randum in Support of Motion to Dismiss by United States
and Senate Defendants, October 18, 1982, at 5-6 (footnote

Focusing first on the issue of justiciability, the United States and the Senate argued the plaintiffs lacked standing because they has suffered no injury in fact since all the plaintiffs had exercised their right to vote on H.R. 4961. Equally significant, the joint memorandum pointed out, was the fact that the plaintiffs were given "repeated opportunities" to vote on the precise issue presented to the court, since all of them also had a chance to vote on Rep. Rousselot's resolution to the effect that the Senate amendments to H.R. 4961 contravened the Origination Clause. Further, the joint memorandum noted, there was also no injury to the institutional prerogatives of the House, since it was able to orginate the bill in question and to reject any Senate amendments which it judged contravened House rights under the Origination Clause.

The United States and the Senate also asserted that the cases were non-justiciable because the complaints raised a political question. According to the joint memorandum, it was "beyond peradventure" that the cases involved a political question because the "policing of adherence to proper procedures in the enactment of legislation is committed by the Constitution to Congress." [Id. at 14] The fundamental requirement of bicameralism gave the House a complete check on the Senate's compliance with the Origination Clause, the memorandum continued, since any Senate proposals or amendments to a revenue-raising bill had to be approved by the House before becoming law. "Neither House has a need for the assistance of the judicial branch in protecting its rights under the clause; each has full power to insist on its own prerogatives," the memorandum contended. [Id. at 15 (footnote omitted)] Moreover, the joint memorandum added, prudential considerations militated against judicial resolution of the suits:

The absence of discernible standards in this textual commitment of legislative power to the House of Representatives is an equally compelling reason for the application of the political question doctrine. Plaintiffs invite this Court to second guess the House of Representatives determination of what constitutes a revenue raising bill, a term not explicitly defined in the Constitution. Under plaintiffs' theory, the Court, absent textual standards, would be constrained, in determining the meaning of the term "revenue raising", to determine whether the effect of a tax bill would be to increase or decrease revenues, a matter requiring economic expertise not within any special judicial competence. The Court might also be obliged to endeavor to define the degree of amendment to a revenue-raising bill allowed by the Senate under the origination clause. One can hardly conceive of a greater potential intrusion into the heart of the political and legislative processes of Congress. [Id.]

The United States and the Senate next argued that even if the suits were justiciable, the "equitable discretion" doctrine articulat

ed by the District of Columbia Circuit in Reigle v. Federal Open Market Committee, 656 F.2d 873 (D.C. Cir. 1981) (see page 157 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1982 for a discussion of that case) required dismissal of the actions. The memorandum maintained that the plaintiffs' dispute was with their fellow legislators over a matter of legislative concern, and they were seeking judicial intervention to tip the scales in their favor: "Plaintiffs are seeking nothing less than the circumvention of the processes of democratic decisionmaking. Under such circumstances, the separation of powers concerns, which are the foundation of Reigle's equitable discretion doctrine, are presented in their most compelling form." [Id. at 17]

Additionally, the United States and the Senate contended, the Congressional defendants were immune from the suits under the Speech or Debate Clause of the U.S. Constitution 3 since the conduct complained of, i.e., the method by which the Tax Equity and Fiscal Responsibility Act of 1982 was enacted, was by any definition “legitimate legislative activity" protected by the Clause. This protection, said the joint memorandum, extended not only to the Members named as defendants, but also to the Clerk of the House and the Secretary of the Senate (whose acts of certification represented conduct relating to the functioning of Congress itself), and to the House and Senate as institutions.

Moreover, the United States and the Senate argued, the two actions were barred by the doctrine of sovereign immunity, since neither the United States nor the Congress had consented to the suits. Even in the absence of sovereign immunity, the joint memorandum continued, the Senate and its officers were improper parties since they could provide no relief even if the plaintiffs were successful in voiding the challenged statute.

