Opposition Brief — Metropolitan Wash. Airports Authority v. Noise Abatement Citizens
Supreme Court brief1991
Ask Donna
What actually matters in this document.
Text
No. 90-906 |
———----- arsine sit |
Iu the Supreme Court of the United States
OCTOBER TERM, 1990
METROPOLITAN WASHINGTON AIRPORTS AUTHORITY,
ET AL., PETITIONERS
U.
CITIZENS FOR THE ABATEMENT OF
AIRCRAFT NOISE, INC.. ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE UNITED STATES
WILLIAM C. BRYSON
Acting Solicitor General
STUART M. GERSON
Assistant Attorney General
DAVID L. SHAPIRO
Deputy Solicitor General
CLIFFORD M. SLOAN
Assistant to the Solicitor (,ene ral
DOUGLAS LETTER
Attorney
Department of Justice
Washington, D.C. 205380
(202) 514-2217
QUESTIONS PRESENTED
The Metropolitan Washington Airports Act of
1986 (49 U.S.C. App. 2451 ef seq.) requires, as a
condition of leasing federally owned airports to a
egional Airports Authority established by the Com-
monwealth of Virginia and the District of Columbia.
that tne Airports Authority create and appoint a
Board of Reviev that has veto We over Ma
\uthority actions, and that consists entirely of Mem-
bers of Congress.
The questions presented
1. Whether a challens
veto nower is u ticiable. “
2 Whethe) the B ( ‘
TABLE OF CONTENTS
Page
Opinions below .__. ae Niiaihciidiietceadndepenens 1
Jurisdiction... 2 es eniaes 1
Ee 2
Introduction and summary of argument ss. aM 10
Argument:
I. The challenge to the constitutionality of the
Roard of Review is justiciable _ n 14
A. Respondents have standing sss) 14
B. Respondents’ claim is ripe . : 17
II. The statutory lease condition requiring the ap-
pointment of Members of Congress is constitu-
tional in the unusual circumstances of this case. 20
A. States may appoint Members of Congress
to state offices... 21
B. Members of Senesens may ~~ hold ethes
federal offices, exercise federal executive
functions, or legislate without bicameralism
and presentment . - 24
C. Although a federal condition that states | ap-
point Members of Congress would be im-
permissible in most circumstances, the con-
dition is not unconstitutional in the limited
circumstances of this case. . 26
Conclusion ................. + GE ee . 38
TABLE OF AUTHORITIES
Cases:
Abbott Laboratories v. Gardner, 387 U.S. 136
(1967) . —_ ” 19, 20
Alaska Airlines, Ine. Vv. Brock, 480 U.S. 678
(1987) | 7 18
Alaska Airlines, Ine. v, Boneven, 766 F.2d 1550
(D.C, Cir, 1985) . 18
Allen v. Wright, 468 US. 737 (1984) e 14
(111)
IV
Cases—Continued: Page
Ameron, Ine. Vv. U.S. Army Corps of Engineers,
809 F.2d 979 (3d Cir. 1986), cert. granted, 485
U.S. 958, cert. dismissed, 488 U.S. 918 (1988). 18
Bowsher Vv. Synar, 478 U.S. 714 (1986) _12, 17, 24, 25, 26
Buckley Vv. Valeo, 424 U.S. 1 (1976) 000 9 10
Carlucci Vv. Doe, 488 U.S. 93 (1988) 31
Clark Vv. Valeo, 559 F.2d 642 (D.C. Cir.), aff’d,
Ts Ce I ceisenencceeteenescensseteetbecstcnceces 19
Cuyler v. Adams, 449 U.S. 433 (1981) 28
Dames & Moore Vv. Regan, 453 U.S. 654 (1981)... 37
Distriet of Columbia v. John R. Thompson Co.,
346 U.S. 100 (1958) 0.0. 28
EEOC v. CBS, Inc., 743 F.2d 969 (2d Cir. 1984). 18
EEOC vy. Hernando Bank, Inc., 724 F.2d 1188
ns a. 18
Hepburn & Dundas v. Ellzey, 6 U.S. 445 (1805) _. 28
Hobson V. Hansen, 265 F. Supp. 902° (D.D.C.
ES SR RL sanes ee eae ORR ET oes eb 28
INS Vv. Chadha, 462 U.S. 919 (1983) ....12, 18, 24, 25, 26, 37
International Paper Co. Vv. Ouellette, 479 U.S. 481
I ea Mia re FS ee er 30
J.W. Hampton Jr., & Co. ' v. United States, 276 US.
394 (1928) | = ScaeeEAa ete enecee 25
Key Vv. Doyle, 434 US. 59 (1977) . a 28
Lake Country Estates, Ine. Vv. Tahoe Regional
Planning Agency, 440 U.S. 391 (1979). ss 2-29
McCulloch v. Maryland, 17 U.S. 316 (1819) 37
Metropolitan R.R. v. District of Columbia, 132
Sy «YN cai ite lee ee 28
Mistretta v. United States, ‘488 US. ‘361 (1989) 37
Muller Optical Co. v. EEOC, 743 F.2d 380 (6th
Cir. 1984) | cea oa 18
Myers V. United States, 272 US. 52 (1926) = 31
Pacific Gas & Elec. Co. v. State Enerqy Resources
Conservation and Dev. Comm’n, 461 U.S. 190
(1983) ............ 19
Regional Rail Reorgeniszation ‘Act Cases, 419 vu. S.
REREAD cn aa ae 17
Rostker v. Goldberg, 453 US. ‘BT (1981) . 37
Seattle Master Builders Ass'n Vv. Pacific N.W.
Elec. Power Co., 786 F.2d 1359 (9th Cir. 1986),
cert. denied, 479 U.S. 1059 (1987) 2.00000. 29
Cases—Continued : Page
Signorelli Vv. Evans, 637 F.2d 853 (2d Cir. 1980). 22, 23
Simon V. Eastern Kentucky Welfare Rights Or-
ganization, 426 U.S. 26 (1976) 16
South Dakota v. Dole, 483 U.S. 203 (1987) 32
Springer Vv. Philippine Islands, 277 U.S. 189
(1928) .... sicamtenieeneceilet taeda ict Ate ieee Coa ee Le, 25, 27
Steward Machine Co. Vv. Davis, 301 U. S. 548
NR Ie aan Mala a gh hale ee LEE weed 32
Valley Forge Christian College Vv. Americans
United for Separation of Church & State Ine.,
GEG UB. G66 (IGGB) 2. ncccccccccccccecccccccnnneececee sees 14
Warth v. Seldin, 422 U.S. 490 (1975)... 16
Wilder v. Virginia Hosp. Ass'n, 110 S. Ct. 2510
| OES 8 ANNE SERA NPs SSE LAR OD 30
Youngstown Sheet & Tube Co. Vv. Sawyer, 343
U.S. 579 (1952) ......... olbiaddicacincsialaasiaiiiciinenatiaieieadlaieds 37
Constitution, statutes and rule:
U.S. Const. :
Art. I:
cee nee RI eel ae 20, 25
| Seca meee 34
I ca A 20
Incompatibility Clauss. ......-20, 21, 22, 24,
25, 26, 30
Ineligibility Clause... _......20, 22, 24, 25,
26, 39
| Soe seauibae naa 29
§ 7, Cl. 2 (Presentment Clause) ees
$ 7, Cl. 3 (Presentment Clause) .. 20, 25
Art. II, § 2, Cl. 2 (Appointments Clause) ____. 20, 28,
29-30
ia hetictecveait taaacesedenata nee 17
Metropolitan Washington Airports Act of 1986,
49 U.S.C. App. 2451-2461 00 passim
49 U.S.C. App. 2451(4) 0. 3
49 U.S.C. App. 2451(5). Ci BS
49 U.S.C. App. 2451(7) PUL 3
49 U.S.C. App. 2453(2) 00 2
49 U.S.C. App. 2454(a) Samuels 2, 38
49 U.S.C. App. 2454(a)-(c) puseens 3
VI
Statutes and rule—Continued:
49 U.S.C. App. 2454(b) (1) 0
49 U.S.C. App. 2454(c) (5) (C)
49 U.S.C. App. 2456 0 rane
49 U.S.C. App. 2456(a) 0
49 U.S.C. App. 2456 (a) (1).
49 U.S.C. App. 2456(b).
49 U.S.C. App. 2456(b) (1). Oe ee
49 U.S.C. App. 2456(e)
49 U.S.C. App. 2456(e)(2)(C).
49 U.S.C. App. 2456(f) 0 austinies
Page
_
ow
49 U.S.C. App. 2456(f) (1) 4 8 88
49 U.S.C. App. 2456(f) (4) (B)
49 U.S.C. App. 2456(f) (4) (C)
49 U.S.C. App. 2456(f)(4)(D)
49 U.S.C. App. 2456(h) 200
Act of 1985, 1985 D.C. Law 6-67 sis
District of Columbia Regional Airports Authority
Act of 1985 Amendment Act of 1987, D.C. Law
AE aa I
District of Columbia Self-Government and Gov-
ernmental Reorganization Act, Pub. L. No. 93-
198, 87 Stat. 774 ay eae ae TE
1985 Va. Actsch.598 ss
1987 Va. Acts ch. 665,§55..... ti i(‘iC;~C~S:S
BG I IID ccesenessiomssememennebassonseccouiacecsessaceninsece, artes
Miscellaneous:
1 W. Benton, 1787: Drafting the United States
Constitution (1986)
vil
Miscellaneous—Continued :
Proposed Transfer of Metropolitan Washington
Airports: Hearings on H.R. 2337 Before the
Subcomm. on Aviation of the House Comm. on
Public Works and Transportation, 99th Cong.
