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EDWARDS v. CARTER

February 21, 1978

MICKEY EDWARDS, Member of Congress-Oklahoma, et al., Plaintiffs,
v.
JAMES EARL CARTER, President of the United States, Defendant



The opinion of the court was delivered by: PARKER

 Before BARRINGTON D. PARKER UNITED STATES DISTRICT JUDGE

 Barrington D. Parker, District Judge:

 Article IV, Section 3, Clause 2, of the United States Constitution provides in part that the "Congress shall have Power to dispose of . . . the Territory or other Property belonging to the United States." In this proceeding Representative Mickey Edwards and fifty-nine other Members of the House of Representatives appear in their official capacity and seek vindication of their allegedly mandated right under Article IV to vote on the disposition of United States property within the Panama Canal Zone.

 Currently pending before the Senate for ratification is a treaty, signed by President James Earl Carter, which would transfer certain real property in the Canal Zone from the United States to the Republic of Panama. Plaintiffs contest the procedure by which the President seeks approval of this treaty, and one other. Specifically, they request this Court to issue a declaratory judgment that the President's actions deprive the United States of property without the prior concurrence of the entire Congress, thereby thwarting them in the performance of their duties as directed by the Constitution; and that the President should transmit the treaties to the House of Representatives for its consideration under Article IV, thereby permitting plaintiffs to exercise their constitutional and legislative duties regarding the disposition of American property within the Canal Zone. Jurisdiction here rests on sections 1331, 1361 and 2201 of Title 28 of the United States Code.

 The Court has considered the memoranda and oral argument of counsel and concludes that the plaintiffs lack standing to maintain this action. The defendant's motion must be granted and the complaint dismissed for lack of subject matter jurisdiction.

 Background

 The 1903 Hay-Bunau-Varilla Treaty between the United States and the Republic of Panama granted to the United States perpetual rights to "the use, occupation and control" of the Canal Zone. *fn1" This treaty, as amended, *fn2" provides the basis for the present American operation, maintenance and defense of the Canal. The treaty has been a source of constant conflict between the two nations. In 1964, President Lyndon Johnson took affirmative steps to initiate renegotiation, a goal which has been pursued by subsequent administrations.

 Thirteen years of negotiations culminated on September 7, 1977, when President Carter signed two treaties: the Panama Canal Treaty and the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal. *fn3" Upon entry into force, the Panama Canal Treaty would abrogate prior treaties and the Republic of Panama would assume territorial sovereignty over all real property in the Canal Zone, including nonremovable improvements thereon. The United States would continue to operate the Canal until the turn of this century, year 2000, at which time Panama would take control. Under the terms of the latter treaty, the United States and Panama would share permanent responsibility for maintaining Canal neutrality.

 While there is some question as to the status of the interests to be transferred, the Court will assume for purposes of this motion to dismiss that the treaties concern property and territory of the United States, as those terms are used in Article IV of the Constitution.

 President Carter submitted the treaties to the Senate for advice and consent to ratification in September, 1977. On February 3, 1978, after extensive hearings, the Senate Committee on Foreign Relations reported the treaties to the Senate; the Committee concluded that the Panama Canal Treaty can validly transfer property of the United States without the need for implementing legislation. *fn4" The Senate is currently conducting debate on the treaties; if approved and ratified, they will enter into force six months after the exchange of American and Panamanian instruments of ratification.

 The Question of Standing

 To cross the jurisdictional threshold of the federal court, the Representatives must first demonstrate their standing to seek a declaration that President Carter's submission of the treaties only to the Senate is unconstitutional. Although legislator interests and injuries are often specialized, there are no distinct standards for determining Congressional standing questions. To resolve the ultimate issue of whether "the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976), the Court must pursue a series of inquiries. Only recently, in Harrington v. Bush, 180 U.S. App. D.C. 45, 553 F.2d 190, 205 n.68 (1977), our Court of Appeals distilled four separate such questions from the Supreme Court decisions developing the standing doctrine. First, does "the irreducible constitutional minimum" of a concrete injury in fact exist? Second, are the interests asserted arguably within the zone of interests protected by the relevant statute or constitutional provision? Third, is the injury asserted causally related to the allegedly illegal action of the defendant? Finally, is the injury "likely to be redressed by a favorable decision?"

 This Circuit has developed a relatively comprehensive body of law on the subject of legislator standing. A definite line between legislators with and without a sufficient injury in fact has been drawn. While the sixty plaintiff House Members do not fall neatly on either side of that line, a ...


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