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BURTON v. BAKER

October 31, 1989

DAN L. BURTON, CHUCK DOUGLAS, PHILLIP M. CRANE, ROBERT C. SMITH, Members of Congress, Plaintiffs,
v.
JAMES A. BAKER, III, Secretary of State, GEORGE H.W. BUSH, President of the United States, Defendants



The opinion of the court was delivered by: JACKSON

 THOMAS PENFIELD JACKSON, UNITED STATES DISTRICT JUDGE

 Four members of the U.S. House of Representatives sue the President and Secretary of State for a declaratory judgment to the effect that a so-called "side agreement" between the Executive Branch and the Legislative Branch leadership respecting the execution of a certain law is null, void, and of no effect. The case is presently before the Court on cross-motions for summary judgment upon the following undisputed material facts.

 I.

 In April, 1989, Congress enacted Public Law No. 101-14, 103 Stat. 37 (1989) (the "Act"), the stated purpose of which was "to implement the Bipartisan Accord on Central America between the President and the Congress signed on March 24, 1989" (hereinafter the "Accord"). The Accord, to which the President, the Speaker of the House, and the House and Senate Majority and Minority Leaders are signatories, declares the Executive and the Congress to be united on a policy to achieve certain goals with regard to Nicaragua, and to that end, inter alia, to "act promptly . . . to extend humanitarian assistance at current levels to the [Nicaraguan] Resistance through February 28, 1990." H.R. Rep. No. 23, 101st Cong. 1st Sess., pt. 1, at 2 (April 11, 1989). The Accord, which is not a part of the Act and was never put to a vote in either chamber, was accompanied in the committee report by a "draft letter" from the Secretary of State to the Chairmen of the House and Senate Authorization and Appropriation Committees and the Congressional leadership. By the "draft letter" the Secretary proposed to assure its recipients that, although Congress would be voting to continue to provide "humanitarian assistance" through February, 1990, money would not be "obligated [by the Executive] beyond November 30, 1989,"

 
except in the context of consultation among the Executive, the Senate Majority and Minority leaders, the Speaker of the House of Representatives and the Minority leader, and the relevant authorization and appropriation committees and only if affirmed via letter from the Bipartisan leadership of Congress and relevant House and Senate authorization committees and appropriation subcommittees.

 Id. at 4. *fn1"

 Thus assured, Congress passed the Act which authorized the President to transfer an unspecified sum not to exceed $ 49,750,000 from unobligated funds of various armed forces appropriation accounts to the Agency for International Development, plus transportation and operating costs, "to provide humanitarian assistance to the Nicaraguan Resistance" through February 28, 1990. *fn2"

 Plaintiffs contend that the Secretary of State's undertaking for the Executive Branch to secure the approval of selected members of Congress before expending funds under the Act subsequent to November 30, 1989, presumably a quid pro quo for the Congressional leadership's assent to the Accord and passage of the Act, represents a constitutional transgression of several orders. It confers upon those select members, they say, the power of a "legislative veto;" it also purports to "amend" a duly enacted law, i.e., the Act, by unilateral Executive Branch fiat, or at least abdicates Presidential responsibility for the conduct of national defense and foreign policy; and it effects a Presidential "impoundment" of funds duly appropriated by Congress to be spent as Congress intended. It is, therefore, a nullity, and should be so declared, the implicit consequence of which will be (although plaintiffs deny a purpose to accomplish it) that the President will be obliged to continue to furnish humanitarian assistance to the Contras through February, 1990, without further permission from the ranks of Congress.

 The President and Secretary assert that the complaint should be dismissed, because it presents no justiciable case or controversy over which this or any federal court may exercise jurisdiction for several reasons: the plaintiffs are without standing to maintain the action; the doctrine of "remedial discretion" compels its dismissal; and the dispute presents a non-justiciable political question. Alternatively, defendants ask for summary judgment on the merits on the ground that the so-called "side agreement" commits none of the constitutional sins ascribed to it. It is simply a bilateral political "contract" (and enforceable only as such) for inter-branch consultation on proposed expenditures. Neither the Constitution nor the Act forbid it, or any of its provisions. The President may observe or ignore it, may consult or not, and may spend or not, as he chooses, with only political consequences to follow.

 III.

 Recent D.C. Circuit precedent, which may not be altogether consistent in reasoning but is so in result, clearly warns against the Court's taking jurisdiction of this dispute. Plaintiffs either lack the standing necessary to present a justiciable case or controversy for adjudication, or considerations which have given rise to what is now termed the doctrine of remedial discretion suggest that judicial abstention is required.

 Fifteen years ago, in Kennedy v. Sampson, 167 U.S. App. D.C. 192, 511 F.2d 430 (D.C.Cir. 1974), the court of appeals found a U.S. Senator to have standing to maintain an action against officials of the Executive Branch to declare a law to be in force despite the President's attempted pocket veto. In a succession of cases since Kennedy v. Sampson, however, the D.C. Circuit (with some subtle encouragement from the Supreme Court) has repeatedly declined to expand its holding to embrace other controversies within or ...


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