tion and have caused little, if any, confusion. For example, in the process of ratifying the twelfth amendment, a question arose as to the validity of New Hampshire's ratification.61 If New Hampshire's ratification would have been considered valid, they would have been the last state necessary for a three-fourths majority. Rather than proclaim the amendment part of the Constitution, the national government waited until another state ratified thus obviating the need for a resolution of the question. In the promulgation of the fifteenth amendment, two states changed their votes. 62 Resolutions were offered in Congress to resolve the questions of validity but the measures were buried in committee. The Secretary of State, who had the responsibility of counting the states' ratifications, withheld proclaiming the amendment part of the Constitution until sufficient votes were received so that a declaration could be made without the need of counting the disputed ratifications. A similar approach was taken in the nineteenth amendment. Again, two states changed their votes and again additional votes were accumulated in order to promulgate the amendment.63 Thus, uniformly where ratifications have been rescinded, the rescissions have been dignified by the national government by waiting and collecting additional ratifications to offset them. Parenthetically, no great confusion has been manifest. It seems clear from the statements of the founding fathers and from most courts in considering the amendment process that a ratification is linked to that great wellspring of legitimate constitutional power-the will of the people. The founding fathers were careful to make sure the Constitution was ratified by the consent of the people, and it follows that any amendment must again draw from that wellspring by securing a contemporaneous consensus before it can become a part of that original docu-[1150]ment. The states are the entity embodied with the power to speak for the people during the period in which the amendment is pending. To make a state's ratification binding with no right to rescind would give ratification a technical significance which would be clearly inappropriate considering that the Constitution through article V gives technical significance to a state's ratification at only one time-when threefourths of the states have acted to ratify. Until the technical threefourths has been reached, a rescission of a prior ratification is clearly a proper exercise of a state's power granted by the article V phrase "when ratified" especially when that act would give a truer picture of local sentiment regarding the proposed amendment. [23-25] Recognizing the validity of a state's power to rescind its prior ratification, the defendant challenges Idaho's rescission resolution arguing that it is procedurally faulty. Defendant maintains 61 The question that arose was regarding the actions of the Governor of New Hampshire in vetoing the resolution of that state's legislature to ratify the proposed amendment. Myers, The Process of Constitutional Amendment, Sen. Doc. No. 314, 76th Cong., 3d Sess. 34 (1940). 62 See discussion p. 1144, supra. 63 Leser v. Garnett, 258 U.S. 130, 42 S. Ct. 217, 66 L. Ed. 505 (1922), dealt with a challenge to the nineteenth amendment. The court wrote: The remaining contention is that the ratifying resolutions of Tennessee and of West Virginia are inoperative, because adopted in violation of the rules of legislative procedure prevailing in the respective States. The question raised may have been rendered immaterial by the fact that since the proclamation the legislatures of two other States-Connecticut and Vermont-have adopted resolutions of ratification. Id. at 137, 42 S. Ct. at 218. that in passing the House Concurrent Resolution 10, Idaho violated its own rules by adopting the resolution by less than the two-thirds majority used to ratify. Without elucidating on the defendant's contentions, the Court would indicate that under the holding of Dyer v. Blair, supra, the "State legislatures . . . have the power and the discretion to determine for themselves how they should discharge the responsibilities committed to them by the federal government. . . . Moreover . . . there is no federal objection to the state legislatures' independent determination of their own voting requirements." Id. at 1307. Thus, the states have complete discretion over the procedural requirements regarding the requisite majorities to act under its article V powers. This would be true whether the state is exercising its affirmative power of ratification or the negative function of rescission. Furthermore, once the state legislature has forwarded an official certificate of their action to Congress the notice is conclusive upon it and the courts as to both the truthfulness of the statements it contains and the propriety of the procedure by which it was promulgated. United States ex rel. Widenmann v. Colby, 265 F. 998 (D.C.Ct. of App. 1920); 64 Leser v. Garnett, 258 U.S. 130, 137, 42 S.Ct. 217, 218, 66 L.Ed. 505 (1922); 65 Chandler v. Wise, 307 U.S. 474, 59 S.Ct. 992, 83 L.Ed. 1407 (1939). Therefore, at this juncture it is not proper for the Court to review the procedure of the rescission resolution since proper certification has been made by the state to the national government. E. Extension The question whether it is a proper exercise of congressional authority under article V to alter a previously proposed time limitation for ratification, and if so by what majority, presents for the Court a question of constitutional interpretation of congressional authority, and an inquiry into the procedural aspects of exercising that power. Thus, the Court's inquiry is two-fold: First, does