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individuals to attack official misconduct in “public actions” is instructive:680 From an early date the English courts took cognizance of actions by "strangers" to "prevent a usurpation of jurisdiction”; these were “public actions manifesting the King's concern that the officer not cxcccd his powers.” Truc, the stranger often had some “special interest" which was "something less precise than a 'right'"; and but the interest of an agency, an official, or Congress in thc protection of their functions from impairment cqually amounts to such an interest, as was most recently confirmed by Unilcd Slalcs cx rcl. Chapman v. FPC.001 English law procccded beyond the "special interest” of the stranger in the statutcs authorizing informer's actions:

Statutes providing for actions by a common informer, who himself has no interest whatever in the controversy other than that given by statute, have been in existence hundreds of years in England, and in

this country ever since the foundation of our Government.602 Though the grant of a portion of the potential recovery gives the informer an “adverse" interest for "controversy” purposes, it is patently an interest contrived for law enforcement.098 Even that "personal” interest is lacking in the widely accepted suits by an Attorncy General to keep an official within bounds. In our own time, private litigants who had suffered no "legal injury," were 1965)

080 Scc note 649 supra.

600 JAFFE & NATHANSON, ADMINISTRATIVE LAW 834 (2d ed. 1961). Speaking of English law prior to adoption of the Constitution, Proscssor Jaffc relates that: “A number of notable statements expressed the King's gcncral concern for legality, and in the writ of prohibition, at least, there is overt authority for allowing anyonc to initiate the proceedings. Though in most mandamus cascs there probably was in fact special injury, there is little or no positive procedent requiring it, and in many cases the special injury would not satisfy a strict requirement of violation of a right.” Jaffe 1308. He also states that lists of mandamus cases in the English digests "strongly suggest the possibility that the plaintiff in some of them was without a personal interest," id. at 1270, directing attention also to People v. Collins, 19 Wend. 56, 65 (X.Y. Sup. Ct. 1837), which "lists a few English cases in which the relator was a private person without specific interest." The "relator action" derived from the Crown's duty "to see that public bodies kecp within their lawful powers," WADE 95; and implicit in the English cases is recognition that a citizen who complained of a lawbreaking official presented a justiciable question. The more restrictive view expressed in Frothingham v. Mellon, 262 U.S. 447 (1923), has justly been criticized. 3 Davis 243-48; Jafie 1266.

601 345 U.S. 153, 156 (1953). The official interest which gives standing to sue is hereinafter discussed in detail.

602 United States ex rel. Marcus v. Hess, 317 U.S. 537, 541 n.4 (1943) (quoting from Marvin v. Trout, 199 U.S. 212, 225 (1905)). Informer suits have been termed "one maniscstation" of the basic idca of the private Attorney General who can sue to vindicate the public intcrest. DAVIS, ADMINISTRATIVE LAW: CASES-TEXT-PROBLEMS 420 (1960).

693 Compare the conduit function of the Secretary of Labor under the Fair Labor Standards Act $ 14, 63 Stat. 919 (1949), 29 U.S.C. § 216(c) (1959), which authorizes him to sue on behalf of an employee for recovery of unpaid minimum wages and to turn over the recovery.



given standing by Congress to protest against improper administrative activity “as representatives of public interest,"991 a variant of the centuries-old "informer's" actions or the suits by the Attorney General "on the relation of" a private 'The fact that the "public action" has become "broadly established in this country," that it is “deeply imbedded in our system,"406 testifies to widespread judicial recognition of our overriding concern that administrators be kept within bounds and that attainment of that goal can be facilitated by enlistment of “natural law enforcers."607

The case for a suit by Congress against the executive branch is not dependent upon such general propositions because the Supreme Court has given explicit recognition to the standing of a public official to challenge administrative action. In United Statcs cx rel. Chapman v. FPC,088 the Secretary of the Interior was allowed to attack an order of the FPC, granting a license to a private power company to construct a dam, on the ground that it encroached on a responsibility that a statute had confided to him, namely, the duty of marketing surplus power developed at federal hydroelectric plants. Because an association of non-profit rural electric cooperatives had joined in the Secretary's challenge, the Court stated that "difierences of view ... preclude a single opinion of the Court as to both petitioners."600 Whatever "uncertainty" there may be as to "the meaning of the case,"700 recognition of the "interest” of a public official in protection of his functions from impairment represented no innovation.

The agency which protests that another administrator is unlawfully encroaching on its jurisdiction has an immediate interest that transcends an interest in general law enforcement-it seeks protection from impairment of its functions. The Supreme Court has recognized "the legitimate interest of public officials and administrative commissions, federal and state, to resist the endeavor 1343

804 See note 686 supra.
605 C/. Associated Indus. v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943).

606 Jassc 1275, 1296. Comparc the trcblc damage suits authorized by the antiinist laws, which arc considered as a grcalcr dctcrrcnt to dubious practices than possible criminal prosecution. MacIntyre 128. Attorney General Locvinger stated that: "It seems indisputable that law cnsorccnicnt through privalc action is both more flexible and lçss authoritaria: than enforcement by a central government agency." Locvinger 168. If this be truc in the face of numerous official suits against anti-trust violators, how much more truc must it be given the rarity with which thc Attorney General sucs to keep an official within bounds.

