FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 1996 Decided April 22, 1997
No. 95-5323
DAVID E. SKAGGS, ET AL.,
APPELLANTS
v.
ROBIN H. CARLE, CLERK OF THE UNITED STATES
HOUSE OF REPRESENTATIVES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 95cv00251)
Louis R. Cohen argued the cause for appellants, with whom
Lloyd N. Cutler, Jonathan J. Frankel, Bruce A. Ackerman
and David A. Westbrook were on the briefs.
Kerry W. Kircher, Senior Assistant Counsel, U.S. House of
Representatives, argued the cause for appellee, with whom
Geraldine R. Gennet, Deputy General Counsel, was on the
brief.
David G. Leitch, Amy F. Kett, Daniel J. Popeo and Paul
D. Kamenar were on the brief for amici curiae Washington
Legal Foundation, et al.
Before: EDWARDS, Chief Judge, WILLIAMS, and GINSBURG,
Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
Dissenting opinion filed by Chief Judge EDWARDS.
GINSBURG, Circuit Judge: The appellants, a group compris-
ing 27 Members of the United States House of Representa-
tives, six of their constituents, and the League of Women
Voters, appeal the judgment of the district court dismissing
their challenge to two rules of the House of Representatives.
The appellants claim that the rules violate the Constitution of
the United States by infringing upon the rights of the individ-
ual Representatives to speak, to be heard, and to be counted.
Because the injury that the appellants allege is hypothetical
rather than actual, they lack standing to pursue this case.
We therefore affirm the judgment of the district court.
I. BACKGROUND
On January 4, 1995 the House of Representatives adopted
House Rules XXI(5)(c) and XXI (5)(d). The former provides
that: "No bill or joint resolution, amendment, or conference
report carrying a Federal income tax rate increase shall be
considered as passed or agreed to unless so determined by a
vote of not less than three-fifths of the Members voting."
The latter provides that: "It shall not be in order to consider
any bill, joint resolution, amendment, or conference report
carrying a retroactive Federal income tax rate increase."
The appellants brought suit challenging the constitutionali-
ty of each rule. See Skaggs v. Carle, 898 F.Supp. 1 (D.D.C.
1995). They argued that the three-fifths majority required
by Rule XXI(5)(c) is repugnant to the principle of majority
rule they see embodied in the presentment clause of Article I,
§ 7 of the Constitution ("Every Bill which shall have passed
the House of Representatives and the Senate, shall, before it
becomes a Law, be presented to the President of the United
States"). As for Rule XXI(5)(d), they argued both that it
unconstitutionally precludes the House from considering leg-
islation upon which it is empowered by Article I, § 8 to act,
and that it abridges the first amendment rights of the individ-
ual Members to speak and, on behalf of their constituents, to
petition on the floor of the House.
Robin H. Carle, the Clerk of the House, moved to dismiss
the complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). The district court granted the motion,
concluding that prudence counsels against deciding the merits
of a partisan political dispute:
Whether expressed in terms of a failure of standing, or
"equitable" or "remedial" discretion, the fundamental
consideration underlying those decisions is one of pru-
dent self-restraint: federal courts should generally re-
frain, as a matter of policy, from intruding in the name of
the Constitution upon the internal affairs of Congress at
the behest of lawmakers who have failed to prevail in the
political process.
Id at 2. The court also dismissed the voters' derivative
claims: To allow the voters to raise the claims of their
Representatives, the court reasoned, "is an all-too-facile expe-
dient to circumvent the doctrine of equitable discretion, and
to subvert altogether the holdings of the line of discretionary
abstention cases." Id. at 3. The plaintiffs appealed.
II. ANALYSIS
The appellants call upon the court to consider the constitu-
tionality of two rules governing the internal workings of a
coordinate branch of the Government. The appellants main-
tain that we are both authorized and competent to perform
this task: The harm worked by the Rules-diluting the
Representatives' votes and diminishing their ability to advo-
cate a position-is apparent, as is the command of the Consti-
tution that we remedy that harm. The Clerk responds,
among other things, that the appellants lack standing because
they have suffered no concrete injury.
A. Rule XXI(5)(c)
According to the appellants, the presentment clause estab-
lishes that a simple majority of the Members voting in each
House of the Congress is all that is needed to pass a bill.
Therefore, we are told, by providing that legislation carrying
an income tax increase will not be considered to have passed
in the House even if it receives the support of a majority (but
not of a three-fifths majority), Rule XXI(5)(c) runs afoul of
the presentment clause.
The Clerk contends that the appellants lack standing to
raise this challenge because they have suffered no injury by
reason of Rule XXI(5)(c) and are unlikely ever to do so. The
House has never failed to deem passed a bill that has
received the support of a simple majority and it is unclear
whether the House will ever do so.
In order to establish their standing to sue under Article III
of the Constitution, the appellants must show that: (1) they
have suffered an injury that is both "concrete and particular-
ized" and "actual or imminent, not "conjectural' or "hypotheti-
cal' "; (2) that the injury is fairly traceable to the conduct of
which they complain; and (3) the injury is likely to be
redressed by a court decision in their favor. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The
appellants bear the burden of establishing each element. Id.
at 560-561. A Representative, like any other plaintiff, must
satisfy each requirement-injury in fact, causation, and re-
dressability-announced in Lujan. See Boehner v. Anderson,
30 F.3d 156, 159 (D.C. Cir. 1994).
The appellants claim that Rule XXI(5)(c) injures them in
fact because it dilutes the vote of each Representative in the
same manner as did the rule challenged in Michel v.
Anderson, 14 F.3d 623 (D.C. Cir. 1994). In that case a group
of Representatives and voters challenged the House Rule
giving each territorial delegate a vote in the Committee of the
Whole. The Representatives claimed that they were each
entitled to cast one of no more than 435 votes in the Commit-
tee and that the rule injured them by diluting each of their
votes to one of 440. The voters raised the derivative claim
that they had been deprived of a Representative entitled to
cast one of only 435 votes. We held that, even if the doctrine
of equitable discretion blocked the Representatives' challenge,
the voters had standing to complain about the dilution of their
representation; they had alleged a concrete injury.
The present appellants argue that, just as the voters in
Michel had standing to challenge the dilution of a Member's
vote to one of 440 that could be cast in the Committee of the
Whole, so too do they have standing to challenge the dilution
of a Representative's vote from one of 218 to one of 261
needed (assuming that all 435 Members vote) for the House
to pass an income tax increase. The injury is neither conjec-
tural nor hypothetical, they say, because the House has
already taken several votes that were subject to Rule
XXI(5)(c). According to the appellants, it is immaterial that
Rule XXI(5)(c) did not affect the outcome of any such vote,
i.e., there was not even a simple majority in favor of an
income tax increase; it is enough under Michel, they argue,
that the vote of each Member is in some way diluted. In
addition the appellants assert (without elaboration) that Rule
XXI(5)(c) reduces each lawmaker's power to bargain with his
or her colleagues in order to pass an income tax increase-
presumably because each Member can now offer only 1/261st
of the votes needed.
