Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
135838828
label
JGR/Pocket Veto (2 of 5)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
135838828
contentType
document
title
JGR/Pocket Veto (2 of 5)
citationUrl
identifierLocal
485
collections
Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
135838828
coverageEndDate
logicalDate
1986-12-31
year
1986
coverageStartDate
logicalDate
1982-01-01
year
1982
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
00b0870bb671b11a
ocrText
Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Pocket Veto
(2 of 5)
Box: 36
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1985
FRANK G. BURKE, Acting Archivist of the
United States, et al.,
Petitioners
V.
MICHAEL D. BARNES, et al.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT
The Solicitor General, on behalf of Frank G. Burke, Acting
Archivist of the United States, and Ronald Geisler, Executive
Clerk of the White House, petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals for
the District of Columbia Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, la-103a)
is reported at 759 F.2d 21. The opinion of the district court
(App., infra,
) is reported at 582 F. Supp. 163.
JURISDICTION
The judgment of the court of appeals (App., infra,
) was
entered in August 29, 1984. A petition for rehearing was denied
on August 7, 1985. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
Article I, Section 7, clause 2 of the Constitution provides
in pertinent part:
If any Bill shall not be returned by the
President within ten Days (Sundays excepted)
after it shall have been presented to him,
the Same shall be a Law, in like Manner as if
he had' signed it, unless the Congress by
their Adjournment prevent its Return, in
which Case it shall not be a Law.
STATEMENT
1.a. On November 18, 1983, a bill originating in the House
of Representatives, H.R. 4042, 98th Cong., 1st Sess., was
presented by Congress to the President. See App, infra, 4a.
The bill provided that, "until such time as the Congress enacts
new legislation * * * or until September 30, 1984, whichever
occurs first,' the requirements of Section 728 of the
International Security and Development Cooperation Act of 1981
("ISDCA"), Pub. L. No. 97-113, 95 Stat. 1519, 1555-1557, 22
U.S.C. 2370 note, which otherwise expired on September 30, 1983,
should continue in force. Section 728 made semiannual
certification by the President that El Salvador is achieving
progress in protecting human rights a condition for continued
United States military aid.
Also on November 18, 1983, both the Senate and the House of
Representatives ended the first session of the 98th Congress
and, by concurrent resolution, adjourned sine die. See H. Con.
Res. 221, 98th Cong., 1st Sess., 129 Cong. Rec. S16779, S16858,
H10469 (daily ed. Nov. 18, 1983). By separate resolution, the
House and Senate agreed to reconvene on January 23, 1984, for
the second session of the 98th Congress. See H.J. Res. 421,
98th Cong., 1st Sess., 129 Cong. Rec. H10105 (daily ed. Nov. 16,
1983); id. at S16858 (daily ed. Nov. 18, 1983). During the
period of intersession adjournment, under a standing rule of the
House of Representatives, the Clerk of the House would have been
"authorized to receive messages from the President and from the
Senate at any time" (Rule of the House of Representatives, Rule
III, cl. 5, reprinted in H.R. Doc. 271, 97th Cong., 2d Sess. 318
(1983)).
The President did not sign H.R. 4042. He also did not
deliver it to the Clerk of the House with a veto message.
Instead, on November 30, 1983, the White House issued a
statement announcing that the President was withholding his
approval from H.R. 4042, and explaining his reasons for doing
SO. 19 Weekly Comp. Pres. Doc. 1627 (Nov. 30, 1983). Because
the President did not sign H.R. 4042, and because Congress was
in adjournment on the tenth day (Sundays excepted) after the
bill was presented to the President (i.e., November 30,
1983), petitioners, who have statutory responsibility for
- 2 -
effecting the preservation and publication in the Statues at
Large of bills that become law (see 1 U.S.C. 106a, 112), have
treated H.R. 4042 as "pocket vetoed" and have not effected its
publication as a public law of the United States. See App.,
infra, 5a.
b. In response to these events, thirty-three members of the
House of Representatives filed the instant lawsuit. They
alleged that Congress's intersession adjourment did not
"prevent []" the President, within the meaning of the Pocket Veto
Clause, from vetoing H.R. 4042 by returning it to the House of
Representatives since the Clerk of the House could "receive
presidential messages during their absence" (App., infra, 6a).
Consequently, their complaint claimed (ibid.), H.R. 4042
became law notwithstanding its failure to be approved by the
President, and petitioners "are under an obligation to deliver
and publish the bill as a law pursuant to 1 U.S.C. §§106(a), 112
(1982) Complaints in intervention, articulating the same
claim and argument, were filed by the Senate and by the Speaker
and bipartisan leadership of the House of Representatives. See
id. at 3 n.3, 6.
2. On cross-motions for summary judgment, the district
court dismissed the complaints in this case, concluding (App.,
infra, ) that it had no "license to depart from the only case
directly in point," this Court's decision in The Pocket Veto
Case, 279 U.S. 655 (1929). The question presented in this
case is "identical" to the question decided in The Pocket Veto
Case, which "expressly rejected" the same arguments that the
plaintiffs and intervenors make here and held that the Pocket
Veto Clause is applicable during intersession adjournments.
App., infra, . Because The Pocket Veto Case is dispositive,
the district court reasoned, "[u]nless and until the Supreme
Court reconsiders the rule of that case, this Court must, as
must all lower federal courts, follow it" (id. at
).
3.a. A divided panel of the court of appeals reversed and
remanded with instructions to enter summary judgment for the
plaintiffs and intervenors. Before addressing the merits of the
- 3 -
case, the majority responded to the dissent's argument that
neither individual members nor the houses of Congress have
standing to challenge a pocket veto. The majority was "largely
content" to let prior circuit precedents "speak for themselves"
(App., infra, 9a). In particular, the majority relied on the
court of appeals' decision in Kennedy V. Sampson, 511 F.2d 430
(D.C. Cir. 1974), which had held that "a single United States
Senator had standing to challenge an unconstitutional pocket
veto on the ground that it had nullified his original vote in
favor of the legislation in question" (App., infra, 8a). The
plaintiff members of Congress in the instant case "allege an
injury identical to that of the individual lawmaker in Kennedy
V. Sampson" (ibid.). In'addition, the majority observed,
Kennedy V. Sampson "stated that either house of Congress clearly
would have had standing to challenge the injury to its
participation in the lawmaking process, since * * * improper
exercise of the pocket veto power infringes that right more
directly than it does the right of individual members to vote on
proposed legislation" (ibid.). In this case, the majority
pointed out, the intervenors "assert an injury of th[is] second,
more direct type" (ibid.). "Under the law of th[e] circuit,
therefore," both the plaintiffs and the intervenors were
"properly before th[e] court" (id. at 9a). 1
Turning to the merits, the court of appeals held that
Congress's intersession adjournment did not "prevent ***
[the] Return'' of H.R. 4042 within the meaning of the Pocket
Veto Clause because, "by appointing agents for receipt of veto
1
The majority went on to take issue with the dissent's
argument that Kennedy V. Sampson cannot be reconciled with this
Court's standing decisions because of its "failure to give
proper regard to the underpinnings of Article III's standing
requirement, namely, the separation of powers" (App., infra,
9a). The majority explained that, out of "concern for the
separation of powers" (id. at 12a), the court of appeals has
developed a discretionary doctrine that "has led this court
consistently to dismiss actions by individual congressmen whose
real grievance consists of their having failed to persuade their
fellow legislators of their point of view" (id. at 12a-13a),
but that this doctrine is inapplicable here, where "the
legislators' dispute is solely with the executive branch"
(id. at 13a).
- 4 -
messages, Congress affirmatively facilitated return of the bill
in the eventuality that the President would disapprove it"
(App., infra, 18a, emphasis in the original). The court of
appeals acknowledged (id. at 23a) that, in The Pocket Veto
Case, this Court stated that an intersession adjournment would
prevent the President from returning a bill to Congress "'even
if'" Congress had authorized an officer or agent to receive
messages, but the lower court believed that Wright V. United
States, 302 U.S. 583 (1938), "made clear" that this Court was
"not categorically denying the use of agents for delivery of
veto messages" (App., infra, 23a). In Wright, the President was
found to have effectively return vetoed a bill by delivering it
to an agent of the originating houses while that house was in a
three-day recess during the session. The "rule of construction"
established by Wright, the court of appeals reasoned, "requires
a court to find that the President was truly deprived of his
opportunity to exercise his qualified veto power before it may
hold that return was 'prevented'' (id. at 26a).
Thus, according to the court of appeals, "[t]he principle
that *** runs through Pocket Veto and Wright is a simple one:
whenever Congress adjourns, return of a veto message to a duly
authorized officer of the originating house will be effective
only if, under the circumstances of that type of adjournment,
such a procedure would not occasion undue delay or uncertainty
over the returned bill's status" (id. at 28a, emphasis
omitted). In Kennedy V. Sampson, the court of appeals had
"applied th[is] teaching * * * to hold that return is not
prevented by an intrasession adjournment of any length by one or
both houses of Congress, so long as the originating house
arranged for receipt of veto messages" (id. at 26a). Because
intersession adjournments "do not differ in any practical
respect from the intrasession adjournments at issue in Wright
and Kennedy V. Sampson, " the court of appeals concluded, they
also "no longer present any real obstacle to the President's
exercise of his qualified veto power" (id. at 29a, 32a).
- 5 -
The court of appeals "recognize [d] that clear rules
respecting the pocket veto are vitally necessary" (App., infra,
34a). It believed, however, that "[n]othing is gained by
drawing * * * a line" between intersession and intrasession
adjournments. Ibid. Moreover, notwithstanding the "historical
understanding" (ibid.), the court concluded that neither the
"adjournment practices of Congress as envisioned" by the Framers
(id. at 36a) nor "the view that * * * has been accepted
throughout most of the history of the Republic" (id. at 36a-
37a) is "particularly relevant here, given that [such views]
developed under adjournment conditions markedly different from
those prevailing today" (id. at 37a). The court of appeals
also rejected the suggestion that the "truly correct 'bright
line' *** revealed by reading Pocket Veto and Wright together"
(ibid.) is that the Pocket Veto Clause is applicable whenever
there is an adjournment for more than three days. "Only those
adjournments that actually prevent return create the opportunity
for a pocket veto," the court stated, and "it is impossible to
know whether an adjournment prevents return merely from the fact
that it is a particular type of adjournment" (id. at 39a).
Rather than "choose *** any line" (ibid.), therefore, the
court of appeals ruled that, in the circumstances of the
"present case[, ] *** [t]he existence of an authorized receiver
of veto messages, the [House] rules providing for carryover of
unfinished business, and the duration of modern intersession
adjournments, taken together," are sufficient to render the
Pocket Veto Clause inapplicable during an intersession
adjournment. Id. at 40a.
b. In a lengthy dissent that did not reach the merits,
Judge Bork argued that none of the plaintiffs or intervenors
have standing because "impairment of governmental powers is
[not] a judicially cognizable injury, that is, an 'injury in
fact' for purposes of article III" (App., infra, 64a). Judge
Bork further believed that the theory of congressional standing
embraced by the majority would cause "a major shift in basic
constitutional arrangements" that "is flatly inconsistent with
the judicial function designed by the Framers of the
- 6 -
Constitution" (id. at 41a). Judge Bork stated that there is
no basis for treating the analysis of standing for individual
members of Congress differently from that for institutional
congressional plaintiffs (id. at 42a-43a n.1); he then argued
that the doctrine of congressional standing is "uncontrollable"
(id. at 47a), and logically suggests that there also should be
standing for the President and members of the judiciary to
challenge allegedly "unlawful interference with [their] official
powers" as well (id. at 50a). In Judge Bork's view, the
entire doctrine of congressional standing is misconceived
because there is no distinction between suits alleging injury to
lawmaking powers and suits seeking to require the President
faithfully to execute a particular statute. Id. at 49a-50a
n.3. Judge Bork's dissent therefore argued that members of
Congress have no greater standing than their constituents and,
accordingly, congressional suits should be barred for the same
reason as are citizen suits -- both raise only generalized
grievances about the conduct of government. Id. at 56a-6la.
Judge Bork relied heavily on this Court's precedents holding
that standing is an aspect of the separation of powers; he
concluded that "the fundamental consideration appears to be the
need to limit the role of the courts in the interplay of our
various governmental institutions" (App., infra, at 66a), and
that the circuit precedents are not binding because they are
"flatly inconsistent with th[is] method of analyzing the
standing of congressional plaintiffs" (id. at 95a). Judge
Bork argued that congressional standing would lead to a
dangerous arrogation of power within the judiciary (id. at
67a):
A federal judiciary that is available on
demand to lay down the rules of the powers
and duties of other branches and of federal
and state governments will quickly become the
single, dominant power in our governmental
arrangements. The concept of the
fragmentation of power, upon which both the
ideas of the separation of powers and of
federalism rest, will be, if not destroyed,
at least very seriously eroded. * * * The
concept of standing prevents this undesirable
centralization of authority by severely
limiting the occasions upon which courts are
authorized to lay down the rules for govern-
ments and institutions of goverment.
