their participation was required regardless of the fact that the suit involved existing laws:

Logic dictates that the terms and provisions of a statute, as well as Congressional activity which relates to it and reflects legislative attitude or understanding of its terms, are material when violation of the statute is claimed as it is here. Concomitantly, sound judicial practice requires an inquiry into whether the terms of an allegedly violated statute apply prior to determining that it has been violated. The movants' attempt to "inject into this case pending legislation" against which plaintiffs rail is an effort on Intervenors' part to provide this Court with a clearer understanding of the background to and nature of plaintiffs' allegations and of the role current legislation plays on the construction and implementation of the statutes which plaintiffs allege are violated. [Applicant-Intervenors Response to Oppositions For Leave To Intervene, July 21, 1981 at 5]

With respect to the defendants' assertions, the prospective intervenors reiterated that the Executive defendants represented a separate branch of government, the interests of which diverged from their own. They noted:

The rights of legislators such as the Intervenors are not
derivative simply because they coincide with the Execu-
tive's in this instance. Rather, it seems clear that members
of the Legislative branch directly concerned in effectuating
foreign policy have an "interest" in a legal controversy
which concerns it and should be permitted to appear as
parties and urge the construction of the statutes in ques-
tion that they feel secure their interests. [Id. at 11]

On July 31, 1981, the defendants filed a motion to dismiss the complaint on the grounds that the court lacked subject matter jurisdiction because the complaint presented a non-justiciable political question and the plaintiffs lacked standing. The defendants also argued that "equitable considerations" demonstrated that the action should be dismissed. Finally, they maintained, the plaintiffs had failed to establish any private right of action entitling them to the relief they sought.

Turning first to the issue of subject matter jurisdiction, the defendants argued that the case presented a non-justiciable political question because "the issue at hand bears directly upon the President's conduct of foreign relations and his actions as Commanderin-Chief of United States' armed forces." [Points and Authorities in Support of Defendants' Motion To Dismiss, July 31, 1981, at 13-14 (footnote omitted)] Terming the relief requested by the plaintiffs as "foreign affairs by injunction" [Id. at 15], the defendants asserted that the courts have traditionally declined to entertain litigation in which they are asked to "arbitrate a dispute among coequal branches of government as to the exercise and allocation of constitutional power in the area of our foreign relations." [Id.]

21-618 0-83--11

The defendants also argued that the determinations the court would be required to make to resolve the controversy were beyond the expertise of the judiciary:

Plaintiffs are in effect requesting that this Court deter-
mine for the purpose of the War Powers Resolution that
United States forces are involved in hostilities in El Salva-
dor, and for the purpose of the War Powers Clause, that
such involvement constitutes the making of war in the
constitutional sense. To resolve this controversy, therefore,
the Court would be required to establish judicially man-
ageable standards, which, if it could even be done, could
"create a rigid matrix that would unnecessarily restrict
the executive some time in the future when the powers
denied today may be essential to the well-being of the
United States" tomorrow. Atlee [v. Laird], 347 F. Supp. at
707. Furthermore, resolution on the merits would necessar-
ily involve "a detailed examination of the political realities
of that geographical area with special emphasis on deter-
mining the risks to the territorial sovereignty of our allies
there, and assuming the loss of these allies, the risks to
the territorial integrity of this country." [Id.] A similar ex-
amination would have to be made to determine any risk to
the military personnel assigned at each location through-
out El Salvador. Since the military situation in El Salva-
dor is in a constant state of change and uncertainty, this
could easily lead to a need for repeated successive judicial
examinations of the situation in the field based of necessi-
ty on rapidly changing information. Such determinations
are beyond the expertise of the judiciary. [Id. at 16-17
(footnotes omitted)]

Focusing next on the standing issue, the defendants maintained that the "vague" allegations of the plaintiffs did not establish the requisite "direct and palpable" injury to confer standing. Not only had the plaintiffs not been injured, the defendants claimed, but they in fact had legislative remedies available to resolve the matters they had raised in court:

