Appendix — Powell v. McCormack

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FILED

ST May 28 1968

No, MMMM 133 |_ 200 pas oem

. Ruited States Court nf Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SUPREME COURT. U. Fore pti, B

No. 20,897

| | Si ADAM CLAYTON PoweELL, JR. et al.,

Appellants ©

JOHN W. McCorMACK,

Speaker of the House of Representatives, et al.,

Appellees

é,

_ Appeal from the United States District Court

for t the District_of Columbia————

, ee ea —

Decided February 28, 1968.“

Mr. Arthur Kinoy, of the bar of the’ Court of Appeals of

New York, pro hac vice, by special leave of court, Messrs.

Frank -D.. Reeves and Herbert O.. Reid, Sr., with whom Mr.

William M. Kunstler and Mrs. Jean Camper Cahn, were on the.

. brief, for appellants. _. a 2

Mr. Bruce Bromley, of the ies of the Court of Appeals of

New York, pro hac vice, by special leave'of court, with whom

- Messrs. Lloyd N. Cutler,. John H. Pickering, Louis F. Ober-

dorfer, Max O. Truitt, Jr., and Timothy B. Dyk, were on the

brief, for appellees.

Before BURGER, McGowAN and, LEVENTHAL, Circuit Judges.

‘

” Bunce: Circuit idee: Thistc oor

hinaie s for thé first

‘time the question of whether, courts can consider claims

that a Member-elect has been “‘tnproperty excluded from his

_ seat in the United States House of Representatives. On the

basis of findings ‘by that body that Member-elect Adam

| Clayton Powell, Jr., had been guilty of misconduct’ as a

_ Member of a prior Congress and of. contumacious conduct

--4oward the courts of the State of New York, the House

voted to exclude him from the seat in the 90th Congress to © |

which he had been elected in 1966 by the voters of the | . SS

18th Congressional District df New. York. oe , as

‘ This suit was brought by Mr. Powell and baie voters? . okt

of the 18th Congressional | District of New York in the Sf

United States District Courtfor the District of Columbia. |

‘Appellants sought injunctive relief, mandamus, and a declar-

”. atory judgment against Appellees. who are Members and offi- ‘A

cials of the House of Representatives of the 90th Congress.

'. Appellees were sued individually,. in their Official positions,

and as representatives of all Members of the House of Rep-

resentatives.2 The complaint | was accompanied by a motion

to convene a statutory three-judge court. The District Court

dismissed Appellants’ complaint for want of subject matter.

jurisdiction, Powell v. McCormack, 266 F. Supp. 354 (D.

“D.C. 1967).

While Appellants’ claims actually arose as a. poe of

action taken by the House at the time of the organization of ©

the 90th Congress, the factual genesis of that action derived

from ‘events involving the alleged conduct of Member-elect

Powell during earlier Congresses. The underlying events were -

summarized in a House Report as follows:

‘ Mr. Powell was thereafter re-elected to the Congress in the special

election called to fill the vacancy determined to exist by reason of his

exclusion. He has not since presented himself -to take the oath.

2 Appellants are Adam Clayton Powell, Jr., A. Philip Randolph,

| Percy E. Sutton, Basil Patterson, J. Raymond Jones, Lillian Upstiur,

Hulan Jack, Geraldine L. Daniels, Antonio Mendez, Hilda Stokley,

Margaret Cox, Fannie ee Charles B. Ranpl, and James P. Jones.

*See p. 1 13 dase

During the 89th Congress open and widespread criti-

cizm developed: with respect to the conduct of Repre-

sentative Adam Clayton Powell, of New York. This. .

criticism emanated both from within the House of

Representatives and the public, and related priniarily

to Representative Powell’s alleged contumacious con-

- duct toward the courts of the State-of New York and .

ee his alleged official misconduct in the management. of

: his congressional office and his office as chaitman of

the Committee on Education and Labor. There were ~

fi "charges Representative Powell was misusing travel funds .

and ‘was continuing to employ, his wife on his clerk- :

hire payroll while she was living in San Juan, P.R,,.in

violation of Public Law 89-90, and apparently perform-~ ©

ing few if any official duties. . :

‘ In September 1966, as the result of protéests made’, *

ic. , by,a group of Representatives serving on the Commit-’-

vs tee.on Education and Labor, the Committee on House.

Administration, acting through its chairman, issued in-;

structions. for the cancellation of all-airline credit cards -

which had been issued to the Committee on Education . |

- and Labor and notified Chairman Powell that all future

- travel must be specifically approved by the Committee

- .on House Administration prior to undertaking the. |

travel. DS seb ae ae

‘The Spécial Subcommittee on Contracts of the Com-

. mittee on House Administration, under the chairman-.—

ship of Representative Hays of Ohio,,condicted an in-

véstigation into certain expenditures of the ‘Committee ~ .

on Education and Labor, which focused primarily on -

‘the ttavel expenses of Chairm4n Powell and of the

_committee’s staff during the 89th Congress, and the

‘ clerk-hire status of Y. Marjorie Flores. Hearings were

held on December 19, 20, 21 and 30, 1966, and a report

(H. Res. [sic] 2349) was filed just prior-to the end

of the 89th Congress. .. .. Subsequent to the report

of the Hays subcommittee and prior to the organiza - § -

tion of the 90th Congress, the Democrat Members-elect, —

meeting: in caucus, voted to remove resentative-..

elect Powell from his office as chairman of the Com-

mittee on Education and Labor.4 er

44.R. KEP. NO. 27, 90th Cong., Ist Sess. '1-2°(1967) (footnote -

™ - omitted). The’ earlier report concluded that Representative Powell

q ’ and certain staff employees deceived the approving authorities as to

e +

RIMES PE PTLE LEE OEE OTe Oe eee eee TRIS a in Naka cal as

' The 90th Congress met to organize onjJanuary 10, 1967.

At,that time Member-elect Van’Deerlin, of California, ob- |

jected to the administration of the oath to Member-elect

: Powell.? Upon request, Member-elect Powell stepped aside

while the oath was administered to the other Members-elect.

Shortly thereafter Representative Udall, of Arizona, intro-

duced a resolution that the oath be administered to Member-

elect Powell and that the question of his final right to be

" seated as 2 Member of the 90th Congress be referred toa - *

select committee. The debate on this resolution centered

_ on whether to.seat Member-elect Powel! or to delay his seat-:

_ ing pending a committee investigation. Before a vote was

taken, Member-elect Powell was permitted to make a state- |

ment to the House. The Udall resolution was replaced by

a substitute resolution offered by Representative Ford, of «

3 Michigan, which was thén adopted as House Resolution 1,

- 90th Congress, Ist Session.° ©

House Resolution 1 referred to a Select Committee the

question of whether or not Mr. Powell should’ be seated:

This Select Committee. was to be comprised of nine mem-

bers selected by The Speaker; four of whom wotlld be mem-

bers of the minority party, designated by. tfie Minority

Leader. The Select Committee was authorized to hold hear-

"ings and compel the attendahce of witnesses and the pro-

‘duction of. documents by subpoena. House Resolution |

. prohibited Mr.’ Powell from being sworn in or'seated until

the House acted on the Committee report. Mr. Powell,-

travel expenses and that the record raised a strong presumption that

the payment of funds to Mr. Powell’s wife violated existing law. H.R. °

REP. NO. 2349, 89th Cong., 2d Sess. 6-7 (1966).

51413 Cong. Rec. H 4 (daily ed. Jan. 10, 1967).. The proceedings

on January 10, 1967, in the Housé are found in id. at H 4-16. |

©The roll call vote to bring the’ Udall resolution to a vote was 126, )

‘yeas, 305 nays. /d. at H 13-14. After the Ford substitution was agreed

upon, the amended resolution was approved by a roll call vote of 364 pay

to 64. Id. atH 16. . . | '

ef ea TOE a Oe ee ES Pron wr FP OE BIEL OID III IG Ie PPL ONES, * EM, wid

e.5

’ however, was permitted to receive the pay, allowances, and .

emoluments of a Member during the course of the investi-

gation. The Select Committee was to report.to the House

~ within five weeks after its members were appointed.

On January 19, 1967, The Speaker appointed nine lawyer- @

Members to the bipartisan Select Committee.” The Sélect

Committee wrote Mr. Powelf.on February 1, 1967, inviting

him to testify and respond to interrogation before the Com-

mittee on February 8, 1967. The stated scope of the testi-

mony and interrogation was to include Mr. Powell’s

qualifications of agé, citizenship’ and wuaasadcs and

the following other matters: —

(1) The status of legal proceedings to which [Mr.

Powell was] a party in the State of New York and in

the Commonwealth of Puerto Rico, with particular ref-

erence to the instances in which (he had] been held

in contempt of court;

(2) Matters ‘of [Mr. Powell’s] alleged official miscan-

duct since January Fe 1961.3

. 7The Select Committee members were Emanuel Celler (N.Y.) (Chair-

- mani), James C. Corman (Calif.), Claude Pepper (Fla.), John Conyers,

Jr. (Mich.), Andrew Jacobs, Jr. (Ind.), Arch.A. Moore, Jr. (W. Va.),

Charles M. Teague (Calif.), Clark MacGregor anaes ), and -Vernon W.

Thomson (Wis.). o

8 Letter from Emanuel Celler to adesh Clayton Powell, Jr: eee

1, 1967, in Hearings on H. Res. 1 Before Select Comm: Pursuant to

H. Res. 1, 90th Cong., Ist Sess. 5 (1967) (hereinafter Hearings). Af-

ter a meeting of counsel for Mr. Powell and counsel for the Select Com-

mittee held on Februaty 3, 1967, the Committee’s chief counsel wrote

to Mr. Powell's counsel on February’ 6, 1967, stating:

[T]he Select Committee desires to interrogate Mr. Powell [as

to] paragraphs 1 to 11 of the “Conclusions” contained in’ the

Report of the Committee on House Administration, Special

_ Subcommittee on Contracts (pp. 6 and 7) relating to an investi- —

gation into expenditures during the 89th Congress by the House ~

Committee on Education and’ Labor and the clerk-hire status of

Y. Marjorie Flores (Mrs. Adam Clayton Powell).

Letter from William A. Geoghegan to Mrs. Jean C. Cahn, February 6,

(1967, in Hearings 59.

’

, ’

} .

3 s

. - ‘ ,

’ od od

‘heed LE SLI OE SCOR OPEY PEI ” TOR IP RM OOS LE GOOD LPELON AI GLEE :

e fe ’ os ,@ as ~ “a - tee Iu ees oles ed.

pone 6

The letter further aiticd Mr. Powell. thy he could be

accompanied by counsel and that the hearings would be con-.

ducted‘in accordance with House Rule-XI, paragraph 26.”

Mr. Powell appeared at the February 8 hearing, accom-

panied by his attorneys. At this time the Chairman,

Mr. Celler, without objection from Mr. Powell, took official

netice of the published hearings and conclusions of the Spe-

‘cial Subcommittee on Contracts of the Committee on House

’ Administration, relating to the investigation of Mr. Powell

‘conducted during the 89th Congress. See note 4 supra; and

accompanying text. The Chairman then explained that, in

’ addition to the rights set forth in the letter of February 1,

. counsel for Mr. Powell would be permitted a reasonable

length of time for oral argument and Mr. Powell would be

permitted to make a statement to he Committee on all

matters as to. which he was invited to testify.

» . Counsel for Mr. Powell moved that the Committee limit’

its inquiry to Mr. Powell’s age, citizenship, and inhabitancy

and that, because the scope of the Committee’s inquiry was

constitutionally limited to these. three requirements, it im-

mediately terminate its proceedings and yoport to the House ~

* that Mr; Powell was entitled to his seat./ 0: After oral argu-

ment: on these motions Mr. Powell’s counsel made several

. procedurai motions asserting the invalidity of the Commit-

Rule XI, pres 4 pnp eg committee np ene ‘Is ad-

dition to internal housekeeping provisions, it entitles a witness at any

hearing to be accompanied by counsel, to-submit statements in the

“. discretion of the committee, and to obtain‘a transcript of testimony,

‘upon payment of costs. -H.R. Doc. No. 619, 87th Cong., ‘2d Sess.

364-68 (1963).

10Documentary evidence that Mr. Powell met these three require-

ments had been previously submitted to the Committee and made. part

_ of the record at the hearings. Hearings 14-25. Briefs in support of .

these motions were filed by counsel, for Mr. Powell and the American

_ Civil Liberties Union.

doy

“ of ‘ , | % ‘

teé proceedings for failure to provide adequate notice and

.comply with the due process requirements of an adversary

proceeding. In addition, certain Specific neces rights

}

' ‘counsel to the counsel for the Member-elect.

were requested:

1. Fair notice as to the charges now ow pending pe

him, including a statement of charges ans a bi

ticulars by any ‘accuser.

2. The right to confront his accuser, and in particular

to attend in person and by counsel, all sessions of this __

committee at which testimony or evidence is taken,

‘and to participate therein with. full rights of cross-

. examination.

ill of par-

3. The right. fully in every respect to opén and si

lic hearings in every respect in the: proceedings before

the select committee.

4.. The right to have this committee issue its process

to summon witnesses whom he may use in wy? defense.

5. The right toa transcript of every hearing.// J

After the Committed took these motions under advise-

ment, Mr.-Powell was questioned by counsel for the Com-'

mittee.: After a few questioris, Mr. Powell’s counsel objected

- and insisted that Mr. Powell would not proceed further

without a ruling on his pending motions. The Select Com-

mittee then recessed ahd, upon reconvening, the Chairman

denied all of the motions. With specific reference to the .

“procedural motions, the Chairman said:

. This is not an adversary proceeding. The cominittes

is going to make every effort that a fair hearing will

be afforded, and prior to this date has decided to give

"the Member-elect rights beyond those afforded an or-.

dinary witness ypder the House rules...

The committee has put the Member-elect on notice

of the matters into which it will inquire by its notice

of the scope of inquiry and its invitation to appear, as.

well as by Conferences with, and a letter from its chief’

lt El alt a ay ee ae

* Ban , oe

— —— " -

reece Saat 4s

‘ -_

Prior to.this hearing the committee decided that it

would allow the Member-elect the right to.an open and»

_» public hearing and the right to transcript of every 3 hear-

‘ing at which testimony is adduced. ;

The committee has decided to .summon any wit-

nesses having substantial: relevant testimony to\ the

inquiry upon the written request of the Member-elect

or his counsel. _

The Member-elect certainly has the right to attend

all hearings at which testimony is adduced and to have

counsel present at those hearings. ,

_ After these rulings by the Chairman, Mr. Powell was inter-

rogated, but upon advice of courisel he refused to answer

‘any ‘questions except those relating to his age, citizenship,

and inhabitancy in New York. At the end of the February

8 hearing, the Chairman denied a request that Mr. Powell

be permitted to make a statement at “T Narati Suggesting

that it should be renewed subsequéntly./9

By a letter of February 10, Mr. Powell was informed that

. ‘the next hearing would be held on February 14. He was

further advised that, upon written application, the Select .

Committee would summon any witnesses —' substan-

-tial relevant testimony to’ the paid ~. ine better

~ stated: : : :

The Select Committee | has deferred decision on the

question raised by the original motion of your counsel

aS to whether the qualifications for membership in the

House; specifically enumerated in Article I, Section 2,

% of the Constitution, age, citizenship, and inhabitancy,:

should be deemed exclusive. Further,:we are of the.

opinion, that the Select Committee is required by House

- Resolution 1, 90th Congress, to inquire not only into

the question of. your right to take the oath and be

seated as a member of the 90th Congress, but addition-

ally and simultaneously to inquire into the question

i 2 Hearings 59.

