| Schlesinger v. Reservists Committee to Stop the War
(No. 72-1188)
___ |
|||||
|---|---|---|---|---|---|
| Syllabus
| Opinion
[ Burger ] | Concurrence
[ Stewart ] | Dissent
[ Douglas ] | Dissent
[ Brennan ] | Dissent
[ Marshall ] |
| HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version |
Schlesinger v. Reservists Committee to Stop the War
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL joins, dissenting.
The requirement of "standing" to sue is a judicially created instrument serving several ends: (1) It protects the status quo by reducing the challenges that may be made to it and to its institutions. It greatly restricts the classes of persons who may challenge administrative action. Its application in this case serves to make the bureaucracy of the Pentagon more and more immune from the protests of citizens. (2) It sometimes is used to bar from the courts questions which by the Constitution are left to the other two coordinate branches to resolve, viz., the so-called political question. (3) It is at times a way of ridding court dockets whether of abstract questions or questions involving no concrete controversial issue.
Our leading case is Frothingham v. Mellon, 262 U.S. 447, decided in 1923, where a taxpayer challenged the constitutionality of an Act of Congress that gave grants [p230] to States which agreed to a plan to reduce maternal and infant mortality. The Court said:
The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public, and not of individual, concern. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect of the statute here under review, but also in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned. The bare suggestion of such a result, with its attendant inconveniences, goes far to sustain the conclusion which we have reached, that a suit of this character cannot be maintained. It is of much significance that no precedent sustaining the right to maintain suits like this has been called to our attention, although, since the formation of the government, as an examination of the acts of Congress will disclose, a large number of statutes appropriating or involving the expenditure of moneys for non-federal purposes have been enacted and carried into effect.
Id. at 487-488. That ruling had in it an admixture of the "political question" because, said the Court, the only occasion when the federal court may act is when a federal law results in "some direct injury suffered or threatened, presenting a justiciable issue." Id. at 488. When that element is lacking, judicial intrusion would trespass on powers granted another department of Government.
To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental [p231] acts of another and co-equal department, an authority which plainly we do not possess.
Id. at 488-489.
In 1968 -- 45 years after Frothingham -- that case was revisited in Flast v. Cohen, 392 U.S. 83, where federal taxpayers sued to enjoin the expenditure of federal funds under an Act of Congress granting financial aid to religious schools. The Court held that those taxpayers did have "standing" to sue for two reasons. First, because they challenged the exercise of congressional power under the Taxing and Spending Clause of Art. I, § 8, of the Constitution, not the incidental expenditure of tax funds in the administration of an essentially regulatory statute. Second, because the challenged enactment exceeded the limitations imposed upon the exercise of the congressional taxing and spending power. See 392 U.S. at 102-104. Therefore, the Court concluded that the taxpayer had "the requisite personal stake," id. at 101, in the litigation to have "standing" to sue, and the Court went on to hold that the Establishment Clause of the First Amendment "operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, § 8." 392 U.S. at 104.
The present case implicates two provisions of the Constitution. Article I, § 8, cl. 1, provides:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. . . .
Article I, § 6, cl. 2, of the Constitution says that
no Person holding any Office [n1] under the United [p232] States, shall be a Member of either House during his Continuance in Office.
The present suit is not one to oust Members from Congress. Rather, it is brought against the Secretary of Defense challenging his keeping in the Armed Services of the United States Members of Congress who hold commissions as reservists.
Various Acts of Congress make various appropriations for the services of reservists. See, e.g., Pub.L. 9145, 85 Stat. 414; Pub.L. 92-545, § 801 et seq., 86 Stat. 1154.
Article I, § 6, cl. 2, is often referred to as the Incompatibility Clause. At the 1783 convention, some proposed that Members of Congress be allowed to serve in the Executive Branch, [n2] others were opposed; Mason apparently represented the majority view when he insisted that "ineligibility will keep out corruption, by excluding office-hunters." [n3] Article I, § 6, cl. 2, like the Establishment Clause of the First Amendment, "was designed as a specific bulwark against such potential abuses . . . and . . . operates as a specific constitutional limitation upon" such expenditures. Flast v. Cohen, supra, at 104.
As stated by Hamilton in The Federalist No. 76, p. 476 (H. Lodge ed. 1888), the Incompatibility Clause had a specific purpose: to avoid "the danger of executive influence upon the legislative body."
While respondents have standing as taxpayers, their citizenship also gives them standing to challenge the appropriation acts financing activities of the reservists.
