voting power alleged would, all things being equal, give plaintiffs standing to bring this action" [524 F.Supp. at 520-521], and that there was no viable legislative remedy, he concluded that the plaintiffs had "not overcome the defendants" challenge to this Court's jurisdiction by virtue of both the Speech and Debate [sic] Clause and the corollary Separation of Powers doctrine." [Id. at 521]

Judge Oberdorfer ruled that party caucus deliberations and those of the Steering and Policy Committee are protected by the Speech or Debate Clause as preparatory and integral to consideration of and votes on the subjects on the House floor. He explained:

The Court is persuaded that actions taken by House Mem-
bers belonging to one party pursuant to decisions made by
them in a caucus of that party are actions_performed
within the "legitimate legislative sphere." See Eastland v.
United States Servicemen's Fund, 421 U.S. 491 (1975); Doe
v. McMillan, 412 U.S. 306, 312-13 (1973); United States v.
Brewster, 408 U.S. 501 (1972); See also Dombrowski v. East-
land, 387 U.S. 82 (1967). It is apparent from the face of the
complaint and reasonable inferences therefrom that de-
fendant Members determined in caucus somewhat unoffi-
cially how they, as a group of party members, would vote
on the floor of the House with respect to the composition
of the Committees of the House. This caucus action was in
preparation for and in discharge of the official duty of the
Members qua Members to elect standing committees. The
rules of the House limit the committees so elected to nomi-
nees of the party caucus. H.R. Rule X, Cl. 6(a)(1), Rules of
the House of Representatives, reprinted in Jefferson's
Manual and Rules of the House of Representatives, H.R.
Doc. No. 95-403, 95th Cong., 2d Sess. 384-85 (1979). Thus,
the actions contested by the plaintiffs were in performance
of legislative duties defined by the House's own rules,
which rules specifically contemplate a nominating role for
the caucus. Accordingly, the actions complained of, even
though they might affect plaintiffs' constitutional rights as
voters and Members, are beyond the reach of this Court by
virtue of the Speech and Debate Clause. Cf. Powell v. Mc-
Cormack, 395 U.S. 486, 508 (1969); Kilbourn v. Thompson,
103 U.S. 168 (1881).

The actions of a caucus in the House are governed by
the House Rules. Art. I § 5, cl. 2 of the Constitution confers
upon the House the power "to determine the Rules of its
Proceedings." This textual commitment of the issue to the
House would oust the Court's jurisdiction, even if such ju-
risdiction were not more explicitly foreclosed by the
Speech and Debate Clause. Baker v. Carr, 369 U.S. 186, 217
(1962); see also Winpisinger v. Watson, 202 U.S. App. D.C.
133, 628 F. 2d 133 (1980). [Id.]

On October 28, 1981, the plaintiffs filed a notice of appeal of Judge Oberdorfer's decision to the U.S. Court of Appeals for the District of Columbia Circuit. [No. 81-2150]

On December 8, 1981, the plaintiffs filed their brief in the appeals court, arguing that the lower court decision should be re

versed because: (1) the immunity afforded by the Speech or Debate Clause did not preclude judicial examination into the dilution of their constitutional rights as voters and Members of Congress; and (2) the rules of the House did not preclude judicial review to determine if such rules were in compliance with the Constitution or in violation of fundamental law.

In general, the plaintiffs' brief reiterated their arguments in the district court and emphasized their contention that, where the integrity of the legislative process itself was challenged, the Speech or Debate Clause-designed to protect that integrity-should not be used to deny judicial review:

The purpose of the Speech and Debate Clause is to "protect the integrity of the legislative process." United States v. Brewster, 408 U.S. 501, 517 (1972). Here, Defendants seek to immunize conduct that strikes at the very heart of the principle of representative democracy-the very legislative process the Speech or Debate Clause is designed to protect. Defendants have mandated a "procedural" increase in their majority power through the mechanism of enhanced control of various Committees and subcommittees without the authority of due exercise of this country's electoral process.