Finally, the United States and the Senate asserted, the complaints failed to state a claim upon which relief could be granted because "under the 'enrolled act rule,' once a law is attested to by the presiding officers of the two houses of Congress, and signed by the President, courts are bound to accept these signatures as conclusive evidence of compliance with Constitutional procedures."[Id. at 21] Further, the joint memorandum argued, the plaintiffs' claim of a breach of the Origination Clause was incorrect on the merits as a matter of law and a matter of fact: "Contrary to plaintiffs' assertions, H.R. 4961, as first passed by the House and sent to the Senate, was a revenue raising bill, as that term is used in the origination clause. It has been long settled that this term includes all tax bills, whether they have the net effect of increasing or decreasing taxes." [Id. at 24]

Also on October 18, 1982, the House defendants filed a motion to dismiss and a supporting memorandum in the Paul case, and a companion motion and memorandum in the Moore case (which also opposed the Moore plaintiffs' motion for summary judgment). While joining generally in the arguments advanced by the United States and the Senate, the House put particular emphasis on the

3 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art, § 6, cl. 1.

need promptly to dismiss the House, the Speaker and the Clerk as parties in order to avoid "serious separate and distinct constitutional considerations of the highest magnitude." [House of Representatives Defendants' Memorandum of Points and Authorities in Support of Motion to Dismiss, October 18, 1982, at 3]

Like the United States and the Senate, the House also argued that it had not consented to be sued and the action was therefore barred by the doctrine of sovereign immunity. The House defendants noted: "In over 190 years of jurisprudence we are unaware of a single case establishing that legislative bodies may be sued eo nomine for statutes passed in alleged derogation of the constitution. In fact, the opposite is true, for enactment of unconstitutional resolutions by the House has never subjected legislators individually or collectively to suit." [Id. at 4]

As had the United States and the Senate, the House also asserted that the plaintiffs had not suffered injury in fact and therefore lacked standing, since they were not denied an opportunity to vote nor were their votes nullified. In any event, said the House, the plaintiffs' injuries were not necessarily redressable by court order because of "the essentially legislative character of the acts alleged to be violative, and the inability of a court to coerce legislative action." [Id. at 12] Further, even if the court found that the plaintiffs had standing, the House agreed with the United States and the Senate that the court should invoke the doctrine of "equitable discretion" under the Riegle case to deny relief.

Finally, the House defendants also maintained that the actions were barred by the Speech or Debate Clause, since the complaints were "forthrightly and specifically grounded in legislative acts, [and] indeed [alleged] nothing other than acts within the legitimate legislative sphere." [Id. at 16]

On November 1, 1982, the Moore plaintiffs filed a memorandum in opposition to the defendants' motions to dismiss. Simply stated, the position of the Moore plaintiffs was that the separation-ofpowers considerations raised by the defendants were not relevant to the present case. The Constitution, they argued, "has never been interpreted to grant to Congress the exclusive power to determine the constitutionality of its own acts." [Memorandum in Opposition to Defendants' Motions to Dismiss, November 1, 1982, at 1] As support for this proposition, the Moore plaintiffs pointed in particular to Powell v. McCormack, 395 U.S. 486 (1969).

The bulk of the Moore plaintiffs' memorandum dealt with issues of justiciability, primarily the political question doctrine. At the outset of their discussion of the doctrine, the plaintiffs took pains to refute the argument that the issue of policing the adherence to proper procedures in the enactment of legislation was textually committed to Congress by the Constitution:

The text of the Origination Clause merely states the mandatory legislative order to be followed with respect to bills for raising revenue. The clause neither says nor implies that either or both Houses of Congress shall have authority to judge or determine disputes arising under the clause. There is nothing in the debates of the Federal Convention or other pertinent Constitutional history-and de

fendants point to nothing-that even remotely suggests
any intention by the Founders to commit final decision of
the issue raised by this case to the legislature for binding
resolution. [Id. at 11]

Moreover, insisted the Moore plaintiffs, a court had the ability to determine the revenue impact of a tax bill and so there were in fact "judicially discoverable and manageable standards" for resolving the issue. Finally, the plaintiffs rejected the argument of the United States and the Senate that the "enrolled act rule" barred consideration, asserting that under the defendants' interpretation "the courts would be precluded from adjudicating the constitutionality of virtually all legislation." [Id. at 19]

The Moore plaintiffs next argued that they had standing because their votes that "no bill for raising revenue should be originated in 1982 ha[d] . . . been nullified by the defendants" and they were "necessarily denied the opportunity to participate in the origination process." [Id. at 22] Further, the plaintifs contended, the fact that they had an opportunity to vote on the final bill and the Rousselot resolution did not cure their injury and deprive them of standing: "Participation in the debate and voting on a bill received from the Senate is not a substitution for the constitutional right to participate, through committee consideration as well as floor debate and vote, in the origination of a new bill." [Id. at 23]

