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until hearing the case on the merits; (5) staying the judgment of the district court pending the sending down of the judgment of the Supreme Court; and (6) consolidating the various actions (i.e., Nos. 81-1282-ADX, 81-1283-CFX, 81-1312-ADX, and 81-1313-CFX). Numerous groups and individuals were also granted permission to file briefs as amici curiae.2 [455 U.S. 918]

On July 9, 1982, the GSA Administrator filed a memorandum suggesting that the case was moot since the extended period for ratifying the Equal Rights Amendment had expired on June 30 without any further states acting to pass the proposed amendment. He argued that the resolution of the legal issues before the Court was therefore irrelevant to the rights of any of the parties and that the Court should as a consequence vacate the district court judgment and remand the case with instructions to dismiss the complaint.

On July 23, 1982, NOW filed a response to the GSA Administrator's memorandum in which it asserted that if the Court were to adopt the suggestion of mootness, "it would perforce be deciding that the lower court should have dismissed the complaint at the outset on ripeness grounds." [Response of NOW to the Memorandum for the Administrator of General Services Suggesting Mootness, July 23, 1982, at 2] Despite this view, NOW urged the Court to "state forthrightly" if it dismissed the case as moot that it was holding that the plaintiffs never had any legally cognizable interests in any issue raised by their complaint.

While NOW contended that vacating the lower court judgment and remanding with instructions to dismiss the complaint might well make clear to future litigants and judges that "the federal judiciary should not intrude itself into the ratification process, especially as the process is reaching its climax" [Id. at 3], the organization also noted that "an unexplained mootness decision might_not be fully understood by the legislators and others in whom the Constitution vests the authority to amend the nation's charter of government." [Id. at 4] Therefore, NOW suggested that plenary briefing and argument might still be warranted, and even advisable, given the "unpressured" situation without a "day-by-day countdown on a pending amendment." [Id. at 5] In NOW's view the Court clearly had the power to grant plenary consideration since the case represented a potentially recurring dispute in the political process and the issue involved might otherwise evade review.

On August 6, 1982, the plaintiffs-appellees (the states of Idaho and Arizona) filed their response to the Administrator's suggestion of mootness. In sum, the plaintiffs argued against summary vacation on the issue of mootness because it "would effectively decide, without the benefit of briefing, argument and reflection, many of those very issues of fundamental constitutional significance, consideration of which the Administrator seeks to avoid." [Response of the States of Idaho and Arizona, et al. In Opposition to the Administrator's Suggestion of Mootness, August 6, 1982, at 2] Specifically, said the plaintiffs, summary vacation would "effectively decide the

2 Among those granted permission to file amicus briefs were: the AFL-CIO; Senator Jake Garn, et al.; Joseph E. Brenne rnor of Maine, et al.; the American Bar Association; and ERAmerica.

'antecedent' issue of whether Congress has plenary power and control over the amending process under Article V and thereby determine many of the other issues and policies presented by this case." [Id.]

The plaintiffs insisted that the case was not in fact moot because: (1) the appeal raised "transcendent" legal questions concerning the amendment process which were not dependent on the fate of the proposed Equal Rights Amendment; (2) the acts complained of had 'continuing, pervasive and adverse effects" in need of judicial remedy because the states and the amendment process had been harmed by the extension resolution, which represented an "unconstitutional enlargement of congressional power [Id. at 8]; (3) the expiration of the extension period had not eradicated the harm to the amendment process occurring when the Administrator refused to honor rescissions since the refusal "relegated all states to a secondclass role in the amendment process without redress for all future constitutional amendment proposals" [Id. at 11]; (4) Congressional "manipulation" of the amendment process was capable of repetition without review, and in fact the states could "reasonably expect to be subjected to the same illegal action by Congress again" [Id. at 15]; and (5) the rescission issue was also capable of repetition without review. Finally, the plaintiffs argued that the present appeal was "strongly analogous" to certain election cases which challenged election procedures after elections were held which the Court decided despite claims of mootness.

Also on August 6, 1982, the intervening plaintiffs (the Washington state legislators) filed their response to the Administrator's suggestion of mootness. Arguing that the issues in the case were vitally important and involved the integrity of the Constitution, the intervenors contended that the case deserved full briefing and plenary consideration by the Court.