The Clerk responds that the plaintiffs in Michel would have
suffered a concrete injury, namely the dilution of their Repre-
sentatives' votes, as soon as a vote was taken in the Commit-
tee of the Whole, and it was certain that such a vote would be
taken. Therefore, the injury alleged in Michel was imminent,
if not actual. In the present case, by contrast, the Clerk
contends that the appellants would be injured only if a
particular piece of income tax legislation for which the
Member-appellants voted were to garner a simple majority
but fail to pass under Rule XXI(5)(c) for want of a three-fifths
majority. That these conditions will be met is far from
certain; indeed, we are told, both reason and experience
suggest that it is unlikely, making the appellants' injury
neither imminent nor a concrete probability but only a hypo-
thetical and speculative possibility.
As an initial matter, we do not agree with the Clerk that, in
order to establish that they have been injured by the Rule,
the appellants would have to show that 218 Members have
voted or would vote (but for the Rule) in favor of a bill
carrying an income tax increase. The lesson of Michel is that
vote dilution is itself a cognizable injury regardless whether it
has yet affected a legislative outcome.
We do agree, however, that the appellants' alleged injury
depends upon their assertion that Rule XXI(5)(c) in fact
renders the votes of 218 Members inadequate to pass legisla-
tion carrying an income tax increase. If the votes of 218
Members are still sufficient in practice to pass such legisla-
tion, then Rule XXI(5)(c) has not caused the vote dilution that
would establish their injury for the purpose of standing under
Article III.
Both the House Rules and their role in the 104th Congress
strongly suggest that Rule XXI(5)(c) does not prevent 218
Members set upon passing an income tax increase from
working their legislative will. First, the House Rules allow
any Member to introduce a resolution to amend or to repeal
Rule XXI(5)(c), and any such resolution could be adopted by
the vote of a simple majority. See House Rule X(1)(m) and
XI(4)(d); see also, for example, H. Res. 168, 104th Cong., 1st
Sess., 141 Cong. Rec. 6104, 6116 (1995) (amending Rule
XIII(4)). Although the Rules Committee would have jurisdic-
tion over such a resolution and might slow or block its
consideration, 218 Members of the House could by petition
cause a resolution to be discharged from that Committee and
put to a vote on the floor of the House. See generally
Deschler's Precedents of the United States House of Repre-
sentatives, vol. V, at 3 (motion to discharge); id., vol. I, at
318-319 (procedure for discharging from Rules Committee
resolution to amend the rules). Similarly, if the Rules Com-
mittee determines that the vote on a bill should be governed
by a special rule, a simple majority may amend that rule.
See id., vol. VI, at 328-329. For that matter, a simple
majority may suspend Rule XXI(c)(5) in order to allow a bill
carrying a tax increase to pass by a simple majority vote;
although suspending a rule ordinarily requires the support of
two-thirds of those voting, see House Rule XXVII, a simple
majority has in the past resolved to suspend this two-thirds
requirement. VIII Cannon's Precedents of the House of
Representatives at 841. And, contrary to the dissent, these
procedures for amending, suspending, and repealing the
House Rules are not "alternative remedies" for the vote
dilution allegedly worked by Rule XXI(5)(c). Rather, if a
simple majority can prevail in the House by voting first on a
procedural and then on the substantive issue, then there has
been no vote dilution even arguably offensive to the present-
ment clause.
The appellants object that the procedures by which they
might avoid the three-fifths requirement of Rule XXI(5)(c)
are rarely tried and still more rarely successful. For exam-
ple, they observe that "[s]pecial rules are now so complex and
detailed that it is extremely difficult for the floor to amend
them without the assistance of the Rules Committee."
The Clerk's very telling response is that on at least four
occasions during the 104th Congress the House voted to
waive the requirements of Rule XXI(5)(c) in order to allow a
simple majority to enact legislation that increased income tax
rates. See H. Res. 238, 104th Cong., 1st Sess., 141 Cong.
Rec. 10314, 10327-28 (1995) (suspending application of Rules
XXI(5)(c) and (d) in connection with Medicare Preservation
Act); H. Res. 245, 104th Cong., 1st Sess., 141 Cong. Rec.
10853, 10867-68 (1995) (same in connection with Seven Year
Balanced Budget Reconciliation Act); H. Res. 392, 104th
Cong., 2d Sess., 142 Cong. Rec. 3029, 3045 (1996) (same in
connection with Health Coverage Availability and Affordabili-
ty Act); H. Res. 440, 104th Cong., 2d Sess., 142 Cong. Rec.
5432, 5444-45 (1996) (same in connection with Small Business
Job Protection Act). However complicated the procedures
for suspending Rule XXI(5)(c) may seem, therefore, they do
not appear in practice to prevent a simple majority from
enacting an income tax increase.
Chief Judge Edwards, in dissent, concludes that the pres-
ent appellants' votes were diluted as in Michel when they
voted in favor of the Mink Amendment. But our colleague is
able to reach this conclusion only because he assumes that in
fact "each of the 96 votes in favor of the Amendment repre-
sented only 1/261st of those necessary for passage." As we
see it, the plaintiffs have given little reason to believe that the
Mink Amendment would not have passed had it had the
support of 218 Members. For, as detailed above, when a
simple majority wanted to vote for legislation increasing
income tax rates, the House has voted to waive the Rule;
indeed, the appellants point to no instance in which a Member
(presumably one who wanted to vote for legislation increasing
income tax rates) proposed to waive the Rule but the House
voted against waiving the rule. We are therefore forced to
the conclusion that the plaintiffs have alleged only a conjec-
tural or hypothetical injury.
In sum, the appellants claim that they face imminent injury
because a simple majority of the House of Representatives
cannot commit the House to raising income tax rates. We
are unpersuaded, however, that Rule XXI(5)(c) prevents a
simple majority from doing just that. At most the appellants
have shown that Rule XXI(5)(c) could, under conceivable
circumstances, help to keep a majority from having its way-
perhaps, for example, because a simple majority in favor of an
income tax increase might not be prepared, for its own
political reasons, to override the preference of the House
leadership against suspending or waiving the Rule in a partic-
ular instance. But that prospect appears to be, if not purely
hypothetical, neither actual nor imminent. We conclude
therefore that the appellants lack standing to challenge Rule
XXI(5)(c).
B. Rule XXI(5)(d)
In what seems to be an afterthought-for they give the
matter almost no separate attention-the appellants chal-
lenge Rule XXI(5)(d) on the grounds that it (1) "deprives the
Member Appellants of some of the "legislative Powers' that
the Constitution vested in House Members" in violation of
Article I, § 8 of the Constitution and (2)[a] "bar[s] Members
from proposing and discussing matters within Congress's
competence and [b] prevent[s] their constituents from effec-
tively petitioning the Congress and from having their Repre-
sentatives present their views" in violation of the first amend-
ment. With respect specifically to injury, the appellants
allege that Rule XXI(5)(d) prevents each Member-appellant
from "introducing or debating on the House floor legislation
that might increase tax rates retroactively." And, we are
told-in the only purely factual allegation relevant to injury-
that "Rule XXI(5)(d) continuously stifles debate on the House
floor."
