Appendix — Burke v. Barnes

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

FRANK G. BURKE, ACTING ARCHIVIST OF THE UNITED

STATES, and RONALD GEISLER, EXECUTIVE CLERK

OF THE WHI!TE HOUSE, PETITIONERS

v.

MICHAEL D. BARNES, ET AL.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

BRUCE N. KUHLIK

Assistant to the Solicitor General

WILLIAM KANTER

MARC JOF' NSTON

Attorneys :

Department of Justice

Washington, D.C. 20530

(202) 633-2217

. .

> BEST AVAILABLE COPY.

TABLE OF CONTENTS

Page

Appendix A (Opinion dated 4/12/85) —..0...0.0....ee ee. la

Appendix B (Memorandum and Order dated 3/9/84) ..... 119a

Appendix C (Order dated 8/7/85) -...----....-22-222.-2eececceneee 133a

Appendix D (Order dated 8/7/85) -...-.-..-.---..222----ecceeeeeeeee 135a

Appendix E (Judgment dated 8/29/84) —..... 137a

Appendix F (Order dated 6/4/85) -...........---.---22--e een 139a

SRR A RT CR a SO SC Oe 14la

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No, 84-5155

MICHAEL D. BARNES, individually and as a member

of U.S. House of Representatives, ET AL., and

UNITED STATES SENATE, ET AL., APPELLANTS

v.

Ray KLINE, individually and

in his capacity as Administrator,

General Services Administration, ET AL.

Appeal from the United States District Court

for the District of Columbia

(Civil Action No. 84-00020)

Argued June 4, 1984

Decided August 29, 1984

Opinions Filed April 12, 1985

Before: RoBINSON, Chief Judge, Bork, Circuit

Judge, and McGowan, Senior Circuit

Judge.

Opinion for the Court filed by Senior Circuit Judge

McGowan. +

Separate dissenting opinion filed by Circuit Judge

Bork.

McGowan, Senicr Cirewit Judge: This appeal

from the District Court’ requires us to determine

when legislation presented to the President for his

review is subject to a “pocket veto” under Article I,

section 7, clause 2 of the United States Constitution.

That clause provides, in part, that if the President

disapproves of a bill but fails to return it to its

originating house, with his objections noted, within

ten days after presentment to him, the bill becomes

a law “unless the Congress by their adjournment pre-

vent its Return, in which Case it shall not be a law.”

The precise issue at stake is whether adjournment of

the Ninety-eighth Congress at the end of its first

session “prevented” return of a bill presented to the

President on the day of adjournment and thus created

an opportunity for a pocket veto of that bill.

Appellants are thirty-three individual members of

the House of Representatives,’ joined by the United

1 Rarnes v. Carmen, 582 F. Supp. 163 (D.D.C, 1984).

2 They have sued both in their individual capacity and as

members of the House. Thirty-one of the thirty-three mem-

States Senate and the Speaker and bipartisan leader-

ship of the House of Representatives.’ Appellees are

Ray Kline, Acting Administrator of General Serv-

ices,* and Ronald Geisler, Executive Clerk of the

White House. In the District Court, appellants

sought declaratory and injunctive relief that would

have nullified the President’s attempted pocket veto

in this case and required appellees to deliver and

publish as law the bill that forms the subject matter

of this litigation. On cross-motions for summary

judgment, the court found for appellees on the

ground that intersession adjournments® inherently

bers voted in favor of the legislation in question; two took no

part in the measure’s final adoption on the floor. 582 F. Supp.

at 164,

* The Senate intervened in the District Court pursuant to

FED. R. Civ. P. 24(a) (1) and 2 U.S.C. §§ 288b(c), 288e(a),

288/(a)° (1982). The resolution directing Senate Legal Coun-

sel to undertake intervention was jointly sponsored by Sena-

tors Howard Baker and Robert Byrd, Majority and Minority

Leaders, respectively, of the Senate. S. Res. 313, 98th Cong.,

2d Sess. (1984) ; 1380 Conc. Rec. $223-24 (daily ed. Jan. 26,

1984) (remarks of Sen. Baker). The Speaker of the House of

Representatives and the House Bipartisan Leadership Group,

which includes the Majority and Minority Leaders and Whips,

intervened in their official capacities pursuant to Fep. R. Crv.

P. 24(a) (2), or in the alternative under Fep. R. Crv. P.

24(b) (2). All applications of intervention were granted

without opposition in the District Court, 582 F. Supp. at 164

n.1,

* Mr. Kline has been substituted for his predecessor, Gerald

P. Carmen, who was the General Services Administration

defendant in the District Court.

°“Tntersession” adjournments separate the first and second

sessions of each Congress, in contrast to “intrasession” ad-

journments (those within a session) and “final” adjournments

(those at the end of a Congress).

4a

prevent the return of disapproved legislation. Barnes

vy. Carmen, 582 F. Supp. 163 (D.D.C. 1984). Our

judgment was announced by order entered August

29, 1984, reversing the District Court’s decision and

remanding the case with instructions to enter sum-

mary declaratory judgment for appellants. The same

order noted that this opinion would follow.

I

On September 30, 1983, the House of Representa-

tives passed H.R. 4042, 98th Cong., 1st Sess. (1983).

129 Cong. Rec. H7777 (daily ed. Sept. 30, 1983).

The purpose of the bill was to renew, for the fiscal

year ending September 30, 1984, the human rights

certification requirements of the International Se-

curity and Development Co-operation Act of 1981

(“ISDCA”), Pub. L. No. 97-113, § 728, 95 Stat.

1519, 1555-57 (1981), reprinted as amended in 22

U.S.C. § 2370 note, at 460-61 (1982) (Restrictions

on Military Assistance and Sales to El Salvador)."

On November 17th, the Senate passed the bill with-

out amendment. 129 Cong. Rec. 816,468 (daily ed.

Nov. 17, 1983). The following day, the Speaker of

House and the President Pro Tempore of the Senate

signed the bill, see 1 U.S.C. § 106 (1982), and the

® Those requirements made semi-annual certification by the

President that El Salvador is progressing in protecting human

rights a pre-condition to continued military aid to the govern-

ment of that country. ISDCA §728(b)-(e). H.R. 4042

sought to extend those requirements through fiscal year 1984

or until Congress enacted new legislation governing the sub-

ject. H.R. 4042, 98th Cong., Ist Sess., 129 Conc. Rec. H7777

(daily ed. Sept. 30, 1983). Under the bill, the President was

required to make certification on January 16, 1984, and again

180 days thereafter. See Joint Brief for the Plaintiff-

Appellants and Senate Intervenor-Appellant at 5 n.2.

5a

House Committee on Administration presented it to

the President for his consideration. 129 Cong. Rec.

H10,663 (daily ed. Dec, 14, 1983).

On the same day, November 18th, the Ninety-

eighth Congress adjourned its first session sine die,"

and agreed by joint resolution to convene for its sec-

ond session on January 23, 1984." By standing rule

of the House of Representatives, the Clerk of the

House is authorized to receive messages from the

President whenever the House is not in session. See

Rules of the House of Representatives, Rule III, cel.

5, reprinted in H.R. Doe. No. 271, 97th Cong., 2d

Sess. 318 (1983); 129 Cong. Rec. H22 (daily ed.

Jan. 3, 1983). Prior to adjourning, the Senate con-

ferred similar, temporary authority on the Secretary

of the Senate. 129 Cong. Rec. $17,192-93 (daily ed.

Nov. 18, 1983).

The President took H.R. 4042 under consideration,

but neither signed the bill into law nor returned it

to the House of Representatives with a veto inessage.

Instead, on November 30th, he issued a statement

announcing that he was withholding his approval of

the bill. 19 Weekly Comp. Pres. Doc. 1627 (Nov. 30,

* 129 Cona. Rec. H10,469, $16,779 (daily ed. Nov. 18, 1983).

Although the duration of a sine die adjournment is by defi-

nition unspecified, Congress in this instance followed its usual

end-of-session practice of vesting joint authority in the

Speaker of the House and the Majority Leader of the Senate

to reassemble the Congress ‘whenever, in their opinion, the

public interest shall warrant it.” H. Con. Res. 221, § 2, 98th

Cong., 1st Sess., 129 Conc. Rec. H10,105 (daily ed. Nov. 16,

1983) ; id. at $16,858 (daily ed. Nov. 18, 1983).

*H.J. Res. 421, 98th Cong., 1st Sess., 129 Conc. REc.

H10,105 (daily ed. Nov. 16, 1983) ; id. at $16,858 (daily ed.

Nov. 18, 1983). The Ninety-eighth Congress convened its

second session as scheduled on January 23, 1984.

6a

1983). Taking the position that the President’s ac-

tion constituted a valid exercise of the pocket veto

power, appellees failed to deliver and publish H.R.

4042 as a public law of the United States.

Five weeks later on January 4th, appellants filed

suit in the District Court to overturn the President’s

attempted pocket veto as constitutionally invalid and

to compel the delivery and publication of H.R. 4042

as law. After the District Court advanced and con-

solidated the trial on the merits with appellants’ ap-

plication for preliminary relief, the Senate and the

Speaker and bipartisan leadership of the House joined

the action as intervenors likewise opposed to the

President’s action. See supra note 3.

In the District Court, appellants contend: (1) that

adherence to constitutional purpose requires limiting

the opportunity for a pocket veto to final adjourn-

ments between Congresses or to adjournments during

which the houses of Congress have prevented return

by failing to appoint agents to receive presidential

messages during their absence; (2) that conse-

quently President Reagan’s failure to return H.R.

4042 to the House of Representatives within ten days

of its presentment to him had resulted in the bill’s

becoming law under the Constitution; and (3) that

appellees therefore are under an obligation to deliver

and publish the bill as law pursuant to 1 U.S.C.

§§ 106a, 112 (1982). In support of their position,

appellants cited Wright v. United States, 302 U.S.

583 (1938), in which the Supreme Court held that

no opportunity for a pocket veto arises when, on the

tenth day after presentment, the originating house

is in an intrasession adjournment of three days or

fewer, and Kennedy v. Sampson, 511 F.2d 430 (D.C.

Cir, 1974), in which this circuit held Wright to

Ta

apply to all intrasession adjournments by one or both

houses of Congress, as long as a congressionally au-

thorized agent remains to receive veto messages from

the President. The Legislative Branch argued that,

because intersession and intrasession adjournments

are indistinguishable under modern congressional

practice, Wright should be further extended to inter-

session adjournments.

Appellees responded that the appvintment of con-

gressional agents to receive presidential messages

while Congress is in adjournment has no constitu-

tional significance, and that in any case the Supreme

Court’s ruling in the Pocket Veto Case, 279 U.S. 655

(1929), which upheld a pocket veto during an inter-

session adjournment of the Sixty-ninth Congress,

squarely governs this case. Moreover, while agree-

ing with appellants that no practical difference exists

today between intersession and intrasession adjourn-

ments, appellees argued that there is a constitution-

ally significant distinction between adjournments for

three days or less and those for a longer period, as

evidenced by Article I, section 5, clause 4, under

which neither house may adjourn for more than

three days without the consent of the other. Any

adjournment of over three days would, according to

appellees, create an opportunity for a valid pocket

veto.” Appellees contend that either construction of

the congressional adjournment involved here—as an

intersession adjournment or as one for more than

three days—supports a finding that the President

validly exercised his pocket veto power in this in-

stance,

* Appellants accordingly take the position that the merits

aspect of Kennedy v. Sampson was incorrectly decided. See

Brief for the Appellees at 57-63.

8a

Accepting the first of the two alternative argu-

ments raised by appellees, the District Court found

the Pocket Veto decision “the only case directly in

point” and concluded that “Tujniess and until the

Supreme Court reconsiders the rule of that case,”

intersession adjournments would be deemed inher-

ently to prevent the return of disapproved legislation

to Congress. 582 F. Supp. at 168. Summary judg-

ment was accordingly entered for appellees, where-

upon the Legislative Branch filed its present appeal

to this court.”

II

Before examining the merits of this dispute, we

address the question of whether appellants have

standing to come before a federal court for resolution

of the claims they press in the present litigation. In

Kennedy v. Sampson, this court held that a single

United States Senator had standing to challenge an

unconstitutional pocket veto on the ground that it

had nullified his original vote in favor of the legisla-

tion in question."' At the same time, the court stated

1© Since the appeal was filed, Congress passed, and the

President signed, a supplemental appropriations bill, Pub.

L. No. 78-332, which approved disbursement of certain funds

for military assistance to E] Salvador upon the President’s

meeting certification requirements that differ somewhat from

those imposed by H.R. 4042. See Supplemental Bric for the

Plaintiff-Appellants and Senate Intervenor-Appellant. Be-

cause the new law supersedes H.R. 4042 only with respect to

the particular funds apprcpriated thereunder, and because

Congress may make further appropriations to which the cer-

tification requirements of H.R. 4042 inight apply if that bill

became law, a live controversy remains for us to resolve.

11511 F.2d at 433-36. The Senator himself characterized

the injury as a deprivation of his constitutional prerogative of

voting to override the President’s veto. Jd. at 434 n.13. The

9a

that either house of Congress clearly would have had

standing to challenge the injury to its participation

in the lawmaking process, since it is the Senate and

the House of Representat'ves that pass legislation

under Article I, and improper exercise of the pocket

veto power infringes that right more directly than it

does the right of individual members to vote on pro-

posed legislation. 511 F.2d at 434-36 & nn. 13 & 17.

In the present action, the thirty-three individual

Representatives allege an injury identical to that of

the individual lawmaker in Kennedy v. Sampson.

The House Bipartisan Leadership Group and the

United States Senate assert an injury of the second,

more direct type described in that opinion, that is,

an injury to the lawmaking powers of the two houses

of Congress. Under the law of this circuit," there-

fore all the appellants are properly before this court.

court noted that, strictly speaking, the opportunity to override

never arose becauve the President had not attempted a return

veto. Jd. Under either characterization, however, the result

of the President's inaction was a diminution of the Senator’s

power to participate in the enactment of legislation through

voting on proposed or returned bills. See id. at 435-36.

** The Senate has intervened in this action to protect “a

direct constitutional interest in the efficacy of its legislative

action,” see Motion of the United States Senate to Intervene

at 2, Barnes v. Carmen, 582 F. Supp. 163 (D.D.C. 1984),

while the Speaker and bipartisan leadership of the House

have intervened “to fulfill thei: time-honored duty of asserting

the rights and privileges of the House of Representatives,”

see Motion of the Hon. Thomas P. O’Neill, Jr., et al., to Inter-

vene at 4, Barnes v. Carmen.

8 See also Moore v. United States House of Representatives,

733 F.2d 946, 950-54 (D.C. Cir. 1984), cert. denied, 53 U.S.L.W.

3483 (U.S. Jan. 8, 1985) (No. 84-389) (holding that individual

members of House of Representatives have standing to sue

10a

In a wide-ranging dissent from this panel’s deci-

sion on standing, Judge Bork propounds the view

that neither individual congressmen nor the houses

of Congress may challenge in federal court the Presi-

dent’s invocation of the pocket veto power. More

broadly, the dissent reads Article III to bar any gov-

ernmental official or body from pursuing in federal

court any claim, the gravamen of which is that an-

other governmental official or body has unlawfully

infringed the official powers or prerogatives of the

first. The dissent contends that previous decisions of

this court permitting congressional standing do not

bind this panel because they are the result of the

court’s failure to give proper regard to the under-

pinnings of Article III’s standing requirement,

namely, the separation of powers. While we are

largely content to let this court’s opinions speak for

themselves, we wish to make clear the error in the

dissent’s understanding of Article III and the doc-

trine of separation of powers.

It is beyond contention that Article III’s stand-

ing requirement is intended to “limit the federal

judicial power ‘to those disputes which confine fed-

eral courts to a role consistent with a system of

separated powers and which are traditionally thought

to be capable of resolution through the judicial proc-

ess.” Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc.,

454 U.S. 464, 472 (7982) (quoting Flast v. Cohen,

392 U.S. 83, 97 (1968)); accord Allen v. Wright,

104 S. Ct. 3315, 3324-25 (1984); Warth v. Seldin,

422 U.S. 490, 498 (1975). It is also indisputable

for declaration that a tax law was unconstitutional because

it originated in the Senate rather than the House).

lla

that in matters involving another branch of the gov-

ernment, the courts must be especially wary of over-

stepping their proper role, for “repeated and essen-

tially head-on confrontations between the life-tenured

branch and the representative branches of govern-

ment will not, in the long run, be beneficial to either.”

United States v. Richardson, 418 U.S. 166, 188

(1974) (Powell, J., conew ring); accorc: Valley

Forge, 454 U.S. at 473-74; £ shlesinger v. Reservists

Committee to Stop the War, 418 U.S. 208, 222

(1974).

