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required only that the initial regulations be postponed 90 days; there was no requirement in the statute that subsequent amendments be sent to Congress for 90 days. Moreover, said the defendant, the plaintiff had no standing to request such relief, since there existed no basis for assuming that Congress, if it were given the 90 day layover, would pass legislation overriding the amended regulations.

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

The complete text of the November 30, 1982 opinion of the district court is printed in the "Decisions" section of this report at

page 572.

VIII. Constitutional Powers of Congress Idaho v. Freeman (formerly Goulding)

Civil Action No. 79-1097 (D. Idaho) and Nos. 82-3016 and 82

3008 (9th Cir.)

Carmen v. Idaho

Nos. 81-1312—ADX and 81-1313—CFX (U.S. Supreme Court)

National Organization for Women, Inc. v. Idaho

Nos. 81-1282—ADX and 81-1283–CFX (U.S. Supreme Court) On March 22, 1972, Congress passed, and submitted to the states for ratification, House Joint Resolution 208 proposing the TwentySeventh Amendment to the Constitution of the United States, commonly known as the Equal Rights Amendment (“ERA”). House Joint Resolution 208 provided, in pertinent part, as follows:

That the following article is proposed as an amendment
to the Constitution of the United States, which shall be
valid to all intents and purposes as part of the Constitu-
tion when ratified by the legislatures of three-fourths of
the several States within seven years from the date of its
submission by the Congress:

ARTICLE
"SEC. 1. Equality of rights under the law shall not be
denied or abridged by the United States or by any State on
account of sex.

"SEC. 2. The Congress shall have the power to enforce,
by appropriate legislation, the provisions of this article.

"SEC. 3. This amendment shall take effect two years after the date of ratification." On March 24, 1972, the legislature of the state of Idaho adopted the ERA. In its adopting resolution, the Idaho legislature included the original seven year time limitation for ratification prescribed by Congress in House Joint Resolution 208:

Be it resolved by the Legislature of the State of Idaho, That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid

to all intents and purposes as part of the Constitution,
when ratified by the legislatures of three-fourths of the
several states within seven years from the date of its sub-
mission by Congress: [Senate Joint Resolution No. 133 of

the State of Idaho) In accordance with Federal law, Idaho's adopting resolution was transmitted to the General Services Administration (“GSA"), an agency of the Federal Government, where it was recorded. However, on February 11, 1977, Idaho Secretary of State Pete T. Cenarrusa officially notified GSA that the state of Idaho had rescinded its earlier adoption of the ERA. In addition, he requested that the Administrator of GSA officially announce that the resolution of the Idaho legislature adopting the ERA would no longer be recognized. Secretary of State Cenarrusa also asked that the adopting documents previously filed with GSA be returned. Both requests were denied.

On October 20, 1978, President Carter signed into law House Joint Resolution 638. This law, which had been passed by Congress by simple majority vote, extended the ratification period for the ERA until June 30, 1982. At no time between March 22, 1972 (when Congress had originally submitted the ERA for ratification), and March 22, 1979 (when the original seven-year ratification period expired), did the required number of states (thirty-eight) pass the ERA. Also, at no time during this period was the ERA ratified by the state of Arizona.

On May 9, 1979, a four count complaint for declaratory and injunctive relief was filed in the U.S. District Court for the District of Idaho by the states of Idaho and Arizona and their legislatures. Named as the sole defendant was Paul E. Goulding, in his official capacity as Acting Administrator of GSA.

Count I of the complaint alleged that by refusing to officially recognize Idaho's rescission resolution, the defendant violated two rights guaranteed to the Idaho state legislature by Article V of the U.S. Constitution and the Tenth Amendment to the Constitution: (1) the right to rescind a previous adoption of a proposed amendment prior to ratification by three-fourths of the states; and (2) the right of the legislature to act unfettered by the actions of prior legislatures. It was also claimed that defendant's actions subverted the official policy of the state of Idaho, in violation of Article V and the Tenth Amendment, and deprived members of the Idaho legislature of the effectiveness of their votes, in violation of Article V and the Fifth, Tenth, and Fourteenth Amendments.

