88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); Pearce v. Wichita County, 590 F.2d 128, 131-32 (5th Cir. 1979).3

Here, Congress has enacted a severability clause. Section 406 of the INA states that "[i]f any particular provision of this Act, or the application thereof to any person or circumstance is held invalid, the remainder of the Act and the application of such provisions to other persons or circumstances shall not be affected thereby." Thus, those who seek to establish inseverability bear the burden, under Electric Bond & Share Co., supra, to demonstrate that "it is evident" that Congress "would not have enacted those provisions within its power" without section 244 (c) (2). Champlin Refining Co., supra.

[4] This burden has not been met. At most, amici's citation to the many Immigration and National Act amendments shows that when the several Congresses were presented with the question of the Attorney General's discretion, they preferred to retain some supervisory power, rather than relinguish it. It has not, however, been shown that the rest of section 244 is not "functionally independent," United States v. Jackson, 390 U.S. at 586, 88 S.Ct. at 1218, or that a "total frustration" of Congress' basic purpose would attend section 244 (c) (2)'s invalidation. Id. at 591, 88 S.Ct. at 1221. Indeed, the legislative history of the INA's predecessor, which first gave the Attorney General discretion to suspend deportation, indicates that section 244's purpose was to alleviate the onerous burden of numerous private bills. Representative Dies then stated:

It was my original thought that the way to handle all these
meritorious cases was through special bills. I am absolutely
convinced as a result of what has occurred in this House that
it is impossible to deal with the situation through special bills.
We had a demonstration of that fact not long ago when 15
special bills went before the House. The House consumed 5/2
hours considering four bills and made no disposition of any
of these bills.

81 Cong. Rec. 5542 (1937). Congress' objective of reducing its private bill docket will not be frustrated by ruling section 244 (c) (2) invalid; Congress will not now be required to entertain numerous private petitions.

Further, contrary to amici's assertions, section 244(a) operates independently of section 244 (c) (2), thus buttressing our analysis of congressional intent. Section 244 (a) states, in relevant part, that "[als hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence [for all aliens meeting the provisions of either section 244 (a) (1) or section 244 (a) (2)].” Fairly read, this section gives the Attorney General the power to adjust the status of the alien. The section's first clause merely places conditions on the exercise of that discretion: subsection (c) and its

3 In Jackson, the Court held that, notwithstanding the absence of a severability clause, the death penalty provision of the Federal Kidnaping Act was severable from the rest of the Act. It reaffirmed Champlin the severability of a statute turns on congressional intent. See also Sloan v. Lemon. 413 U S. 825. 834. 93 S.Ct. 2982, 2987. 37 L.Ed.2d 939 (1973); Tilton v. Richardson. 403 U.S. 672, 683-84, 91 S.Ct. 2091, 2098. 29 L.Ed.2d 790 (1971) (plurality opinion); Millstone v. O'Hanlon Reports, Inc., 528 F.2d 829. 832 n.3 (8th Cir. 1976) Moore v. Fowinkle, 512 F.2d 629, 632 (6th Cir. 1975). Electric Bond establishes a guide for ascertaining congressional intent. If Congress included a severability clause, it is presumed to have intended each section of the Act to stand or fall on its own.

mechanism of congressional disapproval is grouped with other provisions, some of which are plainly nonessential, regulating the Attorney General's discretion. It is significant, and fatal to amici's argument, that section 244 (a) stands independently of these latter conditions, and operates on its own terms. Section 244 (c) (2) is properly understood as one of many conditions on the Attorney General's discretion; it is not, as amici urge, an essential condition on the delegation of that authority.5

[5-7] We thus find that Chadha has indeed suffered injury in fact: the Attorney General will deport him should his challenge fail.“ Fur

• Subsections (b) through (f) restrict the Attorney General's discretion in the following ways subsection (b) limits the dennition of continuous physical presence; subsection (c) is the congressional disapproval mechanism; subsection (a) directs the Attorney General to adjust the nonpreteience immigrant visas for each cancelation of deportation; subsection (e) grants to the Attorney General the discretion to allow deportable aliens to leave voluntarily if they meet specified conditions, and subsection (1) specifically exempts certain classes of aliens from the discretionary relief provided in subsection (a).