The Clerk responds that no Member has ever tried to
introduce a bill carrying a retroactive tax increase, nor even
risen to speak in favor of such an increase only to be ruled
out of order by reason of Rule XXI(5)(d). Therefore, accord-
ing to the Clerk, no Member, let alone one of the appellants,
has suffered the concrete injury necessary for standing to
challenge the Rule.
Although the appellants claim that the Rule stifles debate
on the floor of the House, they do not explain how the Rule
does this. After reading the Rule more than once, we remain
at a loss to know how it affects the appellants. The Rule,
recall, provides that "[i]t shall not be in order to consider any
bill [etc.] carrying a retroactive Federal income tax rate
increase." We cannot ascertain from this text, standing
alone, whether the Rule forbids a Member from proposing a
retroactive income tax increase; forbids the leadership from
allowing Members to debate a retroactive income tax in-
crease; precludes the House voting on a retroactive income
tax increase; has all of these effects, or none of them. Or
more: Does it forbid a Member from speaking in favor of
repealing the Rule? We are reluctant to think that it does, but
the Rule leaves even this question unanswered. Still, the
appellants offer nothing but the Rule in support of their
standing-no legislative history, no facts to which it has been
applied, nothing.
Without further factual allegations the court can neither
know what the Rule means in practice nor see how the
appellants have been injured by it. See U.S. Const., Art. I,
§ 5 ("Each House may determine the Rules of its Proceed-
ings ..."); United States v. Rostenkowski, 59 F.3d 1291,
1306-07 (D.C. Cir. 1995) ("Where ... a court cannot be
confident that its interpretation is correct, there is too great a
chance that it will interpret the Rule differently than would
the Congress itself; in that circumstance, the court would
effectively be making the Rules-a power that the Rulemak-
ing Clause reserves to each House alone."). Thus the appel-
lants have not made out their standing to complain of the
Rule.
We reach this conclusion fully aware-albeit no thanks to
the appellants-that a party has standing to challenge a law
before it is enforced against him provided that his first
amendment rights are chilled by a credible threat of prosecu-
tion under that law. Virginia v. American Booksellers Ass'n,
484 U.S. 383, 392-93 (1988); Chamber of Commerce v. FEC,
69 F.3d 600, 604 (D.C. Cir. 1995). Putting aside the question
whether the House of Representatives is constrained by the
first amendment in determining the Rules of its Proceed-
ings-a question not raised by the Clerk-we are not per-
suaded that Rule XXI(5)(d) even arguably chills the first
amendment rights of the Member-appellants. First, there is
no apparent penalty for attempting to do whatever it is the
Rule proscribes; so far as we can tell, one may at most be
ruled "out of order." Moreover, those whose first amend-
ment rights are allegedly chilled by the Rule are all Members
of the United States House of Representatives. We cannot
imagine that the mere risk of being ruled out of order has
caused the Member-appellants-or any Member of the
House-to cower silently in derogation of his or her perceived
constitutional right, indeed duty, to speak on behalf of himself
and his constituents.
Before repairing to the courts, therefore, we think it only
appropriate for those who would object to the Rule first to
test its meaning by pursuing in the House a retroactive
Federal income tax rate increase. If they are ruled out of
order merely for speaking their minds, or for any other act
even arguably protected by the first amendment, then they
can document their injury and assert their standing to sue.
III. CONCLUSION
Because the appellants do not allege that they have suf-
fered any concrete injury as a result of either Rule XXI(5)(c)
or Rule XXI(5)(d), they have not established their standing to
sue. The judgment of the district court is therefore
Affirmed.
EDWARDS, Chief Judge, dissenting: Appellants ask this
court to decide whether Congress, through a purported
House Rule of Procedure, can change the number of votes
required to enact a bill into law. At issue here is House Rule
XXI(5)(c) ("Rule"), which provides that
[n]o bill or joint resolution, amendment, or conference
report carrying a Federal income tax rate increase shall
be considered as passed or agreed to unless so deter-
mined by a vote of not less than three-fifths of the
Members voting.
Under this Rule, Members of the House of Representatives
who voted in favor of tax legislation have suffered a dilution
of their votes from 1/218th to 1/261st of the votes necessary to
pass a tax increase. As a consequence, these Members, a
number of whom are appellants in this case along with the
voters they represent and the League of Women Voters
("LOWV"), have suffered the requisite injury to satisfy the
Article III standing requirements. I, therefore, dissent from
the judgment of the majority dismissing this case for lack of
standing. I also find that House Rule XXI(5)(c) cannot
withstand constitutional scrutiny.
The presentment clause of the Constitution requires that
[e]very Bill which shall have passed the House of Repre-
sentatives and the Senate, shall, before it becomes a
Law, be presented to the President of the United States.
U.S. CONST. art. I, § 7, cl. 2 (emphasis added). To determine
the meaning of "passed" under the presentment clause, I look
to the intent of the Framers of the Constitution, as well as
Supreme Court precedent construing the clause. This evi-
dence-along with longstanding traditions underlying our
constitutional democracy-makes it clear that "passed"
means "passed by a majority," except in those few instances
where the Constitution explicitly states otherwise. The rule-
making clause of the Constitution, which merely provides that
each House has the power to "determine the Rules of its
Proceedings," U.S. CONST. art. I, § 5, cl. 2, surely is not an
explicit exception to the presentment clause. Thus, in using
the rulemaking clause to redefine what it means for a bill to
be passed, Rule XXI(5)(c) rewrites the imperative of the
presentment clause and, therefore, must be struck down.
If Congress is allowed to employ the rulemaking clause to
impose new supermajority requirements beyond those al-
ready stated in the Constitution, the potential for mischief is
great. Two simple examples will suffice to highlight the
problem:
Example One: 1 The Clerk's argument in favor of House
Rule XXI(5)(c) would allow the House to adopt an internal
rule of procedure that requires the votes of nine-tenths of its
Members to pass a bill into law, thus giving one state,
California, which elects over ten percent of the Members of
the House, effective veto power over proposed legislation.
Example Two: 2 Because the rulemaking clause applies
equally to both Houses of Congress, the Clerk's argument in
favor of House Rule XXI(5)(c) would allow the Senate to
adopt an internal rule of procedure that requires the votes of
three-fifths, rather than one-half, of its Members to confirm a
presidential appointee. The Senate, acting unilaterally, could
thereby increase its own power at the expense of the Presi-
dent.
I think it is clear that the Framers never intended for
Congress to have such unchecked authority to impose super-
majority voting requirements that fundamentally change the
nature of our democratic processes. It is for this reason that
I find House Rule XXI(5)(c) to be an unconstitutional exercise
of Congress's rulemaking power. 3
A. The Jurisdiction of This Court
Before turning to the merits, I will first address the
jurisdictional issues on which my colleagues decide this case.