13 Hearings 107.

of whether you should be punished or expelled pur-

suant to the powers granted by.the House under Ar-

ticle I, Section 5, Clause 2 of the Constitution. . In —

other words, the Select Committee is of the opinion

that at the conclusion of the present inquiry, it has —

autHority to report back to the House recommenda-

tions with respect to your seating, expulsion or other

punishment./4 —

Finally the letter queried whether i in both the seating phase

and the punishment and expulsion phase, Mr. Powell would

- refuse to testify about the legal: proceedings against him and —

his alleged officjal misconduct.. He was again invited to tes-

tify and advised ‘tie would be allowed to make a statement.

At the hearing on February. 14, attended by Mr. Powell’ S

attorneys but not’ by Mr. Powell, it was stated that Mr.

Powell would not testify concerning the court proceedings.

or alleged official misconduct in either phase of the Com-

. mittee’s inquiry. Mr. Powell’s attorneys reasserted their posi-

tion that age, citizenship, and inhabitancy were the exclu- :

sive qualifications, and, further, took the position that no

inquiry on the question of punishment or expulsion was

possible. until a Member had been seated, and that the two

issues—seating and punishment or expulsion—could not be

merged into one proceéding. 15. The Select Committee then |

proceeded to hear evidence concerning the New York liti-

gation involving Mr: Powell and evidence concerning the air

travel, expense-reimbursement and bank accounts | Mr.

Powell and his associates.

Neither Mr. Powell nor his stations attended the final

hearing of the Select Committee on February 16. At that’

time testimony was received from Mrs. Adam Clayton: Pow- ~

ell (Y. Marjorie Flores) with respect to her financial affairs

and those of her husband. Testimony was also received

147 etter from Emanuel Celler to Adam Clayton Powell, Vidisiets

10, 1967, in Hearings 110.

15 Hearings 111-13.

from a former assistant.to Mr. Powell concerning disburse-

ments for airplane travel. After the close of the hearings, —

counsel for Mr. Powell submitted another brief, reiterating _

the points previously raised.

On February 23, 1967, ‘the Select Committee ae its

report. Mr. Powell was found to be over 25 years of age,

a United States citizen for more than 7 years, and, on the ©

date of his election, an inhabitant of the State of New.

Yortk./©. The Committee also found, however; that Mr.

Powell had asserted an unwarranted privilege and immunity

from the processes of the courts of the State of New York;

had wrongfully and wilfully diverted House funds for use

of others and himself, in his capacity as a Member of Con-

gress and as a committee chairman; and had made false _

reports on expenditures of foreign eae: currency to the

Committee on House Administration./” Based on these

findings of fact, the Select Committee recommended the

errs of a resolution stating:

. ly That the Speaker administer the oath of office

to the said Adam Clayton Powell, Membegelect from

the 18th District of the State of New Yo

2, That upon taking the oath as a Member of the

90th Congress the said Adam Clayton Powell be brought |.

to the bar of the House in the custody of the Sergeant- —

at-Arms.of the House and be there publicly censured

by the Speaker in the name of ‘the House.)

3. That Adam Clayton Powell, as punishment, pay

‘to the Clerk of the House to be disposed of by him

-according to law; $40,000. The Sergeant-at-Arms of

the House is directed to deduct $1,000 per’ month

from the salary otherwise due the said Adam Clayton

Powell and pay the same to said Clerk, said deductions

to continue while any salary is due the said Adam Clay-

ton Powell as a Member of the House of Representa-

16The Committee report noted that no question as to Mr. Powell’s

_age or citizenship had been raised but that members of the House and

the public questioned his inhabitancy. «.R. REP. No. 27, 90th Cong.,

Ist Sess. 5'n. 7 (1967). |

'71d. at 31-32.

tives until.said $40,C90 is fully paid. Said sums received

by the Clerk shall offset to the extent thereof any liabil-

ity of the said Adam Clayton Powell to the United

States of America with respect to the matters referred

to in the above paragraphs 3 and 4 of the preamble to

this resolution. [See pp. 12-13 infra.]

4. That the seniority of the said Adam Clayton

Powell in the House of Representatives commence as

of the date he takes the oath as a Member of the 90th

Congress.

5. That if the said Adam Cleves Powell does not -

present himself to take the oath of office on or before

March 13, 1967, the seat of the 18th District of the

State of New York shall be. deemed vacant and the

Speaker shall notify the Governor sal the State of new

York of the existing vacancy. 18

The report and proposed resolution of the Select Com-

mittee were presented to the House on March 1, 1967./9

Although notice of this submission had been published in .

the Congressional Record,” Mr. Powell did not appear in -

the House on March 1. The House extensively debated the

proposed resolution, considering, inter alia, whether. age,

citizenship, and inhabitancy were the sole grounds for ex-

clusion from membership in the House; whether the House)

should first seat Mr. Powell and then determine whether to

punish or expel him; and whether a two-thirds vote would |

“-be required to exclude him on the basis of the Select Com-,

mittee’s findings. At the conclusion of debate, thé House |

rejected, by a vote of 222 to 202, a motion to bring the

resolution to an immediate vote. Mr. Curtis, of Missouri,

- Offered an amendment to the Committee resolution; the

thrust of the amendment. was to exclude Mr. Powell and’

declare his seat vacant. At this point The Speaker ruled that

a majority vote would ‘be sufficient to pam the resolution

181g at 34.

19The relevant proceedings on March 1, 1967, are: found at 113

Cong. Rec. H 1918-57-(daily ed. March 1, 1967).

20113 Cong. Rec. D 108 (daily ed. Feb. 24, 1967).

PPPOE eT WSL IEE ee ee ee SD EEE ET BE PEELE OO ALIS

AW ‘

if so amended.~” After further debate this amendment was

adopted by a roll call vote of 248 to 176. ‘The amended

resolution was then agreed upon, 307 to: 116. -The Select

Committee’s proposed preamble was then adopted so that

House Resolution 278, 90th — Ist Session, in its

final form read: % 7

‘WHEREAS, e Select Cosiiaadtiee appointed Pursuant

to H. Res. 1 90th Congress) has reached the follow-

ing conclusions:

First, Adam Clayton Powell possesses the requisite

qualifications of age, citizenship and inhabitancy for

membership in the House of. Representatives and holds -

a Certificate of Election from the State of New York.

“Second, Adam Clayton Powell has repeatedly ignored

the processes and authority of the courts in the State

of New York in legal proceedings pending therein to

which he is a party, and his contumacious conduct to-

wards the court of that State has caused him on several

occasions to be adjudicated in contempt thereof, there-

‘by reflecting discredit upon and bringing into disrepute

the’ Hoyse'of Representatives and its Members.

.. Third, as a Member of this House, Adam Clayton

Powell improperly maintained op-his clerk-hire payroll

Y. Marjorie Flores (Mrs. Adam C. Powell) from: August

14, 1964 to December 31, 1966, during which period

either she performed no ‘official duties whatever or

such duties were not performed in Washington, D. Cc.

or the State of New York as eiains bid law.

21 113 Cong. Rec. H 1942 (daily ed. March 1, 1967). Mr. Curtis,

speaking to his proffered amendment, stated:

During the debate on the resolution, for which this is a substi-

- tute, I advanced my own theory on what power was derived

* from the power of expulsion. I said that I felt the power of —

expulsion very clearly implied the right of exclusion. I do not .

see how anyone can argue — — against this implied.

power. sre

Also, if this is hi then in my own judgment pe

would require a two-thirds vote.

Fourth, as Chairman of the Committee on Educa-

tion and Labor, Adam Clayton Powell permitted and

participated in improper expenditures of government

funds for private purposes. . pted..

Fifth, the refusal of Adam Clayton Powell to ‘co-

operate with the Select Committee and_the Special

Subcommittee on Contracts of the House Administra-

tion Committee in their lawful inquiries authorized by

the House of Representatives was contemptuous and,

was conduct unworthy of a Member; Now, therefore,

be it ae

RESOLVED, That said Adam Clayton Powell, Member-

Elect from the Eighteenth District of the State of New

York, be and the same hereby is excluded from mém-

bership in the 90th Congress, and that the Speaker shall

notify the Gevernor of the State of New York of the.

existing vacancy. — | |

Thereafter, Appellants brought the suit from which the

present appeal .derives. Because of its importance to the

- resolution of the issues here presented, some attention must ,

be devoted to. the nature of the present claims. By their —

own statement of this case, Appellants sued the Members

of the present House of Representatives in a class action.

Their complaint in the District Court named Representatives _

John W. McCormack; Carl Albert, Gerald R. Ford, Emanuel

‘Celler, Arch A. Moore, Jr., and Thomas B. Curtis “‘individ-

ually and, pursuant to Rule 23(a) of the Federal Rules of

Civil Procedure, as representatives of a class of citizens who -

are presently serving in the 90th Congress as members. of

the House of Representatives.” Speaker McCormack was

also named in his official capacity. The Clerk of the House

_ of Representatives, the Sergeant-at-Arms and the Doorkeeper _

were each named individually and in their official capacities.

Appellants’ complaint challenged the action of the House

by claiming that “House Resolution No. 278 is null and

void and in violation of the’ Constitution of. the United.

States, in particular Article 1, Section 2(2) thereof which

sets forth the exclusive qualifications for membership in

the House: of Representatives,”.and also because “‘it vio- .

* eae ise a eae

lates Article I, Sectien | of ‘thie Constitution of the United

States which- provides that members of. the ‘House shall be

.... elected by. the-people-.of each state.”” It: “further alleged that - |

. the House action violated the “basic rights” of the electors...» ee

of the 18th Congressional. District of -New York and that,

as non-white citizens, these electors were being denied their. .

rights under. the fifth, thirteenth, and fifteenth amendments,

and, as females, certain of the electors were being denied

_. their rights-under the nineteenth amendment. The complaint

also attacked House Resolution 278 as a bill of attainder,

an ex post facto law and as cruel and unusual punishment..

Appellants further asserted that the hearings. conducted by

the Select Committee violated the. fifth dnd sixth amend-

ments by denying “the elemental rights of due process, in-

cluding but not limited to notice of charges, the right of

confrontation of witnesses, effective representation by coun-

‘sel who could cross-examine witnesses in —_— to any mat-—

ter alleged . Za

Mende ‘eee also challenged the actions of cer-

tain of the individuals here sued as follows. Speaker McCor-

mack was alleged to have violated the fifth amendment in

declaring a vacancy in the 18th Congressional District con-

trary to Article I, section 2(4), (5), section 3(6), (7) and

section 5(2), and.2 U.S.C. § 8 (1964). The Speaker was also

challenged for his refusal ‘to administer the oath to Mr.

Powell (“‘under color and authority of ‘his office and the

illegal and unconstitutional actions of the House of Repre-

sentatives’) and for his threat to exclude Mr. Powell from

occupancy of his office space. The complaint further stated -

that the Clerk of the House threatened to refuse to perform

the service for Mr. Powell to which a duly-elected Congress-

man is entitled, that the Sergeant-at-Arms refused to pay

Mr. Powell his salary, and that the Doorkeeper threatened

to refuse to admit Mr. Powell to the House Chamber.

We take special notice of the manner in which Appellants’

characterized their action: “this is a proceeding to restrain

the enforcement, — or execution of House Resolu-

tion No. 278....” The relief prayed for by the Appel-

SD AEE LAGS EEO PE ORG. -——~~s — =— eo -_— - men eee pee

Jants was that a statutory three-judge court be convened,

that it grant a permanent injunction restraining Appellees

from executing House Resolution 278, and that it issue a

permanent injunction restraining Speaker McCormack from

refusing to administer the oath, the Clerk from refusing to

perform the duties ‘due a Member Of’ the House; the

Sergeant-at-Arms from refusing to pay Mr. Powell, and the

Doorkeeper from refusing to admit Mr. Powell to the Cham- -

~~-ber. The requested injunction would also restrain the named

Representatives “and all other members of the class of citi-

zens they represent who are members of the House of Rep-

resentatives from: taking any action to enforce House Reso-- ~~

lution No. 278 or any other action which will deny to

plaintiff Adam Clayton Powell, Jr., the right to be seated ~

” The complaint also asked for declaratory daeda

that the denial of his seat violated the Constitution. In ad-.

dition, Appellants requested writs of mandamus to require

Speaker McCortfiack to administer the oath of office and

—to compel the relief requested against the other named offi- —

“ cials. ' Finally, Appellants requested preliminary injunctions

granting similar relief pending adjudication of the claims.

After detailed pleading and arguments of counsel, the Dis-

trict Court denied Appellants’ application for a three-judge

court, dismissed the complaint “for want of jurisdiction of -

the, subject matter,” and denied the motion for a prelimi-

' mary injunction. Powell.v. McCormack, 266 F. Supp. 354,

360 (D. D.C. 1967). On April 27, 1967, this court’ denied —

Appellants’ motion for summary reversal. ‘Appellants’ peti-

tion for writ of certiorari prior to judgment in this court

was denied. by the Supreme Court on May 29, 1967, Powell

v. McCormack, 387 U.S. 933 (1967).

While these legal proceedings were pending Mr. Powell ~

was ré-elected to the House of Representatives on April, 11,

1967. The formal certification of election was received by

the H on May 1, 1967. Mr. Powell has not presented

him: gain to the House ‘or asked to be given the oath of

office.

o . ,

Pr LOE LOT EES DOO LO LL ELIE LEA LEE PEEL II ALD EE SE GEO Ep ONAL LE IE LIEN LL FI IGO LES Pape Pan Bel Ate

16 ° faa

Claims and Issues |

_ The issues on this appeal raise profound questions of con-

stitutional law which go to the very heart of our form of

government of powers delegated to separate branches by a

written constitution. Inextricable are fundamental aspects

. Of our commitment to representative government with elec-

ted legislators responsible directly to the people. 5

Appellants contend: |

(a) that dismissal of the complaint in the District *

Court for want of jurisdiction was error;

_(b) that the claims are justiciable; .

twenty-five years of age, more than seven years a

citizen and an inhabitant of New York violated

~ Article I, sections 2 and 5 of the Constitution;

(d) that House Resolution 278 inflicted-on Mr. Pow-

' ell a punishment in violation of the Constitution;

(e) that Mr..Powell’s exclusion from the House vio-

‘ lated Due Process;

(f) that Mr: Powell’s exclusion from the House vio-

lated rights of the voters of his district to a free

choice of their representative;

(g) that federal courts have aie to grant relief re-

‘quested; and

(h) that the District Court deen Sn refusing to cartily

the necessity for a three-judge court.

Lina Aaiilitete contend:

(a) that the Speech’ or Debate Clause of Article I is

an absolute bar to the action;

(b) that there is no federal subject matter jurisdiction;

- (c) that the complaint presents a political question;

‘and

| (d) that the claims asserted are not justiciable.

3 ae

Constitutional Provisions

Because we will have frequent occasion to refer to the

. text of certain constitutional provisions, we set out here

some, of the pertinent séctions involved in this case:

Art. I, $2, ‘clause 2: “No Person shall be. a Representa- «

tive who shall not have attained to the age of twenty five

Years, and been seven Years a Citizen of the United States,

and who shall not, when elected, be an Inhabitant of the

‘State in which he shall be chosen.”