Each of these subsections seeks to limit the Attorney General's discretion, but this does not establish that each is somehow essential to Congress' purpose. From a reading of the section, and given the purpose of alleviating the number of cumbersome private bills, it is obvious that Congress enacted each subsection in order to further what it thought to be the proper handling of hardship cases; it is not evident that each subsection, and more particularly subsection (c), was absolutely necessary to the attainment of that goal. McCorkle v. United States, 559 F.2d 1258 (4th Cir. 1977), which held that a onehouse disapproval provision was inseparable from the rest of the Federal Salary Act of 1967, is thus distinguishable. The court in McCorkle construed a statute which, unlike the one at issue here, did not contain a severability clause. Thus, the burden was on McCorkle to show that the section he attacked was severable. Further, the court felt that the section under attack there was fairly essential to the attainment of Congress' purpose. But see Atkins v. United States, 556 F.2d 1028, 1093-89 (Ct.Cl.1977) (en banc) (Skelton, J., dissenting) (finding same section severable), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed. 2d 751 (1978). In McCorkle the court marshalled explicit statements from the legislative history that the bill would not be enacted without the one-house disapproval device. Here, by contrast, amici have not shown us any statements that the one-house disapproval mechanism is essential to the legislative purpose; indeed, they have led us to statements that the basic purpose was the lightening of Congress' workload. Against such a background, we cannot say that section 244 (c) (2) was so essential to Congress' purpose that it's invalidation will totally frustrate the statute's objective.

6 While this petition was pending, Chadha has married an American citizen. This makes him eligible for an immediate relative petition, INA §§ 201(b), 204, 8 U.S.C. §§ 1151 (b), 1154 (1976), but such eligibility does not make the case moot. The Attorney General has declared an intention to deport Chadha; the marriage does not alter this intention. Cf. New York Transit Auth. v. Beazer, 440 U.S. 568, 580-81, 99 S.Ct. 1355, 1362, 59 L.Ed.2d 587 (1979) (statutory amendment arguably superseding challenged regulation does not render appeal moot when application and interpretation of amendment uncertain).

We note, moreover, that filing as immediate relative petition does not ensure certain and permanent relief. INA §§ 204, 205, 8 U.S.C. §§ 1154, 1155 (1976). Compare Menezes v. INS, 601 F.2d 1028 (9th cir. 1979) with Dabaghian v. Civiletti, 607 F.2d 868 (9th Cir. 1979). Thus, Chadha's marriage confers neither permanent resident status nor a guarantee thereof. Until an immediate relative petition is filed, Chadha remains subject to a final order of deportation. The dispute remains as a case or controversy.

Even if it were appropriate to assume, arguendo, that the INS would eventually grant Chadha's wife's petition-a petition which has not yet been, and may not be made the case would not be moot. A case does not become_mcot during appeal so long as a party retains a personal stake in the appeal's outcome. Powell v. McCormick, 395 U.S. 486, 495500, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969); Jones v. Diamond, 594 F.2d 997 (5th Cir. 1979); McLaughlin v. Hoffman, 547 F.2d 918 (5th Cir. 1977); Carter-Wallace, Inc. v. Otte, 474 F.2d 529. 532-34 (2d Cir. 1972) (Friendly, J.), cert. denied, 412 U.S. 929, 93 S.Ct. 2753, 37 L.Ed.21 (156 (1973). See also Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 100 S.Ct. 2177, 64 L.Ed.2d 804 (1980) (disposition of litigant's substantive claim in class action suit does not destroy personal stake in outcome of class certifica tion): United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed. 2d 479 (1980) (same). Chadha would suffer significant collateral detriment should we relegate him to the relief afforded by the immediate relative petition. The most obvious detriment is that he would be required to wait longer in order to be eligible for citizenship status. Under our disposition today, Chadha's status as a legal resident will have commenced when he received the initial grant of administrative suspension. Inasmuch as Chadha's deportation was suspended in 1974. the five-year waiting period for citizenship has already expired, thus making Chadha eligible to apply for naturalization. See 8 U.S.C. § 1427 (a) (1976) (five-year period for citizenship). Under an immediate relative petition, however, Chadha could not gain permanent resident status until and unless that petition might be granted, and three more years would have to pass before Chadha might file for citizenship. See 8 U.S.C. § 1430 (a) (1976). By this difference in dates when permanent resident status is granted, Chadha thus retains a personal interest in the disposition of this petition, even though an immediate relief. Cf. Fiswick v. United States, 329 U.S. 211, 222. 67 S.Ct. 224, 230, 91 L.Ed. 196 (1946) (appeal of conviction not rendered moot by petitioner's having served sentence because conviction may impede petitioner should he apply for naturalization). In addition. a case is not rendered moot simply because there is the bare possibility, or even probability, that the outcome of a separate administrative proceeding may grant the litigant identical or similar relief. Sierra Club. v. Train, 557 F.2d 485 (5th Cir. 1977); Consumers Union v. Miller, 84 F.R.D. 240 (D.D.C. 1979).

ther, Chadha can directly trace his deportation to the operation of section 244 (c) (2). Thus, if section 244 (c) (2) is invalidated, the original suspension under section 244 (a) will be reinstated and Chadha's status adjustment will become permanent. With this additional showing that "the judicial relief requested will . . . redress the claimed injury," Duke Power Co., 438 U.S. at 79, 98 S.Ct. at 2633, Chadha has made out an article III case or controversy.

