# Amicus Curiae Brief — American Foreign Service Assn. v. Garfinkel

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 153

## Text

= g No. 87-2127

an the Supreme Court of the Wnited States

AMERICAN FOREIGN SERVICE ASSOCIATION, ET AL.,
APPELLANTS

VU.

STEVEN GARFINKEL, ET AL., APPELLEES.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA

BRIEF AND MOTION OF THE SPEAKER AND LEADERSHIP GROUP FOR
LEAVE TO FILE BRIEF AMICI CURIAE OUT OF TIME

STEVEN R. ROSS (Counsel of Record),
General Counsel to the Clerk.
CHARLES TIEFER,
Deputy General Counsel to the Clerk.
ROBERT MICHAEL LONG,
Assistant Counsel to the Clerk.
U.S. House of Representatives,
The Capitol, H-105,
Washington, D.C. 20515.
(202) 225-9700
Attorneys for the Speaker and
Leadership Group.

FEBRUARY 1989

In the Supreme Court of the Wnited States

No. 87-2127

AMERICAN FOREIGN SERVICE ASSOCIATION, ET AL.,
APPELLANTS,

VU.

STEVEN GARFINKEL, ET AL., APPELLEES

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA

MOTION OF THE SPEAKER AND LEADERSHIP GROUP FOR LEAVE TO FILE BRIEF
AMICI CURIAE OUT OF TIME

For the following reasons, the Speaker and Leadership
Group respectfully move for leave to file the attached
brief amici curiae.

In this appeal, the Executive Branch has challenged an
act of Congress. This Court has “long held that Congress
is the proper party to defend the validity of a statute,”
Immigration and Naturalization Service v. Chadha, 462
U.S. 919, 940 (1983), when the Executive Branch chal-
lenges the statute’s constitutionality. In such cases, the
Speaker and Leadership Group (‘House parties’) is the
normal mechanism by which the House of Representa-
tives presents its institutional interest. See, e.g., Morrison
v. Olson, 108 S. Ct. 2597 (1988).

Pursuant to Rule 36.2 of this Court, an amici curiae
brief presenting the position set forth herein was due to
be filed on December 29, 1988. However, that date was in
the final days of the One Hundredth Congress. The House
parties, like the Senate, appropriately awaited the start

(1)

2

and organization of the One Hundred First Congress
prior to filing. The merits of the challenge to this statute,
if reached, would raise major questions of the separation
of powers in matters of national security, concerning
which deliberations were appropriate after the organiza-
tion of the Congress.

Counsel for the parties have been advised of, and pro-
vided in advance with draft copies of, the accompanying
brief in advance of the printing of this motion and brief,
allowing appellees thereby to review those arguments in
their preparations for filing their own brief, which is not
yet due. Neither the appellants nor the appellees object
to the filing of the brief amici curiae. Accordingly, the
House parties move for leave to file the attached brief
amici curiae.

Respectfully submitted,

STEVEN R. Ross (Counsel of Record),
General Counsel to the Clerk

CHARLES TIEFER,

Deputy General Counsel to the
Clerk

RoBert MICHAEL LONG,
Assistant Counsel to the Clerk

U.S. House of Representatives
The Capitol, H-105
Washington, D.C. 20515
(202) 225-9700 -
Attorneys for the Speaker and
Leadership Group
FEBRUARY 1989

TABLE OF CONTENTS

I. The Court Should Hold That the Case No Longer
Presents a Basis To Rule, or Else Vacate the
District Court’s Ruling and Remand for Recon-
sc caccscncecencnccsscscescesecorees

A. Legislative Background ..0........0....cccccc0eeeeeeeeeeees
B. Absence of a Concrete Case...............:cesse0e0e000

II. Congress May Legislate About Government Infor-
mation, Particularly About Programs To With-
hold It From Congress Itself, and Most Particu-
larly May Decide Whether To Appropriate for
a ncsssnoncoscee

A. Congress and the Executive Share Author-

ity Over National Security Generally............

B. Congress May Legislate Regarding Govern-

ment Information Particularly About

Withholding From Congress Information

About Waste and Wrongdoing.....................-+.

C. Congress Decides Whether to Withhold Ap-
is ccernscesnnscesscescncccccecsone

i _sssccnsnsnoncncesececeses

TABLE OF CASES AND AUTHORITIES

Cases:
Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978)..............
Alejandrino v. Quezon, 271 U.S. 528 (1926)........000000000.
American Foreign Service Association v. Garfinkel,
688 F. Supp. 671 (D.D.C. 1988) .0..........ccccecsceeeeseeeseeees

16

16

Cases—Continued

Ameron, Inc. v. U.S. Army Corps of Engineers, 610 F.
Supp. 750 (D.N.J. 1985), aff'd, 809 F.2d 979 (3d Cir.
1986), cert. dismissed, 109 S. Ct. 297 (1988) ............00

Ashwander v. Tennessee Valley Authority, 297 US.
288, reh'g denied, 297 U.S. 728 (1936)..........ccccceeceeeeeees

