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ment expire in seven years, much less a right that no future Congress would be free to change.” [Id. at 17] NOW continued: “To suppose that this principle loses its hold just because Congress is exercising Article V powers is to invest congressional action pursuant to Article V with a finality that not even fully ratified constitutional amendments possess-for even they can be unmade.” (Id.] On the contrary, said NOW, Article I, section 8 of the Constitution empowers Congress to “make all laws which shall be necessary and proper for carrying into Execution” both the specific legislative powers granted to Congress elsewhere in Article I and "all other Powers vested by this Constitution in the Government,” and there fore directly authorized Congress, in conjunction with Article V, to pass the extension.
Second, NOW argued, the decision as to whether to give effect to state rejections or rescissions of a proposed amendment was also a matter committed to Congress as part of its supervision of the ratification process and therefore was a nonjusticiable political question. Again, NOW cited the Coleman and Dillon cases to support its contention. The organization rejected the district court's reasoning that the state legislature was a more appropriate body than Congress to determine local sentiment and thus allowing it to rescind would "better promote the democratic ideal.” In this regard, NOW stated:
With all respect that analysis wholly misses the point. Even if each state legislature may "determine for itself" the "means [by which it] shall decide to consent or not to consent” on a particular occasion, Dyer v. Blair, supra, 390 F. Supp. at 1307, this means that a state wishing to transmit the latest “picture of the people's will” might be free, for instance, to take several tentative votes, or to defer any official vote until the final year, or to delay its decisive vote until other states have acted on the matter. But it is not even possible for each of fifty states to "determine for itself" the approach to be followed in deciding whether a combined total of thirty-eight states have filed timely consents to a given measure.
The choice among
competing approaches to the “mode of ratification”-and, indeed, even the choice of whether to settle upon a specific approach at the start of the process for any given amendment or instead to leave the matter open until thirty-eight consents are on record and a judgment of timeliness is being made-cannot be left simultaneously to each of the several states but must, as a matter of simple logic, be made by a single, and thus a national, authority. The most that might be left for decision by the several states acting separately is the internal question of what steps must occur for that state to register a vote of “yes” or “no”. But how a series of separate state votes is to be accumulated could not be left to the states to decide separately, given the lack of any guarantee that all would reach the same decision, lest the amendment process be reduced to a game with no rules and no umpire-or,
more accurately, to fifty separate games that are not part
ted)] In any event, NOW maintained, even if the rescission issue were deemed justificiable, the court would have to rule, particularly given historical precedent, that either "such rescissions are null and void, or at least that Congress need give them no more weight than circumstances call for." (Id. at 25]
Finally, NOW argued, as it and the defendant had repeatedly done in the lower court, that the plaintiffs lacked standing and the case was not ripe for adjudication. On the standing point, NOW dismissed the "vote impairment" theory of the district court as without judicial precedent, and noted further that, even accepting the theory, no vote had been impaired because the amendment had not been ratified. On the ripeness issue, NOW contended that the plaintiffs were simply seeking an advisory opinion on a future step in the ratification process that might never be reached.
Also on January 8, 1982, NOW filed motions to expedite both its direct appeal and consideration of its petition for a writ of certiorari. These motions essentially argued that only expedited review could vindicate the integrity of the amendment process and permit a "final period of unobstructed deliberation” regarding the proposed amendment. NOW as well suggested a briefing schedule.
