bility being a judicial function. Thus, although an individ-
ual senator might make a determination of constitutional
eligibility, once the Senate has consented to an appoint-
ment it is proper for the judicial branch to decide the con-
stitutional 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?

97-591 0 - 82 - 11

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 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 jurisprudential 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.

On September 4, 1981, the Washington Legal Foundation filed a brief amicus curiae arguing that the case warranted consideration by the Court. With regard to the specific issues raised, the amicus contended that Senator McClure had standing by virtue of the special jurisdictional statute and that the separation of powers doctrine did not require dismissal of the action.

On October 14, 1981, the defendants filed a motion to dismiss the appeal or, in the alternative, to affirm the judgment of the threejudge district court. The defendants first maintained that the Supreme Court did not have jurisdiction to hear the case because a direct appeal to the Court from an order of a three-judge court was permitted only when the lower court's order rested on the merits of the constitutional claim presented, not when the order dismissed the action for lack of standing. Since in this case the district court had not reached the merits but simply held that Senator McClure did not have standing, the defendants reasoned that the order was properly appealable only to a court of appeals, not directly to the Supreme Court. Accordingly, they urged that the appeal be dismissed for want of jurisdiction.

If the court found the appeal was properly taken, the defendants argued, the judgment of the district court should nonetheless be affirmed because Senator McClure "plainly" lacked standing to challenge Judge Mikva's appointment even with the aid of the special jurisdictional statute. With respect to Senator McClure's claim that the Court should resolve the "unsettled" status of standing for Congressional litigants, the defendants noted that "however unsettled it may be, appellant cites no case in which a Member of Congress was allowed standing, in that capacity, to attack an institutional action taken by the very body of which he is a member." [Motion of Appellees to Dismiss or Affirm, October 14, 1981, at 8] Further, the defendants reiterated that Senator McClure had failed to show the palpable injury to himself necessary to establish standing:

[A]ppellant cannot allege any personal injury deriving
from the impairment of the Senate's institutional preroga-
tives. At most, appellant's injuries consist in his displeas-
ure at having to cast a negative vote for constitutional, as
opposed to non-constitutional, reasons, and at being a
member of an institution that allegedly violated the Con-
stitution. No such injury has ever been held by this Court
to be sufficient to satisfy Article III. Moreover, to recognize
such "injuries" would essentially allow any member of
Congress to obtain a constitutional decision on any legisla-
tive action. Appellant advances no reason for believing
that Article III was intended to permit such a result. [Id.
at 11]

Finally, with respect to the substantive claim raised by Senator McClure, the defendants again argued that the Ineligibility Clause did not in fact bar Judge Mikva's appointment. Citing in particular United States v. Will, 449 U.S. 200 (1980), the defendants maintained that the pay increase for Judge Mikva's office did not actually vest until after he took his seat on the bench.

Ön October 28, 1981, Senator McClure filed a brief opposing the motion to dismiss or affirm. He initially addressed the jurisdictional argument raised by the defendants, disputing their contention that a direct appeal to the Supreme Court was improper. According to the Senator, the special jurisdictional statute specifically provided for such a direct appeal as an exception to the general procedural rule. On the standing issue and the merits, Senator McClure basically reiterated the arguments he had raised previously. In par

ticular, he attacked the defendant's reliance on the Will case, maintaining that it dealt with the Compensation Clause of the Constitution, not the Ineligibility Clause.

On November 9, 1981, the Supreme Court issued a one-sentence order affirming the decision of the three-judge district court. [102 S. Ct. 559]

Status-The case is closed.

The complete text of the May 5, 1981 opinion of the three-judge court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981.

Riegle v. Federal Open Market Committee

No. 81-398-CFX (U.S. Supreme Court)

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.) 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.

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.

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."