Schlesinger v. Reservists Committee to Stop the War – Oral Argument – January 14, 1974

Media for Schlesinger v. Reservists Committee to Stop the War

Audio Transcription for Opinion Announcement – June 25, 1974 in Schlesinger v. Reservists Committee to Stop the War

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Warren E. Burger:

We will hear arguments next to 72-1188 Schlesinger against Reservists Committee.

Mr. Solicitor General you may proceed whenever you’re ready.

Let me say at the outset that I’m not sure just what considerations impelled us to enlarge the time to an hour and a half here.

I want to assure both counsel that there will be no penalty impose if you find yourself to one hour, total half hour each or something near that.

Daniel M. Friedman:

Mr. Chief Justice may it please the Court.

I will try to please the Court in just a regard if I can.

This was a suit brought by the respondents, The Reservists Committee to Stop the War in several named members of the military reserve.

In order to compel the Secretary of Defense and the Secretaries in the Army, Navy and Air Force, to remove active — remove Congressmen now in office from the military reserves and to reclaim paying for other remedies not now in issue.

The theory of the case is that the Article I, Section 6, Clause 2, which the second half that Clause which states “No Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”

Clearly the case is, that Clause places an obligation upon the Executive Branch enforceable by the courts to purge from the reserve ranks all Congressmen and then in office.

The Courts of Appeals held for the plaintiffs the respondents here in a summary judgment denying the government summary judgment and issue the declaratory judgment only.

The court — I am sorry — the District Court did that.

The Court of Appeals affirmed without opinion except for one remark concerning standing which we will come to.

The Government will urge reversal hereupon each of three grounds.

We will urge that under first that under no theory of standing have these respondents standing to maintain this action either as taxpayers or as citizens.

We will argue second that the question of whether a Reserve commission is an office that disqualifies it’s holder from membership in Congress is an issue of qualification for membership of Congress and therefore by Article I, Section 5, Clause 1, is committed to the exclusive determination of the House in which the member sets it is a political question and therefore, nonjusticiable.

We will contend finally that membership in the Reserves particularly of the type involved here is under no — is under no construction of the word “office” and “office” within the meeting of the Constitutional provision employed.

We have discussed standing in — at length in our brief.

And in October, in the Richardson Case, it was discussed at length, and I think it’s possible to fairly brief about the standing issue here is a straightforward one.

Respondents complained, claim standing as citizen and taxpayers.

And the injury alleged is at the presence of Congressmen in the military reserves deprives respondents of a right to unbiased consideration.

This is a quotation from their brief “Of majors before the Congress affecting the military establishment and appropriations therefore and majors relating to military action, war and peace.”

The District Court as I say denied taxpayers standing but granted citizenship standing.

The Court of Appeals in affirming cited Flast against Cohen and does seem to say that perhaps there was taxpayers standing here as well as citizenship standing.

I think it’s clear that there no standing exist under either theory.

Our brief discusses cases such as the Students Challenge the Regulatory Agency Procedures, the SCRAP case and it’s a — we discussed at some length to the fact that this Court has extended the concept of standing by adding to the kinds of injuries that may be considered.

But so far as we know there’s never been a case that says, there need not be direct injury specific and perceptible harm is never been enough in this Court were a plaintiff to alleged an interest in good government or in Constitutional principles.

And we think that’s absolutely clear from the brief and from Frothingham against Mellon, the Sierra Club case, SCRAP case, Ex parte Levitt, and so on.

A respondent’s attempt evade this body of law with the contention that there complain alleges very specific injuries and those very specific injuries turn out to be their inability to influence Congress which is not specified, we don’t exactly how they were unable to influence Congress.

And an inability they say to join with others in an effort to make political advocacy effective.

Warren E. Burger:

I suppose — I suppose that the theory is that the 117 or whether number of members who hold reserve commissions are not receptive to the arguments, political arguments that they want to advance, that they’re not has to open-minded as Congressmen generally.

Daniel M. Friedman:

I think that is the part of the allegation Mr. Chief Justice.

I think it is an allegation that fails because it is entirely speculative.

We don’t know specifically what measures where affected by this attitude.

We do not even know in fact that the attitude exists.

Respondents assume a one-way relationship between the membership and the Reserves and the political attitude.

The respondents themselves are reserve as to appear the whole political attitude is not in conformity with those they alleged that Congressmen hold or the Reserves.

The other point about that statement however is that the citation in NAACP versus Button is — only beside the point because there is no allegation here and either could we not with anybody, and most particularly not the Congress has taken any action which prevents respondents from joining together to make their political advocacy effective.

The only claim is an attitudinal claim, a claim about the attitudes of Congress or about Congressional reservists.

So that for these reasons, they have alleged the most specific injury, no specific action.

Secondly, they are really complaining about attitudes that don’t correspond to their own.

And assume as I say a simple one-way relationship but is not shown and I don’t think it could be shown.

And indeed it occurs to me, because I think about that, that I don’t know how long we try an issue like that.

If you try to make a question of Congressional attitudes, a question of fact to show an injury, you would have to try the issue of Congressional motivation on particular pieces of legislation, the motivation of individual Congressmen and that’s an issue which this Court have en loath to get into at least of Fletcher against Peck in 1810.

Finally, I think it’s clear that respondents are asserting no more than the interest of citizens in the conduct of Government, and that is precise to the interest to this case as this Court has again begin in Baker against Carr and Ex parte Levitt said “It does not suffice to confer standing.”

I think the political nature of respondents theory of standing and what the breads of that theory really appears that in page ten of their brief in which they discussed the fact to this Court, by expanding the concepts of standing has done much to permit grievances of private citizens against something describe as an increasingly all-powerful Government to be litigated in the courts and not fought in the streets.

So I take it as a general right of petition by citizens directed to the Court that is advocated here for political grievance, and that is a theory of standing the Court has never accepted.

And I think should not accept or obvious Article III policy reasons.

They do attempt to analogize their case to Baker against Carr, that however was a case in which under represented citizens could prove arithmetically that their votes were be valued as much as if their balance have been burned or the voting age have been raised selectively for their counties and we have already seen the reasons why that kind of perceptible, calculable injury is not present in this case.

I should say about Ex parte Levitt, the respondents say, albeit, in their brief on page 16, that Levitt’s only interest in seeking the disqualification of Mr. Justice Black on the first section of Article I, Section 6, Clause 2 about Senators are not being appointed to civil office.

A more image being been increased during the time he was a senator.

They say of that, that Mr. Levitt’s status was only that of a member of the bar and he did not assert with Justice Black’s alleged ineligibility could in any way deprive him Levitt of unbiased consideration by the Court.