Amici argue, however, that various prudential doctrines of standing preclude us from deciding Chadha's case. Specifically, they contend that Chadha asserts "a generalized grievance shared by a large number of citizens in a substantially equal measure," Duke Power Co., 438 U.S. at 80, 98 S.Ct. at 2634; United States v. Richardson, 418 U.S. 166, 175, 94 S.Ct. 2940, 2945, 41 L.Ed.2d 678 (1974), and that his claim to relief impermissibly rests on "the legal rights or interests of third parties." Duke Power Co., 438 U.S. at 80, 98 S.Ct. at 2634; Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). We reject both claims.

[8] While it may be true that Chadha asserts a claim common to all citizens interested in separation of powers, it is true only in a trivial sense. He also has the added motive, crucial to a sharp presentation of the issues, of being injured by the operation of the statute he challenges. See Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206. Since the Attorney General will deport Chadha pursuant to section 244 (c) (2) unless we rule in Chadha's favor, it is easily seen that Chadha's claim "is not a generalized grievance. Instead... it focuses on a particular [statute] and is not dependent on speculation about the possible actions of third parties not before the court." Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 562, 50 L.Ed.2d. 450 (1977) Chadha's claim is thus specific and concrete: his injury stems directly from the operation of the statute he challenges. His injury presents the necessary "actionable casual relationship." Id.; Warth v. Seldin, 422 U.S. 490, 507, 95 S.Ct. 2197, 2209, 45 L.Ed.2d. 343 (1975). It is immaterial that his claim of section 244 (c) (2)'s unconstitutionality is shared by many; he presents a specific instance of injury flowing directly from the statute's operation. In a separation of powers claim. this type of concrete injury is sufficient for standing purposes. Buckley v. Valeo, 424 U.S. 1, 12 n.10, 96 S.Ct. 612, 631 n.10, 46 L.Ed.2d 659 (1976) (per curiam).

[9] Amici's third party standing claim fails for similar reasons. Amici claim that, by asserting invalidity under a separation of powers rubric, Chadha is actually asserting the rights of the Executive and Judicial branches. This argument, however, simply proves too much. If taken to its limit, no individual could ever challenge a congressional act using a separation of powers argument. Our constitutional history, however, is contrary. See, e. g., Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 4441-43, 97 S.Ct. 2777, 2789, 53 L.Ed.2d 867 (1977); Buckley v. Valeo, 424 U.S. at 119-24, 96 S.Ct. at 682. Thus, by demonstrating a concrete injury-deportation-flowing from section 244 (c) (2)'s operation, and by showing that this court could redress that injury, Chadha has established standing to challenge section 244 (c) (2). Buckley v. Valeo, 424 U.S. at 12 n.10, 96 S.Ct. at 631 n.10; Warth v. Seldin, 422 U.S. at 501, 96 S.Ct. at 2206.

2. Political question

[10] Amici's next claim focuses not on Chadha's personal stake, but on the nature of his claim. Their contention is that Chadha's claim presents a nonjusticiable political question. At first glance, this argument may appear to have merit: the Naturalization Clause, U.S.Const. art. I, § 8, cl. 4, when read in conjunction with the Necessary and Proper Clause, U.S. Const. art. I. § 8, cl. 18, gives Congress considerable power over aliens. See, e.g., Fiallo v. Bell, 430 U.S. 787, 792-95, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977). This discretion, while broad, is not unlimited. See L. Tribe, American Constitutional Law § 5-16, at 281-82 (1977). But Chadha's claim is not that Congress has violated either the Naturalization or the Necessary and Proper Clauses; his claim is that section 244 (c) (2) violates the separation of powers doctrine. As this doctrine is not textually committed to any one branch, the political question doctrine is not implicated. Powell v. McCormack, 395 U.S. 486, 519-20, 89 S.Ct. 1944, 1962, 23 L.Ed.2d 491 (1969); Baker v. Carr, 369 ÚS. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). Indeed, courts have often adjudicated separation of powers claims. See, e.g., Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.E.2d 659 (1976) (per curiam); Atkins v. United States, 556 F.2d 1028 (Ct.Cl.1977) (per curiam) (en banc), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978)."

[11] A more fundamental reason, however, underlies our conclusion that this case does not present a political question. The Supreme Court has explicitly recognized that the political question doctrine is based on a judicial recognition of the principle of separation of powers. Giligan v. Morgan, 413 U.S. 1, 10-11, 93 S.Ct. 2440, 2445, 37 L.Ed.2d 407 (1973); Powell v. McCormack, 395 U.S. at 517, 89 S.Ct. at 1961. It would stand the political question doctrine on its head to require the Judiciary to defer to another branch's determination that its acts do not violate the separation of powers principle. It is the Judiciary's prerogative, after a showing that the source of a claimant's appeal is not textually committed to another branch, to adjudicate a claimed excess by a coordinate branch of its constitutional powers. In this case, Chadha suffers injury due to the operation of a statute he claims violates the separation of powers principle. This type of claim is subject to judicially manageable standards, see, e.g., Buckley v. Valeo, 424 U.S. at 119-24, 96 S.Ct. at 682, and we therefore reject amici's claim.