I disagree with the majority, because I find that appellants
have fully satisfied traditional standing requirements and that
the doctrine of equitable or remedial discretion does not act
as a bar to judicial review of their claims.
1. Standing
It is well established that in order to satisfy the constitu-
tional standing requirements of Article III, plaintiffs must
demonstrate (1) that they have suffered injury that is con-
crete and particularized, not conjectural or hypothetical; (2)
that the injury is fairly traceable to the conduct of which they
complain; and (3) that the injury is likely to be redressed by
a court decision in their favor. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). Under the precedent of
this circuit, these requirements are satisfied by the dilution of
appellants' votes in favor of the Mink Amendment.
Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994), described
in detail by the majority, clearly governs the result in this
case. In Michel, this circuit found that congressional vote
dilution constitutes cognizable injury for both the Members of
Congress whose votes are affected and for the voters who
rely on such Members to represent their interests. Id. at
625-26; see also Vander Jagt v. O'Neill, 699 F.2d 1166, 1170
(D.C. Cir. 1983) (In a case challenging the allocation of House
committee and subcommittee seats, this court found that
Republican Members had standing to sue based on the al-
leged dilution of their votes by virtue of the disproportionate
allocation of the seats.). The plaintiff Members in Michel
suffered cognizable injury based on vote dilution where the
value of each Member's vote in the Committee of the Whole
was diluted from 1/435th to 1/440th by a House Rule that
gave the vote to the five territorial delegates. The court
found standing despite the fact that after any vote in which
the territorial delegates' votes were outcome determinative, a
new vote would be taken without including them. 4
Like the majority, I, too, find that Michel stands for the
proposition that "vote dilution is itself a cognizable injury
regardless whether it has yet affected a legislative outcome."
Appellants here suffered vote dilution when they voted in
favor of the Mink Amendment, which proposed an increase in
corporate income tax rates. 5 The vote-counting rule applica-
ble to the Mink Amendment was Rule XXI(5)(c). The Mink
Amendment was defeated by a vote of 96 to 336. Under Rule
XXI(5)(c), each of the 96 votes in favor of the Amendment
represented only 1/261st of those necessary for passage,
rather than the 1/218th that they would have represented
under the normal practice of "majority rule." This vote
dilution constitutes injury-in-fact sufficient to meet the Article
III standing requirements.
The majority claims Rule XXI(5)(c) caused no cognizable
vote dilution because 218 Members set upon passing an
income tax increase could have attempted to avoid the effect
of the Rule. According to the majority, the Members in favor
of a tax increase can first seek to pass a resolution to amend
or to repeal Rule XXI(5)(c) and then they can pursue passage
of an income tax increase pursuant to a simple majority vote.
The same could have been said to deny standing in Michel
and Vander Jagt-i.e., the aggrieved Members in those cases
could have been told to muster a majority of their colleagues
to change the disputed rule-but the court eschewed any
such view of standing. Even more noteworthy is the fact
that, in Michel, the court found an injury even though the
vote dilution at issue could never affect whether a bill became
law. Thus, Michel makes clear that the substantive outcome
is irrelevant-it is the vote dilution itself that causes the
injury.
In an apparent effort to avoid what is obvious from Michel
and Vander Jagt, the majority opinion uses a strand of the
remedial discretion doctrine to change the requirements of
Article III standing. The majority says that if a plaintiff can
find an alternative remedy for the injury that is the subject of
the law suit, then there can be no judicially cognizable injury
to support Article III standing. This is an extraordinary
holding that finds no support in the law on standing. Indeed,
the only case law offering any support for this notion is the
questionable remedial discretion doctrine of this circuit. 6 See,
e.g., Riegle v. Federal Open Market Comm., 656 F.2d 873, 881
(D.C. Cir. 1981) (holding that dismissal of a legislator's suit
under a doctrine of remedial discretion is appropriate
"[w]here a congressional plaintiff could obtain substantial
relief from his fellow legislators"). However, the remedial
discretion doctrine never has been part of the standing inqui-
ry, and the majority cites to no case that suggests otherwise.
The question, thus, is not whether appellants could have
prevented the vote dilution injury by repealing or amending
House Rule XXI(5)(c). The question is whether appellants in
fact have suffered vote dilution.
Having established that the vote dilution caused by Rule
XXI(5)(c) satisfies the injury-in-fact prong of the standing
inquiry, appellants' challenge to Rule XXI(5)(c) also satisfies
the next two prongs of the standing inquiry, causation and
redressability. The Rule published by the Clerk causes the
harm. And the harm could be redressed by a declaration
from this court that the Rule violates the Constitution.
Like the Members, the individual voters and the LOWV
also meet the standing requirements. In Michel, this court,
acting in reliance upon Supreme Court precedent that recog-
nizes that voters have standing to challenge practices that
dilute their vote, found that voters suffer cognizable injury
through the dilution of the voting power of their representa-
tives. See 14 F.3d at 626 (holding that it was of no signifi-
cance that the voters' vote dilution claim could be considered
derivative of their representatives' claim). Just such dilution
occurred here where, by operation of Rule XXI(5)(c), a voter
represented by a congressional Member who favored the
Mink Amendment no longer had as much access to political
power as a voter represented by a Member who opposed the
Amendment. 7 And, of course, the voters satisfy the causation
and redressability prongs of the analysis for the same reasons
as the Members.
The LOWV has representational standing pursuant to
Hunt v. Washington State Apple Adver. Comm'n, 432 U.S.
333, 343 (1977). Under Hunt, an organization such as LOWV
has standing if (1) its members would have standing to sue on
their own; (2) the interests it seeks to protect are germane to
its purpose, and (3) its claim and requested relief do not
require participation by individual members. Id. The Hunt
test is satisfied in this case. For one thing, the League's
members are no different than the individual voters, so they
have standing to sue on the same terms. Furthermore, the
interests the League seeks to protect are germane to its
purpose. See Declaration of Becky Cain, President of the
League of Women Voters of the United States (June 13,
1995), reprinted in J.A. 52, 53 ("The League is a non-partisan
membership organization consisting of voters committed to
the improvement and reform of representative democracy.").
Finally, the League's claim and requested relief do not re-
quire participation by individual members. Therefore, all of
the appellants-the Members, the individual voters, and the
LOWV-meet the standing requirements under Article III of
the Constitution.
2. Remedial Discretion
The District Court did not doubt the standing of appellants.