Art. I, 8 5, clause 1: “Each House shall be the Judge of

_ the Elections, Returns and Qualifications of its own Mem-

\ bers, and a Majority of each shall constitute a Quorum to

do Business; but a smaller Number_may adjourn from day

to day, and may be authorized to compel the Attendance

of absent Members, in such Manner, and under such Penal-

ties as each House may provide.”

Art. I, 8 5, clause 2: “Each House may determine the

Rules of its Proceedings, punish its. Members for disorderly

Behavior, and, with the Concurrence of two thisds, expel

a Member.”

' Art I, $6, iin 1: “The Senators and Representatives

shall receive a Compensation for their Services, to be ascer-

tained by Law, and paid out of the Treasury of the United

States. They shall in all Cases, except Treason, Felony, and

Breach of the Peace, be privileged from Arrest during their .

Attendance at the Session of their respective Houses, and

in going to andWreturning from the same;.and for any Speech

or Debate in either HouseZ — shall not be sn tuna in

-. any other Place.”

Art. Ill, 8 2, cleuse i: “The judicial Power shall 1 extend

to all Cases, in Law and Equity, arising ‘under this Consti-

tution, the Laws of the United States, and Treaties made;

“99

or which shail be’ made, under their Authority;....

PARTI

CAN THE CourT AcT?

JURISDICTION

Historically there have been at least two concepts of the’

exercise of federal jurisdiction. One is the classical concept

that once jurisdiction was found, a‘court could not decline

to act. In-Cohens v. Virginia,’ 19 U.S. (6, Wheat.) 264, 404

(1821), for

* view that:

We have no more right to decline the exercise of juris-

diction which is given, than to usurp that which is not

‘given, The one or the other would be treason to the

constitution.

See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78.

ample, Chief Justice Marshall articulated the

- (1803); Wechsler, Toward Neutral Principles of Constitution-

al Law, 73 Harv. L. Rev. 1, 2-9 (1959). A second view is

that, where a court finds jurisdiction, it may nevertheless de- _

‘cline to exercise its power. L. HAND, THE BILL OF RIGHTS 14-

18 (1958); Finkelstein, Judicial . PT NON, 37 Harv. L.

REV. 338 (1923).74

Much of what has been said and written on the niet

of jurisdiction, discretionary jurisdiction, justiciability, case

or controversy, and political question, and any effort to fix’

firm boundaries defining these concepts, is now merged into |

22Both competing theories are discussed i in BICKEL, THE LEAST —

DANGEROUS BRANCH 46-65 (1962). Professor Bickel himself comes

very close to the second concept in his views on prudential techniques

for avoiding the exercise of jurisdiction. Bickel, Foreward: The Passive

Virtues, 75 HARV. L. REV. 40 (1961). A more thorough analysis is

. set forth in Scharpf, Judicial Review and the Political Question: A

Functional Analysis, 75 YALE LJ. 517 (1966).

ells es

_ oa

19°

a series of cases,7the most significdnt-of which for our

purposes is Baker v. Carr, 369 U.S. 186 (1962). Almost —

imperceptibly at first, but. quite clearly by the 1962 holding

in Baker, the Supreme Court had established more compre-

hensive guidelines for. identifying federal, subject matter

jurisdiction and justiciability. Since the present case turns on

a constitutional grant of power to a co-equal branch; the

application of these guidelines will present what Mr. Justice

Brennan termed in Baker, “a delicate exercise in constitu-

tional interpretation,” id. at 211.

When a court finds that the subject matter of the case is

inappropriate for judicial consideration, Baker now estab-—

lishes that it is nonjusticiable and the court declines to ex-

ercise admitted jurisdiction: ~ |

The District Court was uncertain whether’our cases

withholding federal judiciaf relief rested upon a lack

of federal jurisdiction Or upon the inappropriateness

of the subject matter for judicial consideration—what -

we have designated “nonjusticiability. ”. The distinc-

tion between the two grounds is significant. In the in-

_ Stance of nonjusticiability, consideration of the cause ©

is not wholly and immediately forectosed; rather, the

Court’s inquiry necessarily proceeds to the point of de-

ciding whether the duty asserted can be judicially iden-

tified and its breach judicially determined, and whether

protection for the right asserted can be judicially

molded. In the instance - -of ‘lack of jurisdiction the.

cause either does not “arise under” the Federal Consti-

tution, laws or treaties (or fall within one of the other

enumerated categories of Art. II];8 2), or is not a “‘case

or controversy” within the meaning of that section; or

the cause is not one canines by any jurisdictional

statute. .

Baker v. = supra, at 198 bialblici weal

23500 e.g., Gomillion v. Lightfoot, 364 US. 339 (1960); Colegrove -

v. Green, 328 U.S. 549 (1946); marek Miller, 307 US. 433 (1939).

‘

’. vy bate

The difficulties arising from the‘terms used on this elusive

subject are suggested by the comMents of other members

of the Court in Baker. Mr. Justice Harlan, for —

described the majority holding as an “abrupt departure .

from judicial history.”” He went on to note’

| Once one cuts through the thicket of discussion de-

: voted to ‘ “jurisdiction,” “standing,” | “justiciabilify” and

““pglitical question,” there emerges a straightforward

iss ..Does the complaint disclose a violation of a

federal ‘constitutional right . . .*, a claim-ovér which a

United States. District Court would have jurisdiction .

under 28 U.S.C..§ 1343(3) and 42, U.S.C. § 1983? The

majority opinion does not actually discuss this basic

- question, but, as_one concurring Justice [Stewart] ob-

serves; Seems to decide it “sub silentio.” Ante; p. 261.

‘\Baker v. Carr, supra, at 330-31 (Harlan, = dissenting).

: In Baker, where the Court was dealing with state action,

*\what. the Court said, perhaps as much as what it did, staked

out something of the new dimensions of federal. subject

matter. jurisdiction, justiciability, the political question and _

other dostrines. If Baker was, as Mr. Justice Frankfurter

thought, “‘a ‘massive repudiation. of the experience of our

.. whole past,” id. ‘at267 (dissenting opinion), it is a holding

which: points the way-for us as to the issues of jurisdiction

and justiciability. | te, ;

“Ton

Mr. “Justice Brennan in Baker enumerated these criteria . .

each of which: must be present to establish the existence of

federal subject matter jurisdiction:: ng .

(1) the cause must “arise under” the Federal Consti:

tution, laws, or treaties (or fall within one of the

other enumerated categories of Article III, ‘section

2), and

(2) the cause must be a “case or controversy” within

the ‘meaning of Article III, section 2, and

(3) “the ‘cause must be described’ in a jurisdictional

Ae statute enacted by Congress.

as *:198.°

, 20 | S + Nee *

1. Arising Under the Federal Constitution.

- Subject to congressional enactment, Article III, séction 2,

grants federal courts jurisdiction over “‘ai: Cases, in Law and

Equity, arising under this Constitution, the Laws: of -the

United States, and Treaties made, or which shall’ be made,

under their authority; ....”. In 1875 Congress used simi- _

lar language in a statute granting federal courts general and’

~ original jurisdiction over such cases. Act of March 3; 1875,

ch. 137, § 1, 18 Stat. 470. See 28 U.S.C. § 1331(a) (1964).

‘A commentator has recently noted that: |

dis [t] he key phrase, both. in the Constitution and in the

- statute, is “arises under.” Though the meaning of this

phrase has attracted the interest.of such giants of the

bench as Marshall, Waite, Bradley, the first Harlan,

_ Holmes, Cardozo, and Fran‘<furter, and has been the

subject of voluminous scholarly writing, it cannot be

said that any clear test has yét been developed to de-

termine which cases “arise under” the Constitution,

. laws, or treaties of the United States.

¢ WRIGHT, FEDERAL Courts 48 (1963).

Appellants’ complaint*in the District Court is predicated

on the several Article I powers of the House, Article III, and

on the Bill of Rights and Civil Rights Amendments. Neither .

the litigants nor the District Court?* challenged the substan-

tiality and importance of the constitutional claims, one of

the most. significant -fa¢tors in the determination of subject

. matter jurisdiction.” Jhus, leaving for subsequent discussion

* 24Powell v. McCormack, 266 F. Supp: 354, 355-56 (D-D-C. 1967).

25 Dismissal of the complaint upon the ground 6F lack of jurisdic-.

tion of the subject matter would, therefore, be justified only if

- that claim were “so attenuated and unsubstantial as to be abso-

lutely devoid of merit,” Newburyport Water Co. v. ‘Newburyport,

_ 193 U.S. 561, 579, or “frivolous,” Bell v. Hood, 327 U.S. 678,

683. That the claim is unsubstantial must be “very plain.” — |

v. Keith Vaudeville Exchange, 262 U.S. 271, 274.

Baker v. Carr, supra, at 199 (footnote. omitted).

- Ze

the question of whether the case “arises under” in the con-

text of the statutory grant of jurisdiction, this caése would

appear to present a =o claim which arises “directly”

under the Constitutuon,”° and thus “arises under’’ in the

context of the constitutional grant of jurisdiction of Article”

Ill: This conclusion is fortified by the broad reading given

to Article III by Chief Justice Marshall in Osborn v. Bank -

of the United States, 22 U.S. (9 Wheat.) 738, 846-58 (1824). ©

See WRIGHT, supra, at 48-52;-Chadbourn & Levin, Original

Jurisdiction of Federal eeton. 90 U. Pa. L. REV. 639, 649

(1942). ;

Appellees argue that the issue seeebibeis by this case arises

_ exclusively and finally under Article I, section 5; and thus

the casé is withdrawn from the judicial power articulated in.

Article III. Their argument, which has the support of vari-

ous contemporary constitutional authorities,’ is that the

text of the Constitution—“‘Each House shall be the Judge of

the Elections, Returns and Qualifications of its own Mem-:

bers”—carved out from the Article III judicial powers all

jurisdiction af the courts to review congressional judgment

under this clause. Stated in another. way, Appellees’ argu-

ment is that the Constitution assigned this special kind of

‘judging function to the Legislative Branch:@° If so, it is the

Constitution’s allocation of powers that requires this result,

rather than any failure of the claim to arise under the Con-

stitution. Article III grants judicial power to cases “‘arising

| 26 Mishkin, The “Federal Question” in am District Courts, 53 -

COLUM. L. REV. 157, 165-68 (1953).

27See Frank, Political Questions, in SUPREME COURT AND SUPREME

LAW 36 (E. Cahn ed. sist Scharpf, supra note 22, at 539-40; Wech-

gler, supra, at 8.

{ _28 appellees’ argument finds its logical basis in the classical theory

of judicial review previously discussed. Under that view, as Professor

Wechsler noted, the primary question is whether the Constitution

commits the “autonomous determination” of the issue to another:

coordinate branch. Wechsler, supra, at 7-9.

c Case or Controversy.

“case or controversy” to mean cases or controversies “of a

Refugee‘ Comm. v. MeGrath, 341 U.S. 123 (1951) (Frank-*

under” the Constitution as a whole, not under any particu-

lar provision of it.

It is clear from the debates at the Philadelphia inieie.

tion that the Framers intended Article III’s requirement of

judiciary nature.” E.g.,°2 M. FARRAND, RECORDS OF THE FED-.

ERAL CONVENTION OF 1787, at 430 (rev. ed. 1966). Analysis

of English and Colonial precedents shows that after a long

and bitter struggle judicial bodies were denied the power of

review over legislative judgments concerning elections and

qualifications of members. See 1 H. REMICK, THE POWERS OF

CONGRESS IN RESPECT TO MEMBERSHIP AND ELECTIONS 1-62

(1929); see generally M.CLARKE, PARLIAMENTARY PRIVILEGE

IN THE AMERICAN COLONIES (1943); C. WITTKE, THE HISTORY OF

ENGLISH PARLIAMENTARY PRIVILEGE (1921). Nothing at the

Convention suggests that the “case or controversy” language

of Article III was intended to change this familiar and his-

torical allocation of powers. See 2 M. FARRAND, supra, at

39, 132-33, 186. Indeed, where. departures from English

precedents were intended they were explicitly written into.

Article Ill; for example, the provision extending judicial |

power to include cases in equity, 2 id. at 428. a

- No cases have been, cited as directly holding, and our

search has not revealed any basis for saying, that a claim to

a seat in the House is of a kind traditionally the concern of

courts in the sense, for example, that Mr. Justice Frankfur-

ter viewed traditional cases:as those which English courts .

dealt with at the time of our Convention, Joint Anti-Fascist™

furter, J., concurring); Coleman v. Miller, 307 U.S. 433, 460

(1939) (Frankfurter, J., concurring); see Atlas Life Ins. Co.

v. W.I. Southern, Inc., 306 U.S. 563, 568 (1939). All tradi-

tions must have a genesis, however, and legal traditions are

no.exception. One might view Bond v. Floyd; 385 U.S. 116

(1966), for example, as departing from exi

tions when it found jurisdiction over a stdte legi

. 24

to his seat. It is interesting, however, that nowhere in the

opinions of the three-judge Bond court is there any discus-

sion of “‘case or controversy.” Bond v. Floyd, 251 F.Supp.

333 (N.D. Ga. 1966). Nor did the Supreme Court opinion -

in Bond elaborate on the “case or controversy” aspect. The

presence of a case or controversy was seemingly taken for .

granted or decided sub silentio. The same is true in Baker

v. Carr. Although Baker explicitly tabulates “case or con-

-_troversy” as one of. three indispensable factors for jurisdic-:

tion, nowhere in that opinion is there any discossion indi-.

cating just how the. reapportionment of state electoral dis-

tricts fell within the scope of matters “of a judiciary

-nature.”2? Yet the holding plainly assumes that a case‘ or

controversy’ was presented.

Against . this background we can hardly conclude. that Mr.

. Powell’s claim to a seat in the House fails to present a case -

or controversy as those terms must now be construed. °

a Statutory Grant of Jurisdiction.

Even where tlie requisites of Article III, section 2 are

‘met—that is, the claim presents a case or controversy which

“arises under” the Constitution or laws of the United

States—jurisdiction of federal courts -is dependent on an

affirmative grant by Congress. U.S. Const. art. III, $ 1;

Baker v. Carr, supra, at 198; Ex parte McCardle, 74 U.S. (7

Wall.) 506 (1868).

Our.examination of the various jurisdictional statutes re-

lied upon by Appellants reveals that jurisdiction can be based

only on 28 U.S.C. $1331(a) (1964), the relevant provision:

‘ 29 The Court ‘merely stated:. “Our conclusion’; - that this nl

presents no nonjusticiable ‘political question’ settles the only po

doubt that it is a case or controversy.” Baker v. Carr, supra, at ee

30 Appellants also rely on the Declaratory Judgment Act, 28 U. S.c.

8§ 2201-02 (1964), and the Three Judge Court statute, 28 U.S.C. § 2282

(1964), but it is clear that these statutes are not jurisdictional. Skelly

~ Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950) (de-

claratory judgment); Cadillac Publishing Co. v. Summerfield, 97 U.S.

~App.D.C. 14, 227 F.2d 29, cert. denied,-350 U.S. 901 (1955) (same);

Van Buskirk v. Wilkinson, 216 F.2d 735 (9th Cir. 1954) (three judge

of which is: “The district courts shall have original juris- |

_ diction of all civil actions . . [which arise] under the Con-

stitution, laws, or treaties of the United States.” Although

there is a paucity of legislative history for the statute, see -

generally FRANKFURTER & LANDIS, THE BUSINESS OF THE

. SUPREME Court 65-69 (1927), commentators agree that a _

_ broad grant of jurisdiction was intended. Mishkin, sunra

note 26, .at 160; Chadbourn & Levin, supra, at 644-45

_. (1942); Forrester, The Nature of a “Federal Question,” 16

* TULANE L. REV. 362, 374-85 (1942). We have already de-

termined that this case “arises under” for the purposes of -

the Article III definition of judicial power. While section

1331 is not to be equated with the potential for federal jur-

isdiction in Article III, see, e.g., Zwickler v. Koota, 389 U.S.