- 7 -
h
Finally, Judge Bork urged that his position is consistent
with the intent of Framers (App., infra, 70a-77a), that the
equitable discretion doctrine developed by the court of appeals
to limit the breadth of its standing rules is unsupportable
(id. at 77a-82a), and that this Court's cases on which the
majority relied do not support its position (id. at 82a-
101a). He concluded that "[t]he legitimacy, and thus the
priceless safeguards of the American tradition of judicial
review may decline precipitously" if the "drastic rearrangement
of constitutional structures" entailed by the congressional
standing doctrine is "allowed to take hold" (id. at 102a,
103a).
REASONS FOR GRANTING THE PETITION
[INSERT INTRODUCTION]
1.a. "Simply stated, a case is moot when the issues
presented are no longer 'live' or the parties lack a legally
cognizable interest in the outcome." Powell V. McCormack, 395
U.S. 486, 496 (1969). The underlying issue in this case,
whether H.R. 4042 was pocket vetoed or became a law, ceased to
be "live" no later than October 1, 1984. H.R. 4042 was
temporary legislation that contained its own termination date:
the bill provided that the otherwise expired Section 728 of the
ISDCA "continue to apply *** until such time as the Congress
enacts new legislation *** or until September 30, 1984,
whichever occurs first." If, as respondents claim, H.R. 4042
was not pocket vetoed and therefore became a law, this provision
established the limit on its life as a law; once that limit was
passed, H.R. 4042 would not be a law regardless of how the
parties' dispute over the pocket veto might be resolved. This
case therefore clearly has been moot since October 1, 1984.
See, e.g., National Organization for Women, Inc. V. Idaho, 459
U.S. 809 (1982) (case involving question whether Congress could
extend the time for ratification of the Equal Rights Amendment
became moot when ratification period, as extended, expired);
Kremens V. Bartley, 431 U.S. 119, 128-129 (1977) (case
- 8 -
challenging statute became moot when statute was repealed);
Diffenderfer V. Central Baptist Church, 404 U.S. 412, 414-415
(1972) (same); Hall V. Beals, 396 U.S. 45, 48 (1969) (same);
Berry V. Davis, 242 U.S. 468 (1917) (same); cf. All American
Airways, Inc. V. United Air Lines, Inc., 364 U.S. 297
(1960) (case involving temporary legislation should be held
until permanent legislation is enacted or temporary legislation
expires).
It is well established that, under Article III of the
Constitution, a federal court has no jurisdiction to decide a
moot case. See, e.g., DeFunis V. Odegaard, 416 U.S. 312, 316
(1974); North Carolina V. Rice, 404 U.S. 244, 246 (1971); Aetna
Life Insurance Co. V. Haworth, 300 U.S. 227, 240 (1937). As
this Court explained in Preiser V. Newkirk, 422 U.S. 395, 401
(1975) (original quotation marks omitted), "a federal court has
neither the power to render advisory opinions nor to decide
questions that cannot affect the rights of litigants in the case
before them. Its judgments must resolve a real and substantial
controversy admitting of specific relief through a decree of a
conclusive character, as distinguished from an opinion advising
what the law would be upon a hypothetical state of facts."
Furthermore, "an actual controversy must be extant at all stages
of review" (id. at 401). Therefore, "to prevent a judgment,
unreviewable because of mootness, from spawning any legal
consequences, " United States V. Munsingwear, Inc., 340 U.S.
36, 41 (1950), the "established practice of th[is] Court in
dealing with a civil case from a court in the federal system
which has become moot while on its way here *** is to reverse
or vacate the judgment below and remand with a direction to
dismiss" (id. at 39). That is the appropriate disposition for
this case, since the court of appeals' opinion as to whether
H.R. 4042 ever became a law is precisely the kind of advisory
opinion that Article III forbids.
b. The only explanation offered by the court of appeals for
refusing to treat this case as moot was the court's assertion
that "Congress may make further appropriations to which the
- 9 -
certification requirements of H.R. 4042 might apply if that bill
became law" (App., infra, 8a n.10) 2 This assertion responded
to a suggestion that H.R. 4042 had been superseded even before
its September 30, 1984, termination date because, in making
supplemental appropriations for military assistance to El
Salvador during the 1984 fiscal year, Congress established new
conditions that replaced the certification requirements of H.R.
4042. See Pub. L. No. 98-332, 98 Stat. 284 (1984); see also 130
Cong. Rec. H4785-H4794 (daily ed. May 24, 1984). Plainly,
however, whatever force the court of appeals' reasoning may have
had prior to September 30, 1984, was lost when, on that date,
3
H.R. 4042 unambiguously expired.
C. In the court of appeals, respondents suggested that this
case is not moot because the question at issue is capable of
repetition yet evading review. Clearly, however, that sugges-
tion lacks merit since there is nothing "by nature short-lived"
(Nebraska Press Association V. Stuart, 427 U.S. 539, 547
(1976)) about a dispute over whether a bill has been pocket
vetoed. Past disputes arising out of pocket vetoes (e.g.,
The Pocket Veto Case) have not become moot and evaded review:
most bills, after all, do not both automatically expire within a
few months of their enactment and leave behind no vested private
rights. In addition, the capable of repetition doctrine only is
applicable when there is a "'reasonable expectation' or a
2
The court of appeals presumably intended this explanation to
address the situation that existed on the date that it issued
its judgment (August 29, 1984) rather than the date the opinion
was issued (April 12, 1985). After we noted the inadequacy of
this explanation in a supplement to our petition for rehearing,
the court directed the parties to file briefs on the question of
mootness. See App., infra,
.
The court of appeals,
however, issued no further opinion.
3
In fact, Congress did not make any "further appropriations
to which the certification requirements of H.R. 4042 might
apply." The first supplemental appropriation discussed in the
court of appeals' opinion was followed by a second supplemental
appropriation that also abandoned H.R. 4042's certification
requirements and established new conditions for El Salvador
aid. See Pub. L. No. 98-396, 98 Stat. 1405 (1984); see also 130
Cong. Rec. S9931-S9932 (daily ed. Aug. 8, 1984); id. at H8977-
H8982 (daily ed. Aug. 10, 1984); id. at S10490-S10492 (daily
ed. Aug. 10, 1984).
- 10 -
'demonstrated probability' that the same controversy will recur
involving the same complaining party." Murphy V. Hunt, 455
U.S. 478, 482 (1982), quoting Weinstein V. Bradford, 423 U.S.
147, 149 (1975). It seems highly unlikely that H.R. 4042 will
be reenacted and again pocket vetoed.
d. Respondents also suggested that a live controversy
persists because, even though H.R. 4042 is not now a law, it
still should be preserved (see 1 U.S.C. 106a) and published in
the Statutes at Large (see 1 U.S.C. 112) for the sake of the
historical record. This suggestion, of course, trivializes the
dispute that gave rise to this case and would turn the case into
"a debate concerning harmless, empty shadows.' Poe V. Ullman,
367 U.S. 497, 508 (1961) (plurality opinion of Frankfurter,
J.) 4 Moreover, if establishing a historical record is all
that remains at issue here, the viability of this case would
depend on respondents' ability to demonstrate that they have a
legally cognizable interest in preserving and publishing bills
that become law. However, no concern for any peculiarly
congressional interests is shown by the statutes that govern the
preservation and publication of bills. The Archivist's duties
under 1 U.S.C. 106a with respect to preservation are merely a
matter of internal government housekeeping, intended "solely to
benefit * ** the Federal Government as a whole. " Kissinger V.
Reporters Committee for Freedom of the Press, 445 U.S. 136,
149 (1980). And, publication of the Statutes at Large is
mandated by 1 U.S.C. 112 for the benefit of the general public,
not particular government officeholders. Accordingly,
4
Respondents' suggestion that this case is kept alive by the
possibility of securing some kind of formal vindication of their
position that H.R. 4042 once was a law is similar to an argument
that was unavailing in National Organization for Women. In
that case, the State of Idaho unsuccessfully asserted that,
"[b]y refusing to recognize Idaho's rescission resolution and by
refusing to make any official announcement honoring the
rescinding resolutions of other states, the Administrator [of
GSA] [d] damaged the sovereign power and authority of the
states well beyond the expiration of the extension" of the ERA's
ratification deadline. Response of the States of Idaho, et al.,
in Opposition to the Administrator's Suggestion of Mootness,
Nos. 81-1282, 81-1283, 81-1312, 81-1313, at 11.
- 11 -
permitting this case to go forward simply to determine whether
H.R. 4042 should be preserved by the Archivist and published in
the Statutes at Large "would transform the federal courts into
'no more than a vehicle for the vindication of the value
interests of concerned bystanders. Allen V. Wright, Nos. 81-
757, 81-970 (July 3, 1984), slip op. at
, quoting United
States V. SCRAP, 412 U.S. 669, 687 (1973).
e. Respondents' final suggestion in this case has been that
H.R. 4042 might still have residual consequences if it was once
a law. Citing the statutory provisions governing the audit and
settlement of government accounts (see 31 U.S.C. 3521-3532) and
the Antideficiency Act (see 31 U.S.C. 1341, 1349-1351), respon-
dents have asserted that; if H.R. 4042 was once a law, either
the Comptroller General or the executive branch agencies
responsible for disbursing aid to El Salvador may now be
obligated to note that an improper disbursement of funds
5
occurred.
Like respondents' argument about publication in
the Statutes at Large, however, this argument relies on a
legalism that is without substance. At the outset of this
litigation, respondents unsuccessfully sought a preliminary
injunction that would have required H.R. 4042 to be treated as a
law pending the outcome of the case. In their request for an
interlocutory remedy, respondents conceded, indeed argued, that
aid already given to El Salvador cannot be recouped.
Furthermore, in light of the denial of respondents' request for
a preliminary injunction, no serious suggestion now can be made
5
If H.R. 4042 had become a law, it appears that there would
have been technical noncompliance with its certification
requirements during a three month period from mid-January 1984
(when El Salvador's human rights progress should have been
certified) through mid-April 1984 (after which aid to El
Salvador came from supplemental appropriations to which H.R.
4042 was inapplicable). In January 1984, the State Department
reported to Congress on El Salvador's human rights progress, but
did not submit the formal "certification" that H.R. 4042 would
have required. If H.R. 4042 had been in effect, arguably aid to
El Salvador should have been suspended in the absence of a
certification. However, Congress's eventual enactment of
supplemental appropriations that were not subject to H.R. 4042's
certification requirements clearly lifted any suspension that
H.R. 4042 may have required, and may well also have constituted
a ratification of earlier disbursments.
- 12 -
that officials and agencies that disbursed aid should be
subject to legal sanctions. And, in any event, respondents'
speculation about possible residual consequences that H.R. 4042
might still have carries this case far afield: none of the
parties to this litigation are in any way involved in the
auditing and settlement of government accounts, and
congressional plaintiffs, like respondents, clearly lack
standing to sue on a claim that government funds have been spent
improperly. See, e.g., United Presbyterian Church in the
U.S.A. V. Reagan, 738 F.2d 1375, 1381-1382 (D.C. Cir. 1984);
Hansen V. National Commission on the Observance of International
Women's Year, 628 F.2d 533 (9th Cir. 1980); Harrington V.
Bush, 553 F.2d 190, 213-214 (D.C. Cir. 1977); see also Crockett
V. Reagan, 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 104 S.
Ct. 3533 (1984) (political question doctrine bars suit by
congressional plaintiff alleging that aid was unlawfully given
to El Salvador).
f. In sum, neither the court of appeals nor respondents
have suggested any plausible alternative to the natural and
obvious conclusion that the dispute in this case about whether
H.R. 4042 was pocket vetoed or became a law faded into an
academic question when the time within which H.R. 4042 might
have been operable expired. This case therefore affords no
vehicle for resolving disagreements between the executive and
legislative branches about the pocket veto, and the court of
appeals erred seriously in rendering a wholly gratuitous opinion
that purports to do so. The decision of fundamental constitu-
tional issues "is legitimate only in the last resort * * * as a
necessity in the determination of real, earnest, and vital
controversy. Valley Forge Christian College V. Americans
United for Separation of Church and State, Inc., 454 U.S. 464,
471 (1982), quoting Chicago and Grand Trunk Ry. V. Wellman,
143 U.S. 339, 345 (1892).
2. In addition, respondents' claims would be nonjusticiable
even if there still existed a possibility of H.R. 4042 being a
law. The only injury that respondents allege they have suffered
- 13 -
by virtue of the pocket veto of H.R. 4042 is an abridgment of
their "lawmaking powers" (App., infra, 9a). Such a claim simply
does not make respondents "'litigant[s] *** entitled to have
the court decide the merits of the dispute. Allen V. Wright,
slip op. at 12, quoting Warth V. Seldin, 422 U.S. 490, 498
(1975).
a.i. The court of appeals' decision in this case is a
"clear restatement of the doctrine" that has been developed by
the District of Columbia Circuit under which that circuit
entertains suits by "congressional plaintiffs" whenever it
believes that "the political branches ha[ve] reached a
'constitutional impasse. III Gregg V. Barrett, D.C. Cir. No. 84-
5458 (Sept. 13, 1985), slip op. at 12, 13. Under this doctrine,
the court of appeals consistently holds that congressional
plaintiffs, whether individual members of Congress or
congressional institutions, have standing to litigate a claim
alleging nothing more than that "a '[d]eprivation of a
constitutionally mandated process of enacting law' * * * has
actually occurred" (App., infra, 14a). The court of appeals,
however, also routinely dismisses such claims in the name of
equitable or remedial discretion unless "the legislators'
dispute is solely with the executive branch" (id. at 13a).
