The opinion of the court was delivered by: GASCH
Before the Court is plaintiffs' motion under Rule 59(e) of the Federal Rules of Civil Procedure to alter or amend the Court's judgment in this case of June 6, 1979. This suit was brought by eight members of the United States Senate, a former senator, and sixteen members of the House of Representatives seeking declaratory and injunctive relief against the notice given by defendant President Carter to the Republic of China ("ROC" or "Taiwan") to terminate the 1954 Mutual Defense Treaty Between the United States of America and the Republic of China. Plaintiffs seek to have this Court declare that the termination of the 1954 Treaty cannot be legally accomplished, nor can notice be given of intended termination, without the advice and consent of the United States Senate or the approval of both houses of Congress. Plaintiffs contend that President Carter's unilateral notice of termination violated their legislative right to be consulted and to vote on the termination and also impaired the effectiveness of prior votes approving the 1954 Mutual Defense Treaty.
By Memorandum-Order dated June 6, 1979, the Court dismissed plaintiffs' complaint without prejudice on the ground that plaintiffs lacked standing. Under the circumstances then presented, the Court believed that plaintiffs had not suffered the requisite injury in fact to support standing. The Court now concludes, for the reasons set forth in Part II A of this Memorandum, that all plaintiffs with the exception of former Senator Curtis
have suffered and are suffering a present judicially cognizable injury in their capacity as individual legislators. Accordingly, the Court hereby alters and amends its judgment of June 6, 1979 to hold that these plaintiffs have standing to seek a judicial declaration with respect to the constitutionality of the President's unilateral termination of the 1954 Treaty. The Court further concludes, for the reasons set forth in Part II B, that this case does not present a nonjusticiable political question, and thus the issue of treaty termination should be decided on the merits.
A full discussion of the events leading up to the present diplomatic situation is contained in the Court's Memorandum-Order of June 6, 1979, and is incorporated herein by reference. The essential dispute concerns the constitutional validity of President Carter's unilateral notice of termination of the Mutual Defense Treaty, given on December 23, 1978 through the United States Deputy Secretary of State, Warren Christopher. According to the notice, the termination will be effective January 1, 1980 pursuant to the termination clause contained in Article X of the treaty.
The President has not submitted, for the purpose of obtaining legislative concurrence, the notice of termination to either the Senate or the Congress as a whole.
Instead the President maintains, and has continued to maintain, that he possesses the unilateral authority under the Constitution to terminate the Mutual Defense Treaty with the Republic of China.
Before reaching the merits of that constitutional question, however, it remains necessary to resolve the threshold issues of standing and political question, which are subsumed within the concept of justiciability. These inquiries become particularly sensitive in the context of a suit by Senators and Congressmen seeking to challenge executive action, because of the accompanying political overtones and separation of powers concerns. Although in this context, standing to sue and the political question doctrine are interrelated to a large degree, the Court, as it did in its earlier opinion, believes it appropriate to address the standing issue first.
In moving this Court for an order to alter or amend its judgment of June 6, plaintiffs contend that the requirements for injury in fact expressed in the Court's earlier opinion have been satisfied and that they now have standing to assert their derivative constitutional rights.
It has been noted that no special standards govern congressional standing questions. As articulated by the Court of Appeals for the District of Columbia Circuit, a legislator must satisfy the same basic requirements for standing as any other litigant: (1) that he has suffered injury in fact; (2) that the interests being asserted are within the zone of interests to be protected by the statute or constitutional guarantee in question; (3) that the injury is caused by the challenged action; and (4) that the injury is capable of being redressed by a favorable decision. Harrington v. Bush, 180 U.S. App. D.C. 45, 59, 60, 553 F.2d 190, 204, 205 n. 68 (D.C. Cir. 1977). At issue here is the existence of injury in fact, a constitutionally mandated requirement inherent in the Article III "case or controversy" limitation on federal judicial power. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970).
The Court of Appeals, beginning with its important decision in Kennedy v. Sampson,
has developed a comprehensive body of law setting forth an analytical framework for approaching cases involving congressional standing. The theory of standing established in Kennedy is one of derivative injury, based upon the right of each individual legislator to participate in the exercise of the powers of the institution.
