Amicus Curiae Brief — Burke v. Barnes

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FRANK G. BURK=, ACTING ARCHIVIST OF THE

UNITED STATES, AND RONALD GEISLER,

EXECUTIVE CLERK OF THE WHITE HOUSE,

Petitioners,

Vv.

MICHAEL D. BARNES, ET AL.,

Respondents.

On Petition For a Writ of Certiorari

United States Court of Appeals for the

District of Columbia Circuit

BRIEF OF AMICI CURIAE SENATOR

JOHN MELCHER AND REPRESENTATIVES

MIKE SYNAR AND CHARLES E. SCHUMER

David C. Vladeck

(Counsel of Record)

Alan B. Morrison

Public Citizen Litigation Group

Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

(202) 785-3704

Attorneys for Amici Curiae Senator

John Melcher and Representatives

Mike Synar and Charles E. Schumer

September 6, 1986

CAS".LAS PRESS INC. — 1717 K STREET NW WASHINGTON DC — 223-1228

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TABLE OF CONTENTS

Page

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a eV edb Nake dnewd Keevente ae l

I. The Senate and The House Have Standing............. 3

Il. The Standing of individual Members Of Congress To

Sue the Executive Branch Is A Complex Question

ET PEIN, bbb 'd'g Vee d ee ser hnee se css 6

eat winee ewe does scence dhs veuesees 11

TABLE OF AUTHORITIES

Cases: Page

American Federation of Government Employees v. Pierce,

ee ee es Gas WU 6s é ov 0 ches vubcansueun 6

Baker v. Carr,

A PEED. 5 6 cio 8cuseeeasvadnawneeuaee 5

Bond v. Floyd,

i L, . . 6c ecscatvcewovbuceeeaune 5

Bowsher v. Synar,

106 S. Ct. 3181 (1986),

affirming, 626 F.Supp. 1374 (D.D.C.)................ 10

Coleman vy. Miller,

Ns os) o dnc neue ovadarenbaeunen 3

Committee for Monetary Reform v. Board of Governors,

FR ie Gee BUMP. onc ccc ccccvcccccess 8, 9

Dennis v. Luis,

Pe GG DOOD. 6 sc cuccccvcvevecceovant 8

Edwards v. Carter,

580 F.2d 1055 (D.C. Cir.),

cert. denied, 436 U.S. 907 (1978). ... 20.0.0... 0c eee. 7

Goldwater v. Carter,

617 F.2d 697 (D.C. Cir.)(en banc),

vacated & remanded, 444 U.S. 996 (1979)......... eS

Marbury v. Madison,

Pe Oe ED OOP CROUOD. . oc ccccccccccccevcnce 5

Marsh v. Chambers,

I 6

Melcher v. Federal Open Market Committee,

Civil Action No. 84-1335

(D.D.C., Onder of Sune S$, 1986)... 0.2... cece cee eee 8

Moore v. United States House of Representatives,

733 F.2d 946 (D.C. Cir. 1984)..........00..... 00000 4

Powell v. McCormack,

I nk ison wav nd vonbakeceoktesael 6

Pressler v. Blumenthal,

Re geen). + 8

Reuss v. Balles,

584 F.2d 461 (D.C. Cir.),

cert. denied, 439 U.S. 997 (1978). ..........

Riegle v. Federal Open Market Committee,

656 F.2d 873 (D.C. Cir.),

cert. denied, 454 U.S. 1082 (1982)..........

United States v. AT&T,

551 F.2d 384 (D.C. Cir. 1976).............

United States v. Ballin,

cc ccsescccscccccess

United States v. Nixon,

418 U.S. 683 (1974)... . 0.6... eee eee eee

Vander Jagt v. O'Neill,

699 F.2d 1166 (D.C. Cir.),

cert denied, 464 U.S. 823 (1983)...........