The moving papers on that case is a matter of fact state only that Mr. Levitt was a member of this bar of this Court, however the Court took it in the opinion as both a citizenship claim and a member of the bar claim and this allowed standing in the case.

I think it would be instructed —

Potter Stewart:

Is the Ex parte Levitt a — a motion filed originally in this Court was it not?

Daniel M. Friedman:

That is correct, Mr. Justice Stewart.

Potter Stewart:

It wasn’t a — it wasn’t a lawsuit filed in the District Court?

Daniel M. Friedman:

No, a petition filed directly in this Court —

William O. Douglas:

That was the original action?

Daniel M. Friedman:

That is correct.

Potter Stewart:

Well if you?

Daniel M. Friedman:

Well it’s a — it’s —

Potter Stewart:

Not like that.

Daniel M. Friedman:

Wasn’t the complaint Mr. Justice Douglas, it was just a motion (Voice Overlap)

Potter Stewart:

A motion period, wasn’t it?

Daniel M. Friedman:

Yes sir.

William O. Douglas:

Well it wasn’t a motion to start the suit in a District Court.

Daniel M. Friedman:

No Mr. Justice Douglas.

It was a motion to have the court issue an order to show a cause why Mr. Justice Black should not be disqualified from sitting on this Court.

Potter Stewart:

But there was — it did not invoke the original jurisdiction of this Court as such it was a motion filed here.

Daniel M. Friedman:

Yes sir.

Potter Stewart:

Alright.

Daniel M. Friedman:

It would be instructive I think to imagine whether the result would have been any different in that petition had Mr. Levitt alleged that this Clause was designed to eliminate bias and then Mr. Justice Black’s service in the Senate was likely to biased in favor of broad national powers, a position which Mr. Levitt did not like.

I think I cannot believe at that allegation which would make this case, which would make the Levitt case just like the case before us would have been enough to get Mr. Levitt’s standing in that case.

Warren E. Burger:

But was not the main burden of Mr. Levitt’s complaint?

Was that one of the nine members of the court was not legally here at all?

Daniel M. Friedman:

That’s correct Mr. Chief Justice.

Warren E. Burger:

And he’s a member of the bar or is a potential litigant who he had a case here.

And it might otherwise be equally divided without the vote of that man’s member and then it could be quite important to him would it?

Daniel M. Friedman:

It would indeed Mr. Chief Justice.

I think in that sense he would have a much better claim to standing than the respondents here have.

But if you turn to it as citizenship standing in the Levitt case and make the additional allegation that I have supposed that as a citizen he was disturbed by the judicial attitudes of Mr. Justice Black and that he could not report with, perhaps do things that he disapprove of politically or judicially or some other way.

I don’t think that allegation would have conferred standing in the Levitt case and yet that allegation makes the standing issue there precisely the same as it is in this case.

Flast against Cohen, I will say only the taxpayer does — standing here does not exist because Flast against Cohen lays down two requirements.

The first is, that the Congressional action challenge must have been an action under the Taxing and Spending Clause.

And second is that the action must be in derogation of a Constitutional provision which was intended to operate as a restriction upon the taxing and spending power, neither of those is true here obviously because, the status of Congressmen as reservists is not Congressional action under the Taxing and Spending Clause.

And the second test is not met for the reason that this Article I, Section 6, Clause 2 is obviously as I think both sides in this case agree, designed to prevent the executive domination of the legislative branch.

It is not designed to limit the taxing and spending power, now the District Court denied taxing.

Taxpayers standing, emphasizing this ground and I would refer the Court, if I may to pages 29 and 30 of the Government’s Petition for Certiorari where the District Court is reasoning upon that point is contained.

I will not dwell upon.

Daniel M. Friedman:

I think the Article III reasons why standing remains the crucial concept to the function of Constitutional review or judicial review.

A concept that requires that cases come up in specific factual context which are instructive as to what general principles mean and to prevent to federal court to be drawn in the philosophic debates immediately after the passage of legislation before anybody can show any direct specific harm or how the legislation works.

I would like instead the pass if I may to the second of our arguments which is that this claim is a political question which is therefore nonjusticiable.

As Baker against Carr, tells us a political question arises among other ways when there’s a textually demonstrable commitment of an issue to a board and branch of government.

And the qualification Clause under Article I Section 5, Clause 1, states that each House shall be the judge of the elections, returns and qualifications of its own members.

The only question therefore is whether the second half of Article I Section 6, Clause 2, states a qualification for membership in Congress that does, I think it is clear that it is a nonjusticiable issue, I think it is —

William O. Douglas:

Is the remedy sought would say against the special treatment, remove them from the list of reservists is not cross to remove them in Congress?

Daniel M. Friedman:

That is quite true Mr. Justice Douglas.

But, if Congress is the exclusive judge of this issue — then I think the — pardon me?

William O. Douglas:

It’s been — what you mean by this issue?

Daniel M. Friedman:

That’s correct.

But — but in order to —

William O. Douglas:

This is not a challenge to them to their power to seek in a Congress.

Daniel M. Friedman:

That is quite correct.

It is not.

William O. Douglas:

Not like the Powell case?

Daniel M. Friedman:

That is quite correct.

However the issue of the qualifications will have to be decided by the Court in order to order — to issue an order to the Executive Branch to remove these reservists — these Congressmen from the reserve rules, so that the Court would happen necessarily to judge the issue which we think is committed exclusively to the Congress.

Thurgood Marshall:

If the man has been seated by Congress and still there, we don’t have any part there, do we?

Daniel M. Friedman:

Mr. Justice Marshall, if by that you mean, if he has been seated by Congress and still there the Congress, in that sense, judge the issue.

I think you need to go no further because I think the issue is solely for (Voice Overlap)

Thurgood Marshall:

Isn’t that like politics?

Daniel M. Friedman:

That’s correct.

Warren E. Burger:

Would you think it might be different if after a man was selected to either House you were then confronted with the situation of a new commission emanating from the Executive Branch to the Member of Congress for the first time.

Daniel M. Friedman:

Mr. Chief Justice I don’t think that would be different.

The reason I don’t is, that is seems to me of the issue was exclusively committed to Congress then distinction is like that or not for the Court, they might be for Congress.

William O. Douglas:

Suppose a reservist sues is not paid, and he is in the service and he’s not paying, he assumes to recover his salary and the defensive is being in Congress is not lawfully on the reserve.

Is that a justiciable controversy?

Daniel M. Friedman:

Mr. Justice Douglas that is a very good question.

Let me just — that — if he suited for his salary —

William O. Douglas:

Heading on (Inaudible) of other position that they — he is not entitled to a —

Daniel M. Friedman:

I think, I would — I think I would say that probably would not be a justiciable issue.

