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2. Constitutional Law Om 68(1)

Federal Courts Ow12 Absence of ripeness, standing or presence of political question precludes court from further consideration of the case. U.S.C.A. Const.Art. 3, § 2, cl.1. 3. Federal Civil Procedure 103

In determining issues of standing, emphasis is directed to litigant and whether he is in position to have court decide merits of dispute or resolve particular issues presented by his complaint. U.S.C.A. Const.Art. 3, § 2, cl.1. 4. Federal Civil Procedure Ow103

To support standing, injury allegedly suffered by plaintiff must flow from putatively illegal conduct of defendant, i.e., there must be fairly traceable causal connection between claimed injury and challenged conduct. U.S.C.A.Const.Art. 3, § 2, cl.1. 5. Federal Civil Procedure Om 103

To establish standing, plaintiff must establish substantial likelihood that judicial relief requested will prevent or redress claimed injury. U.S.C.A.Const.Art. 3, § 2, cl.1. 6. Federal Civil Procedure Om 103

Federal Courts Ow797 When ruling on motion to dismiss for want of standing, both trial and reviewing courts must accept as true all material allegations of complaint, and must construe complaint in favor of complaining party. U.S.C.A.Const.Art. 3, § 2.cl.1. 7. Federal Civil Procedure 103

Individual legislators from state of Idaho were proper parties to raise question of validity of their legislature's act of rescinding its prior ratification of proposed "Equal Rights Amendment" to the Constitution of the United States and Congress' act in extending time period in which ratifications could be received, in view of their protected interest in vindicating their votes and causal connection between action of General Services Administration questioning validity of certification of Idaho's rescission and injury suffered by legislators. U.S.C.A.Const.Art. 3, § 2, cl. 1; Art. 5; Proposed Amend. 27; 1 U.S.C.A. 106b. 8. Constitutional Law Om69

Federal Courts Ow13 Federal courts do not render advisory opinions; for adjudication of constitutional issues, concrete legal issues, presented in actual cases, not abstractions, are requisite. U.S.C.A.Const.Art. 3, § 2.cl.1.

tion or adoption of amendments to the constitution." 144 By not mentioning presidential participation, Article V, which sets forth the procedure for amending the Constitution, makes clear that proposals for constitutional amendments are congressional actions to which the presentation requirement does not apply. 145 No constitutional provision does the same with regard to resolutions disapproving agency rules. The reasons for not presenting a proposed amendment to the President therefore are irrelevant. 146

[40] Thus, we agree with the main point of Congressional amicithat Article I, Section 7 does not apply rigidly to every single congressional activity-but we resist their implication that law or history supports a relaxed construction of the presentation and bicameralism requirements. Only with regard to constitutional amendments is there a Supreme Court ruling that the Presentment Clause does not apply, and that is clearly an exceptional case. The other alleged exceptions either do not represent substantive lawmaking, 147 as with initiation of agency investigations, or represent limited areas of Executive-Legislative accommodation in the exercise of special powers, an accommodation that nonetheless remains clouded by constitutional controversy. The question remaining, then, [461] is whether there is some reason why the decision of one house to veto a rule should be deemed different from the kind of legislative decisions the Constitution requires to be made by both houses and presented to the President. 2. Purposes of the lawmaking procedures

a. Presentation to the President [41] The primary reason for the presidential veto powers conferred by Article 1, Section 7 was to give the President a defensive

Dents).

145

1" Id at 381 n. "a" (Chase, J.). See also id. (argument of the Attorney General) ("[T]he case of amendments is evidently a substantive act, unconnected with the ordinary business of legislation, and not within the policy or terms of investing the president with a qualified negative on the acts and resolutions of congress.").

14% There are other express constitutional exceptions to one or both requirements of Article I, Section 7. See U.S. Const. art. I, § 2, cl. 5 (House has "sole Power of Impeachment); Id. art. 183, d 6 (Senate has "sole Power to try all Impeachments”); id. art. I, § 5, cl. 1 (“Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members'); Id. art. I, § 5, d 2 ("Each House may determine the Rules of its Proceedings, punish its Members for disorder

Behaviour, and with the Concurrence of two thirds, expel a Member”); Id. art. II, 82, cl. 2 Senate has power to concur in treaties and give advice and consent to presidential appoint

