issue, said that the issue "should have been referred to the Subcommittee on the Constitution, and then we would have a better basis on which to cast our votes in connection with this nomination" (125 Cong. Rec. S13351). Senator Kennedy, addressing the constitutional issue, assured his colleagues that "it was most certainly considered and weighed by the Judiciary Committee" which "agreed, in reporting this nomination, that there was no constitutional bar to Congressman Mikva's nomination" (Id., at S13360). Senator Kennedy inserted in the Congressional Record memoranda from the Justice Department which dealt with the issue, in order that the senators would be better informed about it when they vote (Id., at S13360-S13362). These words and actions prove that the Senate was not disabled from making its own determination on the constitutionality of Judge Mikva's appointment after the President nominated him. [Opposition to Plaintiff's CrossMotion for Summary Judgment, April 28, 1980, at 3-5]

The defendants also rejected Senator McClure's alternative contention that he was personally injured because he was forced to vote on the constitutional issue alone and could not advise and consent to the nomination based on Judge Mikva's qualifications. According to the defendants, Senator McClure had in fact indicated during the floor debate on the nomination that he opposed Judge Mikva because of his social and political views, rather than because of the constitutional question alone.

With respect to the political question issue, the defendants maintained that Senator McClure was incorrect in asserting that Public Law 96-86 had resolved the matter. According to the defendants, Article III of the Constitution precluded Congress from conferring jurisdiction of the Federal courts to resolve political questions:

*

[T]he Supreme Court has taught that "Congress may not confer jurisdiction on Art. III federal courts to resolve 'political questions' * * because suits of this character are inconsistent with the judicial function under Art. III." Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972). See Luther v. Borden, 48 U.S. (7 How.) 1 (1849). If, as we submit, the Constitution textually has committed to the political departments the determination of whether an individual is eligible to be nominated and appointed to, and to continue to serve in, a federal judicial post, Congress has no power to confer jurisdiction upon the courts to review that determination. Put another way, Article III would void any legislation, such as Public Law 96-86, which purports to convert a nonjusticiable action into a justiciable one by congressional fiat. Thus, even if Congress enacted Section 101(c) of Public Law 96-86 for the purpose of permitting a court challenge to Judge Mikva's appointment, as Senator McClure suggests (Plaintiff's Memorandum, p. 15), its desires cannot circumvent Article III. [Id. at 6]

On the merits, the defendants reiterated their argument that the "emoluments" of the judicial office to which Judge Mikva was appointed were not actually increased until after his appointment and therefore it did not violate the Ineligibility Clause.

On June 16, 1980, Senator McClure filed a response to the defendants' opposition to his motion for summary judgment. In particular, the plaintiff took issue with the defendants' arguments on standing and derivative injury:

Plaintiff has not claimed that individual Senators were disabled from making their own judgment regarding Mr. Mikva's constitutional eligibility; presumably, in fact, each senator did make a determination of Mr. Mikva's constitutional eligibility as well as a determination of Mr. Mikva's fitness for office. These determinations, however, are separate and distinct, the fitness for office determination being a political decision textually committed to the Senate and the President and the determination of constitutional eligibility being a judicial function. Thus, although an individual senator might make a determination of constitutional eligibility, once the Senate has consented to an appointment it is proper for the judicial branch to decide the constitutional question.

Congress itself recognized this distinction in enacting the authorizing language for this lawsuit in P.L. 96-86 which defendants chose to ignore in arguing that Article III of the Constitution prohibits Congress from permitting the judiciary to decide this constitutional question. The Senate found Mr. Mikva qualified to be a judge on his merits; since it could not ultimately decide the question of constitutional eligibility, it properly sought the assistance of the judiciary by enacting Section 101(c)(2) of P.L. 96-86. [Response To Defendants' Opposition To Plaintiff's Motion for Summary Judgment, June 16, 1980, at 2-3]

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. One issue briefed involved the indispensability of Judge Mikva as a party to the suit. (His December 5, 1979 jurisdictional motion was still pending before the court.) The defendants maintained that Judge Mikva was an indispensable party (under Rule 19(b) of the Federal Rules of Civil Procedure) over whom personal jurisdiction could not be obtained, and that, therefore, the entire action should be dismissed. The plaintiff contended that Public Law 96-86 impliedly granted the court personal jurisdiction over Judge Mikva, and that in any event "equity and good conscience" required the court to proceed to the merits even if the court concluded it did not have jurisdiction.

On May 5, 1981, the three judge court issued its decision, holding that Senator McClure, even with the aid of the special jurisdictional statute on which he relied, Public Law 96-86, lacked standing to

bring the action. Accordingly, the court dismissed the suit. [McClure v. Carter, 513 F. Supp. 265 (D. Idaho 1981)] Characterizing the jurisdictional statute as "unusual" [513 F. Supp. at 267] because it applied solely to Judge Mikva and made only Members of the House or Senate enforcers of the Constitution, the court maintained that Public Law 96-86 "implicate[d] special concerns regarding the separation of powers." [Id. at 268]

Regarding the issue of Senator McClure's standing, the court's analysis turned on two questions. First, without reference to Public Law 96-86, did the Senator, either as a private individual or as a Member of Congress, have a sufficient personal stake in the challenge to Judge Mikva's appointment to confer standing? And second, if the Senator did not have a sufficient personal stake, did Congress, through Public Law 96-86, properly confer standing on him and satisfy the case or controversy requirement of Article III of the Constitution?