On January 11, 1982, Speaker of the House Thomas P. O'Neill, Jr. and House Judiciary Committee Chairman Peter W. Rodino, Jr. filed a brief amici curiae in support of NOW's appeal and petition for certiorari and the motions for expedited treatment. The amici asserted that they had a particular interest in the case because it concerned "the constitutional prerogatives of the Legislative branch, and because if allowed to stand the decision will adversely affect the exercise by Congress of the amending power in future cases." (Brief of the Honorable Thomas P. O'Neill, Jr. . . ., January 11, 1982, at 2] The amici's brief made the following arguments: (1) expedited consideration of the case was of the utmost importance because the negative character of the lower court decision was having "a major chilling effect upon . . . Congressionally mandated debate” on the proposed amendment (Id. at 4]; (2) the issues of extension and rescission presented nonjusticiable political questions under the doctrine of Coleman v. Miller and other Supreme Court cases, which recognized that “Congress has exclusive dominion over questions concerning the appropriate time period for ratifications, as well as the efficacy of rescissions” (Id. at 8-9); and (3) even if the issues in the case were deemed justiciable, Congress acted properly in extending the time for ratification and could not be compelled to give effect to a rescission. The amici also argued that it was not unlawful for Congress to pass the extension resolution by a simple majority rather than a two-thirds vote. “Both Article V and the Constitution as a whole expressly specify those highly unusual instances where a supermajority vote is required. The crucial step of proposing an amendment is so specified. But the proposal of the mode of ratification and the setting of ratification deadlines are not." [Id. at 13]
On January 14, 1982, the defendant GSA Administrator (now Gerald P. Carmen) filed a jurisdictional statement in his direct appeal to the Supreme Court [No. 81-1312-ADX). The defendant/ appellant also filed a petition for a writ of certiorari before judgment (No. 81-1313-CFX] from his pending appeal in the Ninth Circuit, where the case had been docketed (No. 82-3016] but no action taken.
In his jurisdictional statement, the GSA Administrator, like NOW and the amici, argued that the questions involved in the case were substantial enough to warrant Supreme Court review. However, unlike NOW and the amici, the defendant contended that the Court should not, at that point, determine the validity of the extension or the effect of any rescissions:
Indeed, in our view, judicial resolution of these issues by the district court was inappropriate at this time. By June 30, 1982—the end of the extended ratification period specified by Congress—these issues may be moot, or their context may have changed in significant ways. The parties' interests in obtaining a resolution of the issues before that time are not sufficient to warrant judicial intervention.
[Jurisdictional Statement, January 14, 1982, at 7] Consequently, the defendant concluded that the Court should not probable jurisdiction in the case but should not schedule briefin on issues other than ripeness until after June 30, 1982, at whic time it might be appropriate to simply vacate the judgment of th district court as moot.
According to the GSA Administrator, only the ripeness issu itself was ripe for review by the Supreme Court. He explained:
By June 30, 1982, if three additional states have not ratified the proposed Amendment, all the issues presented in this case will be moot. If 38 states have ratified and not rescinded their ratifications, the rescission question will be moot. The ripeness doctrine is designed precisely to "avoid the decision of an issue which may be mooted before the decision is anything but advisory in character." Dyer v. Blair, 390 F. Supp. 1287, 1290 (N.D. II. 1974) (three-judge court). Even if none of the issues presented here becomes moot, the proposed Amendment will, by its own terms, not become effective for two years after ratification; this is ample time in which to resolve any justiciable issues concerning its validity. To decide these issues now would "ignore[this Court's oft-repeated admonition that the constitutionality of Congress' actions) ought not to be decided except in an actual factual setting that makes such a decision necessary” (Hodel v. Virginia Surface Mining & Reclamation Association, No. 79-1538 (June 15, 1981), slip op. 28), and would break with the "considered practice not to decide * contingent questions
or to decide any constitutional question in advance of the necessity for its decision” (Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945). (Id. at
The defendant suggested, therefore, that the Court vacate the district court's judgment on grounds of lack of ripeness, without further briefing or oral argument.
On January 14, 1982, the GSA Administrator also filed responses to NOW's motions to expedite, arguing that while expedited consideration of the jurisdictional statements and petitions for certiorari was appropriate, expedited briefing and oral argument was “inadvisable.” As reasons he cited: (1) the difficult and complex nature of the issues, which required more time to be adequately addressed; (2) the lack of necessity for expedition in view of the possibility of subsequent mootness and the fact that no legal barrier had been established to impede further state ratifications; and (3) the lack of ripeness. On the last point, the GSA Administrator maintained that the Supreme Court should not compound the district court's error of intruding prematurely into the amendment process by itself ruling on the merits in “an essentially advisory context."
Also on January 14, 1982, the plaintiffs/appellees filed their own motions to expedite in Nos. 81-1282-ADX and 81-1283-CFX) and a response to NOW's suggested briefing schedule. While, in view of the fundamental constitutional issues involved in the case, the plaintiffs joined NOW in requesting the Supreme Court to promptly note jurisdiction and to set an expedited briefing and argument schedule, they sought somewhat more time for the submission of briefs.