Potter Stewart:

I think, we have to get a case in our Court involving American soldiers who were taken prisoners during the Korean Hostility saying that there’s no defense anyway then until or unless you’re terminated from the service is an obligation to pay your salary?

Daniel M. Friedman:

I would suppose so —

Potter Stewart:

Even though you are a deserter or a prisoner war or anything else?

Daniel M. Friedman:

I would suppose so —

Potter Stewart:

And that simply wouldn’t be a defense?

Daniel M. Friedman:

I would suppose so, but I think that if the Court, Mr. Justice Stewart reached that —

Potter Stewart:

It’s valid case.

Daniel M. Friedman:

With the other way, I think they would — I think in fairness to Mr. Justice Douglas’ question I would have to say, should the Court decide where defense I would think it will not be a justiciable issue.

Warren E. Burger:

I suppose there’s a certain element to speculate a hypothetical element in that question as it was attempted to be because — because that was the attitude of the military establishment.

They wouldn’t have these commissions outstanding?

Daniel M. Friedman:

That’s quite right Mr. Chief Justice.

It was a question however the test — the — the test limits of my theory I must say.

But I think that it is a — it would be nonjusticiable if it were a defense.

But I think it’s easy to demonstrate that this is a qualification for Congress.

This Court has never passed upon (Voice Overlap)

Warren E. Burger:

The Congress would still retain the right to and not to exclude but to expel a member of this ground.

Would they not?

Daniel M. Friedman:

Congress, Mr. Chief Justice has — has vacated seats and expelled members upon the ground that other kinds of commissions in the Armed services were incompatible with the membership in the house did constitute —

Warren E. Burger:

The matter is not closed when they are seated in the first instance by any means.

Daniel M. Friedman:

Mr. Chief Justice, the matter is not close, repeatedly Congress has acted under these Clause to vacate seats and is recently is 1963, the Senate passed a resolution which was acted upon requesting the Senate judiciary committee to consider the issue of reserved memberships.

I think the issue is too clear actually for a much discussion, I think when I — the facts of the kinds of reserve commissions that these Congressmen hold are such that, nobody would conclude that there were officers on the United States.

So that I think Congress’ recent inaction is entirely executable.

But I –I would like to reserve the facts of those for the moment to a demonstration that in fact this does did a qualification.

The text and structure of this statute, “No Person Holding any Office shall be a member.”

Sounds very much like a qualification for a Membership in Congress and indeed that is precisely the same structure that the Constitution uses in Article I Sections 2 and 3 when it states “No person shall be a member of the House” states the age and the residence requirements and so forth.

In addition to that, if you look at the two parts of Article I Section 6, Clause 2, the first part says, “no Senator or Representative shall be appointed to Office in the certain circumstances.

The second half says “no Person who is on Office shall be a Senator, a member of either house.

So, that obviously the first part states a qualification for Office and the second part states a qualification for a membership in the House.

Daniel M. Friedman:

And we know of the age and residence requirements of Articles I Sections 2 and 3 for the House and Senate are not the exclusive statements of qualifications because of the case of Roudebush v. Hartke where it is stated that indeed the 17th Amendment states a qualification.

I think the history of the adoption of this Claus is adequately treated in our brief on pages 34 and 35.

I think the history of the way this Clause came into being demonstrates that it was intended as a qualification for a membership in the House, and that this different way of stating the two-halves of the Clause was intentional and indeed I would refer the Court particularly to the quotation on page 35 of our brief of number 30 — number 52 of the federal list in which James Madison listed this precise part of Article I Section 6, Clause 2 as a qualification for a Congressmen.

Beyond that —

Byron R. White:

I think if you suggested that being in Congress is a not a disqualification or holding another office.

Daniel M. Friedman:

Yes, I think it is, Mr. Justice White (Voice Overlap)

Byron R. White:

— so the president or the services would — could terminate anybody holding a reserve commission when he was elected Congress?

Daniel M. Friedman:

Oh, I’m sorry Mr. Justice White I — I thought we were discussing the first-half of the Clause.

The President certainly could —

Byron R. White:

You’re’ saying — You’re saying that is a qualification for — it states a qualification to bring a member of the House.

Daniel M. Friedman:

That’s correct.

Byron R. White:

That’s all it did.

Daniel M. Friedman:

I think that’s all it does to Mr. Justice White.

Byron R. White:

So you do say that it is not a disqualification for holding another office.

Daniel M. Friedman:

No Mr. Justice White, I think it’s optional with the executive, should he decide that it’s bad policy to have two offices of any kind.

I don’t think this is not as for two positions of any kind combined but I don’t think is an already an obligation to refuse reserve membership to Congressmen I think both because I think this is not an option of states but more importantly in the present context because it is a political question committed to Congressmen.

Warren E. Burger:

Passing on the Levitt case back in the ’30s the Court assumed that there was a direct violation of the Constitutional provisions is it not?

Daniel M. Friedman:

Mr. Chief Justice, I don’t believe so, I don’t believe so, oh — oh you mean necessarily assume.

Warren E. Burger:

Not necessarily assumed.

You could say that it was —

Daniel M. Friedman:

Well it depends on which issue you reach first Mr. — Mr. Chief Justice.

I would think — I would think I could not honestly answer that, the affirmative necessarily assumed that to get to the —

William H. Rehnquist:

Assume that arguendo so to speak.

Daniel M. Friedman:

So to speak.

William H. Rehnquist:

Well at least preferred to the courts of opinion there, the court would have ruled the same way even if it satisfied itself that there have been a direct violation of the Constitution — that it affected in no way it’s determination to standing.

Daniel M. Friedman:

That is entirely correct Mr. Justice Rehnquist.

William H. Rehnquist:

In other words the remedy — the remedy there is that the president in 1937, the Court was saying you should apply the — should not — have nominated and the Senate should not have not confirmed but having done so the Court wasn’t going to get into it.

Daniel M. Friedman:

That’s entirely correct, if — if one takes that is an arguendo position that is entirely correct Mr. Chief Justice.

We have an addition in our brief which I shall not re — recapitulate.

A lengthy history of Congresses the treatment of Article I Section 6, Clause 2 as a — as a qualification over which it has exclusive control, the earliest case which is cited is that of — in 1803 of Representative Van Ness, respondents cite that case to argue that the militia commission there involved was like a reserve commission today, I don’t know about that, I don’t know the historical record well enough on the record I have doesn’t disclose enough about that militia commission.

Daniel M. Friedman:

Be that as it may, what it does show is that Congress thought it had control of that issue as a qualification issue and that — these early cases which on our brief are really quite important because there are very close to the time of Constitutional convention and the Congress clearly thought, it was in control of this issue.

