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Subject: 90-906 -- OPINION, WASH. AIRPORTS v. NOISE ABATEMENT CITIZENS

NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-906



METROPOLITAN WASHINGTON AIRPORTS AUTHORITY, et al., PETITIONERS v. CITIZENS
FOR THE ABATEMENT OF AIRCRAFT NOISE, INC., et al.

on writ of certiorari to the united states court of appeals for the
district of columbia circuit

[June 17, 1991]



    Justice Stevens delivered the opinion of the Court.

    An Act of Congress authorizing the transfer of operating control of two
major airports from the Federal Government to the Metropolitan Washington
Airport Authority (MWAA) conditioned the transfer on the creation by MWAA
of a unique "Board of Review" composed of nine Members of Congress and
vested with veto power over decisions made by MWAA's Board of Directors.
{1}  The principal question presented is whether this unusual statutory
condition violates the constitutional principle of separation of powers, as
interpreted in INS v. Chadha, 462 U. S. 919 (1983), Bowsher v. Synar, 478
U. S. 714 (1986), and Springer v. Philippine Islands, 277 U. S. 189 (1928).
We conclude, as did the Court of Appeals for the District of Columbia
Circuit, that the condition is unconstitutional.
I
    In 1940, Congress authorized the Executive Branch to acquire a tract of
land a few miles from the Capitol and to construct what is now Washington
National Airport (National).  54 Stat. 686.  From the time it opened until
1987, National was owned and operated by the Federal Government.  The
airport was first managed by the Civil Aeronautics Agency, a division of
the Commerce Department.  54 Stat. 688.  In 1959, control of National
shifted to the newly-created Federal Aviation Administration (FAA), an
agency that, since 1967, has been a part of the Department of
Transportation.  See 72 Stat. 731; 80 Stat. 932, 938.

    A few years after National opened, the Truman Administration proposed
that a federal corporation be formed to operate the airport.  See
Congressional Research Service, Federal Ownership of National and Dulles
Airports: Background, Pro-Con Analysis, and Outlook 4 (1985) (CRS Report),
reprinted in Hearings before the Subcommittee on Governmental Efficiency
and the District of Columbia of the Senate Committee on Governmental
Affairs, 99th Cong., 1st Sess., p. 404 (1985).  The proposal was endorsed
by the Hoover Commission in 1949 but never adopted by Congress.  Instead,
when Congress authorized construction of a second major airport to serve
the Washington area, it again provided for federal ownership and operation.
64 Stat. 770.  Dulles International Airport (Dulles) was opened in 1962
under the direct control of the FAA.  See CRS Report 1-2.

    National and Dulles are the only two major commercial airports owned by
the Federal Government.  A third airport, Baltimore Washington
International (BWI), which is owned by the State of Maryland, also serves
the Washington metropolitan area.  Like Dulles, it is larger than National
and located in a rural area many miles from the Capitol.  Because of its
location, National is by far the busiest and most profitable of the three.
{2}  Although proposals for the joint operating control of all three
airports have been considered, the plan that gave rise to this litigation
involves only National and Dulles, both of which are located in Virginia.
Maryland's interest in the overall problem explains its representation on
the Board of Directors of MWAA.  See 49 U. S. C. App. MDRV 2456(e)(3)(c).

    Throughout its history, National has been the subject of controversy.
Its location at the center of the Metropolitan area is a great convenience
for air travelers, but flight paths over densely populated areas have
generated concern among local residents about safety, noise, and pollution.
Those living closest to the airport have provided the strongest support for
proposals to close National or to transfer some of its operations to
Dulles.  See CRS Report 3.

    Despite the FAA's history of profitable operation of National and
excellent management of both airports, the Secretary of Transportation
concluded that necessary capital improvements could not be financed for
either National or Dul les unless control of the airports was transferred
to a regional authority with power to raise money by selling tax-exempt
bonds. {3}  In 1984, she therefore appointed an advisory commission to
develop a plan for the creation of such a regional authority.  Id., at 6.

    The Commission recommended that the proposed authority be created by a
congressionally approved compact between Virginia and the District, and
that its Board of Directors be composed of 11 members serving staggered
6-year terms, with five members to be appointed by the Governor of
Virginia, three by the Mayor of the District, two by the Governor of
Maryland, and one by the President, with the advice and consent of the
Senate.  See App. 17.  Emphasizing the importance of a "non-political,
independent authority," the Commission recommended that members of the
board "should not hold elective or appointive political office."  Ibid.  To
allay concerns that local interests would not be adequately represented,
the Commission recommended a requirement that all board members except the
Presidential appointee reside in the Washington metropolitan area.  Ibid.

