559 F.2d 642 (D.C. Cir. 1977), 76-1825, Clark v. Valeo

Docket Nº:76-1825.
Citation:559 F.2d 642
Party Name:Ramsey CLARK et al., Plaintiffs, v. Francis R. VALEO, Secretary of the United States Senate, et al., Defendants.
Case Date:January 21, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 642

559 F.2d 642 (D.C. Cir. 1977)

Ramsey CLARK et al., Plaintiffs,

v.

Francis R. VALEO, Secretary of the United States Senate, et

al., Defendants.

No. 76-1825.

United States Court of Appeals, District of Columbia Circuit

January 21, 1977

Page 643

[Copyrighted Material Omitted]

Argued Sept. 10, 1976.

As Amended Jan. 24, 1977.

Judgment Affirmed June 6, 1977.

See 97 S.Ct. 2667.

Larry P. Ellsworth, Washington, D.C., with whom Alan B. Morrison and Girardeau A. Spann, Washington, D.C., were on the brief, for plaintiff Clark.

Rex E. Lee, Asst. Atty. Gen., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., and Leonard Schaitman, Anthony J. Steinmeyer, and Paul Blankenstein, Attys., App. Section, Civ. Div., Dept. of Justice, Washington, D.C., were on the brief, for intervening plaintiff United States.

Cornelius B. Kennedy, Washington, D.C., for defendant Valeo.

Eugene Gressman, Washington, D.C., for defendant Edmund L. Henshaw, Clerk of the United States House of Representatives.

Charles N. Steele, Atty., Federal Election Commission, Washington, D.C., with whom John G. Murphy, Jr., Gen. Counsel, Washington, D.C. (at the time the brief was filed), and William C. Oldaker, Asst. Gen. Counsel (at the time the brief was filed), Federal Election Commission, Washington, D.C., were on the brief, for defendant Federal Election Commission.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, and WILKEY, Circuit Judges, sitting en banc.

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Opinion for the court per curiam.

Concurring opinion, in which BAZELON, Chief Judge, and J. SKELLY WRIGHT, Circuit Judge, join, filed by TAMM, Circuit Judge.

Concurring opinion filed by LEVENTHAL, Circuit Judge.

Dissenting opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

Dissenting opinion filed by MacKINNON, Circuit Judge.

PER CURIAM:

Ramsey Clark, then a candidate for the nomination of the Democratic Party to run for United States Senator from New York, commenced this action to obtain declaratory and injunctive relief against operation of the provisions governing legislative review of rules, regulations, and advisory opinions of the Federal Election Commission. 1 The United States of America, on behalf of the President and the Executive Branch, was granted permissive intervention by the District Court. Five constitutional

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questions were certified to this court en banc, pursuant to the unique judicial review provision of the Federal Election Campaign Act, as amended (FECA). 2 In

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addition, a three-judge District Court was convened to deal with allegations in the complaint regarding Subtitle H of the Internal Revenue Code of 1954, the provisions establishing public financing of presidential elections. 3 We have concluded, after careful

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review of the stipulated facts and the legal arguments tendered, that the matter before us does not present a ripe "case or controversy" within the meaning of Article III. We therefore return the certified questions to the District Court unanswered, with instructions to dismiss.

While this case presents many novel and thorny jurisdictional questions under Article III, we believe we need not address those pertaining to standing or political question, because the unripeness of the action is so pervasive.

As to plaintiff Clark, we are hard put to find any ripe injury or present "personal stake" in whether or how rules, regulations, and advisory opinions of the Commission are reviewed by the legislature. Any ripe nexus arising out of Clark's position as a senatorial candidate vanished when he failed of nomination. As a voter Clark protested no specific veto action taken by the Congress and identified no proposed regulation tainted by the threat of veto on review. Nor does he suggest that facial provisions of the Act inhibit his political activities as a voter in any way. It may well be that the facial provisions of the Act, if and when implemented, might in some way inhibit his rights as a voter. On this record, however, we must dismiss his present claim as unripe.