241; 246-47 n.8 (1967), and cases cited therein, we con-

clude that the statute is broad enough to operate as an

affirmative jurisdictional grant here. See, e.g. Gully v.

First Nat'l Bank, 299 U.S. 109, 112-14 (1936); Bergman,

Reappraisal of Federal Question Jurisdiction, 46 Mich. L.

REv. 17, 39-45 sen. 51

court). \The civil rights statutes relied upon, 42 U.S.C. 8 1971(a\(1),

1981, 1983 (1964), and 42 U.S.C. § 1971(a)(2).(1964), as amended,

§ 15, 79 Stat. 445 (1965), are not applicable because they deal either

with state action or with specific acts of voter discrimination which

are not alleged to have been involved here. Appellants’ final jurisdic-

tional predicate, 28 U.S.C. § 1343€4) (1964) is equally unavailing. To-

the extent that it might confer jurisdiction as to federal deprivation

of civil rights protected by Acts of Congress, those very acts, we have

just noted, are not applicable here.

31 Appellees argue that 28 U.S.C. § 1344 (1964), conferring juris-

diction to recover possession of office but excluding the office of

Representative in the House, plainly denied jurisdiction in cases like |

this. See Johnson v. Stevenson, 170 F.2d 108 (Sth Cir. 1948), cert.

’ denied, 336 U.S. 904 (1949). That statute, however, is limited to ~

election disputes. In addition, it requires that the sole question

involved arise out of the denial of voting rights on account of race, _

color or servitude.

FLEE PETER ED NTN BR NER RE RE SION IT LT RENE ALI ALY Gate RGR NERC IID, Rte AEN * later -7 Seema

PART II

SHOULD THE CourTS AcT? |

JUSTICIABILITY-DISCRETION TO ACT ae

4 Having found that under Baker jurisdiction arises, we now

_ turn to the inquiry as to the appropriateness or inappropri-

ateness of the subject matter of Appellants’ claims for judi- -

cial consideration. Absent federal subject matter jurisdic-

tion there would be: nothing on which a court could act,

but “in the instance of nonjusticiability, consideration of

the cause is not wholly and immediately foreclosed; rather

the court’s inquiry necessarily proceeds” to determine

whether a duty and its breach can be identified and deter-

mined and a remedy molded. Baker v. Carr, supra, at 198.

Appellees argue that the cause presents on its face a

“political question.” But.the fact that a claim seeks the

enforcement of a political right or a elaim to political of-

- fice, as here, does not necessarily mean that it raises a “‘polit-

ical question.”. See, e.g., Bond y. Floyd, supra. The term

“political” has been used to distinguish questions which are

essentially for decision. by the political branches from those_

which. are essentially for adjudication by the judicial branch.

- For other dismissals based on lack of a jurisdictional statute see .

Peterson v. Sears, 238 F: Supp. 12 (N.D. Iowa 1964) (suit to enjoin |

voting officials from unlocking voting machines after congressional

election); Keogh v. Horner, 8 F. Supp. 933 (S.D. Ill. 1934) (suit for

writ of prohibition against Governor’s issuance of certificate of elec-

tion of Congressman).

32 The standard authorities on‘the nature , of a “political siation”

are: Frank, supra note 27, at 36-43; POST, THE SUPREME COURT AND

- POLITICAL QUESTIONS (1936); Field, The Doctrine of Political Ques-

tions in the Federal Courts, 8 MINN. L. REV. 485 (1924); Finkelstein,

Judicial Self-Limitation, 37 HARV. L. REV. 338 (1924); Finkelstein,

Further Notes on Judicial Self-Limitation, 39 HARV. L. REV. 221

(1926); McCloskey, Foreward: The Reapportionment Case, 76 HARV.

L. REV. 54, 59-64 (1962); Scharpf, supra note 22; Weston, Political

Questions, 38 HARV. L. REV. 296 (1925).

In some areas the political question can be readily dis-

_ cerned; for example, the conduct of foreign policy is vésted ~

exclusively in the Executive, e.g., United States v. Curtiss-

Wright Export Corp., 299 U.S: 304, 319 (1936);:Oetjen v.

Central Leather Co., 246 U.S. 297, 302 (1918), whereas: the

power to declare war or raise armies is vested in the Con-

gress, U.S. Const. art. 1, § 8. Even in these areas questions

can arise on the peripheries so that the labels of “foreign

policy” or “state of war” are not automatic barriers to all

' judicial scrutiny, e.g., The Three Friends, 166 U.S. 1, 63-66

(1897); Baker v. Carr, supra, at 212-13, and cases cited

therein. No purpose would be served in pursuing delinea- :

- tion and we refer to it only to indicate that the law does

_not pivot on labels, éven those of constitutional origin.

Appellees stress the applicability of a series of cases con-

taining language indicating that the exercise of congressional

power to judge fire qualifications of Members is beyond the

scope of: the judicial power, i.e.,’ the courts have no juris-

diction at all. In the cases cited to us, either the issue of _

jurisdiction was never reached? or the language relied upon

is dictum.*4 Nevertheless, we note that they treat this con-

gressional power as exclusive.*>

33 g., Seymour v. United States, 77 F.2d 577, 584 (8th Cir: 1935).

J4Reed y. County Commissioners, 277 U.S. 376, 388 (1928); Jones

v. Montague, 194 U.S. 147, 153 (1904); Jphnson v. Stevenson, 170

.F.2d 108, 110 (Sth Cir, 1948), ‘cert. denied, 336 U.S.-904 (1949);

Application of James, 241 F. Supp. 858, 860 (S.D: N.Y. 1965); Peter-

‘Son v: Sears, 238 F. Supp. 12, 13-14 (N.D. Fowa 1964); Keogh v.

Horner, 8 F. Supp. 933, 935-(S.D. Ill. 1934); In re Voorhis, 291 Fed.

673, 675 (S.D. N.Y. 1923). : |

In three of these cases, Johnson, Peterson, and Keogh, the decision

was based on lack of an appropriate jurisdictional statute.

IS For state cases to a‘similar effect see Laxalt v. ‘Cannon, 80 Nev.

588, 397 P.2d 466 (1964); Jn re Williams’ Contest, 198 Minn. 516,

270 N.W. 58641936). Cy les ais

trite ALD LER OTE WEE IE IO

The only holding of this court which bears directly on -

the issue is Sevilla v. Elizalde, 72 App. D.C. 108, 112 F.2d

29 (1940). In Sevilla, a resident of the Philippine Common-.

wealth sought a bill in equity to enjoin the resident com- *

' missioner of the Philippines from holding office because he

lacked the requisite qualifications. The qualifications wére

specified in the Independence Act which provided for the

resident ‘commissioner to. have a seat but no vote in

the United States House of Representatives. “The court |

_ characterized his role partly as a diplomatic resident of a _

“foreign” state and partly as a territorial delegate to Con-

_ gress. Noting that the question of the qualifications of for-

eign diplomats was committed to the Executive, and the

"question of the qualifications of a delegate was committed

_ to Congress, this court held that the case presented a poli-

tical question: | sre

Courts have no jurisdiction to decide political ques-

tions. These are such as to have been entrusted by the

sovereign for decision to the so-called political depart-

ments of government, as distinguished from questions ©

, which the sovereign has set to be decided in ‘the courts. °

* * *

Article I, section 5 of the Constitation provides that

“each house shall be the judge of the elections, returns

and qualifications of its own members.” And the

Supreme Court has recognized that ‘although these

powers are judicial, as distinguished from legislative or

executive, in type, they have nevertheless been lodged’

in the legislative branch by the Constitution.

Id. at 111, 116, 112 F.2d at 32, 37. The Sevilla holding

standing alone might well be dispositive of the instant ap-

peal but it must be read in light of cases since then culmi-

nating in Baker. ;

The Supreme Court case on a the Sevilla court re- ,

lied in reaching its conclusion is Barry v. United States ex

rel, Cunningham, 279 U.S. 597 (1929). There a Senate in-

‘vestigation into the election of.a Senator involved the sub-

poena of a witness to testify as to the source of campaign

contributions. He. refused and the Senate ordered him

TE EM Sa NR 88 LI Ie IO RNR CeCe aay pt ome nora nen of . Ragen meme: - -t

: . rns 7 . me a a

es encompassed the power to “render a judgment which is be-

arrested and brought to the Chamber. The Supreme Court

held that the Senate had the power to bring a witness be-

fore it by arrest warrant pursuant to the exercise of its —

power to judge the qualifications of its Members.*° More im- -

portantly, the Supreme Court in that the power to judge

yond the-authority of any other tribunal to review,” id. at

613. See Mr. Justice Douglas’ concurring opinion in Baker |

v. Carr, supra, at 242 n.2: “Of course each House of Con-

gress, not the Court, is ‘the Judge of the Elections, Retums

and Qualifications of its own Members. iid

Nonjusticiability of a question because it is found to be .

essentially political is declared by Baker to be a doctrine pe-

culiar to confrontations within the federal establishment and

derives from the fufdamental structure of our system of

divided and separate powers.?”_ In Baker and Bond any pos-

- sible confrontation was between federal power and a state.

Cautiously avoiding any attempt to state the exclusive criteria

for identifying a potitical quéstion, Mr. Justice Brennan in

Baker suggested six factors to be found “prominent: on the.

surface” of a political question case. They bear restatement:

[1] a textually demonstrable. constitutional-commit-

ment of the issue to a coordinate political department;

:(2] or a lack of judicially discoverable and sage a

able standards for resolving it;

ed | Barry the Senate was not judging ottieses in the sense.

here involved but inqyiring into whether, because: of fraud and illegal

conduct of the candidate, no “election” had been held.

3711} n. the Guaranty Clause ‘cases and in the other “political ques-

' tion” cases, it is the relationship between the judiciary and the

coordinate branches of the Federal Government, and not the

federal judiciary’s relationship to the States, which gives rise to

the “political question.”

Baker v. Carr, supra, at 210. See McCloskey, supra note 32, at 62.

Luther v. Borden, 48 U.S. (7 How.) 1 (1849); is the foremost of

the guaranty clause cases. Although the dispute there arose within

a state, the court focused on the potential conflict between the fed-

_eral judicial power and the obligation of the legislative and executive

branches to fulfill the guaranty clause. a

ee ee Eade or Ss cet tals

[3] or the impossibility | of deciding without an initial —

policy determination of a kind clearly for nonjudicial

discretion;

[4] or the- impossibility of a court’s undertaking inde-

pendent resolution without expressing lack of the re-

spect due coordinate branches of government;

[5] or an unusual need for unquestioning adherence

_to a political decision already made; .

[6] or the potentiality of embarrassment from multi-

farious pronouncements by various departments on one

question.

Baker v. Carr, supra, at 217, .

Treating these as “symptoms” of a nonjusticiable politi-

cal question, rather than as the exclusive criteria for iden-

tifying one, we turn to their application to this record, hav- .

in mind that under Baker the presence of any one of

these six factors may be a bar to justiciability. This much

Baker has settled. ~p ~ \

(1) Article I, section 5 of the \Constitution would seem:

in plain terms to vest in the House\“‘a textually demonstrable

constitutional commitment of the issue” of a judging func-

tion Concerning the elections, returns and qualifications of

its own Members. The language that “‘Each House shall be

the judge” cari hardly mean less than that the Members, for

” this purpose, become “judges,” withdrawing judging of qual-

» ifications from. the judicial branch. —

_. MroPowell and the class Appellants contend that what

was textually committed to the House By Article I, section :

5 was the narrow power to judge whether a Member-elect

met the Article I, section 2, criteria of age, citizenship and

inhabitancy and no more. On its face, section 5 commits

the power .to judge qualifications to the House in some mea-

sure.” 38 Although it may not be necessary to decide whether

38 Deciding v whether a matter has in any measure been committed

by the Constitution to another branch of government, or whether

‘the action of that branch exceeds whatever authority has been

_ committed, is itself a delicate exercise in constitutional inter- .

; 31 «:

tC ;

the pawer is confined to section 2 criteria or limited in

some other respect, it is clear that a general power of judg-

ing has been committed by the Constitution to the House. |

If other factors, now to be considered, render the claims in-

appropriate for consideration, we need’ not rely on what

seems td be 4 textual commitment.

(2) Are there “‘judicially discoverable ahd ‘manageable

standards for resolving” the issues raised? Laying aside for

the present /the availability of an efficient judicial remedy,

it would be difficult to say that there are no “manageable

standards”/for adjudicating the issues raised. Familiar judi-

cial techniques are available to construe the meaning of Ar-

ticle I, ion 2, criteria of age, citizenship, and inhabitancy

and to d¢cide whether these are the sole grounds on which

r-elect may constitutionally be excluded. The lan-

‘guage of Baker, “manageable standards for resolving” the

claims must, however, be read in light of the earlier for-

mulation inquiring “whether protection for the right asserted

_ can be judicially molded.” , When we consider whether tlie °

avail ble “manageable standards” are adequate for resolving

the question in the sense: of solving and settling it, we are

forged to conclude that courts do not. possess the requisite

mé¢ans to ‘fashion a meaningful remedy to compel Members

the House to vote to seat Mr. Powell ‘or to sone) The

peaker to administer the oath.

(3) This case does not present aspects to which’ fp he third

criterion of Baker applies since the determination of the

scope of a constitutional grant of power is not an “initial.

polj “determination of a kind clearly for non-judicial dis-_ .

Pein’ such as a declaration of war. | : :

(4) It is difficult to see, assuming a decision fev crathe to

Mr. Powell, that there could be an efficient judicial resolu-

tion which was contrary to the action of the House “with- ’

4 4

i coseemieniennmmmmenal

pretation, and is a responsibility of this amet ¢ as ultimate inter-

» preter of the Constitution. ,

Baker v. Carr, supra, at 211 (emphasis added).

~ . out expressing lack of respect due coordinate saniahiie of

ie government.” Appellants urge that the courts should not

concer themselves with the prospect of a direct conftonta-

tion because Members of the House, or a majority of them,

_ would as a matter. of comityS respect a holding of this.court

and abide by its rulings. The issue is not, however, what

_ _Feaction could be expected from the coordinate branch, but

the nature of the judicial mandate requested.- Assuming that .

~ the House would yield, this does not show: that our mandate

#, would not indicate disrespect for a coordinate branch.

*.. (5) There does not seem to be Present, except as it arises

. out’ of paragraphs (1) and (4) above, “an unusual need for

unquestioning adherence to a political decision deady -

. made.”. This. fifth, -Criterion of Baker has no direct relevance

here as it. would for. example to a specific foreign policy de- - |

termination within the scope of. Executive power. See, e.g.,

* Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp.,

+333 U.S. 103 (1948); Eminente v. Johnson, 124 U.S.App. .

- D.C. 56,-361 F.22 73, cert. denied, 385 U.S. 929 (1966);

Pauling v. McNamara, 118.U.S.App.D.C. 50, 331 F.2d =

, otra] cert. denied, 377 U.S. 933 (1964). :

) There is, in- only a Jimited sense, and perhaps not at

all in the sense contemplated by Baker, a “potentiality of

‘embarrassment from multifarious pronouncements by var-

ious departments on one question.” However, if we view

the risk of conflicting pronouncements by the House and

the courts as within this criterion, the potential for embar-

' rassment israther obvious. A judicial mandate to seat Mr.