Nonetheless, when a proper dispute arises concern-

ing the respective constitutional functions of the var-

ious branches of the government, “[i]t is empha-

tically the province and duty of the judicial depart-

ment to say what the law is.” Marbury v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803). Courts may not

avoid resolving genuine cases or controversies—those

“of a type which are traditionally justiciable’—simply

because one or both parties are coordinate branches.

United States v. ICC, 337 U.S. 426, 430 (1949). As

Justice Rehnquist has stated:

Proper regard for the complex nature of our

constivutiona) structure requires neither that the

Judicial Branch shrink from a confrontation

with the other two coequal branches of the Fed-

eral Government, nor that it hospitably accept

for adjudication claims of constitutional viola-

tion by other branches of government where the

claimant has not suffered cognizable injury.

Valley Forge, 454 U.S. at 474. Thus, Supreme Court

precedent contradicts the dissent’s sweeping view

that Article III bars any governmental plaintiff from

12a

litigating a claim of infringement of lawful function.

See Immigration & Naturalization Service v. Chadha,

103 S. Ct. 2764, 2778, 2780 (1983) (Congress’s inter-

vention in litigation over the constitutionality of the

one-house veto established requisite concrete adverse-

ness); Nixon v. Administrator of General Services,

433 U.S. 425, 489 (1977) (indicating that incum-

bent President would “be heard to assert” claim that

Presidential Recordings and Materials Preservation

Act unconstitutionally impinged upon the autonomy

of the Executive Branch) ; National League of Cities

v. Usery, 426 U.S. 833, 837 & n.7 (1976) (cities and

states had standing to sue federal government over

alleged infringement of “ ‘a constitutional prohibi-

tion’ running in favor of the States as States’’), over-

ruled on other grounds, Garcia v. San Antonio Metro-

politan Transit Authority, 53 U.S.L.W. 4135 (U.S.

Feb. 19, 1985) (Nos. 82-1913 & 82-1951); United

States ex rel. Chapman v. FPC, 345 U.S. 153, 154-

56 (1953) (Secretary of Interior had standing to

press a claim against the Federal Power Commission

for alleged infringement of the Secretary’s role) ;

Coleman v. Miller, 307 U.S. 483 (1939), discussed

infra pp. 14-15; see also Goldwater v. Carter, 444

U.S. 996 (1979) (suit by congressional plaintiffs

claiming an injury to their constitutionally mandated

powers was dismissed on ripeness and political ques-

tion grounds, but not on standing grounds, despite

lower court opinions addressing standing issue) .™*

14 Massachusetts v. Mellon, 262 U.S. 447 (1923), heavily

relied upon by the dissent, is in no respect to the contrary.

That case involved a Tenth Amendment challenge by Massa-

chusetts to a federal statute that established certain standards

for reducing maternal and infant mortality and provided for

l3a

In congressional lawsuits against the Executive

Branch, a concern for the separation of powers has

led this court consistently to dismiss actions by in-

grants of funds to states complying with the standards. The

Court stated :

[T]he complaint of the plaintiff State is brought to the

naked contention that Congress has usurped the reserved

powers of the several States by the mere enactment of the

statute, though nothing has been done and nothing is to

be done without their consent; and it is plain that that

question, as it is thus presented, is political and not ju-

dicial in character... .

Id. at 483 (emphasis added). The Court was moved to dismiss

the suit, not because it was brought by a state, but because

no invasion of any state’s power had occurred. The Court dis-

tinguished the case from, among other cases, Missouri v.

Holland, 252 U.S. 416 (1920), a suit brought by a state in

which “there was an invasion, by acts done and threatened,

of the quasi-sovereign right of the State to regulate the taking

of wild game within its borders.” 262 U.S. at 482. The Court

concluded: “No rights of the State falling within the scope of

the judicial power have been brought within the actual or

threatened operation of the statute and this Court is. . . with-

out authority to pass abstract opinions upon the constitution-

ality of acts of Congress.” Jd. at 485 (emphasis added).

Clearly, then, Massachusetts v. Mellon did not establish that

governmental officials and entities necessarily and always lack

standing to raise claims of infringement of lawful functions.

Rather, the case explicitly leaves open the possibility of suit

by a state when “rights of the State falling within the scope

of the judicial power” are at stake, a possibility later to be-

come an actuality in, e.g., National League of Cities, supra.

Similarly misplaced is the dissent’s reliance on Allen v.

Wright, supra. In Allen, the Court held that parents of black

school children lacked standing to bring a suit against the

I.R.S. alleging that I.R.S. regulations governing the tax-

exempt status of racially discriminatory private schools inter-

fered with the ability of the plaintiffs’ children to obtain an

education in desegregated schools. The Court reiterated the

l4a

dividual congressmen whose real grievance consists of

their having failed to persuade their fellow legisla-

tors of their point of view, and who seek the court’s

aid in overturning the results of the legislative proc-

ess. See, e.g., Moore v. United States House of Rep-

resentatives, 733 F.2d 946, 956 (D.C. Cir. 1984), cert.

denied, 53 U.S.L.W. 3483 (U.S. Jan. 8, 1985) (No.

84-389) ; Riegle v. Federal Open Market Committee,

656 F.2d 873, 881 (D.C. Cir.), cert. denied, 454 U.S.

1082 (1981); Harringion v. Bush, 553 F.2d 190, 214

(D.C. Cir. 1977). Similarly, in Goldwater v. Carter,

444 U.S. 996 (1979), Justice Powell, concurring in

the judgment, would have dismissed as unripe a claim

by several members of Congress that the President’s

action in terminating a treaty infringed their con-

stitutional role: “Congress has taken no official ac-

tion. In the present posture of this case, we do not

know whether there ever will be an actual con-

troversy between the Legislative and Executive

Branches.” Id. at 998. As Justice Powell also stated,

however, a dispute between Congress and the Presi-

dent is ready for judicial review when “each branch

has taken action asserting its constitutional author-

ity’—when, in short, “the political branches reach a

constitutional impasse.” Jd. at 997.

There could be no clearer instance of “a constitu-

tional impasse” between the Executive and the Legis-

lative Branches than is presented by this case. Con-

traditional standing criteria—concrete injury directly trace-

able to defendant’s conduct and remediable by a favorable

decision—and, echoing Valley Forge and Warth v. Seldin,

supra, emphasized that those criteria are grounded in, and

are to be applied with reference to, the principle of separation

of powers. 104 S. Ct. at 3325. The case has nothing to do

with “governmental standing,” nor does the Court mention

the subject.

l5a

gress has passed an Act; the President has failed to

sign it, and has declared it not to be a law; Congress

has challenged the validity of that declaration. The

court is not being asked to provide relief to legislators

who failed to gain their ends in the legislative arena.

Rather, the legislators’ dispute is solely with the

executive branch. And it cannot be said that Con-

gress is asking for an advisory judicial opinion on a

hypothetical question of constitutional law; Congress

is seeking a declaration, not about the legal possi-

bility of pocket vetoes during intersession adjourn-

ments, but about the validity of a particular pur-

ported veto. Congress has raised a claim that is

founded on a specific and concrete harm to its powers

under Article I, section 7—a “[d]eprivation of a con-

stitutionally mandated process of enacting law” that

has actually occurred. Moore, 733 F.2d at 951; see

United Presbyterian Church v. Reagan, 738 F.2d

1375, 1381-82 (D.C. Cir. 1984); Dennis v. Luis, 741

F.2d 628, 630-31 (3d Cir. 1984). That such injury is

judicially cognizable has been clear since the Supreme

Court held in Coleman v. Miller, 307 U.S. 433

(1939), that state legislators had standing to litigate

the question of whether the legislature had ratified

a constitutional amendment, within the meaning of

Article V: “We think that these senators have a

plain, direct and adequate interest in maintaining

the effectiveness of their votes. . . . They have set

up and claimed a right and privilege under the

Constitution of the United States to have their votes

given effect ....”"* As the Executive Branch itself

8 Id. at 438-42. That Coleman cannot fairly be distinguished

on the ground that it concerned state, rather than federal,

legislators’ standing is clear from the Court’s emphasis of “the

legitimate interest of public officials and administrative com-

léa

missions, federal and state, to resist the endeavor to prevent

the enforcement of statutes in relation to which they have

official duties.” Jd. at 442.

Nor are we persuaded by the dissent’s argument that Cole-

man’s finding of cognizable injury was premised on a grant

of standing by the state supreme court below and thus is

inapposite to cases originating in federal court. A pair of

earlier Supreme Court cases, cited in Coleman, is instructive

in this respect. In Fairchild v. Hughes, 258 U.S. 126 (1922),

a citizen of New York brought suit in the Supreme Court of

the District of Columbia to challenge the effectiveness of the

ratification of the Nineteenth (women’s suffrage) Amendment.

The court found the plaintiff to assert no judicially cognizable

injury, and dismissed the suit. The same day, in Leser v.

Garnett, 258 U.S. 130 (1922), the Court reached the merits of

a similar challenge initiated in state court by a Maryland

citizen. The fact that one case was brought in federal court

while the other originated in state court, however, does not

account for the differing results. The Fairchild Court stated

the basis for its jurisdictional holding as follows:

[Plaintiff is not an election officer; and the State of New

York, of which he is a citizen, had previously amended

its own constitution so as to grant the suffrage to women

and had ratified this Amendment. Plaintiff has only the

right, possessed by every citizen, to require that the Gov-

ernment be administered according to law and that the

public moneys be not wasted. Obviously this general right

does not entitle a private citizen to institute in the federal

courts a suit to secure by indirection a determination

whether a statute if passed, or a constitutional amend-

ment about to be adopted, will be valid.

258 U.S. at 129-30 (citations omitted). By contrast, in Leser,

the Court pointed out that “the constitution of Maryland

limits the suffrage to men,” 258 U.S. at 135, and the “Legisla-

ture of Maryland had ~efused to ratify’ the Nineteenth

Amendment. /d. at 136. The plaintiff in Leser thus could cor-

rectly claim that his vote would be diluted by adoption of the

Nineteenth Amendment, whereas in Fairchild, that same claim

[sic] clearly false. That difference, we think, provides a more

plausible basis for distinguishing the two cases than does the

ee

RA N=, EE AB

17a

concedes, Congress clearly has standing to litigate the

specific constitutional question presented."

The dissent believes, however, that the separation

of powers would be better served in this case by re-

mitting the question involved to a political solution,

rather than a judicial one. The dissent understand-

ably leaves unspecified the precise course of events

contemplated: a “political solution” would at best

entail repeated, time-consuming attempts to reintro-

difference between the respective courts in which the suits

originated.

Similarly, we believe, the Coleman Court thought Leser

a “controlling authority,” 307 U.S. at 441, not because both

cases had come up from state courts, but rather because the

plaintiffs in both asserted injury to their legal interest in an

effective franchise. The majority stated: “The interest of the

plaintiffs in Leser v. Garnett as merely qualified voters at

general elections is certainly much less impressive than the

interest of the twenty senators in the instant case.” 307 U.S.

at 441. And Justice Frankfurter, writing separately, charac-

terized the majority opinion thus: “The right of the Kansas

senators to be here is rested on recognition by Leser v. Gar-

nett, 258 U.S. 130, of a voter’s right to protect his franchise.”

307 U.S. at 469. See also Dyer v. Blair, 390 F. Supp. 1291,

1397 n.12 (N.D. Ill. 1975) (three-judge court, per Stevens,

J.) (reading Coleman as direct support for granting legis-

lators standing to pursue in federal court claims of infringe-

ment of official role).

The concession was in terms based on the participation in

this case by a single house of Congress, namely the Senate.

See Tape Recording of Oral Argument at 204-11. Similarly,

in Kennedy v. Sampson, 511 F.2d at 434, the Executive Branch

noted that either or both houses would have standing to chal-

lenge a purported pocket veto. While, as the dissent correctly

observes, parties may not create jurisdiction by mere stipula-

tion, an interpretation of Article III’s “case or controversy”

requirement by a coordinate branch of the federal govern-

ment must not be wholly disregarded.

18a

duce and repass legislation, and at worst involve re-

taliation by Congress in the form of refusal to ap-

prove presidential nominations, budget proposals, and -

the like. That sort of political cure seems to us con-

siderably worse than the disease, entailing, as it

would, far graver consequences for our constitutional

system than does a properly limited judicial power

to decide what the Constitution means in a given

case. To quote again from Justice Powell’s opinion

in Goldwater:

Interpretation of the Constitution does not imply

lack of respect for a coordinate branch. Powell

v. McCormack, [395 U.S. 486, 548 (1969)]....

The specter of the Federal Government brought

to a halt because of the mutual intransigence of

the President and the Congress would require

this Court to provide a resolution pursuant to

our duty “‘to say what the law is.’” United

States v. Nixon, 418 U.S. 683, 703 (1974), quot-

ing Marbury v. Madison, 1 Cranch 137, 177

(1803).

Goldwater, 444 U.S. at 1001 (Powell, J., concurring

in the judgment). By defining the respective roles

of the two branches in the enactment process, this

court will help to preserve, not defeat, the separation

of powers. We turn, therefore, to the merits of this

dispute.

III.

The respective roles of Congress and the President

in the enactment of legislation are set forth in Ar-

ticle I, section 7, clause 2 of the Constitution, the

first of the presentment clauses, which provides as

follows:

19a

Every Bill which shall have passed the House

of Representatives and the Senate, shall, before

it become a Law, be presented to the President

of the United States; If he approve he shall sign

it, but if not he shall return it, with his Objec-

tions to that House in which it shall have origi-

nated, who shall enter the Objections at large on

their Journal, and proceed to reconsider it. If

after such Reconsideration two thirds of that

House shall agree to pass the Bill, it shal be

sent, together with the Objections, to the other

House, by which it shall likewise be reconsidered,

and if approved by two thirds of that House, it

shall become a Law. .. .If any Bill shall not be

returned by the President within ten Days (Sun-

days excepted) after it shall have been presented

to him, the Same shall be a law, in like Manner

as if he had signed it, unless the Congress by

their Adjournment prevent its Return, in which

Case it shal] not be a law.

Thus, once a bill has been passed by both houses of

Congress and presented to the President, he has ten

days (not including Sundays) in which he may either

sign the bill into law or return it to the originating

house with his objections noted. If at the end of the

time allotted he has done neither, the bill automati-

cally becomes law as long as Congress has not by its

adjournment prevented the President from return-

ing the bill. If Congress’s adjournment has prevented

return, however, the bill automatically expires, in

what has come to be known as a “pocket veto.”

The question we confront is whether H.R. 4042

became law when the President failed to return it

to the House of Representatives (where it origi-

nated) within the allotted time, or whether the bill

20a

expired because return was prevented by Congress’s

having adjourned its first session sine die on the day

of presentment of the bill. We believe this question

has a clear answer. Given that beth the House of

Representatives and the Senate had expressly ar-

ranged before adjourning for an agent specifically

authorized to receive veto messages from the Presi-

dent during the adjournment, it is difficult to under-

stand how Congress could be said to have prevented

return of H.R. 4042 simply by adjourning. Rather,

by appointing agents for receipt of veto messages,

Congress affirmatively facilitated return of the bill

in the eventuality that the President would disap-

prove it.

The District Court held, however, that Congress’s

adjournment must be deemed to have “‘prevented”’ re-

turn of H.R. 4042 to the House, notwithstanding the

existence of an agent authorized to receive the pres-

ident’s veto, and that H.R. 4042 thus expired through

a pocket veto. The court rested the decision on its

reading of the two Supreme Court opinions and the

one opinion by this court that have construed the

pocket veto clause. We believe that the District

Court has misapplied these precedents and that its

decision consequently frustrates the recognized pur-

pose behind the pocket veto clause.

An examination of the Framers’ intent with re-

spect to the pocket veto clause is a neutral place to

begin our analysis. Nowhere in the records of the

Federal Convention of 1787, however, is there any

reference to the concept of a pocket veto, or for that

matter, to any of the specifics of the enactment proc-

ess. Rather, the delegates were concerned with the

broad issues of whether the President ought to have

the power to veto legislation and, if so, whether

2la

Congress should be able to override a presidential

veto." On these issues, however, the records speak

plainly and decisively. The delegates were firmly

convinced that the President must have some power

to revise legislative acts. But an absolute veto, they

equally strongly believed, was dangerous and unwar-

ranted. As James Madison put it: “To give such a

prerogative would certainly be obnoxious to the

temper of this country.” 1 M. Farrand, The Records

of the Federal Convention of 1787, at 100 (rev. ed.

