On December 3, 1979, the plaintiff-appellees filed a petition for certiorari in the U.S. Supreme Court accompanied by a motion for expedited consideration. Two days later they moved in the circuit court for a stay of its mandate pending consideration of the certiorari application. On December 10, the defendant-appellants filed an opposition to the motion for a stay, asserting that the plaintiffs had not justified their request and further that the public interest militated against suspending the judgment of an "overwhelming" majority of the court. (The motion for a stay was dismissed by the court of appeals as moot in an order filed on January 4, 1980, several weeks after the Supreme Court ruled on the case.)

In their petition for certiorari the plaintiffs argued that, because of the importance of the question of constitutional law involved and because of the court of appeals' "unprecedented allocation of constitutional powers between the Executive and Legislative Branches of the Federal Government", the Supreme Court should review the case. The petitioners then attacked the ten considerations relied upon by the lower court as "unsupported by any historical precedent," dismissing each as either legally incorrect or factually inaccurate. Finally, with respect to the consideration of "central significance" to the court of appeals the fact that the Defense Treaty contained a termination clause-the petition concluded:

The absence of an express condition in the Mutual Defense Treaty spelling out a role for the Senate or the Congress for its termination is also not significant since it was generally understood from past practice that termination of treaties, including those with termination clauses similar to that here, required approval of the Congress, or at least the Senate. Furthermore, the absence in the Constitution itself of a provision for treaty termination does not mean that the "power consequently devolves upon the President" as the Court of Appeals would have it. This Court clearly stated in Youngstown Sheet and Tube v. Sawyer, [343 U.S. 579 (1952)] that the President is not presumed to have the power to act in any particular circumstance. His power "if any, .. must stem either from an act of Congress or from the Constitution itself." 343 U.S. at 585. It cannot stem from or be created out of a gap in the Constitution. [Petition for a Writ of Certiorari, December 3, 1979, at 30-31 (footnote omitted)]

On December 6, 1979, the defendants filed their brief in opposition to the petition for certiorari, contending that the court of appeals' decision was correct and further review was not warranted. The defendants emphasized that, petitioners' assertions to the contrary, the lower court had not decided an important constitutional case whose significance extended far beyond the confines of the present dispute, but had only ruled on the specific treaty at issue. "The Court carefully avoided the adoption of any sweeping rule governing the termination of all treaties at all times and in all circumstances." [Brief for the Respondents in Opposition, December 6, 1979, at 8] The defendants also noted that severe time constraints made further review impractical, since the Mutual Defense Treaty was scheduled to terminate on Janu

ary 1, 1980, less than a month away, and a decision by then was essential if the case was "not to become moot by virtue of the Court's inability to provide an effective remedy after termination." [Id. at 10] Turning to the merits, the brief contended that the President's decision to terminate the treaty was "solely a consequence of his political decision to transfer recognition" [Id. at 11] and no act of the Senate or Congress could reverse his determination that the former treaty partner was no longer a government with whom the United States could maintain formal foreign relations. This argument, according to the brief, was substantially bolstered by the explicit termination clause in the Treaty. More generally, the brief maintained (as had the court of appeals) that the President was granted broad executive powers under Article II of the Constitution, while the legislative powers under Article I were limited and did not include a Congressional role in treaty termination. Historical practice, the brief asserted, supported the conclusion that there was no such specific Congressional role:

Petitioners have not pointed to a single example of a congressional attempt to veto a Presidential decision to terminate a treaty. None of petitioners' historical precedents bears on the proposition fundamental to this case: that the United States cannot maintain treaty relations without the continuing concurrence of the President. The only relevant historical precedents are the instances of unilateral Presidential treaty terminations. While petitioners attempt to distinguish these instances from the present case on grounds such as changed circumstances, ineffectuality, or impossibility of performance, they do not explain why the Constitution gives the President, acting alone, the power to terminate treaties in some circumstances, but not in others, nor do they explain by what standards a court is to determine what the crucial circumstances are. [Id. at 22-23]

