impose stricter standards on emissions of pollutants from
steel plants by a voting coalition of the Congressional Steel
Caucus and the Northeast-Midwest Coalition who met and
agreed to defeat the amendments would have standing to
challenge the vote in court by alleging that their constitu-
tional rights were infringed. Once embarked on the slip-
pery slope of judicial intrusion into legislative coalitions,
the courts would be awash in internecine political contests,
all without any demonstration that the alleged injury is
"fairly traceable” or causally connected to the defendant
legislator's acts.

8 Like the Democratic Caucus and the Republican Conference these groups are given office space, staff and access to other support services, including the Congressional Research Service of the Library of Congress, whose services are available by law only to Members, their staffs and committees. 2 U.S.C. § 166.

(Id. at 29-30) On January 22, 1982, the plaintiffs filed a reply brief which argued, inter alia, that the standing issue was not properly before the appeals court since the question had been decided by the lower court in the plaintiffs' favor and no cross-appeal was taken by the defendants. The brief also urged the appeals court to adopt a balancing test as a guide for this and future cases:

The limits on the immunity of a political caucus to decide
fundamental Constitutional issues without judicial review
must be declared. The requirement of balancing the rules
power of a House of Congress with Constitutional voting
rights of Members must be reviewed by the judicial
branch. Some instruction in the required review and the
relative weights to be balanced would be helpful to the
trial court. For the reasons outlined, appellants urge the
remand of this cause to the trial court with appropriate
instructions. [Reply Brief of Appellants, January 22, 1982,

at 16] On March 19, 1982, the case was argued before a panel of the appeals court.

On December 23, 1982, the appeals court issued an order affirming the judgment of the district court. The order stated that an opinion would follow.

On February 4, 1983, the appeals court issued its opinion. [Vander Jagt v. O'Neill, 699 F.2d 1166 (D.C. Cir. 1983)] Senior District Court Judge (for the Western District of Kentucky) James F. Gordon, sitting by designation, held that the action should be dismissed under the approach of the Riegle case "of withholding relief where prudential and separation-of-powers concerns counsel us not to exercise our judicial power." [699 F.2d at 1168] Judge Gordon also found that: (1) the Speech or Debate Clause was “not . . . necessarily applicable in this context"; (2) the court was not deprived of jurisdiction under the Article I provision conferring on the House the power to make its own rules; and (3) the plaintiffs had standing. (Id.]

Turning first to the question of standing, Judge Gordon ruled that the plaintiffs' complaint alleged sufficient injury to withstand a motion to dismiss. He disputed the arguments of Judge Robert H. Bork, who filed a concurring opinion in the case (see discussion, infra), that: (1) the harms the Republican legislators had allegedly suffered were insufficient to support standing; and (2) because those harms implicated general separation of powers concerns the court also should deny standing. With respect to the first Bork argument, Judge Gordon asserted that the Riegle court had rejected the theory that a legislator's vote had to be “nullified” for there to be sufficient injury to support standing; diminution of the legislator's influence was all that was necessary. With respect to the second Bork argument, Judge Gordon argued that separation of powers concerns should not be considered as part to the court's detemination of whether the plaintiffs had standing. Standing doctrines should not be “manipulated” to resolve separation of powers problems. Judge Gordon insisted, since cases might arise which required the judiciary to remedy flaws in the political system which impeded equal participation in the governmental process:

Thus while there are compelling prudential reasons why we should not interfere in the House's distribution of committee seats, it is nevertheless critical that we do not deny our jurisdiction over the claims in this case. As long as it is conceivable that the committee system could be manipulated beyond reason, we should not abandon our constitutional obligation-our duty and not simply our province -"to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803); United States v. Nixon, 418 U.S. 683, 705, 94 S. Ct. 3090, 3106, 41 L.Ed. 2d 1039

(1974). (Id. at 1170] For example, Judge Gordon noted, if Congress adopted internal procedures which ignored constitutional restraints or violated fundamental rights, the court would have to provide remedial action.