And, I should stress that Congress also has thought that it decides the meaning of this Clause as well as the facts as in — we –we show on our brief on page 39 that in 1806 for example, the Congress decided that a government contractor was not an officer within the meaning of this Clause.

I should say that respondent’s brief on this point seems to me to contain to non sequitur.

Pages 28 and 29, the respondents argue from the purpose of the Incompatibility Clause which is to ensure the separation of the Executive Legislator branches.

Then in the middle of page 29, they say the purpose is obviously equally well served and incompatibility eliminated whether the one office or the other is vacated.

Hence, the Incompatibility Clause operates as a restrain on both the executive and the legislative.

Both are under on equal obligations, I think that is a non sequitur of course if there is a — an incompatibility, I think there is not, it would be cured equally whether the legislature or the executive operator but that kind of argument means that there is no issue in the exclusive control of another court and branch of government because you can always say well, whenever is — whatever is troublesome, is cured equally well, if the Court acts instead of the Congress of if the executive acts instead of the Congress.

So the statement to that, the incompatibility if it exists would be eliminated if the executive were required to act in no way demonstrates that the issue in fact is committed to the executive or to the courts and the Constitution we think the fact demonstrates the contrary, I think it would be well to say just a word in conclusion about what these reserve commissions are, because I think they have been overstated.

We have here, in the active Standby Reserve which I think is the only Reserve status that can even arguably be called an office, 20 members of Congress in the inactive Standby Reserve, we have 12 members of Congress.

I won’t mention the inactive Standby Reserve again because the inactive Standby Reserve receives nothing and may not train even if he volunteers for it.

It’s an honorary status.

Then we have 58 members of Congress who are retired without pay and I take of one, I’ve got to include them on this.

They are in 107 Congressmen we’re talking about, but they certainly is can hardly be called an office to be retired without pay, there are 16 Congressmen retired with pay of them six are retired for disability, ten for after period of service.

So we have at 20 reservists in the active standby.

Now, I think it’s demonstrable that in the active Standby that is not only — not an office on United States but there is no executive control over these men.

And, recall the Hardwell case which is discussed in both briefs which suggested that an office on the United States is defined by tenure duration, emolument and duties.

None of these categories accept the active Standby has any possibility of falling within that definition.

An active Standby Reserve may apply for training but it’s entirely voluntary.

He’s not called up, he receives no pay while he is in training.

He receives no allowances, he pays for his own food, he plays — pays for his own uniform.

He pays for his own travel.

The only expense for the Government involved as opposed to going to the firing range and use up ammunition.

But one thing he can do is by training regularly at his own expense, is acquire training points towards retirement.

He gets one training point if he volunteers for this training, for each four-hour drill and one training point for each day of summer activity.

And If he gets a minimum of 50 for 20 years, he then gets a relatively small pension at the age of 60 but that is the entire financial connection that any of these reservist has and it’s very small and very few Congressmen indeed goes to that training.

Now, the respondents I have cited on pages 40 and 41 of their brief elements of executive control over these reservists.

I think I have shown just a right little, but let me take them by category.

The respondents state that these reservists are subject to call by the president.

That is true, only with respect to the ready reserve which is not involved in this case.

There is one Congressman in the Ready Reserve.

Daniel M. Friedman:

He can be removed from that only with the consent of a governor of his state because it’s a National Guard position, he is not involved in this case because the case is against the governor or him.

Of the active Standby Reserve, they can be called by the president only if Congress declares a natural — national emergency or war under 10 United States Code Section 6782.

So they are not a subject to call by the president unless Congress authorizes the call as the salaries and expenses, there are none, there is a very small possibility for some of them of a small pension at the end of 20 years.

If the respondents say that they are subject to the Uniform Code of Military Justice, the only time, any of these reserves is so subject is when he is on — when he has voluntarily gone into training and voluntarily submitted himself to the code.

The retired reservist is subject to the code only when he is receiving hospitalization.

There is a mention of the enlistment term — enlistment term and the oath unless one of these Congressmen is in the reserve because he has a remaining obligation after having been drafted.

He has no term and can resign, in the oath he takes is simply the one we all take to support and defend the Constitution.

I think it is entirely plane from what I’ve said that out of the 107 Congressmen in the reserves, only 20 are in the status where they can do anything to gain any benefit.

Very few of them do, they train at their own expense and I don’t think under the definitions of the cases, it could in any sense be called an Office onto the United States.

Warren E. Burger:

Are you suggesting, Mr. Solicitor General, that as to the past, both of these men are something like Kentucky Colonels in terms of —

Daniel M. Friedman:

Well, Mr. Chief Justice, yes, I guess I would suggest precisely that the inactive standby is really an honorary status but the —

Byron R. White:

As long as we don’t (Inaudible)

Daniel M. Friedman:

Yes, I –I would prefer that — that of the — the retired reservists, 50 of them are without pay, a very few of these Congressmen have any substantial connection with the military and such as it is, it’s purely voluntarily at their own expense.

Warren E. Burger:

Mr. Dobrovir?

William A. Dobrovir:

Mr. Chief Justice and Justices, may it please the Court.

The question before this Court today is the interpretation of Incompatibility Clause of the Constitution, Article I, Section 6, Clause 2 which prohibits the same individual from holding at the same time executive branch office and be seated in the Congress.

And Solicitor General has stated the three issues which are raised before this Court.

First of all, seems to us whether or not this kind of reserve commission is an office which the Clause prohibits a member of Congress from holding while he remains a member.

Secondly, whether the plaintiffs here have a standing, whether we have proper parties to raise that issue and thirdly, even if the answer to the first two questions is yes, whether this is a political question that the Court should not decide.

The Clause is older than our Constitution, it appeared first in the Articles of Confederation and I believe was first proposed eight days after our nation was born on July 12, 1976 in the Continental Congress.

William J. Brennan, Jr.:

The entire Clause or just the (Voice Overlap) —

William A. Dobrovir:

The basic — the basic principle that a member of Continental Congress should not hold any office at that time under any of the states because we had a very rudimentary national Government was in the Article V, I believe of the Articles of Confederation and the Clause was stated in the Articles of Confederation as in — in terms that no member of the Continental Congress shall hold any office as to which there are salaries, emoluments or other — Article V, Clause 2 of the Articles of Confederation — nor shall any person being a delegate be capable of holding any office unto the United States for which he or any other for his benefit receives any salary fees or emoluments of any kind.