See, e.g., Moore V. United States House of Representatives,
733 F.2d 946 (D.C. Cir. 1984), cert. denied,
;
Vander Jagt V. O'Neill, 699 F.2d 1116 (D.C. Cir. 1983), cert.
denied,
; Riegle V. FOMC, 656 F.2d 873 (D.C. Cir.), cert.
denied, 454 U.S. 1082 (1981); Goldwater V. Carter, 617 F.2d
697 (D.C. Cir.), vacated, 444 U.S. 996 (1979).
The foundation on which the District of Columbia Circuit has
built this doctrine is, as Judge Bork's dissent in this case
points out (App., infra, 94a-96a), the court of appeals' belief
that separation of powers considerations are irrelevant to the
standing inquiry. See also Moore V. House of Representatives,
733 F.2d at 957-961 (Scalia, J., concurring in result). Thus,
when faced with claims brought by congressional plaintiffs, the
court of appeals has stated that "a proper dispute ***
- 14 -
concerning the respective constitutional functions of the
various branches of the government" (App., infra, 10a) exists if
"it cannot be said that Congress is asking for an advisory
opinion on a hypothetical question" (id. at 13a), if the
"congressional complainants clearly allege a concrete injury in
fact to a specific legal interest" such as enacting laws,
rather than "generalized, amorphous injuries" (Moore V. House
of Representatives, 733 F.2d at 951), and if there is "a
relationship between [a congressional plaintiff] and his claim
*** which assures that the issues [will be] litigated with
*** vigor and thoroughness" (Kennedy V. Sampson, 511 F.2d at
433). When these criteria have been present, the court of
appeals summarily concludes its standing inquiry with the
assertion that "[i]t is emphatically the province and duty of
the judicial department to say what the law is.'" App., infra,
10a, quoting Marbury V. Madison, 5 U.S. (1 Cranch) 137, 177
(1803). In effect, the court of appeals thus limits its
to
S
standing inquiry in congressional plaintiff cases h a requirement
that there be "'concrete adverseness. Moore V. House of
Representatives, 733 F.2d at (Scalia, J.), quoting Baker
V. Carr, 369 U.S. 186, 204 (1962).
However, the District of Columbia Circuit simultaneously
tries to limit the results of this truncated standing
analysis. After opening the doors to congressional plaintiffs,
the court of appeals discovered "a growing phenomenon[ ] * *
*
lawsuit[s] *** pursued in reaction to a wide range of
executive and legislative decisions that left some individual
legislators disgruntled and eager to attempt to reverse their
fortunes via judicial intervention." Gregg V. Barrett, supra,
slip op. at 8. This "plethora of cases left the courts
struggling" with what the court of appeals has acknowledged are
"serious separation-of-powers issues" (id. at 9). But, rather
than reconsider its doctrine of congressional standing, the
court of appeals instead "firmly established the doctrine of
remedial discretion as the preferred method for coping with
separation-of-powers concerns in suits by congressional
- 15 -
plaintiffs" (id. at 11). This "sky-hook" (Moore V. House of
Representatives, 733 F.2d at 960 (Scalia, J,)) "summoned forth
to save us from unacceptable results" (id. at 958) evolved
into only half-hearted acceptance of the limits on the court's
ability to adjudicate purely intragovernmental disputes over
"official" prerogatives: in practice, relying on remedial
discretion, the District of Columbia Circuit "consistently * * *
dismiss[es actions by individual congressmen whose real
grievance [is with] their fellow legislators" (App., infra, 12a-
13a); conversely, the court of appeals sees no problem with
entertaining "legislators' dispute[s] [that are] solely with the
executive branch" (id. at 13a).
ii. As the court of appeals majority recognized, the
standing question in this case presents no problems under the
doctrine of congressional standing that has been fashioned by
the District of Columbia Circuit. Indeed, the standing question
here is "identical" (App., infra, 8a) to the one that the court
of appeals resolved in Kennedy V. Sampson, a fountainhead of the
circuit's congressional standing doctrine. Furthermore, as the
denial of our petition for rehearing and suggestion for
rehearing en banc demonstrates, the court of appeals clearly is
not inclined to reconsider its doctrine of congressional
standing despite the vigorous criticisms leveled against the
circuit's precedents by Judge Bork in his dissent below and by
Judge Scalia in Moore V. House of Representatives.
b. It is clear, however, that the District of Columbia
Circuit's analysis of questions of congressional standing is
seriously misconceived. To quote Judge Bork (App., infra, 65a-
66a):
The court has fashioned a doctrine, in
contradiction of Allen V. Wright, that
transforms it from a tribunal exercising its
powers 'only in the last resort, and as a
necessity' to a governing body for the entire
federal government available upon request to
any dissatisfied member of the Legislative
* * * Branch. Plainly, the courts of this
circuit, if no other, are now not the last
but the first resort. * * * Congressional
standing * * * completely dispenses with the
traditional limited function of the judiciary
and violates every one of the criteria for
constitutional standing laid down by the
Supreme Court in Allen V. Wright.
I I 16
Simply put, the doctrine of congressional standing is
conceptually at war with this Court's teachings that "the proper
-- and properly limited -- role of the courts in a democratic
society" (Warth V. Seldin, 422 U.S. at 498) requires that
"questions * * * relevant to the standing inquiry must be
answered by reference to the Art. III notion that federal courts
may exercise power *** only when adjudication is 'consistent
with a system of separated powers * * * Allen V. Wright,
slip op. at , quoting Flast V. Cohen, 392 U.S. 83, 97
(1968). By refusing to consider the separation of powers
implications of congressional plaintiff suits as bearing on the
question of standing in such cases, and consigning consideration
of the separation of powers to a discretionary rule that
respects only the internal relationships of the legislative
branch, the District of Columbia Circuit has gone far toward
substituting a system of judicial refereeship for the system of
political checks and balances. Totally forgotten in the court
of appeals' analysis is the principle that it is only the
province of the federal courts "to say what the law is" when
their jurisdiction is invoked by a plaintiff with a legally
cognizable interest. Congressional standing carries the federal
courts beyond their province because it mistakes a political
interest for one that is legally cognizable. That is to say, a
plaintiff who has suffered a "distinct and palpable'" "personal
injury" is entitled to call-upon the federal courts to adjudi-
cate his claim, but "an asserted right to have the Government
act in accordance with law is not sufficient, standing alone, to
confer jurisdiction on a federal court." Allen V. Wright, slip
op. at
. As Justice Brandeis once observed: "Among the many
applications of this rule, none is more striking than ***
[that] the challenge by a public official interested only in the
performance of his official duty will not be entertained."
Ashwander V. TVA, 297 U.S. 288, 348 (1936) (emphasis added).
C. The notion that congressional plaintiffs should be
entitled to enlist the aid of the federal courts to resolve
- 17 -
disputes with the executive branch concerning governmental
powers finds no support in this Court's precedents. See App,
infra, 82a-94a. 6 If this Court decides that the expiration of
H.R. 4042 does not prevent it from reaching the standing
question in this case, this case provides a paradigm
illustration of how the doctrine fashioned by the circuit court
"lead[s] to the destruction, not the preservation, of the
separation of powers" (App., infra, 70a) by making the judiciary
arbiters of political, not legal, disputes.
i. The premise of the majority opinion in this case (and of
the court of appeals' decision in Kennedy V. Sampson) is that
congressional plaintiffs have standing to challenge a pocket
veto because the veto "nullifie[s] [their] original vote in
favor of the legislation in question." App., infra, 8a; see
also Kennedy, 511 F.2d at 436. That is, the court of appeals
has concluded that "vindicat[ing] the effectiveness" of their
vote (511 F.2d at 436) and redressing "the injury to [their]
participation in the lawmaking process" (App., infra, 8a) is the
interest that gives congressional plaintiffs standing.
However, the Constitution defines no interests, rights or
obligations in the lawmaking process; all that it does is, in
Art. I, Sec. 7, cl. 2, define what is or is not a law. When
Congress presents a bill to the President and he fails to return
veto it, Congress's role in the law-making process is finished;
under Article I, Section 7, clause 2, the bill then either is or
is not a law. Whether the President (and the executive branch
generally) treats the bill as law implicates not Congress's
interest in the "lawmaking process, but the President's Article
6
To date, however, the District of Columbia Circuit's
congressional standing doctrine has evaded this Court's
review. In Moore V. House of Representatives, 733 F.2d at 960
(emphasis in the original, footnote omitted), Judge Scalia
described circumstances that have allowed this result:
"[L]argely through application of the doctrine of equitable
discretion, with one exception all of [the court of appeals']
decisions in this field since Kennedy V. Sampson have awarded
judgment for the party that was challenging standing, so that
there has been no ability to seek Supreme Court review on that
point.
"
- 18 -
II, Section 3 duty to "take Care that the Laws be faithfully
executed. If If a bill is not treated as law, it is irrelevant
what, if any, reason is assigned: the President may believe,
rightly or wrongly, that the bill has been pocket vetoed, or is
unconstitutional, or simply is improvident. In any case,
congressional votes for the bill are equally "nullified."
Upon analysis, therefore, the rationale given by the court
of appeals for congressional standing to challenge a pocket veto
contains no principled basis for distinguishing such challenges
from any generalized grievance that Congress or congressmen may
have about the conduct of government. Indeed, Congress has no
interest distinct from any member of the general public in see-
ing that "its" laws are treated properly; surely, for example,
no one would suggest that a congressional plaintiff can sue to
secure "faithful [] execut[ion]" of a law just because he voted
7
for it.
Accordingly, congressional plaintiffs cannot be
considered to have a legally cognizable interest in vindicating
the effectiveness of their votes when a bill is asserted to have
been pocket vetoed. See, e.g., Allen V. Wright, slip op. at -
; Valley Forge Christian College V. Americans United for
Separation of Church and State, Inc., 454 U.S. at 482-486;
Schlesinger V. Reservists Committee to Stop the War, 418 U.S.
208, 217 (1974); United States V. Richardson, 418 U.S. 166, 176-
189 (1972); Ex parte Levitt, 302 U.S. 633 (1937).
ii. Alternatively, even if it is assumed that it sometimes
might be appropriate for the courts to referee a dispute solely
between the executive and the legislature about whether a bill
was pocket vetoed or became a law, the respondents in the case
would not be plaintiffs who are entitled to obtain an
7
As this Court stated in Allen V. Wright, slip op. at
,
"the idea of the separation of powers[ counsels against
recognizing standing in a case brought, not to enforce specific
legal obligations whose violation works a direct harm, but to
seek a restructuring of the apparatus established by the
Executive Branch to fulfill its legal duties. The Constitution,
after all, assigns to the Executive Branch, and not to the
Judicial Branch, the duty to 'take Care that the Laws be
faithfully executed.
- 19 -
adjudication. Only Congress, not individual members or even
houses of Congress, passes bills, and, assuming that Art. I,
Sec. 7, cl. 2 establishes an "official" right that is judicially
cognizable, it by definition must be a right that is vested in
the Congress as an institutional body. None of the respondents
in this case -- individual members and officers of the House
acting without any institutional authorization and the Senate
acting on its own -- can claim to represent "Congress." Cf.
Goldwater V. Carter, 444 U.S. at 997 (Powell, J.).
The theory of "derivative" injury that the court of appeals
embraced in this case (App., infra, 8a-9a) and in Kennedy V.
Sampson, 511 F.2d at 434, under which the District of Columbia
Circuit permits individual members of Congress to sue to
vindicate the legislative branch's asserted interest in the
lawmaking process, seriously exacerbates the separation of
powers problems posed by litigation between the political
branches over their official prerogatives. See Note,
Congressional Access to the Federal Courts, 90 Harv. L. Rev.
