The opinion of the court was delivered by: FAHY
In its early stages this case was thought to require the convening of a three-judge District Court under the mandate of 28 U.S.C. § 2282,
since the complaint, in seeking injunctive relief against appellees, alleged that Rule XI of the House of Representatives, the charter of the House Committee on Un-American Activities, was enacted by the Legislative Reorganization Act of 1946, 60 Stat. 812, and was unconstitutional. The constitutional question being deemed not insubstantial, a three-judge District Court was convened under the terms of 28 U.S.C. § 2284 which prescribes the procedure for and composition of a three-judge District Court required by Section 2282. At the outset this three-judge court requested memoranda on the issue whether "this case should proceed before this specially constituted three-judge court or be remanded to a single District Judge." Both parties promptly filed memoranda, but neither raised the question whether Rule XI was an "Act of Congress." Thereafter on April 14, 1967, defendants filed a "Supplement to Motion to Dismiss * * *," urging that Rule XI is a "Rule of Procedure adopted by the House of Representatives (acting singly)." The close reexamination of the genesis and status of Rule XI, prompted by defendants' "Supplement," has led us to conclude that Rule XI is not an "Act of Congress" as that term is used in Section 2282, that the activities of defendants as to which injunctive relief is sought by plaintiffs have been and are conducted under authority of a rule of the House of Representatives rather than under the authority of an Act of Congress, and that, therefore, the case is not one that comes within the provisions of Section 2282.
Plaintiffs' Bill of Complaint alleges that the Legislative Reorganization Act of 1946 enacts, inter alia, Rule XI of the Rules of the House of Representatives, referred to as the charter of the Committee, and that, as thus enacted the Rule is void on its face, including its origin, the setting within which the Committee has operated in the past, and as the Rule is applied to plaintiffs, in that it violates the Constitution, in particular Article I, Section 9, Clause 3, and Article III, as well as in other respects set forth.
Title I of the Reorganization Act is the part of the Act pertinent to this case. It is entitled "Changes in Rules of Senate and House" after which follows the subtitle, "Rule-making Power of the Senate and House." The title then contains the following unusual provision:
Sec. 101. The following sections of this title are enacted by the Congress:
(a) As an exercise of the rule-making power of the Senate and the House of Representatives, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply; and such rules shall supersede other rules only to the extent that they are inconsistent therewith; and
(b) With full recognition of the constitutional right of either House to change such rules (so far as relating to the procedure in such House) at any time, in the same manner and to the same extent as in the case of any other rule of such House. [60 Stat. 814.]
A "Part 1" then provides the "Standing Rules of the Senate," including "Standing Committees of the Senate."
A "Part 2" provides "Rules of the House of Representatives," including "Standing Committees of the House of Representatives." Under the caption "Rule X," which is the first rule set forth, it is stated, "There shall be elected by the House, at the commencement of each Congress, the following standing committees:" "17. Committee on Un-American Activities, to consist of nine members." Rule XI provides the "Powers and Duties of Committees." In due course under this Rule comes "Committee on Un-American Activities." Its powers and duties are there set forth as follows:
"(A) Un-American activities.
"The Committee on Un-American Activities shall report to the House (or to the Clerk of the House if the House is not in session) the results of any such investigation, together with such recommendations as it deems advisable.
"For the purpose of any such investigation, the Committee on Un-American Activities, or any subcommittee thereof, is authorized to sit and act at such times and places within the United States, whether or not the House is sitting, has recessed, or has adjourned, to hold such hearings, to require the attendance of such witnesses and the production of such books, papers, and documents, and to take such testimony, as it deems necessary. Subpenas may be issued under the signature of the chairman of the committee or any subcommittee, or by any member designated by any such chairman, and may be served by any person designated by any such chairman or member. [60 Stat. 828-29.]
The Legislative Reorganization Act of 1946 only restates the rules pertaining to the House Un-American Activities Committee. The Committee achieved its standing committee status and first received its charter, as it presently reads, in House Resolution 5, 79th Cong., 1st Sess., 91 Cong.Rec. 10, 15 (1945). See also Watkins v. United States, 354 U.S. 178, 201-203, 77 S. Ct. 1173, 1 L. Ed. 2d 1273.
We particularly note that Title I is headed "Changes in Rules of Senate and House," and states that it is enacted by Congress "[as] an exercise of the rule-making power of the Senate and the House of Representatives, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply", with recognition of the right of either House to change the rules relating to the procedure of such House, at any time or in the same manner and to the same extent as "in the case of any other rule of such House." This conforms with the provision of Article I, Section 5 of the Constitution: "Each House may determine the Rules of its Proceedings * * *" In contrast, Title II of the Act also bears upon the internal affairs of Congress, but makes no provision for amendment by either House and does not purport to be "[an] exercise of the rule-making power of the Senate and the House of Representatives, respectively". Its provisions are denominated "Statutory Provisions."
While the House was sitting as a Committee of the Whole House to consider the 1946 Act, Congressman ...