The matter was debated at a considerable length during the Constitutional convention and the debates are quoted in our brief and also with the Solicitor General’s brief, I won’t repeat them but it is quite clear from the statements of Mr. Elbridge Jerry, Mr. George Mason, Madison, Hamilton, and others that the purpose of the Clause was to prevent an evil which was quite palpable and obvious to the framers, an evil that they saw rise in the English parliamentary system under which the officers of — that the crown by holding out the possibility of office and appointing members of parliament to office was able to control votes in the parliament.

And so, they erected an inflexible and absolute barrier as they thought, against any member of the legislative branch, the house of the Senate.

Having before him the possibility as to dangle — possibly dangle before in the words I think of George Mason by the executive of an office which might then influenced his vote, or influence his activities in a manner favored by an executive.

Warren E. Burger:

Would you say that the bar was anymore absolute than the bar that the Court was dealing with in the Levitt case, the appointment of the member of the house or Senate who had voted for an increase or in salary or voted for the creation of the office?

William A. Dobrovir:

The bar had a different purpose, as I —

Warren E. Burger:

It’s equally explicit, is this not?

William A. Dobrovir:

It’s equally explicit but there was — I don’t know if I can find the right word but I think there was more of an effect, a desire of an effect beforehand in the first half of Article I, Section 6 in which they were speaking directly to the members of Congress, to say, you shall not create offices, you shall not create or increase the emoluments of offices to which you then may seek appointment and this was something rather more directly aimed at preventing any activity by the members of Congress.

The second half of the Clause, the debates made it quite clear, were aimed not only at the Congress but indeed, primarily according to the debates at the executive branch to prevent the executive branch from encroaching upon from influencing the Congress.

William A. Dobrovir:

The bar is no less absolute but I think it’s important to note that there were these two different evils that they were aiming at.

The Clause had a curious history and in attempting to find why it ended up with the language that it presently has, we found that as it came out of the Committee of Detail on August 6, and this is in the District Court’s opinion in the appendix to the petition for certiorari at page 19, it said, the members of each house shall be ineligible to and incapable of holding any office under the authority of the United States during the time for which they shall respectively be elected and the members of the Senate shall be ineligible to and capable of holding any such office for one year afterwards.

This was the Incompatibility Clause on that date.

It then came out of the Committee, it went into the Committee of Eleven and this is quoted on page 34 of the Government’s brief.

The members of each house shall be ineligible to any civil office under the authority of the United States during the time for which they shall respectively be elected and no person holding any office under the United States shall be a member of either house during his continuance in office.

In that form, the Clause stated two things, it said no member shall hold any office while he remains a member and no person holding any office shall be a member.

In the Committee of Eleven, according to Ferrand, that Clause was — that language was amended by the insertion after the words, United States of the following words created where the emoluments whereof — have been increased because the Clause as it stood did not have within it the prohibition that you — Mr. Chief Justice, just referred to against the one that was involved in Levitt, against members, against the Congress creating offices and then obtaining their own appointments to them.

And the way in which this was accomplished was by insertion of that language.

The rest of the Clause remained the same.

We cannot speculate because there is no — there is nothing in the debates as to what the Framers had in mind in doing this.

But it seems to me that it would be wrong to say that by doing that, they intended to make the Clause expressly applicable only to a member only to say that a person holding an office shall not be a member which is the interpretation of the Government has urged upon this Court.

It seems to me that what — what happened to the Clause during the debates does not — it cannot lead us to that conclusion and that the history of it and its final language does support our contention that the Clause is intended as an absolute bar against members holding any office.

This is in turn supported by the later history of the Clause and in particular, I would refer the Court to the 1899 House Report 2205 which is cited in portions of which you quoted in our brief.

But on 50 — page 57 of that report, the Congress refers to the interpretation of the provision by James Wilson who was one of the Framers — indeed who is one of the Framers who himself argued against the insertion of the Incompatibility Clause in the Constitution and who also was one of the first members of this Court.

And the — the report shows that in states — that in lectures he delivered in 1790 and 1791, he took the view and stated, with respect to this Clause that it is a provision by which the members of the legislature will be precluded while they remain such from offices and then he said that this provision finds with great propriety — a place in the Constitution of the United States, and in this important particular, it has a decided superiority over the Constitution of Great Britain.

Warren E. Burger:

Where is that in your brief —

William A. Dobrovir:

That provision is (Voice Overlap) — that provision is not quoted in our brief.

I only found it yesterday afternoon, Your Honor.

So I think it is quite clear that the intention of the Framers was that members of Congress while they remain members of Congress shall not hold any other office.

There is a second principle which is likewise set out — expanded in great length in the same report beginning on page 64 and going on over the page 69 of that report in which many, many cases decided by the State Courts of the United States and by the Courts of Great Brittain were cited as establishing the — the proposition that when there are incompatible offices, when the same person is appointed to an office which is incompatible with an office which he already holds.

That when he qualifies and accepts the second office, he automatically vacates the first, that the proposition as — as stated in short hand in the District Court’s opinion, the second office vacates the first.

In this case, as I — as I understand it, every member who is a reservist was in the Reserves prior to his election to the Congress and the application of that principle would require that on accepting and qualifying as a member of Congress, he should automatically have vacated his office as a member of the Reserves.

William J. Brennan, Jr.:

And that he should have — by being sworn into the Congress that automatically vacates which —

William A. Dobrovir:

As we read these — as we read these authorities, it — it seems to say automatically.

Now —

William J. Brennan, Jr.:

But you’re suggesting on this — when each of these members of Congress took his seat, automatically, his Reserves Commission disappeared, terminated or whatever?

William A. Dobrovir:

Yes Your Honor, Mr. Justice Brennan, I would say that of course, that did not occur because there had to be some further action by one or the other of the parties.

Either the person holding the commission who had just been elected to Congress or the executive branch which continued to maintain him in that status in order — in order — in fact for the status to end but in law, it would seem according to these authorities that he should be held to have vacated the office.

And all that remains is that — that vacation be declared by a body competent to declare it.

Which brings us to this — to the question of whether or not this is — the Clause establishes a qualification which is exclusively committed to the Congress.

William A. Dobrovir:

The Solicitor General has argued that it speaks as a qualification and just like the qualifications of age and inhabitancy and citizenship, it is the kind of qualification which this Court in Powell v. McCormack said was committed only to the Congress and which could not be adjudicated by a court.

First of all, there is a difference in that — those qualifications — are matters — as we said in our brief matters of — of pre-existing fact which no one can change and I supposed that even the doctrine that these are matters which are exclusively committed to the Congress cannot be absolute, that for example, if the Congress were all of a sudden by vote to say that a senator who was 60 years old was only 20 years old and thereby expel him from the Congress, that one way or another, that Senator would have the right to have some court, a federal court and ultimately this Court somehow or other review that determination.

