This, according to the plaintiff, empowered the judicial branch to decide the issues in the case. On the merits, Senator McClure continued to argue that Judge Mikva was constitutionally ineligible for his office because that office received an emolument prior to his appointment; that Judge Mikva was prohibited from being appointed to his office until the end of his congressional term; and that federal salary laws created a present entitlement to annual increases for Federal judges. Oral argument was heard on the case on June 26, 1980, at which time the court ruled from the bench that it was properly convened as a three-judge court. All other motions were taken under advisement. During the remainder of 1980 and the beginning of 1981, various memoranda and replies were submitted to the court by the parties. Status.-The case is pending before a three-judge court in the U.S. District Court for the District of Idaho. Goldwater v. Carter Civil Action No. 79-856-CFX (U.S. Supreme Court) Several Members of the Senate and House of Representatives filed suit on December 22, 1978, in the U.S. District Court for the District of Columbia, against President Carter and Secretary of State Cyrus Vance, seeking to have the court declare unconstitutional and illegal the purported notice by President Carter to the Republic of China of the termination of the 1954 Mutual Defense Treaty ("Defense Treaty"), TIAS 3178, 6 UST 433 (1955), between the United States and the Republic of China. The plaintiffs further sought to have the court declare that the termination of the 1954 Treaty could not be legally accomplished, nor could notice be given of the intended termination of such treaty, without the advice and consent of the U.S. Senate, or the approval of both Houses of Congress. The plaintiffs included Senators Barry Goldwater, Strom Thurmond, Carl Curtis, Jake Garn, Jesse Helms, Senator-elect Gordon Humphrey, Congressmen Robert Bauman, Steve Symms, Larry McDonald, Robert Daniel, Jr., Bob Stump, Eldon Rudd, John Ashbrook and George Hansen. In their complaint for declaratory and injunctive relief, the plaintiffs first asserted that the Defense Treaty itself stimulated the only method for its abrogation. Article X of the Defense Treaty stated in its entirety: This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been given to the other Party. The plaintiffs contended that Article 2 of the Vierna Convention on the Law of Treaties defined the term "party" as "a State which has consented to be bound by the treaty and for which the treaty is in force." The plaintiffs concluded that under the United States Constitution and as historically interpreted by the United States, the term "party", as used in Article X of the Defense Treaty, meant the President acting together with the Senate or both Houses of Congress. The plaintiffs noted that on September 26, 1978, defendant President Carter signed into law the International Security Assistance Act of 1978 (Public Law 95-384, 92 Stat. 746), including the so-called "Dole-Stone Amendment,” which read in pertinent part: It is the sense of the Congress that there should be prior consultation between the Congress and the executive branch on any proposed policy changes affecting the continuation in force of the Mutual Defense Treaty of 1954. [Complaint, December 22, 1978, at 8] They also pointed out that on October 10, 1978, plaintiff Senator Goldwater introduced in the Senate, Concurrent Resolution 109, which stated in pertinent part: That, in accordance with the separation of powers under the Constitution, the President should not unilaterally take any action which has the effect of abrogating or otherwise affecting the validity of any of the security treaties, comprising the post-World War II complex of treaties, including mutual defense treaties, without the advice and consent of the Senate, which was involved in their initial ratification, or the approval of both Houses of Congress. [Id. at 9] The plaintiffs contended that Congress had never directed the President to alter or terminate the Defense Treaty, but that on December 15, 1978, while the Congress was not in session, President Carter publicly announced his unilateral decision that the United States would recognize the Peoples Republic of China as the sole legal government of China as of January 1, 1979. The President "also publicly announced his unilateral decision to terminate the Defense Treaty with the Republic of China, or to give notice of its termination, without having made any prior consultation with the Senate or the House of Representatives, without obtaining the Senate's advice and consent, and without the express or implied approval of either House of Congress." [Id. at 10] The plaintiffs claimed that the unilateral action by the President had deprived them of their "substantial constitutional and statutory rights to be consulted, and to exercise their right