2d Sess. (1986) .... Se a ede Pee
The Federalist Papers No. 56 (J. Madison) (C.
i
Transfer of National and Dulles Airports, Hear-
ings on S. 1017 and S. 1110 Before the
Subcomm. on Aviation of the Senate Comm. on
Commerce, Science and Transportation, 99th
Cong., 2d Sess. 41 (1986) .
Page
33
23
36
Au the Supreme Court of the United States
OCTOBER TERM, 1990
No. 90-906
METROPOLITAN WAS'IINGTON AIRPORTS AUTHORITY,
ET AL., PETITIONERS
v.
CITIZENS FOR THE ABATEMENT OF
AIRCRAFT NOISE, INC., ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. la-
27x) is reported at 917 F.2d 48. The opinion of the
district court (Pet. App, 29a-55a) is reported at
718 F. Supp. 974.
JURISDICTION
The judgment of the court of appeals was entered
on October 26, 1990, The judement was stayed by
order of the court of appeals on December 6, 1990.
Pet. App. 28a This Court granted » petition for
a writ of certiorari on January 14, 1991, The juris-
diction of this Court rests on 28 U.S.C. 1254(1).
(1)
2
STATEMENT
1. Washington National Airport (National) and
Washington Dulles International Airport (Dulles)
are the only federally owned, major-air-carrier air-
ports in the United Siates. From the time they were
opened until 1987, both airports were operated by
the federal government. For many years before 1987,
the government had considered ceding its operational
control of these airports. Pet. App. 2a.
In December 1984, a federal advisory commission
report suggested a long-term lease arrangement be-
tween the federal government and an independent
regional airports authority. Pet. App. 2a-3a. In re-
sponse both Virginia and the District of Columbia
enacted legislation authorizing the creation of a re-
gional airports authority capable of assuming the
oneration of the two airports. See 1985 Va. Acts
ch. 598: District of Columbia Regional Airports Au-
thority Act of 1985, 1985 D.C. Law 6-67, reprinted
at Pet. App. 87a-106a, 119a-139a.
In 1986, Congress passed the Metropolitan Wash-
ington Airports Act of 1986 (the Airports Act), 49
U.S.C. App. 2451-2461, reprinted at Pet. App. 60a-
85a, which authorizes the Secretary of Trensporta-
tion to transfer operating authority over National
and Dulles Airports to a local regional authority
(referred to in the statute as “the Metropolitan
Washington Airports Authority” and “the Airports
Authority’) under an extendable 50-year lease. 49
U.S.C. App. 2453(2), 2454(a), 2459. In its statue
tory findings, Congress recognized, among other
thines, that all other maijor-air-carrier airports in
the United States are operated by state, regional, or
local authorities: that the Executive Branch had
recommended a transfer of authority te a “local
3
State” entity; and that, in its view, control of Na-
tional and Dulles Airports by a regional authority
would facilitate timely improvements needed to meet
growing demand. 49 U.S.C. App. 2451(4), (5)
and (7).
Congress included several conditions on the au-
thority of the Secretary of Transportation to enter
into a lease of the two airports with the Airports
Authority. 49 U.S.C. App. 2454(a)-(e), 2456. The
Airports Authority must have powers granted to it
by Virginia and the District of Columbia, but must
be an independent political subdivision constituted
solely to onerate the local airports. 49 U.S.C. App.
2456(a) and (b). The Airports Authority must also
have a governing Board of Directors composed of
1] members—five chosen by the Governor of Vir-
ginia, three chosen by the Mayor of the District of
Columbia, two chosen by the Governor of Maryland,
and one chosen by the President (49 U.S.C. App.
2456(e)); all but the Presidential appointee must
reside in the District of Columbia metropolitan area.
49 U.S.C. App. 2456(e)(2)(C). The lease itself
must require an annual payment equal to $3 million
in 1987 dollars to the United States Treasury by the
Airports Authority. 49 U.S.C. App. 2454(b)(1).'
The Airports Act also requires that, in order for the
Secretary to have authority to enter into the lease
with the Airports Authority, the Airports Authority
must establish a Board of Review composed entirely
of Members of Congress. The Board of Review is to
be appointed by the Authority’s Board of Directors
from lists of Members of Congress serving on speci-
fied committees of the Senate and the House of Rep-
' The $3 million in 1987 dollars is “computed using the GNP
Price Deflator.” 49 U.S.C. App. 2454(b) (1).
4
resentatives, and one Member at large from either
body alternately. 49 U.S.C. App. 2456(f).° These
lists are to be submitted to the Board of Directors
by the Speaker of the House and the President pro
tempore of the Senate. The members of the Board
of Review ave appointed and serve “in their individ-
ual capacities, as representatives of users of [Na-
tional and Dulles].” 49 U.S.C. App. 2456(f) (1).
Members of Congress from Virginia, Maryland, and
the District of Columbia are disqualified from serv-
ing on the Board of Review. /bid.
Under the statutery conditions for the lease, the
Airports Authority must submit five types of actions
to the Board of Review for possible veto: (1) adop-
tion of the Authority’s annual budget: (2) authori-
zation fox the issuance of bonds; (3) adoption,
amendment, or repeal of regulations; (4) adoption
or revision of any airport master plan; and (5) ap-
pointment of a chief executive officer. 49 U.S.C. App.
2456(f)(4)(B). These proposed actions may be im-
plemented by the Airports Authority if not disap-
proved within 30 days by the Board of Review (or
60 days in the case of the annual budget). If the
Board of Review disapproves an action, the action
shall not take effect. 49 U.S.C. App. 2456(f)(4)(C)
and (D). If the Board of Review is barred from
carrying out its functions as a result of a judicial
order, the Airports Authority lacks power to take
: The Board of Review is to consist of nine members—two
each from (1) the House Public Works and Transportation
Committee: (2) the House Appropriations Committee; (3)
the Senate Commerce, Science, and Transportation Commit-
tee: and (4) the Senate Appropriations Committee; and one
at large from either body on an alternating basis. 49 U.S.C.
App. 2456(f) (1).
5
any of the actions that it would otherwise be required
to submit for review. 49 U.S.C. App. 2456(h).
Before passing the Airports Act, Congress con-
sulted with the Department of Justice regarding the
constitutional validity of several proposed bills. See
J.A, 25-35. The Department analyzed various pro-
posals and concluded that, although “the issue [was]
not free from doubt,” one proposed bill would ‘“with-
stand constitutional scrutiny.” J.A, 35. The version
enacted by Congress and signed by the President
closely resembles that bill.
2. In March 1987, the Secretary of Transportation
signed a lease transferring control of the airports to
the Airports Authority; the lease was also signed by
the Chairman of the Airports Authority, the Gover-
nor of Virginia, and the Mayor of the District of
Columbia. end took effect on June 7, 1987. Pet. App.
163a-189a. The lease provided for the operation of
a Board of Review, as described in the Airports Act.
Id. at 175a-178a.
Two days after the lease was signed, the Airports
Authority adopted bylaws to govern its activities.
Pet. App. 148a-162a. Article TV of the bylaws estab-
lishes a Board of Review and describes its powers
and functions, which are consistent with the provi-
sions in the Airports Act. /d. at 151la-154da.
In early April 1987, Virginia amended its prior
legislation concerning the Airports Authority in
several respects, including an amendment providing
explicit power for the Authority to establish a Board
of Review. See 1987 Va. Acts ch. 665, S$ 5.5, re-
printed at Pet. App. 1lla. In June 1987, the District
of Columbia similarly amended its earlier legislation
in several respects, and, in one of these amendments,
also empowered the Airports Authority to establish
a Board of Review. See District of Columbia Re-
.
fy
gional Airports Authority Act of 1985 Amendment
Act of 1987, D.C. Law 7-18, $ 3(e¢) (2), reprinted at
Pet. App. 143a.