Rather, the trial court dismissed all of appellants' claims-the
Members, the individual voters, and the LOWV-on the basis
of its perceived remedial discretion. See Skaggs v. Carle, 898
F. Supp. 1, 2 (D.D.C. 1995) ("The [defendant's] motion [to
dismiss] will be granted on the sole ground of the doctrine of
equitable or remedial discretion."). This doctrine has been
described as a "prudential self-imposed limitation" on the
court's jurisdiction. Michel, 14 F.3d at 628. It permits the
court to decline to hear a case even when it has Article III
jurisdiction over the controversy. The remedial discretion
doctrine has never been adopted by the Supreme Court; and,
as I have previously indicated, the constitutional status of the
doctrine is questionable. See Melcher v. Federal Open Mar-
ket Comm., 836 F.2d 561, 565 (D.C. Cir. 1987) (Edwards, J.,
concurring). However, the doctrine remains the law of the
circuit, by which I am bound.
The important point here is that, whether or not remedial
discretion is a viable doctrine, it has no application in this
case. Even assuming, arguendo, that the claims of the
congressional Members should be dismissed, the Michel deci-
sion makes it clear that remedial discretion cannot be used
against the non-congressional plaintiffs who possess standing.
See Michel, 14 F.3d at 627-28 (Regardless of whether the
remedial discretion doctrine bars the challenge of Members of
Congress to the constitutionality of a voting rule change, the
doctrine cannot be employed to bar a private citizen's claim
over which the court has jurisdiction.). In short, the doctrine
never has been held to be applicable to claims other than
those brought by legislators. See 14 F.3d at 628. ("[Remedi-
al discretion] has no applicability to private voters."); see also
Gregg v. Barrett, 771 F.2d 539, 546 (D.C. Cir. 1985). Thus, it
is plain here that this court must exercise its jurisdiction over
the claims brought by the individual voters and the LOWV.
Accordingly, because their claims are the same, it is unneces-
sary to decide whether the remedial discretion doctrine would
mandate dismissal of the Members' case. I, thus, turn to the
merits of appellants' challenge to Rule XXI(5)(c).
B. The Constitutionality of Rule XXI(5)(c)
The presentment clause of the Constitution says that "[e]v-
ery Bill which shall have passed the House of Representatives
and the Senate, shall, before it becomes a Law, be presented
to the President of the United States." U.S. CONST. art. I,
§ 7, cl. 2 (emphasis added). Although the word "passed" is
not defined explicitly, an analysis of the Framers' intent and
Supreme Court precedent demonstrate that it means passed
by a majority. The majority-passage rule is not a malleable
default position. It is an unalterable constitutional demand.
I, therefore, find that Rule XXI(5)(c) is an unconstitutional
exercise of Congress's rulemaking power.
1. The Intent of the Framers
In this case, unlike many law suits involving constitutional
claims, the intent of the Framers is both evident and enlight-
ening with respect to the issue at hand. The Framers had
experienced supermajority voting requirements under the
Articles of Confederation, and they specifically debated and
rejected similar proposals when the Constitution was drafted
and ratified. Historical evidence shows that, during their
deliberations, the Framers positively concluded that a simple
"majority vote" was sufficient for the passage of legislation in
Congress. And nothing has changed since the Framers'
deliberations-either in the words of the Constitution or in
societal conditions-warranting an alteration of their original
intent. Thus, this case is unique in that there is actually
something to be gained by starting the analysis of appellants'
claim on the merits with an assessment of the Framers'
intent.
a. The Constitutional Convention
The general rule governing parliamentary procedure at the
time of the constitutional convention, which still holds true
today, was that the act of a majority of a quorum is the act of
the body. 8 The presumption of parliamentary procedure
therefore was a presumption of majority rule. Furthermore,
at the constitutional convention, the Framers explicitly con-
sidered whether to adopt supermajority requirements and
decided against them.
The Articles of Confederation had required a supermajority
vote of the states for action on many issues. Under that
system, each state was represented by no less than two and
no more than seven Members, ARTICLES OF CONFEDERATION art.
V, cl. 2, and each state had only one vote, ARTICLES OF
CONFEDERATION art. V, cl. 4. The power to engage in a war,
enter into a treaty, coin money, borrow or appropriate money,
and appoint a commander in chief all required the agreement
of nine of the thirteen states, a supermajority. ARTICLES OF
CONFEDERATION art. IX, cl. 6. Speaking against a proposal to
require a two-thirds vote on commerce regulations at the
constitutional convention, Roger Sherman observed that "to
require more than a majority to decide a question was always
embarrassing as had been experienced in cases requiring the
votes of nine States in Congress." 2 THE RECORDS OF THE
FEDERAL CONVENTION OF 1787 450 (Max Farrand ed., 1966)
(hereinafter FARRAND) (Madison's Notes, Aug. 29). James
Wilson made the same point. "Great inconveniences had,
[Wilson] contended, been experienced in Congress from the
article of confederation requiring nine votes in certain cases."
Id. at 451 (Madison's Notes, Aug. 29). The Framers, thus,
affirmatively decided against supermajority requirements for
the passage of legislation.
Later on during the convention, George Mason made a last
ditch effort to require a supermajority on one class of legisla-
tion. He moved for a proviso that "no law in nature of a
navigation act be passed before the year 1808, without the
consent of 2/3 of each branch of the Legislature." Id. at 631
(Madison's Notes, Sept. 15). Mason's proposal was defeated
seven states to three. See id. Yet, even if Mason's proviso
had been accepted, the Constitution would have said only that
passage of a navigation act shall require the consent of two-
thirds of each House until 1808, implying that the general
rule of parliamentary procedure, i.e., the majority-of-a-
quorum rule, would apply thereafter. The convention's de-
feat of Mason's proviso makes even more clear its assumption
that the majority-of-a-quorum rule would apply in all cases.
The text of the original Constitution explicitly provides for
majority voting in three circumstances. See U.S. CONST. art.
I, § 5, cl. 1 (quorum); art. II, § 1, cl. 3 (election of President
by electors); id. (election of President by House). Yet, the
existence of these provisions does not imply that whenever
the Framers meant to insist on a simple majority they said so
in explicit terms. The Framers inserted the quorum clause
because the size of a quorum was not dictated by any general
rule of parliamentary bodies. The majority requirements
governing the election of the President and Vice President
address areas that are not a traditional function of a legisla-
tive body. Further, the majority requirement was imposed
against the backdrop of a two-thirds quorum requirement for
these functions. The Framers specifically indicated a majori-
ty would suffice to avoid any misapprehension that it had
changed the established rule. 9
The text of the original Constitution also provides for
supermajority voting in seven distinct cases, 10 and minority
voting in three cases. 11 In all other cases the Constitution is
silent. The debates at the constitutional convention indicate
that where the Constitution is silent, the Framers made a
calculated judgment that a supermajority vote should not be
required.
b. Writings Contemporaneous with the
Constitutional Convention
Along with the debates at the constitutional convention,
written commentary contemporaneous with ratification indi-
cates that the Framers deliberately adopted the general rule
of parliamentary procedure that a bill be considered passed
where it receives the support of a majority of the quorum.
