Department of Commerce v. United States House of Representatives Page 16

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Media for Department of Commerce v. United States House of Representatives

Audio Transcription for Oral Argument - November 30, 1998 in Department of Commerce v. United States House of Representatives

Antonin Scalia:

I... I think they may survive.

I'm not sure we will.

Maureen E. Mahoney:

Your Honor, I think that in these circumstances where it is a narrow cause of action, it is one that is expressly created for this precise purpose, where the branches have reached an impasse, have tried to work it out, and it is--

Anthony M. Kennedy:

Well, they... they haven't reached an impasse, because Congress basically has enacted a statute, and then gives its own separate houses the standing to challenge it.

That... that... it seems to me that destroys all discipline that's required for a separation of powers system.

And I... I don't know how... how would you confine this?

Well, it's... it's a census.

It's important because of how the House of Representatives itself is composed.

I mean is that... is that the limiting principle?

Maureen E. Mahoney:

--Your Honor, the fact that it is the composition of the House itself is very important here.

Because that is a concrete interest under this Court's decision in 67th Minnesota Senate, where it found that a State legislative body that was directly affected by orders pertaining to its own composition did have standing, did have cognizable interests--

Anthony M. Kennedy:

But the national separation of powers was not involved in that case?

Maureen E. Mahoney:

--No, Your Honor, it wasn't.

But it did go to the issue... I think we have to separate the issues here.

And... and one is whether these are cognizable at all within an Article III sense.

And I think certainly this Court's decision in... in Beans establishes that the compositional interests, a legislative body's compositional interest, is cognizable.

And it is firmly rooted in the text.

It is something that Cong... that the House has guarded throughout its history and has made every effort to make sure that the size of the delegation conformed to the constitutional requirements.

And of course here that constitutional requirement is that the numbers be determined in accordance with an actual enumeration.


Sandra Day O'Connor:

Does it matter at all that that language, "actual enumeration", was just put in there by the committee on style, when the drafting history shows that what was used in the Constitution was "numbers"?

Then it goes to the committee on style, and it comes back "actual enumeration".

Does that matter?

Maureen E. Mahoney:

--Well, Your Honor, I think in... in the Nixon case, this Court... the Judge Nixon case... this court said that of course the version that was ultimately adopted by the Convention is the one that is entitled to the most weight.

And I think if we look at the... at the way this proceeded, it was first that a census be taken.

It was then that the numbers be taken.

And it was then that an actual enumeration be taken.

And that it... the best reading, of course, is that the actual enumeration was most consistent with what was intended from the outset.

And if we look to what the 1790 Congress thought those words meant... I'd like to expand on what the Solicitor General said here, because I... I think perhaps he left the impression that there was authority to use estimates.

And in fact it's quite the contrary.