1346 UCLA LAW REVIEW [Vol. 12: 1287 individuals to attack official misconduct in "public actions" is instructive: 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 exceed his powers." True, the stranger often had some "special interest" which was "something less precise than a 'right' " but the interest of an agency, an official, or Congress in the protection of their functions from impairment equally amounts to such an interest, as was most recently confirmed by United States cx rel. Chapman v. FPC. English law proceeded beyond the "special interest" of the stranger in the statutes 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.002 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. Even that "personal" interest is lacking in the widely accepted suits by an Attorney General to keep an official within bounds. In our own time, private litigants who had suffered no "legal injury," were 089 See note 649 supra. 600 JAFFE & NATIIANSON, ADMINISTRATIVE LAW 834 (2d ed. 1961). Speaking of English law prior to adoption of the Constitution, Professor Jaffe relates that: "A number of notable statements expressed the King's general concern for legality, and in the writ of prohibition, at least, there is overt authority for allowing anyone to initiate the proceedings. Though in most mandamus cases there probably was in fact special injury, there is little or no positive precedent 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 (N.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 keep 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. 692 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 manifestation" of the basic idea of the private Attorney General who can sue to vindicate the public interest. DAVIS, ADMINISTRATIVE LAW: CASES-TEXT-PROBLEMS 420 (1960). G93 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. 1965] WITHHOLDING INFORMATION 22694 1347 given standing by Congress to protest against improper administrative activity "as representatives of public interest,' a variant of the centuries-old "informer's" actions or the suits by the Attorney General "on the relation of" a private individual. The fact that the "public action" has become "broadly established in this country," that it is "deeply imbedded in our system," 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."7 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 States ex rel. Chapman v. FPC,098 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 "differences of view preclude a single opinion of the Court as to both petitioners." 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 604 See note 686 supra. 693 Cf. Associated Indus. v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943). 600 Jaffe 1275, 1296. Compare the treble damage suits authorized by the antitrust laws, which are considered as a greater deterrent to dubious practices than possible criminal prosecution. MacIntyre 128. Attorney General Locvinger stated that: "It seems indisputable that law enforcement through private action is both more flexible and less authoritarian than enforcement by a central government agency." Locvinger 168. If this be true in the face of numerous official suits against anti-trust violators, how much more true must it be given the rarity with which the Attorney General sues to keep an official within bounds. 007 3 DAVIS 220. G08 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). 099 345 U.S. at 156. (Emphasis added.) 700 3 DAVIS 280. 1348 UCLA LAW REVIEW [Vol. 12: 1287 to prevent the enforcement of statutes in relation to which they have official duties."701 An agency which has a "duty" to perform has a "correlative right... to protection in performance of its function."70 Needless to say, the standing of the state or federal government or of their officers has for long not been limited to pecuniary or proprietary interests.703 The right of Congress to protect one of its most vital functions from impairment rises 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,70% 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, there 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). "Innumerable cases recognize the standing of an administrative or executive officer to defend the constitutionality of the legislation which he is charged with administering or enforcing." HART & WECHSLER 162. 702 Brewer v. Hoxie 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), wherein the board fixed air mail transportation rates for Western Air Lines, it was held that: "The Postmaster General is a party in interest by reason of the duties in respect to mail pay imposed upon him by the statute." 703 Georgia 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, e.g., "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 intercst" 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); WRIGHT 60. 704 Coleman v. Miller, 307 U.S. 433, 438 (1939), quoted in Baker v. Carr, 369 U.S. 186, 208 (1962). 705 See text accompanying notes 630-34 supra. 700 WRIGHT 60. Mr. Justice Douglas said that Congress "has broad authority to 68-287 - 71 13 1965] WITHHOLDINg informatION C. Political Questions 1349 No mention is made of "political questions" in the debates of the Framers and the ratifying conventions as a limitation on the scope of judicial review. In at least one pre-1787 case, Commonwealth v. Caton,707 Judge George Wythe took for granted the justiciability of a dispute between the Virginia Senate 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 protect 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 executive branches because they present a "political" and therefore non-justiciable question. That assumption needs to be tested by the cases, particularly since Baker v. Carr-the explosive reapportionment casehas narrowed the realm of nonjusticiability. No case thus far 710 determine who has standing to protest the action of administrative agencies." Douglas 225. 707 Commonwealth v. Caton, 4 Call 5, 8 (Va. 1782). 708 BARTII 17; TAYLOR 87; Kramer & Marcuse 903, citing still other writers; Younger 776. Cf. Schwartz 45; HAND 18: "[W]ould you not, like me, guess that the Court would refuse to pass on the controversy ?" I have 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. 1350 UCLA LAW REVIEW [Vol. 12: 1287 has decided that a legislative-executive conflict is nonjusticiable. On the contrary, the Supreme Court has already acted "as umpire between Congress and the [P] resident"711 in Meyers v. United States712 and United States v. Lovett.713 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 Congress715 that since Congress under the Constitution has complete control over appro- was rejected.71 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 v. Klein the provision "impairs the executive authority," 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. 716 Id. at 313, 314. Nathanson 337, says United States v. Lovett "in one 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 "need" to decide whether the statute was "an unconstitutional encroachment on executive 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 privilege proponent, Younger 777 n.100, states that "we should not forget that the Supreme Court has decided disputes between Congress and the President under its general power to hold the other two departments within the ambit of the Constitution." 719 13 Wall. (80 U.S.) 128, 145, 148 (1871). |