to vote on the matter of the continued application and operation of the Defense Treaty which the Senate approved in 1955." They also alleged that they had suffered and would continue to suffer a direct injury in fact to their right to vote and the exercise of their legislative duties. The plaintiffs asked not only that the President be enjoined from taking any further action or making any statements which would have the effect of terminating the Defense Treaty or creating any expectations that it had been or would be terminated, but also that the court declare that any decision by the United States to terminate the Defense Treaty could not be made by the President alone since he was not the "party" to that treaty as specified under Article X. Further, the plaintiffs asked the court to rule that any decision of the United States to terminate the Defense Treaty must be made by and with the full consultation of the entire Congress, and with the advice and consent of the Senate, or with the approval of both Houses of Congress. 81-497 O 81 - 8 287] Only those "legislative acts" protected by the Speech or Debate Clause have been immune from inquiry; not all activity incidental to the exercise of these central legislative functions has been so protected, the court ruled. Although the court held that the Clerk must comply with the subpoena, it concluded the opinion with the following footnote: The granting of this motion resolves the over-all question of justiciability; it is not to be understood as precluding the Clerk from questioning the "materiality" and/or "relevancy" of particular documents falling within the letter of the United States' broad subpoena. Nor is the granting of the motion to be understood as precluding the Clerk, or Mr. Eilberg, from raising such particularized "Speech or Debate" contentions as may be thought to render some proposed evidence inadmissible. [Id. at 287, n. 13] Discovery has continued in this case through the first months of 1981. Status-The case is pending in the U.S. District Court for the Eastern District of Pennsylvania. The complete text of the October 22, 1980 opinion of the district court is printed in the "Decisions" section of this report at p. 608. Hansen v. National Commission on the Observance of International Women's Year No. 78-2210 (9th Cir.) On September 21, 1977, Congressman George Hansen of Idaho filed suit in the U.S. District Court for the District of Idaho to enjoin the National Commission on the Observance of International Women's Year ("Commission") from spending Federal funds for allegedly prohibited lobbying activities. Along with the Commission, nine cabinet members, the Administrator of the General Services Administration, the Chairman of the Federal Reserve System, the Administrator of NASA, and the Director of the United States Information Agency were named as defendants. The complaint alleged that the agencies headed by these defendants disbursed Federal funds to the Commission which were used for proscribed lobbying purposes, including efforts in state legislatures to ratify the Equal Rights Amendment. In addition to temporary and permanent injunctive relief, the complaint sought an order of mandamus to compel each agency head to institute proceedings to recover from the Commission all funds which were allegedly improperly disbursed, and an accounting of the funds along with an order directing the Commission to reimburse the Treasurer of the United States for those amounts purportedly unlawfully expended. On January 23, 1978, the Federal defendants filed an opposition to the request for a temporary injunction and a motion to dismiss on behalf of all defendants. In a memorandum accompanying these motions, the defendants asserted that the action merely repeated allegations which had previously been raised in other cases and dismissed. Additionally, the defendants contended that Rep. Hansen lacked standing to bring the action and that the complaint failed to state a claim upon which relief could be granted. Finally, the defendants argued that the activities complained of did not violate the anti-lobbying provisions of the relevant statutes (P.L. 94-167 and 94-303), and that therefore the plaintiff was unable to demonstrate the likelihood of success on the merits and, as a result, was not entitled to injunctive relief. On the standing issue, the memorandum declared that Rep. Hansen's claim that his official position as a House Member conferred upon him a special access to the Federal courts had been "uniformly rejected". Like other taxpayers and citizens, the defendants argued, Rep. Hansen had to demonstrate a "distinct and palpable injury to himself" to gain access to the Federal courts. In this case, however, Rep. Hansen had demonstrated at most no more than a "generalized grievance" shared in substantially equal measure by a large class of citizens. That, according to the defendants, was