To allow Defendants to twist the Speech or Debate Clause into a vehicle for protecting the political overreaching attacked by Plaintiffs' Complaint is to make a mockery of the Clause by inhibiting the free and fair function of that which it is designed to protect. This Court should hold that behavior Defendants seek to protect is outside the ambit of the Speech or Debate Clause. [Brief for Appellants, December 8, 1981, at 9 (footnote omitted)] The brief also argued, as the plaintiffs had done in the lower court, that the Democratic Caucus and the Steering and Policy Committee were "patently partisan political bodies with no legislative or oversight responsibility" [Id. at 7], and that the "mere existence of the caucus within the Legislative Branch, generic references, funding and staffing, are hardly determinative of legislative responsibility or a place in the sphere of legitimate legislative activity." [Id. at 6-7]

Finally, the brief again maintained that the House rules did not bar a review of whether the rules themselves violated fundamental rights. It stated once more the plaintiffs' position that to the extent that "House rules delegate the allocation of committee and subcommittee positions to the Democratic Caucus it is both an improper and unconstitutional delegation of legislative function." [Id. at 131

On January 7, 1982, the defendants filed their brief arguing that the district court correctly ruled that (1) the action was foreclosed by the Speech or Debate Clause; and (2) the question of committee assignments was textually committed to the House of Representatives. The brief also restated the defendants' contention that the plaintiffs lacked standing to maintain the action.

On the Speech or Debate point, the brief dismissed the plaintiffs' argument regarding the political nature of the Caucus as "simplis

tic" [Brief of Appellees, January 7, 1982, at 10], and the argument regarding the timing of the defendants' actions (i.e., prior to the beginning of the 97th Congress) as "irrelevant." [Id. at 14] On the political question point, the brief noted that:

Appellants' theory that the Caucus acted ultra vires in De-
cember 1980 lacks any parliamentary or legal support and
is wholly inconsistent with prevailing House practice, and
the egregious and tortured misreading of applicable House
precedents by legislators themselves to buttress their
flawed cause of action only serves to emphasize the
wisdom of judicial abstention in this case. [Id. at 23]

On both these points, the defendants marshalled arguments virtually identical to those put forward in the lower court.

Finally, the defendants' brief criticized the district court for according the plaintiffs standing, terming that holding "irreconcilable" [Id. at 25] with the court's alternative conclusion that the case presented a nonjusticiable political question. The brief again argued that the injuries alleged in the complaint were speculative and remote, and raised the spectre of innumerable lawsuits if standing were granted on the basis of such flimsy allegations:

To accord standing in these circumstances to legislators who fail to obtain a majority on whatever basis would open the floodgates to litigation by disgruntled political factions and there would be no way for the courts to stem the tide. Majorities of legislators, whether they are within the caucus, within committee or formed elsewhere in the House, are constantly coalescing to produce a voting consensus on pending legislation in the House and to bottom standing on the assumption that prospects of shifts are remote would open all votes to judicial scrutiny. There are in the House a number of "legislative support organizations" or "caucuses", officially sanctioned, which are comprised of Members of the House which advance, through research, legislative drafting and the exchange of information the legislative objectives of particular regions, groups or delegations. E.g., Congressional Black Caucus, Congressional Steel Caucus, Environmental Study Conference, Congressional Rural Caucus, Northeast-Midwest Coalition Congressional Handbook, 97th Cong., 1st Sess. 152153 (1980). Under the District Court's analysis members of the Environmental Study Conference who were defeated on a program of amendments to the Clean Air Act to impose stricter standards on emissions of pollutants from steel plants by a voting coalition of the Congressional Steel Caucus and the Northeast-Midwest Coalition who met and agreed to defeat the amendments would have standing to challenge the vote in court by alleging that their constitu

8

8 Like the Democratic Caucus and the Republican Conference these groups are given office space, staff and access to other support services, including the Congressional Research Service of the Library of Congress, whose services are available by law only to Members, their staffs and committees. 2 U.S.C. § 166.

tional rights were infringed. Once embarked on the slip-
pery slope of judicial intrusion into legislative coalitions,
the courts would be awash in internecine political contests,
all without any demonstration that the alleged injury is
"fairly traceable" or causally connected to the defendant
legislator's acts.