On January 15, 1982, the Court invited the parties to respond to the suggestions of the Solicitor General (in the GSA Administrator's jurisdictional statement) that the Court vacate the judgment of the district court on the ground of lack of ripeness, without further briefing or oral argument.
On January 19, 1982, the amici, Speaker O'Neill and Chairman Rodino, filed a response strongly urging a disposition of the case which would summarily vacate the judgment of the district court and direct the dismissal of the complaint for lack of ripeness. The amici agreed with NOW and GSA that the court below had overstepped its bounds by deciding a case that was not ripe for adjudication, and also that the question of ripeness was itself ripe for review at that time. While the amici argued that the Court should summarily vacate and dismiss, thereby returning the case to the status quo ante and eliminating the impact of the district court's opinion, they contended that if the Court disagreed it should alternatively summarily reverse the lower court based on Coleman v. Miller, or grant the motions for an expedited hearing. The amici specifically disputed the implication in the GSA Administrator's jurisdictional statement that the case presented difficult constitutional questions not previously resolved by the Supreme Court:
Indeed, amici cannot even understand that suggestion. Less than four years ago the Department of Justice assured Congress that precisely the opposite was true-telling the House Committee on the Judiciary that Coleman, together with Dillon v. Gloss, 256 U.S. 368 (1921), were “dispositive" in establishing both the permissibility of extensions and the inefficacy of rescissions. Quoted in H.R. Rep. No. 95–1405, at 15, 9-10. The Department told Judge
Callister precisely the same thing in defending the case below. Memorandum of Law in Support of Defendant's Motion to Dismiss, filed Sept. 5, 1979. For the reasons set out in their Brief Amici Curiae, amici contend that the Department of Justice was right on both of those earlier occasions, and that this case is easily controlled by the precedents of this Court. Accordingly, summary and/or expedited treatment is entirely appropriate. (Response of the Honorable Thomas P. O'Neill, Jr. . . ., January 19, 1982, at 6
7] On January 20, 1982, NOW filed its response to the suggestion of summary disposition, also supporting action by the Supreme Court summarily to vacate the district court judgment for lack of ripe ness and to direct dismissal of the complaint. NOW noted, however
, that it continued to believe that the alternative of plenary, but expeditious, review and reversal of the lower court decision, on justiciability grounds and the merits, would not entail undue difficulty.
Also on January 20, 1982, the plaintiffs/appellees filed their response to the suggestion that the district court judgment be vacated. In their view, "summary vacation on the issue of ripeness would not be proper in light of the parties and the issues presented by the case and would, in fact, be a ruling on the 'antecedent' issue of whether Congress has plenary power and control over the amending process under Article V, which ruling would, in turn, decide many of the fundamental constitutional issues and policies presented by this case." (Response of Appellees, State of Idaho and State of Arizona . . . , January 20, 1982, at 2-3 (footnote omitted The plaintiffs urged the Court to assign the case for expedited briefing and oral argument in line with their filing of January 14.
On January 25, 1982, the Supreme Court issued orders: (1) granting the motions to expedite consideration of the jurisdictional statements and petitions for certiorari: (2) denying the motions in all other respects, including the requests to expedite plenary consideration; (3) granting the petitions for certiorari before judgment; (4) postponing further consideration of the question of jurisdiction until hearing the case on the merits; (5) staying the judgment of the district court pending the sending down of the judgment of the Supreme Court; and (6) consolidating the various actions (i.e., Nos. 81-1282-ADX, 81-1283-CFX, 81-1312-ADX, and 81-1313-CFX). Numerous groups and individuals were also granted permission to file briefs as amici curiae. 2 (102 S.Ct. 1272]
Status- The case is pending in the U.S. Supreme Court.
The complete texts of the March 3, 1981 decision of the district court and the May 11, 1981 decision of the circuit court are printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981.
The complete text of the December 23, 1981 decision of the district court is printed in the “Decisions” section of this report at
2 Among those granted permission to file amicus briefs were: the AFL-CIO; Senator Jake Garn, et al., Joseph E. Brennan, Governor of Maine, et al; the American Bar Association, and ERAmerica.