Amicus Brief — Atkins v. United States

Gio xea ts

! FILED

IN THE 1 pee 81 1977

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977 |_MICHAEL RODAK, JR., CLERK

No, 77-214

C. CLype ATKINS, eT Pes

2 LAINTIFFS

V.

UNITED STATES OF AMERICA

EFENDANT.

BRIEF OF AMICUS CURIAE ON BEHALF OF

JACOB K. JAVITS AND EDMUND S. MUSKIE,

UNITED STATES SENATORS, IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

AcoB K a uAVITS

NTTER S ATES SENATOR

«ds SENATE

WASHINGTON, D.C.

FOR HIMSELF AND FOR,

DMUND R. MUSKIE

NITE JATES ENATOR

ENATE

Fa ng D.C.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-214

C. CLYDE ATKINS, ET Ales oe

Ve

UNITED STATES OF AMERICA

EFENDANT.

BRIEF OF AMICUS CURIAE ON BEHALF OF

JACOB K. JAVITS AND EDMUND S. MUSKIE,

UNITED STATES SENATORS, IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

INTEREST OF AMICI CURIAE

Amici, are members of the United States

Senate who are supporting the motion by

petitioners in the three consolidated

cases in order to seek judicial resolution

of the constitutionality of the legis-

lative veto. Amici do not express interest

in other issues which may come before the

Court in this case, but limit their petition

to the question of the legislative veto

involved and its constitutionality.

Both Senators are members of the

Committee on Governmental Affairs which

has in the first session of the 95th

Congress been presented with several

legislative proposals incorporating

a legislative veto mechanism, including

the Reorganization Act of 1977 and

proposals to create a Department of

Energy. In addition, Senator Muskie

serves as Chairman of the Senate Budget

Committee and is a member of the Committee

on Environment and Public Works where he

must consider legislative veto provisions

contained in the Congressional Budget

and Impoundment Control Act of 1974, as

well as similar provisions in various

environmental laws and proposed amendments.

For example, an amendment proposed this

year to the Clean Air Act and the Clean

Water Act would have provided for legis-

lative veto provisions over proposed

executive branch actions but these

provisions were rejected by House-Senate

conference committees on which Senator

Muskie served.

Senator Javits also is the ranking

minority member of the Committee on Human

Resources and a senior member of the

Committee on Foreign Relations. As a

member of those committees he has been

involved with consideration of legis-

lative veto provisions related to the

Employee Retirement Income Security

Act, 29 U.S.C. §1001 et. seq., and the

War Powers Act, 50 U.S.C. §1541-1548 and

the proposed Nuclear Nonproliferation

Act of 1977.

— —

REASON FOR GRANTING THE WRIT

Because of the increasing reliance by

the Congress on the legislative veto mech-

anism as an instrument for review and

oversight of Executive Branch actions,

amici, as members of the United States

Senate, urge this Court to resolve the

constitutionality of the procedure because

the issue is, in the words of the Solicitor

General, "unquestionably significant ...

important and recurring," -- an issue which

ought to be decided in an appropriate case.

While the importance of this issue has

been slow to develop, it has accelerated

in this decade with an unprecedented number

of laws having passed the Congress which

incorporate a legislative veto mechanism.

The Congressional Research Service of

the Sanayi Congress has advised that

of the 192 bills embodying legislative

vetoes enacted between 1932 and 1975,

more than half were enacted since 1970.

A total of 351 resolutions have been

introduced between 1960 and 1975 which

proposed to’veto executive actions covered

by the foregoing laws. Of those, 244

were introduced in 1974 or 1975.

In this first session of the 95th

Congress alone, seven measures have

become public law with the inclusion of

a legislative veto mechanism. Another

seven bills have passed the House of

Representatives and two have passed

the Senate which would incorporate

similar procedures (see Appendix A).

Before many more laws are constructed

which delegate authority to the Executive

Branch agencies, and which rely on this

reservation of authority in the Congress,

it is important to have a definitive

resolution of the constitutionality of

the procedure. The importance of this

issue cannot be overestimated to the

evolution of the separation of powers

doctrine and to the balance of powers

between the branches of the Federal

government. We urge the Court to supply

guidance and substance to these underlying

principles of the Constitution, heeding

2 ee admonition that "it is

a Constitution we are expounding" (Youngs-

town Sheet & ee Co. Vv. rn eg 343 U.S.

The instant case presents the issue of

the legislative veto squarely and directly.

It is a form of its use typical of its many

forms utilized by Congress. Furthermore,

it is doubtful that any other case will

come before the Court for some time which

more clearly presents the question of the

constitutionality of the legislative veto.