Congressional amici assert that “actions of the House accord with the Presentation Clause when they draw their validity from a larger procedure: for legislative review, the enactment of the original legislation delegating authority; for constitutional amendments, the process of state ratification.” Brief for Congressional Amici at 60-61. This proposed test makes no sense. A conTessional proposal for a constitutional amendment draws its validity from the Constitution, not the provess of state ratification. As Justice Chase said, the President simply has not formal role in the process of proposing and ratifying constitutional amendments. Furthermore, we disagree that the delegation of veto authority in the original legislation is sufficient to comply with requirements of the Presentment Clause. See pp. 468–469 infra. 147 In Atkins the majority noted that many policy choices” do not require adherence to Article 1, Section 7: decisions "not to introduce a bill, or not to vote on a bill once introduced," or committee decisions "which have great policy significance,” or individual decisions to make comdents which "can often result in changed policies, not only throughout the Federal Govern. dent, but in the private sector.” Atkins, 566 F. 2d at 1062 & n. 24. These statements are of course true, but they prove only the obvious, and indeed trivial, point that not every word uttered or action taken within a Congress of 535 members must receive the concurrence of both houses and be presented to the President. None of these actions purport to have the force of law, and they thus are irrelevant to the question whether adherence to Article I, Section 7 is required when Congress, or one house thereof, formally adopts a resolution of disapproval which clearly does affect the substantive law.

weapon against legislative intrusions on the powers of the Executive. The importance of this concern was emphasized by Alexander Hamilton in The Federalist:

The propensity of the legislative department to intrude upon the rights and to absorb the powers of the other de partments has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the Executive upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. And in the

ne mode or the other the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectu

al power of self-defense. 148 This concern is reflected in the Convention debates, which centered largely on whether the veto should be absolute or qualified and whether the Judiciary should share the veto power with the Execu

[42, 43] In addition, however, the value of a check against ill-advised legislation was recognized and urged as an important justification for the negative. 150 Hamilton, af-[462]ter discussing the veto as a means of protecting presidential authority, wrote:

tive. 149

148 The Federalist No. 73, at 489-90 (P. Ford ed. 1898) (A. Hamilton).

149 See, e.g., 1 M. Farrand, supra note 128, at 97-104, 138-40, 144; 2 M. Farrand, supre, at 7380, 301-02, 304. See generally Watson, supra note 118, at 1044-48.

150 Although the debates indicate that use of a negative as a means of protecting the Execu tive and Judiciary from legislative encroachment was the primary concern, the veto's potential ly more general use was clearly contemplated. See, e.g., 1 M Farrand, supra note 128, at 97-9: ("Mr. Gerry doubts whether the Judiciary ought to form a part of (the proposed Council of Revi sion), as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. ... It was quite foreign from the nature of ye. office to make them judges of the policy of public meas ures."); id. at 104 (“Mr. Gerry observed that a power of suspending might do all the mischie dreaded from the negative of useful laws; without answering the salutary purpose of checking unjust or unwise ones."); id. at 139 (Mr. Madison observed that “whether the object of the revi sionary power was to restrain the Legislature from encroaching on the other co-ordinate Depart ments, or on the rights of the people at large; or from passing laws unwise in their principle, o incorrect in their form, the utility of annexing the wisdom and weight of the Judiciary to the Executive seemed uncontestable'); 2 M. Farrand, supra at 73 (Mr. Wilson stated that “thi power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be danger ous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an oppor tunity of taking notice of these characters of a law, and of counteracting, by the weight of thei opinions the improper views of the Legislature."); id. ("Mr. Ghorum did not see the advantage a employing the Judges in this way. As Judges they are not presumed to possess any peculia knowledge of the mere policy of public measures. : : . He thought it would be best to let th Executive alone be responsible."); id. at 74 (Mr. Madison said combining the Judiciary with th Executive in the Revisionary power "would moreover be useful to the Community at large as a

Continued

constitutional article governing ratification of constitutional amendments. U.S.C.A.Const.Art. 5. 24. Constitutional Law Ow10

Once state legislature has forwarded official certificate to Congress of their action on proposed constitutional amendment, notice is conclusive upon Congress and courts as to both truthfulness of statement it contains and propriety of procedure by which is was promulgated. U.S.C.A.Const.Art. 5; 1 U.S.C.A. § 106b. 25. Constitutional Law Om10

Ratification by Idaho of proposed "Equal Rights Amendment” was properly rescinded and such prior ratification was void, as was ratification of any other state that had rescinded its ratification. U.S.C.A.Const.Art. 5; Proposed Amend. 27. 26. Constitutional Law Om10

While Congress is not required to set the time period within which proposed constitutional amendment must be ratified, once having fixed time limitation for ratification of constitutional amendment, Congress cannot alter it. U.S.C.A.Const.Art. 5. 27. Constitutional Law Om10