007 3 Davis 220.

608 345 U.S. 153 (1953). The facts are set out in more detail in United States ex rel. Chapman v. FPC, 191 F.2d 796 (4th Cir. 1951).

090 345 U.S. at 156. (Empbasis added.) 700 3 Davis 280.


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to prevent the enforcement of statutes in relation to which they have official dutics."701 An agency which has a “duty" to perform has a "correlative right ... to protection in performance of its function."702 Nccdless to say, the standing of the state or federal government or of their officers has for long not been limited to pccuniary or proprietary interests,708 The right of Congress to protect one of its most vital functions from impairment riscs at least as high as the standing of state senators to maintain the "effectiveness of their votes."704 The functions confided to Congress are more basic and essential and more deserving of protection from impairment than those of any agency or officer, and no instrumentality of government is more justified in challenging official misconduct than is the representative body elected by the people. Doubts, if any, which remain on the score of standing may be set at rest by a statute, earlier suggested, 706 that would authorize the courts to entertain suits by Congress or a duly authorized committee against the executive branch and vice versa, to compel the delivery or protect the withholding of information:

Where suit by the United States (or one of its branches] is expressly authorized by Act of Congress, therc is no problem of standing; Congress has power to authorize the United States to be guardian of the public interest by bringing suits.700

701 Coleman v. Miller, 307 U.S. 433, 442 (1939). "Innumerablc cases recognize the standing of an administrative or exccutive officer to defend the constitutionality of the legislation which he is charged with administering or enforcing." HART & WECHSLER 162.

702 Brewer v. Howie School Dist. No. 46, 238 F.2d 91, 104 (8th Cir. 1956). In Summerfield v. CAB, 207 F.2d 200, 203 (D.C. Cir. 1953), wherсin the board fixed air mail transportation rates for Western Air Lines, it was held that: “Thc Postmaster General is a party in interest by rcason of the dutics in respect to mail pay imposed upon him by the statute."

703 Gcorgia v. Pennsylvania R.R., 324 U.S. 439, 447 (1945); Sanitary Dist. v. United States, 266 U.S. 405, 425 (1925) (standing to "remove obstruction to interstate and foreign commerce"); Pennsylvania v. West Virginia, 262 U.S. 553, 591-92 (1923) (suit to enjoin cut-off of gas); New York v. New Jersey & Passaic Valley Sewage Comm'rs, 256 U.S. 296, 308 (1921) (suit to enjoin discharge of sewage),

Non-pecuniary interests of administrative agencies have likewise been recognized, 1.8., "state commissions ... officially represent the interest of their states in obtaining adequate transportation service." ICC v. Oregon-Washington R.R. & Nav. Co., 288 U.S. 14, 25 (1933). And state officials protecting their functions have an "adequate interest" even though they have sustained no "private damage." Coleman v. Miller, 307 U.S. 433, 442, 445 (1939). See also SEC v. United States Realty & Improvement Co., 310 U.S. 434, 460 (1940); Hopkins Fed. Sav. & Loan Ass'n v. Cleary, 296 U.S. 315, 339 (1935); Brewer v. Hoxie School Dist. No. 46, 238 F.2d 91, 104 (8th Cir. 1956) (school board has "right to ... protection in the performance of its functions"); Board of Governors of Federal Reserve System v. Transamerica Corp., 184 F.2d 311, 316 (9th Cir. 1950); WRICOT 60.

704 Coleman v. Miller, 307 U.S. 433, 438 (1939), quoted in Baker v. Carr, 369 U.S. 186, 208 (1962)

700 Sce text accompanying notes 630-34 supra. 700 WRICHT 60. Mr. Justice Douglas said that Congress "has broad authority to

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C. Political Qucstions

No mention is made of "political questions” in the debates of thc Framers and the ratifying conventions as a limitation on the scope of judicial review. In at Icast one pre-1787 case, Commonwcalth v. Caton,707 Judge George Wythe took for granted the justiciability of a dispute between the Virginia Scnate and House of Delegates. That dispute lay at the bottom of an appeal from a conviction for treason; and Wythe unhesitatingly assimilated the duty “to protcct one branch of the legislature, and, consequently the whole community, against the usurpations of the others,” to the judicial duty to protect “a solitary individual against the rapacity of a sovereign." It speaks volumes on whether a dispute between different branches of government was deemed justiciable in 1782 that so eminent a jurist and scholar as George Wythe should not have experienced the slightest apprehension on that score. The “political questions" doctrine is a judicial construct of a later time, largely erected on the postulate that the power to decide in the premises has been confided to the other departments, a postulate that ill-fits the situation in which neither of the disputants can have the final say in the resolution of their boundary dispute.