Powell would in effect be accommand to The Speaker to ad-

‘minister the oath contrary to the terms of House Resolution

278.- The command to seat Mr. Powell might be obviated

> were we to hold that our mandate constituted an “equity.

substitute” for a resolution of the House, the effect of which

‘would be to’ treat him’ as having been sworn and seated. But

_ the resulting confusion ‘ftom such conflicting pronounce-

| ments seems s clear.

It would therefore appear that not one but probably

several of the Baker “symptoms”, of nonjusticiability are

prominent on the surface of the claims asserted and indeed

are inextricable from them; this alone might. well be suffi-

cient to warrant a conclusion of “the inappropriateness of

_the subject matter for judicial consideration.”” Baker v. Carr,

supra, at 198. Baker, it will be recalled, emphasizes the dif-

. ference between jurisdiction and justiciability. After-stating

that the distinction ‘“‘is significant,” the Court noted:

In the instance of nonjusticiability, consideration of

the cause is not wholly and immediately foreclosed;

rather, the Court’s inquiry necessarily proceeds to the

point of deciding whether the duty asserted can be

judicially identified, its breach judicially determined,

and. whether protection for the right asserted can be

judicially molded, :

Ibid (emphasis added).

If we read “duty” and “breach”. in ‘the conventional judi-_

_ Cial sense, good arguments. can be advanced that we can

judicially identify the asserted duty of the House to seat a

qualified Member-elect, and that a breach of such a duty

can, in the abstract, be judicially determined. We will as-

sume, arguendo, that these hurdles are cleared. However,

when we come to the next inquiry, “whether protection for .

. the right asserted can be ju icially niolded,” we are con-

claims involving state action.: Although Professor Wechsler

was not pointing to precisely the problem we have here, his

characterization of political questions is apropos: “what

is crucial . . . is not the nature of the question but the na-

ture of the answer that may wr be given by the courts.”

Wechsler, supra, at 15.’

In Baker, the Supreme Court concluded that protection ’

for the rights arising under the equal protection Clause could

be molded, saying “we have no cause at this stage to doubt

: 34

, the District Court will be able to fashion relief .. ..”” Baker

_v. Carr, supra, at 198. No further elucidation of this is

found in the Court’s opinion. The only other reference to . .

the scope and mechanics of the relief to be molded is the

comment of Mr. Justice Douglas that “‘any relief accorded

. can be fashioned in the light of, well-known principles of

equity.” Id. at 250 (Douglas, J., concurring opinion).

Can the District Court mold relief which will protect the ©

rights.here asserted? Looking first: to the complaint in the .

District Court, we find that after the prayer for a three-judge

court, the complaint asks judgment: :

(1) ‘to enjoin execution of House Resolution 278;

(2) to require The Speaker of the House to admini-

ster the oath-to Mr. Powell;

(3) to enjoin all Members of the House rote t any ac-

tion to enforce Resolution 278 or otherwise to -

deny Mr. Powell his seat;

(4) for declaratory judgment declaring House Resolu-

tion 278 null and void;

(5) for injunctive and mandatory reli S Siesaed to

non-elected employees of the House relating to

access to-the House, pay, and other perquisites of

the office of a Member. :

Any judgment which enjoined execution of House" iineo-

lution 278, or commanded: the Speaker of the House to ad-

minister the oath, or commanded Members of the House as

to any action or vote within the Chamber would inevitably

bfing about a direct confrontation with a‘co-equal branch _ .

and if that did not indicate lack of respect due that Branch, |

‘it would at best be a gesture hardly comporting | with our

_ ideas of separate co-equal branches of the federal establish-

ment. These circumstances would give rise to a classic polit-

ical question and fall within the definition of such 4 question

under Baker. Ont this record, therefore, the claims of Appel-

lants for coercive equitable relief are inappropriate. for judi-

cial consideration.

—_

- Appropriateness of Siebject Matter:

‘for Declaratory Relief

Although we have determined that we cannot mold relief

in coercive form, we next consider Appellants’ claims for a

declaratory judgment independent of the coercive equitable

relief sought.2? Cf Zwickler v. Koota, 389 U.S. 241, 253-

54 (1967). The Declaratory Judgment Act provides: /

In a case of actual controversy within its jurisdiction,

. except with respect to Federal taxes, any court of the.

United States, upon the filing of an appropriate plead-

ing, may declare the rights and other legal relations of

any interested party seeking such declaration, whether

or not further relief is or could be sought. Any such |

declaration shall have the force and effect of a final

judgment or decree and shall be reviewable as such.

28 U.S.C. § 2201 (1964).

A declaratory judgment i is Sui generis, neither strictly legal

nor equitable, United States Fidelity & Guar. Co. v. Koch,

102: F.2d° 288, 290-91 (3d Cir. 1939). In common with .

equitable relief, however, it recognizes judicial competence

to declare rights without imposing a duty to do so, ie., its

exercise is discretionary. Public ‘Affairs Associates, Inc. v. .

39 One of the reasons, not present here. however, that declaratory

relief should be considered independently of other relief is the fact

that coercive relief “looks only to some immediate need, whereas the

declaration of rights, by clarifying the ae relations, has prospective

value in stabilizing the legal position . . . .”* BORCHARD, DECLARA: .

_ TORY JUDGMENTS 433 (2d ed. 1941). ) ,

40 All authorities nak that the purpose of a declaratory judgment

is to settle actual controversies before they ripen into violations of”

law or breaches of duty and to afford relief from uncertainty and inse-

curity by a “premature” adjudication. See, e.g., BORCHARD, ‘supra

note 39, at 299; Luckenbach S.S. Co. v. United States, 312 E.2d

545 (2d Cir. 1963); Scott-Burr Stores ae v. Wiltox, 194 F. ad 989 ©

(Sth Cir. a

: - “s

a a

Rickover, 369 U.S. 111, 112 (1962).” It is clear. that this

discretion must be exercised judiciously and cautiously, with

regard for the circumstances of the case and the purpose of

- a declaratory judgment. The Supreme Court recently noted:

[T]he propriety of declaratory relief in a particular. .

case will depend upon a.circumspect sense of its fitness

informed by the teachings and experience concerning

the functions and extent\of federal judicial power.

Public Serv. Comm'n v. Wykoff, supra note 41, at 243 (em-

phasis added). Some of the same. factors which led us.to

hold that judicial consideration of the claims was not appro-

« _ priate, dictate a holding that we decline to. undertake declar-

atory relief. Declaratory relief m this case is particularly _

inappropriate since it could not finally terminate the con- .

troversy,* indeed, it might well tend to resurrect the very

conflict our holding of inappropriateness seeks to avoid. wy

Our conclusion is reinforced by Mr. Justice Frankfurter’s

opinion in Colegrove v. Green, 328 U.S. 549 (1946), which,

although modified in other aspects by Baker and its progeny,

remains. relevant with respect to the discussion of declara-

tory judgments:

41 S¢6 dni: Vv. Qk 381 U.S. 1 (1965); Public Serv. Comm’n v.

Wykoff Co., 344 U.S. 237 (1952); Eccles v. Peoples Bank, 333 U.S.

426 (1948); Great Lakes Dredge & Dock Co. v, ‘Huffman; 319.U.S.

293 (1943); Brillhart.v: Excess Ins. Co., 316 U.S. 491 (1942); Lamp-

’ kin v. Connor, 123 U.S.App.D.C. 371, 360 F.2d 505 (1966); Marcello

v. Kennedy, 114'U.S.App.D.C. 147, 312 F.2d 874 (1962), cert. de-

nied, 373 U.S. 933 (1963).

42Cf, Chi-Toine Hotel Apartments Bldg. Corp. v. iiss, 204

* F.2d 29% 258 (7th Cir. 1953); United States v Tin 176 F:2d 278, .

. - 280 (9th Cir. 1949). :

. 43 See Sellers v. Johnson, 69 F. Sepp. 778, 786 (S. D. Towa 1946);

rev'd on other grounds, 163 F.2d 877 (8th Cir. 1947), cert. denied,

_ 332 U,S. 851 (1948); Doehler Metal Furniture Co. v: sea wae 76 US.

-. App. D.C. 60, 129 F. 2d - re —r.

_ And so, the test for determining whether a federal court

has authority to make a declaration such as is here-

asked, is whether.the controversy “‘would be justiciable:' -

in this Court if presented in a suit for injunction. .

rela C. & St. L..R. Co. v. Wallace, 288 US. 249, ,

Id. at 551-52. See also Aetna Life Ins. Co.’v. Kinient, 300

U.S. 227 (1934); 6A Moore, FEDERAL PRACTICE 1 57.14, at

3078 (2d ed. 1964) (“The Declaratory Judgment Act does

.not attempt, nor can it be used to avoid this fundamental

judicial principle: [political questions] .’’).

The Claims of Voters

We cannot be unmindful of the claims which relate to

the highly important cdnstitutional rights to vote and to be

represented by the choice reflected by the voting process.

These are by no means unimportant claims. The “right to

vote freely for the candidate of one’s choice is of the

essence of a democratic society, and any restrictions on that

right strtke at the heart’ of representative government.”

Reynolds v. Sims, 377 U.S. 533, 555 (1964); see Wesberry |

v. Sanders, 376 U.S. 1, 13 (1964). The-right of all voters

who meet a state’s qualifications to vote is protected by the

Constitution and by corigressional’ acts, Ex Parte Yarbrough,

110 U.S. 651 (1884); United States v. Classic, 313 U.S. 299 ©

(1941), and the qualifications established by the states may

not discriminate either in terms of race or color, U.S. Const.

amend. XV, or in terms. of sex, U.S. Const. amend. XIX, or |

by weighing unfairly the votes of those in one geographical

area or electoral district over the votes of others, €.g., Wes-

berry v. Sanders, supra. .

The rights so protected, however, relate to the initial right

to vote—the right to say who shall be the representative.

They do not directly extend to the right-to have that partic-

ular representative be seated in Congress under all circum-

stances. The Constitution itself, as we have noted earlier, »

sets explicit limits on the right of electors to have whom-

ever they choose sit in Congress: it fixes x require-

ments of age, citizenship and inhabitancy in Article I, sec- -

tion 2; additionally Congress can determine the times, places

and manners of holding the elections under Article I, section

4; and Congress is granted’ exclusion and expulsion powers..

_ Certainly these provisions make clear that the carefully

’ guarded right-to vote for whomever the elgctor desires does

_ not necessarily carry with it a concomitant right to have that

person seated in the Congress. In United States v. Classic,

supra, the Court made clear that the right is not absolute:

“That the free choice by thé people of representatives in

Congress, subject only to the restrictions to be found in $8

2 and 4 of Article | and elsewhere in the Constitution, was

one of the great purposes of our. constitutional scheme of

government cannot be doubted,” id. at 316 (emphasis ©

added).” fe

We have already noted that the holding in Bond v. Floyd, ~

" supra, was bottomed on state action which imposed a penalty

-on Bond for exercising his first amendment rights to discuss

public issues.. The Supreme Court’s rationale would apply

equally if Bond had been excluded from the state university

“We think the language of the court in Barry v. United States ex

rel. Cunningham, supra, while‘not directly dealing with the right to .

vote as here developed, is relevant to the relationship between the |

power of Congress to exclude or expel and the right of a citizen to

vote: ‘ oe

The equal representation clause is found in Article V which

_authorizes and regulates amendments to the Constitutuon, “‘pro-

vided, . . . that no state, without its consent, shall be deprived

of its equal suffrage in the Senate.” This constitutes a limitation

upon the power of amendment and has nothing to do with a

situation such as the one here presented. The temporary depri-

vation of equal representation which reSults from the refusal of

the Senate to seat a member pending inquiry as to his election

or qualifications is the necessary consequence of the exercise of

a constitutional power, and no more deprives the state of its

“equal suffrage” in the constitutional sense than would a vote _

‘of the Senate vacating the seat of a sitting member or a vote of

expulsion. :

Id. at 615-16. — -*: °

= 3g.

because of his speeches. The Court did not reach the ques-

‘tion of the standing of Bond’s constituents to assert claims —

on their own behalf. Jd. at -137 n.14. The class Appellants

have not argued their claims in terms of first amendment

rights, but lurking in the language of the Court in Bond can

be detécted some hint of a possible relationship between

first amendment rights’to political expression and the

related right of voters to have their wiews articulated for

them in Congress.” ~ °. fs °.

The essence of apnea government is the one speak-

ing. for the many; hence the rights of those who are to be

represented must always be accorded high standing and any

infringement must be carefully scrutinized. Nevertheless,

we have seen that even this crucial right is hedged in by

various restrictions which arise out of the Constitution itself.

The same Constitution which guarantees the right to expres-

_ sion and the right to vote also. limits the powers of courts.

The right to vote is not an academic right; its primary

objective is frustrated when the person elected cannot

assume the powers and responsibilities of office. Neverthé- .

less, the subject matter of Mr. Powell’s claim and the vot-

ing claims of the class: Appellants are so interrelated that .

neither can be regarded as having an existence entirely indé-

pendent of the other; in the context of this.case, they stand

or fall together. It must follow that as Mr. Powell’s claims

°o

The germ of this concept can be found in the language of the:

Court in Bond that a legislator’s speech is protected so that the people:

may hear from their legislator and “also so they may be represented in

government debates by the person they have elected.” Bond'v. Floyd,

supra, at 136-37. See also Méiklejohn, The First Amendment Is an Ab-

solute, 1961 SuP. CT. REV. 245, 254; Comment, 35 U. CHI. L. REV.

151, 170-72 (1967). ;

; 40

are inappropriate for judicial consideration, so ideo are those

of the class Appellants.

Our conclusion that the subject matter of the suit is inap-

propriate for judicial consideration is not inconsistent with

the conclusion of Judge Hart. Powell v. McCormack, 266

F. Supp. 354 (D. D.C. 1967). He found that the subject _

matter embraced a “political question” under Baker and

relied on this to conclude that there was: no jurisdiction.

Our application of Baker leads to the conclusion that the |

presence of a “political question” does not invariably pre-

clude jurisdiction but rather affords a basis for declinifg to

exercise it. The decisions of the District Court and of this

‘court both are bottomed on concepts of separation of

powers.4”

4 As | nade the opaceriag observations of my colleagues, a major-

ity agrees on the essential holdin t-(a) the court has jurisdiction, —

(b) the claims in this case are inappropriate for judicial consideration,

and (c).a three-judge court was not required. Baker is definitive, it is

recent, and it is authoritative; and there is no need to press beyond

the new outer limits it establishes for jurisdiction, justiciability and

political questions. I do not express a view as to whether exclusion

may be accomplished for reasons outside section 2 criteria, nor do I

. rely on the fact that more than two-thirds of the House voted for

Resolution 278 in its final form. The Speaker had made a ruling that

a simple majority was sufficient and it is the essence of speculation .

_ ta place any reliance on the quantum of the vote as actually cast.

The Speaker ruled.that Members were voting on exclusion, not on

' expulsion. The contention’ which merges exclusion and expulsion |

powers seems to me of what is inappropriate for judicial consid-

eration. (

41°

PART IIL

_ THE SPEECH OR DEBATE CLAUSE

Appellees treat the Speech or Debate Clause under their.

argument on jurisdiction and urge that it bars any court

from questioning Membezs of the House of Representatives,

individualty or collectively, with respect to legitimate legis- _

lative activities and that this includes the exercise of their

constitutional responsibility to vote on the seating of a.