    In 1985, Virginia and the District both passed legislation authorizing
the establishment of the recommended regional authority.  See 1985 Va.
Acts, ch. 598; 1985 D. C. Law 6-67.  A bill embodying the advisory
commission's recommendations passed the Senate.  See 132 Cong. Rec.
7263-7281 (1986).  In the House of Representatives, however, the
legislation encountered strong opposition from Members who expressed
concern that the surrender of federal control of the airports might result
in the transfer of a significant amount of traffic from National to Dulles.
See Hearings on H. R. 2337, H. R. 5040, and S. 1017 before the Subcommittee
on Aviation of the House Committee on Public Works & Transportation, 99th
Cong., 2d Sess., 1-3, 22 (1986).
    Substitute bills were therefore drafted to provide for the
establishment of a review board with veto power over major actions of
MWAA's Board of Directors.  Under two of the proposals, the board of review
would clearly have acted as an agent of the Congress.  After Congress
received an opinion from the Department of Justice that a veto of MWAA
action by such a board of review "would plainly be legislative action that
must conform to the requirements of Article 1, MDRV 7 of the Constitution,"
{4} the Senate adopted a version of the review board that required Members
of Congress to serve in their individual capacities as representatives of
users of the airports.  See 132 Cong. Rec. 28372-28375, 28504, 28521-28525
(1986).  The provision was further amended in the House, Id., at
32127-32144, and the Senate concurred, id., at 32483.  Ultimately, MDRV
2456(f) of the Transfer Act as enacted defined the composition and powers
of the Board of Review in much greater detail than the Board of Directors.
Compare 49 U. S. C. App. MDRV 2456(f) with MDRV 2456(e).

    Subparagraph (1) of MDRV 2456(f) specifies that the Board of Review
"shall consist" of nine Members of the Congress, eight of whom serve on
committees with jurisdiction over transportation issues and none of whom
may be a Member from Maryland, Virginia, or the District of Columbia. {5}
Subparagraph 4(B) details the actions that must be submitted to the Board
of Review for approval, which include adoption of a budget, authorization
of bonds, promulgation of regulations, endorsement of a master plan, and
appointment of the chief executive officer of the Authority. {6}
Subparagraph 4(D) explains that disapproval by the Board will prevent
submitted actions from taking effect. {7}  Other significant provisions of
the Act include paragraph 5, which authorizes the Board of Review to
require Authority directors to consider any action relating to the
airports;  {8} subsection (g), which requires that any action changing the
hours of operation at either National or Dulles be taken by regulation and
therefore be subject to veto by the Board of Review;  {9} and subsection
(h), which contains a provision disabling MWAA's Board of Directors from
performing any action subject to the veto power if a court should hold that
the Board of Review provisions of the Act are invalid. {10}

    On March 2, 1987, the Secretary of Transportation and the MWAA entered
into a long-term lease complying with all of the conditions specified in
the then recently enacted Transfer Act.  See App. to Pet. for Cert.
163a-187a.  The lease provided for a 50-year term and annual rental
payments of three million dollars "in 1987 dollars."  Id., at 170a, 178a.
After the lease was executed, MWAA's Board of Directors adopted bylaws
providing for the Board of Review, Id., at 151a-154a, and Virginia and the
District of Columbia amended their legislation to give MWAA power to
establish the Board of Review, 1987 Va. Acts, ch. 665; 1987 D. C. Law 7-18.
On September 2, 1987, the directors appointed the nine members of the Board
of Review from lists that had been submitted by the Speaker of the House of
Representatives and the President pro tempore of the Senate.  App. 57-58.

    On March 16, 1988, MWAA's Board of Directors adopted a master plan
providing for the construction of a new terminal at National with gates
capable of handling larger aircraft, an additional taxiway turnoff to
reduce aircraft time on the runway and thereby improve airport capacity, a
new dual-level roadway system, and new parking facilities.  Id., at 70-71,
89-91.  On April 13, the Board of Review met and voted not to disapprove
the master plan.  Id., at 73-78.
II
    In November 1988, Citizens for the Abatement of Aircraft Noise, Inc.,
and two individuals who reside under flight paths of aircraft departing
from and arriving at National (collectively CAAN) brought this action.
CAAN sought a declaration that the Board of Review's power to veto actions
of MWAA's Board of Directors is unconstitutional and an injunction against
any action by the Board of Review as well as any action by the Board of
Directors that is subject to Board of Review approval.  Id., at 10.  The
complaint alleged that most of the members of CAAN live under flight paths
to and from National and that CAAN's primary purpose is to develop and
implement a transportation policy for the Washington area that would
include balanced service among its three major airports, thus reducing the
operations at National and alleviating noise, safety, and air pollution
problems associated with such operations.  Id., at 4.  The complaint named
MWAA and its Board of Review as defendants.  Id., at 5.
    The District Court granted the defendants' motion for summary judgment.
718 F. Supp. 974 (DC 1989).  As a preliminary matter, however, the court
held that plaintiffs had standing to maintain the action for two reasons:
{11}  first, because the master plan will facilitate increased activity at
National that is harmful to plaintiffs, and second, because the composition
of the Board of Review diminishes the influence of CAAN on airport user
issues since local congressmen and senators are ineligible for service on
the Board.  Id., at 980-982.  On the merits, the District Court concluded
that there was no violation of the doctrine of separation of powers because
the members of the Board of Review acted in their individual capacities as
representatives of airport users, and therefore the Board was not an agent
of Congress.  Id., at 985.  Moreover, the Board's powers were derived from
the legislation enacted by Virginia and the District, as implemented by
MWAA's bylaws, rather than from the Transfer Act.  Id., at 986.  "In short,
because Congress exercises

no federal power under the Act, it cannot overstep its
constitutionally-designated bounds."  Ibid.