Thurgood Marshall:

What is the relief you ask for in this case?

William A. Dobrovir:

The relief we ask for in this case, Mr. Justice Marshall was a mandamus or an injunction extended to the Secretary of Defense and the three service secretaries requiring them first of all to strike from the roles of the Reserves, any member of Congress —

Thurgood Marshall:

What is the qualification that Congress had to do with that?

William A. Dobrovir:

Well, we don’t think —

Thurgood Marshall:

I’m not asking Congress to put him out.

William A. Dobrovir:

No, we are not sir.

Thurgood Marshall:

You’re not asking him to resign from Congress?

William A. Dobrovir:

We are not sir.

Thurgood Marshall:

Well, what did the qualifications got to do with it?

William A. Dobrovir:

Well, I don’t believe that this — that the qualification matters —

Thurgood Marshall:

Has anybody raised the question of one of these people here is not a Congressman?

William A. Dobrovir:

No sir, by no means.

Thurgood Marshall:

Well again, I ask, what is the point?

William A. Dobrovir:

Well, we do not believe that the qualification matter is a — a significant issue in this case but it has been raised and has been argued effectively by the Government and we felt that we should respond to it in the way in which — in which we (Inaudible)

I think Your Honor’s answer is perhaps the simplest and the best answer —

Warren E. Burger:

That arises, does is not in connection with the language of Baker against Carr having to do with textually committed to another branch by the language of the Constitution and that’s the argument of the Government on one leg here that this whole subject was textually committed and therefore, it is a nonjusticiable question.

William A. Dobrovir:

That is the argument — that it is a textually demonstrable commitment of the matter to a coordinate branch of the Government.

William H. Rehnquist:

Your standing argument is — is dependent to a certain extent, isn’t it?

On the question Mr. Justice Marshall asked you about, about the fact these people are Congressmen.

I — I doubt that you would claim standing to going to the District Court and say Mr. X who is not a member of Congress really shouldn’t be on the Reserve roles because he’s got bad eyesight.

You — you’re standing argument is dependent on the fact that these people are not only disqualified from the Reserve but that they are Congressmen.

William A. Dobrovir:

Our standing army — argument is premised upon the fact that this Clause was intended to prevent this duality of office in order to benefit citizens of this nation as a body politic in order to prevent and influence upon the Congress that the executive branch might exercise —

William H. Rehnquist:

Which — which are normal — say as the garden variety Reserve requirement that the guy have corrected 20-20 vision wouldn’t be anything like.

William A. Dobrovir:

That is correct, Mr. Justice Rehnquist.

Warren E. Burger:

But Mr. Levitt had much of the same thing in mind when he came here.

He was going to try to enforce for all the people of the United States, the very explicit provisions in the fourth part of that Clause that absolutely precluded the appointment of a member of the Senate or the house to this Court —

William A. Dobrovir:

Well —

Warren E. Burger:

— under those circumstances.

William A. Dobrovir:

Any litigant who comes to this Court, who comes into the Federal Court’s raising a Constitutional issue is going to seek it and if he prevails obtaining enforcement of that Constitutional provision, generally for all of the people of the United States.

What this Court has said however is that a litigant must himself show some particularized injury and I think that contrary to the characterization of the record made in the Government’s — the Government’s papers.

We have showed that kind of particularized injury we have shown as much injury as a person damaged by the violation of this Clause could show, we have alleged in our complaints that our attempts to influence members of Congress in connection with particular kinds of issues have been inhibited because the — these members of Congress — because of their Reserve connection which we alleged is absolutely barred by the Constitution — are biased, biased not in any corrupt or fraudulent sense but biased by reason of this reserved connection.

A connection which we though — which we submit was intended by a prophylactic kind of rule, never to exist intended by the Framers never to exist.

Those allegations were made in our complaint and there was never any answer filed to the complaint and therefore under Rule 8(d) of the Federal Rules of Civil Procedure, those allegations must stand admitted.

Byron R. White:

(Inaudible)

William A. Dobrovir:

The District Court did not issue an injunction, the District Court issued a declaratory judgment —

Byron R. White:

Did you appeal that?

William A. Dobrovir:

No, Your Honor.

We did not appeal it because the Declaratory Judgment Act expressly provides that if the parties — if the defendants against whom a declaratory judgment has issued do not comply with it, the District Court retains continuing jurisdiction and we could go back and ask for further equitable relief.

William O. Douglas:

So you’re not asking — you’ve never asked any other Court to overturn the District Court’s refusal of an injunction?

William A. Dobrovir:

We have not because we don’t feel that it is yet — yet an issue in this case.

The District Court stated in its opinion that it was of opinion that it had no doubt that the executive branch and the members of Congress affected by the declaratory judgment would be able to accommodate themselves to the declaration of the legal principle and we have no doubt that if this Court affirms the District Court and — and affirms the declaration of the meaning of the Constitutional Clause as stated by the District Court that the executive branch will comply and that the members of Congress will comply.

While we have gotten into the question of —

Warren E. Burger:

If they don’t however.

William A. Dobrovir:

If they —

Warren E. Burger:

If — if you take your hypothetical case — if they simply say the Court has no power even if the Court says it has power, then you have the confrontation of what was discussed to some extent in the Baker against Carr and several other earlier cases do you not?

William A. Dobrovir:

Well,I — I would be — let me say this very seriously that it would be — it would almost be the end of our Constitution if the executive branch failed to follow an order by a District — an order of the District Court.

Warren E. Burger:

Alright, let’s pursue it and says that the executive branch follows it but Congress passes an act unanimously reinstating the commissions of these officers.

William A. Dobrovir:

Well —

Warren E. Burger:

Is that not the type of confrontation that the Framers talked about and what the Court’s have talked about from time to time?

William A. Dobrovir:

Well, I would have thought that that kind of confrontation was the very thing dealt with very specifically in Marbury v. Madison and Kilbourn v. Thompson in this established principle of our jurisprudence that if Congress passes an Act which turns out to be unconstitutional, the courts declare it to be unconstitutional.

Warren E. Burger:

But Baker against Carr, then it went into some specific details about that, did it not?

William A. Dobrovir:

I’m — I’m afraid, I don’t have in my mind the — the passages and Baker v. Carr that you referred to, sir.

Warren E. Burger:

Well, no matter, I just wanted to interrupt your argument any further.

William A. Dobrovir:

Well, I’m happy to try to answer the questions if perhaps you could be — you could help me.

Warren E. Burger:

Well, the confrontation problem is there is it not when you — just as the confrontation problem was inherent in the Levitt case.