By September 1987, the Airports Authority had
created and appointed the Board of Review. Pet.
App. 6a.
3. In March 1988, the Airports Authority sub-
mitted to the Board of Review a new Master Plan
for National Airport. The Board of Review voted
the followine month not to disapprove it, and the
Airports Authority has becun implementation of the
Plan. The Master Plan provides for construction at
National Airport which will, among other effects,
make it possible for the airport to accommodate
larger aircraft. The size of the terminals and park-
ing facilities will also be significantly expanded.
Pet. App. 6a, 36a, 41a.
4. Jn November 1988, respondents Citizens for the
Abatement of Aircraft Noise, Inc. (CAAN), and two
individual members of CAAN filed this action against
petitioners (the Airports Authority and the Board
of Review). Respondents* alleged that the Master
Plan was “now causing injuries to CAAN and its
members because of increases in noise levels and
safety and environmental problems at National Air-
port and is likely to cause increasing injuries to them
in the future.” J.A. 10. Respondents further alleged
that the Board of Review's power to disenprove \u-
thority actions violates several constitutional provi-
sions and the separation of powers doctrine. [hid,
They therefore sought a declaratory judgement that
the Board of Review’s authority “under 49 U.S.C.
* Although the United States, which intervened in the court
of appeals, is a respondent pursuant to Sup. Ct. Rule 12.4,
references in this brief to respondents are to CAAN and the
two individual plaintiffs.
7
§$ 2456(f)(4)” is unconstitutional and void, and an
injunction preventing the Board from exercising its
review authority and taking any other actions under
the Act: they also sought a declaratory judgment
that the Airports Authority is forbidden to imple-
ment any actions required to be submitted to the
Board, and an injunction preventing the Airports
Authority from implementing the Master Plan for
National Airport. J.A. 10.
5. In July 1989, the district court granted sum-
mary judgment to petitioners. upholding the validity
of the Airnorts Authority structure. Pet. App. 55a.
The district court first ruled that this case is ripe,
despite the fact that the Board of Review’s veto au-
thority had not been exercised with respect to the
Master Plan. Pet. App. 37a-39a.'. The court also
concluded that respondents have standing because an
increase in air traffic at National Airport could not
occur Without the improvements provided for by the
Master Plan. /d. at 59a-42a. Alternatively, the court
found standing because respondents’ influence over
decisions regarding National Airport has been di-
minished by the ban against local representation
among the Members of Congress on the Board of
Review. /d. at 422-43a.°
Turning to the merits, the district court first re-
jected the contention that the Board of Review is
‘The Board of Review has exercised its veto power once,
on an unrelated matter (a proposal concerning the Dulles
Access Road). Pet. App. 38a; J.A. 83-84, 91-92.
* The court also rejected petitioners’ claim that respondents
should be required to exhaust their administrative remedies
because respondents were participants in an ongoing study
of noise problems being conducted by the Authority. Pet.
App. 39a.
8
merely “an arm” or “an agent” of Congress. The
court noted that the Airports Authority appoints the
members of the Board of Review and can remove
them; that the Board of Review members serve in
their individual capacities as representatives of users
of the airports (49 U.S.C. App. 2456(f)(1)): and
that, in order for the Secretary to enter into a lease,
the Airports Authority must be independent of the
federe! eovernment as well as Virginia and the Dis-
trict of Columbia. It concluded that the Board of
teview is therefore not an agent of Congress for
federal separation of powers purposes. Pet. App.
16a-50a.
The district court further rejected the claim that
the Board of Review was “mandated” by federal law.
The court emphasized that both Virginia and the Di--
trict of Columbia voluntarily created the Airports
Authority and entered into the lease with the federal
government. Pet. App. 50a-5la. Accordingly, the
Board of Review “derives its existence from state
law, not federal law.” /h’d. The court thus con-
cluded that, in view of the state law character of
the Airports Authority and its Board of Review,
there is no conflict with constitutional requirements
for federal offices and the exercise of federal power.
Id. at 5la-54a.
6. Respondents appealed, and, pursuant to 28
U.S.C. 2403(a), the Attorney General intervened on
behalf of the United States to defend the statutory
scheme. A divided panel of the District of Columbia
Circuit reversed the judement of the district court
and concluded that the Board of Review is uncon-
stitutional.
The court first concluded that respondents’ claims
are justiciable. Pet. Apn. Sa-9a. Finding that the
9
issue “warrant[s] little discussion,” it agreed that
the case is ripe. Jd. at 9a." The court then deter-
mined that respondents’ allegations of injury from
noise, air pollution, and risk of injury are “ ‘fairly
traceable’ ” to the Master Plan, which would provide
for a “significant increase in air traffic.” /bid. The
court thus found it unnecessary to address the dis-
trict court’s alternative basis for standing. Jhid.
On the merits, the majority first rejected the argu-
ment that the Board of Review is not exercising fed-
eral power. The court emphasized that the authoriz-
ing statutes of Virginia and the District of Columbia
do not spell out the powers and functions of the
Board of Review in detail; instead, the federal Air-
ports Act contains specific requirements concerning
the Board. Pet. App. 10a-13a. The court concluded
that the Board thus carries out “ ‘significant au-
thority pursuant to the laws of the United States’”’
(Pet. App. 10a, quoting Buckley v. Valeo, 424 U.S. 1,
126 (1976)), because the federal statute defines the
character of the Board of Review. Pet. App. 19a-11a.
Having determined that federal power is being
exercised, the court of appeals held that the Board
of Review is unconstitutional on general separation
of powers grounds. It concluded that the members
of the Board of Review are implementing executive
functions and are subject to congressional control.
Pet. App. 15a-19a. Contrary to the district court’s
analysis, the court also emphasized that, in its view,
Congress retains removal power over the members of
the Board of Review because it can remove Members
of Congress from the pertinent congressional commit-
“The court also summarily agreed that respondents were
not required to exhaust administrative remedies. Pet. App.
9a.
10
tees, thereby makine them ineligible for continued
service on the Board. Jd. at 18a.’
Judge Mikva dissented. He questioned the court’s
characterization of the Board as a federal entity and
concluded that “[t]he fact that the federal Act au-
thorizing the transfer of the airports to the Authority
contemplates the Board’s creation does not alter the
Board’s fundamental state parentage.” Pet. App.
22a. Judge Mikva then concluded that, even if the
entity is exercising federal power, it is not uncon-
stitutional. /d. at 22a-26a. Judge Mikva also dis-
agreed with the majority’s removal analysis. He con-
cluded that the Airports Act should be read to vest
removal authority over Board of Review members
with the Airports Authority Board of Directors both
because the appointment authority lies with the Air-
ports Authority Board of Directors, and because
statutes should be construed to avoid constitutional
problems. /d. at 24a-26a.
INTRODUCTION AND SUMMARY OF ARGUMENT
This case presents a novel and difficult issue—the
validity of a federal lease condition, readily accepted
by state authorities, requiring the appointment of
Members of Congress to a state-created entity. Al-
though we believe that such a condition would in most
instances be unconstitutional, we conclude that it is
permissible in the unusual circumstances at issue
here.
1. The question of justiciability in this case raises
issues of hoth standing and ripeness. Although these
? Despite its holding, the court directed that “actions taken
by the Board to this date not be invalidated automatically on
the basis of our decision.” Pet. App. 19a (citing Buckley v.
Valeo, 424 U.S. at 142).
11
issues are not free from difficulty, we believe that
respondents’ claims are justiciable.
On the issue of standing, respondents claim that
they suffer from various harmful effects of air and
ground traffic at National Airport, that the Master
Plan will aggravate these injuries by increasing
traffic at National, and that invalidation of the Board
of Review would remedy this injury by preventing
implementation of the Master Plan. To some extent,
respondents’ claims of injury are speculative and
attenuated because increased airport traffic is also
dependent on decisions by other actors, including
commercial airlines and the Federal Aviation Ad-
ministration (FAA). Nevertheless, the Master Plan
includes specific changes that will facilitate increases
in the number of passengers and of flights, and re-
spondents have therefore alleged a sufficient injury,
which is traceable to the Master Plan and subject to
judicial remedy.
On the issue of ripeness, we believe that this matter
is ripe for judicial review even though the Board of
teview did not veto the Master Plan and it is the
veto authority that respondents have challenged.
Precedents from this Court teach that, even when a
power to remove or disapprove has not been exercised,
the validity of such a provision may be ripe for judi-
cial resolution if, as here, the very existence of the
power has an immediate impact. In this case, more-
over, the Board of Review completed its review pro-
cedure with respect to its decision not to veto the
Master Plan, and nothing further remains to be done
with respect to that procedure. Therefore, respond-
ents’ challenge to the Board of Review’s authority
is ripe.