Congress under its power to "propose" the "Mode of Ratification" have the power to change its proposal once it has been made and sent to the state; second, if the initial proposal can be subsequently changed, may Congress act by less than a two-thirds majority. One related question [1151] that has been raised that should be dealt with at this time is whether or not a state's ratification resolution specifically acknowledging the ratification period set by Congress is impaired if the original time period is extended or whether it is a As was indicated in United States ex rel. Widenmann v. Colby, 265 F. 998 (D.C.Ct. of App. 1920) official notification received under 1 U.S.C. § 106(b) (then Section 205 of the Revised Statutes of the United States) is conclusive. It will be observed that by this section is (sic) was the duty of the Acting Secretary of State [now the Administrator of GSA], upon receiving official notice from three-fourths of the several states (Constitution, art. 5 (sic)) that the proposed amendment has been adopted, to issue his proclamation. He was not required, or authorized, to investigate and determine whether or not the notices stated the truth. To accept them as doing so, if in due form, was his duty. Id. at 999. In Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922), the Supreme Court -stated: As the legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so was conclusive upon him. Id. at 137, 42 S.Ct. at 218. "conditional" ratification arguably prohibited by the amendment process. To begin with, the actions of Congress in relation to a proposed amendment must be properly characterized in order to approach the questions presented. First, it must be recognized that Congress' power to participate in the amendment process stems solely from article V. As Justice Stevens noted, "the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution. . ." Dyer v. Blair, 390 F.Supp. 1291, 1303 (N.D.Il. 1975) (emphasis added). Thus Congress, outside of the authority granted by article V, has no power to act with regard to an amendment, i.e., it does not retain any of its traditional authority vested in it by article I. The power of Congress to set a time period in which ratification must be completed is derived from their function of setting the mode of ratification. See Dillon v. Gloss, 256, U.S. 368, 376, 41 S.Ct. 510, 513, 65 L.Ed. 994 (1921). The defendant in this action attempts to create a substance/procedure dichotomy by contending that since the restriction in this instance is part of the proposing resolution it is proper for reconsideration where if the time period were part of the amendment itself it would not be. The argument follows that a change of a substantive aspect of an amendment is clearly improper once it has been submitted to the states, but a change in the proposing resolution, on the other hand, does not change the essential nature of the amendment and thus is a matter of detail which Congress can change at will. The Supreme Court in Dillon v. Gloss, supra, had an opportunity to address this substance/procedure dichotomy when the eighteenth amendment was challenged on the grounds that the seven-year ratification period called for in Section 3 of that amendment was unconstitutional. While the Dillon court indicated that “[a]n examination of article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments", Id. at 373, 41 S.Ct. at 512, the court did not recognize the setting of the time limitation as being a function of Congress' power to propose amendments but instead indicated that [w]hether a definite period for ratification should be fixed Id. at 376, 41 S.Ct. at 513 (emphasis added). The court did not recognize a substance/procedure dichotomy and thus any authority to limit the time period for consideration must flow from the Čongress' power to set the mode of ratification. Accordingly, the Court's attention is drawn to a consideration of Congress' power to set and change the time period for ratification under its power to set the mode of ratification. The United States Supreme Court in United States v. Sprague, 282 U.S. 716, 51 S.Ct. 220, 75 L.Ed. 640 (1931) recognized that Congress has absolute discretion within its power to propose the mode of ratification to establish which of the two local entities will act as the spokesman for the people. The Supreme Court in the Dillon [7] PLF contends that it has (1) standing to sue on behalf of its "supporters" and (2) organizational standing on the basis of its own institutional injuries. PLF cites two cases in support of its first contention, both of which are distinguishable. In Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), the Court held that a non-membership organization, the Washington Apple Advertising Commission, had standing to represent Washington apple growers in an interstate commerce action against North Carolina. The Court's decision extending standing to an organization that did not have members in the tradional trade association sense was based on factors not here present. First, the Commission, for all practical purposes, performed the functions of a traditional trade association, thus "serving a specialized segment of the State's economic community which is the primary beneficiary of its activities, including prosecution of this kind of litigation." Id. at 344, 97 S.Ct. at 2442. Second, the supporters of the Commission possessed all of the indicia of membership in an organization. They alone elected, served on, and financed the Commission. Id. Third, the Court found that the Commission which was financed through annual assessments on the apple industry, might itself be adversely affected by the outcome of the litigation. Id. at 345, 97 