C. The Necessary and Proper Clause

[22-25] Article I, Section 8, Clause 18 of the Constitution gives Congress power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Since McCulloch v. Maryland, 123 the Supreme Court has construed [455] this authorization to permit Congress to exercise broad legislative powers not expressly enumerated in the Constitution. Congressional amici urge that under this principle the legislative veto must be upheld as a modern technique necessary for preserving the flexibility of congressional action. The Court of Claims in Atkins adopted this argument:

In particular we note that the necessary and proper clause, which has sanctioned the massive delegation of legislative functions over the past century, provides a firm grounding for this veto. Congress plainly felt the need for this veto device, instead of relying solely on the power to override presidential recommendations by a full-fledged statute. In McCulloch's phrases, Congress exercised "its best judgment" in the selection of this measure and sought to "accommodate its legislation to circumstances." 124 Congressional amici conclude: "The Necessary and Proper Clause is the Constitution's expression that Congress must not be denied the flexible means needed to deal with exactly the kind of extraordinarily divisive issues resolved in the conference compromise that created § 202(c)." 125

cate all governmental power in minute detail, relied, we believe, on the expectation that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system." Id. at 127. They neglect to cite, however, the statement more relevant to the situation here: "Where the dispute consists of a clash of authority between two branches, however, judicial abstention does not lead to orderly resolution of the dispute." Id. at 126. Cf. Chadha, 634 F.2d at 419 ("It would stand the political question doctrine on its head to reuire the Judiciary to defer to another branch's determination that its acts do not violate the separation of powers principle.")

We also find it ironic that Congressional amici urge the political question doctrine so strongly upon us, given that a recent statute calling for congressional review of independent agency rulemaking specifically requests the courts to determine the statute's constitutionality as soon as possible:

(f(1) Any interested party may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this section. The district court immediately shall certify all questions of the constitutionality of this section to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.

(2) Notwithstanding any other provision of law, any decision on a matter certified under paragraph (1) shall be reviewable by appeal directly to the Supreme Court of the United States. Such appeal shall be brought not later than 20 days after the decision of the court of appeals.

(3) It shall be the duty of the court of appeals and of the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter certified under paragraph (1).

15 U.S.C. 57a-1(f) (West Supp. 1981) (FTC rulemaking). Congress' apparent desire to obtain an immediate ruling on the constitutionality of the FTC congressional veto contrasts sharply with its argument here that the issue is nonjustifiable because it is property resolved by the political branches.

123 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819). 124 556 F. 2d at 1071.

125 Brief for Congressional Amici at 37. We reject the notion that the "extraordinarily divisive issues" presented in this case provide some special justification for use of the veto here. See id.; Continued

human rights," which, plaintiffs contend, is the situation in El Salvador. A separate cause of action was originally stated under various provisions of international law (First Amended Complaint, Third Cause of Action), but plaintiffs have since stated that they recognize that there is no cause of action under international law, except as specifically implemented by Section 502B of the Foreign Assistance Act. Statement of Points and Authorities in Opposition to Defendants' Motion to Dismiss at 15-16.

Plaintiffs seek declaratory judgments that the actions of defendants have violated the above-described provisions of law, and a writ of mandamus and/or an injunction directing that defendants immediately withdraw all United States Armed Forces, weapons, and military equipment and aid from El Salvador and prohibiting any further aid of any nature.

Sixteen Senators and thirteen Members of Congress have moved to intervene as defendants. They claim that the case "raises vital issues implicating their right to exercise their Constitutional and legislative prerogatives according to the Constitution, traditional Congressional procedures and political custom." Motion for Leave to Intervene at 2. Applicant-intervenors review legislative activity in the House and Senate related to economic and military assistance to El Salvador, averring that their completed actions and future consideration of these matters as legislators could be impeded, frustrated, or negated by the disposition of this lawsuit. They contend that the subject of military assistance to El Salvador is properly committed to the Legislative and Executive Branches of government; that these two branches are now and have been engaged in the determination of American foreign policy toward El Salvador in accordance with the Constitution, statutory law and political custom; and that court consideration of the matter would improperly intrude into and interfere with that political process. Movants further claim that plaintiffs, who have so far been unable to gain the consensus of their colleagues on the proper policy toward El Salvador, are now attempting to implement those views by court injunction. Both plaintiffs and defendants oppose intervention.

