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October 12, 1976

Larry PRESSLER, Member, United States House of Representatives, Plaintiff,
William E. SIMON, Secretary of the Treasury, et al., Defendants

Per Curiam

This action seeks a judgment declaring that those sections of the Postal Revenue and Salary Act of 1967, 2 U.S.C. §§ 351 et seq. ("Salary Act") and the Executive Salary Cost-of-Living Adjustment Act of 1975, 2 U.S.C. § 31 ("Adjustment Act"), which provide procedures to set new rates of compensation for members of Congress are unconstitutional, and to enjoin increased disbursements to members of Congress under the Acts. Plaintiff, The Honorable Larry Pressler, is a member of the United States House of Representatives from the First Congressional District of South Dakota, first elected in November, 1974.

 The issues come before this Court on cross-motions for summary judgment, and defendants' motions to dismiss. *fn1" Argument was heard by this three-judge district court pursuant to 28 U.S.C. § 2284.

 The Salary Act established a Commission on Executive, Legislative and Judicial Salaries ("the Commission"). At four-year intervals the Commission must recommend to the President pay rates for Senators, Representatives, Federal Judges and certain officials in the Legislative, Judicial and Executive branches of Government. After receiving the Commission report, the President is required to submit in the next budget message his recommendations as to the exact pay rate for those positions covered by the Salary Act. The pay rates thus recommended by the President for the different positions, including members of Congress, become effective 30 days after the budget is submitted to Congress unless other rates have been enacted by law, or one House of Congress specifically disapproves all or part of the recommendations.

 The Adjustment Act provides for automatic cost-of-living adjustments in the salaries of members of Congress and other Executive, Judicial and Legislative officials. It provides in § 204(a) that congressional salaries determined by the Salary Act procedures will be automatically increased by an amount equal to the present increase being made by the President in the rates of pay of federal employees covered by the General Schedule as provided in 5 U.S.C. § 5305.

 These two interrelated statutes represent a major break with tradition. For the almost 180 years since the ratification of the Constitution, the precise compensation of members of Congress was always fixed from time to time by specific legislation without any legislative involvement by the President.

 In October, 1975, Executive Order 11883, 40 F.R. 47091, increased General Schedule salaries and accordingly congressional salaries covered by the Adjustment Act were automatically increased from $42,500 to $44,600 per annum. In September, 1976, Congress refused another automatic pay increase in congressional salaries under the Adjustment Act by refusing to appropriate necessary funds in the Legislative Appropriations Act for 1977.

 Congressman Pressler claims that the Salary Act and the Adjustment Act, whose operation has just been reviewed, violate Article I, Section 1, of the Constitution, and, more importantly, Article I, Section 6, of the Constitution, which states in pertinent part:

The Senators and Representatives shall receive a Compensation for their Services to be ascertained by Law, . . . .

 He claims that the payment of congressional salaries by defendants pursuant to the statutes in question injure him as a member of the House of Representatives by depriving him of his constitutional duty to vote on each ascertainment of congressional salaries.

 I. Standing

 It is initially argued that Congressman Pressler has no case or controversy with the defendants and, thereby, lacks standing to assert his claims. He sues as a citizen, a taxpayer, and a Congressman. It is only in this latter capacity that he can be heard, if at all. Richardson v. Kennedy, 313 F. Supp. 1282 (W.D.Pa.1970), aff'd, 401 U.S. 901, 91 S. Ct. 868, 27 L. Ed. 2d 800 (1971).

 A Congressman has standing to sue by reason of his office where Executive action has impaired the efficacy of his vote, Kennedy v. Sampson, 167 U.S.App.D.C. 192, 511 F.2d 430, 436 (1974); cf. Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L. Ed. 1385 (1939), or certain other congressional duties. Mitchell v. Laird, 159 U.S.App.D.C. 344, 488 F.2d 611 (1973). The resulting injury under such circumstances is said to create a personal stake in the outcome sufficient to assure that a suit by a Congressman affected would be in a proper adversary context. Kennedy v. Sampson, supra ; see Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Congressman Pressler alleges not that the efficacy of his legislative vote was impaired by the Executive, but rather that his vote was impaired by the failure of other members of Congress to assume an affirmative responsibility specifically placed on them by language of the Constitution. While it is clear that legislators have no special right to invoke court consideration of the validity of a statute passed over an objecting vote, Korioth v. Briscoe, 523 F.2d 1271 (5th Cir. 1975), where, as here, a member of Congress alleges he is prevented ...

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