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128 Cong. Rec. H4776 (daily ed. July 28, 1982).
[Id., 18] 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
ge 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
sponsive 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
randum in Support of Motion to Dismiss by United States
omitted)] 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 Con
gress. (Id.] The United States and the Senate next argued that even if the suits were justiciable, the "equitable discretion" doctrine articulated 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 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]
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.
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