[Id. at 29-30]

On January 22, 1982, the plaintiffs filed a reply brief which argued, inter alia, that the standing issue was not properly before the appeals court since the question had been decided by the lower court in the plaintiffs' favor and no cross-appeal was taken by the defendants. The brief also urged the appeals court to adopt a balancing test as a guide for this and future cases:

The limits on the immunity of a political caucus to decide
fundamental Constitutional issues without judicial review
must be declared. The requirement of balancing the rules
power of a House of Congress with Constitutional voting
rights of Members must be reviewed by the judicial
branch. Some instruction in the required review and the
relative weights to be balanced would be helpful to the
trial court. For the reasons outlined, appellants urge the
remand of this cause to the trial court with appropriate
instructions. [Reply Brief of Appellants, January 22, 1982,
at 16]

Status-The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit. Oral argument is scheduled for March 19, 1982.

The complete text of the October 8, 1981 memorandum of the district court is printed in the "Decisions" section of this report at page 652.

Williams v. Bush

[See page 105.]

VII. The Constitutionality of the Legislative Veto and the
Legislative Directive

Chadha v. Immigration and Naturalization Service

Nos. 80-2170, 80-2171, and 80-1832 (U.S. Supreme Court) Jagdish Rai Chadha, a native of Kenya, was lawfully admitted to the United States as a student in 1966. When his authorized period of stay expired in 1972, he was summoned by the Immigration and Naturalization Service ("INS") to show cause why he should not be deported pursuant to section 241(a)(9) of the Immigration and Nationality Act ("INA") (8 U.S.C. § 1251(a)(9)). A hearing was held before an immigration judge on January 11, 1974, at which Mr. Chadha requested a suspension of deportation pursuant to section 244(a)(1) of the INA (8 U.S.C. § 1254(a)(1)).

On June 25, 1974, the immigration judge issued his decision, ordering that the deportation be suspended pursuant to section 244(a)(1).

Section 244(a)(1) provides that suspensions may be granted when an alien: (1) has been physically present in the United States for at least 7 years immediately preceding his application; (2) is of good moral character; and (3) would suffer extreme hardship if deported. (Although this authority is granted to the Attorney General, it has been delegated to "immigration judges," with an appeal to the Board of Immigration Appeals.)

Once the decision to suspend deportation is made, notice of the action is transmitted to Congress with a detailed explanation and justification for the decision. The suspension does not become effective until the close of the session of Congress following the one in which the decision is transmitted, and then only if during both sessions neither House has passed a simple resolution disapproving the decision, pursuant to section 244(c)(2) of the INA.

Mr. Chadha and five aliens whose deportation had been suspended by immigration judges lost their suspensions when on December 12, 1975, the House of Representatives passed House Resolution 926 (95th Cong., 1st Sess. (1975)).

On August 4, 1976, the immigration judge ordered Mr. Chadha deported pursuant to the House resolution. The Board of Immigration Appeals affirmed the order on February 11, 1977.

Mr. Chadha filed a petition for review of the deportation order with the U.S. Court of Appeals for the Ninth Circuit on July 18, 1977. The filing of the petition automatically stayed his deportation.

The petition challenged the constitutionality of the one-house veto as contained in IÑA section 244(c)(2). It argued that neither the constitutional provisions granting Congress the power to regulate immigration nor the Necessary and Proper Clause of the Constitution empowered Congress to contravene other constitutional provisions, and it asserted that the one-house veto did this in three ways. First, section 244(c)(2) violated the separation of powers doctrine. The petitioner claimed that the constitutional history of this doctrine demonstrated that one branch cannot perform the func tions or control the performance of another, and that since section 244(c)(2) allowed a single house of Congress to perform nonlegislative functions and control the actions of an executive agency, was unconstitutional.

it

Next, Mr. Chadha argued, section 244(c)(2) deprived the Presi dent of the opportunity to exercise his veto power under Article I, Section 7. The Framers of the Constitution, said Mr. Chadha, intended that a single executive would be given the opportunity to veto every Congressional action having the effect of law. Thus, since section 244(c)(2) was not subject to Presidential veto, it was unconstitutional.

Finally, Mr. Chadha claimed that the one-house veto provision violated the requirement of a bicameral legislature. According to Mr. Chadha, the Framers of the Constitution intended that every power of the legislative branch not expressly granted to a single house would be exercised by both concurrently. Therefore, since section 244(c)(2) allowed a single house to make law without the concurrence of the other, it was unconstitutional.

On November 4, 1977, INS filed a brief in which it concurred with Mr. Chadha's contention that section 244(c)(2) was unconstitu