1966)."* Thus, the delegates unanimously voted down

an absolute veto, id. at 103, and eventually approved

a resolution stating, “That the national Executive

'T See Immigration & Naturalization Serv. v. Chadha, 103

8. Ct. 2764, 2782 n.14 (1983) (citing historical sources). Also

debated were the fraction of Congress necessary to override

a veto and the question of whether the Judicial Branch ought

to have a voice in the veto process. /d.

* Other comments are also enlightening. Elbridge Gerry

saw “no necessity for so great a control over the legislature

as the best men in the Community would be comprised in the

two branches of it.” 1 M. FARRAND, supra, at 98. Similarly,

Roger Sherman objected to “enabling any one man to stop

the will of the whole” on the grounds that “[n]o one man

could be found so far above all the rest in wisdom... . [W]e

ought to avail ourselves of his wisdom in revising the laws, but

not permit him to overrule the decided and cool opinions of

the Legislature.” Jd. at 99. Benjamin Franklin, drawing on

his experience with the government of Pennsylvania, voiced

the specific fear that an absolute veto power would lead to a

situation in which “[n]o good law whatever could be passed

without a private bargain with [the Executive].” Jd. at 99.

Only two members—James Wilson and Alexander Hamilton—

spoke in favor of an absolute negative. /d. at 98-100. Later,

Hamilton himself eloquently defended the qualified veto as

against the “more harsh” absolute veto power. See THE FEb-

ERALIST No. 73 (A. Hamilton).

22a

shall have a Right to negative any legislative Act,

which shall not be afterwards passed, unless vy two

third Parts of each Branch of the national Legisla-

tive.” 2 id. at 132.

The precise means of providing for a qualified

presidential veto were devised by the Committee of

Detail in what, with minor modifications,” would ulti-

mately constitute Article I, section 7, clauses 2 and

3 of the Constitution. The Committee’s product re-

flects the recognition that to safeguard the qualified

veto requires more than simply a set of rules direct-

ing Congress to present bills to the President and

directing the President to approve or return such

bills. For in the absence of any sanctions for viola-

tion of such rules, the President might simply decline

to act upon a duly presented bill in order to block

congressional reconsideration and thereby aci:ieve

through inaction what the Framers refused to per-

mit him, namely, an absolute veto. The veto pro-

vision therefore mandates that a bill becomes law

at the end of a ten-day period if not returned. With-

out more, however, Congress, which controls its own

calendar,” could in turn vitiate the President’s quali-

fied veto by cutting stort or entirely eliminating,

through adjournment, the period of time allotted the

President tc return a bill with his objections. It is

19 The only significant .:nodification undergone by the Com-

mittee’s draft after being reported back to the convention was

in the time allotted to the President to consider bills, which

was increased from seven to ten days.

2° The only exception to Congress’s control over its own

adjournments is in ease of a disagreement between the two

houses “with Respect to the Time of Adjournment,” in which

case the President “may adjourn them to such Time as he

shall think proper.” U.S. Const. art. II, § 3.

23a

that evil which the pocket veto clause forestalls by

withholding the status of law from a bill whose re-

turn Congress prevented.** The pocket veto clause

thus is intended, not as an affirmative grant of power

to the Executive, but rather as a limitation on the

prerogative of Congress to reconsider a bill upon

presidential disapproval, a limitation triggered when

Congress “by their Adjournment prevent [the bill’s]

Return.”

The manifest purpose of the pocket veto clause has

guided application of the clause by the Supreme

Court, as well as this cireuit.*? In The Pocket Veto

*1 See Edwards v. United States, 286 U.S. 482, 486 (1932) ;

J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES § 891, at 652 (5th ed. 1905) (1st ed. Cam-

bridge 1833).

*2 The recognition of the purpose of the veto provision also

underlies the Supreme Court’s treatment of an issue related

to the pocket veto, namely, whether the President may sign

a bill into law during an adjournment of Congress. In La

Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899),

the Court held that an intrasession adjournment does not pre-

clude presidential approval of a bill. The Court reasoned:

{I]n order that his refusal or failure to act may not

defeat the will of the people, as expressed by Congress, if

a bill be net approved and be not returned to the House in

which it originated within that time, it becomes a law in

like manner as if it had been signed by him. We perceive

nothing in these constitutional provisions making the ap-

proval of a bill by the President a nullity if such approval

occurs while the two Houses of Congress are in recess

for a named time.

Id. at 454

Later, in Edwards v. United States, supra, the Court ex-

tended the reasoning and holding of La Abra to final adjourn-

ment of Congress. The Court stated:

( Continued]

24a

Case, 279 U.S. 655 (1929), the earliest judicial dis-

cussion of the pocket veto clause, the Supreme Court

confronted the issue of whether return of a bill to the

Senate, where it originated, had been prevented when

the Sixty-ninth Congress adjourned its first session

sine die fewer than ten days after presenting the bill

to the President. Justice Sanford’s opinion for the

Court began by declaring that the term “adjourn-

ment” is used in the Constitution to refer to any oc-

casion on which a house of Congress is not in session,

22 [Continued !

The last sentence of [Article 1, section 7, clause 2]

clearly indicates two definite and controlling purposes:

First. To insure promptness and to safeguard the oppor-

tunity of the Congress for reconsideration of bills which

the President disapproves; hence, the fixing of a time

limjt so that the status of measures shall net be held in-

definitely i: abeyaace through inaction on the part of the

President. Second. To safeguard the opportunity of the

President to consider all bills presented to him, so that it

may not be destroyed by the adjournment of the Congress

during the time allowed to the President for that purpose.

286 U.S. at 486. Emphasizing that “[r]egard must be had ‘o

the fundamental purpose of the constitutional provision to

provide appropriate opportunity for the President to consider

the bills presented to him,” id. at 493, the Court concluded:

No possible reason, either suggested by constitutional

theory or based upon supposed policy, appears for a con-

struction of the Constitution which would cut down the

opportunity of the President to examine and approve bills

merely because the Congress has adjourned. No public

interest would be conserved by the requirement of hurried

and inconsiderate examination of bills in the closing

hours of a session, with the result that bills may %e ap-

proved which on further consideration would be disap-

proved, or may fail although on such examination they

might be found to deserve approval.

Id. at 493-94.

25a

and dismissed the contention that the term refers

solely to final adjournments of a Congress:

We think that under the constitutional provi-

sion the determinative question in reference to

an “adjournment” is not whether it is a final

adjournment of Congress or an interim adjourn-

ment, such as an adjournment of the first ses-

sion, but whether it is one that “prevents” the

President from returning the bill to the House

in which it originated within the time allowed.”

An earlier case, the Court then noted, had held that

a house of Congress is only constituted when a

quorum of the membership is present. Because the

veto provision specifies that the President must re-

turn a disapproved bill to its originating house, and

because neither house was in session to receive de-

livery of the returned bill in that instance, the Court

reasoned, return must be deemed to have been pre-

vented.

Counsel for the House of Representatives had ar-

gued that, when the originating house is not in ses-

sion, return may be made consistently with the con-

stitutional provisions by delivering the bill, with the

President’s objections, to a proper agent of the house

of origin, for subsequent delivery to that house when

it reconvenes. Addressing itself to this argument,

the Court noted first “the fact that Congress has

never enacte. iny statute authorizing any officer or

agent of either House to receive for it bills returned

by the President during its adjournment, and that

there is no rule to that effect in either House.” Jd.

*° 279 U.S. at 680. The Court also rejected the argument

that “within ten days” refers to ten legislative days rather

than ten calendar days. Jd. at 679-80.

26a

at 684. Moreover, the Court stated, “delivery of the

bill to such officer or agent, even if authorized by

Congress itself, would not comply with the constitu-

tional mandate.” The Court explained its position

thus:

Marifestiy it was not intended that, instead of

returning the bill to the House itself, as required

by the constitutional provision, the President

should be authoriyed to deliver it, during an a4-

journment of the House, to some individual of-

ficer or agent not authorized to make any legisla-

tive record of its delivery, who should hold it in

his own hands for days, weeks or perhaps

montns,—not only leaving open possible ques-

tions as to the date on which it had been de-

livered to him, or whether it had in fact been

delivered to him at all, but keeping the bill in

the meantime in a state of suspended animation

until the House resumes its sittings, with no ver-

tain knowledge on the part of the public as to

whether it had or had not been seasonablv de-

livered, and necessarily causing delay in its re-

consideration which the Constitution evidently

intended to avoid.

Id. at 684. Two concerns thus led the Court to be-

lieve that return to an agent of the original house

would not adequately guarantee the President the

opportunity to exercise his qualified veto: (1) de-

livery to an agent unauthorized to make an official

record of delivery would engender uncertainty over

whether timely return had in fact been made and

thus whether the bill had or had 1 ot become law;

and (2) such a return would be followed by lengthy

delay before possible reconsideration by the originat-

ing house.

ee eee

ed

27a

That the Court was not categorically denying the

use of agents for delivery of veto messages was made

clear in the Court’s next, and last, encounter with

the pocket veto clause. In Wright v. United States,

302 U.S. 583 (1938), the Court was called upon to

determine the effectiveness of the President’s return

of a bill on the tenth day after presentment, during

a three-day adjournment by the originating house

only. ‘lhe Court, speaking through Chief Justice

Hughes, held that return to that house had not been

prevented and that, therefore, delivery of the veto

message to the Secretary of the Senate constituted

an effective return.

In the first place, the Court noted, the Senate alone

had adjourned, not “the Congress.” Under the pocket

veto clause, only an adjournment by “the Congress”

can prevent return of a bill. Jd. at 587. The Court

then dismissed the notion that a bill cannot be re

turned by the President to the originating house if

that house is in an intrasession adjournment. In this

instance, the Court stated, there clearly was no “prac-

tical difficulty” in making return during the adjourn-

ment: “The organization of the Senate continued

and was intact. The Secretary of the Senate was

functioning and was able to receive, and did receive,

the bill.” Jd. at 589-90. More importantly, the Court

held that “[i]n returning the bill to the Senate by

delivery to its Secretary during the recess there was

no violation of any express requirement of the Con-

stitution. The Const.. ution does not define what shall

constitute a return of a bill cr deny the use of ap-

propriate agencies in effecting the return.” Id. at

589 (emphasis added).

As the Wright Court explained, the Pocket Veto

Case was not to the contrary. Although the opinion

28a

in the earlier case had expressed the view that re-

turn can only be made to a house that is actually

assembled and not to an agent of the house, that view

did not control this case because it was grounded in

concerns that were wholly inapplicable to a brief,

intrasession adjournment by the originating house:

In such case there is no withholding of the bill

from appropriate legislative record for weeks or

perhaps months, no keeping of the bill in a state

of suspended animation with no certain knowl-

edge on the part of the public whether it was

seasonably delivered, no causing of any undue

delay in its reconsideration. When there is noth-

ing but such a temporary recess the organization

of the House and its appropriate officers con-

tinue to function without interruption, the bill

is properly safeguarded for a very limited time

and is promptly reported and may be reconsid-

ered immediately after the short recess is over.

The prospect that in such a case the public may

not be promptly and properly informed of the

return of the bill with the President’s objections,

or that the bill will not be properly safeguarded

or duly recorded upon the journal of the House,

or that it will not be subject to reasonably

prompt action by the House, is we think wholly

chimerical.

Id. at 595. Given “the manifest realities of the situa-

tion,” the Court held, return to an agent of the

originating house was wholly effective. Jd. More-

over, other adjournments might well not prevent re-

turn, although the Court declined to speculate as to

which would or would not:

[C]ases may arise in which .. . a long period of

adjournment may result. We have no such case

before us and we are not called upon to con-

jecture as to the nat re of the action which

might be taken by the Congress in such a case

or what would be its effect.

Id, at 598. Thus, the Court expressly left open the

possibility that its analysis would apply to render

return to an agent effective in adjournments other

than brief, one-house, intrasession adjournments. The

Court, however, did not leave future courts without

guidance in applying the veto provisions, for it made

clear that those provisions are to be interpreted in

the light of their “two fundamental purposes.” /d.

at 596. Although we have already set these forth

at length, the Wright Court’s formulation is impor-

tant. On the one hand, the Court stated, the veto

provisions are meant to ensure that “the President

shall have suitable opportunity to consider the bills

presented to him .... It is to safeguard the Presi-

dent’s opportunity that Paragraph 2 of § 7 of Article

I provides that bills which he does not approve shall

not become laws if the adjournment of the Congress

prevents their return.” /d. (citation omitted). At

the same time, the provisions ensure “that the Con-

gress shall have suitable opportunity to consider his

objections to bills and on such consideration to pass

them over his veto provided there are the requisite

votes.” /d. The Court plainly stated: “We should

not adopt a construction which would frustrate either

of these purposes.” Id. (emphasis added).

Wright thus has twofold significance. First, and

most important, its rule of construction requires a

court to find that the President was truly deprived

of his opportunity to exercise his qualified veto power

before it may hold that return was “prevented”; a

court that fails in this responsibility ends up sacrific-

30a

ing, without justification, Congress’s right to recon-

sider disapproved legislation. Second, Wright indis-

putably establishes that mere absence of the origi-

nating house does not prevent return if (1) there is

an authorized agent to accept delivery of a veto

message, and (2) such a procedure would not entail

the delay and uncertainty justly feared by the Court

in the Pocket Veto Case.

Ten years ago, in Kennedy v. Sampson, 511 F.2d

430 (D.C. Cir. 1974), this circuit applied the teach-

ing of Wright to hold that return is not prevented by

an intrasession adjournment of any length by one or

both houses of Congress, so long as the originating

house arranged for receipt of veto messages. Dis-

missing the argument distinguishing Wright on the

ground that only the originating house had adjourned

in that case, this court stated: “To hold that a re-

turn veto is possible while the originating House

alone is in brief recess but not when both Houses are

in recess would embrace ritual at the expense of

logic.” Id. at 440 (footnotes omitted). As did the

Court in Wright, this court demonstrated that the

concerns that had led the Court in the Pocket Veto

Case to disapprove return to a house not in session

were simply unjustified in the context of the particu-

lar type of adjournment at issue. This court stated:

“The modern practice of Congress with respect to

intrasession adjournments creates neither of the

hazards—long delay and public uncertainty—per-

ceived in the Pocket Veto Case.” Jd. This court noted

that, whereas at the time of the Pocket Veto Case

“intersession adjournments of five or six months were

still common,” id. at 441 (footnote omitted), in the

past decade Congress’s intrasession adjournment’s

have typically consisted of “several recesses of ap-

8la

proximately five days for various holidays and a

summer recess (or recesses) lasting about one

month.” Jd. (footnote omitted). Thus, this court

concluded, “intrasession adjournment of ongress

have virtually never occasioned interruptions of the

magnitude considered in the Pocket Veto Case.” Id.

(footnote omitted).

As to the concern for public uncertainty, this

court stated:

Modern methods of communication make it pos-

sible for the return of a disapproved bill to an

appropriate officer of the originating House to

be accomplished as a matter of publie record ac-

cessible to every citizen. The status of such a

bill would be clear; it has failed to receive presi-

dential approval but may yet become law if Con-

gress, upon resumption of its deliberations,

passes the bill again by a two-thirds majority.

This state of affairs generates no more public

uncertainty than does the return of a disap-

proved bill while Congress is in actual session.

Id. (footnote omitte’). Indeed, the Sampson court

observed, “[t]he only possible uncertainty about this

situation arises from the absence of a definitive rul-

ing as to whether an intrasession adjournment ‘pre-

vents’ the return of a vetoed bill. Hopefully, our

present opinion eliminates that ambiguity.” /d.

(footnote omitted).

In addressing ourselves to the issue in this appeal,

we are of course cognizant of the fact that the Pocket

Veto Case remains the only decision concerning the

opportunity vel non for a pocket veto during an

intersession adjournment. It was the District Court’s

belief that the Pocket Veto Case is therefore “the

82a

only case directly in point.” 582 F. Supp. at 168.

Emphasizing that Wright did not purport to approve

of delivery to agents during anything other than a

three-day adjournment and that even Sampson’s ex-

pansion of Wright did not reach beyond the line be-

tween intrasession and intersession adjournments, the

District Court concluded that “neither Wright nor

Kennedy v. Sampson give it license to depart from

... Pocket Veto.” Id. The court accordingly held, in

essence, that intersession adjotnments per se create

an opportunity for a valid pocket veto.

We appreciate the District Court’s desire to re-

main within the boundaries of precedent. We dis-

agree, however, with its assessment of where those

boundaries lie. Moreover, we believe that the Dis-

trict Court’s holding fails to serve the essential pur-

poses of the veto provisions.

