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Effect of INS v. Chadha on the Authority of the Secretary of Defense to Reorganize the Department of Defense Under U.S.C. § 125

Date of Issuance:

The Secretary of Defense retains authority under 10 U.S.C. § 125 to effect reorganizations of all functions of the Department of Defense, notwithstanding the Supreme Court’s decision in INS v. Chadha invalidating the legislative veto. An analysis of the legislative history of 10 U.S.C. § 125 with respect to the presumptions in favor of severability indicates that the unconstitutional veto provisions in that statute, which permitted either House of Congress to reject a proposed reorganization involving a “major combatant function” that would “tend to impair the defense of the United States,” as determined by its Armed Services Committee, are severable from the delegation of authority to the Secretary. However, the Secretary must continue to report all reorganization plans to Congress and wait thirty days before taking action.

Updated July 9, 2014