# Opposition Brief — Metropolitan Wash. Airports Authority v. Noise Abatement Citizens > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0050%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 - **Citation:** 501 U.S. 252 ## 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 —