2. With regard to the merits, it is clear that the
Constitution does not prohibit Members of Congress
12
from holding state offices; the Framers explicitly con-
sidered such a prohibition and rejected it. 1 M. Far-
rand, The Records of the Federal Convention of 1787
(1937 ed.) 20-21, 386-393, 428-429. But it is also
clear that Members of Congress may not hold other
federal offices, legislate without bicameralism and
presentment to the President, or perform federal ex-
ecutive functions. Bowsher v. Synar, 478 U.S. 714
(1986): INS v. Chadha, 462 U.S. 919 (1983).
In the present case, appointment of the Board of
Review, which would be permissible if undertaken by
a State on its own, is made in response to a federal
condition. The federal condition, which would be im-
permissible if it established a congressional board
with veto power over a federal agency, involves not
a federal agency but an agency created at the state
level by a state entity (which would have the ability
to make the appointments on its own).
In most instances, a condition of this kind—re-
quiring a state or local entity to appoint Members
of Congress to a state office as a condition of some
federal aid or benefit—would violate separation of
powers principles because it would pose a substantial
threat of congressional aggrandizement and incursion
on the Executive Branch. But we believe that, in the
unusual circumstances of this case, no such threat
exists. In the present case, Members of Congress
have special and distinctive interests as individuals.
Moreover, the case is one in which the Executive
Branch has agreed with the Legislature on the per-
missibility of the organizational structure under
which the airport property has been leased.
a. Contrary to the court of appeals’ analysis, the
Board of Review exercises state, and not federal,
power. A conclusion that the authority is exercising
federal power fails to give appropriate weight and
13
respect to the significance of the independent enact-
ments by Virginia and the District of Columbia; it
also raises questions concerning a wide variety of co-
operative regimes in which state programs accord
with specifications in federal statutes.
That the Board of Review is exercising state au-
thority is necessary, but far from sufficient, to estab-
lish the validity of the condition. If existence of state
authority were the only requirement, such conditions
could be adopted by Congress in many circumstances
in which the functions and responsibilities of the
Executiy- Branch would be significantly impaired.
b. In addition to the state character of the chal-
lenged authority, this case presents an exceptional
circumstance that obviates the threat of significant
incursion on the Executive Branch or aggrandize-
ment of legislative power. A rare, and in our view,
essential element of the validity of the Board of Re-
view arrangement here is that Members of Congress
are not only designated to serve “in their individual
capacities,” but also do in fact have special and dis-
tinctive individual concerns that justify that desig-
nation. As a result of their responsibilities, and
especially their need to travel to and from their legis-
lative districts, Members of Congress are frequent
and regular users of the two airports involved here.
ce. The validity of the Board of Review is further
supported by two additional circumstances present in
this case. First, federal ownership and operation of
major-air-carrier airports is an anomaly; all other
such airports are operated at the state, regional, or
local level. Second, the Executive and Legislative
Branches have agreed on the formulation and imple-
mentation of the statutory condition of the airports’
lease.
14
ARGUMENT
I. THE CHALLENGE TO THE CONSTITUTIONALITY
OF THE BOARD OF REVIEW IS JUSTICIABLE
Although the issues are not free from difficulty, we
believe that respondents have standing and that their
claims are ripe for judicial resolution.
A. Respondents Have Standing
To have standing, respondents must allege a suffi-
ciently concrete and particularized injury, which is
traceable to the challenged actions of petitioners and
which can be remedied by the courts. See Allen v.
Wright, 468 U.S. 737, 751 (1984); Valley Forge
Christian College v. Americans United for Separation
of Church & State Inc., 454 U.S, 464, 472 (1982).
Respondents’ complaint alleges that they suffer
from the activity level at National Airport, and that
this activity causes noise, safety problems, and air
pollution. J.A. 4-5; see also J.A. 85-86. An affidavit
by a CAAN director further claims that CAAN mem-
bers are “adversely affected by the traffic congestion
resulting from passenger activity” at National, that
some members have “developed health problems that
they attribute to the air traffic,” and that “others’
property values have suffered as a result of their
proximity to the airport or its flight path.” J.A. 56.
Respondents’ complaint alleges further harm from
the Master Plan on the ground that it is “now caus-
ing injuries to CAAN and its members because of
increases in noise levels and safety and environmen-
tal problems at National Airport and is likely to
cause increasing injuries to them in the future.” J.A.
10. Respondents’ motion for summary judgment
states that their interest arises because “{t}]he Air-
15
ports Authority’s master plan proposes to expand
National Airport facilities and passenger levels,
which, in turn, will cause the noise and other air-
port problems to worsen.” Pltf. Memo. Suppt. Mot.
for Summary Judgment 16. The CAAN director's
aflidavit also maintains that injury will occur be-
cause the Master Plan “proposes to expand the air-
port’s facilities, to build them to accommodate wide-
bodied jets, to increase passenger levels, and to in-
crease air carrier traffic by utilizing currently un-
used slots.” J.A. 86.
To an extent, the claim of injury is speculative and
attenuated because the Plan is a limited one and
because increases in activity at National Airport are
in part dependent on decisions by others. Although
a new terminal is being built, the Master Plan pre-
serves the existing number of aircraft gates. J.A.
89-90. The Plan improves surface traffic flow and
parking, but does not change the length, number, or
orientation of runways. J.A. 90. Moreover, the Air-
ports Act as well as the lease between the Secretary
of Transportation and the Airports Authority pro-
vides that the Airports Authority cannot increase the
number of aircraft operations authorized by FAA
regulations on October 18, 1986. See 49 U.S.C. App.
2454(¢)(5)(C); Pet. App. 172a; J.A. 90. See also
49 U.S.C. App. 2458(e)(1). (FAA Administrator
may not increase the number of takeoffs and land-
ings from that authorized by FAA regulations on
October 18, 1986). Furthermore, although some of
the authorized flight slots are currently unused,
commercial airlines must decide whether to schedule
flights for currently unused slots. C.A. App. 170,
$14. Finally, decisions on whether to use larger air-
craft are also made by the commercial airlines and
require FAA approval. J.A. 91.
16
Thus in some respects, respondents’ asserted in-
juries resulting from the Master Plan are far from
certain. This uncertainty places respondents’ stand-
ing in question. See Simon v. Eastern Kentucky Wel-
fare Rights Organization, 426 U.S. 26, 43-45 (1976) ;
Warth vy. Seldin, 422 U.S. 490, 504-507 (1975).
Yet the Master Plan does call for changes that will
facilitate increases in airport traffic. The Plan in-
cludes new aircraft gates capable of handling larger
aircraft than before. Pet. App. 41a; J.A. 91. It
also includes an additional taxiway turnoff to reduce
aircraft lime on the runway and thereby improve
airport capacity. Pet. App. 41a; Plitf. Exh. 16 at 10.
The Plan itself anticipates, and proposes changes
that will fester, an increase in the number of flights
and passengers. See Pet. App. 4la; C.A. App. 170,
314, 330; Pitf. Exh. 16 at 10.
Since respondents’ claims of injury from increased
traffic at National Airport are in part attributable to
the Master Plan, it appears to us that respondents
have asserted a sufficiently concrete and personalized
injury, traceable to the actions of petitioners. And
since the Master Plan could not have been adopted
and cannot be implemented without the Board of Re-
view, respondents’ injury can be remedied by the
relief they seek.”
*See 49 U.S.C. App. 2456(h) (if Board of Review is un-
able to carry out functions by reason of a judicial order, Air-
ports Authority shall have no authority to perform any of
the acts required to be submitted to the Board of Review) ;
Pet. App. 154a (Airports Authority bylaws provision to same
effect) ; ‘d. at 178a (lease provision to same effect).
17
B. Respondents’ Claim Is Ripe
Ripeness has two dimensions. First, a claim must
be sufficiently ripe to meet Article III case or con-
troversy requirements. Second, the ripeness doctrine
is also premised on prudential considerations. See
Regional Rail Reorganization Act Cases, 419 U.S.
102, 138 (1974). In this case, we believe that the
Article III requirements have been met because there
is a real conflict between the parties, and the action
taken by the petitioners assertedly causing harm to
the respondents (the decision not to veto the Master
Plan) has already occurred. Thus, the ripeness con-
cerns here are prudential in nature. Although the
Board of Review did not exercise its veto authority
with respect to the Master Plan, we conclude that re-
spondents’ challenge to that authority is nevertheless
ripe.