Williams v. Phillips,

360 F. Supp. 1363 (D.D.C.),

stay denied, 482 F.2d 669 (D.C. Cir. 1973)

Constitutional Provisions:

Miscellaneous:

21 Weekly Comp. of Pres. Doc. 1499

(December 16, 1985). ........ 2c eee eee eeee

Page

IN THE

Supreme Court of the United States

October Term, 1985

No. 85-781

FRANK G. BURKE, ACTING ARCHIVIST OF THE

UNITED STATES, AND RONALD GEISLER,

EXECUTIVE CLERK OF THE WHITE HOUSE,

Petitioners,

Vv.

MICHAEL D. BARNES, ET AL.,

Respondents.

On Petition For a Writ of Certiorari

United States Court of Appeals for the

District of Columbia Circuit

BRIEF OF AMICI CURIAE SENATOR

JOHN MELCHER AND REPRESENTATIVES

MIKE SYNAR AND CHARLES E. SCHUMER

This brief is filed on behalf of three members of Con-

gress — Senator John Melcher and Representatives Mike Synar

and Charles E. Schumer —who are concerned about the argu-

ment in petitioners’ briefs, and in Judge Bork’s dissenting opi-

nion in the court of appeals, that individual members of Con-

gress have no standing to challenge the President’s attempted

pocket veto of H.R. 4042.' Amici’s concern is heightened by the

fact that petitioners’ brief appears to be a broad-scale attack on

the standing of individual legislators to bring any suit to

' This brief is filed with the consent of the parties. Letters of Consent have been

filed with the Clerk of the Court.

challenge the action of other governmental officials or bodies as

an unlawful infringement on the official power of a Senator or

Representative. If accepted, petitioners’ theory would close the

courthouse door to members of Congress.

In amici’s view, there is no reason for the Court to discuss, let

alone decide, the issue of the standing of individual con-

gressmen. First, as respondents and Judge Bork recognized, at

least in this case, the standing of the Senate and the leadership of

the House, on the one hand, and of individual members, on the

other, are identical. All of the respondents have alleged precisely

the same harm—.e., that the President’s purported pocket veto

has resulted in the Executive's failing to publish, preserve, and

implement H.R. 4202, thereby depriving both Houses of Con-

gress of their constitutional roles in the enactment of H.R. 4202,

and, at the same time, nullifying the votes of ,the individual

legislators who supported that bill. Accordingly, since the stand-

ing of individual legislators is based on the same theory asserted

by the Senate and by the House leadership, acting collectively

on behalf of the individual members, there is no reason for the

Court to consider their standing separately.

Second, this case is an inappropriate vehicle for a full-scale

exploration of the law of the standing of members of Congress

because the standing claims asserted here are very different

from those raised in many of the other contexts in which the

issue has been presented. For over a decade, individual

legislators have brought suits in a wide range of areas distinct

from the purely law-making context at issue here. These include

suits to protect the rights of individual legislators to participate

fully in the legislative process, to safeguard the participation of

the Senate in the appointment of Officers of the United States

and in the ratification of Treaties, to preserve the House’s role in

originating legislation to raise revenues, and, most recently, to

challenge the statutory budget reduction mechanism in the

Balanced Budget and Emergency Deficit Control Act of 1985

(known as the Gramm-Rudman-Hollings Act).

In each of these areas, the question of the standing of in-

dividual legislators has turned on the nature of the process in-

volved (such as providing the President with advice and consent

in the appointment of Officers of the United States) and the ex-

tent to which the legislator has been deprived of a right conferred

by the Constitution to participate in that process. And in each of

these areas, the lower courts have been sensitive to the separa-

tion of powers concerns which form the cornerstone of peti-

tioners’ standing attack, but have often dealt with those concerns

through application of related justiciability doctrines, such as

ripeness, political question, and equitable discretion. Amici sub-

mit that, given the markedly different questions raised in each of

these contexts, and the fact that there is no need for the Court to

consider the standing of individual legislators in this case, the

Court should reject petitioners’ suggestion that the Court engage

in a wholesale review of the standing of members of Congress.