Barenblatt v. United States, 360 U.S. 109, rehg
denied, 361 U.S. 854 (1959) .............ccrecssssssvssesesceeseesees

Bowsher v. Synar, 478 U.S. 714 (1986).........cccccceseeeeeees

Buckley v. Valeo, 424 U.S. 1 (1976) ........ccccccecsesseeseeeeenees

CIA v. Sims, 471 U.S. 159 (1985) ........ccccccsseeseeseneeeeneenenees

Cole v. Young, 351 U.S. 536 (1956) .0........ccccesceessceeeeeeeees

Commodity Futures Trading Commission v. Schor,
A eeeaticctneceenenntstinsieinantanninnnieiniiniinen

County of Los Angeles v. Davis, 440 U.S. 625 (1979).....

Dames & Moore v. Regan, 453 U.S. 654 (1981)...............

Department of Navy v. Egan, 108 S. Ct. 818 (1988).......

Eastland v. United States Servicemen’s Fund, 421

mm! SC ee ss cieepionanaiinisemmeniinnantiaien:

Environmental Protection Agency v. Mink, 410 USS.
Te GUI shnccnsinieasenstanendcininpaiinpaetainsdadaniaiemenmasiiuiimenineninn

Gelston v. Hoyt, 6 U.S. (3 Wheat.) 246 (1818)................

Gilligan v. Morgan, 413 U.S. 1 (1973).......ccccccceeseeeeeeees

Golden v. Zwickler, 394 U.S. 103 (1969) ........ccccccceeeeeeees

Goldwater v. Carter, 444 U.S. 996 (1979)...... 0.0...

Gravel v. United States, 408 U.S. 605 (1972)...

Harlow v. Fitzgerald, 457 U.S. 800 (1982)..........:cccceecee

Helstoski v. Meanor, 442 U.S. 500 (1979) ...............ee
Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973),
cert. denied, 416 U.S. 936 (1974) ........ccceseeeeeseeeeeeeeees
Immigration and Naturalization Service v. Chadha,
Ee ee Be heibiisitcnirctnicsteriiitetinniintinnmennen
Japan Whaling Association v. American Cetacean So-

a 1, 5,

Kendall v. United States ex rel. Stokes, 37 U.S. (12

Penh sasicstionmnennienn
Kent v. Dulles, 357 U.S. 116 (1958) ....... cece eeeseeeeneeeees
Kleppe v. New Mexico, 426 U.S. 529 (1976)...

Kremens v. Bartley, 431 U.S. 119 (1977) «0.0.0... 4, 12,

Laird v. Tatum, 408 U.S. 1 (1972) .............ccccceeeeeeeseeeeeeeees
Little v. Barreme, 6 U.S. (2 Craneh) 170 (1804)..............

Page
Cases—Continued
McGrain v. Daugherty, 273 U.S. 135 (1927)........ccccce 5, 22
Morrison v. Olson, 108 S. Ct. 2597 (1988)........ccccccceeceees 17
National Treasury Employees Union v. Nixon, 492
Pe ee I i ceinsinsiistaksiinidtssenatnntsnbiniiiasisinsnen 19
New York Times Co. v. United States, 403 U.S. 713
RE I oso ee aC SONI ORY Oe a ne 21
Nixon v. Administrator of General Services, 433 U.S.
EOP se citesatsciiinasineunicniindecitnncnetiladiniscnsctttbeieiiidnanien passim

Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972). 4, 13
Rescue Army v. Municipal Court, 331 U.S. 549 (1947). 15

Totten v. United States, 92 U.S. 105 (1875)... 29
United States Army Corps of Engineers v. Ameron,
ee ae 1
United States v. Helstoski, 442 U.S. 447 (1979).............. 1
United States v. Nixon, 418 U.S. 638 (1974)... 20
United States v. Robel, 389 U.S. 258 (1967)...........:cc00000 21
Watson v. Buck, 313 U.S. 387 (1941) .......ccccccccceesceseseeseeees 12
Young v. United States ex rel. Vuitton et Fils, S.A.,
acini 17
Youngstown Sheet & Tube Co. v. Sawyer, 343 US.
aE iiiculecieasdtaceatisiininnstaiddadetasneitsdncssinedensninimentesstel passim
Legislative Materials and Statutes:
ES SERRE perreemnen emerenn 18
I a idisbenesndenslls 18
en nen 18
EE 18
Se I scellieaaemsinins 18
ee A, sas ssunieinnaiiaeneibndie 18
ee ss ceeaininiasanionnsesins 18
ns siiteibseersinne 26
er a I seteeensibesaiessnensonsin 19
rr i I Os sisccrisinnerilaeianennensiioi 19
1ZD Coma. Rec. 14568 (19G8).......0..0.ccccsesecceccesscsecsescosessccsere 7
ic sisocrntsntanseeniniiieiidnaneebieans 24
ee 23
48 Cong. Rec. 5639 (1912)... eee SOLER are adt boc en 24
EE 23
53 Fed. Reg. 38,278-80 (1988) ............:ccsccscsseesessesseseeeeeseees 11