This concept of derivative institutional injury requires a plaintiff Congressman to show, first, an injury in fact to the institution of Congress, and, second, that as an individual legislator he has been injured in fact because of the harm done to the institution. Harrington v. Bush, 180 U.S. App. D.C. 45, 54, 553 F.2d 190, 199 n. 41 (D.C. Cir. 1977). The institutional injury alleged by plaintiffs here is that President Carter's unilateral notice of termination of the 1954 Treaty has violated the constitutional right of Congress to be consulted and to vote on that termination.
Under the circumstances present at the time of the Court's June 6 decision, the Court could not discern the existence of a definite and concrete institutional injury, and thus held that the individual legislators could not claim a derivative injury to their participatory rights. In large part this was due to what the Court perceived as a substantial likelihood of resolution of the treaty termination issue through the legislative process and the Court's reluctance to interfere with a potential political solution.
The question of the availability of alternative political remedies to redress executive action is indeed another dimension underlying the congressional standing cases and the insistence on a clear showing of injury in fact.
It is in this context that the prudential and functional concerns expressed by the Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), the leading statement on the political question doctrine, interrelates with the analysis of congressional standing. Both reflect the deference to be accorded a coordinate branch of government under our system of separation of powers.
Hence, courts are justifiably concerned when a suit by individual legislators seeks to vindicate derivative rights susceptible to being adequately redressed in the political arena.
The potential availability of a remedy through the legislative process, however, is not conclusive on the question of injury in fact and thus certainly not fatal to a legislator's standing claim. Metcalf v. National Petroleum Council, 180 U.S. App. D.C. 31, 44, 553 F.2d 176, 189 n. 129 (D.C. Cir. 1977); See Reuss v. Balles, 189 U.S. App. D.C. 303, 310, 584 F.2d 461, 468 (D.C. Cir.), Cert. denied, 439 U.S. 997, 99 S. Ct. 598, 58 L. Ed. 2d 670 (1978); Kennedy v. Sampson, 167 U.S. App. D.C. 192, 197, 511 F.2d 430, 435 n. 17 (D.C. Cir. 1974). Rather, in deference to the fundamental constitutional principle of separation of powers and in order to avoid abuse of the judicial process, the Court must require a clear showing of injury in fact. In each case where a denial of standing has been based in part on the existence of alternative political remedies, there was no impediment to the legislative process whatsoever and the powers of the plaintiff Congressmen remained rather clearly undiminished.
In those instances, there was a genuine risk that granting standing could have the effect of interfering with or circumventing the legislative process, and thus provide judicial redress for Congressmen who had simply failed to take advantage of, or to succeed in persuading their colleagues to take advantage of, an expedient opportunity for legislative action. The Court is convinced that this suit is distinguishable, given the present legislative posture and the nature of the derivative injury claimed.
At the time of the Court's June 6 decision, at least three resolutions dealing with the treaty termination power and the notice of termination given with respect to the 1954 Mutual Defense Treaty were then pending before, and apparently being actively considered by, the United States Senate.
The Court was especially concerned that a premature judicial declaration might circumvent legislative action directed at either approving or rejecting the President's notice of termination. Believing that the resolution of the ultimate issue of treaty termination authority in this case should in the first instance be in the legislative forum, the Court stated that its judicial powers should be exercised only after the legislative branch had been given the opportunity of acting.
At that time there was no indication whether the Senate or the Congress as a whole intended to assert a right to participate in the treaty termination process, nor whether the action likely to be taken would be such that a judicial declaration would interfere with it.
The legislative branch has now had further opportunity to act. On June 6, 1979, within hours after the Court's initial ruling in this case, the United States Senate voted 59 to 35 to adopt an amendment proposed by Senator Harry F. Byrd, containing language identical to original Senate Resolution 15,
as a substitute for the substitute amendment
proposed by the Senate Foreign Relations Committee. 125 Cong.Rec. S7038-7039 (June 6, 1979). The language adopted by the Senate vote reads as follows:
That it is the sense of the Senate that approval of the United States Senate is required to terminate any mutual defense treaty between ...