    A divided panel of the Court of Appeals for the District of Columbia
Circuit reversed.  286 U. S. App. D.C. 334, 917 F. 2d 48 (1990).  The court
agreed that plaintiffs had standing because they had alleged a distinct and
palpable injury that was "fairly traceable" to the implementation of the
master plan and a favorable ruling would prevent MWAA from implementing
that plan.  Id., at 339, 917 F. 2d, at 53.  On the merits, the majority
concluded that it was "wholly unrealistic to view the Board of Review as
solely a creature of state law immune to separation-of-powers scrutiny"
because it was federal law that had required the establishment of the Board
and defined its powers.  Id., at 340, 917 F. 2d, at 54.  It held that the
Board was "in essence a congressional agent" with disapproval powers over
key operational decisions that were "quintessentially executive," id., at
343, 917 F. 2d, at 57, and therefore violated the separation of powers,
ibid.  The dissenting judge, emphasizing the importance of construing
federal statutes to avoid constitutional questions when fairly possible,
concluded that the Board of Review should not be characterized as a federal
entity but that, even if it were so characterized, its members could,
consistent with the Constitution, serve in their individual capacities even
though they were Members of Congress.  Id., at 345-347, 917 F. 2d, at
59-61.
    Because of the importance of the constitutional question, we granted
MWAA's petition for certiorari.  498 U. S. --- (1991).  Although the United
States intervened in the Court of Appeals to support the constitutionality
of the Transfer Act, see 28 U. S. C. MDRV 2403(a), the United States did
not join in MWAA's petition for certiorari.  As a respondent in this Court
pursuant to this Court's Rule 12.4, the United States has again taken the
position that the Transfer Act is constitutional. {12}
III
    Petitioners (MWAA and the Board of Review) renew the challenge to
respondents' standing that was rejected by the District Court and the Court
of Appeals.  To establish standing, respondents "must allege personal
injury fairly traceable to the defendant's allegedly unlawful conduct and
likely to be redressed by the requested relief."  Allen v. Wright, 468 U.
S. 737, 751 (1984).  Petitioners argue that respondents' asserted injuries
are caused by factors independent of the Board of Review's veto power and
that the injuries will not be cured by invalidation of the Board of Review.
We believe that petitioners are mistaken.
    Respondents alleged that the master plan allows increased air traffic
at National and a consequent increase in accident risks, noise, and
pollution.  App. 10.  "For purposes of ruling on a motion to dismiss for
want of standing, both the trial and reviewing courts must accept as true
all material allegations of the complaint."  Warth v. Seldin, 422 U. S.
490, 501 (1975).  If we accept that the master plan's provisions will
result in increased noise, pollution, and danger of accidents, this
"personal injury" to respondents is "fairly traceable" to the Board of
Review's veto power because knowledge that the master plan was subject to
the veto power undoubtedly influenced MWAA's Board of Directors when it
drew up the plan.  Because invalidation of the veto power will prevent the
enactment of the master plan, see 49 U. S. C. App. MDRV 2456(h), the relief
respondents have requested is likely to redress their alleged injury.
Moreover, the harm respondents have alleged is not confined to the
consequences of a possible increase in the level of activity at National.
The harm also includes the creation of an impediment to a reduction in that
activity.  See App. 8.  The Board of Review was created by Congress as a
mechanism to preserve operations at National at their present level, or at
a higher level if possible.  See supra, at ---.  The Board of Review and
the Master Plan, which even petitioners acknowledge is at a minimum "noise
neutral,"  Brief for Petitioners 37-38, therefore injure CAAN by making it
more difficult for CAAN to reduce noise and activity at National. {13}
IV