Turning to the equitable discretion doctrine, the Moore plaintiffs claimed that it was inapplicable and should not be employed to dismiss the case, since the possibility of any legislative relief was "remote." Although the Moore plaintiffs conceded that they could introduce legislation to repeal the Tax Equity and Fiscal Responsibility Act of 1982, they argued that it "would at best have only an indirect impact on damage which has already been done, [and] Riegle does not require plaintiffs to take such a useless act." [Id. at 25]

Finally, the Moore plaintiffs asserted that neither the Speech or Debate Clause nor the doctrine of sovereign immunity was applicable to the case. With respect to the former, the plaintiffs contended that it did not apply to "the institutions qua institutions," and need not apply to the individual defendants in situations where only declaratory relief was sought. With respect to sovereign immunity, the Moore plaintiffs maintained that it did not apply when, as in this case, it was claimed that constitutional rights had been abridged.

Also on November 1, 1982, the Moore plaintiffs filed a reply to the defendants' oppositions to their motion for summary judgment. (Although the House defendants' opposition was filed on October 18 (see discussion, supra, page 386), the United States and Senate defendants did not actually file their opposition until November 9 (see discussion, infra, page 389).) In their reply, the Moore plaintiffs insisted that the various Congressional, historical, and judicial precedents cited by the defendants were either unreliable, conflicting, or incorrect.

On November 3, 1982, U.S. District Judge Joyce Hens Green issued an order consolidating the Moore and Paul cases.

On November 8, 1982, Rep. Paul filed his opposition to the defendants' motions to dismiss. In essence, Rep. Paul adopted the arguments set forth by the Moore plaintiffs in their November 1st opposition.

On November 9, 1982, the United States and Senate defendants filed a memorandum in opposition to the Moore plaintiffs' motion for summary judgment. The memorandum incorporated by reference the arguments of the United States and the Senate in their October 18th motion to dismiss and in addition asserted that a historical review of (1) the Constitutional Convention of 1787; (2) Congressional precedents since the beginning of the republic; and (3) pertinent legal precedents demonstrated that "plaintiffs' interpretation of the origination clause is not only at odds with the judgment of the Congress passing this Act, but moreover with two hundred years of precedent." [Memorandum in Opposition to Plaintiffs' Motion For Summary Judgment Submitted By Applicant-Intervenor United States and Senate Defendants, November 9, 1982, at 3] Additionally, the defendants claimed that: (1) H.R. 4961, as introduced in the House, included provisions increasing taxes in certain respects, and (2) the legislation as passed, despite the Senate amendments, included provisions from the original House bill.

In sum, the United States and Senate defendants argued that H.R. 4961 as introduced and reported in the House was a revenueraising bill as contemplated in the Origination Clause. In particular, the defendants asserted that Congressional precedents confirmed that "the term 'Bills for raising Revenue' encompass both bills to reduce, and bills to increase, taxes. These precedents reflect, moreover, that the question of compliance with the Origination Clause has been resolved not in the courts, but internally, in Congress." [Id. at 11] Further, the defendants noted, Congressional precedents also reflected the existence in the Senate of broad power to amend those measures which fit in the revenue raising bill category. That power encompassed the amendments to H.R. 4961, the defendants insisted.

On November 15, 1982, the Senate defendants and the United States filed separate reply memoranda in support of their joint motions to dismiss the complaints. The memoranda in essence reiterated many of the arguments that had been raised previously, while emphasizing areas of particular concern.

The Senate defendants stressed that the cases should be dismissed on narrow grounds: namely, that neither the plaintiffs nor the Congressional defendants were proper parties, nor was a declaratory judgment action the proper vehicle, to litigate the alleged violation of the Origination Clause. Again, the Senate defendants insisted that the Riegle case and its doctrine of equitable discretion required dismissal because the "plaintiffs' grievance is with the Congress of which they are members; They have had and continue to have collegial remedies." [Reply of Senate Defendants in Support of the Motion To Dismiss, November 15, 1982, at 5] Further, the Senate defendants argued, private taxpayer plaintiffs had the opportunity to raise an Origination Clause defense, thus also bringing the case within the Riegle doctrine. Such private plaintiffs, not Members of Congress, were the proper parties, the Senate defendants intimated. The Speech or Debate Clause and the doctrine of

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