Congress' attempted extension of time for ratification of proposed "Equal Rights Amendment” to United States Constitution was null and void, where extension resolution was enacted by simple majority, in violation of requirement that Congress act by two-thirds of both houses when exercising its Article

powers. U.S.C.A.Const.Art. 5; Proposed Amend. 27. 28. Constitutional Law Om 10

Congress, when acting as amending body under Article V of the Constitution may, by two-thirds vote of both houses, propose amendment and mode of ratification, but Congress has no power to propose either amendment or mode of ratification except two-thirds vote of both houses. U.S.C.A.Const.Art. 5. 29. Injunction Owl

Courts' granting or denying of injunction in a particular case is governed by those fundamental and established principles by which courts of equity are guided and influenced in their judicial action and in administration of relief. 30. Injunction 5

Mandatory injunction is viewed as exceptional remedy and thus not regarded with judicial favor; if court finds that its application is called for, it should be used with caution and only in cases of great necessity. 31. Injunction Om 22

Having ruled that Idaho's rescission of ratification of proposed "Equal Rights Amendment” was valid and that Congress' attempted extension of time for ratification was null and void, District Court would not grant plaintiffs' request for order directing Ad

V

since then the veto has been used predominantly to disapprove leg. islative policy. Though there were isolated attempts to strip the President of power to exercise policy vetoes, these never were seriously debated, 157 and by and large such vetoes have been popular with the public. 158 The Supreme Court has several times stated that the Presentment Clause permits the President to veto legislative decisions he considers unwise. 159

In sum, there simply can be no serious argument today that it is unconstitutional for the President to use a veto to further his policy views. That this purpose was originally considered secondary makes it no less entitled to consideration. And that there was limited controversy over the purpose's legitmacy is far outweighed by the consistent practice for 150 years that policy vetoes are the rule defensive vetoes the exception. It makes no sense to argue that the primary and undeniably legitimate use of a constitutional power may be dropped from consideration entirely when deciding whether that provision is applicable to a new situation. 160 To hold that the presidential veto power does not have a policy purpose in the legis lative review context would logically require that the same holding be applied to all legislation, a result that would alter the balance of Executive-Legislative power so radically that no court could con ceive of adopting it. In construcing the validity of the failure to present the disapproval resolution to the President, therefore, we must consider both the effect on the President's ability to protect his authority from encroachment and the effect on his ability to check unwise legislation. 161

157 See E. Corwin, supra note 154, at 279 (failed attempts to amend the Constitution to stri President of veto power); Black, supra note 153, at 91 (attempt to impeach Presidet Tyler fo misuse of veto power).

158 See H. Höckett, The Constitutional History of the United States 1826-1876, at 84-85 (1939 Black, supra note 153, at 91 (citing W. Binkley, President and Congress 97-98 (1947)).

159 See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587, 72 S.CT. 863, 866, L.ED. 1153 (1952) ("The Constitution limits (the President's) functions in the lawmaking proces to the recommending of laws he thinks wise and the vetoing of laws he thinks bad."); The Pocke Veto Case, 279 U.S. 655, 678, 49 S.CT. 463, 466, 73 L.ED. 894 (1929) ("And it is just as essential part of the constitutional provisions, guarding against ill-considered an unwise legislation, tha the President, on his part, should have the full time allowed him for determining whether h should approve or disapprove a bill, and if disapproved, for adequately formulating the objec tions that should be considered by Congress, as it is that Congress, on its part, should have an opportunity to re-pass the bill over his objections.").

160 It may be true that the original understanding was that "the veto would be used onl rarely, and certainly not as a means of systematic policy control over the legislative branch, Black, supra note 153, at 90, but this is because of the belief that the President would not fee secure enough to exercise the veto frequently, not because of any general opposition to polic vetoes. In any event, it makes no sense to conclude that since the veto power became more pow erful than expected, it should not be applied to congressional disapproval resolutions. This con fuses two inquiries: (1) whether the veto power should be limited because its use has exceede original expectations, and (2) whether a disapproval resolution is sufficiently like those congres sional actions to which the Presentment Clause, whatever its scope, applies, so that the resolu tion should be presented to the President. It is noteworthy that Professor Black concludes fron his analysis not that courts should seek to limit the power of the veto, but that Congress shoul use concurrent resolutions, which do not have the force of law, to express its policy views wher those views otherwise are effectively blocked by the existence of the presidential veto. See id a 99-101.

161 Accord Atkins, 556 F.2d at 1065. We note that the constitutional analysis of the need fo presentation of disapproval resolutions does not depend on whether the resolution is simp! (one-house) or concurrent, even though the Presentment Clause states that only actions of boi houses need be presented. As one commentator has noted, "It verges on irrationality to main tain that action by concurrent resolution, whereby Congress is at least held in check by its ow structure, is invalid because the veto clause so states, but that the invalidity of a simple resolu tion, wherein a single House acts without check, is more in doubt." Watson, supra note 118, a 1066 n. 428.

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