notice and comment requirements for "rulemaking." 5 U.S.C.A. § 553(b, c).

[427] 12. War and National Emergency

38

Federal Regulatory Commission was not entitled to ignore section of Administrative Procedure Act governing notice and comment requirements for "rulemaking" where no emergency existed. 5 U.S.C.A. § 553(b).

13. Constitutional Law 50, 58 Gas 2

Single-house veto provision of Natural Gas Policy Act of 1978 unconstitutionally prvented President from exercising his veto power, permitted legislative action by only one house of Congress and contravened separation of powers principle by authorizing legislature to share powers properly exercisable by other two branches. Natural Gas Policy Act of 1978, § 202(c), 15 U.S.C.A. § 3342(c); U.S.C.A.Const.Art. 1, §§ 1 et seq., 7; Art. 2, § 1 et seq., Art. 3, § 1 et

Doctrine of undue delegation prohibits standardless delegation of powers from Congress to executive or administrative agencies.

15. Constitutional Law 46(1)

Where House of Representatives in fact exercised one-house veto power conferred by Natural Gas Policy Act of 1978, the Court of Appeals for the District of Columbia Circuit was presented with concrete case in which to adjudicate constitutionality of one-house veto. Natural Gas Policy Act of 1978, § 202(c), 15 U.S.C.A. § 3342(c); U.S.C.A.Const.Art. 3, § let seq.

Political question considerations lead to three inquiries: whether issue involves resolution of questions committed by text of Constitution to coordinate branch of government, whether resolution of question demands that court move beyond areas of judicial expertise and whether prudential considerations counsel against judicial intervention. U.S.C.A.Const. Art. 3, § 1 et seq.

Article I, section 7, clause 3 of United States Constitution was intended to prevent Congress from subverting presentation requirement by merely restyling nature of its action as something other than "bill." U.S.C.A.Const.Art. 1, § 7, cls. 2,3.

18. Statutes 26

No special nonjudicial expertise is needed to determine applicability of constitutional provisions governing presentation of legislative action to President. U.S.CA.Const.Art. 1, § 7, cls. 2,3.

19. War and National Emergency 38

In action contesting one-house veto by House of Representatives of "incremental pricing" program ruling of Federal Energy Regulatory Commission pursuant to Natural Gas Policy Act of 1978,

whether there was "real dispute" over policy choice of executive not to implement such rule was irrelevant; critical dispute was whether procedure by which such choice was made was constitutional. Natural Gas Policy Act of 1978, § 202(c), 15 U.S.C.A. § 3342(c).

20. Constitutional Law 70.1(3)

Even if there were long history of use of one-house legislative veto, it would not automatically follow that courts would refuse to intervene to determine constitutionality of such legislative review device.

Where historical record showed that dispute as to constitutionality of one-house veto was neither new nor temporary, but rather represented clear disagreement between political branches as to meaning of Constitution, judicial resolution was appropriate.

Necessary and proper clause does not override other provisions of Constitution. U.S.C.A.Const.Art. 1, § 8, cl. 18.

Necessary and proper clause does not authorize Congress to exercise power in any way it deems convenient; fact that power is clearly committed to Congress does not [428] sustain unconstitutional form in exercise of such power. U.S.C.A.Const. Art. 1, § 8, cl. 18.

Necessary and proper clause is properly read as means of making exercise of powers by various branches effective, not as means of shifting powers between branches of government. U.S.C.A.Const. Art. 1, § 8, cl. 18.

Second half of necessary and proper clause no more empowers Congress to contravene constitutional requirements than does first half. U.S.C.A.Const.Art. 1, § 8, cl. 18.

26. Administrative Law and Procedure 387

Congressional disapproval of final executive agency rules must be conducted in accordance with requirements of Constitution provision governing bicameral passage of legislation.

U.S.C.A.Const.Art. 1, § 7.

