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HUMPHREY v. BAKER

June 30, 1987

Senator Gordon J. Humphrey, et al., Plaintiffs,
v.
James A. Baker, III, et al., Defendants, and The Honorable Spencer M. Williams, et al., Intervenor-Defendants



The opinion of the court was delivered by: OBERDORFER

 I.

 This action was brought by one Senator, five Congressmen, an organization of taxpayers, and two individual taxpayers against several officers of the Legislative and Executive Branches to prevent them from disbursing to Senators, Congressmen, judicial officers and certain officials of the Executive Branch, salary increases purportedly authorized by the Federal Salary Act of 1967, 2 U.S.C. § 351 et seq., as amended in 1985 by Pub. L. No. 99-190, 99 Stat. 1322 ("the Salary Act"). The matter is before the Court on cross-motions for summary judgment. The essential facts are not in dispute.

 In essence the 1967 Act, as amended, authorizes the creation once every four years of a Commission, members of which are appointed variously by the President, the Chief Justice, the Speaker of the House and the President of the Senate for a term of one fiscal year. The Act requires the Commission to review the rates of pay of, among others, Senators, Congressmen, Justices and other federal judges, as well as high ranking officials of the Executive Branch. The Commission is supposed to submit to the President a report of the results of each review. The President, in turn, is required to

 
include, in the budget next transmitted . . . by him to the Congress after the date of the submission of the report and recommendations of the Commission . . . his recommendations with respect to the exact rates of pay which he deems advisable. . . . .

 In 1985, Congress provided for the convening of a Supplementary Commission to examine salary levels. *fn2" Pub. L. No. 99-190, § 135 (a), 99 Stat. 1185, 1322 (1985). On December 15, 1986, the Commission recommended to the President substantial pay increases for the officials who are the subject of the Act, including an increase in the pay of members of Congress from $ 77,400 to $ 135,000. See Commission on Executive, Legislative and Judicial Salaries, High Quality Leadership - Our Government's Most Precious Asset (1986). In the budget submitted to Congress on Monday, January 5, 1987, the President recommended increases that were below the Commission's recommendations, based on the need "to reduce the Federal deficit and hold the costs of government to an absolute minimum." Budget of the United States Government, 1988, Recommendations for Executive, Legislative and Judicial Salaries at 1. The President's recommendations included an increase in congressional pay to $ 89,500. Id. at 2.

 The Senate agreed to a resolution disapproving all the President's recommended increases on January 29, 1987. The House approved this resolution on February 4, 1987. Statements made by members of both houses at the time of the House vote made clear that Congress believed that the House had disapproved the recommendations after the 30-day period provided for in the Salary Act. See, e.g., 133 Cong. Rec. S1592 (daily ed. February 3, 1987) (remarks of Senator Humphrey); id. at H543 (daily ed. February 4, 1987) (remarks of Representative Ford). The President expressed the same view when he signed the joint resolution of disapproval into law on February 12, 1987, stating that "the Attorney General has advised me that the purported disapproval of my pay recommendations is without any legal force and effect because the House of Representatives did not vote on the resolution until after expiration of the statutorily prescribed 30-day period for passage of a joint resolution of disapproval." 23 Weekly Comp. Pres. Doc. 148 (February 16, 1987). It is undisputed that the defendants in this action are currently calculating the pay of senior federal officials at the rates recommended by the President in his 1988 budget.

 Plaintiffs contend that the current salary levels are unlawful because they were enacted pursuant to a statutory scheme that violates Article I, Section 6, Clause 1, the so-called Ascertainment Clause of the Constitution. That clause provides that:

 
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. . . .