The Civil Service Reform Act of 1978, Pub. L. No.
SO I 25

IV

Page
Legislative Materials and Statutes—Continued
Conference Report to Accompany the Civil Service
Reform Act of 1978, H.R. Conf. Rep. No. 1717, 95th
Comas.. BB Bree. (RB TED .2 This Court has never overturned any statute on
the separation of powers theory embraced by the district
court that the subject was so exclusively reserved for the
President as to disable the Congress from acting. When
the district court took the step of striking down this stat-
ute on the grounds that the President had such exclusive
power that Congress could not refuse to appropriate for

25 Statutes which have been struck down by this Court on separa-
tion of-powers grcunds have been determined to have run afoul of spe-
cific textual constitutional prohibitions. See, eg, Immigration and
Naturalization Service v. Chadha, 462 U.S. 919, 946-47 (1983) (require-
ments for bicameralism and presentation to the President under arti-
cle I, §7, which “the draftsmen took special pains to assure. . . could
not be circumvented’’); Buckley v. Valeo, 424 U.S. 1 (1976) (the appoint-
ments clause under Article II is a “cognate provision{ }] of the docu-
ment.’’); Bowsher v. Synar, 478 U.S. 714 (1986) (assignment of executive
functions to an officer removable by Congress). Compare Morrison v.
Olson, 108 S. Ct. 2597 (1988); Commodity Futures Trading Commission
». Schor, 478 U.S. 833 (1986); Young v. United States ex rel. Vuitton et
Fils, S.A., 481 U.S. 787 (1987).

18

this program, J.S. at 27a, it acted absolutely without a
shred of historical precedent.?®

In the realm of national security, the Constitution
simply does not provide the President with the ‘“conclu-
sive and preclusive” role required to completely disable
Congress from “acting upon the subject.’’ Only two years
ago, this Court recognized the “premier role which both
Congress and the Executive play in this field.” Japan
Whaling Assn. v. American Cetacean Society, 478 U.S. at
230. In that case, like this one, the Solicitor General
urged broad” Executive powers on this Court, invoking
dicta out of context from cases involving clear Presiden-
tial prerogatives (such as recognition of foreign govern-
ments). The Speaker and Bipartisan Leadership Group
appeared as amicus curiae in the case, properly present-
ing to the Court the large role of Congress even in inter-
national relations. Soundly, the Court accepted the
amicus position, with its emphasis that “both Congress
and the Executive’”’ play that role.

It is the Congress—not the President—which the Con-
stitution empowers “to declare war,” art. I, §8, cl. 1; to
“regulate Commerce’”’ including foreign commerce, art. I,
§8, cl. 3; “to raise and support armies,” art. I, § 8, cl. 12,
“to provide and maintain a navy,” id, cl. 13, “to make
rules for the Government and regulation of the land and
naval forces,” id., cl. 14, and “to provide for organizing,
arming’-and disciplining, the militia,” id., cl. 16.27 Of
course, the President possesses his own powers regarding
national security, such as serving as “Commander-in-
Chief’ ?® and his duty to “take Care That the Laws be

2° See 1988 Congressional Report; see also 1988 Hearings, 1113-165
(statements on unprecedented nature of district court decision by Mi-
chael Glennor, Professor of Law, University of California, Davis and
Harold Bruff, Professor of Law, the University of Texas).

27 See U.S. Const., art. I, § 8, cl. 18 (Necessary and Proper Clause).

*8 This power is circumscribed by the appropriations power. It
“would amount to nothing more than the supreme command and di-
rection of the military and naval forces . . . while that of the British

Continued

19

faithfully executed.” 2° Art. II., § 2, cl. 1 and § 3. Howev-
er, these manifestly do not render the subject in question
exclusively Presidential in nature, but merely show that
where matters of war, armies, and security are con-
cerned, there is a shared realm in which both Congress
and the President act.

B. Congress May Legislate Regarding Government Infor-
mation, Particularly About Withholding From Con-
gress Information About Waste and Wrongdoing

Congress has manifest authority to regulate informa-
tion and document handling by federal employees. The
statutory “regulation of material generated in the Execu-
tive Branch has never been considered invalid as an inva-
sion of its [executive] autonomy.” Nixon v. Administrator
of General Services, 433 U.S. at 445. That case upheld the
Presidential Recordings and Materials Preservation Act,
which regulated the papers of former President Richard
Nixon, against a separation of powers challenge because

King extends to the declaring of war and te the raising and regulating
of fleets and armies,—all which, by the constitution under consider-
ation, would appertain to the legislature.’ The Federalist, No. 69 at
449 (A. Hamilton) (emphasis in original). As Justice Jackson indicated,
“While Congress cannot deprive the President of the command of the
Army and Navy, only Congress can provide him an Army or Navy to
command.” And Congress, because it is empowered to make rules for
the “Government and Regulation of army and naval forces” may “‘im-
pinge .. . to some unknown extent . . . upon even command func-
tions.”” Youngstown, 343 U.S. at 644.