The Government, in its opposition

brief to the petition for a writ of

certiorari, states the view that the

one~House veto provision of the Salary

Act was unconstitutional. The Govern-

ment further concludes that a "clear

judicial resolution of the consti-

tutional issue is of the utmost impor-

tance" (U.S. Brief, pp. 15-16), yet,

they argue that this case does not offer

the occasion for resolving this question.

Congress has been reluctant to exercise

the veto authority which it has included

in other public laws. In some instances,

the exercise of a veto involved the proposed

expenditure of appropriated funds, or the

rejection of government reorganization

plans submitted by the President. But in

such instances, standing for judicial

review often would be difficult to obtain.

Other cases which have raised the issue

have been more appropriately decided on

other grounds, such as Buckley v. Valeo,

424 U.S. 1(1976), or involved problems

of ripeness or mootness. Clark v. Kimmit,

No. 76-1105, (June 6, 1977).

Another pending case involving this

issue, Chadha v. Immigration and

Naturalization Service, NO. 77-1702,

(th Cir), may not be decided for a lengthy

period. In that case, the petitioner,

an alien, was ordered deported pursuant

to legislation delegating such powers to

one House of Congress. While the facts

of the case would seem to clearly present

the issue, the average time for issuing

decisions on similar cases in that circuit

indicate that it could be a considerable

time before it could be in a position to be

considered by this Court. Furthermore, an

agreement between the petitioner and the

government on the merits of that case could

have the effect of mooting the case, as

could legislation which the Administration

has proposed dealing with the rights of

certain aliens.

Amici believe there is no other case

which could be presented to the Court which

squarely presents this issue. It is of

utmost importance to the Congress and to y

the Government as a whole that the issue

be resolved at the earliest possible

time.

CONCLUSION

For the reasons set out above, Amici

respectfully submit that the petition

for writ of certiorari should be granted

in order to permit this Court to decide

the very important question of the

constitutionality of the legislative veto.

- la -

APPENDIX A

PUBLIC IAWS:

95-17 Reorganization Act of 1977

95-19 Emergency Unemployment Compensation

Extension Act

95-52 Export Administration Amendments

of 1977

95-75 International Navigational Rules

Act

95-82 Military Construction Authorization

Act

95-148 Foreign Assistance & Related Programs

Appropriations Act

95-192 Soil & Water Resources Conservation

Act

BILLS PASSED BY HOUSE:

H.R. 10 - Federal Employees Political

Activities Act, passed House,

June 7, 1977

H.R. 3199 - Federal Water Pollution

Control Act Amendments, passed

House, April 5, 1977

H.R. 3816 - Federal Trade Commission

Amendments, passed House,

October 13, 1977, passed

Senate, October 20, 1977

H.R. 5263 - Energy Tax Bill, passed House,

October 28, 1977

H.R. 5885 - Public Rivers and Harbors Act,

passed House, May 17, 1977,

passed Senate, June 22, 1977

H.R. 8410 - Labor Reform Act, passed House,

October 6, 1977

H.R. 8444 - National Energy Act, passed

House, August 5, 1977

- 2a - o Ss

BILLS PASSED BY SENATE:

s. 9 - Outercontinental Shelf Lands

Act Amendments, passed Senate,

July 15, 1977

S. 37 - ERDA Synthetic Fuel Loan and APPENDIX B

Guarantee Program, passed

Senate, March 3l, 1977 KEeEvIN M. ForpeE, Lrp.

ATTORNEY AT LAW

e CHICAGO, ILLINOIS 60602 Prone 726-80:5

<

November 11, 1977

Senator Edmund S. Muskie

Washington, wm 20510

Attention: James H. Davidson

Counsel

Re: Letter of Consent to File an Amicus

- Atkins, et al. v. United States,

No. 77-214

Dear Senator Muskie:

Sed MaROn, See Te in Sn enae of Miians 08, ah

v. Uni States, No. 77-214, we are authorized to you

that you tor Jacob K. Javitz have our consent to file

a Brief Amicus Curiae in this cause.

Si .

ly fide

- Forde

— ttorney for Petitioners

- lc -

APPENDIX C

Office of the Solicitor General

Washington, D.€. 20530

November 10, 1977

Honorable Edmund S. Mvskie

United States Senate

Washington, D. C. 20510

Re: . Atkins v. United States

No. 77-214

Dear Senator Muskie:

As requestéd te wens setae of November 9, 1977, I

consent to the filing in the above case of a brief amicus

curiae by yourself and Sendtor Javits.

Sincerely,

ferr/t 7 i vv?

Daniel M. Friedman

Acting Solicitor General