I. The Senate And The House Have Standing.

This action was initially brought by thirty-three members of

the House of Representatives. In the district court, the United

States Senate and the Bipartisan Leadership Group of the House

of Representatives, composed of ranking leaders from both par-

ties, were granted leave to intervene. In anici’s view, there can

be no doubt that the institutional respondents—the Senate and

the leadership of the House—have standing to maintain this ac-

tion. The President’s purported pocket veto of H.R. 4204 caused

direct and tangible harm to the participation of both Houses in

the lawmaking process, since Article I vests the lawmaking

power in these bodies. Therefore, if there is an improper exer-

cise of the pocket veto power by the President, it directly in-

fringes on Congress’ constitutional right to enact legislation. As

a result, the institutional respondents have plainly suffered an

injury to the lawmaking powers that they have been assigned by

the Constitution, and that injury is more than sufficient to confer

standing. See Goldwater v. Carter, 444 U.S. 996, 998-1002

(1979)(Powell, J., concurring). Cf. Coleman v. Miller, 307 U.S.

433 (1939). Because this argument will be fully developed in

the briefs of the respondents, amici will not restate it here.

However, there are three observations amici wish to make

regarding petitioners’ standing argument.

First, contrary to the argument that runs throughout peti-

tioners’ brief, the injury suffered by respondents here is not the

same as in those cases in which a President simply refuses to

Carry out a law which everyone agrees has been validly enacted.

In such a case, Congress, at least in theory, can resort to the

power of impeachment to remedy its grievances. But that alter-

native cannot be relied on here, where, even if respondents

believe that the President is violating the Constitution, they have

no basis for questioning his good faith in exercising the pocket

veto. Thus, the injury here is distinctly one suffered by the two

Houses which voted for H.R. 4202, and they have a right to go

to court to vindicate their injury and to prevent its recurrence.

Indeed, as a practical matter, Congress has no alternative.

Second, the separation of powers concerns raised by peti-

tioners are largely illusory. While the lower courts have often

determined that members of Congress have standing to bring an

action, the courts have almost as frequently found the legislator’s

claims to be non-justiciabie for other reasons, or have invoked

the doctrine of equitable discretion to avoid consideration of the

merits. See, e.g., Moore v. United States House of Representatives,

733 F.2d 946 (D.C. Cir. 1984); Riegle v. Federal Open Market

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

1082 (1982); Vander Jagt v. O'Neill, 699 F.2d 1166 (D.C. Cir.),

cert. denied, 464 U.S. 823 (1983). Thus, while there have been a

number of cases brought by members of Congress that have

overcome the standing hurdle, there have been only a handful of

decisions on the merits. Therefore, while reaching to decide the

congressional standing issue raised by petitioners may un-

necessarily foreclose legitimate lawsuits by lawmakers, refrain-

ing from deciding the issue will by no means threaten the

balance of power among the branches of government.

Lastly, stripped of its rhetoric, petitioners’ argument seeks to

convert what are, in essence, concerns over respect for the

separation of powers principles embodied in the Constitution

into a standing argument. Dismissal of this action is warranted,

petitioners claim, in order to preserve the equilibrium among

the branches established by the Constitution, and to ensure that

political give and take—not judicial rule—is the sole tool for

resolving inter-branch disputes. In so arguing, it is petitioners,

not respondents, who seek a change in the law of justiciability.

This Court, over 180 years ago in Marbury v. Madison, 5 US. (1

Cranch) 137 (1803), made it clear that cases such as

this—direct constitutional challenges to Executive action—were

justiciable. And nearly twenty-five years ago, in Baker v. Carr,

369 U.S. 186, 217 (1962), the Court laid down the standards to

guide it in determining whether a particular political question

was fit for judicial resolution. ;

Petitioners’ standing argument, if accepted, fundamentally

undermines Marbury and Baker, and jeopardizes the ability of

government to function in accordance with the Constitution. In

no case cited by petitioners or the dissent below did courts in-

tervene and issue a ruling until the governmental parties had

reached an impasse that did not appear to be amenable to

political resolution, as this case illustrates. Unless the courts re-

main open to review respondents’ claim, serious allegations of

unconstitutional action by the Executive would go unreviewed.