With respect to the state of Arizona, Count I alleged that the defendant's failure officially to recognize the rescission resolutions of Idaho and four other states frustrated the implementation of the policy of the state of Arizona that the ERA not be adopted. It was also claimed that the defendant's actions undermined the power and authority of Arizona to oppose the ERA, and deprived Arizona legislators of the effectiveness of their votes. Again, Article V and the Fifth, Tenth, and Fourteenth Amendments were cited in support of these contentions.

Count II claimed that Idaho's ratification of the ERA was null and void not only because of the superseding rescission resolution, but also because Idaho's adopting resolution, by its own terms, became a nullity when the seven-year ratification period expired on March 22, 1979. The defendant's failure to recognize this alleged fact was again alleged to have violated the constitutional rights of the state of Idaho, its legislature, and its individual legislators. The allegations of the state of Arizona under Count II were identical to its allegations under Count I.

In Count III it was alleged that H.J. Res. 638, which extended the ratification deadline, was unconstitutional under Article V and Article I, Section 7 of the Constitution for two reasons. First, by extending the ratification period, it altered a material portion of the originally submitted joint resolution after Idaho had acted in reliance on the original time limitation provision. Second, the plaintiffs alleged that because H.J. Res. 638 was passed by a simple majority vote of Congress and signed into law by the President, it violated the constitutional requirement that action relating to constitutional amendments be taken by no less than a two-thirds majority vote. Further, it was alleged that the President's approval of H.J. Res. 638 constituted executive interference with the amendment process. This unlawful extension, said the plaintiffs, violated their constitutional rights as outlined in Counts I and II.

Count IV claimed that the defendant, by refusing to recognize rescission resolutions and by holding open the ratification period beyond its original seven year term, subjected the states of Idaho and Arizona, their legislatures, and their legislators to time consuming and costly preoccupation with the ERA to the detriment of other important legislative considerations. Violations of Article V and the Fifth, Tenth, and Fourteenth Amendments were again attributed to the defendant.

By way of relief, the plaintiffs sought declaratory judgments that: (1) Idaho effectively rescinded its prior adoption; (2) the extension of the ratification deadline was unconstitutional; and (3) the expiration of the seven-year ratification period terminated Idaho's adoption of the ERA. The plaintiffs also sought a court order to compel the defendant to return Idaho's adopting documents, to remove Idaho's name from any official records showing Idaho as having ratified the ERA, and to publicly announce that Idaho would no longer be included among the ratifying states.

On June 13, 1979, legislators from the state of Washington were granted permission to intervene in this action as plaintiffs.

On July 2, 1979, Rear Admiral Rowland G. Freeman, III assumed the duties of GSA Administrator and automatically replaced Paul E. Goulding as the defendant in this action.

On August 6, 1979, the following national organizations were granted permission to intervene as amici curiae in support of the defendant: the American Association of University Women, the American Civil Liberties Union, the Coalition of Labor Union Women, Common Cause, ERAmerica, the League of Women Voters of the United States, the National Education Association, the National Federation of Business and Professional Women's Clubs, Inc., the National Women's Political Caucus, the Women's Equity Action League, and the Women's Equity Action League Education and Legal Defense Fund.

