On September 22, 1982, the House defendants-appellees filed their brief on rehearing. First addressing the standing issue in light of the Valley Forge case, the General Counsel to the Clerk argued that the panel, in finding support for its position on standing based on Valley Forge, had overlooked the broader language and implications of the case:

To be sure, the doctrinal underpinnings of Valley Forge are larger than the majority panel was able to discern; they are nothing less than a candid recognition of the limits of federal judicial power and a firm resolve to confine invocation of that power to genuinely aggrieved parties, not plaintiffs seeking to test abstract hypotheses, however sincerely held. Valley Forge, if improperly interpreted, could lead to the absurd result that the Executive may with impunity violate the Establishment Clause through implementaton of statutes involving billions in government largesse, knowing its decision is insulated from review, but that the House may not devote the insubstantial amount to the chaplaincy because its statutory authority is reviewable. Contrary to the majority's apparent perception, Valley Forge is not so easily distinguished and its admonitions cannot be ignored by incantation of the magical taxing and spending clause to satisfy Article III standing requirements no matter that the real and inevitable consequence of suit is to enforce constitutional strictures in which all citizens share a common interest. [Brief for Appellees, United States House of Representatives, Speaker O'Neill, Chaplain Ford on Rehearing En Banc, Septem

ber 22, 1982, at 14-15 (footnote omitted)] The General Counsel emphasized in particular that the "insubstantial” expenditures involved in funding the Congressional chaplaincies could not be ignored, and insisted that the Valley Forge case reiterated that the size of an expenditure was an element of establishing injury in fact.

Turning to the question of whether the commitment of funds to pay the chaplains' salaries and expenses constituted an exercise of the Article I, section 8 spending power, the General Counsel responded in the negative, and asserted once again that the challenged statutes represented an exercise of the rulemaking authority and officer selection clauses, together with the Necessary and Proper Clause, Art. I, § 8, cl. 18. The chaplaincies, said the General Counsel, served the purely internal purposes of the House, not the national interests served by general welfare programs funded under the Article I, section 8 taxing and spending power.

The subjective importance with which individual Members may imbue the chaplain's prayers, again so heavily relied on by the Appellants, simply does not transmute a program of prayers in the Chamber for legislators into a matter of national concern. The prayers are delivered only in the chamber only to Members who choose to attend, but in and of themselves add nothing to the thesis that the chaplain's pay is derived from the Article I, section 8

taxing and spending clause. The prayers are not part of
the "business of the House” that necessitates a quorum,
legislators are not required to attend and their devotional
content can hardly provide a constitutional exigesis for an-
choring the chaplain's pay in the taxing and spending

No less than the enumerated powers specified in Article
I, § 8 following the preambulatory taxing and spending
clause, the Article I powers devolved upon Congress with
respect to its own operation and functions, like the officer
selection, rules proceedings, and journal clauses, are sepa-
rate and independent sources of authority for the funding

of its operations. (Id. at 30 (footnote omitted)] Moreover, the General Counsel argued, resolution of the taxing and spending question had implications beyond the plaintiffs' ability to maintain standing; it went to the heart of the principle of separation of powers. And, since, according to the General Counsel, both the Executive and Judicial branches had asserted their right-as separate branches—to perform their constitutional functions and to incur obligations in the absence of any specific appropriation for those functions (or even in instances where the Legislative branch intended to forbid performance of those functions by refusing to exercise its Article I, section 8 power), "Congress should be in no less independent position to carry its express powers into effect." [Id. at 43]

Next the General Counsel asserted that because the determination by the House to fund the chaplaincy was purely a matter of internal self-governance and therefore presented a non-justiciable political question, the court should not consider whether the expenditure violated the Establishment Clause. He reasoned:

Given the fact that the rules proceedings and officer selection clauses conferring power on the Congress to establish chaplaincies are as much a part of the Constitution as the Establishment Clause, Korematsu v. United States, 323 U.S. 215, 224 (1944) (Frankfurter, J, concurring) the finding of nonjusticiability is hardly remarkable. If it is true that non-justiciability is a function of separation of powers, Baker v. Carr, supra, then reviewing the exercise of a coordinate branches internal exercise of textually committed power to govern itself against the standards of the Estab lishment Clause drains the doctrine of vitality, for under such a regime there are no genuine constraints against co

ordinate branch interference. (Id. at 46] Mere allegations of unconstitutional action were not enough to invoke judicial authority to rule on activities taken within the le gitimate legislative sphere, the General Counsel contended.