2° The “Executive Power” is not taken as a grant in bulk of other
powers. Youngstown, 343 U.S. 640-41 (Jackson, J., concurring). The
“faithful execution” clause, contrary to claims by the Executive, does
not constitute a positive grant of power for the President, but instead
a limit on what the Executive may do with its own powers. Kendall v.
United States ex. rel. Stokes, 37 U.S. (12 Pet.) 524, 613 (1838); Youngs-
town, 343 U.S. at 587 (majority opinion); id. at 610 (Frankfurter, J.,
concurring); id. at 646 (Jackson, J., concurring); National Treasury
Employees Union v. Nixon, 492 F.2d 587, 604 (D.C. Cir. 1974). See
Ameron, Inc. v. U.S. Army Corps of Engineers, 610 F.Supp. 750, 755
(D.N.J. 1985) (history of clause), aff'd, 809 F.2d 979 (3d Cir. 1986), cert.
dismissed, 109 S. Ct. 297 (1988).

20

the Court did not believe the Act prevented the Executive
Branch from “accomplishing its constitutionally assigned
functions.” Jd., at 443.

Two years later, in Environmental Protection Agency v.
Mink, 410 U.S. 73 (1973), the Court confirmed that “clas-
sified’ or national security information is not insulated
from Congressional control. Discussing the Executive
Branch’s classification system, the Court indicated “Con-
gress could certainly have provided that the Executive
Branch adopt new procedures or it could have established
its own procedures—subject only to whatever limitations
the Executive privilege [regarding Presidential confiden-
tial communications] may be held to impose upon such
Congressional ordering.” Jd. at 83 (emphasis added).*°

No short list could do justice to the extensive precedent
for Congressional regulation of government information.
As noted in Nixon v. Administrator of General Services,
433 U.S. at 445:

of course, there is abundant statutory precedent for
the regulation and mandatory disclosure of docu-
ments in the possession of the Executive Branch.
See, e.g., the Freedom of Information Act, 5 U.S.C.
§ 552 (1970 ed. and Supp. V); the Privacy Act of
1974, 5 U.S.C. § 552 (a) (1970 ed., Supp. V); the Gov-
ernment in the Sunshine Act, 5 U.S.C. § 552b (1976
ed.); the Federal Records Act, 44 U.S.C. §2101 et ©
seq.; and a variety of other statutes, e.g., 13 U.S.C.
§§ 8-9 (census data); 26 U.S.C. § 6103 (tax returns).

3° The executive privilege, to the extent (if any) it applies to the
Congress, would not extend throughout the Executive Branch’s mil-
lions of employees. See United States v. Nixon, 418 U.S. 638 (1974) (ex-
ecutive privilege only for Presidential communications).

21

Such Congressional regulation necessarily extends to
classified records and information, and there is a compre-
hensive network of legislation for classified informa-
tion.*! The classification system is impotent without that
network of legislation, for Congressional statutes—not an
administrative system—establish the criminal offenses
for security violations, their conduct and intent stand-
ards, the judicial procedures, the weight to be given to
the fact of classification, and the punishments for such of-
fenses.*2 When civil liberties and national security must
be balanced in this context, ‘[t]he need for a legislative
judgment is especially acute,’ United States v. Robel, 389
U.S. 258 (1967); Kent v. Dulles, 357 U.S. 116, 128 (1958).
See New York Times Co. v. United States, 403 U.S. 713
(1971).38

31 See, e.g., the Freedom of Information Act, 5 U.S.C. § 552(bX1); the
Privacy Act, 5 U.S.C. § 552a; the Central Intelligence Agency Informa-
tion Act, Pub. L. No. 98-447, 98 Stat. 2209 (see CIA v. Sims, 471 USS.
159, 168 (1985)); the Foreign Intelligence Surveillance Act, 50 U.S.C.
§ 1801-1811; the Classified Information Procedures Act, 18 U.S.C. § 1-
16; and above all the espionage laws, 18 U.S.C. 792, et seg.

32 Similarly, the Freedom of Information Act records that Congress
has set the test for withholding of documents from the public: whether
documents are “in fact properly classified,” 5 U.S.C. § 552b(1), with de
novo judicial review where appropriate. The Executive Branch’s high-
flying citations to the discussion in Department of the Navy v. Egan,
108 S. Ct. 818 (1988), conspicuously omit the key qualification that def-
erence to the Executive occurs “unless Congress specifically has pro-
vided otherwise.” Jd. at 625.

33In New York Times, Justice White, in his concurrence, examined
in detail the laws governing espionage, concluding “that Congress has
addressed itself to the problems of protecting the security of the coun-
try and the national defense from unauthorized disclosure of potential-
ly damaging information”, 403 U.S. at 740 (citations omitted). See also
id. at 718 (Black, J., concurring) (criticizing the Executive for ‘“‘not
even attempt{ing] to rely on any Act of Congress” and acting “even
when the representatives of the people in Congress have adhered to
the command of the First Amendment’); id. at 722 (Douglas, J., con-
curring) (““Thus, Congress has been faithful to the command of the
First Amendment in this area.”’)