We tend to overlook the basic political and legal reality that the people, not the bureaucracy, are the sovereign. Our Federal Government was created for the security and happiness of the people. Executives, lawmakers, and [p233] members of the Judiciary are inferior in the sense that they are in office only to carry out and execute the constitutional regime.
The Preamble of the Constitution states that "We the People" ordained and established the Constitution.
The Declaration of Independence stated that to insure "certain unalienable Rights," "Governments are instituted among Men, deriving their just powers from the consent of the governed," and "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it."
The present case does not involve a restructuring of society -- a procedure left to legislative action in part, but mostly to constitutional conventions. All that the citizens in this case seek is to have the Constitution enforced as it is written. It is not a suit to unseat Members of Congress. Any decree that issued would run to the Secretary of Defense to take the challenged reservists off his list.
The interest of citizens is obvious. The complaint alleges injuries to the ability of the average citizen to make his political advocacy effective whenever it touches on the vast interests of the Pentagon. It is said that all who oppose the expansion of military influence in our national affairs find they are met with a powerful lobby -- the Reserve Officers Association -- which has strong congressional allies.
Whether that is true or not we do not know. So far as the Incompatibility Clause of the Constitution is concerned, that contention is immaterial. It is as immaterial to the function of Art. I, § 6, cl. 2, of the Constitution as would be a suggestion that the establishment of a religion under the First Amendment is benign in a given case. What the Framers did in each case was to set up constitutional fences barring certain affiliations, certain kinds of appropriations. Their judgment was that the [p234] potential for evil was so great that no appropriations of that character should be made.
The interest of citizens in guarantees written in the Constitution seems obvious. Who other than citizens has a better right to have the Incompatibility Clause enforced? It is their interests that the Incompatibility Clause was designed to protect. The Executive Branch under our regime is not a fiefdom or principality competing with the Legislative as another center of power. It operates within a constitutional framework, and it is that constitutional framework that these citizens want to keep intact. That is, in my view, their rightful concern. We have insisted that more than generalized grievances of a citizen be shown, that he must have a "personal stake in the outcome," Baker v. Carr, 369 U.S. 186, 204. But that "personal stake" need not be a monetary one. In Baker v. Carr, it was the right to vote, an important badge of citizenship. The "personal stake" in the present case is keeping the Incompatibility Clause an operative force in the Government by freeing the entanglement of the federal bureaucracy with the Legislative Branch.
Ex parte Levitt, 302 U.S. 633, is not opposed. Levitt moved in this Court to have it declare the appointment of Mr. Justice Black unconstitutional. He alleged that Mr. Justice Black, as Senator, had voted to increase the "emoluments" of the office of Associate Justice, and was therefore barred from taking office by reason of Art. I, § 6, cl. 2, of the Constitution. The Court denied the motion to file an original action stating:
It is an established principle that, to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action, he must show that he has sustained or is immediately in danger of sustaining a direct injury [p235] as the result of that action, and it is not sufficient that he has merely a general interest common to all members of the public.
302 U.S. at 634.
The only "emolument" of office which Mr. Justice Black as Senator had voted to increase was the retirement compensation of federal judges as spelled out in the Act of March 1, 1937, c. 21, 50 Stat. 24. That emolument might never accrue to an appointee, for he would first have to serve a designated number of years. It turned out that, even though Justice Black served over 34 years, he never received any benefits under the Retirement Act. Hence, the Court showed wisdom in deciding that Levitt showed no "direct injury." His claim of constitutional violation was remote, speculative, and contingent. The present suit has no such deficiency. It asserts a present, ongoing conflict between the Pentagon's policies and the Incompatibility Clause of the Constitution.
The interest of the citizen in this constitutional question is, of course, common to all citizens. But as we said in United States v. SCRAP, 412 U.S. 669, 687-688,
standing is not to be denied simply because many people suffer the same injury. . . . To deny standing to persons who are, in fact, injured simply because many others are also injured would mean that the most injurious and widespread Government actions could be questioned by nobody.
I would affirm the judgment below.
1. I agree with the conclusion of the House Judiciary Committee, H.R.Rep. No. 885, 64th Cong., 1st Sess. (1916), that a commission in the National Guard is an "office" in the constitutional sense. A commission in the Reserves is not distinguishable. See United States v. Hartwell, 6 Wall. 385.
2. See 2 M. Farrand, The Records of the Federal Convention of 1787, pp. 283-290 (1911).
3. Id. at 491.