    Petitioners argue that this case does not raise any

separation-of-powers issue because the Board of Review neither exercises
federal power nor acts as an agent of Congress.  Examining the origin and
structure of the Board, we conclude that petitioners are incorrect.
    Petitioners lay great stress on the fact that the Board of Review was
established by the bylaws of MWAA, which was created by legislation enacted
by the State of Virginia and the District of Columbia.  Putting aside the
unsettled question whether the District of Columbia acts as a State or as
an agent of the Federal Government for separation-of-powers purposes, we
believe the fact that the Board of Review was created by state enactments
is not enough to immunize it from separation-of-powers review.  Several
factors combine to mandate this result.
    Control over National and Dulles was originally in federal hands, and
was transferred to MWAA only subject to the condition that the States
create the Board of Review.  Congress placed such significance on the Board
that it required that the Board's invalidation prevent the Airports
Authority from taking any action that would have been subject to Board
oversight.  See 49 U. S. C. App. MDRV 2456(h).  Moreover, the Federal
Government has a strong and continuing interest in the efficient operation
of the airports, which are vital to the smooth conduct of Government
business, especially to the work of Congress, whose Members must maintain
offices in both Washington and the districts that they represent and must
shuttle back and forth according to the dictates of busy and often
unpredictable schedules.  This federal interest was identified in the
preamble to the Transfer Act, {14} justified a Presidential appointee on
the Board of Directors, and motivated the creation of the Board of Review,
the structure and the powers of which Congress mandated in detail, see MDRV
2456(f).  Most significant, membership on the Board of Review is limited to
federal officials, specifically members of congressional committees charged
with authority over air transportation.
    That the Members of Congress who serve on the Board nominally serve "in
their individual capacities, as representatives of users" of the airports,
MDRV 2456(f)(1), does not prevent this group of officials from qualifying
as a congressional agent exercising federal authority for
separation-of-powers purposes.  As we recently held, "separation-of-powers
analysis does not turn on the labeling of an activity," Mistretta, 488 U.
S., at 393.  The Transfer Act imposes no requirement that the Members of
Congress who are appointed to the Board actually be users of the airports.
Rather, the Act imposes the requirement that the Board members have
congressional responsibilities related to the federal regulation of air
transportation regulation.  These facts belie the ipse dixit that the Board
members will act "in their individual capacities."
    Although the legislative history is not necessary to our conclusion
that the Board members act in their official congressional capacities, the
floor debates in the House confirm our view.  See, e. g., 132 Cong. Rec.
32135 (1986) (The bill "also provides for continuing congressional review
over the major decisions of the new airport authority.  A Congressional
Board will still have veto power over the new airport authority's: annual
budget; issuance of bonds; regulations; master plan; and the naming of the
Chief Executive Officer") (Rep. Lehman); id., at 32136 ("In addition, the
motion provides continued congressional control over both airports.
Congress would retain oversight through a Board of Review made up of nine
Members of Congress.  This Board would have the right to overturn major
decisions of the airport authority") (Rep. Coughlin); id., at 32137 ("Under
this plan, Congress retains enough control of the airports to deal with any
unseen pitfalls resulting from this transfer of authority. . . .  We are
getting our cake and eating it too. . . .  The beauty of the deal is that
Congress retains its control without spending a dime") (Rep. Smith); id.,
at 32141 ("There is, however, a congressional board which is established by
this. . . .  [T]hat board has been established to make sure that the
Nation's interest, the congressional interest was attended to in the
consideration of how these two airports are operated") (Rep. Hoyer); id.,
at 32142 (The bill does "not give up congressional control and oversight --
that remains in a Congressional Board of review") (Rep. Conte); id., at
32143 ("I understand that one concern of Members is that by leasing these
airports to a local authority, we would be losing control over them.  But,
in fact, under this bill exactly the opposite is true.  We will have more
control than before") (Rep. Hammerschmidt).

    Congress as a body also exercises substantial power over the
appointment and removal of the particular Members of Congress who serve on
the Board.  The Transfer Act provides that the Board "shall consist" of
"two members of the Public Works and Transportation Committee and two
members of the Appropriations Committee of the House of Representatives
from a list provided by the Speaker of the House," "two members of the
Commerce, Science, and Transportation Committee and two members of the
Appropriations Committee of the Senate from a list provided by the
President pro tempore of the Senate," and "one member chosen alternately .
. . from a list provided by the Speaker of the House or the President pro
tempore of the Senate, respectively."  49 U. S. C. App. MDRV 2456(f)(1).
Significantly, appointments must be made from the lists, and there is no
requirement that the lists contain more recommendations than the number of
Board openings.  Cf. 28 U. S. C. MDRV 991(a) (Sentencing Reform Act upheld
in Mistretta required only that the President "conside[r]" the
recommendations of the Judicial Conference); 31 U. S. C. MDRV 703(a)
(Congressional Commission only "recommend[s]" individuals for selection as
Comptroller General).  The list system, combined with congressional
authority over committee assignments, guarantees Congress effective control
over appointments.  Control over committee assignments also gives Congress
effective removal power over Board members because depriving a Board member
of membership in the relevant committees deprives the member of authority
to sit on the Board.  See 49 U. S. C. App. MDRV 2456(f)(1) (Board "shall
consist" of relevant committee members). {15}

    We thus confront an entity created at the initiative of Congress, the
powers of which Congress has delineated, the purpose of which is to protect
an acknowledged federal interest, and membership in which is restricted to
congressional officials.  Such an entity necessarily exercises sufficient
federal

power as an agent of Congress to mandate separation-ofpowers scrutiny.  Any
other conclusion would permit Congress to evade the "carefully crafted"
constraints of the Constitution, INS v. Chadha, 462 U. S. 919, 959 (1983),
simply by delegating primary responsibility for execution of national
policy to the States, subject to the veto power of Members of Congress
acting "in their individual capacities."  Cf. Bowsher v. Synar, 478 U. S.
714, 755 (1986) (Stevens, J., concurring in judgment). {16}