Finally, the brief contended that the case was nonjusticiable because the petitioners lacked standing (since the legislators were acting without "institutional support" for their position), and because the case presented a political question (since there were "no judicially manageable standards" by which a court could grant the requested relief). On December 8, 1979, the Congressional petitioners filed a reply brief in which they disputed the argument that the Court had to rule before January 1, 1980 if it was to be able to provide an effective remedy. According to the brief, if the President did not possess the constitutional power to terminate the treaty without Congressional concurrence, the termination was invalid until the concurrence was obtained. "This Court's judgment reversing the court of appeals would have exactly the same effect if rendered in 1980 as it would have if rendered in 1979." [Petitioners' Reply Brief, December 8, 1979, at 2]

On December 12, 1979, the plaintiffs filed a supplemental brief in which they argued that the clear intent of the Framers was that treaties were to be terminated in the same manner that other laws of the land were repealed; that the power to unmake was a corollary of the power to make.

On December 13, 1979, the Supreme Court granted certiorari, vacated the judgment of the court of appeals, and remanded the case to

the district court with directions to dismiss the complaint. [Goldwater v. Carter, 444 U.S. 996 (1979)] Although there was no statement by the Court, several Justices filed separate statements commenting on the result.

Justice Powell, although concurring in the judgment, would have dismissed the complaint as not ripe for judicial review:

Prudential considerations persuade me that a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority . . . In the present posture of this case, we do not know whether there ever will be an actual confrontation between the Legislative and Executive Branches. Although the Senate has considered a resolution declaring that Senate approval is necessary for termination of any mutual defense treaty, . no final vote has been taken on the resolution . . . It cannot be said that either the Senate or the House has rejected the President's claim. If the Congress chooses not to confront the President, it is not our task to do so. [444 U.S. at 997-998 (Powell, J., concurring)]

Justice Powell disagreed with Justice Rehnquist [see infra] that the issue presented by the case was a nonjusticiable political question. Viewing the matter simply as a matter of constitutional interpretation, Justice Powell argued that the Court had a responsibility to decide whether both the executive and legislative branches had roles to play in termination of a treaty. "If the Congress, by appropriate formal action, had challenged the President's authority to terminate the treaty with Taiwan, the resulting uncertainty could have serious consequences for our country. In that situation, it would be the duty of this Court to resolve the issue." [Id. at 1002]

Justice Rehnquist, joined by the Chief Justice, and Justices Stewart and Stevens, concurred in the judgment on the theory that the case presented a nonjusticiable political question in that it involved the authority of the President to conduct foreign relations and the extent to which the Senate or Congress was authorized to negate the action of the President. "[T]he justifications for concluding that the question here is political are... compelling... because it involves foreign relations-specifically a treaty commitment to use military force in the defense of a foreign government if attacked." [444 U.S. at 1003-1004 (Rehnquist, J., concurring)]

Justice Blackmun, joined by Justice White, concurred in the grant of the petition for certiorari, but would have set the case for oral argument. Justice Blackmun termed it "indefensible" to pass on the issues of justiciability, standing, or ripeness without further study. Justice Brennan dissented, arguing that the judgment of the court of appeals should be affirmed "insofar as it rests upon the President's well-established authority to recognize, and withdraw recognition from, foreign governments." [444 U.S. at 1000 (Brennan, J., dissenting)] The Justice termed abrogation of the treaty with Taiwan as a "necessary incident" to recognition of the Peking Government, because "the defense treaty was predicated upon the now-abandoned view

that the Taiwan Government was the only legitimate political authority in China." [Id. at 1007] Justice Brennan also criticized Justice Rehnquist's view that the case presented a nonjusticiable political question, explaining:

Properly understood, the political-question doctrine restrains courts from reviewing an exercise of foreign policy judgment by the coordinate political branch to which authority to make that judgment has been "constitutional [ly] commit[ted]." Baker v. Carr, 369 U.S. 186, 211-213, 217 (1962). But the doctrine does not pertain when a court is faced with the antecedent question whether a particular branch has been constitutionally designated as the repository of political decisionmaking power. Cf. Powell v. McCormack, 395 U.S. 486, 519-521 (1969). The isue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts. [Id. at 1006-1007]

In an order filed on February 19, 1980, Federal District Court Judge Gasch formally dismissed the complaint.

Status-The case is closed.