In the Levitt case, the president of the United States in 1930s had nominated and the Senate had confirmed as a member of this Court, a person in — according to the allegations, direct violation of the explicit provisions of the Constitution.

So, that the Court then was confronted among other factors, standing in other questions, it was confronted with making a decision which the other two branches had already passed on, had they not?

William A. Dobrovir:

I see — I see Your Honor ‘s point.

William A. Dobrovir:

I will only say this that —

Warren E. Burger:

And the Court said this is the kind of question the Courts can’t get into, won’t get into.

William A. Dobrovir:

There are some kinds of questions that Courts won’t get into.

If — if the Congress were to pass — were to enact the Statute, putting all these Reserve commissions back — back into effect after the executive branch had — had removed them from — from this office.

You would have an Act of Congress which presumably would be unconstitutional.

And Kilbourn v.– in Kilbourn v. Thompson, which has been quoted often and recently by the Court, the Court said that the declaration of a constitutional provision is what — is the duty and — the province and the duty of this Court.

And while I supposed in those early days too, the Court may have had in mind the possibility that there would be a direct confrontation.

Nevertheless, the Court had to do its duty and presumably, the Congress would do its duty and I don’t — supposed there is much difference between an Act of Congress that would establish — that would declare in effect Reserve Commissions that had been — that had been declared unlawful and any other Act of Congress insofar as it may be declared unconstitutional by this Court and the executive prohibited from enforcing it.

We are not asking for any relief to be — any relief against the Congress and in all of the cases in which, Acts of Congress are declared un — unconstitutional.

No relief is sought against the Congress, the relief runs through the executive branch which is thereby prohibited from taking action or enforcing the unconstitutional Act of Congress and what we would have here then would be an Act of Congress, a piece of legislation, unconstitutional by the previous declaration of this Court which the executive which would be prevented from enforcing because the writs of this Court do run to the executive and the Act of Congress would sit there in the books ineffective like many other Acts of Congress — like those other Acts of Congress which have been declared unconstitutional.

I think that would be the resolution under our Governmental system of this conflict.

I would like to close with a — some discussion of standing.

The principles of Flast v. Cohen are not — I don’t think a procrustean bed.

It doesn’t say if you are — you have 18 different items and if you have 16 of them — you have standing but if you only have 15 of them — you don’t.

Flast v. Cohen is a very subtle exposition of constitutional principles under Article III, what makes a case a controversy and secondly, what then — what then — assuming there is a case or controversy should make this Court stay its hand as a matter of self-restraint, and I don’t think we can talk in terms of well, you know, that was only a taxpayer’s case.

The Court was — the Court was expounding on what kind of specific relationship between the litigant and two things, the matter he was challenging, the specific action of the Government that he was challenging on the one hand, and the Constitutional provision that he was invoking on the other.

If that relationship — those two relationships were sufficiently specific, then that established the clear controversy which gave this Court jurisdiction under Article III and I think, without trying to push these facts — the facts of this case under — in — into a specific channel, I think we can say that as citizens who have — who have attempted to petition the Congress, who have attempted to persuade and to convince members of Congress, we have an interest in the matter we are challenging, a specific interest in the matter we are challenging which is —

Thurgood Marshall:

Do you have Reserve officers if your committee?

William A. Dobrovir:

Yes, Your Honor.

There are reserve officers in the committee.

Thurgood Marshall:

Well, then how do you assume that all the Reserve officers on the hill are opposed to what you say.

William A. Dobrovir:

We don’t assume it, Your Honor.

This — this is the experience that — that our members have had in — insofar as they have exercised their lobbying — their lobbying function with respect to the Congress that —

Thurgood Marshall:

You will block the Reserve officers over here to control the Congress?

William A. Dobrovir:

Well, I — I don’t want to try to go beyond of what is in the —

Thurgood Marshall:

I think you haven’t shown how been injured, I am not sure whether you’ve been injured at all here.

William A. Dobrovir:

Well, I —

Thurgood Marshall:

And how did this group of Reserve officers stopped you from lobbying?

William A. Dobrovir:

I don’t stop —

Thurgood Marshall:

— make sure that they don’t stop you.

William A. Dobrovir:

That’s right.

Thurgood Marshall:

Your question is, they might impede to?

William A. Dobrovir:

No, Your Honor.

Thurgood Marshall:

Well, what concrete allegation do you have that they do —

William A. Dobrovir:

Our concrete allegation is very simply this — that by reason of their Reserve of their Reserve membership, they have used — they are influenced by the executive branch because of this Reserve connection in ways which would —

Thurgood Marshall:

Where are the reserved members of your committee influenced —

William A. Dobrovir:

Well our reserve — the reserve members of our committee, I supposed could be called a dissident — a dissident faction in the reservist.

Thurgood Marshall:

And they could be — all in Congress could also be the dissident faction.

William A. Dobrovir:

I supposed they could, Your Honor.

Thurgood Marshall:

So you’re really hoping or imagining?

William A. Dobrovir:

I don’t think it’s imagining, Your Honor, I would say, this — that we would rely on — on the allegations in our complaint — we think that they are —

Thurgood Marshall:

Well, I’m talking about the allegation — or like of —

William A. Dobrovir:

Yes, Your Honor.

Warren E. Burger:

Would it be relevant if you went to trial on the merits, this is highly hypothetical now.

If the members — 117 members of Congress showed that a 99% of the time they voted just the way your committee has been advocating that — that’s a relevant inquiry?

William A. Dobrovir:

We went to trial on the merits and that — and that turned out to be the proof then, we would loose on — those allegations of our complaint with not — we would lose on that point and I suppose, we would then — no, we would not have a standing if there were a trial on the merits on this issue.

The point is that the government did not choose to challenge these allegations and there was no trial on the merits, so they stand uncontroverted in the record.

But I suppose I should conclude by just replying very briefly to the question raised by my brother about — that this office is so minor and so tenuous in office that it should — that it — that it is not intended to be prohibited by the — by the Clause.

And I think in response to this I would quote again from the 18 —

Byron R. White:

(Inaudible) to stand in Court.

William A. Dobrovir:

That is right, Your Honor.

I would quote again from the 1899 report in which it was said, “It maybe said that there are many offices under the United States of little importance and carrying little or no pay and that it cannot be possible that the Framers of the Constitution contemplated forbidding a member of the National Legislature to hold one of these small offices.”

This is not the question.

No line could be drawn between the large and the small office.

The principle declared was that a member of the Congress of the United States shall not hold any office under the United States and retain his seat as a National legislator.

Warren E. Burger:

Would you say that if the member of Congress is appointed to a presidential commission that he suffers the same bar?

