The Secretary of Transportation’s Continued Authority to Sell the Consolidated Rail Corporation Under the Regional Rail Reorganization Act in Light of INS v. Chadha, 462 U.S. 919 (1983)


The legislative veto provisions of the Regional Rail Reorganization Act, 45 U.S.C. §§ 761(a)(3), 767(d), which purport to condition the Secretary of Transportation’s authority to sell Consolidated Rail Corporation (Conrail) as an entity or by sale o f assets, are unconstitutional under the Supreme Court’s decision in INS v. Chadha, 462 U.S. 919 (1983). Nonetheless, the Secretary of Transportation continues to have authority to sell Conrail, either as an entity or by sale of assets, because the unconstitutional veto provisions are severable from the rest of the statute.

The severability of an unconstitutional provision from the remainder of the statute is determined by analyzing whether Congress would have enacted the remainder of the statute had it recognized that the questioned provisions were unconstitutional.

The presence of a severability clause in the Regional Rail Reorganization Act creates a strong presumption that Congress intended that any unconstitutional provisions be severable from the remainder of the statute. The legislative veto provisions are further presumed severable because the Secretary's sale authority remains “fully operative as a law” without the legislative veto provisions. The legislative history, taken as a whole, also suggests that Congress would have wanted the Secretary of Transportation to exercise the sale authority even without the legislative vetoes, and thus provides insufficient evidence to rebut the presumption of severability created by the severability clause and the otherwise “fully operative” statutory scheme.

Updated July 9, 2014