Gregg v. Barrett, 248 U.S. App. D.C. 347, 771 F.2d 539, 544 (D.C. Cir. 1985); see United Presbyterian, 738 F.2d at 1381 (stating that the substitution of the equitable discretion doctrine for standing is not complete).
Although plaintiffs assert a number of grounds in support of their contention that the actions of the Departments of State and Treasury usurp the function of Congress and the Executive, none of the Executive's actions with respect to Namibia precludes the congressional plaintiffs from amending or repealing the CAAA. That these plaintiffs have the relief they seek through the exercise of their own legislative power is amply demonstrated by the fact that plaintiff Senator Helms recently introduced legislation to repeal the CAAA. S. 522, 101st Cong., 1st Sess., 135 Cong.Rec. 2265 (January 3, 1989); see also S. Res. 300, 100th Cong., 1st Sess., 133 Cong.Rec. 14,903 (1987) (calling on the President to terminate economic sanctions against Namibia). Recognizing that this doctrine has undergone some anomalous applications, and that the viability of this court-fashioned doctrine has been questioned, see Humphrey v. Baker, 270 U.S. App. D.C. 154, 848 F.2d 211 (1988); Melcher v. Federal Open Market Committee, 836 F.2d at 565 (Edwards, J., concurring), "equitable discretion" is, nonetheless, the law of this jurisdiction and "must be followed until rejected by this Circuit en banc or the Supreme Court." Melcher, 836 F.2d at 565. The court holds, therefore, it would be an abuse of discretion for the court to entertain the congressional plaintiffs' action with respect to the allegations that as members of Congress they have been denied their right to vote on whether Namibia should be included in the Departments of State and Treasury's implementing regulations.
Violations of the U.N. Charter, International Law, and Customary Law
Both sets of plaintiffs contend that the CAAA and the Departments of State and Treasury regulations are violations of "rights" derived from various articles of the United Nations Charter, international law, and customary law. However, none of these alleged "violations" are legally cognizable under the facts of this case and must be dismissed. It is unchallenged that under the express language of the Constitution, Article VI, cl. 2, a treaty made under the authority of the United States is the "supreme law of the land," see United States v. Belmont, 301 U.S. 324, 81 L. Ed. 1134, 57 S. Ct. 758 (1937). However, treaty clauses must confer a right on an individual in order for that individual to assert a claim 'arising under ' them. Committee of U.S. Citizens In Nicaragua v. Reagan, 859 F.2d 929, 937 (D.C. Cir. 1988). No such right is alleged here. Therefore, plaintiffs' claim that the CAAA violates the U.N. Charter is without merit and must be dismissed.
Plaintiffs also challenge the CAAA under principles of customary and international law. However, it is equally true of both customary and international law that "where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of nations." The Paquete Habana, 175 U.S. 677, 700, 44 L. Ed. 320, 20 S. Ct. 290 (1900). However, plaintiffs' action is foreclosed because "no enactment of Congress can be challenged on the ground that it violates customary international law." Committee of U.S. Citizens in Nicaragua, 859 F.2d at 939. We conclude, therefore, that plaintiffs have failed to state a cause of action with respect to their claims of violations of customary and international law.
Fifth Amendment Claims
As an initial matter the court agrees that the "Executive's power to conduct foreign relations free from the unwarranted supervision of the Judiciary cannot give the Executive carte blanche to trample the . . . property rights of this country's citizenry," Ramirez de Arellano v. Weinberger, 240 U.S. App. D.C. 363, 745 F.2d 1500, 1515 (D.C.Cir. 1984) (en banc), vacated on other grounds, 471 U.S. 1113, 86 L. Ed. 2d 255, 105 S. Ct. 2353 (1985). However, it is equally true that an Act of Congress is sufficient to confer that power on the Executive. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 96 L. Ed. 1153, 72 S. Ct. 863 (1952). However, in analyzing a Fifth Amendment "takings" claim a court's first inquiry is whether the plaintiffs have a property interest protected by the Fifth Amendment. Under this analysis, the commercial plaintiffs' Fifth Amendment action must be dismissed as fundamentally deficient.
To assert a Constitutional violation plaintiffs must demonstrate a "judicially cognizable interest in the affected property sufficient to enable them to sue for an unconstitutional deprivation of the use and enjoyment of that private property." Ramirez de Arellano, 745 F.2d at 1516. Plaintiffs have not alleged any fact that convinces us that the CAAA or the enabling regulations have disturbed any property interest held by plaintiffs. Rather plaintiffs simply allege in the most vague and conclusory terms that the CAAA has curtailed an alleged Fifth Amendment right "to engage in business," Plaintiffs' Opposition to Motion to Dismiss at 12-13, which constitutes "a deprivation of private property for public purposes without just compensation." Complaint, paras. 34, 40(b), 40(c). The court is not aware of any Fifth Amendment right to engage in business. Assuming the factual allegations of the complaint are true, as is required under a 12(b) motion, District of Columbia v. Air Florida Inc., 243 U.S. App. D.C. 1, 750 F.2d 1077, 1081 (D.C. Cir. 1984), we fail to find a cognizable claim upon which the private plaintiffs can hang their hats. Therefore, plaintiffs' Fifth Amendment claims are to be dismissed.
Finally, plaintiffs assert that Treasury and State's regulations are arbitrary and capricious, were promulgated without a hearing, and, hence, violate the APA. The court's first inquiry is whether the Executive has authority for its actions, either through its plenary power to regulate foreign affairs or by the power delegated to it through the plenary authority of Congress to regulate foreign commerce. California Bankers Ass'n v. Shultz, 416 U.S. 21, 39 L. Ed. 2d 812, 94 S. Ct. 1494 (1974). "A constitutional delegation of powers requires that Congress state a policy or objective for the President to execute and also that it establish a standard or 'intelligible principle' that makes clear when action is proper." Mast Industries, Inc. v. Regan, 8 C.I.T. 214, 596 F. Supp. 1567 (Ct. Int'l Trade 1984) (quoting Star-Kist Foods Inc. v. United States, 47 C.C.P.A. 52, 275 F.2d 472, 480 (1959)). We find that the Departments of State and Treasury were acting under the express authority of the CAAA, see CAAA §§ 208(c), 208(d), 601, 603(a), and within the stated purpose of the CAAA, § 4 (Purpose Statement). A second inquiry is whether the Executive's action complies with relevant APA procedural requirements for rulemaking. However, in making that inquiry we recognize that the APA exempts regulations that fall within the "foreign affairs function" from the notice and comment and hearing requirements normally applicable to agency rulemaking, 5 U.S.C. §§ 553 (a)(1) (Rulemaking), 554(a)(4) (Adjudication); Mast Industries, Inc. v. Regan, 8 C.I.T. 214, 596 F. Supp. 1567 (Ct.Int'l Trade 1984), provided that the subject matter of the regulations themselves "'is clearly and directly involved' in a 'foreign affairs function.'" Mast Industries, 596 F. Supp. at 1582 (quoting Legislative History of APA at 275 (House Report)); see also Environmental Defense Fund v. Gorsuch, 230 U.S. App. D.C. 8, 713 F.2d 802 (D.C. Cir. 1983). The court finds that the purpose of the regulations is clear and directly related to the foreign affairs function, and, therefore, that the regulations are exempt from the notice and comment provisions of the APA.
On the basis of the foregoing this action shall stand dismissed.