27. Statutes 23, 26

Not every action taken by Congress automatically must receive concurrence of both houses and be presented to President for approval. U.S.C.A.Const.Art. 1, § 7, cl. 3.

28. Administrative Law and Procedure 386

Exceptions to constitutional provision governing bicameral consideration of actions are narrow and provide no support for finding

ment of Justice would defend only categories (E) and (F) as congressional records. Indeed, until the date on which the Department officially made known its position, it could be argued that the Clerk's interests were "adequately represented by existing parties"-a bar to invocation of Rule 24(a)(2)... [Id. at 4]

The Clerk's interest in the action was also "substantial," according to the General Counsel, because the plaintiff was seeking records generated by a Congressional committee during the course of a legislative investigation, and the Clerk was the legal custodian of House records. Further, the memorandum continued:

The interest of the Clerk is "substantial" in another regard: he is uniquely capable, among the existing parties, of addressing issues which the court must consider in deciding whether these records are exempt from disclosure under FOIA, inter alia, applicability of the "constitutional protection of the legislative process under the Speech or Debate Clause, art. I, § 6, cl. 1." Holy Spirit Ass'n. v. CIA, [636 F.2d 838, 843] [Id. at 5]

Finally, the General Counsel contended, the Clerk's interests were not adequately represented by the present parties and the disposition of the action in his absence would impair or impede his ability to protect those interests. The memorandum reasoned:

In practical terms, only a legislative branch officer can fully protect his interests in this action. Recently, this district has recognized that a legislative branch employee may intervene in an action to prohibit a litigant from indirectly inquiring via deposition of third parties, into their performance of legislative acts. In William P. Tavoulareas, et al. v. The Washington Post Co., et al., Civ. Action No. 80-3032 and William P. Tavoulareas v. Philip Piro, Action No. 80-2387 (issued Sept. 10, 1981) (Gasch, J.), the Court granted a motion to intervene by congressional employees for the purpose of raising their speech or debate clause rights when the defamation plaintiff sought to depose a witness and source for the committee for which they were employed. As Judge Gasch held "The inescapable conclusion to be drawn . . . is that the speech or debate clause prohibits the use of judicial process to inquire of a third party about the legislative acts of a legislator or his aides." Memorandum at 21. (Exhibit 2) See also In Re Grand Jury Investigation, 587 F.2d 589 (3d Cir. 1978). [Id. at 6-7]

On January 29, 1982, the plaintiff filed a response to the Clerk's notion to intervene in the case, arguing that it should be denied because "the Clerk does not intend to confine his intervention to the 'agency records' issue but wishes to raise entirely new 'constiutional' issues." [Plaintiff's Response to Motion To Intervene By Clerk..., January 29, 1982, at 2] Pointing out that in his proposed answer the Clerk had raised as defenses a claim that release of the

documents at issue was barred by the Speech or Debate Clause 3 and a claim that release was also prohibited under the Publication Clause, the plaintiff contended that the Clerk was seeking "to go beyond the scope of issues available to intervenors." [Id. at 3] In his view, an intervenor could only be admitted to a proceeding with respect to pending issues, and could not enlarge the issues or change the nature of the action.

Furthermore, the plaintiff maintained, the Clerk's proposed intervention was not "timely" because he had waited nearly eight months before filing his motion despite the fact that he "knew all along that his constitutional claims . . . had not been raised.” [Id. at 4] Finally, the plaintiff asserted, allowing the Clerk to intervene at that point would severely prejudice him because it would further delay the expected release of the requested documents.

On February 2, 1982, the defendant FBI and Department of Justice filed a response to the Clerk's motion to intervene, stating that they had no objection to his permissive intervention although they believed he had no right to intervene under Rule 24(a).