William A. Dobrovir:

That was one of the matters that was considered by the Congress in this very comprehensive 1899 report and I — as I read the language, I think they at least felt that any kind of office, however 10 U.S. if may be was barred by the Clause.

Now, it’s important I think to note that in 1899 even though the report was very specific and —

Warren E. Burger:

Mr. Dobrovir do you have further now.

William A. Dobrovir:

Yes, Your Honor.

William A. Dobrovir:

First, with respect to the question of justiciability.

I would like to point out very simply that the question of a conflict which I think is the prevailing, the principle behind justiciability what is intended to be prevented will not exist in this case that here as in Powell v. McCormack and I am referring to the opinion at 395 U.S. at page 548.

The determination of our claim here would require no more than an interpretation of the Constitution and this is falls within the traditional role accorded to Courts to interpret the law.

That — the referral so to Roudebush v. Hartke in which the Court held — this Court held that it did not violate the justiciability principle to permit a Court to order a recount in a senatorial election because to do so within no way impinge upon or interfere with the function of the Senate in later determining the qualification of its own members that the Senate is free to accept or reject the apparent winner.

Warren E. Burger:

That’s of course a state function in — in the Roudebush case wasn’t it?

William A. Dobrovir:

Yes it was but the Court —

Warren E. Burger:

On a federal matter.

William A. Dobrovir:

The Court — the Court indicates very expressly in Footnote 23 just mentioned the fact that this is a qualification committed to the Senate and discussed it in those terms.

(Voice Overlap)

Warren E. Burger:

That — that function was just like counting the ballots in the first instance —

William A. Dobrovir:

Well, I would — I would only submit that — that nothing this Court does will interfere with the power of the Senate where it has — itself to determine the qualifications of any of its members and there are political considerations both ways involved in what the Congress may do which is not what this Court does or what any Court does.

And that this Court’s determination will in no way either inhibit or — or impose any requirement on the Congress with respect to the qualification of a member.

And perhaps there is indeed wisdom in the Court’s deciding questions like this because as this Court’s said in — in Brewster, this isn’t the kind of thing that Congress perhaps should not lay aside its normal activities and take on the responsibility in the court’s words, to police and prosecute the myriad activities of its members.So it may be that this is the kind of decision which in the separation of powers under our Constitution, the Court should undertake.

With respect to standing which is an important issue in this case, I think it’s important that the injury here be viewed in light of the intent of the Framers.

In the intent of the Framers, I think it’s clear was to avoid even the potential of any conflict of interest.

Even the potential of any executive influence and I could refer to — I would refer the Court to the Dixon-Yates case the United States versus Mississippi Valley Generating Company.

In particular 364 U.S. at page 549 in which discussing another conflict of interest provision that in a statute, the Court said that the statute is directed not only at this honor.

But also a conduct that tempts dishonor and thus as in Board of Governors v. Agnew which was cited by the District Court at a potential and that as the Court continued on page 551 of the opinion in Mississippi Valley that it was intended by the Congress in that statute to establish a rigid rule of conduct and I think that the Incompatibility Clause is no less rigid.

With respect further to this matter of injury I would like to refer the Court to the — to its — to the recent decision in the United States versus SCRAP and to point out that there where users of the environment, users of the parks were able to show the possibility of injury by way of the littering of the areas that they use for recreational purposes.

That is much like what we have here where we have shown — we have shown very clearly the potential for harm.

The possibility of littering there, the potential for damage to the — to our ability to influence members of Congress here and there is a further analogy I think and that there, the Court found that those individual plaintiffs were users of the specific recreational areas in question here.

We too have shown that we are in that sense users of the Congress.

We attempt to influence the Congress.We lobby the Congress.

Finally, I think in view of the emphasis the Court has put on Ex parte Levitt, it might as be well —

William H. Rehnquist:

Well then you — you’re standing according depends partly on the fact that you’re a lobbying organization or — or you know trying to influence legislation whatever you want to call it.

William A. Dobrovir:

That is right, that is right.

The Ex parte Levitt is a very peculiar kind of decision in that as — as the Court has pointed out.

It was reached on the basis of a motion filed in this Court for a permission to file a petition that Justice Black not be permitted to take his seat.

And I went back and read the opinion, the cases that were cited by the Court.

First of all, the first case was Tyler v. Judges in 179 U.S. 405 where the Court there citing (Inaudible) on pleadings discussed the fact that a party to have standing must be one whose legal right has been affected.

William A. Dobrovir:

And then Southern Railroad versus King, that one I didn’t understand because that seemed only to involve the sufficiency of an answer to raise the issue of the repugnance of a statute to the Commerce Clause.

In Newman versus Frizzell, that was a suite in quo warranto to challenge the appointment of a DC commissioner and the Court held that the — the writ, quo warranto was not available to someone who himself did not claim a right to hold the office.

Fairchild v.– versus Hughes was a suite to declare the female suffrage amendment to the Constitution null and void.

And Justice Brandeis said that this was not a case or controversy because among other things in this — in –in Mr. Fairchild’s own state, New York, women had been granted the right to vote so that the amendment did not do him any greater injury than he had already suffered by the activist’s own legislature and I think it’s implicit in that case that if it had been otherwise, he might well have had standing.

And finally of course, the Court cited Massachusetts v. Mellon, and I won’t — I won’t go into that any further I think what Frothingham v. Mellon means today was very carefully explained by this Court in Flast v.Cohen.

Where — why Levitt is important is that it has been cited by this Court in two or three recent cases in particular in Laird versus Tatum.

And there, I think it’s important to note the context in which it was cited, cited in the context of a situation where the individual plaintiffs in that particular case, themselves had admitted that they had not been injured that they had suffered no inhibition of their own exercise of their first amendment rights on the basis — on the basis of the surveillance that have been visited upon them.

And so, I –I would submit that Ex-parte Levitt does not, this very brief and per curiam opinion on a motion by Mr. Levitt as a — as a member of the bar should not — should not be adopted by this Court as a limiting principle and as — as — and the taking away from what this Court has — has granted in effect in Flast v. Cohen.

Warren E. Burger:

Do you have anything further Mr. Solicitor General?

Daniel M. Friedman:

I think not Mr. Chief Justice.

Potter Stewart:

Is this the case Mr. Solicitor General on which the District Court said that at least in the District of Columbia Circuit standing was no longer anything to be taken very seriously or words to that effect.

Daniel M. Friedman:

That is correct Mr. Justice Stewart.

The District Court said that the concept of standing I believe had been almost amended in this Circuit.

Potter Stewart:

Something like that.

I’m trying to find it.I didn’t remember if it was this case or another case.

Daniel M. Friedman:

This is the case.

Potter Stewart:

Alright.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.