The principle that we believe runs through Pocket

Veto and Wright is a simple one: whenever Con-

gress adjourns, return of a veto message to a duly

authorized officer of the originating house will be

effective only if, under the circumstances of that

type of adjournment, such a procedure would not

occasion undue delay or uncertainty over the re-

turned bill’s status. Thus, in Pocket Veto, the Court

disapproved delivery to a congressional officer during

intersession adjournments because of the length of

such adjournments—then five months cr longer—as

well as the uncertainty resulting from the lack of

any regularized procedure for recording returns. By

the same token, the brief duration of the one-house

adjournment in Wright as well as the continued

functioning of the entire congressional apparatus led

the Court to an opposite result in that case. Finally,

in Sampson, this court, following Wright’s lead, rea-

Sl

ee tay NR mE

83a

soned that the pocket veto clause did not apply to

any intrasession adjournments, because they did not

pose either of the problems cited in Pocket Veto to

any greater degree than did the three-day adjourn-

ment in Wright.

Nor, we are convinged, do intersession adjourn-

ments pose either of those problems, for as appellees

freely conceded before the District Court, such ad-

journments do not differ in any practical respect

from the intrasession adjournments at issue in

Wright and Kennedy v. Sampson. To be sure, an

intersession adjournment delays possible reconsid-

eration of a return bill. But the delay is not sub-

stantial. In stark contrast to the five or six month

intersession adjournments typical at the time of the

Pocket Veto Case, intersession adjournments of the

modern era have an average length of only four

weeks, and are thus often even shorter than intra-

session adjournments.” In this case, the adjournment

was for nine weeks, somewhat longer than the aver-

age but still considerably shorter than the half-year-

long adjournments common at the time of the Pocket

Veto Case.”

** 582 F. Supp. at 165-66.

* See Joint Brief for the Plaintiff-Appellants and Senate

Intervenor-Appellant, apps. I & II, at 63-70.

*6 The adjournment in Pocket Veto differs from that at issue

here, not only in its much greater duration, but also in that it

divided two very different sessions of Congress, a “iong”

session and a “lame-duck” session. Before passage of the

Twentieth Amendment in 1933, each Congress lasted from

March 4 of the odd-numbered year to March 3 of the next

odd-numbered year. The first session of each Congress began

on the first Monday in December, as provided in U.S. Consrt.,

art. I, § 4, cl. 2, avd usually lasted well into spring. The

84a

The opportunity for immediate reconsideration af-

ter the intersession adjournment is guaranteed by the

rules of each house of Congress, which mandate that

all business unfinished at the end of the first session

shall be resumed at the start of the second.” More-

second session commenced the following December, after the

November congressional elections, and had to adjourn by

March 3. With many of its members having given up or lost

their seats for the following term and with only a few months

in which to work, Congress during its second session was

unable to give serious consideration to many of the items

before it. Adjournment of the first session hence in fact often

precluded reconsideration.

27 Rule XVIII of the Standing Rules of the Senate, 8S. Doc.

No. 10, 98th Cong.. Ist Sess. 13 (1983), provides:

At the second or any subsequent session of a Congress the

legislative business of the Senate which remained unde-

termined at the close of the next preceding session of

that Congress shall be resumed and proceeded with in the

same manner as if no adjournment of the Senate had

taken place.

House Rule XXVI states: “All business before committees

of the House at the end of one session will be resumed at the

commencement of the next session of the same . ongress in the

same manner as if no adjournment had taken place.” Consti-

tution, Jeffersen’s Manual and Rules of the House of Repre-

sentatives, H. Doc. No. 271, 97th Cong., 2d Sess., § 901, at

610-11 (1983). Further, “[t]he business of conferences be-

tween the two Houses is not interrupted by adjournment

of a session which does not terminate the Congress, and even

where one House asks a conference at one session the other

may agree to it in the next session.” Jd. at 611 annotation

(citations omitted).

In light of the carryover rules, it would be difficult to justify

finding that return was prevented simply by delay alone. Be-

cause neither the Constitution nor the rules of either house

place any time limit on reconsideration of returned bills, re-

consideration of a bill returned during session could easily be

te

35a

over, because in this case, as is typical, the adjourn-

ment resolution provided that Congress could be re-

assembled at any time, and because the rules of the

two houses permit the convening of congressional

committees during adjournment,” reconsideration of

a bill returned during an intersession adjournment is

not necessarily delayed even the several weeks that

such an adjournment lasts.

Uncertainty no more characterizes return during

adjournment that does delay. As in the case of intra-

session adjournments, the organization of each house

of Congress remains unchanged, and their respective

staffs continue to function uninterrupted.” More im-

delayed longer than reconsideration of a bill returned during

adjournment.

** Congressional committees, “which, in the legislative

scheme of things, [are] for all practical purposes Congress

itself,” Doe v. McMillan, 412 U.S. 306, 344 (1973) (Rehn-

quist, J., concurring and dissenting), are authorized during

adjournments to continue to sit, to hold hearings, to conduct

investigations, and to compel testimony and the production of

documents. 8S. Doc. No. 10, supra note 27, at 33-24 (Rule

XXVI); H. Doc. No. 271, supra note 27, § 589, at 275.

*® Wright, 302 U.S. at 595. Congressional practice conforms

to the modern understanding under the Twentieth Amendment

that the houses of each Congress constitutionally exist from

January 3 of each odd-numbered year through Jauuary 3 of

the next odd-numbered year, re ardless whether the houses

are sitting or in adjournment. Thus, even when the houses

are not in session, they can exchange messages and have bills

enrolled, signed, and presented to the President. H. Doc. No.

271, supra note 27, § 560, at 263 annotation (messages) ; id.

§§ 574-577, at 268-70 (enrollment, signing, and presentation) ;

see, e.9., 129 Cong. Rec. $817,192 (daily ed. Nov. 18, 1983) ; 127

Cong. Rec. $15,682 (daily ed. Dec. 16, 1981) ; 125 Cong. Rec.

37,317, 37,475 (1979) ; 123 Cong. Rec. 38,948, 39,081 (1977) ;

121 Cong. Rec. 41,975, 42,276-77 (1975) ; 119 Cong. Rec. 43,327

(1973).

36a

portantly, neither house any longer lacks an au-

thorized procedure for acceptance of veto messages

during adjournment. The House of Representatives

provides by rule that return may be made to the

Clerk of the House; the Senate, by resolutiun, pro-

vides for acceptance of veto messages by the Senate

Secretary.” In both cases, the time of delivery is re-

corded on the journal of the respective house, and

the message is retained by the authorized officer for

presentation on the floor of the house immediately

upon the house’s reconvening. The return may thus

“be accomplished as a matter of public record ac-

cessible to every citizen.” Kennedy v. Sampson, 511

F.2d at 441. The status of a bill returned during

an intersession adjournment therefore “would be

clear; it has failed to receive presidential approval

but may yet become law if Congress, upon resump-

tion of its deliberations, passes the bill again by a

two-thirds majority. This state of affairs generates

no more public uncertainty than does the return of a

disapproved bill while Congress is in actual ses-

sion.” *

8° See supra p. 5.

81 Jd. The procedure for return during intersession adjourn-

ment is in every respect identical to the procedure used in

intrasession adjournments, the constitutional effectiveness of

which has been clear to both the Executive and the Legislative

Branches since Wright. President Reagan himself has fre-

quently delivered veto messages during an adjournment of

Congress, by using this procdure. See Joint Brief for the

Plaintiff-Appellant app. III, at 71-72.

No more uncertainty surrounds this procedure than accom-

panies the corresponding procedure by which the Executive

Clerk receives bills for the President and returns them to

Congress. See Eber Bros. Wine & Liquor Corp. v. United

States, 337 F.2d 624 (Ct. Cl. 1964) (delivery of bill to the

il”

ee ne

37a

That intersession adjournments no longer present

any real obstacle to the President’s exercise of his

qualified veto power was recognized by Presidents

Ford and Carter, both of whom assumed the effective-

ness of return vetoes made during such an adjourn-

ment.” To conclude otherwise is ‘“‘to ignore the plain-

Executive Clerk while the President is overseas constitutes

effective “presentment’’), cert. denied, 380 U.S. 950 (1965).

%2The Ford Administration made its position on inter-

session pocket vetoes clear in the aftermath of Kennedy v.

Jones, 412 F. Supp. 353 (D.D.C. 1976), a case arising shortly

after Sampson that involved a challenge by Senator Kennedy

to two pocket vetoes, one during the intersession adjournment

of the Ninety-third Congress and the other during a one-

month intrasession adjournment of that Congress. The Ex-_

ecutive Branch conceded to the entry of summary judgment in

Senator Kennedy’s favor. Attorney General Levi announced

the President’s decision that he would thereafter return dis-

approved bills during any intrasession and intersession ad-

journments of Congress, as long as appropriate arrangements

for receipt of veto messages were made. 122 CoNG. REc. 11,202

(1976). On December 31, 1975, and January 2, 1976, during .

Congress’s intersession adjournment, President Ford vetvued,

respectively, S. 2350 and H.R. 5900, which had been passed

during the first session of the Ninety-four Congress. House

Calendar, 94th Cong. 130-31 (final ed. 1977). The vetoed bills

were accepted by the appointed officers of the respective

houses and were noted in the respective journals. Senate

Journal, 94th Cong., Ist Sess. 1431 (1975); House Journal,

94th Cong., Ist Sess. 2246-47 (1975). Upon the convening of

the second session, the messages were laid before the houses.

122 Conc. REc. 2, 145 (1976). Both vetoes were sustained.

House Calendar, 94th Cong. 130-31 (final ed. 1977).

Like President Ford, President Carter also refrained from

using the pocket veto during intersession adjournments. He

returned S. 2096, 96th Congress, to the Senate, by delivery to

the Secretary of the Senate, after the Senate had adjourned

its first session sine die. 126 CONG. REC. 6-7 (1980).

88a

est practical considerations and by implying a require-

ment of an artificial formality to erect a barrier to

the exercise of a constitutional right.” Wright, 302

U.S. at 590. For the line that divides the first session

of a Congress from the second has ceased to have any

practical significance. Were it not for the Article I,

section !, clause 2 requirement that “[t]he Congress

shall assemble at least once in every Year,” that line,

it seems to us, would completely dissolve.*

We fully recognize that clear rules respecting the

pocket veto are vitally necessary in order that the

status of bills in presidential] disfavor be promptly

resolved. In seeking clarity, we must be careful not

to stray into arbitrariness by drawing an irrational

line between intrasession and intersession adjourn-

ments. For we must be guided by the evident pur-

%3 The District Court apparently believed that to take the

reality of intersession adjournments inte consideration in de-

termining whether they prevent return of disapproved bills

would run afoul of the Supreme Court’s recent statement that

the fact that a practice might be “efficient, convenient, and

useful in facilitating functions of government, standing alone,

will not save it if it is contrary to the Constitution.” Immi-

gration & Naturalization Serv. v. Chadha, 103 S. Ct. 2764,

2780-81 (1983). We do not agree with the District Court

that Chadha is apposite to the issue presented here. Chadha

involved a procedure that, although of long-standing use,

was nonetheless manifestly contrary to the dictates of the

Constitution. By contrast, the issue here is whether the con-

stitutional provision applies at all. No court can blind itself

to the facts of a situation in determining whether it falls

within the intended scope of a particular provision, as both

the Pocket Veto Case and Wright plainly demonstrate. See

also Edwards v. United States, 286 U.S. 482, 493 (1932)

(construing veto provisions to permit President to approve

bills after Congress has adjourned, on the ground that “[n]o

public interest would be conserved” by 2 contrary rule),

discussed supra, at note 22.

ROR a A nt ay se

39a

pose of the pocket veto clause, which is simply to en-

sure that the President not be deprived of an oppor-

tunity to disapprove legislation. Manifestly, the pres-

ident is no more deprived of that opportunity by a

modern intersession adjournment than he was by the

adjournments in Wright and Sampson. The line be-

tween intersession and intrasession adjournments, al-

though a bright one, in no way furthers the intent

behind the pocket veto clause, and it therefore fails

to comport with the authorities interpreting the

clause. Nothing is gained by drawing such a line.

And what is lost is substantial, for a rule based on

such a line deprives Congress of the final word on a

significant portion of its legislation and grants the

President an absolute veto, even though Congress has

shown no disrespect for the President’s role in the

enactment process.

Appellees contend, nonetheless, that failure to rec-

ognize the intersession-intrasession line constitutes a

departure from an historical understanding that the

pocket veto clause is to apply during intersession ad-

journments. Brief for the Appellees at 29-30. In

support of their argument they point to a change

made between two drafts of the clause in the Com-

mittee of Detail. The clause, as taken from the New

York Constitution, originally stated that an unre-

turned bill would become law, “unless the Legisla-

ture by their Adjournment prevent [the bill’s] Re-

turn; in which Case it shall be returned on the first

Day of the next Meeting of the Legislature.” 2 M.

Farrand, supra, p. 19, at 167. This language would

presumably have precluded the pocket veto entirely.

The concluding phrase of the clause was stricken,

however, and in its place were substituted the words

40a

“in which case it shall not,” that is, it shall not be-

come a law. Jd. The change, appellees contend, evi-

dences a conception on the part of the drafters that

intersession adjournments would prevent return.

We would not deny the plausibility of appellees’ ex-

planation of the deletion of one phrase and the sub-

stitution of another in the Committee of Detaii’s

early drafts of the veto provision. Indeed, that ex-

planation receives indirect support from evidence in-

dicating that the Framers envisioned that Congress

would convene its annual session, complete its busi-

ness within several months, and adjourn for the re-

maining three-fourths of the year.* As was the rule

in the English Parliament of the era, business un-

finished in the first session of a Congress was likely

thought not to carry over to the second session.”

With such a calendar in mind, members of the Com-

mittee of Detail may well have been of the view that

adjournment at the end of the first session would

prevent return of a bill.

But the adjournment practices of Congress as en-

visioned by members of the Committee bear no resem-

blance to the actual adjournment practices of the

modern-day Congress, and to accord determinative

weight to the Committee’s supposed views on whether

intersession adjournments prevented return would

therefore seriously disserve the larger purpose of the

pocket veto clause as understood by the Supreme

%4 See 2 M. FARRAND, supra p. 19, at 199-200 (debate over

whether Congress should sit during Winter or Spring) ; Ken-

nedy, Congress, the President and the Pocket Veto, 63 VA.

L. REv. 355, 362 (1977).

%5 See Note, The Presidential Veto Power: A Shallow

Pocket, 70 Micu. L. REv. 148, 165 (1971).

4la

Court.” Given that under the principles of Wright

and the Pocket Veto Case, intersession adjournments

no longer pose the least obstacle to the President’s

exercise of his qualified veto, it cannot be dispositive

that the Committee of Detail may have believed they

would.

Appellees point out that the view that intersession

adjournments do create an opportunity for a pocket

veto has been accepted through most of the history

of the Republic by both the President and Congress.

Brief for the Appellees at 22-29. Beginning with

President Jefferson and continuing through Presi-

%6 As Senator Ervin remarked:

[A]t the time the Constitution was written and for many

years thereafter, it was the custom of the Congress to

meet only during the first few months of each year and

then to go home. The 10-day provision obviously was

written into the Constitution to cover the adjournments

at the end of a session, since Congress would be absent

from the Capitol for many months. Today, of course, we

have a different situation entirely. The Founding Fathers

... did not foresee that Congress would become a year-

round operation, often straining to finish its business

before the constitutional end of a Congress.

Constitutionality of the President’s “Pocket Veto” Power:

Hearing Before the Subcomm. on Separation of Powers of the

Comm. on the Judiciary, United States Senate, 92 Cong., 1st

Sess. 3 (1971) ; see Comment, The Veto Power and Kennedy

v. Sampson: Burning a Hole in the President’s Pocket, 69

Nw. U.L. REv. 587, 610 (1974) (“[I]mproved transporta-

tion and a more burdensome workload have drastically altered

the character of the congressional schedule. Journeys which

in past years lasted days are now measured in hours. The

modern Congress works almost year-round to complete a

staggering agenda. These factors have produced congres-

sional calendars marked by numerous short recesses rather

than a single lengthy one.’’).

42a

dent Nixon, twenty-five of the thirty Presidents who

have exercised the pocket veto power at all have done

so during intersession adjournments. In each of

these pocket vetoes—272 in all—Congress has ac-

quiesced. What is more, appellees argue, Congress in

1868 would have codified this practice of acquies-

cence into law with a bill to limit pocket vetoes to

intersession adjournments, were it not for successful

objections that so limiting intrasession pocket vetoes

would be unconstitutional.

Clearly, however, neither the past practice of the

Executive nor Congress’s acquiescence in that prac-

tice is conclusive in this case. See Immigration and

Naturalization Service v. Chadha, 103 S. Ct. 2764,

2780-81, 2784 (1983). Nor is that practice particu-

larly relevant here, given that it developed under ad-

journment conditions markedly different from those

prevailing today.