3. Adverseness

[12] Amici's final point is that Chadha's claim presently lacks the necessary adverseness. They argue that since the INS has agreed that section 244 (c) (2) is unconstitutional, we should decline to pass on Chadha's case. This argument misconceives the adverseness requirement. The controversy "must be a real and substantial [one] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227,

7 Fallo v. Bell, 430 U.S. 787. 97 S.Ct. 1473. 52 L.Ed.2d 50 (1977), is not contrary. There, a challenge was made to Congress' classification scheme for immigration preferences. The Court held that the petitioners' equal protection and due process claims were justiciable. Id. at 792 & 793 n.5, 97 S.Ct. at 1447 & 1448 n.5.

241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937). Here, Chadha has asserted a concrete controversy, and our decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold section 244 (c) (2), the INS will execute its order and deport him. Courts often, moreover, adjudicate disputes in which legal or factual matters are conceded. In Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9, 88 S.Ct. 1970, 1973, n.9, 20 L.Ed. 2d 1037 (1968), for example, the INS also agreed with the alien's interpretation of the case's dispositive issue. Yet, the Court asked Congress to appear as amici, as we have done, and heard the case on the merits. Similarly, in Atkins v. United States, 556 F.2d at 1058 & n.15, the Justice Department agreed with the plaintiffs that a one-house disapproval mechanism was unconstitutional. The Court of Claims, however, heard the case on the merits after requesting both houses of Congress to appear as amici. Id.

Finally, if we accepted amici's argument and dismissed the appeal for lack of adversity, we would implicitly approve the untenable result that all agencies could insulate unconstitutional orders and procedures from appellate review simply by agreeing that what they did was unconstitutional. Where, as here, the agency fully intends to enforce its order, it would be a perversion of the judicial process to dismiss the appeal and thereby permit the order to be enforced on such grounds." Against this background, and with arguments for the constitutionality of the statute ably advanced by amici, we find that the issues are presented in a sufficiently concrete and specific manner for us to reach the merits of the case.

II. MERITS

A. SEPARATION OF POWERS AS A LEGAL STANDARD

[13, 14] Executive or legislative actions which contravene the principle of separation of powers are unconstitutional. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 441-46, 97 S.Ct. 2777, 2789, 53 L.Ed.2d 867 (1977); Buckley v. Valeo, 424 U.S. 1, 118-24, 96 S.Ct. 612, 681-84, 46 L.Ed2d 659 (1976) (per curiam); United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); Humphrey's Executor v. United States, 295 U.Ś. 602, 55 S. Ct. 869, 79 L.Ed. 1611 (1935). We conclude the statutory mechanism reviewed here violates the constitutional doctrine of separation because it is a prohibited legislative intrusion upon the Executive and Judicial branches.

We explain in detail our reasons for that conclusion, but preface our discussion by a consideration of some elementary principles. This

The Supreme Court has often recognized the presence of a case or controversy irrespective of a party's concessions. See, e.g., Sibron v. New York, 392 U.S. 40, 58, 88 S.Ct. 1889, 1900, 20 L.Ed. 2d 917 (1968); Levine v. United States, 383 U.S. 265, 266, 86 S.Ct. 925, 15 L.Ed.2d 737 (1966); Cates v. Haderlein, 342 U.S. 804, 72 S.Ct. 47, 96 L.Ed. 609 (1951) (per curiam); Young v. United States. 315 U.S. 257. 258-59. 62 S.Ct. 510, 511, 86 L.Ed. 832 (1942). See also Atkins v. United States, 556 F.2d 1028, 1058 & n.15 (Ct.Cl. 1977) (per curiam) (en banc), cert. denied, 434 U.S. 1009, 98 S. Ct. 718, 54 L.Ed.2d 751 (1978). Amici argue for the absence of a case or controversy because they cannot petition the Supreme Court for a writ of certiorari. See Ex parte Leaf Tobacco Board, 222 U.S. 578. 581. 32 S.Ct. 833. 56 L.Ed. 323 (1911). In United States v. Lorett, 328 US 303. 66 S. Ct. 1073, 90 L.Ed. 1252 (1946), however, a congressional act was also challenged. There, the Solicitor General conceded two of the three issues and expressed no opinion on the third. Id. at 305. 66 S.Ct. at 1073. Congress then authorized a special prosecutor to petition for a writ of certiorari. Id. at 306, 66 S.Ct. at 1074. The Supreme Court found the requisite case or controversy was not absent and heard the case on the merits.