22

Moreover, Congress can legislate regarding executive
programs aimed at withholding information from Con-
gress itself. As this Court has recognized, Congress’s abili-
ty to oversee and investigate the executive branch is an
essential attribute of the legislative function.** History
provides the best guide to this authority, and strongly
confirms it. Starting in 1792, the House of Representa-
tives voted to create a special committee to investigate
the Army’s disastrous military expedition against Indian
tribes in the Northwest Territory.*® The St. Clair Investi-
gation examined numerous witnesses and documents that
would be classified today, concerning procurement waste,
military readiness, and the communication from Secre-
tary of War Knox to Major General St. Clair, conveying
President Washington’s orders. Congress Investigates at
11-13.

From that first Congressional investigation until today,
it is reported that “Congressional Committees have exam-
ined the conduct of all the wars in which the United
States has engaged except the Spanish-American
War. .. .” Galloway, The Investigative Function of Con-
gress, 21 Am. Pol. Sci. Rev. 47, 48 (1927).2® Most recently,

34 Barenblatt v. United States, 360 U.S. 109, 111 (1959) (Congress’s
investigatory powers are “as penetrating and far-reaching as the po-
tential power to enact and appropriate under the Constitution.”’);
McGrain v. Daugherty, 273 U.S. 135, 175 (1926); Eastland v. United
States Servicemen's Fund, 421 U.S. 491 (1975).

35 A. Schlesinger, Congress Investigates: 1792-1974 7 (1975) [herein-
after Congress Investigates); T. Taylor, Grand Inquest: The Story of
Congressional Investigations 35 (1955). James “Madison, who had
taken an important part in framing the Constitution only five years
before, and four of his associates in that work, were members of the
House of Representatives at the time, and all voted for the inquiry.”
McGrain v. Daugherty, 273 U.S. at 161.

36 See R. Berger, Executive Privilege: A Constitutional Myth, 44, n.
171 (1974) (To cite only a few early examples, the House scrutinized
the Treasury Department (1800 and 1824), the territorial government
of Mississippi (1800), the War Department (1809 and 1832), the conduct
of General James Wilkinson (1810), government clerks generally

Continued

23

select committees of the Senate and House held exhaus-
tive hearings into intelligence operations of the Iran-
Contra affair.*7

During this time, programs to block providing of gov-
ernment employee information to Congress have received
decisive responses. Around the turn of the century, the
Theodore Roosevelt and Taft Administrations imposed a
series of gag orders on federal employees prohibiting
them from communicating with Congress on grievance °°
or other matters.*® Congressional response was intensely

(1818), the Post Office (1820 and 1822), the Bank of the United States
(1832 and 1834), the New York Customs House (1839), the conduct of
Captain J.D. Elliott commanding a naval squadron in the Mediterra-
nean (1839), the Commissioner of Indian Affairs (1849), the Secretary
of Interior (1850), the Smithsonian Institution (1855). In the meantime,
the Senate had [looked into General Andrew Jackson’s conduct of the
Seminole Wars in Florida (1818), the Internal Revenue Bureau (1828),
the Post Office (1830), and John Brown’s Raid at Harper's Ferry
(1859).

Similarly, a joint Senate-House Committee was established for over-
sight during the Civil War. Congress Investigates, p. 76-77. As in the
St. Clair investigation, that Committee reviewed supplies, transporta-
tion, morale, treaties, and command functions involved in the prosecu-
tion of the war by the Army. Jd. at 76-94.

87 Report of the Congressional Committees Investigating the Iran-
Contra Affair, S. Rep. No. 216 & H. Rep. No. 433, 100th Cong., Ist
Sess. (1987).

88 The Roosevelt gag order prohibited communicating to Congress
“either directly or indirectly, individually or through associations, to
solicit an increase of pay or to influence or attempt to influence in
their own interest any other legislation.” S. Spero, Government As Em-
ployer 123 (1948). The first gag order was issued on January 31, 1902.
Exec. Order No. 163, reprinted in 48 Cong. Rec. 5223 (1912). It was re-
issued on January 25, 1906 and amended to include the independent
agencies as well as the executive departments.

8° In 1909, President Taft supplemented the Roosevelt orders by ex-
tending the prohibition from communicating with Congress about job
grievances to cover “Congressional action of any kind’’ and by adding
a prohibition against employees “ ‘Respond{ing] to any request for in-
formation from either House of Congress, or any Committee of either
House of Congress, or any member of Congress except through and as
authorized by the head of his department.’ Executive Order No. 1142
of November 26, 1909, reprinted in 48 Cong. Rec. 7513 (1912).