Appellees raise a final argument in support of the

result arrived at by the District Court. Conceding

the absence of any practical difference between intra-

session and intersession adjournments, they contend

that the truly correct “bright line” must be drawn at

the three-day mark. Thus, if the tenth day after pre-

sentment falls during an adjournment of over three

days, a bill that has not yet been returned expires by

pocket veto, regardless of the existence of procedures

that would ensure actual return to the originating

house. Appellees contend that this principle is, in

fact, revealed by reading Pocket Veto and Wright

together; the former case established the legal irrele-

vance of procedures that ensure return during the

absence of Congress; the latter, it is suggested de-

clared that the only adjournments that do not pre-

vent return are those of three days or fewer. Appel-

43a

lees also argue that the three-day rule correctly cap-

tures the intent of the Framers regarding operation

of the pocket veto clause. That clause, they assert,

must be read in conjunction with clause 4 of Article

I, section 5 of the Constitution, which provides, in

part, that “[n]either House, during the Session of

Congress, shall, without the Consent of the other,

adjourn for more than three days.” Appellees argue

that, because every adjournment of over three days

is, by the terms of that provision, necessarily either

a simultaneous adjournment of both houses or an

adjournment of one house pursuant to joint action

by both houses, every such adjournment is one by

“the Congress.”’ When, therefore, the Framers man-

dated that an unreturned bill expires if “the Con-

gress by their Adjournment prevent its Return,”

they must have been referring to all adjournments

of over three days.

As appellees readily admit, under their interpreta-

tion of the pocket veto clause, Kennedy v. Sampson,

which denied the use of the pocket veto in all intra-

session adjournments of any length, was wrongly

decided and should be overruled. Of course, as ap-

pellees must also be aware, this panel is not free to

reconsider a decision by another panel of this court.

Until it is overruled by the full court sitting ex

bane, Kennedy v. Sampson will remain the law of

this circuit. Brewster v. Commissioner of Internal

Revenue, 607 F.2d 1369, 1373 (D.C. Cir.), cert. de-

nied, 444 U.S. 991 (1979).

But even if Sampson had never been decided, we

would be compelled to reject appellees’ three-day rule,

for we cannot agree that any special connection ex-

ists between the pocket veto clause and the clause

governing adjournment by one house. Indeed, there

44a

is strong reason to believe that the Framers intended

no such connection whatsoever. The pocket veto

clause speaks of adjournment by “the Congress”.

The phrase “by their Adjournment” by itself plainly

refers to any adjournment by Congress, including

an adjournment of one day, two days, or three days.

Thus, the words of the pocket veto clause cannot

support the three-day rule. But neither can refer-

ence to clause 4 of Article I, section 5, for that pro-

vision relates only to one-house adjournments. Appel-

lees’ choice of three days as a bright line thus ap-

pears to have no textual grounding at all.

Appellees propose the three-day rule, it seems

likely to us, because they could not credibly argue

for the extreme position that every adjournment by

the Congress, no matter how short, creates an oppor-

tunity for a valid p@Bket veto. Such an argument

would render nugatory the phrase “prevent its re-

turn”; the pocket veto clause would operate as if

it read “unless the Congress adjourn, in which case

the bill shall not become a law.” That reading, in

direct contravention to the purpose of the clause,

would permit the President an absolute veto when-

ever Congress is not physically within the walls of

the Capitol. Wright, 302 U.S. at 594. Such an in-

terpretation would also plainly contravene the Su-

preme Court’s statement in Pocket Veto that “the

determinative question in reference to an ‘adjourn-

ment’ is . . . whether it is one that ‘prevents’ the

President from returning the bill.” 279 U.S. at 680.

Only those adjournments that actually prevent re-

turn create the opportunity for a pocket veto. Appel-

lees argue that every adjournment of four days or

more does precisely that. But the Supreme Court’s

eases plainly teach us that it is impossible to know

45a

whether an adjournment prevents return merely from

the fact that it is a particular type of adjournment.

Rather, a court must examine the conditions sur-

rounding that type of adjournment and determine

whether any obstacle to exercise of the President’s

qualified veto is posed." To choose a three-day line,

or any line, simply because it is a line ignores the

Court’s mandate and the purpose of the pocket veto

clause.

The distinction between a three-day adjournment

and a four-day adjournment is no more worthy of

constitutional significance than is the distinction be-

tween modern intrasession and intersession adjourn-

ments. Neither distinction finds any support in Arti-

cle I, section 7, clause 2. Both are arbitrary and

frustrate the goal of protecting Congress’s right to

overrule presidential disapproval without furthering

the goal of protecting the President’s opportunity to

disapprove of legislation. By rejecting these distinc-

tions we do not by any means read the pocket veto

clause out of the Constitution. The clause neces-

sarily applies to the final adjournment by a Congress,

because under Article I, section 2, clause 1, that Con-

gress has gone permanently owt of existence and

therefore cannot reconsider a vetoed bill. See Ken-

*? Thus, contrary to appellees’ understanding, whether re-

turn was prevented within the meaning of the pocket veto

clause and whether return was practically impossible are not,

two “very different” questions, Brief for the Appellees at 58,

but rather are one and the same question. To determine “con-

stitutional prevention” is, as the Court’s approach in Pocket

Veto and Wright makes clear, precisely to determine “actual

prevention”; such a determination cannot be made without

regard for “the manifest realities of the situation.” Wright,

302 U.S. at 595. The distinction appellees draw between the

two issues simply defies logic and common sense.

46a

nedy, supra note 34, at 381. Moreover, we do not

hold that intersession adjournments can never pre-

vent return. Congress might someday revoke the

existing authority of its agents to receive presiden-

tial veto messages, or rescind its rules mandating

the carryover of unfinished business from the first

session to the second, or resume its early practice of

half-year intersession adjournments. In such a case,

an intersession adjournment would resemble that

involved in the Pocket Veto Case, and that case would

unquestionably govern. But the present case is not

a second Pocket Veto Case. The existence of an au-

thorized receiver of veto messages, the rules provid-

tg for carryover of unfinished business, and the

duration of modern intersession adjournments, taken

together, satisfy us that when Congress adjourned

its first session sine die on the day it presented H.R.

4042 to the President, return of that bill to the

originating house was not prevented. We therefore

hold that H.R. 4042 became law, and accordingly

reverse and remand the decision of the District Court

with instructions to enter summary declaratory judg-

ment for appellants.

It is so ordered.

47a

Bork, Circuit Judge, dissenting: The phenomenon

of litigation directly between Congress and the Pres-

ident concerning their respective constitutional pow-

ers and prerogatives is a recent one. It was unknown

through more than a century and three quarters of

our jurisprudence—until this court accepted the in-

vitation to umpire such disputes in Kennedy vy. Samp-

son, 511 F.2d 430 (D.C. Cir. 1974).

This fact alone, the complete novelty of the direct

intermediation of the courts in disputes between the

President and the Congress, ought to give us pause.

When reflection discloses that what we are asked to

endorse is a major shift in basic constitutional ar-

rangements, we ought to do more than pause. We

ought to renounce outright the whole notion of con-

gressional standing.

I write at some length because of the importance

of the constitutional issue and because in this case,

unlike those in which similar protests have been

lodged, the error in analysis produces an error in

result. See Vander Jagt v. O'Neill, 699 F.2d 1166,

1177 (D.C. Cir.) (Bork, J., concurring), cert. denied,

104 S. Ct. 91 (1983), and Moore v. U.S. House of

Representatives, 733 F.2d 946, 956 (D.C. Cir. 1984)

(Scalia, J., concurring), cert. denied, 53 U.S.L.W.

3483 (U.S. Jan. 7, 1985). To date these protests

have been unavailing. With a constitutional insouci-

ance impressive to behold, various panels of this

court, without approval of the full court, have an-

nounced that we have jurisdiction to entertain law-

suits about governmental powers brought by con-

gressmen against the President. That jurisdiction

floats in midair. Any foundations it may once have

been thought to possess have long since been swept

away by the Supreme Court. More than that, the

48a

jurisdiction asserted is flatly inconsistent with the

judicial function designed by the Framers of the

Constitution.

Appellants seek judicial review of a dispute be-

tween the Legislative and Executive Branches over

the validity of the presidential “pocket veto” as ap-

plied to bills presented to the President less than ten

days before an intersession adjournment of Congress.

The individual appellants—individual members of

Congress—allege that they have been injured by this

use of the pocket veto because the veto nullified their

original votes in favor of the bill in question. The

institutional appellants—the Senate and thie leader-

ship of the House—allege injury to their “participa-

tion in the lawmaking process, since it is the Senate

and the House of Representatives that pass legisla-

tion under article I, and improper exercise of the

pocket veto power infringes that right... .” Maj.

op. at 8. The majority describes the individual ap-

pellants’ injury as “a diminution of the . . . power

to participate in the enactment of legislation through

voting on proposed or returned bills,” id. at 6 n.11,

and the institutional appellants’ injury.as “an injury

to the lawmaking powers of the two houses of Con-

gress.”’ Id. at 6.

It is clear, then, that appellants are suing not be-

cause of any personal injury done them but solely to

have the courts define and protect their governmental

powers. Until this circuit permitted such actions

eleven years ago, this suit would have been impos-

sible. Indeed, for most of-eur history this suit would

have been inconceivable. The respective constitu-

tional powers of Congress and the President could

have been given judicial definition only when a pri-

vate party, alleging a concrete injury, actual or

ny een eee Ne nn Ne

- — lal

49a

threatened, brought those powers necessarily into

question. No doubt it appears more “convenient” to

let congressmen sue directly and at once; in actual-

ity, that convenience is purchased at the cost of sub-

verting the constitutional roles of our political insti-

tutions.’

Major alterations in the constitutional system can

be accomplished through what seem to be minor ad-

justments in technical doctrine. That is the case

here. By according congressmen standing to sue the

President, this court proposes a new and much dif-

ferent answer to the question of the proper role of

the federal courts in American constitutional dispu-

tation. Changing the constitutional role of the fed-

eral courts, moreover, necessarily also alters that of

Congress and the President, and seems, on the ra-

tionale the majority advances, destined to alter that

1 The Executive Branch conceded at oral argument that the

Senate has standing to sue in this suit. Similarly, in Kennedy

v. Sampson, 511 F.2d 430, 435 (D.C. Cir. 1974), the Executive

Branch conceded that either House of Congress would have

standing to sue based on injury to its lawmaking powers. That

concession does not, of course, remove the issue from this

dispute, for it is axiomatic that parties cannot confer subject

matter jurisdiction by waiver. No reason appears why the

Executive should oppose standing for individual legislators but

concede as toa House. The constitutional problems would seem

to be identical. More important is the misunderstanding of

the importance of the issue that underlies this concession.

According to counsel, the Executive Branch is pursuing de-

cision on the merits to vindicate its governmental interest in

constitutional goverance. While this is undoubtedly true, I

suggest that, given this concern, appellees have misordered

the priorities. By conceding the standing issue appellees en-

danger a constitutional principle far more momentous than

the scope of the pocket veto power, especially since the latter

issue can arise and be decided later ina private suit.

50a

of the States as well. All of these changes work to

enhance the power and the prestige of the federal

judiciary at the expense of those other institutions.

Fortunately, the question is not an open one. It is

clear upon several lines of analysis that appellants

have no standing to litigate the issue they would

place before us. Because the significance of what is

taking place through this circuit’s reshaping of

standing doctrine appears to be inadequately appre-

ciated, however, I first undertake to demonstrate that

the rationale which underlines congressional stand-

ing doctrine also demands that members of the Ex-

ecutive and the Judicial Branches be granted stand-

ing to sue when their official powers are allegedly in-

fringed by another branch or by others within the

same branch. In addition, states would have stand-

ing to protect their powers of governance against the

national government on the same theory. The conse-

quences of this expansion of standing, which will

bring an enormous number of inter- and intra-gov-

ernment disputes into the federal courts (usually,

one supposes, into this physically convenient court)

will be nothing short of revolutionary. I next demon-

strate that three separate strands of Supreme Court

precedent, and the philosophy underlying them, fore-

close the possibility of standing here. The criteria

articulated by the Supreme Court to govern cases

such as this, the argument proceeds, carry out the

intentions of the Framers of the Constitution with

respect to the role of the federal courts in disputes

between or within the political branches. I then show

that the aggrandizement of the powers of the judi-

’ ciary inherent in the doctrine of governmental stand-

ing is not made more palatable by the doctrine of

“circumscribed equitable discretion” cr “remedial dis-

a waa tx ueteia ey es ——

5la

cretion” this court has invented precisely to compen-

sate in part for the deficiencies in its standing doc-

trine. Finally, I explain why the Supreme Court de-

cisions the majority relies upon are inapposite and

why we are not, at present, bound by prior decisions

of this court that created and sustained the doctrine

under review.

4

The issue of standing is jurisdictional. If a court

concludes that a party lacks standing, the court may

not proceed to decide the merits of the suit. Though

it is sometimes said that standing raises the question

whether the party is fit to litigate an issue, whether

he has been injured directly so that he possesses “that

concrete adverseness which sharpens the presentation

of issues,” Baker v. Carr, 369 U.S. 186, 204 (1962),

it is clear that much more is involved. The standing

requirement, at bottom, has to do with what kinds of

interests courts will undertake to protect. As Justice

Powell put it in Warth v. Seldin, 422 U.S. 490, 498

(1975):

In essence the question of standing is whether

the litigant is entitled to have the court decide

the merits of the dispute or of particular issues.

This inquiry involves both constitutional limita-

tions on federal-court jurisdiction and pruden-

tial limitations on its exercise. In both dimen-

sions [standing] is founded in concern about the

proper—and properly limited—role of the courts

in a democratic society.

(Citations omitted; emphasis added.)

This should make it clear that the jurisdictional

requirement of standing keeps courts out of areas

that are not properly theirs. It is thus an aspect of

52a

democratic theory. Questions of jurisdiction are ques-

tions of power, power not merely over the case at

hand but power over issues and over other branches

of government. Article III of the Constitution con-

fers the “judicial Power of the United States” and

limits that power in several ways. Among the most

important limitations is that expressed in section 2

of article III, confining our jurisdiction to “Cases”

and “Controversies.” The meaning of those terms,

however, is decided by federal courts. It follows that

judges can determine the extent of their own power

-vithin American government by how they define

cases and controversies. It is for this reason that the

proper definition of those terms is crucial to the

maintenance of the separation of powers that is cen-

tral to our censtitutional structure.

“Standing” is one of the concepts courts have

evolved to limit their jurisdiction and hence to pre-

serve the separation of powers. A critical aspect of

the idea of standing is the definition of the interests

that courts are willing to protect through adjudica-

tion. A person may have an interest in receiving

money supposedly due him under law.. Courts rou-

tinely regard an injury to that interest as conferring

upon that person standing to litigate. Another per-

son may have an equally intensely felt interest in

the proper constitutional performance of the United

States government. Courts have routinely regarded

injury to that interest and not conferring standing

to litigate. The difference between the two situations

is not the reality or intensity of the injuries felt but

a perception that according standing in the latter

ease would so enhance the power of the courts as to

make them the dominant branch of government.

There would be no issue of governance that could not

53a

at once be brought into the federal courts for conclu-

sive disposition. Every time a court expands the

definition of standing, the definition of the interests

it is willing to protect through adjudication, the area

of judicial dominance grows and the area of demo-

cratic rule contracts. That is what is happening in

this case. My disagreement with the majority, there-

fore, is about first principles of constitutionalism.

The contours of the standing concept are often

fuzzy and ill-defined, but it is not the less funda-

mental for that. As I wrote in Vander Jagt, 699

F.2d at 1178-79, “[a]ll of the doctrines that cluster

about article II1I—not only standing but mootness,

ripeness, political question, and the like—relate in

part, and in different though overlapping ways, to

an idea, which is more than an intuition but less

than a rigorous and explicit theory, about the con-

stitutional and prudential limits to the powers of an

unelected, unrepresentative judiciary in our kind of

government.”

There may be doubts about what this political-

legal idea means for the standing requirement in

many cases. This is not such a case. Here it is clear

that according these appellants and appellant-inter-

venors standing is a flat violation of our basic ideas

about “the proper—and properly limited—role of the

court in a democratic society.”

The concept of congressional standing, as the ma-

jority opinion makes clear, rests upon the idea that

members or Houses of Congress must be able to sue

to vindicate powers or rights lodged in them by the

Constitution. See maj. op. at 8-9, 13-14. Nothing

else is required to confer standing under the doctrine

as it has been enunciated by this court. It follows,

according to the majority, that appellants have stand-

54a

ing to maintain an action against an officer of the

Executive Branch to establish that the President’s

exercise of his pocket veto power was not within the

terms set by the Constitution. This may sound un-

exceptional; it is, in fact, a constitutional upheaval.