Plaintiffs argue that applicant-intervenors misconstrue the issues in their complaint. They do not seek to implement any particular policy toward El Salvador, not to interfere with pending legislation in any way, but merely to enforce existing law, and to ensure that the political process takes places within the bounds of that law. A disposition in their favor, plaintiffs declare, could not possibly harm the applicants, but could only protect their power in relation to the Executive. They contend, therefore, that movants' purported interests in the action are either irrelevant to the case or are adequately represented by the named defendants, who have raised the political question doctrine and challenged plaintiffs' standing in a motion to dismiss.

Defendants oppose intervention on the ground that the interest asserted, namely protection the political process as the sole vehicle for the resolution of plaintiffs' claims, is identical to that which the defendants will represent.

The requirements for intervention as of right under Fed. R. Civ. P. 24(a) are as follows: 1. the application is timely; 2. an interest in

the subject matter of the action; 3. protection of that interest may be impaired by the disposition of the case; and 4. that interest is not adequately represented by an existing party. Natural Resources Defense Council v. Costle, 561 F.2d 904 (D.C. Cir. 1977); Neuss v. Camp, 385 F.2d 694 (D.C. Cir. 1967). There is no dispute that the application in this case is timely. Plaintiffs' contention that applicant-intervenors lack an interest in the subject matter of the action which may be impaired by disposition of the case does not withstand scrutiny. Plaintiffs' arguments assume, as we cannot do at this stage of the litigation, that the case does not present a political question, and that their interpretation of the law is correct, and its implementation would not improperly frustrate the politicial process currently underway. It is true that plaintiffs' complaint does not seek to implement any particular policy toward El Salvador, but merely to enforce already enacted laws. However, if applicants are correct that the imterpretation and implementation of the statutes in question are properly left solely to the political branches of government, their interests as legislator clearly could be harmed by a judicial interpretation and implementation of those statutes. Their decision to approve military aid to El Salvador through the appropriations process, without enforced compliance with the procedures described in the WPR, (which enactment they view as inapplicable to the situation in El Salvador, and in any case not selfexecuting in the manner contended by plaintiffs), and their judgment that the Foreign Assistance Act does not prohibit such aid, or is not self-executing, could be negated by the Court without the concurrence of a majority of their colleagues. To put it more concretely, if this Court ordered an end to military assistance to El Salvador due to non-compliance with the WPR and the Foreign Assistance Act as plaintiffs interpret them, applicants' votes supporting that assistance would be effectively nullified.

Applicants however fail to demonstrate inadequate representation. Although they argue that their interests in this matter could at some point diverge from those of the Executive defendants, they do not make a showing that those interests diverge in any way at this time. Regarding the motion to dismiss now pending before the Court, the interests and the legal theories of applicants and defendants are identical. Both share the concern in leaving the determination of these issues to the political process, and the legal theories that the case is a nonjusticiable political question and that plaintiffs lack standing to bring the suit. As the issues at this juncture are purely legal, there is no question of differing trial strategies. Where the applicants have precisely the same ultimate objective as an existing party, representation is presumed to be adequate. United States Postal Service v. Brennan, 579 F.2d 188 (2d Cir. 1978); Commonwealth of Virginia v. Westinghouse Electric Corp., 542 F.2d 214 (4th Cir. 1976). Applicants have not carried the burden, slight though it is, Trbovich v. United Mine Workers of America, 404 U.S. 528 (1972); Commonwealth of Pennsylvania v. Rizzo, 530 F.2d 501 (3rd Cir.), cert. denied, 426 U.S. 921 (1976), of demonstrating inadequate representation under these circumstances. Accordingly, intervention as of right is not appropriate at this stage of the litigation. Nonetheless, as applicants have pointed out, their interests and those of the Executive Branch may differ if and when the

merits of the suit are reached. There may be differences in their positions as to the interpretation of the WPR, its constitutionality, when and how and by whom it is triggered, and the responsibilities of the Executive thereunder. These differences, although speculative at this point and therefore not yet warranting intervention, may be addressed in a renewed motion for intervention if and when they arise.