    Petitioners contend that the Board of Review should nevertheless be
immune from scrutiny for constitutional defects because it was created in
the course of Congress' exercise of its power to dispose of federal
property.   See U. S. Const., Art. IV, MDRV 3, cl. 2. {17}  In South Dakota
v. Dole, 483 U. S. 203 (1987), we held that a grant of highway funds to a
State conditioned on the State's prohibition of the possession of alcoholic
beverages by persons under the age of 21 was a lawful exercise of Congress'
power to spend money for the general welfare.  See U. S. Const., Art. I,
MDRV 8, cl. 1.  Even assuming that "Congress might lack the power to impose
a national minimum drinking age directly," we held that this indirect
"encouragement to state action" was a valid use of the spending power.
Id., at 212.  We thus concluded that Congress could endeavor to accomplish
the federal objective of regulating the national drinking age by the
indirect use of the spending power even though that regulatory authority
would otherwise be a matter within state control pursuant to the
Twenty-first Amendment. {18}
    Our holding in Dole did not involve separation-of-powers principles.
It concerned only the allocation of power between the Federal Government
and the States.  Our reasoning that, absent coercion, a Sovereign State has
both the incentive and the ability to protect its own rights and powers,
and therefore may cede such rights and powers, see id., at 210-211, is
inapplicable to the issue presented by this case.  Here, unlike Dole, there
is no question about federal power to operate the airports.  The question
is whether the maintenance of federal control over the airports by means of
the Board of Review, which is allegedly a federal instrumentality, is
invalid, not because it invades any state power, but because Congress'
continued control violates the separation-ofpowers principle, the aim of
which is to protect not the States but "the whole people from improvident
laws."  Chadha, at 951.  Nothing in our opinion in Dole implied that a
highway grant to a State could have been conditioned on the State's
creating a "Highway Board of Review" composed of Members of Congress.  We
must therefore consider whether the powers of the Board of Review may,
consistent with the separation of powers, be exercised by an agent of
Congress.
V
    Because National and Dulles are the property of the Federal Government
and their operations directly affect interstate commerce, there is no doubt
concerning the ultimate power of Congress to enact legislation defining the
policies that govern those operations.  Congress itself can formulate the
details, or it can enact general standards and assign to the Executive
Branch the responsibility for making necessary managerial decisions in
conformance with those standards.  The question presented is only whether
the Legislature has followed a constitutionally acceptable procedure in
delegating decision-making authority to the Board of Review.
    The structure of our Government as conceived by the Framers of our
Constitution disperses the federal power among the three branches -- the
Legislative, the Executive, and the Judicial -- placing both substantive
and procedural limitations on each.  The ultimate purpose of this
separation of powers is to protect the liberty and security of the
governed.  As former Attorney General Levi explained:


"The essence of the separation of powers concept formulated by the Founders
from the political experience and philosophy of the revolutionary era is
that each branch, in different ways, within the sphere of its defined
powers and subject to the distinct institutional responsibilities of the
others is essential to the liberty and security of the people.  Each
branch, in its own way, is the people's agent, its fiduciary for certain
purposes.


    . . . . .




"Fiduciaries do not meet their obligations by arrogating to themselves the
distinct duties of their master's other agents."  Levi, Some Aspects of
Separation of Powers, 76 Colum. L. Rev. 385-386 (1976).


    Violations of the separation-of-powers principle have been uncommon
because each branch has traditionally respected the prerogatives of the
other two.  Nevertheless, the Court has been sensitive to its
responsibility to enforce the principle when necessary.


"Time and again we have reaffirmed the importance in our constitutional
scheme of the separation of governmental powers into the three coordinate
branches.  See, e. g., Bowsher v. Synar, 478 U. S., at 725 (citing
Humphrey's Executor, 295 U. S., at 629-630).  As we stated in Buckley v.
Valeo, 424 U. S. 1 (1976), the system of separated powers and checks and
balances established in the Constitution was regarded by the Framers as
`selfexecuting safeguard against the encroachment or ag grandizement of one
branch at the expense of the other.'  Id., at 122.  We have not hesitated
to invalidate provisions of law which violate this principle.  See id., at
123."  Morrison v. Olson, 487 U. S. 654, 693 (1988).


    The abuses by the monarch recounted in the Declaration of Independence
provide dramatic evidence of the threat to liberty posed by a too powerful
executive.  But, as James Madison recognized, the representatives of the
majority in a democratic society, if unconstrained, may pose a similar
threat:


"It will not be denied, that power is of an encroaching nature, and that it
ought to be effectually restrained from passing the limits assigned to it.


    . . . . .




    "The founders of our republics . . . seem never for a moment to have
turned their eyes from the danger to liberty from the overgrown and
all-grasping prerogative of an hereditary magistrate, supported and
fortified by an hereditary branch of the legislative authority.  They seem
never to have recollected the danger from legislative usurpations; which by
assembling all power in the same hands, must lead to the same tyranny as is
threatened by executive usurpations. . . .  [I]t is against the
enterprising ambition of this department, that the people ought to indulge
all their jealousy and exhaust all their precautions.

    "The legislative department derives a superiority in our governments
from other circumstances.  Its constitutional powers being at once more
extensive and less susceptible of precise limits, it can with the greater
facility, mask under complicated and indirect measures, the encroachments
which it makes on the co-ordinate departments.  It is not unfrequently a
question of real-nicety in legislative bodies, whether the operation of a
particular measure, will, or will not extend beyond the legislative
sphere."  The Federalist No. 48, pp. 332-334 (J. Cooke ed. 1961) (J.
Madison).


    To forestall the danger of encroachment "beyond the legislative
sphere," the Constitution imposes two basic and related constraints on the
Congress.  It may not "invest itself or its Members with either executive
power or judicial power."  J. W. Hampton, Jr., & Co. v. United States, 276
U. S. 394, 406 (1928).  And, when it exercises its legislative power, it
must follow the "single, finely wrought and exhaustively considered,
procedures" specified in Article I.  INS v. Chadha, 462 U. S. 919, 951
(1983). {19}

    The first constraint is illustrated by the Court's holdings in Springer
v. Philippine Islands, 277 U. S. 189 (1928), and Bowsher v. Synar, 478 U.
S. 714 (1986).  Springer involved the validity of acts of the Philippine
legislature that authorized a committee of three -- two legislators and one
executive -- to vote corporate stock owned by the Philippine Government.
Because the Organic Act of the Philippine Islands incorporated the
separation-of-powers principle, and because the challenged statute
authorized two legislators to perform the executive function of controlling
the management of the government-owned corporations, the Court held the
statutes invalid.  Our more recent decision in Bowsher involved a
delegation of authority to the Comptroller General to revise the federal
budget.  After concluding that the Comptroller General was in effect an
agent of Congress, the Court held that he could not exercise executive
powers:


"To permit the execution of the laws to be vested in an officer answerable
only to Congress would, in practical terms, reserve in Congress control
over the execution of the laws. . . .  The structure of the Constitution
does not permit Congress to execute the laws; it follows that Congress
cannot grant to an officer under its control what it does not possess."
Bowsher, 478 U. S., at 726.