Finally, addressing the question of whether a non-justiciable po litical question would be presented if Congress declared that the chaplains' offices could be filled only by persons of a designated race or religion, the General Counsel maintained that the House had not prescribed qualifications for its chaplain, but "its decision to do so would not alter the basic non-justiciability of the claim-insuit.” [Id. at 60] Qualifications which might be suspect in other contexts could be justifiable in the Legislative branch, the General Counsel asserted, pointing in particular to political affiliation and professional background as means of determining committee assignments.

Also on September 22, 1982, the Senate and intervening Members of Congress filed a joint brief on rehearing. The joint brief addressed only the political question issues; the Senate parties and the intervenors joined in the response of the Executive branch appellees with respect to the initial two questions relating to standing posed in the court's July 16, 1982 order. (See discussion, infra.)

At the outset, the joint brief argued that the political question issue should be decided prior to consideration of the merits of the case, although it conceded that the doctrine could not be applied until there was a full examination of the claim that the compensation of the chaplains was textually committed to Congress. The ultimate question, the joint brief asserted, was whether the First Amendment limited the “autonomous authority committed by Article I to the Congress to compensate its officers. Broader issues of establishment clause law-whether, for example, the legislative chaplaincies serve a clearly secular purpose'-should not be addressed unless it becomes necessary to reach the merits of the case.” (Joint Brief of Senate Appellees and Appellee-Intervenors on Rehearing En Banc, September 22, 1982, at 3-4 (footnote omitted)]

Unlike the House, the Senate and the intervenors contended that the “political question doctrine would not shield from judicial review an explicit congressional limitation of the chaplaincies to persons of a designated race or religion.” [Id. at 5] However, the joint brief continued, that answer was not dispositive of the case. The brief explained:

The Congress, in this case, is defending its historical prac-
tice of compensating the chaplains who are appointed by
its Houses to commence their daily legislative sessions
with prayer. The political question issue is whether the
power to engage in this historical practice was committed
to the Congress by Article I of the Constitution, and, if so,
whether the establishment clause rescinded that textual
grant of constitutional authority. The relevant history
demonstrates that the power to compensate legislative
chaplains was committed to the Congress by Article I and
was not repealed by the first amendment. No claim may
be made that a power to designate the race or religion of
the chaplains is also committed by the Constitution to the
Congress. Accordingly, the court's hypothetical and the
answer to it do not control the disposition of this case. [Id.

at 6-7 (footnote omitted)] In more general terms, the joint brief maintained as the Senate and the intervenors had throughout the case--that the political question doctrine barred consideration of the action because the power to appoint and compensate legislative chaplains was committed to the Congress by the clauses of Article I which authorized the Senate and House to choose their officers. The joint brief reviewed at some length the history of the adoption of the relevant clauses at the Constitutional Convention, and concluded that the Congress which subsequently proposed the First Amendment did not intend to divest itself of the power to appoint and to compensate the chaplains. The brief summarized its historical analysis as follows:

21-618 0-83-18

These clauses (which authorize the Senate and House to
choose their officers] were patterned after similar provi-
sions in the state constitutions which had been adopted
during and immediately after the Revolutionary War. By
the time of the federal constitutional convention, the
meaning of the officers' clauses in state constitutions had
been well established; at least four state legislatures had
already, pursuant to these clauses, compensated their ap-
pointed chaplains. The First Congress also rendered a
"contemporaneous legislative exposition" of the Constitu-
tion, Myers v. United States, 272 U.S. 52, 175 (1926), by pro-
viding for the compensation of the chaplains who were
elected by each House soon after the Congress convened.
The First Congress proposed the first amendment to the
states for ratification three days after President Washing-
ton approved the first statute to compensate the chaplains
and other officers of the Senate and House. There is no
evidence that the First Congress intended the first amend-
ment to repeal the constitutional commitment to its
Houses of the power to choose and to compensate a chap-