Applicants have alternatively moved for permissive intervention under Rule 24(b). Permissive intervention may, at the court's discretion, be granted when an applicant's claim or defense and the main action have a question of law or fact in common. The principal consideration is permissive intervention is whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Also to be considered is whether the applicant will benefit from the intervention, and the applicant's probable contribution to the development and determination of the suit. United States Postal Service v. Brennan, supra. In this case, where applicants are adequately represented by existing parties, and would be unlikely to present any new questions or arguments regarding the motion to dismiss, the Court will not allow intervention to delay consideration of that motion. However, applicant-intervenors will be permitted to file amicus curiae briefs prior to oral argument on the motion to dismiss.

Accordingly, it is this 5th day of February, 1982, hereby

ORDERED, that applicant intervenors Senator Roger W. Jepsen, Senator Jesse Helms, Senator Paul Laxalt, Senator Strom Thurmond, Senator Robert Dole, Senator James McClure, Senator John G. Tower, Senator Steven Symms, Senator S. I. Hayakawa, Senator Jeremiah Denton, Senator Barry Goldwater, Senator Gordon Humphrey, Senator Orrin G. Hatch, Senator Paula Hawkins, Senator Don Nickles, Senator Dan Quayle, Congressman Robert K. Dornan, Congressman Richard Cheney, Congressman George Hansen, Congressman Eldon Rudd, Congressman Bob Livingston, Congressman Philip Crane, Congressman Larry McDonald, Congressman Daniel Crane, Congressman Jim Jeffries, Congressman John Rousselot, Congressman Bob Stump, Congressman Daniel Lungren, and Congressman Jack Fields' motion for leave to intervene be, and it hereby is denied without prejudice to later renewal at an appripriate time, and it is

FURTHER ORDERED that applicant-intervenors be designated as amici curiae, and it is

FURTHER ORDERED that applicant-intervenors may file briefs relevant to the pending motion to dismiss and provide copies to the parties no later than February 10, 1982, and it is

FURTHER ORDERED, that oral argument on the Defendants' Motion to Dismiss will be held February 12, 1982 at 10:00 a.m. Plaintiffs and defendants will each be afforded 45 minutes for argument.

JOYCE HENS GREEN, United States District Judge.

529 F. Supp. 1107 (1981)

THE STATE OF IDAHO, ET AL., PLAINTIFFS,

AND

CLAUDE L. OLIVER, ETC., ET AL., PLAINTIFFS-INTERVENORS,

V.

REAR ADMIRAL ROWLAND G. FREEMAN, III, ADMINISTRATOR OF GENERAL SERVICES ADMINISTRATION, DEFENDANT,

AND

NATIONAL ORGANIZATION For Women, ET AL., DEFENDANTS-
INTERVENORS

Civ. No. 79-1097.

United States District Court, D. Idaho.

December 23, 1981.

JUDGMENT STAYED JAN. 25, 1982. SEE 102 S.CT. 1272.

Action was brought seeking declaration that Idaho's act of rescinding its prior ratification of proposed "Equal Rights Amendment" to the Constitution of the United States was valid and effective, and compelled proper entry of Idaho's act of rescission, including return of prior certificate of ratification. On motion of General Services Administration to dismiss and parties' crossmotion for summary judgment, the District Court, Callister, Chief Judge, held that: (1) Idaho legislators were proper parties to bring the action; (2) matter was ripe for judicial resolution; (3) "political question" doctrine did not bar consideration of the case; (4) state has power and right to rescind [1108] prior ratification of proposed constitutional amendment at any time prior to unrescinded ratification by three-fourths of the United States properly certified to in General Services Administration; (5) ratification by Idaho of proposed amendment was properly rescinded and such prior ratification was void; (6) Congress's attempted extension of time for ratification of proposed amendment was null and void; and (7) in view of court's declarations, injunctive relief sought by plaintiffs was unnecessary and would be denied.

Ordered accordingly.

1. Federal Courts 12

Inquiry into justiciability involves both constitutional limitations. on federal court jurisdiction and prudential limitations on its exercise; in both dimensions, it is founded on concern about proper, and properly limited, role of courts in democratic society. U.S.C.A. Const. Art. 3, § 2, cl.1.