    The second constraint is illustrated by our decision in Chadha.  That
case involved the validity of a statute that authorized either House of
Congress by resolution to invalidate a decision by the Attorney General to
allow a deportable alien to remain in the United States.  Congress had the
power to achieve that result through legislation, but the statute was
nevertheless invalid because Congress cannot exercise its legislative power
to enact laws without following the bicameral and presentment procedures
specified in Article I.  For the same reason, an attempt to characterize
the budgetary action of the Comptroller General in Bowsher as legislative
action would not have saved its constitutionality because Congress may not
delegate the power to legislate to its own agents or to its own Members.
{20}

    Respondents rely on both of these constraints in their challenge to the
Board of Review.  The Court of Appeals found it unnecessary to discuss the
second constraint because the court was satisfied that the power exercised
by the Board of Review over "key operational decisions is quintessentially
executive."  286 U. S. App. D.C., at 342, 917 F. 2d, at 56.  We need not
agree or disagree with this characterization by the Court of Appeals to
conclude that the Board of Review's power is constitutionally
impermissible.  If the power is executive, the Constitution does not permit
an agent of Congress to exercise it.  If the power is legislative, Congress
must exercise it in conformity with the bicameralism and presentment
requirements of Art. I, MDRV 7.  In short, when Congress "[takes] action
that ha[s] the purpose and effect of altering the legal rights, duties, and
relations of persons . . . outside the Legislative Branch," it must take
that action by the procedures authorized in the Constitution.  See Chadha,
462 U. S., at 952-955. {21}

    One might argue that the provision for a Board of Review is the kind of
practical accommodation between the Legislature and the Executive that
should be permitted in a "workable government."  {22}  Admittedly, Congress
imposed its will on the regional authority created by the District of
Columbia and the Commonwealth of Virginia by means that are unique and that
might prove to be innocuous.  However, the statutory scheme challenged
today provides a blueprint for extensive expansion of the legislative power
beyond its constitutionally-confined role.  Given the scope of the federal
power to dispense benefits to the States in a variety of forms and subject
to a host of statutory conditions, Congress could, if this Board of Review
were valid, use similar expedients to enable its Members or its agents to
retain control, outside the ordinary legislative process, of the activities
of state grant recipients charged with executing virtually every aspect of
national policy.  As James Madison presciently observed, the legislature
"can with greater facility, mask under complicated and indirect measures,
the encroachments which it makes on the co-ordinate departments."  The
Federalist No. 48, at 334.  Heeding his warning that legislative "power is
of an encroaching nature," we conclude that the Board of Review is an
impermissible encroachment. {23}

    The judgment of the Court of Appeals is affirmed.

    It is so ordered.







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1
    Metropolitan Washington Airports Act of 1986, 100 Stat. 3341, 49 U. S.
C. App. 15 2451-2461 (Transfer Act).

2
    "Of the three airports, National, as the Nation's 14th busiest airport
(1983), handles by far the most traffic.  In 1983, these airports handled
passenger volumes of: National, 14.2 million; Dulles, 2.9 million; and BWI,
5.2 million.  Other measures of airport activity also indicate a much
greater activity level at National.  On a combined basis, the [airports]
earned the Federal Government a profit of $11.4 million.  This profit,
however, is entirely the result of activity at National, as Dulles
consistently operates at a deficit.  BWI, which not long ago operated at a
loss, is now a consistent money maker for Maryland."  CRS Report 2.

3
    "There is no question that the daily management of the airports by the
Metropolitan Washington Airports unit of FAA has been excellent.  However,
inclusion of the airports in the unified Federal budget has generally
stymied most efforts to improve or expand facilities at either airport to
keep pace with the growing commercial and air travel needs of the
Washington area.  No major capital projects have been financed at either
airport from Federal appropriations since the construction of Dulles in the
early 1960's.  Given the continuing need to limit federal expenditures to
reduce Federal deficits, it is unlikely that any significant capital
improvements could be undertaken at the airports in the foreseeable
future."  S. Rep. No. 99-193, p. 2 (1985).