The first problem with this court’s doctrine of con-

gressional standing is that, on the terms of its own

rationale, the concept is uncontrollable. Congress is

not alone in having governmental powers created or

contemplated by the Constitution. This means that

the vindication-of-constitutional-powers __ rationale

must confer standing upon the President and the

judiciary to sue other branches just as much as it

does upon Congress. “Congressional standing” is

merely a subset of “governmental standing.” This

rationale would also confer standing upon states or

their legislators, executives, or judges to sue various

branches of the federal government. Indeed, no rea-

son appears why the power or duty being vindicated

must derive from the Constitution. One would think

a legal interest created by statute or regulation would

suffice to confer standing upon an agency or official

who thought that interest had been invaded.*

2 Indeed, this court has so held, on the authority of Kennedy

v. Sampson, AFGE v. Pierce, 697 F.2d 303, 305 (D.C. Cir.

1982). In Pierce, employees of a federal agency, their union,

and Congressman Sabo sued to enjoin a proposed reduction-

in-force on the grounds that it was a reorganization of the

agency barred by statute in the absence of prior approval by

the House Appropriations Committee. Jd. at 304. The district

court held that Congressman Sabo had standing and did not

decide whether the employees or their union could sue. The

case was taken as an emergency expedited appeal, and the

panel, on which I sat, held that Congressman Sabo did not

have standing as a member of the House of Representatives,

but did have standing as a member of the Appropriations

Committee. Jd. at 305. Citing Kennedy, the per curiam opin-

ees

55a

These points become obvious upon examination of

the court’s doctrine. If this extrapolation of that doc-

trine at first seems far-fetched, that is only because

it points to a new and wholly unfamiliar legal and

constitutional world. Yet such a world is precisely

what the rationale of the congressional standing doc-

trine, honestly applied, will create. No avoidance of

these implications is possible unless courts lay down

fiats, resting upon no discernible principle, that ar-

bitrarily limit those institutions whose members may

vindicate constitutional and legal interests. Because

the implications of what is being done here are un-

familiar, it will be well to offer 4 few examples of

governmental standing that flow directly from the

majority’s rationale.

We may begin with Congress. Members of Con-

gress, dissatisfied with the President’s performance,

need no longer proceed, as historically they always

have, by oversight hearings, budget restrictions, po-

litical struggle, appeals to the electorate, and the

ion held that the statute gave each member of the Appropria-

tions Committee the right to participate in approval of any

reorganization of the agency. Hence “[t]he Secretary’s actions

injured him by depriving him of that specific statutory right

to participate in the legislative process.” Jd. Since Congress-

man Sabo had standing, the panel did not decide “the question

whether the district court was the appropriate forum for the

employees’ complaint.” Jd. at 304. My vote in Pierce is, of

course, inconsistent with the position I adopt in this dissent

and previously adopted in my concurrences in Vander Jagt v.

O’Neill, 699 F.2d 1166, 1177 (D.C. Cir. 1983), and Crockett

v. Reagan, 720 F.2d 1355, 1357 (D.C. Cir. 1983). I overlooked

the latent separation-of-powers issues in that case, which was

my first encounter with this court’s congressional standing

doctrine, and in which, because of the emergency nature of the

appeal, the opinion was released one day after oral argument.

See Pierce, 697 F.2d at 3038.

56a

like, but may simply come to the district court down

the hill from the Capitol and obtain a ruling from a

federal judge. The Pocket Veto Case, 279 U.S. 655

(1929), for example, need not have awaited suit by

persons who thought themselves unlawfully deprived

of monies: had the congressmen and courts of that

time understood what this court now understands,

an abstract ruling on the principle of the thing could

have been obtained immediately after the President

failed to sign the bill. Members of Congress would

have standing to sue the President whenever he com-

mitted troops, as in Lebanon, on the allegation that

there had been a violation of the War Powers Reso-

lution or of Congress’ power to declare war under

article I, section 8. Members could sue the President

about his law enforcement policies and priorities,

claiming that their power to make laws under article

I, section 8, and his duty, arising under article II,

section 3, to “take Care that the Laws be faithfully

executed,” had both been infringed.* Examples of

this sort could be multiplied indefinitely.

3 This court has rejected some efforts by legislators to sue

on the basis of “the allegedly improper execution of an en-

acted law,” on the grounds that “[t]he injury to the legislator

was a generalized grievance about the conduct of government,

not a claim founded on injury to the legislator by distortion

of the process by which a bill becomes law.” Moore v. U.S.

House of Representatives, 733 F.2d 946, 952 (D.C. Cir. 1984)

(explaining Harrington v. Bush, 553 F.2d 190 (D.C. Cir.

1977), and AFGE v. Pierce, 697 F.2d 303 (D.C. Cir. 1982),

as involving only generalized complaints). The attempted dis-

tinction is untenable. If a President refused to enforce a

law Congress had validly enacted, that would nullify legis-

lators’ votes and impair the lawmaking powers of Congress

just as surely as if the President had employed the pocket

veto. Yet, under the distinction drawn in Moore, a refusal

to enforce would be treated as giving rise to nothing more

i ilerciceeene | se RE te oe

57a

But the transformation this court has wrought in

its own powers necessarily runs much farther than

that. If Congress, its Houses, or its members can

sue the President for a declaration of abstract legal

right, it must follow that the President may, by the

same token, sue Congress. For example, Presidents

at least since Franklin Roosevelt have objected to the

device known as the congressional veto on the grounds

of its unconstitutionality. Had they understood our

constitutional system as this court now understands

it, these Presidents need not have waited for a pri-

vate person to raise the issue in INS v. Chadha, 103

S. Ct. 2764 (1983), to obtain a declaration of the un-

constitutionality of that device, but could have sued

Congress at any time. This court may become a

potent supplement to the checks and balances the

Constitution provides. Under the majority’s reason-

ing, whenever the President vetoes a bill that, in his

judgment, requires him to execute an unconstitu-

tional law or invades his legitimate constitutional

than a generalized grievance, while the pocket veto would be

treated as occasioning an injury “to the members’ rights to

participate and vote on legislation in a manner defined by the

Constitution.” 733 F.2d at 951. The grounds for this differ-

ence in treatment are that a legislator has “a right and a

duty to participate” in the process by which a bill becomes

law. Id. at 952. That may be, but the legislator whose vote

is nullified by a pocket veto has exercised his right and ful-

filled his duty—it is the impairment of his lawmaking power

that, on this court’s analysis, gives him standing to sue. Since

that impairment occurs whenever a President fails to enforce

the law as Congress intended it, enforcement challenges must

be heard if this court’s rationale is to be fairly applied. Thus,

this court’s view of standing, applied in a principled fashion,

would move the obligation to “take Care that the Laws be

faithfully executed” out of article II of the, Constitution and

divide it between articles I and III.

58a

powers and Congress overrides his veto, the Presi-

dent may sue before the ink is dry for a judicial

declaration of unconstitutionality. We will become

not only a party of the legislative process but perhaps

the most important part.

Indeed, if unlawful interference with one’s official

powers is enough to confer standing I do nct know

why members of the judiciary should not join in the

game, with the added advantage, of course, that

one federal judge’s lawsuit claiming a right to pow-

ers denied would be heard and decided by other fed-

eral judges. Thus, when Congress limited the habeas

corpus jurisdiction of the District Court for the Dis-

trict of Columbia, there is no reason, under the

majority’s rationale, why a district court judge, or

a judge of this court who had lost appellate jurisdic-

tion, should not have sued Congress andthe Presi-

dent for a declaration of unconstitutionality. In this

court he would, apparently, have won, see Pressley v.

Swain, 515 F.2d 1290 (D.C. Cir. 1975) (en banc) ;

Palmore v. Superior Court of the District of Colum-

bla, 515 F.2d 1294 (D.C. Cir. 1975) (en banc),

though he would not have succeeded in the Supreme

Court, see Swain v. Pressley, 430 U.S. 372 (1977).

Intra-branch disputes also must succumb to this

court’s plenary interpretation of its own powers. See,

e.g., Vander Jagt, 699 F.2d 1166. Individual legisla-

tors now have standing to sue each other, the Houses

of Congress, other bodies composed of legislators,

such as committees and caucuses, and so on. Virtu-

ally every internal rule, custom, or practice by which

the internal operations of Congress are regulated is

reviewable at the discretion of this court at the

behest of disgruntled legislators. That means, for

example, that the opponents of a filibuster have

59a

standing to sue for an injunction directing the fili-

buster to cease. Legislators who were not selected to

serve on the committees of their choice have stand-

ing to challenge the manner in which the selection

process was conducted. Indeed, this court has so held.

Vander Jagt, 699 F.2d at 1170. No matter how

intrusive the relief sought, this court has jurisdiction

so long as the legislator can show some relationship

between the congressional behavior he challenges and

his own influence and effectiveness as a legislator.

Congress, in short, is subject to judicial oversight to

whatever degree this court, exercising its newly-

invented powers of equitable discretion, decides super-

vision is warranted, or, as one of our cases puts it,

not “startlingly unattractive.” Vander Jagt, 699 F.2d

at 1176 (quoting Davids v. Akers, 549 F.2d 120, 123

(9th Cir. 1977) ). It appears that our constitutional

jurisdiction now rests less upon law than upon

aesthetic judgments.

The same reasoning, of course, applies to disputes

within the Executive and Judicial Branches. The

head of an agency who believes that another agency

has improperly encroached on an area confided to

his administration by statute or regulation no longer

need bring the dispute before the President, for the

courts stand ready to resolve it.‘ Beyond that, a

cabinet officer aggrieved by an Executive Order or

any other exercise of presidential power, one which

arguably requires him to violate an act of Congress,

can proceed to challenge the offending directive in

federal court, where declaratory judgment and in-

* The majority clearly believes that Chapman v. FPC, 345

U.S. 153 (1953), establishes that this is already the law, but

as shown infra at pp. 47-51, that case does not at all have the

import the majority ascribes to it.

60a

junctive relief are available to set the President

right. Presumably, a district judge whose jurisdic-

tion had been limited by a court of appeals decision

could seek rehearing en banc or petition the Supreme

Court for a writ of certiorari. According to this

court’s rationale, I should be able to petition the

Supreme Court for a writ of certiorari or of man-

damus to overturn the result in this case because it

unconstitutionally alters my duties and powers as

an article III judge.°

Nor must it be forgotten that the Constitution con-

templates areas of authority for the states, areas in

which the national government is not to impinge.

Should Congress enact a law that arguably is beyond

its powers and that has an impact upon citizens of

the several states, it would seem, under this court’s

reasoning, that members of a state legislature, whose

jurisdiction had been ousted, would have standing to

sue the national executive to enjoin enforcement of

that law. Certainly the State itself would have

standing. States, after all, have constitutional func-

tions and powers as surely as Congress does.

Enough has been said perhaps to indicate the

breathtaking transformation of the judicial function,

the relationships™between the branches of the na-

tional government, and the relationships between fed-

5 Lest this be regarded as fantasy or burlesque, it should

be noted that this very sort of litigation within the judicial

branch is being attempted. See In re Robson and Will, petition

for mandamus or in the alternative for cert. filed, 58 U.S.L.W.

3552 (U.S. Feb. 5, 1985) (No. 84-1127) (United States Dis-

strict Judges seeking relief against Court of Appeals on

grounds that Court of Appeals improperly substituted its dis-

cretion for that of the District Court, and exceeded its au-

thority by ordering a remedy that is contrary to law). The

possibilities seem boundless.

le ——

6la

eral and state governments that waits at the end of

the road upon which this court has set its foot. It

is clear from the cases that even this first step is

illegitimate.

Il.

It is easily demonstrated from several different

lines of cases that the doctrine of congressional

standing is ruled out by binding Supreme Court prec-

edent. These lines of authority will be examined

separately, and I will then suggest that they are but

facets of the same set of considerations.

A.

It has been noted already that the rationale upon

which the majority accords standing to members of

Congress and the Senate in this case would equally

permit suits by states to challenge federal laws or

actions that seem to impinge upon their sovereignty.

But this result, of course, contravenes Massachusetts

v. Mellon, 262 U.S. 447 (1923), and does so in’a

way that shows both the impropriety of the doctrine

of governmental standing and the impropriety of that

doctrine even if confined, illogically, to suits by con-

gressmen.

In Massachusetts vy. Mellon, the Commonwealth of

Massachusetts brought an original action in the Su-

preme Court against various federal officials to en-

join, as unconstitutional, enforcement of the Mater-

nity Act. 262 U.S. at 478. The statute provided ap-

propriations to be apportioned among states that

would comply with the law’s provisions for the pur-

pose of federal-state cooperation_to reduce maternal

and infant mortality and protect the health of moth-

ers and infants. Jd. at 479. Massachuseits, in an

argument exactly parallel to that the majority ad-

—s

62a

vances here, claimed that the Maternity Act was a

usurpation of power not granted to Congress, but

reserved to the States, by the Constitution. The

State asserted standing because its “rights and pow-

ers as a sovereign State... [had] been invaded.” /d.

The Supreme Court responded that

in so far as the case depends upon the assertion

of a right on the part of the State to sue in its

own behalf we are without jurisdiction. In that

aspect of the case we are called upon to adjudi-

cate, not rights of person or property, not rights

of dominion over physical domain, not quasi-

sovereign rights actually invaded or threatened,

but abstract questions of political power, of sov-

ereignty, of government. ... [T]his Court is

. . without authority to pass abstract opinions

upon the constitutionality of acts of Congress

Id. at 484-85.

In the present case we are asked to pass an ab-

stract opinion upon the constitutionality of an act

of the President. Unlike the Supreme Court, the

~ majority here complies with that request. But, if

Massachusetts v. Mellon is right, the majority is

wrong. If, on the other hand, the majority is right,

its rationale would, as already noted, lead to the over-

ruling of Massachusetts v. Mellon, not merely in its

general approach, but on the specific situation pre-

sented there: all states would have standing to chal-

lenge any action by any branch of the federal govern-

ment even though nothing more concrete than dis-

agreement about constitutional powers was at stake.

Since this court is not empowered to overrule Massa-

, Oat ate

63a

chusetts v. Mellon,’ I think the reasoning of that

case requires a conclusion that there is no standing

here.

* The majority claims that Massachusetts v. Mellon is “in

no respect ... contrary” to the majority’s position. Maj.

op. at 11 n.14. But the majority then proceeds to explain that

case and cases that came afterward, such as National League

of Cities v. Usery, 426 U.S. 833 (1976), overruled on other

grounds, Garcia v. San Antonio Metropolitan Transit Author-

ity, 53 U.S.L.W. 4135 (U.S. Feb. 19, 1985) (Nos. 82-1913 &

82-1951), in a way that shows Massachusetts vy. Mellon to he

contrary to its position in every respect. Thus, the majority

quotes a passage from that decision pointing out that Massa-

chusetts complained of federal usurpation of the reserved

powers of the states “by the mere enactment of the statute,

thouch nothing has been done and nothing is to be done with-

out their consent.” Maj. op. at 11 n.14 (quoting 262 U.S. at

483). The majority concludes its discussion with the state-

ment that “Massachusetts v. Mellon did not establish that

governmental officials and entities necessarily and always

lack standing to raise claims of infringement of lawful func-

tions. Rather, the case explicitly leaves open the possibility

of suit by a state when “rights of the State falling within the

scope of the judicial power’ are at stake, a possibility later to

become an actuality in, e.g., National Leaque of Cities.” Maj.

op. at 11 n.14. That neatly expresses my point, not the ma-

jority’s. The difference between Massachusetts v. Mellon and

National League of Cities is that in the former only an in-

jury to governmental powers was alleged while in the latter

states and cities were required by federal statute to expend

money. See National League of Cities, 426 U.3. at 846-47.

That was the concrete injury in fact that conferred standing.

The case now before us alleges only a usurpation of govern-

mental powers and hence, on the teaching of the two Supreme

Court decisions cited, is outside our jurisdiction. In short,

Massachusetts v. Mellon is to National League of Cities as the

present case is to the Pocket Veto Case.

64a

B.

The Supreme Court’s decisions about suits over

“seneralized grievances” are closely related to Mas-

sachusetts v. Mellon and require the same result here.