Member-elect. Treatment of this claim has been deferred

because it is not entirely clear whether it goes to jurisdic-

tion or some other bar to granting the relief sought. For

our purposes we need not resolve that classification. Since

*two of the four Supreme Court holdings on the Clause are

barely two years old the point commends itself to consid-

eration.

The Clause confers persoual immunity-on each Member

of the House but it is not strictly a personal right since its

purpose is to protéct the legislative process in our system

_ of representative government. The broad sweep of the’ bar

is suggested by what the Supreme Court said about a legis-

lator’s burdens of responding to and defending a suit grow-

ing out of his legislative activities in Tenney v. Brandhove,

341 U.S. 367, 377 (1951):

Legislators are immune from ‘deterrents to the uninhib-

ited discharge of their legislative duty, not St their

private indulgence but for public good. ... Phe privi-

lege would be of little value if they could be subjected

to the cost and |inconvenience and distractions of a

‘trial upon a conclusion of the pleader, or to the haz-_—..

_ ards of a judgment against them based on a jury’s spec- _ -

ulation as to motives.: (Emphasis added.) - -

-The language of Article I, section 6, clause 1 is simply

‘that “for any Speech or Debate in either House they [Mem-

bers] shall not be questioned in any, other Place.” That

Clause had its genesis in the English Bill of Rights proclaimed .

by the Parliament of 1688-89.” ~The struggles arising in

England were re-eneacted in the American colonies where -

_ immunity for acts within the legislative chambers «was

asserted by’the colonial lawmakers, see JOURNALS OF THE

HOusE OF BURGESSES OF VIRGINIA: 1727-1740, at 242 (1910);

see. generally,’ M. CLARKE, PARLI NTARY PRIVILEGE IN THE

AMERMAN CoLontes 93-97 (1943). Indeed, the Supreme

'- Court as recently as 1951 noted that “‘(f]reedom of speech

' arid action in the legislature was taken as'a matter of course

7“That the freedom of speech, and debates or proceedings in Par-

mR: ought not to be impeached or questioned in any court or .

place out of Parylament.” 1 Will. & Mary s. 2; c.2 (1689), reprinted

in T. TASWELL-LANGMEAD, ENGLISH CONSTEEUTIONAL STORY

449, 451 (Plucknett ed. 1960).

The privilege of freedom of speech and debate was first included —

in the Speaker’s petition to the King requesting certain Parliamentary

privileges in 1541. An earlier indication of this privilege occurred

during the reign of Richard II, when a member of Parliament who

had introduced a bill containing’ reflections upon the King’s extrava-

gance was condemned to death. Ina subsequent reign, the member’s

petition to anriul the judgment on the ground that it was introduced

‘ and debated in Parliament was granted. C. WITTKE, THE HISTORY OF

ENGLISH PARLIAMENTARY PRIVILEGE 23-24 (1921).

As is pointed out in United States v. Johnson, 383 U.S. 169, 182-

83 n. 13 (1966), language similar to that ultimately codified in 1688

was adopted in a statute of 1513, 4 Henry VIII, c. 8, as a result of

the prosecution of Strode, a member of the House of Commons, for ;

introducing certain mining legislation in which he had a personal inter-

est. All of the early cases reveal a struggle between privilege and pre-.

rogative—between the King and Parliament or its members whom the

King believed to be meddling in non-Parliamentary affairs. The strug-

gle reached culmination in the prosecution of Eliot and other mem-

bers of Commons for making seditious speeches and conspiring to

restrain the Speaker from adjourning the session. The defendants

pleaded Strode’s Act but the court held it to be a private bill. Eliot’ s

_ Case, 3 How. St. Tr. 294, 309 (1629). Thereafter; in 1667, Parlia- | |

ment declared Strode’s Act to be a general iaw. See T. TASWELL-

LANGMEAD, supra, at 246-50, 377-78.

~ ° ; ,

—_

_by aie who served the Coloniés’ from the_ Crown and

founded our Nation.”’ Tenney v. Brandhove, supra 2 at 372.8

So well Known and accepted was this legislative i —

doctrine that the récords of the Constitutional Convention

Show it was written into Article I without opposition or

debate.” The objectives of the delegates canbe gleaned 7 s

from the writings of James Wilson, perhaps the most influ-

- ential member of the Committee on Detail which drafted

the provision for the conyention:

In order to enable and encourage a representative

of the publick to discharge his publick trust with firm-

ness and success, it is indispensably necessary, that |

he should enjoy the fullest liberty of speech, and:

that he should be protected from the resentment of.

everyone, however powerful, to whom the exercise

of that liberty may oceasion offense. |

2 Works OF JAMES WILSON 421 (McCloskey ed. 1967).

The scope -of the Clause has been challenged in the

Supreme Court four times. First,.in Kilbourn v..Thompson,

That the privilege was firmly embedded is in English practice is

revealed from Blackstone’s writings:

For, as every court of justice hath laws and customs for its

direction; some the civil and canon, some the common law,

others their own peculiar laws and customs, so the high court.

of parliament hath also its own peculiar law; called the lex et

consuetudo parliamenti.... It will be sufficient to observe

that the whole of the law and custom of Parliament has its orig- ‘

inal from this one maxim, “that tever matter arises con-

cerning either house of parliament ught to be examined, dis- -

cussed, and adjudged in that hous@ to which it relates, and not

elsewhere. ,

| BLACKSTONE'S COMMENTARIES *163.

49The first notation of the Clause comés fo a document’ i in

._ James Wilson’s handwriting,considered by.the Committee on Detail.

- 2M. FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787,

at 156 (rev. ed. 1966). Subsequent docuntents contain the first full

‘expression of the Clause as it was reported to’ the convention apd

— 2 id. at 166,181,246. - o

v ie ° :

“ES : . eae

: ' > ; 4

Mere) ye ie. * "Ch pes

. ;

103 v. S. 168 11880), the. plaintiff, a sailed witness

before a House committee, as arrested ‘and imprisoned by

. the Sergeant-at-Arms pursuant to-a-re lution’ of the House.

' The Supreme Court held that, although the imprisonment |

of Kilbourn .was indeed unlawful, the Speech or Debate - *

Clause constituted a. bar to civil claims ‘against the Speaker eone ss

and the Members of ‘the House, id. at 205.9. ea

.. It-seems to us that the views icpetianst in the | au-

thorities we*have cited are sound and are applicaole

to this case. It would be a narrow view of the con- .

. §titutional. provision to limit it to. words spoken ‘in

_ debate. The reason of the rule is as forcible im its

application to written reports presented in that body

——~by its committees, to resolutions offered, which,

though in writing, must be reproduced in speech,

and to the act of voting, whether it is done, vocally

or by passing between the tellers. In short, to things

generally done in a session of the House by one of

its members in relation to the business before it.

Id. at 204 (emphasis added).

Tenney v. Brandhove, 341 U. S. 367 (1951), was the second

‘case to come before ‘the Supreme Court on the Speech or

Debate Clause. Brandhove was Called to testify. before a

state legislative committee and when he refused to respond

was held-in contempt. The Supreme Court: relied upon the -

“general doctrine of legislative immunity, réflected in-Article

1, to insulate the members of the-state legislature from suit. .

The opinion focused on the historical immunity of legislators.

from civil or criminal liability for their exercise of the priv-

ileges of: speech and debate, within the sphere of ——

legislative activity. Ad. at 377-78.

_ In the third case to reach the deidiiai Court, United

States v. Johnson, 383 U. S. 169 (1966), a former Congress-

man challenged his conviction - violation of epcenat conflict

5°The Court remanded the ase as to. the officers of the House, |

‘and plaintiff eventually recovered against them, Kilbourn v. Thomp-

son, 11 Col.((MacArthur & ee 401 oa

ie - "! .

SI en een RO eR EL ed RE EIT RS ENOL LAER NY LIE OPS E RE YI ION A POEL EO NUN PEINNNS e CRe omEREN

eee

of interest laws and conspiracy, asserting the immunities of

the Clause. The conspiracy count was based in part on a

_. Speech delivered by him in the House, for Which the Con-

_ _gressman was found ‘to have ‘received substantial sums of

money claimed by the prosecution to bee bribe. The Fourth —

_ Circuit reversed and phrased the issue in terms of jurisdic- &

tions\. as gts See eyeis a ear

_’ This is the first case; within our knowledge, squarely

» raising the question whether. the congressional privi- .

lege deprives a court of jurisdiction to try a member.

‘on a criminal charge of accépting money to make 2

speech in the House of which he is a member.

. * - 337 F.2d 180, 186 (4th Cir. 1964).

In affirming the Fourth Circuit the Supreme Court ac-

_ teptéd the linkage of. the Article I Clause with the English

and Colonial precedents, characterizing its adoption into

_ Article I as a culmination of the ES rae

history of conflict between the Commons and the.

Tudor and Stuart monarchs during which successive

_Mmonarchs utilized the criminal and civil law. to sup-

press and intimidate critical legislators.

4 .

effectuate its purposes,” is made abundantly clear:

o | [T] he privilege was not born primarily of a desire to:

avoid private suits such as those in Kilbourn and~

Tenney, but rather to prevent intimidation. b e

“ executive and accountability before a possibly hos-

' tile. judiciary: De Tre a cea fa

Id. at 181. ‘The Supreme Court did not discuss the claim of.

;

* Johnson in jurisdictional. terms.*/ cacg

383 U.S. at.178. That the Clause must be “read broadly to.

_ *! The entire thrust of the opinion suggests that the holding. rests

on the fact that a criminal indictment charged a Member of the

House with conduct basely motivated—“precisely what-the Speech or -

Debate Clause generally forecloses from executive and judicial inquiry,” -

United States v. Johnson, 383 U.S. $69, 180 (1966). If Appellants’.

claims are read as asserting that the vftes of the House Members were

racially motivated it is clear that’ the Supreme Court views motives tei

_" * é

CT a me : . . 46

im. ‘ff’ , . .

of : : e -

* ‘wy ~

The ‘most recent of the four cases involving the Clause is %

Dombrowski v. Eastland, 387 U.S. 82 (1967). This. court -

, _ affirmed summary judgment for the defendants in ‘a suit

against a Senate Committee Chairman and its chief counsel

for injunctive relief and ‘damages flowing from an alleged

conspiracy between the defendants and Louisiana state offi- —

cials to seize property and records of the petitioners in vio-

lation of their fourth amendment rights.. Dombrowski v..

Burbank, 123 U.S.App.D.C. 190, 358 F.2d 821 (1966) (per -

ee curiam). The Supreme Court affirmed as to the Committee

oe U.S. at 84-85 (emphasis addedy.

Chairman. -It reversed and ordered a new trialonly | as to

the chief counsel:

It is the purpose and office of the doctrine of leg-

‘islative immunity, having its roots as it does in the

Speech or Debate Clause of the-Gonstitution, Kil-

’ bourn v. Thompson, 103 U.S. 168, 204 (1881), that

legislators engaged * ‘in the sphere of legitimate legis- ‘

lative activity,” Tenney v. Brandhove, supra, 344-U.S.,

at 376, should be protected not only from the con-”

- sequences of litigation’s results but also fromthe

burden of defending. themselves. \

‘

If the Members of the House who are. hvniliees. here

cannot be ‘ ‘questioned in any other Place,” it would seem

that ‘they need not answer in any other place, including

courts. From this it is arguable that had the class defend-

have had’an obligation to apply sua sponte the bar of the

Clause; however, -we-need not decide that point.

of legislators, however unworthy, as irrelevant. "Mr. Justice Frankfur-

‘ter’s statement in Brandhove is sweeping:

The claim of an unworthy purpose does not suniies the [Speech

‘ or Debate] privilege... . The holding of this Court in Fletcher ,

‘vy. Peck, 6 Cranch 87, 130, that it was not consonant with our

scheme of government for a court to inquire into the motives

'. of legislators, has remained unquestioned. See cases cited in

Arizona v. California, 283 U.S. 423, 455. ; \

_ Tenney v. Brandhove, supra, at 377.

aia a a Ud PMN LOSER LINE “Ue Speen raem tn ss _@.

ait Feil a Rice tae

. 182, it would seem that, however characterized, the Clause _

Having in mind the breadth ‘accorded the Clause in Kil-

bourn,. Tenney and Dombrowski, and the “prophylactic

purposes of the clause,”. United States vi Johnson, supra, at

operates as a-bar to the maintenance of-this suit.>2.

: ww ; ° “16

“et /

r . MW, Fe . {

PARTIV

_. THREE JuDcE CourT

In their complaint in the District Court, Appellants applied

_ forthe convening of 4 ‘three-judge court pursuant to 28

U.S.C. § 2282 (1964).°¥ The District Court denied the ap-

plication on the ground that a resolution of one House,

such as House Resolution 278, excluding Appellant Powell

from the House was*not an “Act of Congress” within the.

meaning of the statute. Powell v. McCormack, 266 F, Supp.

354, 355 (D. D.C. 1967). Cf. Krebs v. Ashbrook, 275

F. Supp. 111, 118 (D. D.C. 1967), |

The District Court’s conclusion is amply supported by the _

plain meaning of “Act of Congress” as used in the-statute

. and by the legislative history and purpose of section 2282.

House itself. ve

The decided cases demonstrate that :

[t]he legislative history of § 2282 and of its-comple-

' ment; § 2281, requiring three judges to hear injunc-

521n both Kilbourn and Dombrowski money damages were sought

and officers of the House and Senate were held not to share the abso-

, lute immunity accorded Members. In the instant case Appellants

seek, not money damages, but extraordinary coercive equitable relief

against employees of the House directly contrary to commands of the

FSection 2282 provides: “An-interlocutory or permanent injunc-

tion restraining the enforcement, operation or execution of any Act

of Congress for repugnance to the Constitution of the United States

shall not be granted by any district court or judge thereof unless the

application therefor is heard and determined by a district court of ne

three judges under section 2284 of this title.” -

< * tive suits directed signiisit. federal sind stat legislation,

respectively, indicates that these sections were enacted

@to’prevent a federal judge frota being able to paralyze

* totally the single operation of an entire|regulatory

scheme, either. state or) federal, by. issuance of a

igs -- broad injunctive order.

Kennedy v. ‘ Mendoza-Maxtinez, .372 U.S.-144, 154 (1963)

(footnote omitted). See-Zemel v. Rusk;-381 U.S.1,7n.4 >:

(1965); Phi lips ¥..: ‘United ft tates, 312, U.S. 246, 248-5 ; sate 9

(1941). The legislative purpose is not servéd by emake :

the statute’ to cover the resolution in ‘this case sifice the

statute is to be construed narrowly. Bailey v. Patterson,

369 U.S. 31, 33-(1962).\ House Resolution 278 is a resolu-

‘tion of one House only and relates to the organization and.

’ internal governing of the House of Representatives. It cre- _

‘ates no broad statutory scheme which would be frustrated .

by injunctive relief, and it does not contain the attributes :

- Of the usual “Act of: Congress” which involves the House ” es

- Representatives, the Senate, and the President. +

54 Although there are no direct holdings in point, prior case law

. - Supports the District Court’s conclusion. In Krebs v, Ashbrook, 275

_ F. Supp. 111 (D. D.C. 1967), Rule XI of the House of Reptesenta-——_—_——_~

= tives; ~the-charter-of the “House Un-American Activities Committee,

was held not.to be an “Act of Congress’’ within the meaning of the

_ Statute. Contra Stamler v. Willis, 371 F F. 2d 413 (7th Cir. 1966).

| Since we predicate our holding on the absence of an Act of Con-

g * gress as required by the statute, we are not required to reach the alter-

native grounds at ee that even assuming that House

Resolution 278 is an Act of Congress, a single district judge may dis-

- - miss-the action for lack of federal jurisdiction. ve Lion. Mfg. Co. v.