The complete texts of the district court memorandum of October 17, 1979, the court of appeals per curiam opinion of November 30, 1979, and the Supreme Court statements of December 13, 1979 are printed in the "Decisions" section of this report beginning at p. 393.

Riegle v. Federal Open Market Committee

No. 80-1061 (D.C. Cir.).

On July 2, 1979, U.S. Senator Donald W. Riegle, Jr. of Michigan filed a complaint for injunctive relief in the U.S. District Court for the District of Columbia. Named as defendants were the Federal Open Market Committee ("Committee”), five of its members, and five of its alternate members.1

In his complaint Senator Riegle, who was a member of the Senate Committee on Banking, Housing and Urban Affairs, alleged that by acting as officers of the United States though their nominations had never been submitted to the Senate, the defendant individuals had deprived the plaintiff of his right to vote in determining the advice and consent of the Senate to their appointments. Similarly, by permitting the defendant individuals to act as officers of the United States though their nominations had never been submitted to the Senate, the Committee had deprived the plaintiff of his right to vote in determining the advice and consent of the Senate to the appointments of the defendant individuals. By depriving him of his right to vote on the ap

1 The Federal Open Market Committee is an agency of the United States created by section 12A of the Federal Reserve Act (12 U.S.C. § 263) to control purchases and sales of securities on the open market by Federal Reserve Banks. The complaint alleged that the Committee had a substantial effect on overall monetary policy and had a profound effect on the value of U.S. currency, foreign exchange rates, interest rates, investment and employment.

The Committee is composed of 12 members, seven of whom serve (as part of their duties) as members of the Board of Governors of the Federal Reserve System, to which they have been appointed by the President by and with the advice and consent of the Senate. The other five are representatives of Federal Reserve Banks who have not been so appointed, but who are elected by boards of directors of such banks. The five persons serving at the time of this complaint as Federal Reserve Bank representatives were, together with the five persons serving as alternates, the defendant individuals in this action.

pointments of these individuals, Senator Riegle further asserted, the defendants had acted contrary to Article II, Section 2 of the U.S. Constitution. In his prayer for relief, Senator Riegle asked the court to permanently enjoin the defendant individuals from serving as members of the Committee and to permanently enjoin the Committee from permitting the defendant individuals to serve as members. Alternatively, Senator Riegle asked that the court permanently enjoin the defendant individuals from voting in, or serving as chairman or vice chairman of, the Committee and that the court permanently enjoin the Committee from permitting the defendant individuals to vote or serve. On August 3, 1979, the plaintiff filed a motion for summary judgment. In this motion, the Senator outlined the structure and the function of the Committee to show first, that the individual defendants were not "inferior officers." The plaintiff reviewed the existing case law and found that:

In previous litigation, in which they were also represented by the Department of Justice, these same individual defendants advanced the argument that they are "inferior officers" whose "appointment has been vested by Congress in the Board of Governors of the Federal Reserve System by 12 U.S.C. § 341." With all respect, we submit that such an argument is absurd on its face. Even in their capacity as officers of Federal Reserve banks, the Board of Governors no more appoints them than the Senate appoints the Board. Given the awesome dimensions of their power, and the fact that it is exercised for fixed terms of office subject neither to supervision nor to review, it seems difficult to argue that the Congress could, even had it elected to make the attempt, have provided for their appointment as inferior officers. [Statement of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment, August 3, 1979, at 4-5]

Second, Senator Riegle asserted that the present-day function of the Committee was wholly Governmental in character and that judicial precedents set by prior litigation on this issue were inapplicable because of the changed nature of the Committee:

Even if open market operations could plausibly have been argued to be a nongovernmental function in 1935, the constitutionality of the FOMC as it operated in that context is not in issue here.

Plainly each and every member of the FOMC as it operates today meets the functional test for officers of the United States laid down in Buckley v. Valeo, 424 U.S. 1 (1976). The holding of that case which controls the case at bar is set forth in the court's own words, 424 U.S. at 125–126, as follows:

"We think that the term 'Officers of the United States' as used in Art. II, defined to include 'all persons who can be

2 Article II. Section 2, provides, in pertinent part:

"The President, by and with the Advice and Consent of the Senate, shall appoint . all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.