The refusal of the courts to even consider a charge that the

President has disregarded his constitutional duty to preserve,

publish, and implement a law is hardly a trivial matter. At the

very least, it raises questions about the viability of the law-

making system spelled out in ihe Constitution and invokes the

specter of the federal government brought to a halt by the in-

transigence of the President with regard to his duty under Article

II to see that the laws are faithfully executed. Thus, to adopt the

standing theory of the petitioners, this Court would have to

retreat from its long-established view that interpretation of the

Constitution does not imply a lack of respect for a coordinate

branch; rather, “‘{i]t is, emphatically, the province and the duty

of the judicial branch to say what the law is.” Movoury, supra at

176. See United States v. Nixon, 418 U.S. 683, 703 (1974);

Goldwater v. Carter, 444 U.S. 996, 1001 (1979) (Powell, J.,

concurring).

Il. The Standing Of Individual Members of Con-

gress To Sue the Executive Branch Is A

Complex Question Not Presented In This case.

Amici urge the Court not to analyze separately the standing of

the individual legislators. In order to highlight the reasons why

the Court should be reticent to use this case as a vehicle to ex-

plore tie broader question of the standing of individual

legislators, we will briefly discuss some of the other contexts in

which iegislators have turned to the courts to vindicate their

constitutionally protected interests.

At the outset, it is useful to distinguish this case—where the

respondents’ asserted injury relates to their lawmaking function

under Article I, § 7—from cases where the claim of harm relates

either to a legislator’s ability to participate fully in the legislative

process or to preserve a legislator’s role in an essentially Ex-

ecutive process, such as the confirmation of federal officials.

In the former category, courts have often recognized the right

of legislators to bring suit to safeguard their prerogatives as

members of Congress. Thus, for example, in Vander Jagt v.

O'Ne’ |, 699 F.2d 1166 (D.C. Cir.), cert. denied, 464 U.S. 823

(1983), the court of appeals ruled that members of the House of

Representatives had standing to bring suit against the House

leadership challenging certain rules purportedly implemented to

further entrench the majority party. And, in United States v.

AT&T, 551 F.2d 384 (D.C. Cir. 1976), the court held that a

member of Congress had standing to intervene in a case brought

by the Executive Branch to enjoin AT&T from complying with

a subpoena issued by a House Subcommittee to assert the in-

terests of the House of Representatives in preserving its in-

vestigatory powers. See also American Federation of Government

Employees v. Pierce, 697 F.2d 303, 304-306 (D.C. Cir. 1982).

Cf. Marsh v. Chambers, 463 U.S. 783, 786 n.4 (1983); Powell v.

McCormack, 395 U.S. 485 (1969); Bond v. Floyd, 385 U.S. 116

(1966); United States v. Ballin, 144 U.S. 1 (1892).

As is clear, the questions relating to the standing of legislators

to bring challenges of this sort are very different from those posed

here. In each of these cases, institutional interests of both in-

dividual legislators and Congress as an institution were at stake,

but not necessarily susceptible to resolution through the normal

course of political compromise. Amici urge the Court to avoid a

ruling that closes the door to the courthouse once and for all to

resolve disputes of this sort.

There are also a number of cases involving chalienges by in-

dividual legislators alleging that they have been improperly ex-

cluded from participating in certain functions which are not

law-making, but which are nonetheless expressly assigned to

Congress under the Constitution. To begin with, there have been

a number of cases in which Senators have brought suit to

preserve their role under Art. II, § 2, of the Constitution in the

approval of Treaties entered into by the United States. Thus, for

example, in Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.) (en

banc), vacated and remanded, 444 U.S. 996 (1979), the court of

appeals ruled that members of the Senate had standing to

challenge the President’s unilateral revocation of a Treaty with

Taiwan, since the Senators had alleged that the President’s ac-

tion had denied them their right to vote on the Treaty revoca-

tion. While this Court’s summary ruling does not fully explicate

the Court’s reasoning, Justice Powell’s concurrence does make it

clear that at least some members of the Court believe that, in

certain situations, Senators could bring suit to challenge

unilateral Executive action alieged to abrogate their right to vote

on either Treaty ratification or revocation. See also Edwards v.