lain as one of their officers. [Id at 10) On September 24, 1982, the Executive branch defendants-appellees filed their brief on rehearing which was focused solely on the issue of standing. According to the Executive branch defendants, the Supreme Court's decision in the Valley Forge case "emphatically" confirmed that the Flast exception to the rule against taxpayer standing had to be very narrowly construed and applied. And, they insisted, Valley Forge also explicitly reaffirmed the rule articulated in Flast that a taxpayer's failure to challenge an exercise of Congress' Article I, section 8 spending power was alone decisive of a claim of standing. Since, in the Executive branch defendants' view, the challenged Congressional expenditures for the House and Senate chaplains were constitutionally authorized without reference to Congress' Article I, section 8 spending power, they argued that the plaintiffs lacked standing and the district court's dismissal of their complaint should be affirmed. Drawing on historical commentaries and judicial precedent, the Executive branch defendants concluded:

In sum, the congressional chaplains' salaries have from the beginning been provided for in the same manner as the salaries of other officers and of the members themselves-by appropriations measures directed to the internal operations of Congress. The appointment of the chaplains as officers and the assignment of their functions by rule of the House and Senate are authorized by specific provisions in the Constitution itself. The Supreme Court has long held the view that specific constitutional provisions conferring powers on the Congress will also serve to

authorize the expenditure of money in the exercise of
those powers. And the Court has at least implicitly recog-
nized in (United States v] Butler [, 297 U.S 1 (1936)] that
congressional spending for the general welfare under Arti-
cle 1, Section 8, Clause 1, is a kind of spending that is sepa-
rate and distinct from more ordinary congressional spend-
ing that is merely incident to the exercise of other consti-
tutional grants of power. Finally, the two federal courts
that have squarely addressed the question have held that
federal taxpayer standing under Flast will not lie where
the challenged congressional expenditures are authorized
by constitutional provisions other than the Spending
Clause. And one of these decisions, Richardson v. Kennedy,
[313 F. Supp. 1282 (W.D. Pa. 1970), aff'd mem., 401 U.S. 901
(1971)], was summarily affirmed by the Supreme Court. We
submit that the foregoing authorities clearly demonstrate
that plaintiffs in this case do not have standing as federal
taxpayers to challenge the federal expenditures for the
congressional chaplains' salaries and office expenses. [Brief
for Appellees Angela Marie Buchanan, Treasurer of the
United States, and Donald T. Regan, Secretary of the
Treasury, on Rehearing En Banc, September 24, 1982, at

36-37] Because the plaintiffs' allegations did not satisfy the narrow Flast exception for Federal taxpayer standing, their claim remained controlled by the earlier Elliott v. White case, the Executive branch defendants once again asserted.

Even assuming arguendo that the challenged expenditures for the chaplaincies were an exercise of Congress' Spending Clause power, the Executive branch defendants claimed that the plaintiffs' allegations would still fail to satisfy the Flast requirements for standing because: (1) the chaplaincy expenditures did not constitute a "Federal spending program" (i.e., a large-scale, national program); (2) the expenditures were more appropriately regarded as an exercise of Congress' Spending Clause power to "pay the Debts," rather than to spend for the general welfare; (3) the expenditures were merely incidental to the chaplaincies (i.e., the expenditures were only used for the administration of an exclusively Congressional prerogative to choose officers of the House and Senate and regulate the proceedings of each House); and (4) the expenditures involved (roughly $130,000) were insubstantial by Federal program standards.

On October 6, 1982, the plaintiffs-appellants filed a reply on rehearing which reiterated their arguments on standing and the political question doctrine. With respect to standing, the plaintiffs in particular rejected the arguments of the various defendants-appellees that, to come within Flast, the challenged expenditures had to be large in size and disbursed over a wide geographic area. The plaintiffs insisted that the case law indicated that it was the pur

* The complete text of the Spending Clause of the U.S. Constitution provides that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States. (art. I, § 8, cl.1]

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