# Amicus Brief — Atkins v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2349%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1009 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2349%3A5. Public record. Not legal advice.