James Madison observed that, in the constitutional debates, it
had been argued "that more than a majority ought to have
been required for a quorum, and in particular cases, if not in
all, more than a majority of a quorum for a decision." THE
FEDERALIST No. 58, at 396 (James Madison) (Jacob E. Cooke
ed., 1961). In explaining why supermajority votes were
inappropriate for the passage of legislation, Madison said:
In all cases where justice or the general good might
require new laws to be passed, or active measures to be
pursued, the fundamental principle of free government
would be reversed. It would be no longer the majority
that would rule; the power would be transferred to the
minority. Were the defensive privilege limited to partic-
ular cases, an interested minority might take advantage
of it to screen themselves from equitable sacrifices to the
general weal, or in particular emergencies to extort
unreasonable indulgences.
Id. at 397.
Alexander Hamilton also defended the Convention's deci-
sion to jettison the supermajority system of the Articles of
Confederation, declaring that in votes on ordinary legislation
the Constitution should not "give a minority a negative upon
the majority." THE FEDERALIST No. 22, at 140 (Alexander
Hamilton). He explained that,
The public business must in some way or other go
forward. If a pertinacious minority can controul the
opinion of a majority respecting the best mode of con-
ducting it; the majority in order that something may be
done, must conform to the views of the minority; and
thus the sense of the smaller number will over-rule that
of the greater, and give a tone to the national proceed-
ings. Hence tedious delays-continual negotiation and
intrigue-contemptible compromises of the public good.
And yet in such a system, it is even happy when such
compromises can take place: For upon some occasions,
things will not admit of accommodation; and then the
measures of government must be injuriously suspended
or fatally defeated. It is often, by the impracticability of
obtaining the concurrence of the necessary number of
votes, kept in a state of inaction. Its situation must
always savour of weakness-sometimes border upon an-
archy.
Id. at 141. Like Madison, Hamilton counseled that "much ill
may be produced, by the power of hindering the doing what
may be necessary, and of keeping affairs in the same unfavor-
able posture in which they may happen to stand at particular
periods." Id.
Madison and Hamilton, thus, explicate the rationale that
motivated the Framers to reject supermajority require-
ments-a desire to protect majority rule in the final passage
of legislation and to facilitate legislative change on substan-
tive issues.
The Framers, however, were concerned about the tyranny
of the majority. Madison recognized that a temporary major-
ity would exercise power "adverse to the rights of other
citizens." THE FEDERALIST No. 10, at 57 (James Madison).
He said: "To secure the public good, and private rights,
against the danger of such a faction, and at the same time to
preserve the spirit and the form of popular government, is
then the great object to which our enquiries are directed."
Id. at 61. To prevent the tyranny of the majority, Madison,
along with the other Framers, established a system of checks
and balances-such as the presidential veto, which can only
be overcome by a two-thirds majority of Congress. It was
believed that these checks and balances would operate to
restrain the majority more effectively than supermajority
requirements for the passage of legislation, which had already
failed under the Articles of Confederation. Recognizing that
the presentment clause mandates that any bill receiving the
vote of a majority of the Members be presented to the
President, thus, does not require acceptance of the insupport-
able proposition that a majority must always prevail. Other
checks and balances to restrain the majority are permissible
and, in fact, consistent with the Framers' intent.
c. The Rejection of a Legislative Supermajority
Requirement
Despite the evidence of the Framers' intent from their
debates at the constitutional convention and their contempo-
raneous writings, the Clerk argues that where the Constitu-
tion contains no explicit voting requirement, the Framers
intended the House itself to decide the voting requirement for
the passage of such legislation. According to the Clerk,
majority rule for the passage of legislation is simply a default
position. But this premise ignores the Framers' concerns
about supermajority requirements. 12
The Clerk suggests that a legislative supermajority re-
quirement is somehow different from a constitutional super-
majority requirement, claiming it is more consistent with
majority rule since the majority itself can pass and repeal a
legislative supermajority requirement. This argument ig-
nores the fact that the Framers desired to preserve majority
rule over substantive decisionmaking on the final passage of
legislation. Allowing legislative supermajority requirements
interferes with majority rule over substantive decisionmaking
on the final passage of legislation. For, indeed, it is not clear
that, where there is a majority in favor of a tax increase, the
same majority will always favor repeal or amendment of a
legislative supermajority requirement.
Consider the following hypothetical: 218 of 435 legislators
favor a tax increase, a majority. Rule XXI(5)(c), in its
present form, is in effect. One legislator who would vote in
favor of a tax increase refuses to support a move to amend,
repeal, or suspend Rule XXI(5)(c) on the ground that tax
increases impose such a great burden on the citizenry that
she believes the passage of tax increases should require more
than majority support. The legislators who do not support
the increase similarly refuse to support an attempt to amend
or repeal the Rule. A vote to enact a tax increase into law
receives only 218 votes, thus failing to become law because
the supermajority requirement remains in effect. It is just
this situation that was rejected by the Framers, who specifi-
cally decided not to require a supermajority over decision-
making in most substantive areas. The Framers debated,
decided, and enumerated the specific circumstances when a
supermajority is required. Any changes to the list of situa-
tions warranting supermajority votes must come through
constitutional amendment-not by a simple decision of the
House of Representatives.
d. Past Practice
Past practice also demonstrates that, until now, the Mem-
bers always have acted as if they were bound by the vote of a
majority of a quorum. Indeed, the House of Representatives,
without exception, has followed the majority-of-a-quorum rule
since its beginning. Thomas Jefferson's Manual of Parlia-
mentary Practice, prepared while Jefferson presided over the
Senate as John Adams's Vice President, makes this commit-
ment explicit:
The voice of the majority decides. For the lex majoris
partis is the law of all councils, elections, & c. where not
otherwise expressly provided. Hakew. 93. But if the
House be equally divided, "semper presumatur pro ne-
gante," that is, the former law is not to be changed but
by a majority. Town col. 134.
THOMAS JEFFERSON, A MANUAL OF PARLIAMENTARY PRACTICE,
§ 41, reprinted in JEFFERSON'S PARLIAMENTARY WRITINGS, 407
(Charles T. Cullen ed., 1988). In 1837, the House adopted
Jefferson's manual for the conduct of its own proceedings,
and Jefferson's rule continues to operate to this day, except
where it has been amended by later rules constitutionally
promulgated by the House.
Rule XXI(5)(c) marks the first time the House has attempt-
ed to avoid the majority-of-a-quorum rule for the passage of
legislation. Past practice, of course, does not determine what
is constitutionally required; nevertheless, it provides good
evidence that lawmakers have always assumed that the ma-
jority-of-a-quorum rule must govern.
2. Supreme Court Precedent
Although no Supreme Court decision has directly ad-
dressed the question whether a bill that receives the vote of a
majority of the Members must be presented to the President,
Supreme Court precedent provides guidance on the question.
It demonstrates that the Court has understood the Constitu-
tion to require that bills that receive the vote of a majority
indeed must be presented to the President; in other words,
"majority rule" has been accepted without question by the
Court.
a. Construing the Presentment Clause
In INS v. Chadha, 462 U.S. 919 (1983), in the course of
evaluating the constitutionality of the legislative veto, the
Court explained the formulaic nature of the structure man-
dated by the presentment clause. In the course of its expla-
nation, the Court repeatedly stated that a simple majority is
all that is required for passage of legislation. The Court first
found that the Framers "provid[ed] that no law could take
effect without the concurrence of the prescribed majority of
the Members of both Houses." Id. at 948 (emphasis added).