On September 21, 1982, the GSA Administrator filed a reply memorandum reiterating that the case was moot. Initially the Administrator dismissed the argument that the case was capable of repetition without review, noting that while there was a "theoretical possibility" that the legal posture of the case could be exactly duplicated at some point in the future, there was no "reasonable expectation" or "demonstrated probability" that the same controversy would arise again with the same complaining parties. The Administrator also disputed the argument that the case should be decided because the issues were of "transcendent" importance, terming such an approach directly contrary to the mandate of Article III that the judiciary only decide issues in the context of an actual controversy.

On October 4, 1982, the Court, citing United States v. Munsingwear, Inc., 340 U.S. 36 (1950), issued a one sentence order vacating the judgment of the Idaho district court and remanding the case to the lower court with instructions to dismiss the complaints as moot. [459 U.S.-, 103 S. Ct. 22]

Status-The case is closed.

The complete texts of the March 3, 1981 decision of the district court and the May 11, 1981 decision of the circuit court are printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981.

The complete text of the December 23, 1981 decision of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1982. Moore v. United States House of Representatives

No. 83-1077 (D.C. Cir.)

Paul v. United States

No. 83-1190 (D.C. Cir.)

On August 18, 1982, U.S. Representative W. Henson Moore and seventeen other Members of the House of Representatives 1 filed a complaint for declaratory relief in the U.S. District Court for the District of Columbia against the U.S. House of Representatives, the U.S. Senate, Speaker of the House Thomas P. O'Neill, Jr., President of the Senate George H. W. Bush, Clerk of the House Edmund L. Henshaw, Jr., and Secretary of the Senate William F. Hildebrand. [Civil Action No. 82-2318] The complaint asked the court to declare that the Tax Equity and Fiscal Responsibility Act of 1982 (H.R. 4961) was unconstitutional as a bill for raising revenue which originated in the Senate, in contravention of the requirement in Article I, Section 7, clause 1 that all such bills originate in the House.2

The complaint stated that H.R. 4961, as originally approved by the House, would have amended the Internal Revenue Code to significantly reduce revenues received by the United States. However, the complaint continued, when the Senate Finance Committee subsequently reported H.R. 4961, the bill "bore no resemblance to the original bill of that number which had been passed by the House What was inserted was a massive legislative proposal which deleted all of the revenue-reducing measures of the House bill. The Committee on Finance originated a new bill, except for its number, that would raise revenues by more than $98 billion over three years." [Complaint for Declaratory Relief, August 18, 1982, ¶s 5 and 6] The complaint pointed out that after H.R. 4961 as amended, was passed by the Senate and sent back to the House for consideration, Rep. Rousselot, one of the plaintiffs in the case, offered the following privileged resolution:

H. RES. 541

Resolved, That the Senate Amendments to the bill, H.R. 4961, in the opinion of the House, contravene the first clause of the seventh section of the first article of the Constitution of the United States, and are an infringement of the privileges of this House and that the said bill, with amendments be respectfully returned to the Senate with a message communicating this resolution.

1 In addition to Rep. Moore, the plaintiffs were Representatives Philip M. Crane, Elliott H. Levitas, Stephen L. Neal, James G. Martin, James D. Santini, Carroll Hubbard, Jr., John H. Rousselot, Lawrence P. McDonald, Richard T. Schulze, Billy Lee Evans, Ed Bethune, Richard C. Shelby, Bob Stump, Daniel B. Crane, James E. Jeffries, J. Patrick Williams, and Larry E. Craig.

Article I, Section 7 clause 1 of the U.S. Constitution states that: "All Bills for raising Reve nue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on oth

128 Cong. Rec. H4776 (daily ed. July 28, 1982).

[Id., ¶ 8]

The resolution was subsequently tabled, and the bill was sent to conference committee and ultimately passed in final form by the House and Senate on August 19, 1982. (The President signed the measure into law on September 3, 1982.)