Nevertheless, it has been generally assumed, among others by the revered Judge Learned Hand, that the courts will not adjudicate conflicting claims to power of the legislative and cxccutive branches becausc thcy present a "political” and thcrcforc non-justiciable question.rok That assumption nccds to bc tcstcd by the cases, particularly since Baker v. Carp700-lhe explosive rcapportionment casehas narrowed the realm of nonjusticiability."• No casc thus far

determine who has standing to prolcsl the action of administrative agencics." Douglas 225.

707 Commonwealth v. Caton, 4 Call 5, 8 (Va. 1782).

708 Bartu 17; TAYLOR 87; Kramer & Marcusc 903, citing still other writers; Younger 776. Cf. Schwartz 45; Hand 18: “[WJould you not, likc mo, gucss that the Court would refuse to pass on the controversy ?" I havc some difficulty squaring this with his prior statement, id. at 3, that: “No provision was expressly made, however, as to how a 'Department' was to proceed when in the exercise of one of its own powers it became necessary to consider the validity of some carlier act of another 'Department.' Should the second accept the decision of the first that the act was within the first's authority, or should it decide the question de novo according to its own judgment? A third view prevailed, as you all know: that it was a function of the courts to decide which 'Department' was right, and that all were bound to accept the decision of the Supreme Court." One who finds himself differing with Judge Hand must say, as did Justice Iredell long ago, that "however painful it may be, to differ from gentlemen, whose (vastly) superior abilities and learnings I readily acknowledge, I am under the indispensable necessity of judging according to the best lights of my own understanding, assisted by all the information I can acquire." Ware v. Hylton, 3 Dall. (3 U.S.) 199, 265 (1796).

700 369 U.S. 186 (1962).

710 Emerson 66, citing, inter alia, the Court's rejection of blanket application of the doctrine even to foreign relations and to Indians. 369 U.S. at 211, 215.



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has decided that a legislative-executive conflict is nonjusticiable. On the contrary, the Supreme Court has already acted "as umpire bctween Congress and the [P]resident"711 in Mcycrs v. United Slatcs712 and United States v. Lovctt.718 In Myers the Court permitted the Attorney General to attack a congressionally enacted statute limiting the President's removal power, and as Mr. Justice Frankfurter later remarked, “on the Court's special invitation Senator George Wharton Pepper, of Pennsylvania, presented the position of Congress (in opposition to the Attorney General] at the bar of this Court."714 In United States v. Lovett, involving a statute designed to force certain agencies to discharge respondents, the argument of counsel for Congress716 that

since Congress under the Constitution has complete control over appro-
priations a challenge to the measure's constitutionality does not
present a justiciable question in the courts, but is merely a political

issue over which Congress has final say was rejected.116 In form, to be sure, both Myers and Lovett were private suits for recovery of salary, but in substance-Mr. Justice Frankfurter has reminded us of the Court's admonition to avoid the "tyranny of labels"717—these were in fact vigorous contests between Congress and the President.718 And in the teeth of a congressional attempt to deprive the Supreme Court of jurisdiction to review a provision curtailing the effect of a Presidential pardon, the Court held in United States o. Klein the provision "impairs the executive authority,"710 thus jumping into a "political thicket" with both feet. If the central "power" issue was “political,” the curse was not removed because it was presented in a "private” litigation.

711 Nathanson 332. In the 1789 Congressional debate on the President's removal power, Elbridge Gerry, one of the Framers, had said that the "Judges are the Constitutional umpires on such questions." Quoted, WARREN 162. For similar remarks by William Smith, "a broad Federalist," and Alexander White, "a strict constructionist," see id. at 101-02.

712 272 U.S. 52 (1926).
713 328 U.S. 303, 312 (1946).
714 Wiener v. United States, 357 U.S. 349, 353 (1958).
716 328 U.S. at 304.

716 Id. at 313, 314. Nathanson 337, says United States v. Lovett "in onc sense ... was a protection of the executive power over personnel against unwarranted intrusions by Congress." See 328 U.S. at 312. The Court found no “necd" to decide whcther the statute was "an unconstitutional encroachment on cxecutive power....." Id, at 307.

717 Baker v. Carr, 369 U.S. 186, 297 (1962). Compare United States v. ICC, 337 U.S. 426, 430 (1949); Columbia Broadcasting Sys. v. United States, 316 U.S. 407, 419 (1942),

718 Citing Myers v. United States, a privilcge proponcnt, Younger 777 n.100, states that "we should not forget that the Supreme Court has decided disputes between Congress and the President under its gencral power to hold the other two departments within the ambit of the Constitution."

719 13 Wall. (80 U.S.) 128, 145, 148 (1871).

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