As this Court made clear in Bowsher vy. Synar, 478
U.S. 714, 727 n.5 (1986), the fact that a mechanism
for controlling official conduct is not exercised does
not necessarily render unripe a dispute regarding
that mechanism. Bowsher involved a contention that
the Comptroller General may not be authorized to
carry out executive functions because he is an agent
of Congress, and that his status as an agent of Con-
gress Was shown in part by a statutory provision
making him removable by that body. A question of
ripeness was raised, however, because that power of
removal had never been exercised (or even threat-
ened). This Court found the case ripe for review be-
cause “it is the Comptroller General’s presumed de-
sire to avoid removal by pleasing Congress, which
creates the here-and-now subservience to another
branch that raises separation-of-powers problems.”
478 U.S. at 727 n.5 (internal quotation marks
18
omitted). Thus, the very existence of the removal
mechanism was held sufficient to affect the role of the
Comptroller General. .
Although the threat of removal of an official is not
identical to the threat of disapproval of his actions,
the logic of Bowsher is applicable here. The Board
of Review’s veto power undoubtedly has an impact on
the Airports Authority, whether the power is exer-
cised or not, as the Authority contemplates formula-
tion of the proposals that must be considered by the
Board.
Similarly, in Alaska Airlines, Ine. vy. Brock, 480
U.S. 678 (1987), this Court reached the merits of
the severability of a levislative veto provision that
had never been used. That provision had not been
used because the controversy arose after such de-
vices had been invalidated in 1NS v. Chadha, 462
U.S. 919 (1983). Although this Court found it un-
necessary to discuss the question of ripeness, the
court of appeals had considered the issue and con-
cluded that the matter was ripe. See Alaska Airlines,
Ine. v. Donovan, 766 F.2d 1550, 1556 (D.C. Cir.
1985).°
Additionally, the Third Circuit found the contro-
versy ripe for review in Ameron, Ine. v. U.S. Army
Corps of Engineers, 809 F.2d 979, 986-988 (1986),
cert. granted, 485 U.S. 958, cert. dismissed, 488
U.S. 918 (1988), in circumstances closely analo-
gous to those here. In Ameron, the court reached the
merits of a challenge to the Comptroller General’s
statutory authority to extend the length of an auto-
* See also EEOC vy. CBS, Inc., 743 F.2d 969 (2d Cir. 1984) ;
EEOC vy. Hernando Bank, Inc., 724 F.2d 1188 (5th Cir. 1984).
But see Muller Optical Co. v. EEOC, 743 F.2d 380 (6th Cir.
1984).
19
matic stay of contract implementation by the govern-
ment following a protest of the award of the contract.
The Comptroller General had not exercised the chal-
lenged authority; the court nevertheless held the con-
troversy ripe because the Comptroller General’s abi!-
ity to exercise the power was found to have an actual
impact on the contracting process.
We also note, however, that in Clark v. Valeo, 431
U.S. 950 (1977), this Court summarily affirmed a
decision of the D.C. Circuit, which had found that a
challenge to a congressional veto provision was not
ripe for review because the veto provision had not
been used. Clark y. Valeo, 559 F.2d 642, 649
(in bane). But in Clark, the court of appeals went
on to point out that the challenge to the legislative
veto mechanism arose before Congress’s period to ex-
ercise its veto power had expired, and Congress had
adjourned without acting. In contrast, in this case,
Board of Review consideration of the Master Plan,
as proposed by the Airports Authority, has been
completed.
Thus, we believe the challenge to the Board of Re-
view’s veto power is ripe for judicial determination.
The analysis set out in Abbott Laboratories y. Gard-
ver, 387 U.S. 136, 148-149 (1967), supports this
conclusion. That analysis focuses on “the fitness of
the issues for judicial decision” and “the hardship to
the parties of withholding court consideration.” /d.
at 149."" The issue here is “fit for judicial decision”
because, in addition to the “here-and-now subservi-
" Although Abbott Laboratories arose in an administrative
law context, it remains the “leading discussion of the doc-
trine” of ripeness. Pacifie Gas & Elec. Co. v. State Energy
Resources Conservation & Dev. Comm’n, 461 U.S. 190, 201
(1983).
20
ence” analysis suggested by Bowsher, the Board of
Review has taken all necessary steps regarding ap-
proval of the Master Plan. The review process is
therefore final, making the case concrete. See Abbott
Laboratories, 387 U.S. at 148-149.
Furthermore, as a result of the imminent imple-
mentation of the Master Plan, respondents are
threatened with the injuries they allege unless they
prevail in this challenge. Thus, we believe the Abbott
Laboratories standards have been met.
Il. THE STATUTORY LEASE CONDITION REQUIR-
ING THE APPOINTMENT OF MEMBERS OF CON-
GRESS IS CONSTITUTIONAL IN THE UNUSUAL
CIRCUMSTANCES OF THIS CASE
Respondents challenge the validity of the Board of
Review, claiming that it violates the constitutional
separation of powers, as well as the bicameralism re-
quirement (Art. I, $$ 1 and 7), and the Presentment
Clauses (Art. I, § 7, Cls. 2, 3). J.A. 10. Respond-
ents also argued below, though they did not allege
in their complaint, that service on the Board of Re-
view by Members of Congress is inconsistent with
the Appointments Clause (Art. II, $2, Cl. 2), and
the Incompatibility and Ineligibility Clauses (Art. I,
$6, Cl. 2). Pet. App. 19a, 53a-54a.
We agree with respondents that separation of
powers principles, as well as the bicameralism and
presentment requirements, sharply restrict the man-
ner in which Congress or its agents may act within
our constitutional system. Nevertheless, we believe
that the Board of Review’s authority is constitutional
in the snecial. limited eontext of this cxse.
It is clear that a State may, consistently with the
Constitution, appoint Members of Congress to state
21
offices. It is also clear that Members of Congress are
precluded by specific provisions of the Constitution
from serving on a federal Board of Review that has
veto power over the actions of a federal agency or
that otherwise exercises federal governmental auth-
ority. In the present case, the Airports Authority’s
Board of Review is created and appointed by the Air-
ports Authority, which is a creature of state and
local law, but the federal Airports Act itself specifies
that such a Board is a condition for the federal lease.
Although such an arrangement does not violate any
specific constitutional prohibition, we believe that, in
most circumstances, such a statutory condition would
be unconstitutional because it would pose a threat of
congressional aggrandizement and of significant in-
trusion on the functions and responsibilities of the
federal Executive Branch. Because of a highly un-
usual combination of circumstances, however, we
conclude that the statutory lease condition at issue
here does not pose such a threat and is permissible.
A. States May Appoint Members Of Congress Te State
Offices
It is undisputed that States may appoint Mem-
bers of Congress to state offices. Indeed, the Framers
specifically considered whether to prohibit Members
of Congress from holding state offices, and explicitly
decided against such a limitation. Thus, if a State,
acting entirely on its own and without federal in-
ducement, appointed Members of Congress to a state
Airports Authority, the appointments would be
constitutional.
As ratified, the Constitution contains an Incom-
patibility Clause that bars Members of Congress from
22
simultaneously holding federal office,"' and an In-
eligibility Clause that prohibits Members of Congress
from being appointed to federal offices that were
created, or for which the “Emoluments” were in-
creased, during their congressional tenure.'* Neither
Clause prohibits Members of Congress from holding
state office.
Introduced at the Constitutional Convention by
Edmund Randolph as part of “the Virginia Plan,”
these provisions originally did include a_ prohibition
against holding state office. See 1 M. Farrand, The
Records of the Federal Convention of 1787 (1966
ed.) 20-21. See generally Signorelli v. Evans, 63
F.2d 853, 859-862 (2d Cir. 1980). While there was
considerable discussion of the aspects of Randolph's
proposal prohibiting Members of Congress from hold-
ing federal offices, the Framers decisively rejected
the prohibition of simultaneous state appointments.
Charles Pinckney moved to strike it, and Roger Sher-
man seconded this proposal, explaining: “It [would]
seem that we are erecting a Kingdom at war with it-
self. The Legislature ought not to be fettered in such
a case.” 1 M. Farrand, supra, at 386. The proposed
state office ineligibility provision for Members of the
House of Representatives was then defeated by an &
to 3 vote (ibid.), and James Wilson commented: “By
1! The Incompatibility Clause provides: “{N]o Person hold-
ing any Office under the United States, shall be a Member of
either House during his Continuance in Office.” Art. I, § 6,
Ci. 2.
' The Ineligibility Clause provides: “No Senator or Rep-
resentative shall, during the Time for which he was elected,
be appointed to any civil Office under the Authority of the
United States, which shall have been created, or the Emolu-
ments whereof shall have been encreased during such time.”