On September 10, 1979, the defendant, who was represented by the Department of Justice, filed a motion to dismiss, or in the alternative, for summary judgment. The accompanying memorandum raised two major arguments. First, the defendant argued that the complaint presented a nonjusticiable political question because Congress alone was empowered to assess the continued vitality of a proposed amendment, to evaluate the adequacy of a state's ratification or rescission, and to establish an appropriate period for ratification. Citing Coleman v. Miller, 301 U.S. 433 (1938), the defendant stated:

The question of efficacy of ratification by state legislatures, in light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment. [Memorandum of Law in Support of Defendant's Motion to Dismiss, or, in the Alternative, for Summary Judgment, September 10,

1979, at 11] The defendant also asserted that none of the plaintiffs had standing to maintain this action since the plaintiffs had not suffered actual injury, and no injury was attributable to the defendant. Rather, the defendant stated, any interest of the plaintiffs, and injury to that interest, was generalized, speculative, and subjective. Moreover, claimed the defendant, the interests which the plaintiffs claimed were impaired by the defendant were not created by Article V and thus did not fall within its protective ambit. Further, the defendant stated that the plaintiffs had asked the court to resolve major constitutional issues that were not ripe for adjudication since the ERA had not secured the necessary 38 state ratifications.

The second major argument raised by the defendant was that even if the court decided to address the merits, the plaintiffs had failed to state a claim upon which relief could be granted because in the context of the amendment process set forth in Article V Congress had the authority to extend the period for ratifying an amendment and could do so by a simple majority vote. After reviewing the case law, the defendant concluded:

Dillon [v. Gloss, 256 U.S. 386 (1921)] established that an amendment should be ratified within a reasonable time and that the Congress has the power to denominate a time for ratification which it believes will assure that result. Coleman established that the Congress need not establish in advance a ratification period which it considers reasonable and that the question of whether an amendment has been ratified within a "reasonable” time is to be determined exclusively by Congress. An issue presented in this case is whether the Congress may reconsider its determination of what constitutes a reasonable time for ratification, and, in light of political, social and economic conditions existing at the time of submission of the amendment, determine that the proposed amendment remains viable.

Defendant submits that Congress clearly may do so. (Id. at

47] The defendant also maintained that this power was not circumscribed by the Tenth Amendment. Further, the several states performed a Federal function when voting to ratify the ERA, and could not conditionally ratify, irrevocably reject, or rescind a prior ratification, argued the defendant. The defendant further asserted that:

As the plain wording of H.J. Res. 638 makes clear, Congress has not dictated to the States how they must structure their provision of government services. Nor does it displace the_State's role in ratifying proposed amendments. H.J. Res. 638, unlike the Fair Labor Standards Act at issue in National League of Cities, 426 U.S. 833 (1975), is not mandatory. In fact, H.J. Res. 638 imposes no obligation on the States at all. The State of Arizona is not denied the opportunity by Congress to make its own decision regarding allocation of its legislative time, and it retains its authority to withhold ratification of the ERA if it sees fit to do so. However, if it desires to ratify the ERA before 1982,

H.J. Res. 638 gives it the opportunity to do so. (Id. at 60) Lastly, the defendant argued that the function of the GSA Administrator in receiving states' certificates of ratification was purely ministerial, and therefore, although he had acknowledged the receipt of rescissions such as Idaho's he could not give them legal force or effect.

On November 15, 1979, 79 Members of the U.S. House of Representatives filed a motion to intervene as defendants on the grounds that they had a legally protectable interest in preserving their earlier votes and in maintaining exclusive control over the process of amending the Constitution. In addition, the Members noted that they were in a unique position to protect their own interests as Members of Congress and representatives of the electorate. The Members stated that they knew what issues Congress regarded as determinative in making its decision to extend the ERA ratification period because they had participated actively in that decision. Further, the Members claimed that the suit directly involved Congressional power:

[T]he essential challenge in this suit is to congressional power, although the suit is formally styled against an Executive Branch officer who performs only ministerial duties in connection with the amendment process. For these reasons, the petitioners' interests will not be adequately protected by the named defendant under the standards of Rule 24. Memorandum of Points and Authorities in Support of Motion for Leave to Intervene, No

vember 15, 1979, at 4] Also, the Members argued that they were entitled to intervene pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure. They claimed that the previous decision of the court to permit legislators of the state of Washington to intervene as plaintiffs required that their motion be granted. The Members asserted that

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