The merits of the dispute offered us turn upon the

interpretation of article I, section 7, clause 2 of the

Constitution. That is a task for which courts are

suited, and I would have no hesitation in reaching

and deciding the substantive question if this were a

suit by a private party who had a direct stake in the

outcome. The Pocket Veto Case, 279 U.S. 655 (1929),

was, of course, just such a suit.’ This action, how-

TIn The Pocket Veto Case, Congress passed a bill authoriz-

ing certain Indian tribes to present their claims against the

United States to the Court of Claims. 279 U.S. at 672. The

bill was presented to the President less than ten days before

an intersession adjournment, id.; the President neither signed

the bill nor returned it to the originating house, and the bill

was not published as a law. Id. at 673. The Indian tribes took

the position that the bill became law, and filed a petition in

the Court of Claims raising various claims in accordance with

the terms of the bill. The United States defended on the

ground that the bill had not become law under article I, section

7, and the Court of Claims dismissed the petition for that

reason. Id. The Supreme Court aliowed a member of the

House Committee on the Judiciary to appear as an amicus, but

there was no suggestion that any legislator had standing to

sue. Id.

Wright v. United States, 302 U.S. 583 (1938), followed the

same format. Congress passed a bill giving the Court of

Claims jurisdiction to adjudicate Wright’s claim against the

United States. 302 U.S. at 586. The United States opposed

Wright’s petition, arguing that the bill -had never become

law, and the Court of Claims agreed. Jd. Moreover, the same

pattern is evident in the other Supreme Court cases that have

interpreted the presentation clause. Edwards v. United States,

286 U.S. 482 (1932), involved a private bill giving the Court

of Claims jurisdiction to adjudicate Edwards’ claim against

65a

ever, is not. This is an action by representatives of

people who themselves have no concrete interest in

the outcome but only a “generalized grievance” about

an allegedly unconstitutional operation of govern-

ment. It is well settled that citizens, whose interest

is here asserted derivatively, would have no standing

to maintain this action.’ That being so, it is impos-

the United States; the Court of Claims certified to the Su-

preme Court the question whether the bill became law, given

that it had been signed by the President after a final adjourn-

ment but within ten days of presentation. Jd. at 485. La Abra

Silver Mining Co. v. United States, 175 U.S. 423 (1899), dif-

fers only in that there Congress passed a bill authorizing the

Attorney General to bring suit in the Court of Claims to de-

termine whether an award made by a United States Commis-

sion to La Abra had been obtained by fraud. 175 U.S. at 441.

Consequently, in La Abra the private party, rather than the

government, raised the defense that the bill had not be-

‘ome law, because signed by the President during a congres-

sional recess. Id. at 446, 451. These cases provide no support

for conferring standing to raise presentation clause issues on

congressional plaintiffs.

® It is also well settled that the states would not have stand-

ing to assert such generalized grievances on behalf of their

citizens. Massachusetts v. Mellon also holds that a State, as

parens patriae, may not “institute judicial proceedings to pro-

tect citizens of the United States from the operation of the

statutes thereof,” because “it is no part of its duty or power

to enforce their rights in respect of their relations with the

Federal Government.” 262 U.S. at 485-86. The Supreme Court

recently reaffirmed that holding in Alfred L. Snapp & Son,

Inc. Vv. Puerto Rico, 458 U.S. 592, 610 n.16 (1982), while in-

dicating that a state would have standing as parens patriae

to “secure the federally created interests of its residents

against private defendants.” Jd. This illustrates, rather

dramatically one would think, that what is a sufficient injury

in fact when asserted against a private defendant may, for

reasons of separation of powers and federalism, be deemed

66a

sible that these representatives should have standing

that their constituents lack.

The Supreme Court has repeatedly rejected the

proposition that one who sues as a citizen or tax-

payer, alleging nothing more than that the govern-

ment is acting unconstitutionally, has standing to

sue. A naked claim that a constitutional violation

has occurred, the Court has said, “would adversely

affect only the generalized interest of all citizens in

constitutional governance, and that is an abstract

insufficient to confer standing against a branch of the federal

government. It is precisely these reasons of separation of

powers and federalism that compel the parallel conclusion that

injury to governmental powers does not constitute an injury

in fact or a judicially cognizable injury, as the Supreme Court

has elaborated those terms in connection with the article III

standing requirements.

Lest this point be misunderstood, I emphasize that I do not

read either Mellon or Snapp as holding that the prohibition

on state parens patriae suits against the federal government

is in all cases a constitutional limitation rather than a pru-

dential one. In my view, that prohibition is a constitutional

requirement where, as in Mellon, individuals within the state

would lack standing to sue because they have suffered no in-

jury that is judicially cognizable under article III. To permit

Congress to confer standing on a state in such a case would be

to authorize evasion of the constitutional standing require-

ments by allowing the state as a representative of its citizens

to sue when those who are represented could not. But where

private individuals could satisfy the injury in fact require-

ment of article III, there is no threat to separation of powers

or to federalism in allowing Congress to confer parens patriae

standing on the state as the representative of persons who

have suffered a concrete injury and would themselves have

standing. Consequently, in this second category of cases the

rule is prudential and, although fully binding on the courts

until Congress acts, may be eliminated by congressiona! en-

actments.

67a

injury.” Schlessinger v. Reservists Committee To

Stop the War, 418 U.S. 208, 217 (1974). See United

States v. Richardson, 418 U.S. 166 (1974); Laird v.

Tatum, 408 U.S. 1 (1972); Ex parte Levitt, 302

U.S. 633 (1937). This is true even though “citizens

are the ultimate beneficiaries of those [constitu-

tional] provisions,” Reservists, 418 U.S. at 227. Tax-

payers face the same bar. In Frothingham vy. Meilon,

262 U.S. 447, 486 (1923), the Court denied standing

to a federal taxpayer who alleged that a spending

bill was unconstitutional. Despite the fact that such

bills may have the effect of taking money from the

individual taxpayer and putting it to a purpose the

Constitution interdicts, the general rule is still that

the taxpayer lacks standing because he “suffers in

some indefinite way in common with people gen-

erally.” Id. at 488. See Valley Forge Christian Col-

lege v. Americans United for Separation of Church

& State, 454 U.S. 464, 476-81 (1982). Thus, these

legislators lack standing in their individual, as op-

posed to their representative, capacities. The major-

ity appears to concede that, insisting only upon rep-

resentative standing.

Yet, the legislators on whom this court has be-

stowed standing have alleged only two things—an

unconstitutional act and an impairment of their con-

stitutional powers as a result of that act. It is clear

that the citizens and taxpayers these legislators rep-

resent would not have standing if they alleged that

the same unconstitutional act had impaired the offi-

cial powers of their representatives. That would be

true despite the fact that citizens and taxpayers are

the “ultimate beneficiaries” of the constitutional

powers their representatives possess. Indeed, that

was precisely the argument that was rejected in

Reservists, where the plaintiffs alleged that they, as

68a

citizens and taxpayers, had been deprived “of the

faithful discharge by members of Congress . . . of

their duties as members of Congress, to which all

citizens and taxpayers are entitled.” 418 U.S. at 212

(quoting Petition for Certiorari at 46).

If the people of the United States would not have

standing to bring this action (and it is undeniable

that they would not), then how can the representa-

tive of the people have standing that their constitu-

ents do not? The only possible answer is that elected

representatives have a separate private right, akin to

a property interest, in the powers of their offices.

But that is a notion alien to the concept of a repub-

lican form of government. It has always been the

theory, and it is more than a metaphor, that a demo-

cratic representative holds his office in trust, that he

is nothing more nor less than a fiduciary of the peo-

ple. Indeed, as I show in Part III below, the Framers

of the Constitution most certainly did not intend to

allow suits such as this, which means they did not

conceive of the powers of elected representatives as

apart from the powers of the electorate. It is for

that reason that Judge Scalia was entirely correct in

stating that “no officers of the United States, of

whatever Branch, exercise their governmental pow-

ers as personal prerogatives in which they have a

judicially cognizable private interest. They wield

those powers not as private citizens but only through

the public office which they hold.” Moore, 733 F.2d

at 959 (Scalia, J., concurring).

Justice Frankfurter’s separate opinion in Cole-

man v. Miller, 307 U.S. 483, 460 (1939), made the

same point on behalf of himself and Justices Black,

Roberts, and Douglas:

aan waned milli tia

69a

We can only adjudicate an issue as to which

there is a claimant before us who has a special,

individualized stake in it. One who is merely

the self-constituted spokesman of a constitutional

point of view can not ask us to pass on it. The

Kansas legislators [who challenged the state’s

ratification of an amendment to the United

States Constitution] could not bring suit explic-

itly on behalf of the people of the United States

to determine whether Kansas could still vote for

the Child Labor Amendment. They can not gain

standing here by having brought such a suit in

their own names.

Id. at 467. He said that injuries to voting procedures

“pertain to legislators not az individuals but as po-

litical representatives executing the legislative proc-

ess.” Id. at 470. The Court majority did not dis-

agree with this so far as suits in federal courts were

concerned, but found an interest sufficient to confer

standing only because the suit came from a state

court that had found standing under state law. Id.

at 446. Justice Frankfurter’s analysis thus remains

fully applicable to the action before us now.

This court now necessarily adopts as a premise to

its reasoning that legislators, and other- members of

government, have a private individual stake in their

official powers that is separate from their fiduciary

role. If not, it is utterly anomalous to allow the rep-

resentative to sue when those he represents may not.

One night as well drop the pretense, allow not only

legislators but citizens and taxpayers to sue, and de-

clare Richardson, Reservists, and Frothingham over-

ruled and Justice Frankfurter’s Coleman analysis

rejected. Though the majority does not declare it,

70a

that is what it has effectively accomplished for this

circuit with the doctrine of congressional standing.

C.

The Supreme Court last Term handed down a de-

cision that makes clear hoth the foundations of stand-

ing doctrine and the utter incompatibility of those

foundations with this court’s congressional-standing

superstructure. In Allen v. Wright, 104 S. Ct. 3315

(1984), Justice O’Connor, writing for the Court ma-

jority, restated fundamentals to which we should

revert every time an expansion of standing is con-

templated.

Article III of the Constitution confines the

federal courts to adjudicating actual “cases” and

“controversies.” As the Court explained in Val-

ley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454

U.S. 464, 471-476 (1982), the “case or contro-

versy” requirement defines with respect to the

Judicial Branch the idea of separation of pow-

ers on which the Federal Government is founded.

The several doctrines that have grown up to

elaborate that requirement are “founded in con-

cern about the proper—and properly limited—

role of the courts in a democratic society.”

Warth v. Seldin, 422 U.S. 490, 498 (1975).

Id. at 3324. She specified the foundations of the doc-

trine: “the law of Art. III standing is built on a

single basic idea—the idea of separation of powers.”

Id. at 3325. Moreover,

the standing inquiry must be answered by refer-

ence to the Art. III notion that federal courts

may exercise power only “in the last resort, and

Pe oe

re

7la

as a necessity,” Chicago & Grand Trunk R. Co.

v. Wellman, 143 U.S. 339, 345 (1892), and only

when adjudication is “consistent with a system

of separated powers and [the dispute is one]

traditionally thought to be capable of resolution

through the judicial process,” Flast v. Cohen,

392 U.S. 83, 97 (1968). See Valley Forge, 454

U.S., at 472-473.

Id. The concept of congressional standing, born in

this circuit and relied upon by the majority today, is

inconsistent with every one of the criteria laid down

in this passage from Allen v. Wright.

This may be seen by contrasting two opposing con-

ceptions of the role of the federal courts in our pol-

ity. The first, and more traditional, view is that

federal courts sit to adjudicate disputes between liti-

gants; the power of the courts derives entirely from

the necessity to apply the law to concrete controver-

sies. Judges interpret the Constitution and apply it

only out of necessity, and as a last resort, because the

Constitution is law and may not be ignored by a

court of law. In the course ef adjudication, the court

may have to declare a statute enacted by Congress

unconstitutional or it may have to make the same

declaration concerning an act of the President. That

is an awesome power, but it is confined, limited, and

tamed because it is exercised only when the need to

decide a concrete controversy makes it inevitable. It

is “merely the incidental effect of what Marbury v.

Madison took to be the judges’ proper business—

‘solely, to decide on the rights of individuals.’ ”

Scalia, The Doctrine of Standing as an Essential Ele-

ment of the Separation of Powers, 17 Suffolk U.L.

Rev. 881, 884 (1983) (footnote omitted). This view

72a

of the powers of the federal judiciary is the one re-

iterated by the Supreme Court in Allen v. Wright.

Tocqueville understood the genius that underlay

this definition of the judicial role:

[B]y leaving it to private interest to censure the

law, and by intimately uniting the trial of the

law with the trial of an individual, legislation is

protected from wanton assaults and from the

daily aggressions of party spirit. The errors of

the legislator are exposed only to meet a real

want; and it is always a positive and appreci-

able fact that must serve as the basis of a

prosecution.

[T]he American judge is brought into the polit-

ical arena independently on his own will. He

judges the law only because he is obliged to

judge a case... . It is true that, upon this sys-

tem, the judicial censorship of the courts of jus-

tice over the legislature cannot extend to all laws

indiscriminately, inasmuch as some of them can

never give rise to that species of contest which is

termed a lawsuit. . . . The Americans have often

felt this inconvenience; but they have left the

remedy incomplete, lest they should give it an

efficacy that might in some cases prove danger-

ous.

1 A. De Tocqueville, Democracy In America 106-07

(T. Bradley ed. 1945).

The competing view, which this court adopted with

the congressional standing doctrine, is that “the busi-

ness of the federal courts is correcting constitutional

errors, and that ‘cases and controversies’ are at best

convenient vehicles for doing so and at worst nui-

73a

sances that may be dispensed with when they become

obstacles to that transcedent endeavor.” Valley

Forge, 454 U.S. at 489. The Valley Forge Court

could not have been clearer in rejecting this position:

“This philosophy has no place in our constitutional

scheme.” Jd. Yet, by means of its invention of stand-

ing for officials or branches of government to seek

the continual arbitration of this court in their legal

disputes with one another, this court has adopted,

as the law of this circuit, the philosophy decisively

rejected in Valley Forge and Allen v. Wright.

® The majority insists that Allen v. Wright has “nothing to

do with ‘governmental standing,’” but it concedes that Allen

Vv. Wright emphasized that “the traditional standing criteria”

are “grounded in, and are to be applied with reference to, the

principle of separation of powers.” Maj. op. at 11 n.14. The

majority cannot have it both ways. My disagreement with the

majority, put in the technical terms of traditional standing

criteria, is over whether impairment of governmental powers

is a judicially cognizable injury, that is, an “injury in fact”

for purposes of article III. Just as Massachusetts v. Mellon

demonstrates that considerations of federalism limit the cate-

gory of judicially cognizable injury in controversies between

a state and the United States, Valley Forge and Allen v.

Wright show, not only in their general approach but in their

specific application of the “traditional standing criteria,” that

considerations of separation of powers have the same limiting

effect. In Valley Forge the Court held that the unconstitutional

government conduct plaintiffs had alleged did not constitute

a judicially cognizable injury, because “[{a]lthough [they]

claim that the Constitution has been violated, they claim

nothing else. They fail to identify any personal injury suf-

fered by the plaintiffs as a consequence of the alleged consti-

tutional error, other than the psychological consequence pre-

sumably produced by observation of conduct with which one

disagrees.” 454 U.S. at 485. Yet, as the Valley Forge Court

undoubtedly was aware, psychological consequences are fami-

liar bases for claims in other legal contexts. The Supreme

74a

The difference between the two conceptions of the

judicial power may be stated more succinctly. In the

traditional view, it is the necessity to decide a case

that creates a court’s duty to “say what the law is.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

Court’s refusal to treat the psychological effects of allegedly

unconstitutional government conduct as judicially cognizable

“can only mean that the Court perceives that to confer stand-

ing in such cases would impermissibly alter its function.”

Vander Jagt, 699 F.2d at 1178 (Bork, J., concurring).

Similarly, in Allen v. Wright, although recognizing that the

stigmatizing injury caused by racial discrimination will con-

fer standing in some circumstances, 104 S. Ct. at 3327, the

Court held that the plaintiffs did not have standing because

they were not personally subject to the discrimination they

challenged. Jd. To treat this ‘‘abstract stigmatic injury” as

cognizable, the Court stated, would transform the federal

courts into “no more than a vehicle for the vindication of the

value interests of concerned bystanders.” Jd. (quoting United

States v. SCRAP, 412 U.S. 669, 687 (1973) ).

The Allen v. Wright Court’s treatment of the “fairly trace-

able” requirement even more clearly takes a separation-

of-powers approach. The “fairly traceable” requirement “‘ex-

amines the causal connection between the assertedly unlawful

conduct and the alleged injury.” 104 S. Ct. at 3326 n.19. Yet,

though the Court recognized that the challenged IRS tax-

exemption practices might make some difference to the ability

of plaintiffs’ children to receive a desegregated education, and

though it conceded that that harm is not only judicially cog-

nizable but “one of the most serious injuries recognized in our

legal system,” id. at 3328, it nonetheless held that the causa-

tion requirement was not met. Why? Because, the Court said,

“we rely on separation of powers principles to interpret the

‘fairly traceable’ component of the standing requirement.” Jd.

at 3330 n.26. It is evident, then, that the majority’s assertion

that Allen v. Wright is irrelevant to governmental standing is

unsupportable, and ignores both that opinion’s general ap-

proach to the purposes of the standing doctrine and its appli-

cation of the technical standing criteria.

ee ee ee ees ed

75a

(1803). In the new view, it is the court’s desire to

pronounce upon the law that leads to the necessity to

create a case. This is a case created by the court.