Turning next to the Speech or Debate Clause issue, Judge Gordon stated that legislative activities like those in the present controversy were not necessarily" shielded by the Clause. In a footnote, he pointed out that it was "at least debatable" whether the "partisan organizational actions of the Democratic Caucus" should be immunized. [Id. at 1171, n. 9] Rather than attempt to define the constitutional boundaries of protected conduct under the Clause, however, Judge Gordon demurred: "Because our remedial discretion provides sufficient foundation for our dismissal of this suit, we decline to affirm the district court's invocation of the Speech or Debate Clause, which again might hamstring us in the future.” (Id. at 1172 (footnote omitted)]

Finally, addressing the issue of judicial review of Congressional rules of procedure, Judge Gordon concluded that Article I “simply means that neither we nor the Executive Branch may tell Congress what rules it must adopt. Article I does not alter our judicial responsibility to say what rules Congress may not adopt because of constitutional infirmity.[Id. at 1173]

Having decided that neither lack of standing, legislative immunity under the Speech or Debate Clause, nor a "textual commitment" to the House under Article I barred consideration of the suit, Judge Gordon ruled that the court would invoke its "remedial discretion under Riegle to withhold relief:

Turning to this particular case, one can readily see the wisdom of not interfering with the House's method of allocating committee seats. In fact, this case is nearly identical to a suit the Ninth Circuit dismissed several years ago after Democratic representatives in Arizona challenged the Republican legislative leadership. Davids v. Akers, 549 F.2d 120 (9th Cir. 1977).

Unlike us, the Davids court reached the merits: it held that neither voters nor their representatives were deprived of equal protection or First Amendment rights when minority party legislators were disproportionately underrepresented on legislative committees. Judge Duniway quoted from an English history text and noted that "[t]he principle that such procedures are for the House itself to decide is as old as the British Parliament.” 549 F.2d at 123. And in an extensive discussion (that gives new meaning to the phrase "parade of horribles"), Davids spelled out how disastrously intrusive it would be if we were to accept appellants' invitation to restructure congressional committees. To quote only a few of the Ninth Circuit's objections:

Unless Arizona voters differ markedly from those of other states, it is almost certain that every member of Arizona's House was put there by a mixture of voters-Republican, Democratic, and Independent, with perhaps a few members of splinter parties thrown in. It is nonsense to say that every member who ran on the Democratic ticket represents only Democrats . . . [D]id those who voted for the winners by some similar sort of osmosis, acquire the right to assert and transmit to the winning candidates not only their own Fourteenth Amendment rights but also those of all of the voters of their district who voted for the loser? . . . [Or mjust we next, in the name of equal protection, weigh the vote of each member in the House in proportion to the vote that he received out of the total vote in his district? ...

What if one member of the House runs as a so-
cialist or a conservative and wins? He will be 1.66
percent of the membership. Is he entitled to a seat
on a committee? Which one? Whom is he to dis-
place-a Democrator a Republican? In either
case, why? ...

Particular items of legislation frequently pro-
duce large scale crossing of party lines. Are com-
mittee appointments to be juggled and rejuggled
depending upon which measure is coming before a
committee? . . . If so, are the adjustments to be
based upon the supposed views of each member,
or those of his constituents, or what?
549 F.2d at 124-25.

These objectives provide more than enough reason to conclude that we should not adjudicate this controversy. It is not that we think a remedy could not be fashioned. Rather, we simply believe it would be, to quote the Davids court again, a "startlingly unattractive" idea, given our respect for a coequal branch of government, for us “to tell the Speaker of the .. House of Representatives how many Democrats, and perhaps even which Democrats, he is to appoint to the standing committees, and perhaps to each such committee.” 549 F.2d at 123. (Id. at 1175-77

(footnote omitted)] Circuit Judge Bork filed a concurring opinion which argued that the plaintiffs lacked standing and that the district court's dismissal of the complaint should have been affirmed on that basis. Underlying Judge Bork's opinion was his conception of a more limited role for Federal courts in deciding controversies such as that presented by this case:

