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26. Why is the statute unconstitutional?
The statute creates an executive agency and authorizes it to designate parts of federal lands for inclusion in the program in accordance with criteria taken from the treaty. In an inseverable provision, the statute further provides that the agency must report each designation to a committee of Congress and that the committee may overturn the agency's designation by a majority vote.
Congress enacted a statute establishing a program to protect areas in the United States that are rich in biological diversity. The program is consistent with the terms of an environmental treaty that the President objected to and did not sign.
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Under Article I, Congress may invoke its lawmaking powers to establish federal agencies, offices within those agencies, agency structures, and operations. It may also require, subject to constitutional limitations, the appointment and the removal of officeholders within the agencies. Furthermore, Congress may determine which powers, duties, and functions the agencies may exercise, in addition to directly opposing, through implementing legislation, certain actions by agencies acting pursuant to their authority.
Article I, Sections 1 and 7 of the Constitution require both congressional houses to pass a bill before it can become a law, as well as be presented to the President for his signature. When Congress monitors federal agencies, such as when it seeks to control structures, funding, and regulations, it must pass official legislation. This legislative action must abide by the same bicameral constitutional requirements as any other law, meaning, it must be: (i) approved in both congressional houses; and (ii) presented to the President for either signature or veto.
The legislative «veto» is a device that enables Congress to monitor actions by the executive branch, including federal administrative agencies. A one-house legislative veto is unconstitutional because it violates both the President's veto power and the bicameral structure of Congress. Immigration and Naturalization Serv. (INS) v. Chadha, 462 U.S. 919 (1983). In the vast majority of instances, a two-house legislative veto is also unconstitutional because the President is still deprived of the opportunity to exercise his veto power.
Congress's delegation of legislative authority is an implied power of Congress that will be constitutional if Congress offers an «intelligible principle» to help guide the executive branch. See In J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).
D is correct. The provision of this statute authorizing a congressional committee to overturn the agency's designations of federal lands is, therefore, an unconstitutional legislative veto because it fails to abide by bicameral and presidential presentation requirements of enacting a law.
A is incorrect. The non-delegation doctrine requires Congress to provide an «intelligible principle» to guide the executive branch in exercising legislative authority. Here, the statute's grant of authority to the agency does not violate the non-delegation doctrine because by incorporating the treaty criteria, the statute offers sufficient intelligible principles to guide the agency's designations of federal lands.
B is incorrect. The President's authority to conduct foreign affairs is not interfered with or affected by the congressional power to enact statutes that aim to regulate the protection of federal (domestic) lands.
C is incorrect. Under the Necessary and Proper Clause, an executive agency may be required to report its decisions to Congress, which is permissible if this requirement is rationally related to constitutional objectives and does not otherwise violate the Constitution.