8
1632 (1977)
In addition, it is difficult to see how an
individual member of Congress, acting without institutional
authorization, could even be a proper party, in an ordinary
civil procedure sense, to secure a binding adjudication of
Congress's interests. See generally Rules 19, 23, 23.1, 23.2,
24 (a) (2), F.R. Civ. P. Under no circumstances, therefore,
should individual members of Congress, or even individual
houses, be considered to have a sufficiently direct interest in
the lawmaking process to give them standing to challenge a
pocket veto. If the federal courts are to have a role in
8
The cited Note discusses, in terms of the political question
doctrine, the separation of powers problems that occur when
individual members of Congress are permitted to sue to vindicate
what they allege is the legislative branch's interest, making
the point that such cases ask the courts to resolve quint-
essentially political disputes when there is no guaranty that
the political branches have indeed reached an impasse. In our
view, because these problems are inextricably tied to the
identity of the plaintiff, they are more appropriately
considered in the context of standing. See Moore V. House of
Representatives, 733 F.2d at 961 n.6 (Scalia, J.).
- 20 -
resolving purely intragovernmental disagreements regarding the
relationship between the executive and legislative branches, the
minimum requirement should be that "the Congress, by appropriate
formal action, *** [has] challenge [d] the President's
authority. " Goldwater, 444 U.S. at 1002 (Powell, J.).
3.a. With regard to the merits of this case, the court of
appeals' ruling that the Pocket Veto Clause is inapplicable
during an intersession congressional adjournment is in direct
and irreconcilable conflict with this Court's decision in The
Pocket Veto Case. In that case, this Court squarely held (279
U.S. at 691-692) that an "adjournment of the first session of
the * * * Congress * * * prevent [s] the President, within the
meaning of the constitutional provision, from returning [a]
Bill" to the house in which it originated. Indeed, The Pocket
Veto Case considered and expressly rejected the same arguments
that respondents have made in this case: that the Pocket Veto
Clause should be interpreted in such a way as to disfavor pocket
vetoes (see id. at 676-679); that the Pocket Veto Clause should
be applicable only when Congress adjourns its biennial term (see
id. at 680-681); and, perhaps most important, that the
possibility of delivering a veto message to an agent of the
originating house should render the Pocket Veto Clause
inapplicable (see id. at 681-685).
The "crucial question" (279 U.S. at 681) that The Pocket
Veto Case decided was that, "under the constitutional mandate[, ]
[a bill] is to be returned to the 'House' when sitting in an
organized capacity for the transaction of business, and having
authority to receive the return, enter the President's
objections on its journal, and proceed to reconsider the bill;
and that no return can be made to the House when it is not in
session as a collective body and its members are dispersed"
(id. at 683). This Court found "no substantial basis for the
suggestion that although the House in which the bill originated
is not in session the bill may nevertheless be returned,
consistently with the constitutional mandate, by delivering it,
with the President's objection, to an officer or agent of the
- 21 -
House" (id. at 683-684). "[T]he delivery of the bill to such
officer or agent, even if authorized by Congress itself, would
not comply with the constitutional mandate [because] [t]he
House, not having been in session when the bill was delivered to
the officer or agent, could neither have received the bill and
objections at that time, nor have entered the objections upon
its journal, nor have proceeded to reconsider the bill, as the
Constitution requires" (id. at 684). "From a consideration of
the entire clause" (id. at 682), this Court concluded (id.
at 684-685):
Manifestly it was not intended that, instead
of returning a bill to the House itself, as
required by the constitutional provision, the
President should be authorized to deliver it,
during an adjournment of the House, to some
individual officer or agent[, * * * keeping
the bill * * * in a state of suspended
animation until the House resumes its
sittings, * * * and necessarily causing delay
in its reconsideration which the Constitution
evidently intended to avoid. * * * [I]t was
plainly the object of the constitutional
provision that there should be a timely
return of the bill, which * * * should enable
Congress to proceed immediately with its
reconsideration; and that the return of the
bill should be actual and public return to
the House itself, and not a fictitious return
by a delivery of the bill to some individual
which could be given a retroactive effect at
a later date * * *
In a word, The Pocket Veto Case established that the President
is prevented from returning a bill with a veto message, within
the meaning of Art. I, Sec. 7, cl. 2, when Congress has taken an
adjournment.
b. The court of appeals' belief (App., infra, 28a) that
this Court's subsequent decision in Wright V. United States
somehow "g[a]ve it license to depart from" the ruling of The
Pocket Veto Case is attributable to the court of appeals' total
failure to recognize what the issue was in Wright. The petition
for certiorari in Wright presented the question "whether the
President is deprived of the veto power" (302 U.S. at 605
(Stone, J.)) through an anomaly in the Constitution: a
situation in which the Pocket Veto Clause is inapplicable but in
which the President nonetheless cannot return a veto message.
In Wright, the Senate, which was the house in which a bill had
originated, was in a three day, unilateral recess on the day
- 22 -
when the President's time to consider the bill expired; the
President therefore delivered a veto message to the Secretary of
the Senate. See id. at 585. The claim that was made in Wright
was that, despite the fact that the President had not signed the
bill and notwithstanding his attempt to veto it, the bill in
question had become a law. Thus, the petitioner argued that
the Pocket Veto Clause was inapplicable since [t]he Congress'
did not adjourn" (id. at 587) and that the President's veto
message had been ineffective because "a bill cannot be returned
by the President to the House in which it originated when that
House during the session of Congress is in recess" (id. at
589). In rejecting the argument that such a constitutional
dilemma existed, this Court's opinion in Wright addressed two
different issues -- whether the Pocket Veto Clause was
applicable and, if not, whether any "express requirement of the
Constitution" or any "practical difficulty" (ibid.) "make
impossible the return of a bill because a House has taken a
temporary recess" (id. at 597). The court of appeals'
9
decision in this case utterly confuses these two issues.
In Wright, this Court first concluded that the Pocket Veto
Clause is inapplicable when a single house of Congress recesses
for three or fewer days: this Court held that the "clause
describes not an adjournment of either House as a separate body,
or an adjournment of the House in which the bill shall have
originated, but the adjournment of 'the Congress" as the event
that makes the pocket veto applicable, and that lainly [it]
9
The court of appeals stated that the suggestion that there
might be a difference between when return of a bill is prevented
within the meaning of the Pocket Veto Clause and when return of
a bill is "practically impossible * * * simply defies logic and
common sense. App., infra, 39 n.37; see also Kennedy V.
Sampson, 511 F.2d at 438 n.23. This view led the court of
appeals to treat Wright's discussion of whether the President's
veto message had been effective as if it were a discussion of
the applicability of the Pocket Veto Clause. In Wright,
however, the treatment of these two issues was clearly
distinct. Compare 302 U.S. at 587-589 with id. at 589-597.
Indeed, but for this Court's conclusion that the two issues are
distinct, it would be hard to imagine why certiorari was granted
in Wright a point implicitly made by Justice Stone, who
feared that the distinction might be manipulated to deprive the
President of the veto. See id. at 604-605.
- 23 -
is not an adjournment by the Congress" when, under the permis-
Sec.
sion granted by Art. I, 111 5, cl. 4, a single house recesses
for three or fewer days. 302 U.S. at 587, 589; see generally
id. at 587-589. 10 Accordingly, Wright first established that
one horn of the dilemma that was asserted to have deprived the
President of the veto did indeed exist. However, Wright then
went on to "hold that where the Congress has not adjourned and
the House in which the bill originated is in recess for not more
than three days under the constitutional permission [of Art. I,
Sec. 5, cl. 4] while Congress is in session, the bill does not
become law if the President delivered the bill with his
objections to the appropriate officer of that House within the
prescribed ten days" (id. at 598). That is, this Court
rejected the argument that the bill at issue in Wright became a
law "despite the President's disapproval" (id. at 597,
emphasis added). This ruling was based on the Court's
conclusion that no "express requirement of the Constitution" or
"any practical difficulty" precludes the President from
"return[ing] a bill when the House in which it originated is in
recess during the session of Congress" (id. at 589-590) by
11
deliverying it to an agent of the house.
10
Disagreement with this holding was the reason why Justices
Stone and Brandeis refused to join in the Court's opinion. In
their view, the bill at issue did not become a law "because the
Senate by its adjournment prevented the return" (302 U.S. at
598), and the majority opinion to the contrary was founded on an
unwarranted "punctilio of grammer" (id. at 606). Justices
Stone and Brandeis would have held that the Pocket Veto Clause
is applicable whenever the house in which a bill originated is
not in session. See id. at 605-609.
11
The argument that the bill at issue in Wright "could not be
returned * * * during the Senate's recess, " this Court
explained, took statements made in The Pocket Veto Case "out of
their proper relation" (302 U.S. at 593). Thus, the conclusion
of The Pocket Veto Case that, under Art. I., Sec. 7. cl. 2, "the
House to which [a] bill is to be returned is the House in
Session cannot be "construed * * * so narrowly as to demand
that the President must select a precise moment when the House
is within the walls of its chambers" to return a bill. 302
U.S. at 593-594. Indeed, such a construction would lead to the
absurd conclusion that the President cannot return a bill when
the originating house has taken an overnight recess. See id. at
597. "When there is nothing but * * * a brief recess by one
House, such as is permitted by the Constitution without the
consent of the other House during the session of Congress,"
(CONTINUED)
- 24 -
Only by completely misreading Wright could the court of
appeals conclude that Wright undermined the unqualified holding
of The Pocket Veto Case that the pocket veto is applicable
during intersession adjournments: in Wright, this Court clearly
stated that the intersession adjourment at issue in Pocket Veto
was not similar to a three day recess by one house of
Congress. See 302 U.S. at 593-596. Also clearly unwarranted is
the court of appeals' assertion (App., infra, 26a) that Wright
established a free-form "rule of construction" or "principle"
making application of the Pocket Veto Clause turn on whether
arrangements exist that would permit the President physically to
deliver a veto message during an adjournment and whether "such a
procedure would *** occasion undue delay or uncertainty over
the returned bill's status" (id. at 28a) 12 In fact, in
Wright, this Court expressly refused to "rephrase[] the Pocket
Veto alause "by judicial construction" (302 U.S. at 589) to make
its applicability turn on the "practical difficulty in making
the return of [a] bill" (ibid.) instead of on whether there
has been an "adjournment by the Congress" (ibid.). The
"meticulously grammatical interpretation" (302 U.S. at 608,
Stone, J.) of the Pocket Veto Clause in Wright on fairly
leaves open only two possible conclusions as to when the pocket
veto is triggered: either (i) the pocket veto is applicable
when "Congress has adjourned and the members of its Houses have
11
(FOOTNOTE CONTINUED)
nothing in Art. I, Sec. 7, cl. 2 erects a barrier to
"dispens [ing] with wholly unnecessary technicalities as to the
method of return and giv[ing] effect to realities" (id. at 595-
597).
12 The court of appeals' assertion (App., infra, 26a) that
Wright "indisputably establishes" that such considerations are
dispositive is transparently factitious. It should be, for
example, obvious that appointment of a congressional agent to
receive veto messages during an adjournment had nothing to do
with this Court's decision in Wright because the Secretary of
the Senate had no appointment to receive the veto that there was
at issue. See 302 U.S. at 599-600 (Stone, J.). And, plainly,
the court of appeals' vague concerns about "undue delay and
uncertainty" hardly correspond to this Court's repeated
insistence in Wright on the significance of the fact that only a
three day, single house recess was at issue. See, e.g., id. at
587, 589-590, 595-596, 598.
- 25 -
dispersed at the end of a session" (id. at 595), or (ii) the
pocket veto is applicable when there has been an "adjournment
*** for longer than three days" (id. at 603, Stone, J.).
Under either of these conclusions, there is no basis for finding
13
the pocket veto inapplicable in this case.
C. In addition to departing from this Court's decisions
construing the Pocket Veto Clause, the court of appeals has both
ignored the constitutional text and turned its back on a
"historical understanding" that has been "accepted throughout
most of the history of the Republic" (App., infra, 34a, 36a-
37a).
i. Art. I. Sec. 7, cl. 2 speaks of "Congress by their
Adjournment prevent a bill's return. Plainly, "[t]he very
force of the circumstances to which the words are applied gives
emphasis to 'Adjournment' as that which prevents return."
Wright, 302 U.S. at 608 (Stone, J.). However, the court of
appeals' construction of the Pocket Veto Clause essentially
makes "Adjournment" irrelevant. If, after all, the concern of
the Framers had been simply "whether any obstacle to exercise of
the President's qualified veto is posed" (App., infra, 39a),
there would have been no point in the Framers even mentioning
13
As the court of appeals noted (App., infra, 37a), we
believe that "reading Pocket Veto and Wright together"
establishes that the Pocket Veto Clause is triggered by any
adjournment of more than three days. The court of appeals
brusque rejection of this reading (see App., infra, 37a-40a) is
inexplicable since the majority in Wright obviously took pains
to limit its analysis to three day "recess by one House,
such as [are] permitted by the Constitution without the consent
of the other House" (302 U.S. at 595-596) and since Justice
Stone clearly stated that this is the "only" way that Wright and
Pocket Veto can be read in conjunction. See id. at 602-603.