Conspicuously absent from the Congressmen's pleading is
an allegation that a specific congressional vote or opportu-
nity to vote has been nullified by the defendants' conduct.
Indeed, they cannot so allege because plaintiffs-Congress-
men still have the power to act through the legislative
process to remedy the alleged abuses. The War Powers
Resolution, which plaintiffs concede implements the War
Powers Clause, specifically provides that the Congress may
at any time terminate the use of United States armed
forces in any situation of actual or imminent involvement
in hostilities by passage of a concurrent resolution. 50
U.S.C. § 1544. Thus, this procedure could be used in any
case where Congress believed the President had introduced
United States forces into hostilities in violation of the War
Powers Clause. Similarly, Section 502B of the Foreign As-
sistance Act, 22 U.S.C. § 2304, establishes procedures by

which Congress may at any time adopt a joint resolution
to terminate security assistance to a country with respect
to which a human rights report has been requested by
Congress. 22 U.S.C. § 2304(c). Plaintiffs are free, therefore,
to introduce resolutions at any time under either law and
to attempt to convince their fellow colleagues that such a
course is appropriate. [Id. at 21-22]

Even if the plaintiffs had standing, the defendants argued, "equitable considerations" should lead the court to dismiss the action. First, they noted again that both the War Powers Resolution and section 502B of the Foreign Assistance Act provided legislative mechanisms for the enforcement of their provisions to which the plaintiffs could turn. Moreover, they pointed out, since Congress had the power of the purse, and the relevant legislative committees exercised oversight responsibility over foreign assistance, the plaintiffs had other options available if the court declined to intervene. Finally, the defendants contended that the plaintiffs had failed to establish any private right of action which would entitle them to the relief they sought. Neither of the statutes at issue-the War Powers Resolution and section 502B of the Foreign Assistance Act-expressly created such a private right of action they said, and Congress, in the legislative history, indicated no intent to create an implied right of action under either statute.

Also on July 31, 1981, the day the defendants filed their motion. to dismiss, the plaintiffs filed an amended complaint. The only dif ferences between the original complaint and the amended version were the addition of a number of plaintiffs; 3 the removal of two paragraphs (44 and 45), and several typographical corrections.

On August 7, 1981, the defendants filed a second motion to dismiss in response to the amended complaint. Since the causes of action had not been changed in the new complaint, the defendants simply referred the court to their earlier memorandum in support of the motion to dismiss.

On August 24, 1981, the plaintiffs filed a reply to the prospective intervenors' response to the oppositions for leave to intervene. The brief reply reiterated many of their previous arguments regarding the character of the lawsuit and the text of the War Powers Resolution.

On October 14, 1981, the plaintiffs filed a memorandum in opposition to the defendants' motion to dismiss the complaint which responded to their arguments on justiciability, standing, equitable discretion, and right of action. Terming the defendants' contentions "horses of the same color and their name is 'leave war-making to the President'," the plaintiffs asserted that:

the legislative enactments central to this suit, the War Powers Resolution (WPR) and Section 2304(a) of the Foreign Assistance Act, were adopted precisely with a view to the kind of facts which have given rise to this dis

3 The additional plaintiffs were Representatives Anthony C. Beilenson, Phillip Burton, William Clay, Robert W. Edgar, Walter Fauntroy, Thomas Foglietta, Robert Garcia, William H. Gray III, Michael E. Lowry, George Miller III, Parren J. Mitchell, James L. Oberstar, Frederick W. Richmond, Gus Savage, Patricia Schroeder, James M. Shannon, Louis Stokes, and Harold Washington.

pute, and
judicial failure to take cognizance thereof
would do violence to the fundamental principle of ubi jus
ibi remedium (where there is a law there must be a
remedy), and thereby sanction executive lawlessness.
[Statement of Points and Authorities in Opposition to De-
fendants' Motion to Dismiss, October 14, 1981, at 1]