On February 4, 1982, the Clerk's motion was argued and taken under advisement. On February 8, in a brief memorandum order, Judge Green granted the motion to intervene, finding it proper as a matter of right. She held that:

[T]he Clerk has applied timely, after the defendants altered its position with respect to raising legislative privileges; disposition of this action in the Clerk's absence may impair or impede his ability to protect the interests of the House of Representatives; and the Clerk's interests are not adequately represented by the present parties. [Memorandum Order, February 8, 1982, at 1]

Also on February 8, the Clerk formally filed his answer to the complaint, asserting as defenses that: (1) the action was barred by the Speech or Debate Clause; (2) the action was barred by the Publication Clause; and (3) the complaint failed to state a claim upon which relief could be granted.

On February 19, 1982, the plaintiff filed his initial interrogatories and requests for admissions on the Clerk.

Status-The case is pending in the U.S. District Court for the District of Columbia.

Allen v. Department of Defense

Civil Action No. 81-2543 (D.D.C.)

On October 20, 1981, Mark Allen, a private citizen researching the work of the House Select Committee on Assassinations ("Com mittee") filed suit in the U.S. District Court for the District of Co lumbia under the Freedom of Information Act (5 U.S.C. §§ 552, el seq.) ("FOIA") against the Department of Defense, the Central In telligence Agency ("CIA"), and Edmund L. Henshaw, Jr., the Clerk

3 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech Debate in either House [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. 1, § 6, cl. 1]

The Publication Clause of the U.S. Constitution provides that "Each House shall keep Journal of its Proceedings, and from time to time publish the same, excepting such Parts may in their Judgment require secrecy . . ." [art. I, § 5, cl. 3]

of the U.S. House of Representatives. The plaintiff sought copies of "all correspondence or any records of any communications" between the Defense Intelligence Agency ("DIA"), a component of the Defense Department, and the Committee, and the CIA and the Committee, relating to the Committee's investigation into the assassination of President John F. Kennedy. [Complaint, October 20, 1981, s 7, 19] The plaintiff also requested "all internal agency memoranda, all inter-agency memoranda, and any records of telephone conversations" relating to the investigation in the files of the DIA or CIA. [Id., ¶s 13, 23]

The plaintiff included the Clerk of the House as a defendant in the action on the ground that "as custodian of Congressional records, he has asserted that Congress retains control over records sought by Allen that are in possession of DOD and the CIA." [Id.,

[5]

On December 4, 1981, the Clerk filed a motion to dismiss the complaint on the grounds that the court lacked jurisdiction over the subject matter and personal jurisdiction over him, and because the complaint failed to state a claim on which relief could be granted. In an accompanying memorandum, the General Counsel to the Clerk summarized his position as follows:

It is the Clerk's position in this case that he cannot be named as a defendant in an action under the Freedom of Information Act, because the statute does not waive the sovereign immunity of the Congress as a branch of government, but rather specifically exempts the Congress from the Act. 5 U.S.C. § 551(1)(A) (1976). It is the further position of the Clerk that he is not subject to suit simply on the basis of his assertion of the Congressional exemption since the Clerk's performance of archival and custodial responsibilities, in connection with which the claim is asserted, delegated to him by House rules, are legislative in nature, and therefore immune under the Speech or Debate Clause, U.S. Const., art. I, § 6, cl. 1. [Memorandum of Points and Authorities in Support of Motion to Dismiss, December 4, 1981, at 2-3]

First addressing the Congressional exemption, the General Counel argued that the Clerk was immune from suit under the FOIA ecause he was an officer of Congress, a statutorily exempt (under U.S.C. § 551(1)(A)) entity. He noted that the Congressional exempion would be rendered meaningless "if it could be circumvented by imply naming officers, employees or functionaries of the legislaive branch." [Id. at 3, n. 3]

To preserve the express statutory exemption for Congress under he FOIA, the General Counsel asserted that the Clerk had to be ismissed as a party defendant, although he pointed out that it would be perfectly consistent with the statute to allow the Clerk to articipate as amicus curiae on the pure legal question of the scope f the exemption. The General Counsel reasoned:

The law of this Circuit implicitly recognizes that the claim of congressional exemption under the Act may be litigated without either the presence of the Congress or its