There are compelling reasons rooted in the concept of separation of powers, and in particular in the proper role of courts in relation to the political branches, for us to adopt again the position we took in Goldwater, and to hold that appellants lack standing here. Appellants' complaint invites federal courts to participate extensively in the internal processes of Congress. We should decline the invitation because of the consequences of accepting it. If an allegation of a diminution of influence on the legislative process were sufficient to confer standing, federal courts doubtless would be invited to rule upon the ways in which committee and subcommittee members are chosen, since, party lines aside, it is clear that those chosen for committees on the budget or foreign affairs or rules generally have more influence than those not so chosen. Perhaps we could be called upon to rule on filibusters, since those who filibuster may have disproportionate influence over legislative outcomes. Courts might be asked to control the order in which legislation is brought to the floor, debated and voted on. Surely we would be requested to remedy disproportionate assignments of staff as between committee majorities and minorities, for those assignments affect influence on the legislative process. Examples of this sort could be multiplied, but perhaps enough has been said to indicate why federal courts should firmly refuse to enter upon the wholly inappropriate task of ensuring absolute equity in Congress' legislative procedures. It is absurd to think that courts should purge the political branches of politics. [Id.

at 1181, Bork concurring (footnote omitted)] Judge Bork also asserted that there could be no injury in fact, and hence no standing, unless a legislator's vote was nullified; mere diminution of influence was insufficient. By adopting such a nullification rule, Judge Bork reasoned, occasions of judicial intervention in the activities of the political branches would be few and

limited. In this case, Judge Bork insisted that the plaintiffs had not alleged such a judicially cognizable injury and thus had no standing.

Finally, Judge Bork argued that Riegle "proceeded from a false premise about the Supreme Court's view of standing” [Id. at 1182), and, even if the Riegle decision was correct, the majority in this case had misread and expanded it.

On February 25, 1983, the plaintiffs-appellants filed a petition for rehearing and a suggestion for rehearing en banc. With respect to the petition for rehearing, the plaintiffs argued that the panel majority had “misapplied” its discretion in a case where constitutional rights of a fundamental nature were implicated. In such a case, said the plaintiffs, the court had a “duty to decide" the matter, particularly since no other remedy was available to redress the violations outlined in the complaint. Further, the plaintiffs contended that the majority misapplied the Riegle case since that decision countenanced suits by private (as opposed to Congressional) plaintiffs, and there were private plaintiffs in this case as well (i.e., Members of Congress suing in their capacities as voters in the 1980 elections).

With respect to their suggestion for a rehearing en banc, the plaintiffs maintained that: (1) consideration by the full court was necessary to insure uniformity in its decisions; and (2) the case involved questions of exceptional importance.

Status—The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit.

The complete text of the October 8, 1981 memorandum of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1982.

The complete text of the February 4, 1983 decision of the circuit court is printed in the “Decisions” section of this report at page 746. VII. The Constitutionality of the Legislative Veto and the Use of

the Legislative Directive Chadha v. Immigration and Naturalization Service

Nos. 80-2170, 80-2171, and 80-1832 (U.S. Supreme Court) Jagdish Rai Chadha, a native of Kenya, was lawfully admitted to the United States as a student in 1966. When his authorized period of stay expired in 1972, he was summoned by the Immigration and Naturalization Service ("INS") to show cause why he should not be deported pursuant to section 241(a)(9) of the Immigration and Nationality Act (“INA”) (8 U.S.C. § 1251(a)(9)). A hearing was held before an immigration judge on January 11, 1974, at which Mr. Chadha requested a suspension of deportation pursuant to section 244(a)(1) of the INA (8 U.S.C. § 1254(a)(1)).

On June 25, 1974, the immigration judge issued his decision, ordering that the deportation be suspended pursuant to section 244(a)(1).

Section 244(a)(1) provides that suspensions may be granted when an alien: (1) has been physically present in the United States for at least 7 years immediately preceding his application; (2) is of good moral character; and (3) would suffer extreme hardship if deported.

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