuous session of Congress, either House of the Congress adopts a resolution of disapproval described in section 507(c)(3) with respect to such amendment. On May 6, 1980, FERC issued an incremental pricing rule. [45 F.R. 31622 (May 13, 1980)] The rule specifically stated that its effectiveness was dependent upon Congressional review. Two weeks later, the U.S. House of Representatives passed House Resolution 655 disapproving the rule. (See 126 Cong. Rec. H3839-H3855.) The Consumer Energy Council of America, the Consumer Federation of America, and Public Citizen (collectively referred to as "CECA") represent a coalition of consumer, farm, public power, rural electric cooperative, urban, senior citizen and low income organizations. On June 5, 1980, CECA filed a petition with FERC for a rehearing on that portion of FERC's May 6th rule which conditioned the effectiveness of the rule on the failure of either house to pass a resolution of disapproval within 30 days. The petition argued that the one-house veto statute (15 U.S.C. § 3342(c)(1)) violated the separation of powers doctrine and was therefore unconsti tutional. On August 1, 1980, FERC entered an order denying the petition. Subsequently, FERC revoked the vetoed rule. On September 2, 1980, CECA again sought a rehearing, arguing that FERC had no authority to revoke the rule. CECA also argued that even if FERC did have the authority, the revocation was invalid because FERC had not afforded interested persons an opportunity to comment, as required by 5 U.S.C. § 553. On October 2, 1980, CECA's second petition for rehearing was denied. ON September 26, 1980, CECA filed in the U.S. Court of Appeals for the District of Columbia Circuit a petition for review of FERC's denial of CECA's first petition for rehearing. [No. 80-2184] Following FERC's October 2d denial of CECA's second petition for rehearing, CECA, on October 24, 1980, filed a second petition for review with the court. [No. 80-2312] The two petitions for review were consolidated by the court, sua sponte, on November 7, 1980. On January 12, 1981, CECA filed its brief, reiterating its argument that the Congressional disapproval device was violative of the separation of powers doctrine. Specifically, CECA charged that section 3342(c)(1) deprived the President of his constitutional right under Article I, Section 7, clause 2 to veto legislative actions having the effect of law.1 In addition, said CECA, section 3342(c)(1) was a usurpation by the legislative branch of both executive and judicial branch functions. On February 11, 1981, the Justice Department filed an amicus curiae brief in which it agreed with CECA's contention that section 3342(c)(1) was unconstitutional. Like CECA, the Justice Department argued that the statute deprived the President of his right to veto legislative actions having the force of law. The Government also argued that the constitutional principle of bicameralism prevented one house of Congress from acting on behalf of both houses. The Government concluded its argument by stating that section 3342(c)(1) was severable from the other provisions of the NGPA and that therefore a finding by the court that section 3342(c)(1) was unconstitutional would not invalidate FERC's May 6th incremental pricing rule. On March 24, 1981, FERC filed a brief in which it argued that there was no need for the court to address the constitutionality of 15 U.S.C. § 3342(c)(1). In support of this assertion, FERC stated that it had acted within its authority when it revoked the vetoed rule. The 5 U.S.C. § 553 duty to provide interested persons an opportunity to comment on the revocation of a rule, continued FERC, was inapplicable in the instant case because the rule in question was never operative and effective in the first place. Thus, argued FERC, the question of the constitutionality of 15 U.S.C. § 3342(c)(1) had been rendered moot by FERC's valid revocation of the rule. In addition, FERC argued that subsection 3342(c)(1) was not severable from the rest of section 3342. As a result, if the legislative veto provision was deemed unconstitutional all of section 3342 would fall Article I, Section 7, clause 2 provides, in pertinent part: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approves he shall sign it, but if not he shall return it with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it." and FERC would have no authority to issue the incremental pricing rule at issue here. There would therefore be no rule to contest. On May 8, 1981, the U.S. Senate and the Speaker of the U.S. House of Representatives filed a motion for leave to file an amicus curiae motion to dismiss for lack of jurisdiction. Permission to file the motion to dismiss was granted on June 9, 1981. In support of their motion to dismiss, the Speaker and the Senate (amici") asserted that under section 506 of the NGPA (15 U.S.C. §3416) the court of appeals had jurisdiction to review FERC adjudicative orders or rules. However, said the amici, the instant case involved neither an adjudicative order nor a rule; it involved an attempt by CECA to adopt the proposed incremental pricing rule as a final rule. Citing NRDC v. SEC, 606 F. 2d 1031 (D.C Cir. 1979), the amici argued that suits to compel agencies to adopt rules must commence in the district, not the circuit, courts. Also on May 8, the amici filed a brief in which they responded to CECA's (and the Justice Department's) remaining claims. Like FERC, the amici asserted that subsection 3342(c)(1) was not severable from the rest of section 3342 and that the case had been rendered moot when FERC revoked the challenged rule. In addition, the amici argued that under the Necessary and Proper Clause of the U.S. Constitution (art. I, § 8, cl. 18) Congress was empowered to enact the veto provision at issue here. They further claimed that section 3342(c)(1) in no way interferred with the operation of the Executive branch, and therefore was not violative of the separation of powers doctrine. On May 26, 1981, CECA filed its response to the amici's May 8th motion to dismiss. With respect to the jurisdictional challenge raised by the amici, CECA argued that it was objecting to the revocation of the rule; it was not challenging FERC's decision not to adopt a rule. Turning to the merits, CECA claimed that because the NGPA required FERC to issue incremental pricing rules, FERC had no authority to revoke the rule. The NGPA, argued CECA, gave FERC the power to amend rules, but the power to amend, continued CECA, did not include the power to revoke. Next, CECA asserted that even if FERC had the power to revoke the rule, FERC's revocation violated the notice and comment requirements of 5 U.S.C. § 553. These notice and comment requirements, said CECA, can be waived only if the agency shows some valid reason why they should not be followed. FERC made no such showing, asserted CECA, when it revoked the rule. With respect to severability, CECA maintained that nothing in the NGPA or its legislative history suggested that there would have been no authority to issue incremental pricing rules without the legislative veto provision. Turning to the constitutionality of section 3342(c)(1), CECA asserted that the legislative veto exercised here prevented an otherwise valid rule from becoming law. Accordingly, said CECA, since the veto operated to change or repeal the law, it was legislative in character and had to be exercised in accordance with the Constitution, which requires that all legislative actions having the effect of law be the product of House and Senate concurrence coupled with presentation to the President for his approval. Since the veto was exercised without House and Senate approval and without presen |