24

negative.*° The House voted 132 to 1 for a provision in
the postal appropriations bill for 1913 to allow postal
workers to communicate to Congress.*! As Representa-
tive Lloyd warned, “[i]f no Government employee is per-
mitted to speak, excepting through his department chiefs
end the department chief through the Cabinet officer. . .
then there is no possible way of obtaining information.”
Id. at 10671. The Senate expanded the House provision,
limited to postal workers, to guarantee all civil servants
the absolute right to communicate with Congress, which
became section 6 of the Postal Appropriations Act of
1913, better known as the Lloyd-LaFollette Act:

The right of persons employed in the Civil Service
of the United States, either individually or collec-
tively to petition Congress or any member thereto,
or to furnish information to any House of Congress
or to any Committee or Member thereof, shall not be
denied or interfered with.

5 U.S.C. § 7211 (emphasis added).

*° Congress believed the gag orders to be an affront to the Constitu-
tion and the “sacred rights” of federal employees under the First
Amendment. 48 Cong. Rec. 4493 (1912) (Remarks of Rep. Moon). See
also id. at 5080 (Remarks of Rep. Rouse), 5203 (Remarks of Rep.
Prouty), 5626 (Remarks of Rep. Fowler), and 4238 (Remarks of Rep.
Blackman) (gag orders represented ‘“‘suspension of the Constitution.’’).
Further, the gag orders were described as “un-American and unright-
eous,” id. at 5223 (Remarks of Rep. O’Shaunessy), “obnoxious” and
“galling,” id. at 5235 (Remarks of Rep. Buchanan), “un-Americen, un-
democratic, despotic, and cruel.” Appendix to 48 Cong. Rec. 154
(speech of Rep. Kinkian). Government employees were ‘handicapped,
shackled, and gagged’”’ by the Administration’s orders. Jd. at 5157 (Re-
marks of Rep. Evans) and ‘“‘chocked and tied hand and foot,” id. at
4656 (remarks of Rep. Calder). The Administration was a “tyranny’”’
and ‘“‘petty despotism.” Jd. at 5157 (Remarks of Rep. Rouse).

*! 48 Cong. Rec. 5639 (1912).

25

The Civil Service Reform Act of 1978,*? its legislative
history,** and the focus on protecting particular employ-
ees ** make clear that protection of government employ-
ees who inform Congress necessarily applies to all infor-
mation, whether classified or not. Congress has been ex-
plicit in protecting the government employees it depends
upon for important national security information.*®

*2 The Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.
1114 includes specific provisions to protect government whistle-blowers
from agency reprisals for their disclosures of illegal, improper, or
wasteful government activities. See 5 U.S.C. § 2302(bX8). Although Con-
gress recognized the executive's classification system by not protecting
such disclosure to the public, disclosures of such information to appro-
priate governmental officials are protected. Jd. Further, the statute
preserves Lloyd-LaFollette: ‘“This subsection shall not be construed to
authorize the withholding of information from the Congress or the
taking of any personnel action against an employee who discloses in-
formation to the Congress.” 5 U.S.C. § 2302(b).

*3 “(Bly placing limitations on the kinds of information any employ-
ee may publicly disclose without suffering reprisal, there is no intent
to limit the information an employee may provide to Congress or to
authorize reprisal against an employee for providing information to
Congress. Neither title I nor any other provisions of the Act should be
construed as limiting in any way the rights of employees to communi-
cate with or testify before Congress.” Conference Report to Accompany
the Civil Service Reform Act of 1978, H.R. Conf. Rep. No. 1717, 95th
Cong, 2d Sess. 132 (1978).

*4 One impetus for the statute was the case of Ernest Fitzgerald,
who testified before a Congressional subcommittee in November of
1968 about a two billion dollar overrun on procurement of the C-5A
transport aircraft, and was subsequently harassed by the Department
of Defense. See Hearings Before the Subcomm. on Economy in Govern-
ment of the Joint Economic Committee, 90th Cong., 2d Sess. 200-202
(1968); Hearings Before the House Comm. on Post Office and Civil Serv-
ice, 95th Cong., 2d Sess, 331-335, 529-551, 571-580 & 714-745 (1978)
(testimony by Fitzgerald and others leading to the 1978 act); 1987 Hear-
ings at 17-20, 27-32; Harlow v. Fitzgerald, 457 U.S. 800 (1982).