Art. I, § 6, Cl. 2.
23
the last vote it appears that the convention have no
apprehension of danger of state appointments.” /d.
at 393."
Three days later, a similar proposed state office in-
eligibility provision for Senators was also rejected,
with Pinckney urging that “the States ought not to
be barred from the opportunity of calling members
of [the Senate] into offices at home. Such a restric-
tion would also discourage the ablest men from going
into the Senate.” 1 M. Farrand, supra, at 428-429.
See also 1 W. Benton, /787: Drafting the United
States Constitution 711, 722, 726-727 (1986).
During the ratification debates, James Madison
confirmed the rejection of a prehibition against Mem-
bers of Congress serving in state offices. In The Fed-
eralist, No. 56, he defended the proposed House of
Representatives against an attack that it would be
too small to have adequate knowledge of the interests
of its constituents by noting, among other points,
that, “[t]he representatives of each State * * * will
probably in all cases have been members, and may
even at the very time be members, of the State legis-
lature * * *.” The Federalist Papers 348 (C. Rossiter
ed. 1961).
Thus, the text and history of the Constitution
make clear that States may appoint Members of Con-
gress to hold state offices. Indeed, the practice of ap-
pointing Members of Congress to state positions has
continued into modern times."
‘8 A previous motion to strike the state ineligibility provi-
sion had failed on a 5-4 vote. See 1 M. Farrand, syvpra, at
217; Signorelli, 637 F.2d at 861 n.8.
™ For example, selected Members of Congress serve on the
Board of Directors of the Massachusetts Centers of Excel-
lence. See Def. Exh. 9.
24
B. Members of Congress May Not Hold Other Federal
Offices, Exercise Federal Executive Functions, Or
Legislate Without Bicameralism And Presentment
In contrast, separation of powers principles sharply
constrain the role of Congress and its Members at
the federal level. As discussed, under the Ineligibility
and Incompatibility Clauses, Members of Congress
may not hold other “Office[s] under the United
States” simultaneously with congressional office; nor
may they be appointed to a “civil Office under the
Authority of the United States,” which was created
or for which “Emoluments” were increased during
their congressional tenure. See notes 11 & 12, supra.
These limitations themselves reflect an important sep-
aration of powers principle. See Bowsher v. Synar,
478 U.S. 714, 722 (1986).
More fundamentally, Congress may not exercise
the functions of the Executive Branch. “The Con-
stitution sought to divide the delegated powers of the
new Federal Government into three defined categor-
ies, Legislative, Executive, and Judicial, to assure,
as nearly as possible, that each branch of government
would confine itself to its assigned responsibility.”
INS vy. Chadha, 462 U.S. 919, 951 (1983). Thus, fed-
eral executive functions may not be entrusted to an
individual over whom Congress retains removal
power. Bowsher, 478 U.S. at 726-727. The conse-
quences of such an arrangement would be that “Con-
gress in effect * * * retain[s] control over the execu-
tion of the Act and * * * intrude!s] into the execu-
tive function. The Constitution does not permit such
intrusion.” Jd. at 734. Instead, “once Congress
makes its choice in enacting legislation, its partici-
pation ends.” Jd. at 733. Although Congress has
“abundant means to oversee and control its admin-
25
istrative creatures,” including “durational limits on
authorizations and formal reporting requirements”
(Chadha, 462 U.S. at 955 n.19), Congress may not
itself execute the law. Jd. at 955: see also Springer
v. Philippine Islands, 277 U.S. 189, 201-202 (1928);
JW. Hampton Jr., d& Co. vy. United States, 276 U.S.
394, 406 (1928).
In exercising its legislative power, moreover, Con-
egress must observe the requirements of bicameralism
(Art. I, $1 and $7, Cl. 2) and presentment to the
President (Art. I, $7, Cls. 2, 3). These require-
ments are “integral parts of the constitutional de-
sign for the separation of powers.” Chadha, 462
U.S. at 946. Thus, Coneress “may not exercise its
fundamental power to formulate national policy by
delegating that power to one of its two Houses, to
a legislative committee, or to an individual agent of
the Congress.” PBowsher, 478 U.S. at 737 (Stevens,
J.. concurring in the judement). For “[fi]f Con-
vress were free to delegate its policymaking author-
ity to one of its components, or to one of its agents,
it would be able to evade ‘the carefully crafted re-
straints spelled out in the Constitution.” Jd. at 755,
quoting Chadha, 462 U.S. at 959,
As a result, just as it is clear that a State, acting
entirely on its own volition, may appoint Members of
Congress to a Board of Review, so too it is equally
clear that, at the federal level, Congress may not re-
quire the appointment of its Members to a Board of
Review that holds veto power over the actions of a
federal agency or that otherwise exercises federal
governmental power. In addition to possible Incom-
patibility and Ineligibility Clause problems. such a
requirement would violate fundamental separation of
powers principles because Congress would, through
26
its Members, be exercising federal executive func-
tions. See Bowsher, 478 U.S. at 732-734. Moreover,
to the extent that the Members’ actions in such a
context were viewed as legislative, those actions
would also be impermissible because they would be
undertaken without bicameralism or presentment.
Chadha, 462 U.S. at 951-959.
(. Although A Federal Condition That States Appoint
Members Of Congress Would Be Impermissible In
Most Circumstances, The Condition Is Not Uncon-
stitutional In The Limited Circumstances Of This
Case
In our view, a federally imposed condition on a
grant or authorization to the States—that States ap-
point Members of Congress to state offices and thereby
exercise state authority—would be unconstitutional
in most circumstances. The reason is not that such
a requirement would violate the Incompatibility and
Ineligibility Clauses; by their terms, those Clauses
apply only to offices of the United States. For a sim-
ilar reason, such a requirement would not violate the
requirements of bicameralism and presentment—dis-
charge of the duties of a state office is not an exercise
of federal legislative power. Instead, such a condi-
tion would, in most circumstances, be unconstitu-
tional because it would allow Members of Congress
to evade the “carefully crafted restraints” of the Con-
stitution (Chadha, 462 U.S. at 959)—to act in an
extra-legislative capacity after enacting a-statute, and
thereby to threaten the Executive Branch’s exclusive
responsibility for federal executive functions. Al-
though we believe that a conclusion of unconstitu-
tionality will attend such a condition in most in-
stances, we believe that, in the unusual circumstances
of this case, such a conclusion is not warranted.
~-
=f
1. At the outset, we emphasize that the powers of
the Airports Authority—and of the Board of Review
—<erive from state suthority. This is a necessary,
but far from sufficient, condition for constitution-
ality."" Both Virginia and the District of Columbia
have enacted valid statutes authorizing the operations
of the Airports Authority and the Board of Review,
and, indeed, without those statutes, the Authority
and the Board could neither exist nor function. This
exercise of sovereign power by Virginia and by the
District has an independent stature and should not
he minimized. We strongly disagree with the court
of appeals’ conclusion that the Airports Authority's
Board of Review is exercising federal authority, In
our view, the court of appeals’ analysis unjustifiably
denigrates the significance of the independent enact-
ments by Virginia and the District. The state and
local governments are neither ciphers nor parrots
of the federal government: their legislative enact-
In Springer V. Philippine Islands, supra, this Court held,
on separation of powers grounds, that the Philippines legisla-
ture could not participate in management of government cor-
porations even if the management were viewed as a proprie-
tary act (277 U.S. at 203); the Court also expressed skepti-
cism about whether Congress could similarly participate in
the management of a government corporation on a proprie-
tary rationale (/d. at 204-205). In that context, however, the
Court was considering the activities of the legislative
branches (Congress and the Philippines legislature) vis-a-vis
the Executive Branch at the same level of government—in
other words, the congressional aggrandizement model out-
lined at pages 24-26, svpra. That analysis does not directly
address the permissibility of such a condition operating at a
different level of government (as in this case), and, espe-
cially, at a different level of government that clearly has the
power to make the challenged appointments on its own.
28
ments are entitled to weight and respect in evaluating
the character of their creations."
' Two complications concerning the state and local char-
acter of the Authority should be noted. First, a question
arises whether the Airports Authority should be viewed as a
creature of state law, since one of its parents is the District
of Columbia. The District of Columbia, of course, is not a
State under the Constitution. See, ¢.g., Hepburn & Dundas
V. Ellzey, 6 U.S. 445, 452-453 (1805). Nevertheless, partic-
ularly because the District of Columbia currently acts under
“home rule” authority (see District of Columbia Self-
Government and Governmental Reorganization Act, Pub. L.
No. 93-198, 87 Stat. 774 (1973)), the power that it delegated
to the Authority is best seen as comparable to state or local
power for purposes of these federal constitutional restrictions.