Moreover, in flat contradiction to the court of appeals'
assertion (App., infra, 39a), this is the only line that has any
"textual grounding" in the Constitution. Under Art. I, Sec. 5,
cl. 4, any adjournment for longer than three days requires the
consent of both houses of Congress. Accordingly, an adjournment
of four or more days (and, perforce, a sine die adjournment) is
constitutionally "an adjournment by the Congress" (302 U.S. at
589, emphasis added). An adjournment by the Congress is what
Wright distinguished from "a short recess by one House without
the consent of the other" (ibid.) during which the pocket veto
is inapplicable; and, an adjournment by the Congress is what The
Pocket Veto Case held prevents the President, within the meaning
of the Pocket Veto Clause, from returning a veto message. See
279 U.S. at 682-685.
- 26 -
"Adjournment" -- "prevent" would have been sufficient. In fact,
the court of appeals' construction of the Pocket Veto Clause
makes Art. I, Sec. 7, cl. 2 operate in a way that the lower
court admitted (App., infra, 35a-36a) the Framers did not intend.
ii. Similarly, the court of appeals admitted (App., infra,
36a-37a) that its ruling departs from the practical construction
historically given to the Pocket Veto Clause. In brief, since
the administration of James Madison, there have been some 270
intersession pocket vetoes and, as this Court observed in The
Pocket Veto Case, on none of those occasions did "either House
of Congress in any official manner question[] the validity and
effect of the President's action *** or proceed on the theory
that [the bill] had become a law" (279 U.S. at 691) 14 This
"[1]ong settled and established practice is a consideration of
great weight in a proper interpretation of constitutional
provisions of this character" (id. at 689).
d. Finally, the decision of the court of appeals has
"le[ft] in confusion and doubt the meaning and effect of the
veto provisions of the Constitution, the certainty of whose
application is of supreme importance." Wright, 302 U.S. at 599
(Stone, J.). Perhaps, the most remarkable aspect of the court
of appeals' opinion is that, after acknowledging that "clear
rules respecting the pocket veto are vitally necessary" (App.,
infra, 34a), the court of appeals refused "[t]o choose *** any
line" (id. at 39a). Instead, under the court of appeals'
analysis, whenever the pocket veto is invoked "a court must
examine the conditions *** and determine whether any obstacle
to exercise of the President's qualified veto [was] posed"
(ibid.). This bending over backwards "not to stray into
14
In fact, before the court of appeals' decision in Kennedy
V. Sampson, nearly 100 bills had been pocket vetoed during
intrasession adjournments (all of which were longer than
three days). See Presidential Vetoes, 1789-1976 (U.S.G.P.O.
1978); C.A. App. 57-59. In The Pocket Veto Case, this Court
quoted at length from the arguments made in 1868 Senate debate
on a bill that sought to limit pocket vetoes to intersession
adjournments and stated that the arguments "convincingly
expressed" the reasons why such a bill would have been
unconstitutional. 279 U.S. at 686 n.11.
- 27 -
arbitrariness by drawing an irrational line" (id. at 34a)
invites the grotesque spectacle of unending litigation over what
should be a clear and mechanical rule (cf. United States V.
Smith, 286 U.S. 6, 35 (1932)) and, contrary to the court of
appeals' assurance (App., infra, 40a), seems likely to result in
eventually "read[ing] the pocket veto clause out of the
Constitution.
"
15
As its core, the court of appeals' decision in this case
seems basically to be founded on the court's sense that the
pocket veto is an anachronism, irrelevant to "modern-day *
*
*
adjournment practices" (App., infra, 36a), and inimical to the
"goal of protecting Congress's right to override" (id. at
40a). But, the Pocket Veto Clause is not a rule of "etiquetee
or protocal;" it is a constitutional clause with "substantive
meaning. " Buckley V. Valeo, 424 U.S.
, 125-126 (1976). The
pocket veto is an integral part of the "single, finely
wrought[, * * * step-by-step, deliberate and deliberative
process" for the enactment of federal legislation that the
15
None of the factors that the court of appeals indicated
might lead it to find the pocket veto applicable seems
especially compelling. Thus, the court stated (App., infra,
40a) that the pocket veto "necessarily applies" whenever
legislative business does not carryover an adjournment, a
situation that the court said exists on the adjournment of
Congress's biennial term and might exist for other adjournments
if Congress modifies its rules. However, the question whether
legislative business carries over an adjournment, including the
adjournment of Congress's biennial term, is governed by
congressional rules which, it seems obvious, are not likely to
be changed in a way that would encourage pocket vetoes. See,
e.g., House Rule XXVI, reprinted in H. Doc. No. 271, supra, at
610-611. Similarly unlikely is the court's suggestion that
Congress may withdraw the authority of its agents to receive
veto messages during adjournments and, in any event, Wright
would seem to establish that such agents have inherent authority
even in the absence of actual authorization. See footnote
,
supra. And, the court's final suggestion (App., infra, 40a)
that the pocket veto may be applicable if Congress takes a "half-
year" long adjournment would seem to leave the pocket veto
dependent on nothing more than someone's -- presumably, the
court's -- subjective sense of how long is too long.
Significantly, little more than ten years ago, the court of
appeals indicated in Kennedy V. Sampson that the "only possible
uncertainty" about the applicability of the pocket veto existed
during intrasession adjournments. 511 F.2d at 441. The
decision in Kennedy, however, became the slippery slope down
which the court of appeals now believes the intersession pocket
veto has fallen, and the "hydraulic pressures" (INS V. Chadha,
U.S. ) that the court of appeals has undammed are, of
course, unlikely to abate.
- 28 -
Framers "erect[ed]" to provide "enduring checks on each Branch
and to protect the people from the improvident exercise of
power. " INS V. Chadha, 103 S. Ct. at 2784, 2787, 2788. If the
pocket veto no longer is "efficient" or "convenient" or "useful
in facilitating functions of government" (id. at 2780-2781),
c]hanges * * * must come through constitutional amendment, not
through judicial reform based on policy arguments." United
States V. Woodley, 751 F.2d 1008, 1014 (9th Cir. 1985) (en
banc).
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
CHARLES FRIED
Acting Solicitor General
RICHARD K. WILLARD
Acting Assistant Attorney General
KENNETH S. GELLER
Deputy Solicitor General
BRUCE N. KUHLIK
Assistant to the Solicitor General
WILLIAM KANTER
MARC JOHNSTON
Attorneys
NOVEMBER 1985
- 29 -
Date
ROUTING AND TRANSMITTAL SLIP
08/12/85
TO: (Name, office symbol, room number,
Initials
Date
building, Agency/Post)
1.
Sherrie Cooksey
2.
3.
4.
5.
Action
File
Note and Return
Approval
For Clearance
Per Conversation
As Requested
For Correction
Prepare Reply
X
Circulate
For Your Information
See Me
Comment
Investigate
Signature
Coordination
Justify
REMARKS
Re: Pocket Veto Case
A petition for certiorari will
be due November 5, 1985.
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions
FROM: (Name, org. symbol, Agency/Post)
Room No.-Bldg.
3627
Marc Johnston
Phone No.
633-3305
5041-102
OPTIONAL FORM 41 (Rev. 7-76)
Prescribed by GSA
4 U.S. G.P.O. 1984-421-529/402
FPMR (41 CFR) 101-11.206
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 84-5155
September Term, 19 84
Michael D. Barnes, individually/
CA No.84-00020
member; U.S. House of
Representatives, et al., and
United States Court of Appeals
United States Senate, et al.
For The District of Columbia Circuit
V.
FILED AUG 7 1985
Ray Kline, individually and
GEORGE A. eisher
in his capacity as Administrator,
CLERK
General Services Administration, et al.
BEFORE: Robinson, Chief Judge; Bork, Circuit Judge and McGowan,
Senior Circuit Judge
ORDER
Upon consideration of the petition for rehearing of
appellees Ray Kline, et al., it is
ORDERED, by the Court, that the petition is denied.
Per Curiam
FOR THE COURT
GEORGE A. FISHER, CLERK
RECEIVED
1985 AUG -8 PM 2: 42
BY:
APPELLATE STAFF
CIVIL DIVISION
Robert A. Bonner
Chief Deputy Clerk
Circuit Judge Bork would grant the petition for rehearing.
145-171-422
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No.
September Term, 19
84-5155
84
Michael D. Barnes, Individually/
CA No.84-00020
member; U.S. House of
Representatives, et al. and
United States Senate, et al.
United States Court of Appeals
or The District of Columbia Circuit
V.
FILED AUG 7 1985
Ray Kline, individually and
in his capacity as Administrator,
GEORGE A. fisher
CLERK
General Services Administration, et al.
BEFORE: Robinson, Chief Judge; Wright, Tamm, Wald, Mikva,
Edwards, Ginsburg, Bork, Scalia and Starr, Circuit
Judges
ORDER
The suggestion for rehearing en banc of appellees Ray Kline,
et al., has been circulated to the full Court. A majority of the
judges in regular active service have not voted in favor
thereof. Upon consideration of the foregoing, it is
ORDERED, by the Court en banc, that the suggestion is
denied.
Per Curiam
FOR THE COURT
GEORGE A. FISHER, CLERK
BY:
Robert A. Bonner
Chief Deputy Clerk
Circuit Judges Bork, Scalia and Starr would grant the suggestion
for rehearing en banc.
145-171-472
Date
ROUTING AND TRANSMITTAL SLIP
11/12/85
TO: (Name, office symbol, room number
Initials
Date
building, Agency/Post)
1. John Roberts
2.
3.
4.
5.
Action
File
Note and Return
Approval
For Clearance
Per Conversation
As Requested
For Correction
Prepare Reply
X
Circulate
For Your Information
See Me
Comment
Investigate
Signature
Coordination
Justify
REMARKS
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions
FROM: (Name, org. symbol, Agency/Post)
Room No.-Bldg.
3627
Marc Johnston, Esq.
Phone No.
x3395
5041-102
OPTIONAL FORM 41 (Rev. 7-76)
Prescribed by GSA
*U.S.GPO:1985-0-461-274/20005
FPMR (41 CFR) 101-11.206
No.3 781
In the Supreme Court of the United States
OCTOBER TERM, 1985
FRANK G. BURKE, ACTING ARCHIVIST OF THE UNITED
STATES, and RONALD GEISLER, EXECUTIVE CLERK
OF THE WHITE HOUSE, PETITIONERS
v.
MICHAEL D. BARNES, ET AL.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
CHARLES FRIED
Solicitor General
RICHARD K. WILLARD
Assistant Attorney General
KENNETH S. GELLER
Deputy Solicitor General
BRUCE N. KUHLIK
Assistant to the Solicitor General
WILLIAM KANTER
MARC JOHNSTON
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 633-2217
QUESTIONS PRESENTED
1. Whether the expiration of a bill renders moot a
dispute over whether it had become law.
2. Whether individual members of Congress, the
Speaker and bipartisan leadership of the House of Rep-
resentatives, and the United States Senate have standing
to challenge whether, under the Pocket Veto Clause, a
bill had become law.
3. Whether the Pocket Veto Clause, which provides
that a bill not signed by the President within ten days
does not become law if "Congress by their Adjournment
prevent its Return," applies when Congress is in ad-
journment between sessions.
(I)
II
PARTIES TO THE PROCEEDING
The appellees in the court of appeals were Ray Kline,
Acting Administrator of General Services, and Ronald
Geisler, Executive Clerk of the White House. Effective
April 1, 1985, responsibility for publishing the Statutes
at Large and preserving the laws of the United States
was transferred from the Administrator of General Serv-
ices to the Archivist of the United States. National Ar-
chives and Records Administration Act of 1984, Pub. L.
No. 98-497, § 107 (d), 98 Stat. 2291, 1 U.S.C. (Supp. II)
106a, 112. Accordingly, Frank G. Burke, Acting Archiv-
ist of the United States, has been substituted for the
Acting Administrator of General Services.
The appellants in the court of appeals were the plain-
tiffs and intervenors in the district court. The plaintiffs
were 33 members of the House of Representatives: Mi-
chael D. Barnes, Gary Ackerman, Howard Berman, John
Conyers, Ronald V. Dellums, Mervyn Dymally, Dennis
Eckart, Robert W. Edgar, Vic Fazio, Ed Feighan, Bar-
ney Frank, Robert Garcia, Samuel Gejdenson, Peter
Kostmeyer, Mickey Leland, Mel Levine, Robert Matsui,
Matt McHugh, Edward J. Markey, Barbara A. Mikulski,
George Miller, Bruce Morrison, Mary Rose Oakar, James
L. Oberstar, Richard L. Ottinger, Patricia Schroeder,
Paul Simon, Ferdinand St. Germain, Gerry Studds, Rob-
ert Torricelli, Bruce Vento, Ted Weiss, and Howard
Wolpe. The intervenors were the United States Senate
and the Speaker and Bipartisan Leadership Group of the
House of Representatives: Thomas P. O'Neill, Jr., Jim
Wright, Robert H. Michel, Thomas S. Foley, and Trent
Lott.