In answer to the first question, the court held that "a United States Senator, suing in either his individual capacity or his official capacity as a senator, lacks standing to challenge the validity of the appointment of a federal judge." [Id. at 269] The court specifically rejected Senator McClure's contention that his special duties and responsibilities as Senator gave him standing to contest the appointment:

It is difficult to see how Senator McClure can argue that the effectiveness of his vote is impaired by the appointment of former Congressman Mikva to the federal bench. Senator McClure had the opportunity to persuade his colleagues to vote against the confirmation and, in the conscientious performance of his duties, Senator McClure did just that. That he and like-minded senators did not prevail in the Senate does not mean that the effectiveness of Senator McClure's vote was impaired within the meaning of Coleman v. Miller [307 U.S. 433 (1939)]. It means merely that he was on the losing side. Certainly no one would contend, and we do not understand Senator McClure to contend, that the losing senators in any vote should automatically have the right to appeal to a federal court for a determination of the correctness of the result approved by the majority of their colleagues. If this were the case, federal courts would on such occasions be little more than legal advisors to the Congress, whose counsel could be obtained at the instance of any single member of that body. This would, of course, amount to the giving of advisory opinions that, whatever their desirability in a particular case, we are forbidden to provide. [Id. at 270 (footnote omitted)]

With respect to the second question, the court held that the jurisdictional statute could not confer a right to seek a decision from a Federal court on a Member of Congress that the Member would otherwise be powerless to procure. The court explained:

The statute is not premised on protecting the effectiveness
of a legislator's vote under the rationale of Coleman v.

Miller, for it purports to grant standing to senators who
voted for Judge Mikva as well as to those who voted
against him. Furthermore, the statute purports to grant
standing to members of the House of Representatives, who
had no vote on the appointment at all. And we see no rel-
evance, at least insofar as standing for members of the
House is concerned, in the fact that Judge Mikva was,
before his appointment to the bench, himself a member of
the House.

Thus, we hold that Senator McClure, even with aid of
the special jurisdictional statute on which he seeks to rely,
does not have standing to bring this suit. The jurispruden-
tial considerations go beyond simply setting proper limits
on judicial power and containing its exercise within its
rightful sphere. They serve also to protect against other
branches of government, no matter how well-intentioned,
voluntarily ceding to the federal judiciary powers and re-
sponsibilities that rightfully belong to the legislature or
the executive. At bottom, the vice of the statute before us
is its muddling of the roles, its blurring of the lines be-
tween the branches of government. [Id. at 271]

Finally, the court made the point that it was Congress' duty to perform the advise and consent function prescribed by the Constitution, and it was not the role of a court to issue a "second opinion" on whether this function had been properly carried out:

Under the Constitution, it was the duty of Congress itself,
in the first instance, to determine Judge Mikva's qualifica-
tions both on the merits and on the issue of whether he
was constitutionally eligible to serve as a judge. To allow
members of Congress to change hats, as it were, to plead
the unconstitutionality of their own acts before this court
on the basis of an argument already debated in the Senate
but lost there by vote, would, we suggest, set a dangerous
precedent. [Id.]

Because the court determined that Senator McClure did not have standing, it did not reach the issue of personal jurisdiction over Judge Mikva or any of the other issues raised by the parties.

On June 9, 1981, Senator McClure filed a notice of appeal of the three-judge court's decision to the U.S. Supreme Court, and on July 30, he filed a jurisdictional statement with the Court, claiming that substantial questions were presented which required plenary consideration. The Senator asserted that the lower court had "failed to consider the unique injuries he, as a legislator alleged," and "failed to correctly interpret the decisions of this Court regarding the separation of powers doctrine and the duty of the judicial branch to decide constitutional issues." [Jurisdictional Statement, July 30, 1981, at 8-9] He asked that the case be remanded to the district court for consideration of the merits or that the issues and merits be reviewed by the Supreme Court.

On the standing point, Senator McClure urged the Court to review the case to resolve the "unsettled status of standing for congressional litigants." [Id. at 15] He argued that where, as in this

case, a statute authorizes lawsuit, the Article III requirement of injury is even less than the minimal injury necessary to confer standing when a plaintiff brings suit without statutory authorization. Thus, according to the Senator, "the injury which plaintiff here must allege to sustain standing must truly be only the most minimal." [Id.] On the separation of powers point, Senator McClure argued that the Court should hear the case because: (1) it was a matter of constitutional interpretation only, which the judicial branch should resolve; and (2) there was no legislative redress available.

Status-The case is pending in the U.S. Supreme Court.

The complete text of the May 5, 1981 opinion of the three-judge court is printed in the "Decisions" section of this report at page 387.

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 appointments of these individuals, Senator Riegle asserted, the defendants had acted contrary to Article II, Section 2 of the U.S. Constitution (the Appointments Clause.) 2 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 Commit

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. §§ 221 et seq. (1976)) to control purchases and sales of securities on the open market by the 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, under 12 U.S.C. § 263(a) (1976), 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.

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."