According to the complaint, the plaintiffs were injured by the recited actions in that:

The effect of the above actions has been injury to the plaintiffs in their official capacities as members of the House and its Committee on Ways and Means by interference with the performance of their legislative duties in connection with the origination of bills for raising revenue and their sworn duty to support the Constitution (U.S. Const. art. VI, cl. 3), and injury to them individually and derivatively as members of the House by abrogation of the privilege and duty of the House under the Constitution to originate all bills for raising revenue (id., art. I, § 7, cl. 1). [Id., ¶ 13]

On August 20, 1982, U.S. Representative Ron Paul filed a virtually identical complaint for declaratory relief to that filed by Rep. Moore, also in the U.S. District Court for the District of Columbia. [Civil Action No. 82-2352] The defendants in the action were the same as in the earlier complaint with the exception that the United States was named as a party in addition to the other six defendants. The suit was also grounded on the requirement in Article I, Section 7, clause 1 that the House originate all bills for raising revenue.

On September 23, 1982, the plaintiffs in the Moore case filed a motion for summary judgment and an accompanying memorandum. After reviewing the facts of the case and the historical basis of the Origination Clause in some detail, the Moore plaintiffs argued that the Clause "dictates a mode of legislative procedure with respect to bills for raising revenue which is mandatory . . . It provides for no exceptions and allows for no discretion in the observance of its command." [Memorandum in Support of Plaintiffs' Motion for Summary Judgment, September 23, 1982, at 15] According to the Moore plaintiffs, while the Senate could "propose or concur with amendments" which raise revenue, that body could not "by amendment convert a non-revenue-raising measure into a reprocessed bill for raising revenue, and thereby confer upon it legitimate House paternity." [Id.] Moreover, the Moore plaintiffs asserted, the fact that the House approved the conference committee report on H.R. 4961 did not cure the constitutional defect:

It is not sufficient to say that the concurrence of the House in the passage of the Senate-initiated proposal cures the constitutional defect. If that were so, the Origination Clause would be a dead letter, for if the House did not concur, the Senate proposal would die and the matter would end. There would be no issue. All that would remain of a historic constitutional protection of the people would be a mere privilege of the members of the House, which

they might assert or waive, as they chose, depending upon the political exigencies of the moment. Gone would be the protection of the people, sought to be achieved by the unambiguous constitutional assignment of the exclusive responsibility for originating revenue bills to the legislative body which is most numerous, and closest to and most responsive to the voting and tax-paying populace. [Id. at 17] Finally, the Moore plaintiffs insisted that the court had a constitutional responsibility to declare that Congressional action on H.R. 4961 violated the Origination Clause and was thus void. They asserted that the case presented "no novel or arcane problem for the judiciary" and that "courts have consistently adjudicated Origination Clause issues and determined bills originated in violation of the clause to be unconstitutional." [Id. at 18] It was the "province and duty" of the courts to "say what the law is," the Moore plaintiffs concluded.

On October 6, 1982, the Senate defendants in the Moore and Paul cases filed motions to consolidate the two actions. On October 20, Rep. Paul opposed this motion, noting that the cases presented slightly different issues by virtue of the different filing dates of the two complaints. Rep. Paul pointed out that the Moore case was filed prior to the time Congress took final action on H.R. 4961, while his complaint was filed after Congress concluded consideration of the measure. As a consequence, he argued, certain potential defenses such as lack of ripeness and standing might be more applicable to the Moore case than to his action, and consolidation therefore might prejudice his case.

On October 18, 1982, the United States moved to intervene as of right in the Moore case since the action challenged the constitutionality of an "act of Congress affecting the public interest."

Also on October 18, 1982, the United States (as a defendant in the Paul case and as "applicant-intervenor" in the Moore case) and the Senate defendants filed joint motions to dismiss in both actions and identical supporting memoranda. The United States and the Senate summarized their arguments as follows:

The plaintiffs in their complaints invite this Court to ignore acute separation of powers concerns, to intrude into a matter of primarily legislative concern, and to overturn the express determination of the House, the primary beneficiary of the origination clause, that the clause has not been contravened. The invitation should be declined for several reasons: (1) the instant suits are not justiciable because a political question is presented and because plaintiffs, who have alleged no injury in fact, lack standing; (2) given the existence of legislative remedies, the equitable discretion doctrine for suits involving internal Congressional disputes, recently articulated by the D.C. Circuit and applied by this Court, calls for dismissal of these suits; (3) the Senate and House defendants are immune from these suits under the Speech or Debate Clause of the Constitution; (4) all defendants are protected under the principles of sovereign immunity; and (5) plaintiffs' allegations fail to state a violation of the origination clause. [Memo

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