4
    "Two of the suggestions made by the staff would present substantial
constitutional problems.  The first of these proposals would create a
`Federal Board of Directors,' consisting of three members of the House,
appointed by the Speaker, three members of the Senate, appointed by the
President pro tempore, and the Comptroller General.  As proposed, this
Federal Board would clearly be unconstitutional.  In reality the Federal
Board would be no more than a committee of Congress plus the Comptroller
General -- who is clearly a legislative officer.  This committee would be
authorized by the bill to veto certain types of actions otherwise within
the Airports Authority's power under applicable state law.  In the absence
of the Federal Board, the Airports Authority could implement those
decisions without further review or approval.  Disapproval by the Federal
Board of a particular action would thus have `the purpose and effect of
altering the legal rights, duties, and relations of persons . . . outside
the Legislative Branch,' INS v. Chadha, 462 U. S. 919, 952 (1983), and
would plainly be legislative action that must conform to the requirements
of Article 1, section 7 of the Constitution: passage by both Houses and
approval by the President.  Id. at 954-955.  Congress cannot directly vest
the Federal Board with authority to veto decisions made by the Airports
Authority any more than it can authorize one House, one committee, or one
officer to overturn the Attorney General's decision to allow a deportable
alien to remain in the United States, to reject rules implemented by an
executive agency pursuant to delegated authority, to dictate mandatory
budget cuts to be made by the President, or to overturn any decision made
by a state agency."  App. 26-27 (footnotes omitted).

5
    "The board of directors shall be subject to review of its actions and
to requests, in accordance with this subsection, by a Board of Review of
the Airports Authority.  Such Board of Review shall be established by the
board of directors and shall consist of the following, in their individual
capacities, as representatives of users of the Metropolitan Washington
Airports:
    "(A) two members of the Public Works and Transportation Committee and
two members of the Appropriations Committee of the House of Representatives
from a list provided by the Speaker of the House;

    "(B) two members of the Commerce, Science, and Transportation Committee
and two members of the Appropriations Committee of the Senate from a list
provided by the President pro tempore of the Senate; and

    "(C) one member chosen alternatively from members of the House of
Representatives and members of the Senate, from a list provided by the
Speaker of the House or the President pro tempore of the Senate,
respectively.

"The members of the Board of Review shall elect a chairman.  A member of
the House of Representatives or the Senate from Maryland or Virginia and
the Delegate from the District of Columbia may not serve on the Board of
Review."  49 U. S. C. App. MDRV 2456(f)(1).

6
    "The following are the actions referred to in subparagraph (A):

    "(i) the adoption of an annual budget;

    "(ii) the authorization for the issuance of bonds;

    "(iii) the adoption, amendment, or repeal of a regulation;

    "(iv) the adoption or revision of a master plan, including any proposal
for land acquisition; and

    "(v) the appointment of the chief executive officer."  MDRV
2456(f)(4)(B).

7
    "An action disapproved under this paragraph shall not take effect.
Unless an annual budget for a fiscal year has taken effect in accordance
with this paragraph, the Airports Authority may not obligate or expend any
money in such fiscal year, except for (i) debt service on previously
authorized obligations, and (ii) obligations and expenditures for
previously authorized capital expenditures and routine operating expenses."
MDRV 2456(f)(4)(D).

8
    "The Board of Review may request the Airports Authority to consider and
vote, or to report, on any matter related to the Metropolitan Washington
Airports.  Upon receipt of such a request the Airports Authority shall
consider and vote, or report, on the matter as promptly as feasible."  MDRV
2456(f)(5).

9
    "Any action of the Airports Authority changing, or having the effect of
changing, the hours of operation of or the type of aircraft serving either
of the Metropolitan Washington Airports may be taken only by regulation of
the Airports Authority."  MDRV 2456(g).

10
    "If the Board of Review established under subsection (f) of this
section is unable to carry out its functions under this subchapter by
reason of a judicial order, the Airports Authority shall have no authority
to perform any the actions that are required by paragraph (f)(4) of this
section to be submitted to the Board of Review."  MDRV 2456(h).

11
    The District Court also rejected the arguments that the case was not
ripe for review and that plaintiffs had failed to exhaust administrative
remedies.  718 F. Supp., at 979-980.

12
    Rule 12.4 provides that "[a]ll parties to the proceeding in the court
whose judgment is sought to be reviewed shall be deemed parties in this
Court, unless the petitioner notifies the Clerk of this Court in writing of
the petitioner's belief that one or more of the parties below has no
interest in the outcome of the petition. . . .  All parties other than
petitioners shall be respondents. . . ."  Even though the United States is
technically a respondent under Rule 12.4, we shall use the term
"respondents" to refer solely to plaintiffs.
    The United States does not support the position taken by petitioners
and the dissent.  The United States argues that "[i]f the exercise of state
authority were sufficient in itself to validate a statutorily imposed
condition like the one in this case, a massive loophole in the separation
of powers would be opened."  Brief for the United States 31.  According to
the United States, the condition in this case is constitutional only
because "there is here a reasonable basis for the appointment of Members of
Congress `in their individual capacities.' "  Id., at 33.

13
    In the lower courts, petitioners also challenged this action on
ripeness grounds.  Although petitioners do not press this issue on appeal,
it concerns our jurisdiction under Article III, so we must consider the
question on our own initiative.  See Liberty Mutual Ins. Co. v. Wetzel, 424
U. S. 737, 740 (1976).  We have no trouble concluding, however, that a
challenge to the Board of Review's veto power is ripe even if the veto
power has not been exercised to respondents' detriment.  The threat of the
veto hangs  over the Board of Directors like the sword over Damocles,
creating a "here-and-now subservience" to the Board of Review sufficient to
raise constitutional questions.  See Bowsher v. Synar, 478 U. S. 714, 727,
n. 5 (1986).