S.Ct. at 2442. These factors are not present in the PLF. Contrary to PLF's contentions, Legal Aid Society of Alameda County v. Brennan, 608 F.2d 1319 (9 Cir. 1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980), did not hold that the Legal Aid Society of Alameda County had organizational standing in representing several black residents of the county. The organization's standing was not challenged separately, id., at 1332 n. 24, and the court's analysis of standing concerned only injury to the individual plaintiffs. Id. at 1333-1336. Citing Coles v. Havens Realty Corp., 633 F.2d 384 (4 Cir. 1980), PLF claims to have organizational standing independent of its supporters. This case is likewise distinguishable. The corporate plaintiff in Coles, Housing Opportunities Made Equal (HOME), was a Virginia nonprofit corporation "created for the purpose of eliminating unlawful, discriminatory housing practices, thereby seeking to make equal opportunity in housing a reality in the Richmond Metropolitan Area." Id. at 385. Its investigative, counseling and legal referral activities were specifically related to that purpose. Id. The court found that HOME's activities and injuries resembled those of the nonprofit developer in Village of Arlington Heights, supra, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450. Id. at 390-91. Unlike HOME, PLF's goals are not "functional, [994] requiring identifiable action....," Id., at 391, nor do its projects provide "that 'essential dimension of specificity' that informs judicial decisionmaking", as described in Arlington Heights, 429 U.Š. at 263, 97 S.Ct. at 562. Bob Marshall alliance and the Wilderness Society claim defects in the applications and membership status of three of the members. The claims are supported by incomplete regulatory citations and a disputable interpretation of the members' depositions. In any event, MSFL's standing may be based on the interests of the remaining members. It is "unnecessary to examine the standing of all [plaintiffs] so long as one had standing to secure the requested relief." Legal Aid Society of Alameda County v. Brennan, 608 F.2d 1319, 1334 (9 Cir. 1979), Watt v. Energy Action Educational Foundation, U.S. 102 S.Ct. 205, 212, 70 L.Ed.2d 309(1981). PLF's concerns are more of the general interest found to be insufficient for standing in Sierra Club v. Morton, supra. I conclude that PLF itself lacks standing. 19 2. Political Question The Bob Marshall Alliance and The Wilderness Society argue that this case presents a nonjusticiable political question. Since this case is resolved on statutory grounds, it is not necessary to address this constitutional argument.20 3. Adverseness [8] Defendants also argue that the case lacks the necessary adverseness. Neither Secretary Watt's acquiescence in the Committee's resolution nor his position on the constitutional issue destroys the adverse nature of this case. The cases cited by defendants and amici to support their argument that courts have not allowed third parties to raise separation of powers arguments are distinguishable from the present case, whereas Chadha is directly on point. In Chadha, the Immigration and Naturalization Service agreed with the plaintiff that section 244(c)(2) of the Immigration and Nationality Act was unconstitutional. We have a similar situation. As in Chadha, plaintiffs assert a concrete controversy, and the court has invited Congress to appear as amici. The necessasry adverseness is further manifested by the Justice Department's concerted efforts to defend the Secretary and avoid the constitutional issues on both procedural and statutory grounds. The Secretary's acquiescence, especially with his strongly stated reservations, falls well within established political traditions. 21 Arguments for the interpretation and constitutionality of §204(e) have been ably advanced by intervening defendants and amici. This court can therefore reach the merits of the case.22 19 See also Pacific Legal Foundation v. State Energy Resources Conservation & Development Commission, 659 F.2d 903, 909 (9 Cir. 1981). 20 If it were necessary to pass on the political question doctrine, I would follow Chadha. Plaintiffs' constitutional "claim is not that Congress has violated [the Property Clause; their] claim is that [§ 204(e)] violates the separation of powers doctrine. It is the Judiciary's prerogative, after a showing that the source of a claimant's appeal is not textually committed to another branch, to adjudicate a claimed excesss by a coordinated branch of its constitutional powers." 634 F.2d at 419. 21 As noted in Chadha: If the doctrine [of separation of powers] is given this competitive test, it might be implied that the proper remedy for a violation lies in the branch encroached upon. Under this view one can argue that an executive agency can defy an attempt by another branch to exercise a prerogative of the former. Even from the standpoint of abstract logic, however, the solution is not sound because stalemate is the end result, and certainly our constitutional tradition is otherwise. 634 F.2d at 423. (Footnote omitted.) 22 The last part of the Chadha analysis on the adverseness issue is likewise on point: Finally, if we accepted amici's argument and dismissed the appeal for lack of adversity; we would implicitly approve the untenable result that all agencies could insulate unconstitutional orders and procedures from appellate review simply by agreeing that what they did was unconstitutional. Where, as here, the agency fully intends to enforce its order, it would be a perversion of the judicial process to dismiss the appeal and thereby permit the order to be enforced on such grounds. 634 F.2d at 420. (Footnote omitted). |