The court learned at oral argument that the United States, speaking through the Department of Justice, believes the appropriate test for survival of its complaint in intervention, should Clark be dismissed, is whether it has any independent jurisdictional basis on which to bring suit. We need not decide that question, for it is clear that the sole claim asserted by the United States is also unripe. 4

The unconstitutionality complained of by the United States is that the challenged review provisions permitting disapproval of

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rules or regulations by simple resolution (majority vote) of a single House of Congress "impermissibly intrude upon those areas reserved by the Constitution of the United States to the Executive Branch * * *." Complaint in Intervention at 3, P 10. This claim is expressed at Paragraph 17 as a violation of the separation of powers. More specifically, Paragraph 18 states: "The one-house veto provisions illegally and unconstitutionally permit the evasion of the Presidential veto requirements of Article I, § 7, clauses 1, 2 and 3 of the United States Constitution." Subsequent paragraphs argue that this amounts to an unconstitutional delegation of legislative power from the full Congress to a single body, giving that single body more than plenary legislative powers, depriving the President and the Executive Branch of their full powers, and permitting either House of Congress to separately perform legislative acts.

Significantly, the United States did not claim that the regulations which were propounded and referred and recently lay before Congress under the challenged review provisions are tainted with political interference. Rather, its claim is that review of Commission regulations and possible veto by a single House, without participation of the other House or the President, deprives the President of his veto power with respect to legislation. The difficult question whether legislative review of regulations constitutes legislation to which the presidential veto necessarily applies also need not be reached in these proceedings because of the unripeness of a challenge based upon the veto power.

The challenged review provisions are really of two parts; the first is constitutionally permissible, and only the second is arguably constitutionally suspect. 5 The first element of legislative review envisioned by the challenged Acts requires that when the Commission has settled upon final drafts of rules or regulations embodying the Commission's interpretation or extrapolation of the statutes, those rules or regulations may not become immediately effective, but must instead lie before the Congress for a period of time during which the Congress may act to disapprove the regulations. If the statutory scheme for review stopped there, it would be presumptively constitutional under Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941), which stands for the principle that a lying-over provision which delays the effectiveness of an otherwise valid rule or regulation in order to permit Congress to take negative action is not of itself unconstitutional. 6 In Sibbach

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it was assumed that the appropriate negative action by Congress during the lying-over period for the Federal Rules of Civil Procedure would be plenary legislation: the adoption of an Act or Joint Resolution suspending the operation of all or some portion of the proposed Rules. When the expression of negation takes the form of plenary legislation, of course, presidential participation is necessary, and no derogation of presidential prerogative in violation of separation of powers appears.

In the instant case, however, the statutes in suit contemplate that the expression of negation during the 30-legislative-day lying-over period (the second part of the review scheme) may be by simple resolution of one House only the unicameral or one-house veto. It is this aspect of the federal election laws' legislative review scheme that is strongly challenged. However, it is only the first part of the scheme that has come into play; the clock had run for 28 legislative days when the 94th Congress adjourned sine die. 7 The challenged part, adoption of a simple resolution of disapproval by either House, has not occurred. If the Commission were to resubmit these same regulations to the 95th Congress, and if the lying-over period expired without any legislative activity, the Commission would then be free to promulgate the proffered regulations, and no presidential prerogative whatever would have been violated. For this reason we hold that this matter is not justiciable on the ground of unripeness with respect to the claim of the United States. 8 Until Congress exercises the one-house veto, it may be difficult to present a case with sufficient concreteness as to standing and ripeness to justify judicial resolution of the pervasive constitutional issue which the one-house veto provision involves. See note 10 infra. See also Appendix A infra.

This case has proceeded through the District Court and this court on an expedited schedule with abbreviated briefing. As the Department of Justice notes, its central issue the constitutional validity of a congressional disapproval device "represents the continuation of a dispute of major constitutional proportions which has been

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brewing for forty years." 9 No good reason appears why, in the circumstances of this case, this court should now strain to exercise its jurisdiction to resolve this momentous political as well as legal problem. Compare Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). Neither plaintiff...

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