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POWELL v. MCCORMACK

April 7, 1967

Adam Clayton POWELL, Jr., et al., Plaintiffs,
v.
John W. McCORMACK et al., Defendants



The opinion of the court was delivered by: HART

 This is an action for injunctive relief, mandamus, and declaratory judgment brought by Adam Clayton Powell, Jr., and thirteen electors of New York's 18th Congressional District. Defendants are Members and Officials of the House of Representatives of the 90th Congress sued individually, in their official positions, and as representatives of all House Members. The complaint alleges that House Resolution 278, passed March 1, 1967, by a vote of 307 to 116, improperly excluded Powell from House membership in violation of the plaintiffs' Constitutional rights.

 Plaintiffs assert that Powell meets the qualifications of age, citizenship, and inhabitancy specified in Article I, Section 2, Clause 2 of the Constitution (and holds a valid certificate of election) and that under Article I, Section 5, Clause 1, these are the exclusive tests for admission to House membership. In addition, plaintiffs allege that House Resolution 278 subjects them to discrimination based upon race and color in violation of the 5th, 13th, and 15th Amendments to the Constitution; that the Resolution constitutes a bill of attainder, an ex post facto law, and cruel and unusual punishment; and that adoption of the Resolution violated procedural due process and the 6th Amendment.

 28 U.S.C. § 2282 provides as follows:

 
"An interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title."

 It is plain by its terms that the foregoing section applies to an "Act of Congress" only. The history of the statute is wholly consistent with this interpretation. The matter complained of here, House Resolution 278, is patently not an Act of Congress. It follows, therefore, that convening a statutory three-judge court to consider the issues raised by the complaint is neither required nor authorized.

 The question whether a joint resolution of Congress, approved by the President, would be an "Act of Congress" within the meaning of 28 U.S.C. § 2282 is not before this Court and, therefore, is not decided. In any event, the decision of the Court on the motion to dismiss would moot the question of the right of plaintiffs to a three-judge court in the case at bar.

 MOTION TO DISMISS - JURISDICTION

 The defendants have moved under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for the following reasons:

 1. This Court does not have jurisdiction over the subject matter of this action;

 2. This Court does not have jurisdiction over the persons of the defendants;

 3. The complaint fails to state a claim upon which relief may be granted.

 In their brief the defendants have broken down the three contentions for dismissal set forth above into a number of sub-heads. Each of these sub-heads has been briefed and argued with learning and care by both sides.

 1. Speech or Debate Clause

 In the English Bill of Rights ("An Act Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown; passed in the 1st year of William and Mary, A.D. 1689") it was provided:

 
"That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament."

 This provision was carried forward in our Constitution, Article I, Section 6, Clause 1, in the following language:

 
"* * *; and for any Speech or Debate in either House, they [The Senators and Representatives] shall not be questioned in any other Place."

 The above provision of the Constitution may well bar jurisdiction of the Court in the matter here in controversy, but the Court does not ...


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