Severabliity and the Realignment of the Balance of Power over the Public Lands: The Federal Land Policy and Management Act of 1976 after the Legislative Veto Decisions

Authors

Robert L. Glicksman

Abstract

A long-running dispute between the President and Congress concerns the power of Congress to overturn, without presidential participation, executive action that Congress deems inconsistent with a statutory delegation of power to the executive branch. The Federal Land Policy and Management Act (FLPMA) typifies the manner in which Congress has employed the legislative veto to control executive branch discretion. The delicate balance of power over the public lands delineated in FLPMA may have been upset by the Supreme Court's recent decision in Immigration and Naturalization Service v. Chadha. In Chadha the Court held that a one-house legislative veto provision in the Immigration and Nationality Act violated the constitutional requirements of presidential presentment and bicameral action, thus casting doubt on the validity of all legislative veto provisions. If Chadha invalidates the legislative veto provisions of FLPMA, the allocation of power between the two branches of government could differ dramatically from what Congress intended when the statute was enacted.

This Article considers how to contain the reallocation of power over public land management that could result from the invalidation of the legislative veto provisions of FLPMA. The Article first addresses whether the legislative veto provisions of FLPMA can be distinguished from those that have been invalidated. In particular, the Article explores whether Congress' power under the property clause of the Constitution can be.exercised free of the requirements of bicameral action and presidential presentment. Next, the Article considers whether the FLPMA veto provisions are severable from the remainder of the statute. Several approaches to severability are presented, and the impact of each approach on the balance of power over the public lands is assessed. Finally, the Article concludes that congressional implementation of the proprietary power over public lands probably is subject to the procedural constraints of the presentment and bicameral action clauses. Although no approach to severability restores the balance of power over public lands expressed in FLPMA, the courts must attempt to minimize the impact of severance on the achievement of congressional objectives.

Recommended Citation

Robert L. Glicksman, Severabliity and the Realignment of the Balance of Power over the Public Lands: The Federal Land Policy and Management Act of 1976 after the Legislative Veto Decisions, 36 Hastings L.J. 1 (1984).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol36/iss1/1