The Court then noted that, providing for Senate approval of
treaties, "Art. II, § 2, requires that two-thirds of the Sena-
tors present concur ... rather than the simple majority
required for passage of legislation." Id. at 956 n.21 (empha-
sis added). Finally, the Court stated that the presentment
clause:
requires action in conformity with the express proce-
dures of the Constitution's prescription for legislative
action: passage by a majority of both Houses and pres-
entment to the President.
Id. at 958 (emphasis added). The Court also noted that not
even Congress and the President acting together could
change the requirements of the presentment clause. The
presentment clause "represents the Framers' decision that
the legislative power of the Federal Government be exercised
in accord with a single, finely wrought, and exhaustively
considered, procedure." Id. at 951.
The Court's explanation of the requirements of the present-
ment clause in Chadha is consistent with its analysis in
United States v. Ballin, 144 U.S. 1 (1892). In Ballin, the
Court answered two questions: whether the Constitution
prescribed a particular method for determining whether a
majority constituting a quorum was present and whether the
act of a majority of the quorum present, but less than a
majority of the full House, had been sufficient to pass a bill.
Although Ballin is not a presentment clause case, it sets out
the methodology that determines the meaning of the clause.
The Court in Ballin makes it clear that where the Constitu-
tion is silent on voting requirements, the general law of
parliamentary bodies applies:
[T]he general rule of all parliamentary bodies is that,
when a quorum is present, the act of a majority of the
quorum is the act of the body. This has been the rule
for all time, except so far as in any given case the terms
of the organic act under which the body is assembled
have prescribed specific limitations.... No such limita-
tion is found in the Federal Constitution, and therefore
the general law of such bodies obtains.
Id. at 6. This language indicates that unless the Constitution
specifically provides otherwise, the Constitution embodies the
general rules of parliamentary procedure. Because the pres-
entment clause provides no explicit rule for counting votes for
and against the final passage of bills, "the general rule of
bodies obtains," and "the act of a majority of the quorum is
the act of the body," as decided by the Framers, indicated in
Ballin and reaffirmed in Chadha. 13
It should be noted, however, that construing the present-
ment clause in accord with the general rules of parliamentary
procedure (such that "passed" means passed by a majority of
a quorum) does not invalidate all supermajority require-
ments. Requiring a supermajority to pass a bill into law can
be distinguished from procedural rules-like the Senate clo-
ture rule-that require a supermajority to bring an issue to a
vote. Although such supermajority requirements may hinder
or help a bill to become law, these procedural rules do not
explicitly conflict with the presentment clause requirement
that a bill that has passed be presented to the President.
For example, Clause 2(h)(2) of House Rule XI authorizes
committees to establish a quorum of only one-third for the
reporting of legislation. Thus, a bill in committee that may
enjoy the support of more than one-half of the House Mem-
bers may nonetheless die in committee if a majority of the
one-third quorum so chooses. While this Rule affects wheth-
er and when a bill comes to a vote, it does not purport to
redefine what counts as passage of a bill or to alter the
House's duty to "present" to the Senate or the President any
bill that has commanded a majority vote of a quorum of the
House. 14 The presentment clause, by virtue of the Framers'
adoption of the general rule of parliamentary procedure,
merely defines the number of votes necessary to enact a bill
into law. It does not speak to these other procedural mat-
ters.
b. Three Co-equal Branches of Government
Not only does House Rule XXI(5)(c) conflict with the
general rule of parliamentary procedure outlined in Ballin
and reiterated in Chadha, it also changes the finely tuned
balance of power between Congress and the executive. By
redefining what it means for a tax bill containing a tax
increase to "pass," House Rule XXI(5)(c) alters the responsi-
bilities of the executive and opens the door for either House
of Congress to use the rulemaking power to adopt other
requirements for the passage of legislation which destroy the
system of checks and balances designed by the Framers.
Professor Jed Rubenfeld explains that reading the word
"passed" in the presentment clause to embody majority rule
supports the following principles that are fundamental to our
constitutional system of checks and balances: "(1) every
Senator and Representative gets one equal vote; (2) only the
votes of Senators and Representatives count; (3) the relative
power of the small and large states to pass laws cannot be
changed; (4) no state can be given the power to veto legisla-
tion passed by a majority vote of the chamber; and (5)
neither chamber can transform the legislative process from a
two-tiered process with a decisive presidential veto, into a
two-thirds-two-thirds process in which the President's veto is
a virtual formality." See Rubenfeld, note 1 supra, at 85.
According to Rubenfeld, allowing Congress to decide for itself
what constitutes the passage of a bill calls each of these
principles into question. For example, as mentioned in the
introduction, if Congress could decide what constitutes pas-
sage of a bill, not only could Congress transform the Presi-
dent's veto power, Congress could also make voting rules like
a ninety percent majority rule that would give one state
effective veto power over legislation.
The confirmation clause example (also cited in the introduc-
tion) illustrates the ramifications outside the presentment
clause context of a decision upholding Rule XXI(5)(c). See
Bloch, note 2 supra. Professor Bloch provides a striking
demonstration of how Congress could use the rulemaking
clause to increase its own power at the expense of the
executive. The Constitution states that the President "shall
nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers
and Consuls, Judges of the supreme Court, and all other
Officers of the United States." U.S. CONST. art. II, § 2, cl. 2.
The Constitution does not specify the number of votes re-
quired for confirmation, so if Rule XXI(5)(c) is constitutional,
the Senate could use the rulemaking clause to require that
three-fifths of its members, rather than one-half, vote in favor
of confirmation of a presidential appointee. The Senate
thereby could essentially take over the appointment process
from the President. Acceptance of the Clerk's argument that
Congress can use the rulemaking clause to change the num-
ber of votes required to pass a law amounts to acceptance of
the proposition that each House of Congress can fundamen-
tally alter the balance of power established by the Framers.
In sum, House Rule XXI(5)(c) conflicts with Supreme
Court precedent, which recognizes that, consistent with the
Framers' intent, the Constitution adopted the general rule of
parliamentary procedure, the act of a majority of a quorum is
the act of a body. By altering this fundamental principle of
parliamentary bodies, House Rule XXI(5)(c) works an uncon-
stitutional change in the procedure that governs the relation-
ship between Congress and the executive, and it opens the
door for Congress to make further changes in our "finely
wrought" system of checks and balances.