Cf. Key Vv. Doyle, 434 U.S. 59, 68 n.13 (1977) (D.C. Code
“is a comprehensive set of laws equivalent to those enacted
by state and local governments”); District of Columbia vy.
John R. Thompson Co., 346 U.S. 100, 110 (1953) (upholding
delegation of lawmaking authority to District and analogizing
authority conferred to “the police power of a state”); Met-
ropolitan R.R. Vv. District of Columbia, 132 U.S. 1, 7-9
(1889) (holding that, under applicable statutes, District is a
municipal corporation rather than a department of the United
States government) ; Hobson v. Hansen, 265 F. Supp. 902,
919-920 (D.D.C. 1967) (three-judge court) (Wright, J., dis-
senting) (noting that District of Columbia officials are not
considered officers of the United States for purposes of the
Appointments Clause). Furthermore, the Authority is not
simply a creature of the District, but, in very substantial part,
a creature of the Commonwealth of Virginia as well.
A second complication is suggested by the holding of this
Court that congressional approval of a compact among States
converts those States’ agreements into “federal law” for pur-
poses of interpreting the compact. Cuyler v. Adams, 449 U.S.
433, 440 (1981). But that principle does not alter the fact
that the Airports Authority draws its power from state au-
thority, and is thus itself exercising state power. See Lake
Country Estates, Ine. v. Tahoe Regional Planning Agency,
29
This state character of the Airports Authority
bears emphasis. The federal Airports Act itself does
not create the Board of Review, just as it does not
create the Airports Authority. The federal legisla-
tion provides authority for the Secretary of Trans-
portation to enter into a long-term lease arrangement
with an Airports Authority established by Virginia
and the District of Columbia. The Airports Author-
ity itself was created by legislative acts of Virginia
and the District of Columbia, and it is wholly inde-
pendent of the federal government. See Pet. App.
S7a-llSa (Virginia legislation): id. at 119a-147a
(District of Columbia legislation); 49 U.S.C. App.
2456(b)(1). And those jurisdictions amended their
previously passed ordinances in order expressly to
empower the Airports Authority—which they alone
had created—to establish a Board of Review. Pet.
App. llla, 143a. The powers of that Board, in turn,
are defined in the Airports Authority’s bylaws. /d.
at 15la-154a. In short, the Airports Authority is
clearly created—and the Board of Review is author-
ized to act—by the enactments of Virginia and the
District of Columbia, rather than by the Airports
Act."
440 U.S. 391, 398-400 (1979) (For purposes of 42 U.S.C.
1983, acts of a regional entity created by an interstate com-
pact are under color of state law rather than pursuant to fed-
eral law) ; Seattle Master Builders Ass'n V. Pacifie N.W. Elec.
Power Co., 786 F.2d 1359, 1365 (9th Cir. 1986) (Members of
a council implementing an interstate compact need not be
appointed pursuant to the Appointments Clause; although con-
yvressional consent gives an interstate compact “some attri-
butes of federal law,” the “states ultimately empower the
Council members to carry out their duties’), cert. denied,
479 U.S. 1059 (1987).
'7 Because the Airports Authority and the Board of Review
are creatures of state and local law, respondents’ Appoint-
30
The court of appeals’ analysis—that the Board of
Review is exercising federal authority—also has the
potential to create serious problems in a wide range
of instances unrelated to this case. As noted, the
court concluded that the Board wields federal power
because the nature of the Board is spelled out in the
Airports Act; as a result, the court concluded, the
Board is “ ‘exercising significant authority pursuant
to the laws of the United States.’” Pet, App. 10a.
But the fact that a federal statute enumerates re-
quirements, which are then the basis of state or local
action, does not transform the state action into fed-
eral action. We note that there are numerous federal
grant and regulatory programs that operate on a
cooperative federalism model and in which state plans
must conform to federal requirements. See, e.4.,
Wilder vy. Virginia Hosp. Ass'n, 110 S. Ct. 2510,
2513 (1990) (Medicaid): International Paper Co vy.
Ouellette, 479 U.S. 481, 489-490 (1987) (Clean
Water Act). Yet it has never been suggested that,
in such circumstances, all constitutional provisions
governing the federal government’s exercise of power
(including the Appointments Clause) apply to the
state gvovernment’s implementation of such plans.
(Indeed, pursuant to the court of appeals’ decision,
the Airports Authority itself—not simply the Board
of Review—may be “ ‘exercising significant authority
pursuant to the laws of the United States.’”) Under
the court of appeals’ analysis, sienifieant new ques-
tions about the structure and operation of these pro-
grams would be raised; the court's analysis of fed-
ments, Ineligibility, and Incompatibility Clause objections are
unavailing; those provisions relate to offices or officers “of
the United States” and “under the United States.” See Art.
I, $6, Cl. 2: Art. IT, $2, Cl. 2. See also Pet. App. 53a-54a.
31
eral authority fails to appreciate the independent
validity of the state and local statutes, and should be
rejected."
Although the issue is placed in proper perspective
by recognizing that the Airports Authority operates
pursuant to state law, such recognition serves only
to focus the issue, not to resolve it. If the exercise of
state authority were sufficient in itself to validate a
statutorily imposed condition like the one in this case,
a massive loophole in the separation of powers re-
quirement would be opened. For instance, many
'’ Although the existence of congressional power to remove
members of the Board of Review might well serve to invali-
date the statute, we disagree with the court of appeals’ con-
clusion that the members of the Board of Review are remov-
able by Congress. Pet. App. 18a. The Virginia and District
statutes, the Airports Authority bylaws, the Airports Act,
and the lease are all silent on the subject of removal; under
long-settled principles, if there is silence on removal, the
appointing authority retains removal authority. See Myers
Vv. United States, 272 U.S. 52, 119 (1926); Carluveci Vv. Doe,
488 U.S. 93, 99 (1988). The Airports Authority’s resolutions
appointing members of the Board of Review, moreover, ex-
plicitly state that “[t]he terms of each of these appointments
are as follows, ercept that the Board of Direcors may remove
for cause an appointee to the Board of Review prior to the
conclusion of this term.” J.A. 58 (emphasis added) ; see also
J.A. 47. Although the court of appeals rested its conclusion
on the fact that Congress could remove a member of the
Board of Review from a congressional committee and there-
fore remove him from the Board of Review, it is more con-
sistent with general principles of removal authority—and
with the Airports Authority’s own interpretation of its by-
laws and authority—to conclude that the Authority retains
removal power, and that this power is exclusive. The provi-
sions of the Airports Act relating to membership on the
Board of Review, 49 U.S.C. App. 2456(f), are addressed to
appointment, not to continuing membership cr removal.
32
areas in which the Executive Branch plays an im-
portant role in administering cooperative programs
with the States could be changed to a structure in
which States would be given funds only if they ap-
point Members of Congress to state offices with veto
power over the expenditure of those funds. Federal
assistance to state programs for roads, schools, hous-
ing, and health care each could be made dependent on
state appointment of Members of Congress with veto
or other power over major actions, while at the same
time leaving no role for the federal Departments of
Transportation, Education, Housing and Urban De-
velopment, or Health and Human Services. Thus,
while the exercise of state authority is essential to
the validity of the Board of Review, it represents only
the first step in the analysis."
2. An additional, and in our view, essential ele-
ment present in this case is that, unlike most in-
'’ A related point is the fact that the state and local enact-
ments authorizing the appointment of the Board of Review—
and the actions of the Authority and the state and local gov-
errnments in agreeing to the lease—were entirely uncoerced.
But this fact also is a necessary, but not sufficient, condition
for validity.
This Court recently reiterated, in considering a condition in
a spending program, that, absent undue coercion, a State may
protect itself by refusing to accept a federal proposal con-
taining a condition that the State does not like. South Dakota
Vv. Dole, 483 U.S. 203, 211 (1987). See also Steward Machine
Co. V. Davis, 301 U.S. 548, 589-590 (1937). In such a situa-
tion, the principal concern is federalism-related, and the self-
protection rationale for States has considerable force. But
this logic falters when applied to a situation involving separa-
tion of powers concerns. Although the States themselves pro-
vide their own defense against unwanted federal encroach-
ment, they have no institutional concern in protecting the
federal Executive Branch from an incursion by Congress,
33
stances in which congressional participation might be
made a legislative condition, there is here a reason-
able basis for the appointment of Members of Con-
gress “in their individual capacities, as representa-
tives of users of [the airports].” 49 U.S.C. App.