14
    "The Congress finds that --

    . . . . .

    "(3) the Federal Government has a continuing but limited interest in
the operation of the two federally owned airports, which serve the travel
and cargo needs of the entire Metropolitan Washington region as well as the
District of Columbia as the national seat of government."  49 U. S. C. App.
MDRV 2451.

15
    Thus, whether or not the statute gives the Airports Authority formal
appointment and removal power over the Board of Review is irrelevant.  Also
irrelevant for separation-of-powers purposes is the likelihood that
Congress will discipline Board members by depriving them of Committee
membership.  See Bowsher, 478 U. S., at 730 (rejecting relevance of
likelihood that Congress would actually remove the Comptroller General).
The dissenting judge on the Court of Appeals suggested that a
constitutional problem could be avoided by reading the statute's
requirement that Board members be members of particular congressional
committees as applying only at the time of appointment.  See 286 U. S. App.
D.C. 334, 347, 917 F. 2d 48, 61 (1990) (Mikva, J. dissenting).  We do not
dispute that statutes should be interpreted, if possible, to avoid
constitutional difficulties.  See, e. g., Edward J. DeBartolo Corp. v.
Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568,
575 (1988).  However, the statutory language unambiguously requires that
the Board of Review "shall consist" of members of certain congressional
committees.  The Transfer Act cannot fairly be read to impose this
requirement only at the time of appointment.

16
    Petitioners and the United States both place great weight on the fact
that the Framers at the Constitutional Convention expressly rejected a
constitutional provision that would have prohibited an individual from
holding both state and federal office.  Brief for Petitioners 15; Brief for
United States 21-23.  The Framers apparently were concerned that such a
prohibition would limit the pool of talented citizens to one level of
government or the other.  See 1 M. Farrand, Records of the Federal
Convention of 1787, pp. 20-21, 217, 386, 389, 428-429 (1911).  Neither
Petitioners nor the United States, however, point to any endorsement by the
Framers of offices that are nominally created by the State but for which
concurrent federal office is a prerequisite.

17
    U. S. Const., Art. IV, MDRV 3, cl. 2 provides in relevant part:
    "The Congress shall have Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging to the
United States."

18
    U. S. Const., Amdt. 21 provides:
    "Section 1.  The eighteenth article of amendment to the Constitution of
the United States is hereby repealed.

    "Sec. 2.  The transportation or importation into any State, Territory,
or possession of the United States for delivery or use therein of
intoxicating liquors, in violation of the laws thereof, is hereby
prohibited.

    "Sec. 3.  This article shall be inoperative unless it shall have been
ratified as an amendment to the Constitution by conventions in several
States, as provided in the Constitution, within seven years from the date
of the submission hereof to the States by the Congress."

19
    "As we emphasized in Chadha, when Congress legislates, when it makes
binding policy, it must follow the procedures prescribed in Article I.
Neither the unquestioned urgency of the national budget crisis nor the
Comptroller General's proud record of professionalism and dedication
provides a justification for allowing a congressional agent to set policy
that binds the Nation.  Rather than turning the task over to its agent, if
the Legislative Branch decides to act with conclusive effect, it must do so
through a process akin to that specified in the fallback provision --
through enactment by both Houses and presentment to the President."
Bowsher v. Synar, 478 U. S. 714, 757-759 (1986) (Stevens, J., concurring in
the judgment).

20
    "If Congress were free to delegate its policymaking authority to one of
its components, or to one of its agents, it would be able to evade `the
carefully crafted restraints spelled out in the Constitution.'  Id., at
959."  Bowsher, 478 U. S., at 755 (Stevens, J., concurring in the
judgment).

21
    The Constitution does permit Congress or a part of Congress to take
some actions with effects outside the Legislative Branch by means other
than the provisions of Art. I, MDRV 7.  These include at least the power of
the House alone to initiate impeachments, Art. I, MDRV 2, cl. 5; the power
of the Senate alone to try impeachments, Art. I, MDRV 3, cl. 6; the power
of the Senate alone to approve or disapprove Presidential appointments,
Art. II MDRV 2, cl. 2; and the power of the Senate alone to ratify
treaties, Art. II, MDRV 2, cl. 2.  See also Art. II, MDRV 1, and Amdt. 12
(Congressional role in Presidential election process); Art. V
(Congressional role in Amendment process).  Moreover, Congress can, of
course, manage its own affairs without complying with the constraints of
Art. I, MDRV 7.  See Chadha, 462 U. S., at 954, n. 16 (1983); Bowsher, 478
U. S., at 753-756 (Stevens, J., concurring).

22
    "While the Constitution diffuses power the better to secure liberty, it
also contemplates that practice will integrate the dispersed powers into a
workable government.  It enjoins upon its branches separateness but
interdependence, autonomy but reciprocity."  Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 635 (1952) (concurring opinion).

23
    Because we invalidate the Board of Review under basic
separation-ofpowers principles, we need not address respondents' claim that
Members of Congress serve on the Board in violation of the Incompatibility
and Ineligibility Clauses.  See U. S. Const., Art. I, MDRV 6.  We also
express no opinion on whether the appointment process of the Board of
Review contravenes the Appointments Clause, U. S. Const., Art. II, MDRV 2,
cl. 2.