. Kennedy, 147 U.S-App.D.C. 367, 330 F.2d 833 (1964); cf.'Reed En-

soni v. Coscoras, 122 US. eiabene’ 387, 354 -2d 519 (1965).

——

- necessary to reach the claims on the merits. Nevertheless,

- some mention ‘of the conflicting views is appropriate.

» 49

, CONCLUSION

Our disposition of this appeal on the ground that the

claims are nonjusticiable because of the inappropriateness of

the subject, matter for judicial consideration, makes it -un-

- Debate on the scope and meaning of Article i sections 2

and 5 began at Philadelphia and has engaged the attention of

Tegal wfiiters, including Members of both Houses; ever since.

_ As with the debates over other issues arising under the Con-

_. Stitution, this debate has not been and possibly never will be.

_ judicially resolved.. To vest in the members of a legislative

body the powers intimated in the literal language of section

5 “to be the Judge” of matters as significant as the exclusion

and expulsion of members plainly involves risks. Professor

Chafee parades some of the shortendous possibilities which

from time to. time have been Suggested: ;

If it [Congress] can add crime or disloyalty acts as

bars, it. can add profiteering as well. ... . A thajority-

. can raisé the minimum age to- fifty . . bar men.

ef Jewish race, . . . require that members must ‘be

~ “Democratic Party, or recognize only a single. party

entitled to nominate candidates. There is no line

to be drawn; once the legislature is allowed to cross

~ the constitutional limits. It can turn our democracy -

"into an oligarchy by imposing high property qualifi- .

cations; or into a dictatorship. of the proletariat a

declaring ineligi -persons deriving income from ,

—— and invested capital. ,

_Z. CHAFEE, FREE SPEECH IN THE, UNITED STATES 255 (1942).

But Professor Chafee acknowledges that there is much to be

said for the view that. requirements other than those of é

- section 2 must be embraced ‘in the less precise language:of —

. section 5 that each House is to be “Judge” of the qualifica-

tions: of its Members. He concludes by saying that neither —

of the extreme: views, i.e., no exclusion power except for

section 2 reasons, or unrestricted exclusion powers, is sound

and that the actual practice and —— has —_ taken an,

intermediate ground. ag

50 Re

As to elected p persons satisfying all the elicits

in the Constitution, we are not forced to choose be- ery

- tween giving the House- absolute power to unseat . a

whomever it dislikes, and giving the voters absolute i

power to seat whomever they elect. A third alterna-.- os

tive has been adopted, fairly close to the second view.

; . The constitutional qualifications ordinarily suffice;

¥. additional tests by statute,{55] and the -House of.

ha Representatives or the Senate has probably added a

very few more qualifications by established usage (a

. sort-of legislative commen law) to cover certain ee

‘vious Cases of unfitness.

; eo SE

Id. at 257... | re eee

Great _relianee-is placed by Appellants on the views of

- Professor. Charles Warren, another constitutional writer. Pro-

fessor Warren'views section 2 as fixing the /only qualifications

~ for membership in the House. ‘Referring to the Convetition’s

refusal‘ to adopt “the proposal to give Congress power to.

”_ establish qualifications i in general [or adopt] . .. the propo-

sal bs a property qualification,” he concludes:

Convention did not intend to grant to a single branch

ian a, of Congress, either to the House or to the Senate,

ie '' ‘the right to establish any qualifications for its mem- -

a - bers, other thax those qualifications established: by~ ~

the Constitution: itself, viz:, age,. citizenship, and ol

residence. . For certainly it’ did not intend that a sin-

-gle branch of Congress should possess.a power which

< . ; -\ : ;

" ei

404

55 Professor Chatee’ $ sieiias to a “statute” is not followed by

any citation. It may be that he had reference to a statute enacted ee

in the Civil War period prescribing an @ath of past loyalty, Act of ~~

~ July 2, 1862, ch. 128, 12 Stat. 502, or to a statute which forever

renders a Senator, Representative, department head, or other officer

’ of the government incapable of holding office under the United States

if such person receives compensation for services in any matter in

, which the government is a party, Act of June 11, 1864, ch. 119, 13

Stat. 123; see Burton v. United States, ‘202 U.S. 344 (1906). es

the Convention had-expressly refused to vest in the >

- whole.Congress. As the Constitution, as then drafted,

Ship, and residence, and as th vention refused

to grant to Congress pow establish qualifications

'. in genera], the m

: would see) apply. aes eee

+ s& WARREN, THE MAKING OF THE CONSTITUTION 421 (1937) ¢* .

The protagonists foi. the:conflicting views on the scope Of nis

exclusion powers of -the House draw-on the various aspects. ~

. Of history, custom and’ usage which support their respective

_* positions. Most of this, of course, is addressed to what’

“are the merits of the claims asserted by. Appellants. Refer-

_ ence to these unresolved. constitutional‘ questiong is made «|

in order to indicate their scope and nature and to under-

score what it is that we. do not decide.

Conflicts between our‘co-equal federal branches are not.

‘merely unseemly but often destructive of important values.

In the interpretation of provisions which are pregnant with

~ — ; |

=—

a ie CHAFEE, supra, at 241-69; C. WARREN, supra, at 412. ~

26; Wechsler, supra, at 8. Background historical material is set forth

in 1 BLACKSTONE’S COMMENTARIES *162-63, *175-77; M. CLARKE, -

supra, at 174-205, 236-62; THE FEDERALIST NO. 60, at 409 (Cooke ed.

1961) (Hamilton); J. GREENE, THE QUEST FOR POWER: THE LOWER |

HOUSES OF ASSEMBLY IN THE SOUTHERN ROYAL COLONIES 171- °

2 GLANVILLE, REPORTS OF CERTAIN-CASES DETERMINED AND AD-

| JUDGED IN PARLIAMENT (1776). 3

The instances in which the House of Representatives considered -

_ exclusions or expulsions are found in 1 A. HINDS, PRECEDENTS OF

' THE HOUSE OF ‘REPRESENTATIVES 381-591 ( 1907);'2 A. HINDS, su-

pra, at 195-860; 6 C. CANNON, PRECEDENTS OF THE HOUSE OF REP-

_ > RESENTATIVES 50-63 (1935). See Hupman, Senate Election, Expul-

: sion and Censure Cases,.S. Doc. NO. 71, 87th Cong., 2d Sess. (1962);

1 H. REMICK, supra, at’116-332. | a

; Kony \. 4 ‘

such conflicts the unavailability of’a soled si the conse- ~:

_- quences of any unresolved confrontation between coordinate -

. branches weigh heavily. in pointing to.a conclusion . either

that no jurisdiction was intended or ‘that if jurisdiction exists

it should not be exercised.

The checks and balances we boast of can check and bal-

‘ance. just so far: The Framers had hard choices in many

areas. To dllow, for example, total immunity for speech;

debate and votes in the Congress risked’ irreparable injury

to innocent persong if. false: or scurrilous charges were

made on the floor of ‘a Chamber; to allow the Executive

~ exclusive power of foreign relations risked unwise policies _

which could lead -to war; to tolerate the essential supremacy

of constitutional interpretation in a Supreme Court meant

the risk of unwise decisions by a transient ‘majority. But.

that: is the ‘way our system is constructed. Under stress

what some may think are weaknesses turn out to be strengths.

and the -wisdom of Framers i in dividing the spheres of dele- ie

gated power becomes clear.

That each branch may thus occasionally make errors. for

. which there may be no effective remedy‘is one of the prices

we pay for this independence, this separateness, of each co-

. equal branch and for the desired supremacy of each within

its own assigned sphere. When the focus is on the particular

acts of one branch, it is not difficult to conjure the parade

_ of horrors which can flow from unreviewable power. Inev-

., .itably, in a case with large consequences and a paucity of

' Jegal- precedents, the advocates. tend to raise the spectre of /

the hypothetical situations which would be permitted by the

-tesult they oppose. Our history shows scant evidence that

" such dire predictions eventuate, and the occasional departures

.in each branch have been thought more tolerable than any ~

alternatives that would give any one branch domination over

another. That courts encounter some problems for which

. they can supply no solution is not invariably an occasion

_ for ‘regret or concern; this is an essential limitation in a sys-

- tem of divided powers.’ That courts cannot compel the

é ; 53 ; ‘

acts sought to be ordered. in this case recedes into relative -

insignificance alongside -the blow. to representative govern-

. ment were they either so rash or so sure of their infallibility

as to think they should command an elected co-equal branch |

in these circumstances." eee eg?

We should resist‘the temptation to speculate whether and.

‘under what circumstances courts might find claims to a seat

in Congress which would be justiciable. We do well to heed —

the admonition of Mr. Justi Miller, uttered nearly a cen-

. tury ago, that-judges confine themselves to the case at hand:

It is not necessary to decide here that there may —

“not be things done, in the one House or the other, of |

an extraordinary character, for which the members who

take part in the act may beheld legally responsible. If.

' we could suppose the members of these bodies so far |

' to forget their high functions and: the noble instrument

under which they act as to imitate the Long Parliament

-, in the execution of the Chief Magistrate of the nation;

or to follow the example of the French Assembly in

‘assuming the function of a court for capitalpunishment

we are not prepared to say that such an utter perver-

i _ Sion of their powers to a criminal purpose would be

‘tie ieee screened from punishment by the constitutional provi: -

Kilbourn v. Thompson, supra, at 204-05..

The judgment appealed from is

-”

ae Affirmed.

; ° .. 4 ‘

4 ; Ee eT TO iS “tf

it - ROT ee ee SS ee _

f SS Sn

. ‘** ‘ ae . ° . e .

‘ . . - . °

<a Neste 54

~. McGowan, Circuit Judge, concurring,separately: My col-

: ' leagues and I reach a common result; that is.to say, (1) a

-» three-judge court was not required for the reasons stated by

- Judge Burger, arid'(2) we do not think it either necessary or

appropriate to direct the District Court to feinstate the

lar relief sought should.be given. Because this. ,second dete

_‘. mination involves considerations peculiarly committed to

judicial discretion, .it is not. surprising: that, although ,our

. identification and weighing of relevant factars presents some

overlap, each of us hes preferred to characterize in his own °

words the route he has travelled. I

This record demonstrates to me that, from the traadianiien,

_Representative Powell’s view of the Constitution has explic-

itly: and continuously been that, so long as he possesses the .

_ Fequisite qualificati ns_of age, citizenship, and inhabitancy,

‘the House is solely a matter between

him and his constituents, not his colleagues: If the voters

‘of: his district do not like his co..duct in office, they can

turn him out -at the next election; or; if that conduct be:

“thought violative of the criminal laws, the proper: authorities

can seek indictments. But, so his reasoning proceeds, for his

colleagues to make that coniduct the occasion for.severance

. of their association together in the. House would be, without __

_ observance of the amending process, to add further qualjfi-

6. cation requirements to the three now stated ‘in the Consti-

tution.

A For example, the allegedly exclusive power of the House to pass

‘upon the fitness ‘of,a member, and the claimed reach of the Speech

and Debate Clause, have played no part ‘whatsoever in my vote. I. do

not profess to know what their precise constitutional meaning is, nor

do I say that they are wholly without relevance to a discretionary

declination of jurisdiction. I simply have not found it necessary to

* take them into account in my determination.

PETES - i in cacy lacs POAT MELEE PREM RSE NTI FED Aitates STERN Reyer Sapte ae: Nie magne an meeperate hy

: x As a : a s :

a tae “ RET ree, ME

PTD = ges. 5 =

>: 55

a + ee

Thus it was that, although the Select Committee expressly |

* informed him that the scope of its inquiry included both (1)

his qualifications i in terms of age, citizenship, and inhabitancy,

or other punishment, he persistently refused to answer any -

questions or supply any information except with respect to

(13. Somewhat belatedly, he sought to fortify his legal

position by: asserting that ‘the Committee could, at most,

take up (2) only after he had .been seated, even though he

‘was at the” moment of that claim continuing to receive full

pay and other allowances and emoluments. But there is no. .

reason to: think that, had the Committee deferred the second

aspect of its inquiry until’after seating, his basic constitu-

- tional Position would have been abandoned.

In the context of the kind of misconduct i in offi ice involved .

| here,? I regard that position as untenable. In saying ‘this, I

distinguish very sharply between conduct’ abusing the privi-

leges of House-membership, on the one hand, and status or

speech, on the other. If the House were to withhold recog-

nition of a member: ‘because of his race, gf religion, or politi-

cal or philosophical’ views, there would indeed have been an

addition to qualifications without benefit of constitutional

amendment. ‘But the allegations in the complaint which

suggest that this is such a case are so purely conclusory in

2It is argued that the misconduct ‘cannot be assumed because Pow-

ell was deni-d procedural due process by his colleagues in the investi-

gation of his’ activities. But no one can read the record of the. Select

Committee’s relationships with Powell without.concluding that there

was no serious purpose upon Powell’s part to participate in the ascer-

‘tainment of the facts. This was unquestiona‘ly due to his fundamen-

_ tal constitutional theory that he was accountable for his conduct only |

to his constituents. One cannot escape the impression that any pro-

cedural problems would have been resolved satisfactorily if there had

been willingness to accept the relevance of the alleged misconduct to

his continuance in the House. Against this background, I see no need

to reinstate the complaint solely to pursue the procedural issues.

SAGE RENN OLE LE MAE. LIP IOS LEI LID OEE, BC as np tt Ha ay AR de i athe PY

¢ “a f isl Si "gas =

reytes SEF PORTER GE ee

| 56

% ‘

cintactet as, under élemental pleading concepts, not to.

— a hearing on the merits.

‘Kovels Powell’s cause of action for a judicially com-

- pelled seating thus boils down, in my view, to the narrow

Issue of whether a member found by his colleagues, after

- notice and opportunity for hearing, to have engaged in offi-

, cial misconduct must, because of the accidents of timing, be.

formally admitted before he can be either investigated or

expelled. The sponsor of the motion to exclude stated on

the floor that he was proceeding on the theory that the

power to expel included the power to exclude, provided a

2/3 vote was. forthcoming. It was.’ Therefore, success for

Mr. Powell on the merits would'mean that the District Court

must admonish the House that it is form, not substance,

that should govern in great affairs, and accordingly command .

~ the House members to act out a charade.

3 It is fue. that the Speaker, after inquiry to the idieiinnnie-

ian, announced that the motion would carry on a majority vote. All

this suggests to me is that, in this instance, Representative Curtis was

a better parliamentarian than the Parliamentarian. In any event, the

result conformed to the more exacting standard; and for me to guess

whether the result would have been different if tits Speaker’s ruling

had been different would be to engage in the speculation Judge Burger

deplores (fn. 46).

" As to Judge Burger’s implication that I have gotten into the merits,

I note only that he, having decided that the words of the Constitu-

tion vest in the House the power to judge a member’s fitness, concludes

that jurisdiction may be declined to review its exercise in this instance.