CONCLUSION
Because the majority opinion fundamentally alters standing
doctrine to avoid reaching a significant constitutional ques-
tion, I dissent. Under the law of this circuit on standing in
"vote dilution" cases, this court has jurisdiction to reach the
merits of appellants' claim. The constitutionality of House
Rule XXI(5)(c) is not a question that can be left unanswered
by this court. By granting itself the power to change the
number of votes required to enact a bill into law, the House
violated the command of the presentment clause, which re-
quires that all bills that receive the vote of a majority of a
quorum of each House be presented to the President. The
House's action conflicts with the intent of the Framers and
Supreme Court precedent. Allowing this Rule to stand per-
mits Congress to use the rulemaking clause as a tool to
redefine its relationship to the executive, a result that should
not be countenanced by this court.
See Jed Rubenfeld, Rights of Passage: Majority Rule in
Congress, 46 DUKE L.J. 73, 83-84 (1996).
See Susan Low Bloch, Disciplining Congress-The Taxing
and Spending Powers, Address at the Tenth Annual Lawyers
Convention of the Federalist Society (Nov. 14-16, 1996).
that "It shall not be in order to consider any bill ... carrying a
retroactive Federal income tax rate increase." I can find no merit
in this claim, so I do not address it.
See 14 F.3d at 625 (citing the House Rule at issue in the case,
which provides "[i]n a Committee of the Whole House on the state
of the Union, the Resident Commissioner to the United States from
Puerto Rico and each Delegate to the House shall possess the same
powers and privileges as Members of the House" but "[w]henever a
recorded vote on any question has been decided by a margin within
which the votes cast by the Delegates and the Resident Commis-
sioner have been decisive, the Committee of the Whole shall auto-
matically rise and the Speaker shall put that question de novo
without intervening debate or other business. Upon the announce-
ment of the vote on that question, the Committee of the Whole shall
resume its sitting without intervening motion.").
See Declaration of Barbara K. Bracher, Principal Assistant
General Counsel and Solicitor to the United States House of
Representatives (July 14, 1995) (describing the application of Rule
XXI(5)(c) to the Mink Amendment to H.R. 4), reprinted in Joint
Appendix ("J.A.") 136-37.
It is clear from the record that the Mink Amendment was
supported by at least some of the appellant Members. See, e.g.,
Declaration of the Honorable Patsy T. Mink (June 15, 1995),
reprinted in J.A. 84; Declaration of the Honorable Bruce E. Vento
(June 16, 1995), reprinted in J.A. 127.
infra, even assuming its continued
validity, the remedial discretion doctrine is not dispositive of this
case.
supported by at least some of the appellant voters' representatives.
See, e.g., Declaration of June Austin (June 14, 1995) (represented by
Congressman Maurice D. Hinchey, who voted in favor of the
Amendment, see 141 CONG. REC. H3777 (daily ed. Mar. 24, 1995)),
reprinted in J.A. 61.
Shire do assent to the making of an Act of Parliament, and the
lesser part will not agree to it, yet this is a good Act or Statute to
last in perpetuum: and that the Law of majoris partis is so in all
Counsels, Elections & c. Both by the rules of the Common law and
the Civil." WILLIAM HAKEWILL, MODUS TENENDI PARLIAMENTUM: OR
THE OLD MANNER OF HOLDING PARLIAMENTS IN ENGLAND 93 (Abel
Roper ed., 1671); see also GEORGE PETYT, LEX PARLIMENTARIA: OR A
TREATISE OF THE LAW AND CUSTOM OF THE PARLIAMENTS OF ENGLAND
165 (1689).
amendment: amend. XII (election of President by electors); id.
(election of President by House); id. (election of Vice President by
electors); id. (election of Vice President by Senate); amend. XXV,
§ 2 (Vice Presidential vacancy); amend. XXV, § 4 (declaration of
Presidential inability); id. (response to Presidential declaration of
no inability). All of these requirements pertain only to the unique
task of the election or status of the President and Vice President.
§ 3, cl. 6 (the Senate conviction of an impeached official); art. I,
§ 5, cl. 2 (expulsion of a Member of either House); art. I, § 7, cl. 2
(overriding a presidential veto); art. II, § 1, cl. 3 (the presence of a
quorum in the House for the election of the President); art. II, § 2,
cl. 2 (Senate consent to a treaty); art. V (amendment of the
Constitution); and art. VII (ratification of the Constitution itself by
the States).
The Framers carefully debated each case in which they imposed a
supermajority requirement. In each situation, the Framers found
good reasons for requiring something more than a simple majority.
For example, on impeachment, the Convention first entertained and
rejected a proposal by Dickenson that "the Executive be made
removable by a ... majority of the Legislatures of individual
States." 1 FARRAND at 85 (Madison's Notes, June 2). The Conven-
tion, of course, ultimately approved the requirement of a two-thirds
vote by the Senate. On expulsions, Madison argued that "the right
of expulsion ... was too important to be exercised by a bare
majority of a quorum: and in emergencies of faction might be
dangerously abused." 2 FARRAND at 254 (Madison's Notes, Aug. 10)
(footnote omitted). There was also extensive debate about the two-
thirds rule for Senate ratification of treaties, see id. at 540 (Madi-
son's Notes, Sept. 7); id. at 548 (Madison's Notes, Sept. 8). On
amendments, after Elbridge Gerry argued that a simple majority
should not be able to "bind the Union to innovations that may
subvert the State-Constitutions altogether," id. at 557-58 (Madi-
son's Notes, Sept. 10), James Wilson proposed the three-fourths of
the states requirement that appears in the Constitution, id. at 559
(Madison's Notes, Sept. 10).
id. (compelling attendance of
absent Members); art. I, § 5, cl. 3 (entry of yeas and nays in
Journal of Proceedings).
Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (written by
now-Justice Stevens, who was then a Circuit Judge writing for a
three-judge District Court panel), which the Clerk cites as support
for this argument, is factually distinct from the case at bar. Dyer
involved the vote required for state legislators to ratify an amend-
ment to the Constitution. The federalism concerns that underlay
that decision are not present here. Dyer's statements about the
meaning of a constitutional silence on voting requirements, id. at
1306, thus, are inapposite to this case.
Gordon v. Lance,
403 U.S. 1, 6 (1971) (finding that West Virginia's requirement of a
three-fifths majority of voters to increase tax rates or bonded
indebtedness did not violate the Fourteenth Amendment). That
case deals with the constitutionality of state supermajority require-
ments under the equal protection clause, not the presentment
clause. Gordon simply does not address the federal legislative
process.
procedural rules that affect which bills reach the entire House and
rules that alter what constitutes the passage of a bill. In Page v.
Dole, Civ. No. 93-1546 (D.D.C. Aug. 18, 1994), a challenge to the
Senate's cloture rule, which she dismissed for lack of standing, she
suggested that impermissible vote dilution might result if Congress
imposed a supermajority requirement for passage of a bill but did
not result from the Senate's supermajority cloture rule. Rejecting
the plaintiff's argument that he had standing because the Senate
cloture rule resulted in impermissible dilution of his Senator's vote,
she said, "To put it more baldly, Senate Rule XXII [the cloture
rule] is not the same as a vote for or against legislation." Page, slip
op. at 15 (emphasis added).