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Constitutionality of Congress’ Disapproval of Agency Regulations by Resolutions Not Presented to the President

Date of Issuance:

Section 431 of the General Education Provisions Act, 20 U.S.C. § 1232(d), which purports to authorize Congress, by concurrent resolutions that are not to be presented to the President for his approval or veto, to disapprove Department of Education regulations for education programs it administers, is unconstitutional.

Legislative veto devices deny the President his power under Article I, § 7 of the Constitution, to veto legislation, interfere with his duty under Article II, § 3, faithfully to execute the laws, and arrogate to Congress power to interpret existing law that is constitutionally reserved to the judicial branch.

The congressional disapproval provisions of the General Education Provisions Act, 20 U.S.C. § 1232(d), are severable from the substantive rulemaking authorities conferred by the Education Amendments of 1978, P.L. No. 95-561, 92 Stat. 2143.

The Attorney General must scrutinize with caution any claim that he or any executive officer may decline to defend or enforce a statute whose constitutionality is merely in doubt.  At the same time, the Executive is required to enforce the Constitution and to preserve the integrity of its functions against unconstitutional encroachments.

Updated July 9, 2014