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June 29, 1989

JESSE HELMS, et al., Plaintiffs,

John H. Pratt, United States District Judge.

The opinion of the court was delivered by: PRATT


 In October 1986, over Presidential veto, Congress passed the Comprehensive Anti-Apartheid Act of 1986 ("CAAA"), Pub. L. 99-440, 100 Stat. 1086 et seq. (October 2, 1986). Toward its goal of ending apartheid, *fn1" Congress imposed a number of sanctions on South Africa, including a prohibition on new investments and loans to South Africa and a general prohibition of imports and exports of raw materials and agricultural products. §§ 301-323. Congress defined the term South Africa to include "any territory under the Administration, legal or illegal, of South Africa . . .," § 3 (6)(B). And as part of its goal to "undermine apartheid," Congress also outlined the United States' policy toward the "other states of southern Africa." In this section Congress stated, inter alia, the CAAA was intended to ". . . secure the independence of Namibia . . . in accordance with appropriate United Nations Security Council regulations." § 104 (b)(1). Namibia, South Africa's northwestern neighbor, has been under de facto control of the government of South Africa since World War II. *fn2" Notwithstanding current changes in the administration of Namibia and "an April 1990 target date for full independence," New York Times, April 2, 1989, at 14, col. 3, both the United States and the United Nations continue to consider Namibia a " non-self-governing territory under the United Nations Charter." See Department of State's Analysis of H.R. 2589, Letter to Chairman, Subcommittee on Africa, Committee on Foreign Affairs, House of Representatives, October 29, 1985, Hearing before the Subcommittee on Africa of the House Committee on Foreign Affairs, 99th Cong., 1st Sess. 154-59.

 The CAAA entitles the Executive branch to take various measures to enforce its provisions, §§ 208(c), 208(d), 601, 603(a), and pursuant to this directive, the Departments of State and Treasury issued various implementing regulations, applying them with equal force to Namibia. See, e.g., 22 C.F.R. Parts 60-65, 51 Fed.Reg. at 39656; 31 C.F.R. §§ 545.306, 545.312, 51 Fed.Reg. at 41908. This action tests the constitutionality of these interpretive regulations.

 On April 4, 1987 Senator Jesse Helms, five other members of Congress ("congressional plaintiffs"), and six "commercial plaintiffs" *fn3" brought this declaratory judgment action against the Departments of State and Treasury, seeking, inter alia, a declaration that the defendants' inclusion of Namibia as a target for anti-apartheid sanctions is unconstitutional Article I and Fifth Amendment violations and violative of the Administrative Procedure Act ("APA"), the United Nations Charter, various United States treaty obligations, and common law.

 Both the congressional and commercial plaintiffs assert that Namibia has established a "non-racial, democratic form of government" which meets the criteria of the CAAA. Together the plaintiffs assert that Treasury and State's regulations are arbitrary and capricious, were promulgated without a hearing, and, hence, violate the APA. The congressional plaintiffs allege, inter alia, that they represent the interests of their constituents who are being injured economically by the interruption of trade and that they have been denied their right to vote on whether Namibia should be targeted for sanctions. The commercial plaintiffs separately allege that they have been deprived of their Fifth Amendment right to engage in trade with Namibia. The congressional plaintiffs seek a declaration that neither State nor Treasury has the constitutional authority to "usurp the President's exclusive authority over U.S. foreign relations."

 At this juncture we are confronted with defendants' motion to dismiss under Rule 12(b), Federal Rules of Civil Procedure. At this stage of the proceedings, the only relevant factual issues are those alleged in plaintiffs' complaint which we must accept as true for the purposes of this motion and from which all favorable inferences must be drawn.


 Subject Matter Jurisdiction

 At the outset, this court reiterates that "there is a significant difference between determining whether a federal court has 'jurisdiction over the subject matter'" presented in the complaint and determining whether a cause over which a court has subject matter jurisdiction is appropriate for judicial consideration. Powell v. McCormack, 395 U.S. 486, 512, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969); Baker v. Carr, 369 U.S. 186, 198, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). Article III of the Constitution confers subject matter jurisdiction on a federal court if the "case or controversy" "arises" under a provision of the United States Constitution, a law of the United States, or a treaty, or by some statutory grant of jurisdiction. Generally, a complaint that is couched in constitutional or statutory terms, as is the present action, may be dismissed only if the asserted federal claims are "unsubstantial and frivolous." Baker, 369 U.S. at 199. Because plaintiffs satisfactorily allege both statutory and constitutional violations, this court assumes jurisdiction over the subject matter of the complaint.


 This determination begins rather than ends the court's analysis, for the Article III "case or controversy" provision further limits the jurisdiction of federal courts "to adjudge the legal rights of litigants in actual controversies." Liverpool S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 28 L. Ed. 899, 5 S. Ct. 352 (1885). The "case or controversy" limitation mandates that a federal court act only to redress injury that "fairly can be traced to the challenged action of the defendant." Riegle v. Federal Open Market Committee, 211 U.S. App. D.C. 284, 656 F.2d 873, 878 (D.C. Cir.), cert. denied, 454 U.S. 1082, 70 L. Ed. 2d 616, 102 S. Ct. 636 (1981). "As an incident . . . to this bedrock requirement," the litigant is required to have "standing" to bring the suit, to wit, the litigant must show an injury-in-fact, traceable to the challenged action, that is "likely to be redressed by a favorable decision." Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-74, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). Considering the profound effect that the exercise of judicial power has on "the lives, liberty, and property of those to whom it extends," it is not an understatement to assert that in no instance is the standing requirement more important than when a federal court is called upon to declare an act of the Legislative or Executive Branch unconstitutional. See id. at 473.

 The standing principle applies with equal force to members of Congress. See United Presbyterian Church v. Reagan, 238 U.S. App. D.C. 229, 738 F.2d 1375, 1381-82 (D.C. Cir. 1984); Riegle v. Federal Open Market Committee, 656 F.2d at 877; Kennedy v. Sampson, 167 U.S. App. D.C. 192, 511 F.2d 430 (D.C. Cir. 1974). A member of Congress who invokes the federal question jurisdiction must allege an injury-in-fact that is both "'specific and cognizable,' arising out of an interest 'positively identified by the Constitution,'" United Presbyterian Church, 738 F.2d at 1381, (quoting Moore v. United States House of Representatives, 236 U.S. App. D.C. 115, 733 F.2d 946 (D.C. Cir. 1984)). The injury-in-fact requirement also demands that a complaint allege more than "generalized, amorphous injuries due to . . . the conduct of the Executive," or generalized grievances that the member's "effectiveness is diminished by allegedly illegal activities taking place outside the legislative forum." Id. For a member of Congress to attain standing, therefore, proof of injury-in-fact together with a showing of an interest protected by the Constitution or federal law remains a significant hurdle. ...

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