*5 Section 846 of the National Defense Authorization Act, Fiscal
Year 1989, Pub. L. No. 100-456, 102 Stat. 1918, 2027 (protections for
military employees who inform Congress amended to specifically cover
disclosures of classified information). Federal employees’ communica-
tions, not filtered through superiors, are of critical importance to Con-

Continued

26

C. Congress Decides Whether to Withhold Appropriations

The Constitution confers on Congress the unfettered
power to decide whether to withhold appropriations from
a government program by providing that “No money
shall be drawn from the Treasury, but in consequence of
Appropriations made by law,” U.S. Const., art. I, § 9, cl. 7.
Parliament’s same power of the purse, the antecedent of
this authority, included the power to curb Executive ini-
tiatives in foreign affairs, defense, or intelligence by re-
fusals to fund them,*® and the Framers had most earnest-
ly championed Congress’s exercise of a similar power.*?

gress. Gravel v. United States, 408 U.S. 605, 630 (1972) (Stewart, J., dis-
senting in part) (“in preparing for legislative hearings, debates, and
roll calls, a Member of Congress obviously needs the broadest possible
range of information. Valuable information may often come from
sources ir. the Executive Branch . . . [aJnd informants such as these
may be willing to relate information to a Congressman only in confi-
dence’’).
46

The provision [appropriations clause of the Constitution] was

framed against the backdrop of 150 years of struggle between

the King and Parliament for control over the purse, often cen-

tering on military matters. In 1624 the House of Commons for

the first time conditioned a grant of funds to the king. The

Subsidy Act of that year prohibited the use of any military

monies except for financing the navy, aiding the Dutch, and

defending England and Ireland. Two years later Charles I at-

tempted to wage war without popular support, but Parliament

promptly denied him funds to conduct it... .

1988 Hearings at 145-46 (Statement of Professor Glennon) (footnotes
omitted).

47 While the appropriations power is not confined to foreign policy
and security issues, see The Federalist, No. 58 (J. Madison) (the appro-
priations power represents ‘the most complete and effectual weapon
with which any constitution can arm the immediate representatives of
the people, for obtaining a redress of every grievance, and for carrying
into effect every just and salutary measure’’):

Meeting in Philadelphia in 1787, the Framers were well

aware of the tradition of parliamentary power over the purse

and its use to check unwanted ‘national security’ activities.
Continued

27

Any notion that the President’s powers override Con-
gress’s authority to withhold appropriations utterly defies
the Framers’ most basic doctrine of separation of powers:
as George Mason stated it, “the purse and the sword
should not be in the same hands.” M. Farrand, 1 The
Records of the Federal Convention of 1787 at 144 (1937).
This is the “most important single curb in the Constitu-
tion on presidential power.” E. Corwin, The Constitution
and What It Means Today 101 (1973 ed.).

Congress established from the first years of the Repub-
lic through the twentieth century that it would decide, by
granting or withholding appropriations, whether to pro-
ceed with such programs as treaty implementation and
military preparations.*® As a leading commentator
summed up the subsequent experience:

Congress is free to refuse to appropriate funds re-
quired for the execution of treaties; it can snub the

. . . Madison considered it ‘particularly dangerous to give the
keys of the treasury, and the command of the army, into the
same hands.’ ... Accordingly, the Framers chose, in the
words of Jefferson, to transfer the war power ‘from the execu-
tive to the legislative body, from those who are to spend to
those who are to pay.’

1988 Hearings at 145-46 (Statement of Professor Glennon) (footnotes
omitted). See Wolfson, Js a Presidential Item Veto Constitutional? 96
Yale L.J. 838, 841-44 (1987).

*8 E. Nobleman, Financial Aspects of Congressional Participation in
Foreign Relations, Ann. of the Am. Acad., Sept. 1953, at 1245, 1246-49.
As m ‘itary Chief of Staff Omar Bradley said, “Under our form of gov-
ernment, the military policy of the United States is shaped by Con-
gress not by the Armed Forces. . . because . . . Congress controls the
appropriations which in the final analysis . . . control the military
policy... .”” Hearings on Military Functions, National Military Estab-
lishment Appropriations Bill for 1949 (Part 3), House Comm. on Appro-
priations, 80th Cong., 2d Sess. 5, 14 (1948). See E. Huzar, The Purse
and the Sword: Control of the Army by Congress through Military Ap-
propriations 1933-1950 (1950) (describing military appropriations provi-
sions on organization, personnel, and finance). “Much more common
in the military supply measures than affirmative legislation on [mili-
tary] organizations have been limitations on appropriations.’ Jd. at
211.

28
/

President’s requests for funds needed tc finance
long-range, jiarge-scale military, economic, and
technical assistance programs; it can provide au-
thorizations and funds . . . contrary to the Presi-
dent’s policies; it can deny or limit the amount of
money which the United States can contribute to
international organizations, either as regular
annual contributions or as — payments to
operating programs; and it eny funds to
enable the United States to Bn Prove in interna-
tional meetings and conferences.

Nobleman, supra, at 145-46.