 Plaintiffs urge that the Salary Act's delegation to the President of the authority to effect such changes in congressional salaries as he "deems advisable" is an impermissible transfer from Congress to the President of Congress' constitutional responsibility to fix congressional salaries by law. They point out that none of the delegations previously condoned by the appellate courts was so sweeping nor the standard so broad and subjective as that evidencing delegation to the President of the power to fix such salaries as he deems "advisable." For example, delegations cited by defendants to fix "fair and equitable prices," Yakus v. United States, 321 U.S. 414, 420, 425, 88 L. Ed. 834, 64 S. Ct. 660 (1944), set rates that are "just and reasonable," FPC v. Hope Natural Gas Co., 320 U.S. 591, 600, 88 L. Ed. 333, 64 S. Ct. 281 (1944), regulate broadcasting consistently with the "public interest, convenience, or necessity," National Broadcasting Co. v. United States, 319 U.S. 190, 225, 87 L. Ed. 1344, 63 S. Ct. 997 (1943), or determine prices that will give a "fair return on the fair value" of property, Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 397, 84 L. Ed. 1263, 60 S. Ct. 907 (1940), are governed by relatively objective standards that use terms of art whose meaning could be illuminated by ample precedent defining those terms. There is no such "intelligible principle," compare J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409, 72 L. Ed. 624, 48 S. Ct. 348 (1928), to focus the decision of a President confined only to what he "deems advisable." But see Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737, 745 (D.D.C. 1971) (three judge court) (upholding provision of Economic Stabilization Act of 1970 that granted authority to the President to "issue such orders and regulations as he may deem appropriate to stabilize prices, rents, wages and salaries"). Moreover, none of these precedents is governed by the special language and history of the Ascertainment Clause. That clause was drafted by persons manifestly familiar with the long and bloody struggle by which England's Parliament used its power of the purse (as well as the sword) to emancipate itself from domination of kings purporting to rule by Divine Right. See, e.g., 8 Encyclopedia Britannica at 500-07 (1968). It is unlikely that the Founding Fathers would have proposed to leave to the President the absolute power to fix congressional (or for that matter) judicial salaries or would have authorized Congress by law to delegate such power to a President.

 II.

 Defendants respond, first, that neither the taxpayers nor the congressional plaintiffs have standing to sue. *fn3" The taxpayer plaintiffs concede that they lack standing, see Richardson v. Kennedy, 313 F. Supp. 1282 (W.D. Pa. 1970) (three judge court), aff'd, 401 U.S. 901, 27 L. Ed. 2d 800, 91 S. Ct. 868 (1971), so that if the matter is to be maintained it is on the claim of the congressional plaintiffs. The standing of these plaintiffs is established by Pressler v. Simon, 428 F. Supp. 302 (D.D.C. 1976), aff'd sub nom. Pressler v. Blumenthal, 434 U.S. 1028, 54 L. Ed. 2d 776, 98 S. Ct. 758 (1978). In Pressler, a three judge panel of this Court found that a Congressman who sought to challenge the constitutionality of the Salary Act and of the Executive Cost-of-Living Adjustment Act of 1975, 2 U.S.C. § 31, had alleged an injury sufficient to confer standing because "while salaries may be changed in the traditional fashion, the availability of procedures created by the statutes under attack make the vote of any single affected Congressman somewhat less efficacious." 428 F. Supp. at 305. The Pressler decision was affirmed without opinion by the Supreme Court. 434 U.S. 1028, 98 S. Ct. 758, 54 L. Ed. 2d 776 (1978). Justice Rehnquist noted in a concurring opinion that "our 'unexplicated affirmance' without opinion could rest as readily on our conclusion that appellant lacked standing to litigate the merits of the question as it could on agreement with the District Court's resolution of the merits of the question." Id. at 1029. However, his opinion was not joined by any other Justice. Had the Court concluded that Congressman Pressler lacked standing, it would more likely have dismissed the appeal for want of federal jurisdiction. Defendants have suggested no persuasive basis for distinguishing the Pressler Court's recognition of the standing of plaintiff in that case. Defendants' contention that the congressional plaintiffs lack standing must therefore be rejected. *fn4"

 Defendants argue in the alternative that even if the congressional plaintiffs do have standing, this court should exercise "equitable discretion" and decline to hear their claims. The doctrine of "equitable discretion" was articulated for this Circuit in Riegle v. Federal Open Market Committee, 211 U.S. App. D.C. 284, 656 F.2d 873 (D.C. Cir.), cert. denied, 454 U.S. 1082, 70 L. Ed. 2d 616, 102 S. Ct. 636 (1981). In that case, a Senator sought to enjoin the Reserve Bank members of the Federal Open Market Committee from voting on the ground that the procedures for their selection violated the Appointments Clause. The Court of Appeals determined that the separation of powers considerations that are raised in cases where a plaintiff is a member of Congress should not be addressed in the context of standing. See 656 F.2d at 879-80. However, the court held that while these considerations should not be used to deny a legislator standing, they should be considered "through a doctrine of ...


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