Carter, 580 F.2d 1055 (D.C. Cir.), cert. denied, 436 U.S. 907

(1978)(assuming without deciding that legislators had standing

to challenge use of Treaty power to convey property, including

the Panama Canal, to the Republic of Panama in violation of

Art. IV, § 3, cl. 2, which gives Congress the exclusive power to

dispose of federal property).?

2 There have been a number of other cases brought by members of Congress

challenging other aspects of the Executive's conduct of foreign affairs, including

Crockett v. Reagan, 720 F.2d 1355 (D.C. Cir. 1983)(per curiam); Mitchell v. Laird,

488 F.2d 611 (D.C. Cir. 1973); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir.

1973); Harrington v. Schlesinger, 528 F.2d 455 (4th Cir. 1974); and Harrington v.

Bush, 553 F.2d 190 (D.C. Cir. 1977).

There have also been a number of cases in the appointments

area, where members of the Senate have filed suit to safeguard

their right under Art. II, § 2, cl. 2, to advise and consent to the

appointment of senior federal officers. Thus, for instance, in

Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C.

Cir.), cert. denied, 454 U.S. 1082 (1982), the court of appeals

held that a member of the Senate had standing to challenge the

composition of ue Open Market Committee of the Federal

Reserve System, based on the claim that certain members of the

Committee were acting as Officers of the United States but had

not been confirmed by the Senate. Accord Melcher v. Federal

Open Market Committee, Civil Action No. 84-1335 (D.D.C.,

Order of June 5, 1986)(finding that Senator has standing to

challenge composition of the Committee); but see Reuss v.

Balles, 584 F.2d 461 (D.C. Cir.), cert. denied, 439 U.S. 997

(1978)(challenge to composition of the Committee by

Representative held non-justiciable) and Committee for

Monetary Reform v. Board of Governors, 766 F.2d 538 (D.C. Cir.

1985)(private parties have no standing to challenge composition

of Committee). Similarly, in Williams v. Phillips, 360 F. Supp.

1363 (D.D.C.), stay denied, 482 F.2d 669 (D.C. Cir. 1973), the

court held that Senators had standing to challenge the appoint-

ment of an “acting” agency head as circumventing their right to

participate in the confirmation of a senior federal officer. See

also Pressler v. Simon, 428 F. Supp. 302 (D.D.C. 1978)(three-

judge court)(per curiam), aff'd mem. sub nom. Pressler v.

Blumenthal, 434 U.S. 1028 (1978)(member of Congress had

standing to sue to challenge automatic raise in congressional

salaries under the Ascertainment Clause, Art I, § 6); Dennis v.

Luis, 741 F.2d 628 (3d Cir. 1984) (members of the Senate of the

Virgin Islands had standing to sue to challenge the appointment

of an Acting Commissioner of Commerce after the candidate

had been r2jected on confirmation vote by Senate).

And there has even been one case brought to preserve the

House’s primacy over revenue matters as set forth in the

Origination Clause in Article I, § 2, cl. 1. In Moore v. United

States House of Representatives, 733 F.2d 946 (1.C. Cir. 1984),

members of the House were found to have standing to challenge

the constitutionality of the Tax Equity and Fiscal Responsibility

Act of 1982, on the ground that since the Act was not intro-

duced initially in the House, it violated House members’ rights

to originate and debate all! legislation relating to raising revenue

prior to consideration by the Senate.