The plaintiffs first addressed the defendants' argument that the case presented a non-justiciable political question, and responded that: (1) in previous litigation, involving the Vietnam War, four circuit courts had held that a claim of conflict between the Legislative and Executive branches under the War Powers Clause was justiciable; (2) courts do decide disputes between the Executive and Congress regarding their respective constitutional powers; (3) the issues in the case were not "textually committed" to the President by the Constitution or statute; and (4) the case was not inextricably intertwined with any other criteria that would counsel dismissal on political question grounds, particularly since "no 'policy' determination whatsoever" was required by the court. [Id. at 28]

Focusing next on the standing question, the plaintiffs maintained that they had suffered injury-in-fact under the War Powers Resolution, the Constitution, and the Foreign Assistance Act. They explained:

(1) The first injury flowing from the defendants' unilateral and continuing commitment of U.S. forces to El Salvador is injury to the Congressional power to declare war and the concomitant obligation to keep the country out of a "Presidential War". This power, given exclusively to Congress by the Constitution and implemented by the War Powers Resolution is being invaded and usurped by the President and other defendants. A specific, critical piece of legislation, passed to protect this power and to establish procedures for dealing with undeclared wars, is being ignored by the defendants. Such a usurpation of power belonging to Congress causes a diminution in the powers of Congress as an institution. Kennedy [v. Sampson], 511 F.2d at 435.

(2) A second injury flowing from the President's violation of the Constitution and the War Powers Resolution is the withdrawal from Congress of the opportunity to vote to commit U.S. forces in El Salvador. The War Powers Resolution requires the President to come to Congress for an affirmative vote within a sixty-day period if he wants the troops to remain more than sixty days. By failing to request such a vote from Congress, as required by the War Powers Resolution, the President has deprived Congress of the opportunity to vote on whether such a commitment of forces ought to be continued.

(3) A third injury to Congress is the Congressional interest protected by the War Powers Resolution's requirement that the President formally report to Congress within forty-eight hours of introducing troops into hostile situations. Such reports must include detailed information regarding the circumstances necessitating the introduction

of U.S. armed forces, the constitutional and legislative au-
thority for such introduction and the scope and duration of
the involvement. 50 U.S.C. § 1543. This mandatory report-
ing requirement guarantees to Congress that it will have
all of the relevant information regarding U.S. troop com-
mitments. Without such information, Congress is unable to
fulfill its constitutional role in the war making process. No
such report has been made.

(4) A fourth injury to Congress is the diminution of its power over appropriations because of the defendants' violations of laws which Congress has passed to govern the granting of security assistance to foreign countries. Under Article I, Section 9, Clause 7 of the Constitution, Congress controls appropriations and has plenary power to provide money in the manner it desires. See, e.g., Hart's Case 16 Ct. Cl. 459, 484 (1880), aff'd, 118 U.S. 62 (1886). In the present situation Congress has placed specific restrictions on foreign aid to governments involved in gross human rights violations, restrictions that it has defined by reference to international law. [Id. at 30-31 (footnote omitted)] Moreover, according to the plaintiffs, the injuries were specific to Congress as an institution (since the War Powers Resolution was enacted to protect Congress' constitutional right to declare war as well as its role in the legislative process), and the harm to this institutional interest had resulted in "distinct and palpable" derivative injury to the individual plaintiffs.

Turning to the "equitable considerations" cited by the defendants as requiring dismissal, the plaintiffs distinguished their case from Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C. Cir. 1981), which outlined the doctrine of "circumscribed equitable discretion." (See page 157 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1982 for a discussion of that case.) According to the plaintiffs, the Riegle approach was inapposite to situations where the Executive was accused of acting in violation of a statute:

In Riegle the congressional plaintiff challenged defendants who were acting consistently with a federal statute. Plaintiff's claim was that the statute violated his rights under the Constitution. There was no claim that defendants were attempting to nullify or act contrary to a statute. Thus, a Court could conclude that plaintiff's dispute was really with his fellow legislators.

No such conclusion can be drawn here. Plaintiffs have a genuine dispute with defendants, not with their congressional colleagues. They seek to protect the institutional interests of Congress by enforcing laws passed by Congress to protect its war-making and appropriations powers. If the court were to refuse to entertain jurisdiction here, it would be refusing to give effect to the will of Congress, not providing aid to some members of Congress in a dispute with others. [Id. at 38-39]