TABLE OF CONTENTS
Page
Opinions below
1
Jurisdiction
1
Constitutional and statutory provisions involved
2
Statement
2
Reasons for granting the petition
10
Conclusion
29
TABLE OF AUTHORITIES
Cases:
Allen V. Wright, No. 81-757 (July 3, 1984)
8,15,17,
19,20
Ashcroft V. Mattis, 431 U.S. 171
15
Diffenderfer V. Central Baptist Church, 404 U.S.
412
12
Flast V. Cohen, 392 U.S. 83
19
Fletcher V. Peck, 10 U.S. (6 Cranch) 87
20
Goldwater V. Carter, 444 U.S. 996
22
Gregg V. Barrett, 771 F.2d 539
18
Hall V. Beals, 396 U.S. 45
12
INS V. Chadha, 462 U.S. 919
20, 21, 27, 28
Kennedy V. Sampson, 511 F.2d 430
5,6,17
Kissinger V. Reporters Committee for Freedom of
the Press, 445 U.S. 136
15
Kremens V. Bartley, 431 U.S. 119
12
Laird V. Tatum, 408 U.S. 1
20
Levitt, Ex parte, 302 U.S. 633
19
Moore V. United States House of Representatives,
733 F.2d 946, cert. denied, No. 84-389 (Jan. 7,
1985)
17, 18, 19
Morrison-Knudsen Construction Co. V. Director,
OWCP, 461 U.S. 624
24
National Organization for Women, Inc. V. Idaho,
459 U.S. 809
12,15
Nebraska Press Ass'n V. Stuart, 427 U.S. 539
13
Poe V. Ullman, 367 U.S. 497
14
Powell V. McCormack, 395 U.S. 486
13
(III)
IV
Cases-Continued:
Page
Preiser V. Newkirk, 422 U.S. 395
12
Riegle V. Federal Open Market Committee, 656
F.2d 873, tert. denied, 454 U.S. 1082
17
Schlesinger T. Reservists Committee to Stop the
War, 418 U.S. 208
19, 20, 21
The Pocket Teto Case, 279 U.S. 655
passim
United Presyterian Church in the U.S.A. V.
Reagan, TEB F.2d 1375
16
United States V. Munsingwear, Inc., 340 U.S. 36
10, 12
United State: V. Richardson, 418 U.S. 166
16,18
Valley Forms Christian College V. Americans
United for Separation of Church & State, Inc.,
454 U.S. 434
12, 17-18, 19, 21
Vander Jagt V. O'Neill, 699 F.2d 1166, cert. de-
nied, 464 U.S. 823
17
Wright V. United States, 302 U.S. 583
6, 25, 26, 27, 28
Constitution, statutes and rule:
U.S. Const.:
Art. I:
§1
20
§ 7
20, 21
Cl. 2 (Pocket Veto Clause)
passim
Art. II
10
§ 3
19,20
Art. III
18
International Security and Development Coopera-
tion Act of 1981, Pub. L. No. 97-113, § 728, 95
Stat. 1555 (22 U.S.C. (& Supp. I) 2370 note)
2
National Archives and Records Administration
Act of 1984, Pub. L. No. 98-497, § 107 (d), 98
Stat. 2291
4
Pub. L. No. 97-233, 96 Stat. 260
2
Pub. L. No. 98-53, 97 Stat. 287
2
1 U.S.C. 106a
4
1 U.S.C. (Supp. II) 106a
3, 13, 14
1 U.S.C. 112
4
1 U.S.C. (Supp. II) 112
3,13,14
31 U.S.C. 1341
16
V
Constitution, statutes and rule-Continued:
Page
31 U.S.C. 1349-1351
16
31 U.S.C. 3521 et seq.
16
31 U.S.C. 3527 (c)
16
31 U.S.C. 3528 (b) (1)
16
H.R. Rule III, cl. 5
3
Miscellaneous:
W. Brown, Constitution, Jefferson's Manual, and
Rules of the House of Representatives, H.R. Doc.
96-398, 96th Cong., 2d Sess. (1981)
24
Cong. Globe, 40th Cong., 2d Sess. 1373 (1886)
24
129 Cong. Rec. :
p. H10105 (daily ed. Nov. 17, 1983)
3
p. H10469 (daily ed. Nov. 18, 1983)
3
p. S16779 (daily ed. Nov. 18, 1983)
3
p. S16858 (daily ed. Nov. 18, 1983)
3
pp. S17192-S17193 (daily ed. Nov. 18, 1983)
3
H.R. 4042, 98th Cong., 1st Sess. (1983)
passim
H.R. Con. Res. 221, 98th Cong., 1st Sess. (1983)
3
H.R. Doc. 271, 97th Cong., 2d Sess. (1982)
3
H.R.J. Res. 421, 98th Cong., 1st Sess. (1983)
3
H.L.A. Hart, The Concept of Law (1961)
20
19 Weekly Comp. Pres. Doc. 1627 (Nov. 30,
1983)
3
In the Supreme Cmurt of the United States
OCTOBER TERM, 1985
No.
FRANK G. BURKE, ACTING ARCHIVIST OF THE UNITED
STATES, and RONALD GEISLER, EXECUTIVE CLERK
OF THE WHITE HOUSE, PETITIONERS
v.
MICHAEL D. BARNES, ET AL.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
The Solicitor General, on behalf of Frank G. Burke,
Acting Archivist of the United States, and Ronald
Geisler, Executive Clerk of the White House, petitions
for a writ of certiorari to review the judgment of the
United States Court of Appeals for the District of Co-
lumbia Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App. la-118a) is
reported at 759 F.2d 21. The memorandum of the dis-
trict court (App. 119a-132a) is reported at 582 F. Supp.
163.
JURISDICTION
The judgment of the court of appeals (App. 137a-
138a) was entered on August 29, 1984. A petition for
rehearing was denied on August 7, 1985 (App. 133a-
134a). The jurisdiction of this Court is invoked under
28 U.S.C. 1254 (1).
(1)
2
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
Article I, Section 7, Clause 2 of the Constitution pro-
vides in pertinent part:
If any Bill shall not be returned by the President
within ten Days (Sundays excepted) after it shall
have been presented to him, the Same shall be a law,
in like Manner as if he had signed it, unless the
Congress by their Adjournment prevent its Return,
in which Case it shall not be a Law.
H.R. 4042, 98th Cong., 1st Sess. (1983), and Section
728 of the International Security and Development Coop-
eration Act of 1981, Pub. L. No. 97-113, 95 Stat. 1555,
as amended by Pub. L. No. 97-233, 96 Stat. 260, and
Pub. L. No. 98-53, 97 Stat. 287, 22 U.S.C. (& Supp. I)
2370 note, are set forth at App. 141a-145a.
STATEMENT
1. On November 18, 1983, a bill originating in the
House of Representatives, H.R. 4042, 98th Cong., 1st
Sess. (App. 141a), was presented to the President for his
consideration (id. at 4a-5a). The bill provided that,
"until such time as the Congress enacts new legislation
*** or until September 30, 1984, whichever occurs first"
(id. at 141a), the requirements of Section 728 of the In-
ternational Security and Development Cooperation Act of
1981, Pub. L. No. 97-113, 95 Stat. 1555, 22 U.S.C. (&
Supp. I) 2370 note (App. 141a-145a), which had ex-
pired on September 30, 1983, "shall continue to apply"
(id. at 141a). Section 728 conditioned continued United
States military aid to El Salvador upon semiannual cer-
tification by the President that that country was achiev-
ing progress in protecting human rights (id. at 4a n.6,
141a-145a).
On the same day that H.R. 4042 was presented to the
President, the Senate and the House of Representatives
ended the first session of the 98th Congress and ad-
3
journed sine die. App. 5a; H.R. Con. Res. 221, 98th
Cong., 1st Sess. (1983) ; 129 Cong. Rec. S16779, S16858,
H10469 (daily ed. Nov. 18, 1983). By a separate reso-
lution, the House and Senate agreed to reconvene for the
second session of the 98th Congress on January 23, 1984,
some nine weeks later. App. 5a; H.R. J. Res. 421, 98th
Cong., 1st Sess (1983) ; 129 Cong. Rec. H10105 (daily ed.
Nov. 17, 1983) ; id. at S16858 (daily ed. Nov. 18, 1983).
During the period of intersession adjournment, a stand-
ing rule of the House authorized its Clerk to "receive
messages from the President and from the Senate at any
time that the House is not in session." H.R. Rule III, cl.
5, reprinted in H.R. Doc. 271, 97th Cong., 2d Sess. 318
(1982) ; App. 5a. The Senate conferred similar, tempo-
rary authority on its Secretary. 129 Cong. Rec. S17192-
S17193 (daily ed. Nov. 18, 1983) ; App. 5a.
The President neither signed H.R. 4042 nor returned
it to the House of Representatives with a veto message.
On November 30, 1983, the White House issued a state-
ment announcing that the President was withholding his
approval from H.R. 4042 and explaining his reasons for
doing SO (19 Weekly Comp. Pres. Doc. 1627). In the
President's view, H.R. 4042 had not become law under
the Pocket Veto Clause, U.S. Const. Art. I, §7, Cl. 2, be-
cause Congress was in adjournment on November 30,
1983, the tenth day (excluding Sundays) following pre-
sentment of the bill on November 18. Accordingly, peti-
tioners, who are responsible for effecting the preservation
and publication in the Statutes at Large of bills that
become law,¹ have not published H.R. 4042 as a public
law of the United States. App. 5a-6a.
1 See 1 U.S.C. (Supp. II) 106a, 112. The original defendants were
petitioner Ronald Geisler, Executive Clerk of the White House
(whose duty is to deliver acts of Congress that have become law to
the appropriate official for publication and preservation), and
Gerald P. Carmen, then Administrator of General Services (who
at the time was charged with publishing and preserving the laws
4
2. On January 4, 1984, 33 members of the House of
Representatives filed this action in the United States Dis-
trict Court for the District of Columbia, seeking a dec-
laration that the President's pocket veto of H.R. 4042
was invalid and that the bill had become a law of the
United States, and an injunction requiring petitioners to
cause the bill to be published in the Statutes at Large
(App. 6a, 120a). The Senate and the Speaker and Bi-
partisan Leadership Group of the House intervened in
support of plaintiffs (id. at 2a-3a & n.3, 119a & n.1)
and, with them, are respondents here. Respondents ar-
gued that the pocket veto is an "anachronism" (id. at
123a) in light of the "appointment of agents by both
houses to receive and record Presidential messages in the
members' absences, and modern means of communication
and transportation" (id. at 124a (footnote omitted)
On cross-motions for summary judgment, the district
court granted summary judgment for petitioners and
dismissed the complaint (App. 119a-132a). The district
court concluded (id. at 130) that it had no "license to
depart from the only case directly in point," this Court's
decision in The Pocket Veto Case, 279 U.S. 655 (1929).
In the district court's view, the question presented in
The Pocket Veto Case, whether a bill 'presented to the
President less than ten days (Sundays excepted) before
the adjournment of that session' of Congress becomes
law if the President neither signs nor returns it, "is iden-
tical to the question presented by the instant case" (App.
126a (quoting 279 U.S. at 672) Because the Supreme
of the United States). See App. 119a-120a; 1 U.S.C. (1982 ed.)
106a, 112. Ray Kline, the Acting Administrator of General Services,
was later substituted for Carmen. App. 3a & n.4. In view of the
transfer of relevant responsibilities to the Archivist of the United
States (see National Archives and Records Administration Act of
1984, Pub. L. No. 98-497, § 107(d), 98 Stat. 2291), Frank G. Burke,
Acting Archivist of the United States, has been substituted for
Kline as a petitioner. For simplicity, we include Burke's predeces-
sors in our references to "petitioners."
5
Court decided in The Pocket Veto Case that the Presi-
dent may pocket veto bills during intersession adjourn-
ments, the district court concluded that his reliance on
the Pocket Veto Clause with respect to H.R. 4042 was
equally proper, "[u]nless and until the Supreme Court
reconsiders the rule of that case" (App. 130a-131a).
3. a. A divided panel of the court of appeals reversed
and remanded for entry of judgment in respondents'
favor (App. la-118a). In response to the dissent, the
majority first addressed respondents' standing (id. at
8a-18a). 2 The court of appeals relied primarily on its
decision in Kennedy V. Sampson, 511 F.2d 430 (1974),
which held that a Senator had standing to challenge an
intrasession pocket veto on the ground that the pocket
veto had "nullified his original vote in favor of the legis-
lation" (App. 8a). The respondent members of Congress
"allege an injury identical to that of the individual law-
maker in Kennedy v. Sampson" (id. at 9a). The court
also observed that Sampson stated that "either house of
Congress clearly would have had standing to challenge
the injury to its participation in the lawmaking process"
(ibid.). In this case, the intervening Senate and Speaker
and Bipartisan Leadership Group of the House "assert
an injury of [is] second, more direct type" (ibid.).