As is apparent, the standing issues raised in the Treaty, Ap-

pointments, and Origination Clause cases are quite distinct from

those at issue here. Yet in none of these cases are the interests

asserted “generalized grievances” shared by all Americans, as

petitioners contend. Rather, they are institutional ir erests,

established by the Constitution, and unique to one or both

Houses of Congress. These interests are not self-executing, and

in many cases, neither the House nor the Senate, let alone an in-

dividual congressman, has a ready sanction available in the

event of non-compliance. While the process of political give-

and-take has historically resolved many of the disputes that

have arisen in these areas, there can be no doubt that, on occa-

sion, impasse will be reached, and deadlock will set in. Indeed,

in each of these cases, legislators were seeking protection from

the courts only after a head-on confrontation occurred. Without

the availability of judicial review, it is at least possible that these

important constitutional checks will become nearly unen-

forceable, and that Executive or congressional action in deroga-

tion of these constitutional provisions will be essentially

unreviewable. Thus, for example, following the logic of Commit-

tee for Monetary Reform, Reuss, and Riegle, it is doubtful that

anyone other than a Senator could challenge the composition of

the Federal Open Market Committee. To deprive members of

the Senate of standing to bring such cases—as petitioners

urge—would at least in many cases insulate alleged violations of

the Appointments Clause from challenge. Amici urge the Court

not to take such a drastic step in the course of deciding this case,

but rather to reserve its consideration until these issues are prop-

erly preser.ted for review.

In addition to the cases in which legislators seek to enforce

rights explicitly conferred on them by the Constitution, there are

a number of cases in which members of Congress have brought

suit to challenge the constitutionality of legislation. Obviously,

in many of these suits, the legislator’s standing is no different

than that of other adversely affected members of the public, and

amici do not urge that a different set of rules should apply.

However, there are other cases in which the legislator’s standing

differs markedly from that of the public because the operation

of the statute itself deprives the legislator of his official power.

Recently, a three-judge court in Synar v. United States, 626 F.

Supp. 1374 (D.D.C.)(per curiam), aff'd sub nom. Bowsher v.

Synar, 106 S. Ct. 3181 (1986), upheld the standing of members

of Congress to challenge the mandatory deficit reduction

features of the Gramm-Rudman-Hollings Act. 626 F. Supp.

1381-83. I» so ruling, the court found justiciable the lawmakers’

claims wat the mandatory budget reduction mechanism in the

Act infringed upon their lawmaking powers under Art. I, § 7, to

enact laws regarding federal spending. /d.

While this Court found it unnecessary to reach the question of

the standing of individual legislators, there are two features

about Synar worth noting. First, petitioners’ standing argument

might well have barred the congressional plaintiffs from main-

taining that action. As noted, the principal standing theory

asserted by the legislators was that the Gramm-Rudman Act

would nullify their votes on future appropriation legislation.’

But that is precisely the theory that petitioners contend is inade-

quate to support the standing of an individual member of Con-

gress and that we urge the Court not to address in this case. Se-

cond, the jurisdictional statute at issue in Synar specifically

authorized suits by members of Congress because Congress

itself was uncertain of the constitutionality of its actions. In

cases like Synar, it may be necessary in order to achieve consen-

sus on tie underlying legislation to include provisions that

facilitate immediate and expeditious judicial review, thereby

3 In addition to asserting standing on the basis of their legislative powers, the con-

gressional plaintiffs in Synar alleged that the Gramm-Rudman Act would unconstitu-

tionally result in the cutting of their salaries and the resources of their staffs.

eliminating any non-Article III or prudential bars to adjudica-

tion. Indeed, in Synar, not only was Congress concerned, but the

President also gave more than tacit approval to the Act’s special

review provision by expressly noting in his signing statement

that provision had been made in the Act that doubts about its

constitutionality could be promptly resolved by the courts. 21

Weekly Comp. of Pres. Doc. 1499-1500 (December 16, 1985).

Thus, especially where Congress and the President expressly

contemplate judicial review in cases brought by members of

Congress, this Court should not irrevocably close the courthouse

door to such actions by adopting petitioners’ broad non-

justiciability theory.

CONCLUSION

As the foregoing discussion demonstrates, there are a number

of widely varying contexts in which congressmen have turned to

the Courts to enforce their official rights. This case—which

focuses solely on the lawmaking function of Congress—is not

an appropriate vehicle for undertaking a comprehensive review

of the standing of legislators. Accordingly, amici urge the Court

to put aside for another day the examination of the broad ques-

tion of congressional standing.

Respectfully submitted,

David C. Viadeck