There would be no case or controversy here but for

fabrication of the doctrine of congressional standing.

The court has fashioned a doctrine, in contradic-

tion of Allen v. Wright, that transforms it from a

tribunal exercising its powers “only in the last resort,

and as a necessity” to a governing body for the entire

federal government, available upon request to any

dissatisfied member of ihe Legislative, Executive or

Judicial Branch. Plainly, the courts of this circuit,

if no other, are now not the last but the first resort.

We have abandoned concern that our performance

be “consistent with a system of separated powers”

for a role of continual and pervasive intrusiveness

into the relationships of the branches and, indeed, re-

lationships within the branches. Nor can it be said

even that the disputes we invite are those “tradi-

tionally thought to be capable of resolution through

the judicial process,” for no one ever thought, until

we did, that courts should step directly between the

’ other branches and settle disputes, presented in the

abstract, about powers of governance. Moreover, as

Alexander M. Bickel said, “the ‘standing’ and ‘case’

requirement creates a time lag between legislation

and adjudication, as well as shifting the line of

vision. Hence it cushions the clash between the

Court and any given legislative majority ... .”

A. Bickel, The Least Dangerous Branch 116 (1962).

In this respect, the standing requirement is like the

requirement of ripeness, another of the traditional

aspects of dispute resolution through the judicial

process.

76a

Congressional standing, which must expand into

governmental standing for the President, the judici-

ary, and the states, if its rationale is honored, com-

pletely dispenses with the traditional, limited func-

tion of the judiciary and violates every one of the

criteria for constitutional standing laid down by the

Supreme Court in Allen v. Wright.

D.

Just as Allen v. Wright teaches that standing re-

quirements are built around the constitutional con-

cept of “separation of powers,” Massachusetts “v.

Mellon suggests that those same requirements also

play a vital part in the parallel constitutional concept

of federalism. As separation of powers and federal-

ism apply in a context like this one, the fundamental

consideration appears to be the need to limit the role

of the courts in the interplay of our various govern-

mental institutions. The role of the courts is lim-

ited, not excluded, since a person denied a monetary

benefit or other concrete interest could invoke the

authority of the courts by asserting that a bill had

become law because of the invalidity of a pocket veto.

The difference between a judicial function limited by

the doctrine of standing and one not so limited lies

in the relative dominance of the judicial branch, in

the timing of judicial action, and in the number of

constitutional principles generated that curb the pow-

ers and freedoms of other governmental units.

As Judge Scalia recently observed, “[t]he degree

to which the courts become converted into political

forums depends not merely upon what issues they are

permitted to address, but also upon when and at

whose instance they are permitted to address them.”

Scalia, swpra, 17 Suffolk U.L. Rev. at 892. A federal

elie Steet pete =

77a

judiciary that is available on demand to lay down the

rules of the powers and duties of other branches and

of federal and state governments will quickly be-

come the single, dominant power in our governmental

arrangements. The concept of the fragmentation of

power, upon which both the ideas of the separation

of powers and of federalism rest, will be, if not

destroyed, at least very seriously ery ded. See gener-

ally The Federalist No. 51, at 351 (J. Madison)

(J. Cooke ed. 1961) (explaining that both separa-

tion of powers and the division of power between

state and federal governments serve io protect the

liberty of the governed by dividing the power of

government). A majority of Supreme Court Justices

will have something very like the power to govern

the nation by continuously allocating powers and in-

hibitions to every other governmental institution. As

Chief Justice John Marshall put it in a speech to

Congress:

A case in law or equity was a term well under-

stood, and of limited signification. It was a con-

troversy between parties which had taken a

shape for judicial decision. If the judicial power

extended to every question under the constitu-

tion, it would involve almost every subject proper

for legislative discussion and decision; if to ev-

ery question under the laws and treaties of the

United States, it would involve almost every sub-

ject on which the executive could act. The divi-

sion of power which the gentleman had stated,

could exist no longer, and the other departments

would be swallowed up by the judiciary.

Speech of the Honorable John Marshall to the United

States House of Representatives, 18 U.S. (5 Wheat.)

78a

Appendix at 3, 16 (1820). The concept of standing

prevents this undesirable centralization of authority

by severely limiting the occasions upon which courts

are authorized to lay down the rules for governments

and institutions of government.

Standing requirements, like the requirement of

ripeness, also delay the invocation of judicial power.

This means that there is time for the real impact of

laws and actions to become clear, thus making the

constitutional inquiry less abstract and more focused.

The law is given a cha: ce to go into effect and have

some impact upon persons in the society so that its

constitutionality can be judged according to its real

effects uron real persons in real circumstances. The

courts are enabled to think about real interests and

claims, not words. Constitutional adjudication should

operate upon the basis of realities, not general propo-

sitions.

A firm standing concept also decreases the number

of occasions upon which courts will frame constitu-

tional principles to govern the behavior of other

branches and of states: There will thus be fewer

constitutional principles of that sort in the system.

That, too, is a benefit. The business of government

is intensely practical and much is accomplished by

compromise and accommodation. The powers of the

branches with respect to one another, as well as the

reciprocal powers of the federal and state govern-

ments, ebb and flow as the exigencies of changing cir-

cumstances suggest. It is proper and healthful that

this should be so. These matters should not be always

setiled at the outset by declarations of abstract prin-

ciple from an isolated judiciary not familiar with the

very real and multitudinous problems of governing.

Fluid relationships should not be frozen and the play

79a

removed from the joints of government. That is pre-

cisely the tendency that must come into being, how-

ever, if elimination of standing requirements permits

the explosive proliferation of constitutional declara-

tions about governmental powers.

Our democracy requires a mixture of both princi-

ple and expediency. As Professor Bickel put the

matter:

[T]he absolute rule of principle is... at war

with a democratic system. ...

No society, certainly rot a large and hetero-

geneous one, can fail in time to explode if it is

deprived of the arts of compromise, if it knows

no ways of muddling through. No good society

can be unprincipled; and no viable society can be

principle-ridden.

A. Bickel, supra, at 64. While all branches of gov-

ernment are obliged to honor the Constitution, the

declaration of constitutional principle with binding

effect is primarily the task of the federal courts. If

the federal courts can routinely be brought in to

branches of the federal! government disagree, every

time the federal and the state governments contend,

then we will indeed become a “principle-ridden,” in

fact a judge-ridden, society. Traditional standing

requirements are a principal barrier between us end

that unhappy condition.

The arguments just made indicate that, except

where a conventional lawsuit requires a judicial res-

olution, much of the allocation of powers is best left

to political struggle and compromise. Indeed, it was

to facilitate and safeguard such a continuing process

that the checks and balances of the Constitution were

created. It was to allow room for the evolution of

80a

the powers of various offices and branches that the

Constitution’s specification of those powers was made

somewhat vague. The Framers contemplated organic

development, not a structure made rigid at the out-

set by rapid judicial definition of the entire subject

as if from a blueprint. The majority finds this plan

inadequate and the idea of political struggle between

the political branches distasteful, at best “time-con-

suming,” at worst involving “retaliation.” Maj. op.

at 16. Just so. That is what politics in a democracy

is and what it involves. It is absurd to say, as the

majority does, that a “political cure seems to us

considerably worse than the disease, entailing, as it

would, far graver consequences for our constitutional

system than does a properly limited judicial power

to decide what the Constitution means in a given

case.” Id. That is a judgment about how the Con-

stitution might better have been written and it is

not a judgment this or any other court is free to

male. Moreover, I know of no grave consequences

for our constitutional system that have flowed from

political struggles between Congress and the Presi-

dent. This nation got along with that method of re-

solving matters between the branches for 185 years,

until this court discerned that the nation would be

better off if we invented a new role for ourselves.

And, of course, it is true that matters of government

will be much neater, if less democratic, to the extent

that judges undertake to decide them in the first

instance. One must not, furthermore, take seriously

the majority’s promise that this court’s congressional

standing doctrine “will help to preserve, not defeat,

the separation of powers.” Maj. op. at 16. As I have

shown, there is no principled way to limit the judicial

power the majority would have us take for our own,

8la

and the result must inevitably lead to the destruction,

not the preservation, of the separation of powers.

As I show next, those who framed, proposed, and

ratified our Constitution chose a different mixture of

principle and compromise for our polity, a different

process of growth, struggle, and accommodation when

they chose the role to be played by courts.

ITI.

Though we are obligated to comply with Supreme

Court precedent, the ultimate source of constitutional

legitimacy is compliance with the intentions of those

who framed and ratified our Constitution. The doc-

trine of congressional or governmental standing is

doubly pernicious, therefore, because it flouts not

only the rules enunciated and applied by the Supreme

Court but the historical meaning of our basic docu-

ment as well. 7".e criteria of Allen v. Wright are not

simply Court-made; they reflect and express the de-

sign of the Framers of the Constitution. No other

conclusion is possible from a consideration of what

the Framers did and did not do.

At the outset of the Constitutional Convention,

Governor Randolph presented a series of resolutions

framed by the Virginia delegation and commonly

called the Virginia Plan. As Farrand says, “[t]hese

resolutions are important, because amended and ex-

panded they were developed step by step until they

finally became the constitution of the United States.”

M. Farrand, The Framing of the Constitution of the

United States 68 (1913). The eighth resolution pro-

posed that the new national legislature be controlled

by placing a veto power in a Council of Revision con-

sisting of the executive and “a convenient number of

the National Judiciary.” 1 M, Farrand, The Records

82a

of the Federal Convention of 1787, at 21 (1st ed.

1911). A Council so composed would be controlled

by the votes of the judiciary, and the latter would

in that way heavily influence, and often control, the

relationship between the President and Congress. By

vetoing or refusing to veto, the judiciary could up-

hold one branch against the other and make itself

the umpire of the constitutional system, not in the

last resort or as a necessity, but on a continuing,

front-line basis. The judiciary would, as well, be

drawn up immediately next to the legislative process

and decide what was to be law and what was not

on the basis of abstract reasoning, without the ben-

efit conferred by the passage of time, the cooling of

passions, and an issued framed in a concrete factual

setting.

We do not, of course, know all of the reasons why

the members of the Convention repeatedly defeated

the proposal for a Council of Revision.” But we do

1 The Council of Revision was initially rejected when

Gerry’s motion “which gave the Executive alone without the

Judiciary the revisionary control on the laws” was adopted.

1 M. Farrand, The Records of the Federal Convention of 1787,

at 104 (1st ed. 1911) (June 4, 1787). On three occasions

thereafter Madison and Wilson renewed the proposal for the

Council of Revision, each time without success. 1 M. Farrand,

supra, at 138, 140 (June 6, 1787) ; 2 M. Farrand, supra, at 73,

80 (July 21, 1787); 298 (Aug. 15, 1787). Gerry raised the

objection that the power of judicial review was sufficient to

protect the judiciary from “encroachments on their own de-

partment,” and protested that review of public policy was no

part of the judicial function. 1 M. Farrand, supra, at 97-98.

King and Dickinson argued in addition that the proposal

would dilute the executive’s unitary character and make it less

accountable for the use to which this power was put. /d. at

139, 140. Strong worried that the judges might be unable to

be impartial in interpreting the laws if they were given a

83a

know the effect the Council would have had upon

our constitutional arrangements and upon the role

of the courts—effects remarkably similar to those that

would result from the final adoption of this circuit’s

doctrine of governmental standing—and we do know

that the idea was rejected.

There are, however, more, and stronger, infer-

ences to be drawn from the work of the Convention

than merely those that may be drawn from the rejec-

tion of the Council of Revision. We know, for ex-

ample, that the Convention drafted article III of the

Constitution in a way that does not contemplate suits

directly between the branches of government. Article

III extends “judicial power” to various categories of

“cases” and “controversies,” which itself indicates

the Framers had in mind a role for the judiciary

similar to the common-law function with which they

were familiar. It is perhaps more noteworthy that

article III creates, as specific, independent categories

of federal judicial power, “controversies” between

states, between a state and citizens of another state,

and so on. Given that listing, it is incredible that

Framers who intended to extend judicial power to

direct controversies between Congress and the Presi-

dent failed to include so important a category in

their recitation.

The drafters, moreover, singled out especially sen-

sitive categories of judicial power for the original

jurisdiction of the Supreme Court. Thus, article ITI

part in making them, 2 M. Farrand, eupra, ac 75, Luther

Martin pointed out that the judges could not be presumed

more expert in legislative affairs than the legislators, id. at 76,

and Ghorum urged that the judges might well sacrifice the

executive rather than support him against the legislature.

Td. at 79.

84a

gives the Supreme Court original jurisdiction over

“all Cases affecting Ambassadors, other public Min-

isters and Consuls, and those in which a State shall

be Party.” Had they contemplated that the federal

courts would regularly supervise relationships be-

tween Congress and the President, the Framers

would undoubtedly have p!aced that class of cases

within the Supreme Court’s original jurisdiction.

That inference is made certain hy the fact that arti-

cle III contemplated that “inferior [federal] courts”

might not be established at all. In fact, federal ques-

tion jurisdiction was not given to the lower federal

courts for almost a century after the framing of the

Constitution. Act of Mar. 3, 1875, ch. 137, $1, 18

Stat. 470, 470. That fact also demonstrates that the

political branches were not to sue each other. The

Framers simply cannot have contemplated that dis-

putes directly between Congress and the President

would be decided in the first instance in any of the

thirteen existing state court systems.

It is notorious that the Constitution nowhere men-

tions any power of judicial review. That fact has

been much bruited in the never-ending debate over

the legitimacy of the power asserted in Marbury v.

Madison. It is entirely conceivable, of course, that

Framers who thought the Constitution would be law,

and who made it supreme law in article VI of the

Constitution, simply assumed that the Constitution

would be applied by the courts when cases arose

requiring it. Indeed, there are a number of com-

ments preserved from the Conventica debates that

suggest this is precisley what some members did as-

sume.” But it is absolutely inconceivable that: Fram-

11 See, e.g., 1 M. Farrand, The Records of the Federal Con-

vention of 1787, at 97 (1st ed. 1911) (remarks of Gerry) ;

85a

ers who intended the federal courts to arbitrate

directly disputes between the President and Congress

should have failed to mention that function or to

have mentioned judicial review at all. The statesmen

who carefully spelled out the functions of Congress

and the President and the details of how the execu-

tive and legislative branches might check each other

could hardly have failed even to mention the judicial

lynchpin of the constitutional system they were creat-

ing—not if they had even the remotest idea that the

judiciary was to play such a central and dominant

role.

The intentions of the Framers need not be derived

entirely from the records of the Constitutional Con-

vention, nor even from the structure and language

of the document itself. Courts may and frequently

do look to evidence of what was said and done imme-

diately after the original act of composition. Con-

sider, for example, Hamilton’s well-known defense

of the institution of judicial review in The Federalist

No. 78. That defense, in essence, is that the limita-

tions on the constitutional powers of Congress “can

be preserved in practice no other wav than through

the medium of the courts of justice; whose duty it

must be to declare all acts contrary to the manifest

tenor of the constitution void.” The Federalist No.

78, at 524 (A. Hamilton) (J. Cooke ed. 1961). It

is important that Hamilton’s discussion of judicial

review is ‘mmediately preceded by a passage in

which he repeatedly emphasizes the comparative im-

potence of the judiciary. The enormous power that

109 (remarks of King) ; 2 M. Farrand, supra, at 76 (remarks

of L. Martin) ; 93 (remarks of Madison) ; 299 (remarks of

Gouverneur Morris). Bui see 2 M. Farrand, supra, at 298

(remarks of Mercer) ; 299 (remarks of Dickenson).

86a

the judiciary would acquire from jurisdiction over

inter- and intra-branch disputes would have made a

mockery of his-quotation of Montesquieu to the effect

that “of the three powers above mentioned [the oth-

ers being the legislative and the executive], the JU-

DICIARY is next to nothing.” Jd. at 523 n.* (quot-

ing Spirit of Laws, vol. 1, at 186). Had Hamilton

even suspected that disagreements between the pop-

ular branches over their respective powers were

“cases” or “controversies” within the meaning of

article III, it is not to be believed that he would

have described the judiciary as “from the nature of

its functions, . . . always . . . the least dangerous to

the political rights of the constitution... .” Jd. at

522. In fact, the judiciary w

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