"Under the law of this circuit, therefore," the majority
concluded, "all the [respondents] are properly before
th[e] court" (ibid. (footnote omitted) ).³
2 In light of established circuit precedent, petitioners did not
initially contest that the Senate had standing to bring this action
(App. 15a-17a & n.16). However, upon further consideration, we
argued in our supplemental petition for rehearing (at 7-10 & n.1)
that none of the respondents has standing.
3 The majority noted that, because of its "concern for the separa-
tion of powers," the court of appeals had developed a discretionary
doctrine "to dismiss actions by individual congressmen whose real
grievance consists of their having failed to persuade their fellow
legislators of their point of view," notwithstanding their satisfac-
tion of the circuit's jurisdictional standing requirements (App. 13a-
6
Turning to the merits, the court of appeals held that
Congress's intersession adjournment did not "prevent []
* * * [the] Return" of H.R. 4042 within the meaning of
the Pocket Veto Clause because, "by appointing agents for
receipt of veto messages, Congress affirmatively facilitated
return of the bill in the eventuality that the President
would disapprove it" (App. 20a (emphasis in original) ).
The court of appeals acknowledged (id. at 26a (quoting
279 U.S. at 684) that in The Pocket Veto Case this
Court stated that an intersession adjournment would pre-
vent the President from returning a bill to Congress
" even if' " Congress had authorized an agent to receive
messages, but it believed that Wright V. United States,
302 U.S. 583 (1938), "made clear" that this Court was
"not categorically denying the use of agents for delivery
of veto messages" (App. 27a). In Wright, the Court held
that the President's return veto of a bill was effective
where he had delivered the bill to an agent of the origi-
nating house while that house was in a three-day intra-
session recess. The court of appeals reasoned that the
"rule of construction" established in Wright "required a
court to find that the President was truly deprived of his
opportunity to exercise his qualified veto power before it
may hold that return was 'prevented'' under the Pocket
Veto Clause (id. at 29a).
Thus, according to the court of appeals, "whenever Con-
gress adjourns, return of a veto message to a duly au-
thorized officer of the originating house will be effective
only if, under the circumstances of that type of adjourn-
ment, such a procedure would not occasion undue delay or
uncertainty over the returned bill's status" (App. 32a
(emphasis omitted) In Kennedy V. Sampson, supra, the
court of appeals held that "return is not prevented by an
intrasession adjournment of any length
***
SO long as
the originating house arranged for receipt of veto mes-
14a). The court found this doctrine inapplicable here because "the
legislators' dispute is solely with the executive branch" (id. at 15a).
7
sages" (App. 30a). Because intersession adjournments
"do not differ in any practical respect from * * * intra-
session adjournments" (id. at 33a), the court refused to
draw what it viewed as "an irrational line between intra-
session and intersession adjournments" (id. at 38a).
Although it recognized that "clear rules respecting the
pocket veto are vitally necessary" (App. 38a), the court
of appeals refused to "choose M * * any line" (id. at 45a)
readily distinguishing those situations in which a pocket
veto is permissible from those where a return veto is re-
quired. Rather, the court concluded that "[t]he existence
of an authorized receiver of veto messages. the rules pro-
viding for carryover of unfinished business [between ses-
sions] and the duration of modern intersession adjourn-
ments" were sufficient, "taken together, [to] satisfy" it
that Congress's nine-week interession adjournment in this
case did not prevent the return of H.R. 40.12 (id. at 46a).
Accordingly, the court held that the President's pocket
veto of the bill was ineffective and that H.R. 4042 there-
fore had become law.
b. In a lengthy dissent that did not reach the merits,
Judge Bork concluded that respondents lacked standing
because "impairment of government powers is [not] a
judicially cognizable injury, that is, an 'injury in fact'
for purposes of article III" ( /:pp. 73a n.9). Judge Bork
believed that the standing doctrine applied by the majority
would cause "a major shift in basic constitutional ar-
rangements" that is "flatly inconsistent with the judicial
function designed by the Framers of the Constitution"
(id. at 47a, 48a). In the disarent's view, the doctrine of
congressional standing is misconceived because there is no
distinction between suits alleging injury to lawmaking
powers and those seeking to require the President faith-
fully to execute a particular statute (id. at 56a-57a n.3) :
both raise "only a 'generaliz grievance' about an al-
legedly unconstitutional operation of government" (id. at
65a). Because "[i]t is well settled that citizens, whose
interest is here asserted derivatively, would have no
8
standing to maintain this action," Judge Bork concluded
that "it is impossible that these representatives should
have standing that their constituents lack" (id. at 65a-
66a (footnote omitted) )
Judge Bork concluded that "the doctrine of congres-
sional standing is ruled out by binding Supreme Court
precedent" (App. 61a) ; he relied in particular on this
Court's decisions holding that plaintiffs do not have stand-
ing to complain of "generalized grievances" (id. at
64a) and those making clear that "the law of Art. III
standing is built on a single basic idea-the idea of
separation of powers' (id. at 70a (quoting Allen V.
Wright, No. 81-757 (July 3, 1984), slip op. 13) ) The
"fundamental consideration," he stated, is "the need to
limit the role of the courts in the interplay of our various
governmental institutions" (App. 76a). In Judge Bork's
view, to allow congressional standing would lead to a
dangerous arrogation of power within the judiciary (id.
at 76a-78a) :
A federal judiciary that is available on demand to
lay down the rules of the powers and duties of other
branches and of federal and state governments will
quickly become the single, dominant power in our
governmental arrangements. The concept of the
fragmentation of power, upon which both the ideas
of the separation of powers and of federalism rest,
will be, if not destroyed, at least very seriously
eroded.
*
*
*
The concept of standing prevents this undesirable
centralization of authority by severely limiting the
occasions upon which courts are authorized to lay
down the rules for governments and institutions of
government.
4 In Judge Bork's view, the institutional intervenors lack standing
for the same reason as do the individual members of the House
(App. 49a n.1).
9
Accordingly, courts should entertain suits such as this one
only at the behest of "a private party who ha [s] a direct
stake in the outcome," as in The Pocket Veto Case itself
(id. at 64a).
Finally, Judge Bork urged that his position is consistent
with the intent of the Framers (App. 81a-89a), that the
equitable discretion doctrine developed by the court of ap-
peals to limit the breadth of its standing rules (see pages
5-6 note 3, supra) is unsupportable (App. 89a-95a), and
that the cases on which the majority relied do not support
its position (id. at 95a-116a). Judge Bork concluded that
"[t]he legitimacy, and thus the priceless safeguards of
the American tradition of judicial review may decline
precipitously" if the "drastic rearrangement of constitu-
tional structures" entailed by the congressional standing
doctrine is "allowed to take hold" (id. at 116a, 117a).
4. The court of appeals entered its judgment (App.
137a-138a) on August 29, 1984, one month before the
expiration of H.R. 4042, but it did not issue the majority
and dissenting opinions until April 12, 1985 (see id. at
1a). Pursuant to orders of the court, petitioners filed a
supplemental petition for rehearing on May 17, 1985,5
urging (in addition to arguments on standing and the
merits) that the controversy had become moot following
the expiration of H.R. 4042 on September 30, 1984.6 On
August 7, 1985, the panel, Judge Bork dissenting, denied
the petition for rehearing (id. at 133a-134a), and the full
court, Judges Bork, Scalia, and Starr dissenting, denied
the suggestion for rehearing en banc (id. at 135a-136a).
5 Following entry of the court's judgment, petitioners had filed a
brief rehearing petition requesting leave to file a supplemental
petition after issuance of the opinions.
6 On June 4, 1985, the court directed (App. 139a-140a) respond-
ents to file briefs addressing whether the case was moot and also
permitted petitioners to file a supplemental brief on this issue, which
we did.
10
REASONS FOR GRANTING THE PETITION
This case presents two questions of great significance:
whether the houses of Congress and their members have
standing to complain that the President is not treating a
bill as law and whether the Pocket Veto Clause applies to
intersession adjournments of Congress. The court of ap-
peals erroneously decided each of these questions in con-
cluding that H.R. 4042 became law. It committed a more
fundamental error, however, in refusing, without explana-
tion, to vacate its judgment as moot following the expira-
tion of H.R. 4042 on September 30, 1984. The opinions
in this case, issued more than six months after the bill
had by its own terms expired, are advisory and nothing
more. In order "to prevent [the] judgment, unreviewable
because of mootness, from spawning any legal conse-
quences" (United States V. Munsingwear, Inc., 340 U.S.
36, 41 (1950)), this Court should grant the petition,
vacate the judgment below, and remand with directions
to dismiss the action as moot.
In any event, the court of appeals manifestly erred in
holding that respondents have standing and that the Pres-
ident may not rely on the pocket veto while Congress is in
adjournment between sessions. Respondents' complaint is
logically indistinguishable from one that the President re-
fused to enforce a validly enacted law: such a refusal
would "nullify legislators' votes and impair the law-
making powers of Congress just as surely as if the
President had employed the pocket veto" (App. 56a n.3
(Bork, J., dissenting)). Yet legislators, no less than other
concerned citizens, plainly lack standing to bring a suit
alleging only injury to their interest in seeing that the
President fulfills his duty under Article II faithfully to
execute the laws. Finally, the court of appeals erred by
failing to acknowledge the controlling effect of this
Court's decision in The Pocket Veto Case, "the only case
directly in point" (App. 130a). Under The Pocket Veto
Case, an adjournment of the Congress prevents the return
of bills within the meaning of the constitutional provi-
11
sion. Accordingly, the President was not required to re-
turn H.R. 4042 with a veto message. Because the Presi-
dent did not sign H.R. 4042, it did not become law.
1. a. As plaintiffs stated in the court of appeals,⁷ they
did not bring this action "merely to assert an abstract
interest in bill publication." Rather, respondents sought
a declaration that H.R. 4042 had become law SO that the
President would comply with the certification require-
ments that the bill established as a precondition to fur-
ther military aid to El Salvador through, at the latest,
September 30, 1984.8 The simple and undeniable truth is
that this controversy over whether H.R. 4042 was a valid
law of the United States became moot when the bill ex-
pired last year. Regardless of whether H.R. 4042 was
a law, it plainly is not пого a law, and no form of judicial
relief can change that fact. There is no certification yet
to be made under the bill; mere publication of the bill
would at this point vindicate no interest of respondents;
the funds already spent cannot now be recovered, as plain-
tiffs have acknowledged; 9 and in any event, this is not
7 Brief in Support of Emergency Motion for Expedited Appeal
and Decision Thereon or for Issuance of a Writ of Mandamus 6
(Jan. 10, 1984).
8 To that end, plaintiffs, simultaneously with the filing of their
complaint on January 4, 1984, requested a ruling from the district
court before January 16, 1984, the date on which the next certifica-
tion would have been due had the bill become law. See Motion for
Preliminary Injunction (Jan. 4, 1984) ; Motion to Shorten Time for
Filing of Opposition to Motion for Preliminary Injunction and to
Shorten Time for Oral Hearing on Preliminary Injunction (Jan. 4,
1984). When the district court denied their motions, plaintiffs
unsuccessfully sought the same relief on an emergency basis from
the court of appeals. See Emergency Motion for Expedited Appeal
and Decision Thereon or for Issuance of a Writ of Mandamus
(Jan. 10, 1984).
9 See Declaration of Michael Ratner in Support of Motion to
Shorten Time for Defendants to Serve and File Opposition and to
Shorten Time for Oral Argument 2 (Jan. 4, 1984) ; Brief in Sup-
port of Motion for Expedited Appeal 3-4.
12
an action seeking the recoupment of funds, for which re-
spondents would plainly lack standing regardless of their
standing to challenge the pocket veto of a live bill.
This case has therefore "lost its character as a present,
live controversy of the kind that must exist if [the Court
is] to avoid advisory opinions on abstract propositions of
law." Hall V. Beals, 396 U.S. 45, 48 (1969). It is funda-
mental that a challenge to a statute becomes moot when
the statute is no longer in force. See, e.g., Kremens V.
Bartley, 431 U.S. 119, 128-129 (1977) ; Diffenderfer V.
Central Baptist Church, 404 U.S. 412, 414-415 (1972) ;
cf. National Organization for Women, Inc. (NOW) V.
Idaho, 459 U.S. 809 (1982) (challenge to Congress's ex-
tension of ratification period for constitutional amend-
ment became moot when period, as extended, expired with-
out ratification). Here as well, there is no longer "a real
and substantial controversy" (Preiser V. Newkirk, 422
U.S. 395, 401 (1975) (citation omitted) ) over the valid-
ity of H.R. 4042. Despite plaintiffs' frenzied efforts early
in the litigation to obtain a judgment at a time when one
in their favor could have provided meaningful relief (see
page 11 note 8, supra) H.R. 4042 expired before the suit
could be completed, leaving only the court of appeals'
"opinion advising what the law would be upon a hypo-
thetical state of facts" (Preiser, 422 U.S. at 401 (citation
omitted) ) Accordingly, this Court should follow its "es-
tablished practice" of "vacat[ing] the judgment below
and remand [ing] with a direction to dismiss." United
States V. Munsingwear, Inc., 340 U.S. at 39 (footnote
omitted). Such a course is especially appropriate here,
where the court of appeals' opinion decides fundamental
constitutional questions, which may 'legitimate [ly] [be
resolved] only in the last resort, and as a necessity in the
determination of real, earnest and vital controversy."