This Court established early that the President’s
powers in wartime did not extend beyond statutory limi-
tations. Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804);
Gelston v. Hoyt, 16 U.S. (8 Wheat.) 246 (1818). One nine-
teenth century example of an appropriations law curb
was the “posse commitatus” law in 1878, enacted as a
provision on the Army appropriations bill.*® That appro-
priation law provision established the fundamental legal
division between the military and civilian realms which
has endured ever since. Of course, even the limited intel-
ligence operations in the era before World War II, like all
government activities, responded to control by appropria-
tions.5°

—
——_

*® In its current form, the law prohibits the “willful{] use [] [of] any
part of the Army or the Air Force as a posse comitatus or otherwise to
execute the laws,” 18 U.S.C. § 1385. -

5° One prominent example was the predecessor to today’ 8 National
Security Agency, the post-World War I “Black Chamber” which moni-
tored diplomatic telegrams. As its commander described, it came into
existence through funds “which Military Intelligence managed to
obtain from Congress after taking some of the leaders into. their confi-
dence. I was told that there was a joker in the Department of State
special funds: they could not legally be expended within the District of
Columbia.”’ Final Report of the Senate Sel. Comm. to Study Govern-
mental Operations with Respect to Intelligence Activities, S. Rep. No.
755, 94th Cong., 2d Sess., Book VI 116-17 (1974). Another example was
the World War II intelligence operation, the Office of Strategic Serv-
ices (““OSS’’), the directive-of which stated that “all funds to operate

Continued

29

The end of World War II brought a dramatic increase
in the peacetime expenditure of appropriations for na-
tional security programs, including foreign aid, defense,
and the newly expanded intelligence operations. Annual
appropriations for these programs involved numerous
Congressional decisions on whether to fund programs,
with many such decisions framed as limitations on the
funds provided in the bill. These include the fundamental
charter for covert operations, the Hughes-Ryan Amend-
ment of 1974:

No funds appropriated under the authority of this
chapter or any other Act may be expended by or on
behalf of the Central Intelligence Agency for oper-

ations in foreign countries . . . unless and until the
President [makes a] finding . . . and reports, in a
timely fashion . . . to the appropriate committees of
the Congress. .. .

Pub. L. No. 93-559, § 32, 88 Stat. 1804 (1974); 22 U.S.C.
§ 2422 (emphasis supplied). Other examples of appropria-
tion limitations in the defense context include the limita-
tions of the early 1970’s which forbade further American
expenditures on the war in Indochina; the Clark Amend-
ment, which forbade further expenditures on war in
Angola; and the Boland Amendment, which forbade fur-
ther expenditures on war in Nicaragua.®!

OSS must come from Congress, primarily the House and Senate Ap-
propriations Committees.”’ Jd. at 141-42.

Much is made by the Executive Branch of the use of confidential
funds by Presidents for spy activity. Totten v. United States, 92 US. (2
Otto.) 105 (1875). Such arrangements simply reflect that Congress has
established a confidential funding system, rather than any displace-
ment of the appropriations power. L. Fisher, Presidential Spending
Power 205-13 (1975) (Congressional establishment, oversight, and
repeal of confidential funding systems from 1789 on).

5! The Indochina War provisions are discussed in T.M. Franck & E.
Weisband, Foreign Policy by Congress 13-31 (1979). The Clark Amend-
ment was section 404 of Pub. L. No. 94-329, 90 Stat. 757 (1976), codi-
fied at 22 U.S.C. § 2293, repealed by section 811 of Pub. L. No. 99-83,
99 Stat. 264 (1985), codified at 22 U.S.C. § 2293 note; it is discussed in

Continued

30

A judicial ruling striking down such an Act of Congress
would have disastrous implications, for the Judiciary
would then be called into any number of separation of
powers disputes. Congress places appropriation limita-
tions on the areas in which United States combat or
covert operations may occur; executive agency interven-
tionists may assert inherent power to override such
limits. Congress establishes the military command struc-
ture, such as the unified joint commands, and prescribes
reforms after procurement scandals; the military services
may balk. Congress imposes restraints on intelligence
agencies, such as concerning CIA operations domestically,
or technical surveillance of domestic citizens; the intelli-
gence agenvies may want to shake off these shackles.

Until now, the courts have never overturned an appro-
priations statute by finding that it impermissibly re-
strains the President. Once this Court strikes one down,
the agencies would find the undefined extent of inherent
Executive power a sufficient basis for a limitless number
of requests for the Judiciary to take on the governing of
national security. A greater violation of judicial restraint,
and a greater injury to the democratic system of checks
and balances, than such a ruling, can hardly be imagined.

CONCLUSION

The Court should either hold that the case no longer
presents a concrete basis for a ruling, or vacate the dis-
trict court’s decision and remand for reconsideration.
However, if the Court reaches the merits, it should apply
principles which leave Congress its proper and ample
role.

T.M. Franck & E. Weisband at 46-55. There were a number of differ-
ent Boland Amendments in the mid-1980s, discussed in Report of the

Congressional Committee Investigating the Iran-Contra Affair at 395-
405.

31

Respectfully submitted,

STEVEN R. Ross (Counsel of Record),
General Counsel to the Clerk

CHARLES TIEFER,

Deputy General Counsel to the
Clerk

RoBERT MICHAEL LONG,
Assistant Counse! to the Clerk

U.S. House of Representatives,
The Capitol, H-105,
Washington, D.C. 20515
(202) 225-9700
Attorneys for the Speaker and
Leadership Group
FEBRUARY 1989.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0382%3A13. Public record. Not legal advice.