2456(a)(1), reprinted at Pet. App. 75a. See also
Pet. App. 15la (Airports Authority bylaws); id. at
175a (lease). Indeed, Members of Congress have a
special and distinctive relationship with these air-
ports. This relationship was stressed by Secretary of
Transportation Dole in her testimony to Congress as
it considered the Airports Act: she noted that ““Mem-
bers of Congress are heavy users of the air transpor-
tation system” and that congressional service requires
“many trips back to [congressional] districts.” Pro-
posed Transfer of Metropolitan Washington Air-
ports: Hearings on H.R. 2337 Before the Subcomm.
on Aviation of the House Comm. on Public Works
and Transportation, 99th Cong., 2d Sess. 110 (1986).
As individuals, Members of Congress whose dis-
tricts are not near the seat of government, and who
must frequently commute between the capital and
their constituencies, are especially heavy users of Na-
tional and Dulles airports. (And Members from Vir-
ginia, the District of Columbia, and Maryland—who
are the least likely to be frequent users—are spe-
cifically excluded from the Board of Review. See 49
U.S.C. App. 2456(f)(1).) Thus, these individuals
are well suited to represent the interests of all travel-
ers who use these airports.
To he sure, Members of Congress are also users
(or potential users) of roads, schools, hospitals, social
security, and a myriad of other federally supported
programs, but their use of these airports is qualita-
tively different. At most, Members of Congress are
users of these other programs to the same extent as
34
other citizens. Here, in contrast, Members of Con-
gress are individual users of the two Washington-
area airports to a far greater degree than most other
citizens, and in view of the necessities of their
office (involving frequent trips to and from their
home districts), this characteristic is predictable and
inevitable.
Members of Congress have a special responsibility
to travel to and from their districts in order to at-
tend to their legislative duties and at the same time
to keep in close touch with the people they represent,
and this responsibility underscores their concern with
the quality of service afforded by the area’s airports.
Indeed, the importance of travel to and from legisla-
tive sessions is recognized by the Constitution itself,
which provides (in Art. I, $6, Cl. 1) that in the
course of such travel, Members shall “in all cases,
except Treason, Felony, and Breach of the Peace, be
privileged from Arrest.”
Furthermore, there is clearly a legitimate interest
in guarding against excessive parochialism in favor
of local residents at the airports serving the thou-
sands of people who travel to the national capital to
visit, to see the national government, and to conduct
business; there would, presumably, be no constitu-
tional objection to a non-congressional Board of Re-
view composed of citizen representatives of airport
users. Because Members of Congress are frequent
individual users of the airports, it is not implausible
for them to fulfill that role in this limited context.*”
*“ As the district court points out, the legislative history
contains references to the maintenance of congressional con-
trol, sometimes in stark terms. See Pet. App. 49a n.19. As
the district court also points out, however, these statements
must be seen in perspective, as particular statements in a floor
35
3. The constitutional validity of the Board of Re-
view is, in our view, further supported by the pres-
ence in this case of two additional circumstances: the
anomaly of federal operation of major-air-carrier air-
ports, and the agreement of the Executive and Legis-
lative Branches on the organizational structure under
which the airport property has been leased,
a. The particular setting of this case—ownership
and operation of major-air-carrier airports—is one
in which a federal role itself is an anomaly, and the
Airports Act explicitly recognizes this anomaly. See
49 U.S.C. App. 2451(5), reprinted at Pet. App. 60a;
see also Pet. App. 2a. <All other major-air-carrier
airports in the nation are operated at the state, re-
gional, or local level. As a result, this setting dif-
debate and as part of a legislative history that also includes
references to the Members of Congress as individual users
and as representatives of users. Jd. at 49a-50a. Particular
remarks in the course of a floor debate should not be the basis
for invalidating a statute. Unlike language in the statute it-
self, they do not affect the structural arrangements created
by the law, nor do they control the responsibilities and obliga-
tions of those implementing the law.
The specification of committee membership for eight of the
nine members of the Board of Review may also be seen to
undermine the contention that they are appointed as individ-
uals, since the criterion of committee membership is related
to congressional duties, rather than to individual use of the
airports. Although this aspect of the statutory lease condi-
tion is troubling (and was not part of the proposed statute
presented to the Justice Department for review, see J.A. 34-
35), we do not believe that this requirement of committee
membership is sufficient to undermine the individual user
rationale. If that rationale is otherwise valid, it is not in-
validated by the fact that the Board is largely limited to
Members with the greatest transportation expertise.
26
fers significantly from those in which there is a gen-
erally established federal presence.*'
It might be objected that, just as other States and
localities have the authority to own and operate air-
ports without appointing a Board of Review, so too
Virginia and the District of Columbia should have
that ability. But that objection relates to the federal-
ism concern (whether the condition is an undue in-
vasion of state and local power) rather than the sep-
aration of powers concern (whether the condition is
an incursion on the Executive Branch). Since the
question here is one of separation of powers, the
anomaly of any federal role militates against a con-
clusion thai a threat to executive powers is presented
by the limited circumstances of the condition under
review.”
b. Finally, the conclusion that there is no threat
of incursion on the Executive Branch is sup-
ported by the absence of any conflict between the
political branches. Both the Executive and Leg-
*! In contrast, the regulation of civil aviation has, of course,
long been, and remains, a vital federal responsibility. See,
e.g., 49 U.S.C. 106 (responsibilities of the FAA). The federal
role in the regulation of civil aviation is unaffected by the
Airports Act.
~* See also Transfer of National and Dulles Airports, Hear-
ings on S. 1017 and S. 1110 Before The Subcomm. on Avia-
tion of the Senate Comm. on Commerce, Science and Trans-
portation, 99th Cong., 2d Sess. 41 (1986) (statement of Sec-
retary Dole) (“Almost since they opened, there has been
general agreement that National and Dulles should not be
operated as conventional Federal agencies.’’) ; 132 Cong. Rec.
32,138 (1986) (Rep. Gingrich) (“[MJanaging legitimately
Federal activities is a big enough job. It is time to allow a
regional authority to do a regional job, that of managing
airports.’’).
37
islative Branches believe that the Airports Act ar-
rangement is valid. To be sure, the agreement be-
tween the Executive and Congress is not dispositive:
“The assent of the Executive to a bill which contains
a provision contrary to the Constitution does not
shield it from judicial review.” Chadha, 462 U.S. at
942 n.13. But this Court has stressed that, in such
circumstances, the courts are to be at their most def-
erential. See Dames d& Moore vy. Regan, 453 U.S.
654, 668 (1981): Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 635-638 (1952) (Jackson, J.,
concurring). See also Mistretta vy. United States, 488
U.S. 361, 584 (1989).
In this case, Congress expressly raised a question
with the Executive Branch regarding the constitu-
tionality of the proposed airports legislation, and the
Department of Justice responded that it believed the
statute would withstand constitutional scrutiny. See
J.A, 25-35. Since this is a separation of powers mat-
ter in which the two branches directly affected by the
legislation have carefully considered the issue and
found the statute valid, the Court should be hesitant
to strike it down. See Rostker vy. Goldberg, 453 U.S.
57, 64 (1981) (deference to judgment of Congress is
“certainly appropriate” when that body has specifi-
cally considered the question of the statute’s consti-
tutionality). See also McCulloch vy. Maryland, 17
U.S. 316, 401 (1819) (“An exposition of the con-
stitution, deliberately established by legislative acts,
on the faith of which an immense property has been
advanced, ought not to be lightly disregarded.” ). Fur-
thermore, the Executive Branch, in the person of the
Secretary of Transportation, made an independent
decision to sign the lease with the Airports Authority
(Pet. App. 186a): the Airports Act authorized, but
did not require, the Secretary to enter into such a
38
lease. See 49 U.S.C. App. 2454(a), reprinted at Pet.
App. 64a.
a « * x *
We have often argued before this Court the need
to vindicate and preserve separation of powers prin-
ciples. In most circumstances, a congressional condi-
tion like the one at issue here would collide with those
principles because it would threaten a significant in-
cursion on the Executive Branch. But, given the
prerequisites of state authority and lack of coercion,
and of the special and distinctive interests of Mem-
bers of Congress as individuals—combined with the
anomaly of a federal role in operating majer-air-
carrier airports and the specific Executive assent to
the challenged provision—service by Members of
Congress on the Airports Authority’s Board of Re-
view does not violate the Constitution.
CONCLUSION
The judgment of the court of appeals should be
reversed.
Respectfully submitted.
WILLIAM C. BRYSON
Acting Solicitor General *
STUART M. GERSON
Assistant Attorney General
DAVID L. SHAPIRO
Deputy Solicitor General
CLIFFORD M. SLOAN
Assistant to the Solicitor General
DOUGLAS LETTER
Attorney
MARCH 1991
* The Solicitor General is disqualified in this case.
wv ues. GOVERNMENT PRINTING OFFice 1991 26206! 20419
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.