an insufficient basis for standing. With respect to the issue of interagency funding, and the plaintiff's claimed lack of an adequate remedy at law, the memorandum asserted that "it is up to the Congress and the Comptroller General, not the plaintiff, to take remedial action, if any is necessary." [Memorandum in Support of Federal Defendants' Motion to Dismiss, January 23, 1978, at 11] On the question of whether the Commission violated the antilobbying provisions of its relevant governing statutes, the defendants memorandum contended that U.S. Supreme Court decisions had clearly defined the term "lobbying" to mean solely "representations made directly to the Congress, its members, or its committees" (United States v. Rumley, 345 U.S. 41, 47 (1953)), not the "expansive and erroneous" list of activities noted in the complaint such as contact with state legislatures regarding the Equal Rights Amendment. The defendants concluded on this point by arguing that if the Commission was not in violation of the anti-lobbying provisions, "it stands to reason that other federal agencies by virtue of funding the National Commission are also not in violation of any anti-lobbying provisions applicable to them. The plaintiff therefore fails to state a claim upon which relief can be granted." [Id. at 16] Finally, with respect to the question of injunctive relief, the defendants contended that while Rep. Hansen faced no serious harm if it were not granted, the Commission would be injured in an immediate and irreparable manner if it were prevented from discharging its statutory obligations. On February 27, 1978, Rep. Hansen filed an opposition to the defendants' motion to dismiss. The memorandum articulated various theories in support of according standing to the plaintiff including through a qui tam interest under 31 U.S.C. § 231 (False Claims Act.) (This was not pleaded in the original complaint.) On policy grounds, the plaintiff asserted: The meaning of the statutes at issue can be decided only by this Court, and the only way to bring the issue before it is through a Congressional Plaintiff. As has been shown, such a plaintiff sustains a special injury when Congressional policy is ignored. The public suffers a broader injury, of course, but Members of Congress lose the effectiveness of the The memorandum also argued that Congress clearly intended the anti-lobbying provisions to apply to the activities in which the Commission was involved, particularly the lobbying of state legislatures for passage of the Equal Rights Amendment. On the same day that the plaintiff's opposition memorandum was filed, U.S. District Court Judge McNichols issued an order, without opinion, denying the request for a temporary injunction and granting the defendants' motion to dismiss the complaint. [Hansen v. National Commission on the Observance of International Women's Year, Civil Action No. 77-1158 (D. Idaho, February 27, 1978)] On April 28, 1978, the plaintiff filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit, and subsequently filed a statement of issues on appeal which identified the questions to be considered as whether the court had subject matter jurisdiction; whether the plantiff had standing; whether the Commission had engaged in prohibited "lobbying activities"; and whether the plaintiff would suffer irreparable harm if an injunction was not issued. In their briefs, the parties essentially reiterated the arguments made in the district court. In their January 3, 1979 brief, the defendants did note additionally, however, that the question of injunctive relief was moot, since under its enabling statute the Commission terminated its existence on March 31, 1978. Oral argument was held in April, and on September 18, 1980, the court of appeals issued its opinion affirming the district court decision. [Hansen v. National Commission on the Observance of International Women's Year, 628 F.2d 533 (9th Cir. 1980)] District Judge Spencer Williams, sitting by designation, stated that Rep. Hansen had no standing to bring the suit. He explained: The injury alleged by appellant is an injury which he suffers along with all other citizens of the United States. He has not presented any facts which show he has sustained or is imminently in danger of sustaining an actual personal injury. Since appellant has suffered only an injury in the abstract, standing cannot be invoked. Schlesinger v. Reservists, 418 U.S. at 217-219, 94 S.Ct. at 2930-2931. [628 F.2d at 534] The court also held that the Congressman did not state a cause of action under the False Claims Act since he had not alleged that the defendants had fraudulently taken the money from the United States. That act, the court found, was limited to actions involving false demands (for either payment of money or the transfer of property) that had been presented to an official of the United States for appraisal. Status-The case is closed. |