I, having read the text of. the Constitution as. declaring a power in the |

House-to expel a member for misconduct in officé by a 2/3 vote,

~ conclude that jurisdiction may be declined to pursue the narrower

quegion of whether the Constitution requires that the House must

first seat before it expels. It would-appear that each of us has, pre-

inarily to concluding whether jurisdiction must be exercised, gone.

ho further in deciding questions of “textual commitment” than. is

‘contemplated - the majority opinion in Baker v. Carr. .

A lls Pete rer nr eter ete ew ee ann, PERO a

| |

ae already overtaxed courts drguably- have more pressing

work to do than this, including the hearing and determina-

_ tion of serious and substantial claims of deprivations of civil

rights. The only question really presented by this complaint

is whether the House must go through the forriality of seat- _

ing a member before mi for official misconduct.

. Unlike the District Court, I am prepared to say that even

such a narrow issue. confers subject-matter “jurisdiction in

the familiar sense of (a) a claim arising under the Constitu-

tion, (b)-a case or controversy, and (c) a statute founding

jurisdiction. But the Supreme Court in Baker v. Carr was’

_at pains to'make clear that.the existence of jurisdiction does

‘not invariably require its exercise. The question is one of -

‘whether, under all the circumstances and with a wise regard

__ for the-nature and capabilities of judicial power and for the

‘respect it must always command, the court is bound to hear

and determine a complaint on its merits.4 : .

‘The challenged action by the House ‘in this case reflects in.

substance an equation by it of its power. to expel for legisla-

tive misconduct by a 2/3 vote with a power: to deny seating

for the same reason and by the same vote: That action was |

_ Tooted in the judgment of the House as to-what was neces-

Sary or appropriate for it-to do to-assure the integrity of its

legislative performance and its institutional acceptability to

_ the people at large as a Serious and responsible’ instrumeni

of government. That is a judgment which, on this record,

- presents no impelling occasion for. judicial Scrutiny.

_ *The factors that are relevant to this kind of a deterinination obvi-

‘ ously include the nature’ of the relief sought—in this case, injunction,

mandamus, and declaratory | judgment. All have traditionally been

. Tegarded as reposing peculiarly in the discretion of the court and as

subject to denial, even after -hearing on the merits, for reasons unrelated

"to the merits. The potential embarrassments and confusions, both

within the House and. between it and the judicial and executive

branches, inevitabie upon their grant in this..case are worthy of sober

remark. These and like matters are jegitimately the setting in which

are to be considered the urgencies, in terms of simple justice, of the

bringing to bear of judicial power.. hve

LEVENTHAL, Circuit Judge: I concur in the result. Judge

Burger’s: opinion presents the background of this case in

detail. I agree with some aspects of his opinion—particularly .-

the conclusions in Part I and Part IV. As to other aspects,

I am either in disagreement or find it unnecessary to define

my position. It would unduly protract and delay our dis-

position for mé to make a point by point analysis. Accord-

ingly I confine/myself at this time to a relatively sparse,

almost topic-seritence, statement of my approach, as follows:

1. ) The complaint on its face presents a matter within

the subject-matter jurisdiction of the District Court. It

alleges a claim arising under the Constitution,.there is a case

or controversy, and there exists a Federal statute giving dis-

_trict courts jurisdiction to consider such a case, namely, 28

U.S.C. § 1331. The fact that this is a novel law suit does

not negative jurisdiction. Baker v. Carr, 369 U.S. 186

(1962). :

2. Ido not feel required to decide appellees’ contention’

that the case iacks justiciability, a concept that I think was

developed in Baker v. Carr as defining the kind of case or

' . issue thax is inherently inappropriate for. determination by

any court.

For example, I am not prepared to say at this juncture

that a complainant charging an unconstitutional exclusion

from Congress avowedly put on racial or religious grounds"

- cannot obtain a declaratory judgment or other relief. Nor

- do I consider whether appellant Powell may have available a

other judicial remedies. i

3. In my view the issue preseited by the complaint is of

‘such a nature that dismissal is appropriate in the exercise of

sound judicial discretion. f°

' Plaintiffs were seeking easundide—snneiiuen: equity decree; ae

declaratory judgment—each of which is not necessarily auto-

_ matically available to one asserting (and even establishing)

the underlying right. In an action seeking such remedies a

Oe ee ee

ik te i a

OW Ret ib AE ae Piet om tay ey a we ae

court has discretion in deciding whether, when and how far

_ to consider the’ merits,/

_ 4. For present purposes I assume appellants are correct

in their assertion, that Article I, Section 5, Cl. 1 of the Con-

stitution is éxcfusive in Stating conditions of eligibility for

Congressmen. But that does not mean that ‘appeilant Powell

was immune from exclusion on grounds that would justify

expulsion under Article I, Section 5, Cl. 2. Aides |

The record before us shows that the ‘exclusion’ by the

House of appellant Powell was by a vote of 307 to 116,-on

a motion put. forward by its sponsor, Congressman Thomas

Curtis of Missouri, on the ground that Mr..Powell’s conduct

was such as to warrant his expulsion under Article I, Section. -

5, Cl. 2 of the Constitution if he were seated, and that he

should therefore be excluded at the outset.

Certainly members’ of the House, who cannot be ques-

tioned in court for action taken within a “sphere of legiti-

mate legislative activity,”? can; without beine-subject 19

“See Abbott Laboratories v. Gardner, 387 US. 136, 148 (1967);

Public Affairs Associates, Inc. v. Rickover, 369.U.S. 111 (1962).-

?Tenney v: Brandhove, 341 USS. 367, 376 (1951), quoted in Dom-

browski v. Eastland, 387._U.S. 82,.84, 85 (1967), confirms the prin-

ciple inherent in separation of Powers that.such action is not. subject

to judicial scrutiny or cognizance. -

Compare the rule establishing immunity from suit of judges of

courts of general jurisdiction, considered a fundamental requirement

of an independent judiciary. Bradley v. Fisher, 12 Wall. (80 U.S.).335,

351 (1871), holds that such judges “‘are not liable to civil actions for

their judicial acts, even when such acts are in excess of their jurisdic-

tion, and are alleged to have been done maliciously or corruptly.”

The Court also stated (pp. 351-52): “Where ‘there is clearly no juris-

diction over the subject-matter any authority exercised is a usurped

authority, and for the exercise of such authority, when the want of

jurisdiction is known to the judge, no excuse‘is permissible.” In Pier-

son v. Ray, 386 U.S. 547, 554 (1967) the Court referred with approval

to Bradley v. Fisher, and referred to the historic immunities of judges

and legislators as “equally well established.”

y .

-court disapproval, expel a member they find to have mis-used

‘ travel credit. cards, and kept on his payroll a person ‘(his

wife) who resided. neither in his District nor in the District

of Columbia. The fact that the House is not a court, with .

power. to enter a judgment. of conviction for. vidlation of

laws, does not preclude it from concluding that the pertinent

acts were committed by thé Congressman, as a part of an

ultimate determination of lack of fitness for service in the

House, a determination entrusted to the House by Article

ii Section 5, Clause 2 of the Constitution.

5. Appellant Powell seems to have been, of the: view that

whatever grounds the House may. have had to’ expel him

once he was seated, they could not be used as pata to

bacon him without seating him. |

_On_this-point I think that in a-case like Powell” s where

the record (including reports of legislative committees) pro-

vides abundant indication that there was at least a substan--

tial question of misconduct in Congressional office, the view

of Congressman Curtis was permissible under the Constitu-

_ tion, and appellants’ contention to the contrary must be

rejected..

. As to the interim period, lam at tenet reassured by the -

provision in H. R: Res.-1 of the’ 90th Congress, Ist Sess.,

adopted after debate in which Mr. Powell participated, that

pending the investigation and report by the Select Committee

and-House action thereon Mr. Powell was to receive the pay,

allowances and emoluments authorized for Members of the

House, though fh he: ‘was not. to be sworn in or sical a seat

in the House. *

As to the right of the other appellants to be represented

during the interim period, they stand on no higher ground

See Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616

(1929): “The temporary deprivation of equal representation. which

results from the refusal of the Senate to seat a member pending inquiry

as to his election or qualifications i is the necessary — of the

Appellants say in rebuttal, inter alia, that the theory ad-

vanced by Congressman Curtis is not available to appellees

since the "House did not accept the need"for a 2/3 Vote,

which Mr. Curtis recognized as -essential. The Speaker

announced, on a parliamentary inquiry, that only a majority

vote was required for exclusion of appellant Powell. —

This contention is’ not without force. But assuming,

arguendo, that the procedure used to exclude Powell may

. have been improper that _does-not mean he jis entitled to

maintain an action for discretionary relief of a nature that

brings a court close to confrontation with members of the

. coordinate législative branch of government. Thus, a court

may decline to entertain an action based on such a proce-

_ dural defect unless it appears not only that. the defect may -

“ have ‘been prejudicial but also that it probably was prejudicial,

at least where as here the relief sought is extraordinary.

6. The fact that the House voted exclusion-by a 2/3 vote _

is not irrelevant, even assuming the majority ground rule was,

improper, for it at least generates a substantial doubt that a

~ court declaration would provide Powell his seat—even assum-

_ ing as I think we should, that the House would respéct the

U.S. 116 (1966). The House could immediately exclude on: .

the same ground by the same vote.

True, the House could do this, by hypothesis, only if the

“ground rule” were that a 2/3 vote. was necessary. But it

does not appear that appellant Powell ever staked his posi- '

tion on the need for a 2/3. ground rule. :

7. It is significant that appellant Powell, though duly

re-elected in April 1967, has not availed himself of the leg-

islative remedy available with this re-election to assert his

Claim to represent his district. - .

_ ; *« . , 5 ss. 4

exercise of a constitutional power and no more deprives the state of

its ‘equal suffrage’ in the constitutional sense: than woulda vote of

the Senate vacating the seat of a sitting member Or * vote of expul-

sion.” * | |

aging

: * . Ate te pt fe =

Se es Oe Nea eR SE

- 62

e argument for Stay Powell’s counsel tadicated that

at least one reason, and apparently a major. reason, why »

appellant Powell did not invoke that legislative remedy is

that it would not maintain his seniority and chairmanship.

Perhaps $0, but.a court would be going to the extreme edge

of its authority if it were to ‘declare his status as a Congress-

man. It cannot reasonably be asked to provide such extra- *

ordinary relief to enable complainant to obtain perquisites,

_ ‘however important, that are essentially a matter for legisla-

tive determination,/and certainly are not assured by any con-

stitutional clause. A court has.a duty, in the sound exer-

cise of discretion, to consider litigation seeking relief that

raises problems of confrontation with a coordinate branch

with an approach that will, wherever possible, confine relief

“narrowly. . A :

8. If Powell had acquiesced i in the premise that thee was

authority to exclude, but only by a 2/3 vote and 2/3 ground

- rufe, there would likely have’ been a very different kind of.

on the position that the House and its Select Committee

were acting beyond the proper sphere of authority by con- +

sidering matters other. than age, citizenship and residence:

‘He’ may: have been unwilling ‘to wage battle even on a 2/3

‘ground rule after a hearing that admittedly was warranted

in inquiring into various financial and salary arrangements.

The premise of permissible exclusion would have undercut.

the position that permitted him to defer as a matter of

principle any explanation of those arrangements.

' 9... The various objections lodged by appellant Powell to ~

the procedure of the House Committee must all be viewed , ;

in the light of his then position that the Committee’s scope” 1.

was restricted to the three issues of age, citizenship and res

idence. It cannot be assumed. that procedural differences —

_ would have loomed as large, or been unmanageable, if appel- _.

lant Powell had accepted what ‘I think was a valid premise ~* ss

of the House and. its Committee.’. That premise—which I

uphold by a ruling on the merits on this issue—is that the

o. Ser ae

Constitution gives the House legislative “jurisdiction,”’ even

prior to seating a member-designate, to make inquiry as to

whether he has committed acts, justifying punishment ‘or

expulsion of a member. |

10. My approach may, not hang tidily jon the pegs. of

. jurisprudence thus far called to my attention. It makes.

sense to me, however, and_ labels and concepts can emerge

« in due course. - ,

. What seems to have received most discussion in recent

years is the concept of justiciability as a requirement in

addition to subject-matter jurisdiction. As. I read them

-the discussions of justiciability and non-justiciability have

emerged primarily in terms of whether the issue is of a Kind

that lies within any province of any court at any time. I

refrain from accepting absolutes about the case before us—

to lay it down flatly either that no court-may consider the

issue and rule differently from the House, or that there may

not be a state of facts that would properly call upon the -

District Court to grant declaratory and perhaps other relief.

. There are recent decisions indicating that when there is a

determination of both subject-matter jurisdiction and justi-

ciability for the issues, the courts are required to decide the.

: issues and to vindicate the applicant’s constitutional rights—

to refrain from sidestepping this duty merely because the

framing of judicial relief presents large difficulties,4 and to

take cognizance of & case seeking declaratory relief even

where an injunction cannot properly be obtained.’ By

Strict logic the same approach should apply when there is a.

‘hypothesis of justiciability or at Isast\a disinclination to

enter a ruling of ‘non-justiciability. “Yet there have been

instances when the courts have bypassed crucial jurisdictional

4 Webberry’v. Sanders, 376 US. 1 (1964).

*Zwickler v. Koota, 389 U.S. 241 (1967).

ip. 7 sat ated miata ad me seiaaiea

- ti tans cot Oe pens Dias oat ms a

4 | 64

femnee and aia of cases on the merits. I think the |

‘spirit of those cases also justifies the course | follow Sf ,

- deciding the merits on one key point and yet refraining, in ‘

the exercise of discretion, a full adjudication on the merits.

' The key point, to me, is that Congressman Powell erred _

in his assumption that his satisfaction of the Constitutional -

requirements (of residence, citizenship and age) meant that

he had fo-be seated, and that grounds justifying expulsion

‘ could only. be applied to those who had already been seated.

My ruling on the merits of this Constitutional issue leads

to the conclusion that the House had legislative jurisdiction

to consider and appraise the activities and fitness of appellant

Powell at the time he presented his-credentials. It is not a

« full adjudication of the merits of the claim of appellant

Powell that he was wronged. It does not necessarily” mean

either that the House acted properly | when it failed to heed

the. ground rule of a 2/3 vote put forward by Congressman -

‘Curtis as the assumption of his motion to exclide, or that a

court considering a different prayer for relief would be dis- -

abled from saying so upon a full consideration of Powell’ s

- case on its merits. .

The case before us presents problems of coiffrontation with

a coordinate branch-and of molding relief. These are consid-

erations that lead a court in some instances to find non-jus-

ticiability of the issue for any court. 7 They may also prop-

erly be invoked, I think, as backdrop and perspective for a

‘ruling to decline to provide a full adjudication on the merits,

‘even assuming justiciability. My reasoning is that the con-

frontations would likely have evolved in a quite different |

way if appellant Powell had recognized a power to exclude

on grounds of misconduct (albeit on 2/3 vote): and had

conducted himself on this premise from the start. Hence I

®See, ¢.g., Secretary of Agriculture. v. Central Riog Ref. Co., 338

rere a 619-20 (1950); Ex Parte Bakelite Corp., 279 US. 438, 448

| 7Baker v. Cart, 369 U.S. 186 (1962).

a A Ran Po we De Lect benwe :

‘do not think it meimitianaey ee a court to consider and deter-

mine the constitutional issue as he has chosen to frame 7

from an erroneous premise; and specifically, I think it proper

' where petitioner is seeking an extraordinary remedy yet has.

failed to invoké to the fullest extent the remedies and pro-

cedures available within the legislative branch.

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.