Valley Forge Christian College V. Americans United for
Separation of Church & State, Inc., 454 U.S. 464, 471
(1982) (citation omitted).
b. In response to the court of appeals' order directing
respondents to brief the issue of mootness (App. 139a-
13
140a), respondents argued that the case remains live in
two respects: first, that they are still entitled to see H.R.
4042 preserved and published in the Statutes at Large,
and second, that the expenditure of funds to which H.R.
4042 would have applied might be audited in the future,
giving rise to a recoupment proceeding against the re-
sponsible officials. These attempts to grasp at collateral
consequences-one purely formal and the other wholly
speculative-are insufficient to demonstrate that respond-
ents continue to have "a legally cognizable interest in the
outcome" of the case (Powell V. McCormack, 395 U.S.
486, 496 (1969) regardless of whether they had such an
interest at the time that the litigation commenced.10
i. Respondents' suggestion that they have a continuing
interest in the preservation and publication of H.R. 4042
pursuant to 1 U.S.C. (Supp. II) 106a, 112 would change
this case from a dispute over whether a bill was validly
enacted into a "debate [] concerning harmless, empty
10 Respondents also argued that this case fits within the exception
to the mootness doctrine for those controversies that are "capable
of repetition, yet evading review." This claim borders on the
frivolous. Most bills, unlike H.R. 4042, do not automatically expire
within a short time, leaving behind no vested private rights.
Accordingly, there is nothing "by nature short-lived" (Nebraska
Press Ass'n V. Stuart, 427 U.S. 539, 547 (1976)) about a dispute
over whether a bill has been pocket vetoed. Indeed, past disputes
arising out of pocket vetoes, such as the one resolved in The Pocket
Veto Case, have not evaded review.
The court of appeals never explained why the expiration of
H.R. 4042, which occurred shortly after it issued its judgment but
months before it issued its opinion, has not rendered the case moot.
The court did hold that a supplemental appropriations statute
passed subsequent to H.R. 4042 did not constitute "new legislation
providing conditions for United States military assistance to El
Salvador" that would have terminated the bill prior to Septem-
ber 30, 1984. App. 8a n.10; see id. at 141a. The court's reasoning,
relying on "further appropriations to which the certification re-
quirements of H.R. 4042 might apply" in order to find that "a live
controversy remain [ed] for [it] to resolve" (id. at 8a n.10), should
have led it to conclude that this case became moot after the date
on which the bill indisputably expired.
14
shadows." Poe V. Ullman, 367 U.S. 497, 508 (1961)
(plurality opinion). Although respondents sought this
relief in their complaints, it had (until the bill expired)
always been viewed as merely a formal acknowledgement,
in which respondents had only an "abstract" interest
(page 11, supra), of the fundamental relief that they
desired: vindication of their constitutional role in the
passage of the bill through presidential compliance with
the certification requirements of H.R. 4042. As plaintiffs
explained, "[v]indication of the effectiveness of [their]
votes require [d] a ruling that the law take effect when,
by its own terms, its substantive legal consequences come
into play. 11
Even if the dispute over whether the preservation and
publication requirements of Sections 106a and 112 of
Title 1 were complied with were somehow sufficient to
give rise to a continuing live controversy, it is plain that
respondents lack standing to seek enforcement of those
provisions.¹² The purpose of the statutes governing pres-
ervation of government records is not to confer a judi-
11 Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion
to Shorten Time 3 (Jan. 7, 1984) (emphasis added). Plaintiffs fur-
ther explained in their complaint (at 7; C.A. App. 27) that "[u]nless
H.R. 4042 is delivered and published as law by [petitioners] * * *
military aid to El Salvador will continue illegally, without the re-
quired presidential certification." It is for this reason that the
failure to deliver and publish H.R. 4042 allegedly "nullified plain-
tiffs' votes in favor of the bill" (Plaintiffs' Complaint 12; C.A. App.
32) and deprived the intervenors "of their constitutional role in
the enactment of legislation" (Senate's Complaint in Intervention 4;
Speaker's and Bipartisan Leadership of the House's Complaint in
Intervention 5).
12 If this suit were in fact a dispute over the requirements of
1 U.S.C. (Supp. II) 106a and 112, the question of congressional
standing to seek review of a presidential pocket veto would have
been irrelevant. Respondents would have needed instead to demon-
strate standing to enforce these statutes, an issue never addressed
by the court of appeals. The efficacy of the pocket veto would have
arisen only as a defense raised by petitioners, as to which respond-
ents would not themselves have needed to show standing.
15
cially enforceable right on any person but "solely to bene-
fit [federal] agencies *** and the Federal Government
as a whole" by ensuring that government officials " 'have
the information [they] need [] available when [they]
need [] it.' Kissinger V. Reporters Committee for Free-
dom of the Press, 445 U.S. 136, 149 (1980) (citation
omitted). Publication of the Statutes at Large is obvi-
ously designed only for the benefit of the general public.
These statutes merely regulate matters of government
housekeeping-they do not serve the interests of Congress
and its members with respect to their constitutional role
in the enactment of legislation. Respondents' reliance on
them now that H.R. 4042 has expired would "transform
the federal courts into 'no more than a vehicle for the
vindication of the value interests of concerned bystand-
ers.'" Allen V. Wright, No. 81-757 (July 3, 1984), slip
op. 17-18 (citation omitted). Accordingly, respondents'
desire for such a purely formal acknowledgement of their
victory cannot keep this case alive. Cf. Ashcroft V. Mattis,
431 U.S. 171, 173 (1977) ("Emotional involvement in a
lawsuit is not enough to meet the case-or-controversy re-
quirement; were the rule otherwise, few cases could ever
become moot.") 13
ii. Respondents also suggested that this controversy is
not moot because the former validity of H.R. 4042 would
13 Respondents' contention that this case is still live because
they seek formal recognition of their position that H.R. 4042 was
once law is similar to an argument rejected by the Court in NOW
V. Idaho, supra. There, the State of Idaho urged unsuccessfully
that a challenge to Congress's power to extend the ratification
period for the Equal Rights Amendment was not moot because the
Administrator of General Services, by "refusing to make any official
announcement honoring the rescinding resolutions of other states,"
had "damaged the sovereign power and authority of the states"
and "deprived members of the Idaho Legislature of the effectiveness
of their votes." Response of the States of Idaho and Arizona, et al.,
in Opposition to the Administrator's Suggestion of Mootness at 11,
NOW V. Idaho, supra. Such an "official announcement" is all that
respondents seek here.
16
still be relevant to investigation into and possible recovery
of funds expended on military aid to El Salvador without
the certification that would have been required had the
bill been law. See 31 U.S.C. 1341, 1349-1351, 3521 et seq.
But the former validity of H.R. 4042 is irrelevant to the
ability of any congressional committee to investigate the
expenditure of funds or of the Comptroller General or
responsible officials in the Executive Branch to audit the
El Salvador aid accounts. Moreover, there is no possi-
bility of recovering the funds expended, as plaintiffs have
acknowledged (see page 11 & note 9, supra) 14 Finally,
respondents have never sought in this action to enforce
an auditing or repayment obligation, and they obviously
would lack standing to do SO. See, e.g., United States V.
Richardson, 418 U.S. 166 (1974) ; United Presbyterian
Church in the U.S.A. V. Reagan, 738 F.2d 1375, 1381-
1382 (D.C. Cir. 1984) 15 Respondents have failed to ad-
vance any plausible reason for rejecting the natural and
obvious conclusion that the expiration of H.R. 4042 ren-
dered this action moot.
2. This case would be nonjusticiable even if H.R. 4042
could still be resurrected because respondents have from
the outset lacked standing. They alleged only that the
votes of the individual plaintiffs in favor of the bill have
been "nullified" (App. 8a) and that the "lawmaking
powers of the two houses of Congress" have been "in-
jur[ed]" (id. at 9a (footnote omitted) ). Relying on a
doctrine of congressional standing unique to the District
14 Plaintiffs' failure to obtain a preliminary injunction requiring
that H.R. 4042 be treated as a valid law pending the outcome of
this case (see page 11 note 8, supra) obviates any claim that
the responsible officials acted in bad faith in disbursing funds. See
generally 31 U.S.C. 3527(c), 3528 (b) (1).
15 As with respondents' argument concerning the publication of
H.R. 4042 (see page 14 note 12, supra), this asserted basis for a con-
tinuing controversy has nothing to do with congressional standing
to challenge a pocket veto.
17
of Columbia Circuit,16 the court of appeals held that these
allegations were sufficient to confer standing on respond-
ents (ibid.) This doctrine, however, ignores the concern
for separation of powers that, as this Court recently em-
phasized, provides the foundation on which the law of
standing is based. Allen V. Wright, No. 81-757 (July 3,
1984), slip op. 13; see App. 70a-76a (Bork, J., dissent-
ing) ; Moore V. United States House of Representatives,
733 F.2d 946, 961 (D.C. Cir. 1984) (Scalia, J., con-
curring in the result), cert. denied, No. 84-389 (Jan. 7,
1985). At bottom, respondents complain of nothing more
than the President's failure to execute H.R. 4042 and his
consequent expenditure of funds in violation of its provi-
sions. This is a matter, however, that is firmly com-
mitted by the Constitution to the Executive Branch. Re-
spondents, like citizens and taxpayers generally, lack
standing to challenge the President's action in federal
court.
a. The court of appeals' congressional standing doc-
trine is seriously misconceived. It rests on a "philosophy
[that] has no place in our constitutional scheme" - "that
the business of the federal courts is correcting constitu-
tional errors, and that 'cases and controversies' are at
best merely convenient vehicles for doing SO and at worst
nuisances that may be dispensed with when they become
obstacles to that transcendent endeavor." Valley Forge
16 See, e.g., Moore V. United States House of Representatives,
733 F.2d 946 (D.C. Cir. 1984), cert. denied, No. 84-389 (Jan. 7,
1985) ; Vander Jagt V. O'Neill, 699 F.2d 1166 (D.C. Cir.), cert.
denied, 464 U.S. 823 (1983) ; Riegle V. Federal Open Market Com-
mittee, 656 F.2d 873 (D.C. Cir.), cert. denied, 454 U.S. 1082
(1981) ; Kennedy V. Sampson, 511 F.2d 430 (D.C. Cir. 1974). The
doctrine has thus far gone unreviewed by this Court: in those cases
where the Court denied certiorari, unlike in this case, the court
of appeals had, "largely through application of the doctrine of
equitable discretion [see pages 5-6 note 3, supra, & pages 18-19,
infra], * * * awarded judgment for the party that was challenging
standing." Moore, 733 F.2d at 960 (Scalia, J., concurring in the
result) (emphasis in original).
18
Christian College V. Americans United for Separation of
Church & State, Inc., 454 U.S. 464, 489 (1982) see
generally United States V. Richardson, 418 U.S. 166, 188
(1974) (Powell, J., concurring) (footnote omitted) ("Re-
laxation of standing requirements is directly related to
the expansion of judicial power."). As Judge Bork ex-
plained (App. 75a) :
The court has fashioned a doctrine, in contradic-
tion of Allen V. Wright, that transforms it from a
tribunal exercising its powers "only in the last resort
and as a necessity" to a governing body for the en-
tire federal government * * * Plainly, the courts
of this circuit, if no other, are now not the last but
the first resort. We have abandoned concern that our
performance be "consistent with a system of sepa-
rated powers" for a role of continual and pervasive
intrusiveness into the relationships of the branches
* * * [N]o one ever thought, until we did, that
courts should step directly between the other branches
and settle disputes, presented in the abstract, about
powers of governance.
The doctrine of congressional standing is inconsistent
with this Court's understanding of Article III and should
therefore be repudiated.
The District of Columbia Circuit has recognized the
"growing phenomenon [of] individual members of Con-
gress challeng [ing] actions or failure to act as violations
of the members' interests as legislators." Gregg V.
Barrett, 771 F.2d 539, 543 (D.C. Cir. 1985). All that the
court of appeals has done "[t]o make its standing doc-
trine more palatable" (App. 89a (Bork, J., dissenting))
in the face of this "plethora of cases" (Gregg, 771 F.2d
at 543), however, is to grant itself the "sky-hook of
equitable discretion" (Moore, 733 F.2d at 960 (Scalia, J.,
concurring in the result) to deny relief where "individ-
ual congressmen whose real grievance consists of their
having failed to persuade their fellow legislators of their
point of view * * * seek the court's aid in overturning