"Resolved that the U.S. in Congress be requested to allow and cause to be paid to the Secretary and other officers of this Convention such sums in proportion to their respectives times of Service, as are allowed to the Secretary & similar officers of Congress."

"Ordered that the Secretary make out & transmit to the Treasury office of the U.S. an account for the said Services, & for the incidental expenses of this convention."

In addition to the above provisions for the payment of the delegates and other members' expenses, the Continental Congress, by resolution on the 23rd of April, 1787 gave all members the privilege of sending and receiving letters and packages free of postage.*

On the motion of Mr. Carrington seconded by Mr. Johnson Resolved That the priviledge of sending & receiving letters and packets free of postage be extended to the members of the Convention to be held in Philadelphia on the second Monday in May next in the same manner as is allowed to the members of Congress.

TODAY: IN THE EVENT OF A CONSTITUTIONAL CONVENTION, WHO SHOULD PAY?

The alternatives for covering the costs of a federal constitutional convention are limited either the federal government pays all expenses, the states divide up the costs or the federal government and the states somehow divide up the costs.

The first alternative, the federal government paying all the costs, is one provided for in the Senate bill S. 3.5 S. 3 provides in section 8 (b) the following: "There are hereby authorized to be appropriated such sums as may be necessary for the payment of the expenses of the convention." This approach is, as it appears, very straight forward and uncomplicated. The United States Congress would merely appropriate the necessary monies in order to cover all the costs of the convention.

The second option, as mentioned above, is one provided for in Senate bill S. 1710. S. 1710 provides in section 8 (b) the following: "No federal funds may be appropriated specifically for the purposes of payment of the expenses of the convention." This would mean that the states would somehow have to share the costs of the convention. This approach poses two serious questions that are not addressed by S. 1710.

The first of which is how the cost would be apportioned among the States under the provision in S. 1710. Should each state share equally one-fiftieth of the total cost or should each State only be responsible for that percentage of its representation of the total number of delegates in attendance. For example: under the provisions for selection of delegates found in S. 3 and S. 1710, each state would be entitled to as many delegates as it is entitled to Senators and Representatives in Congress. This would mean that under present circumstances, a total number of 485 delegates would be attending the convention. (The recent census may change the number of delegates in the near future.) Pursuant to the above mentioned provisions of S. 3 and S. 1710, Rhode Island would be entitled to only four delegates, while California would have 45 delegates. Rhode Island's four delegates represent only approximately .9 percent of the total number of delegates; California's 45 delegates represent approximately 9.2 percent of the total number. Should Rhode Island be expected to share equally with California, each paying one-fiftieth the total cost, when California would have more than 10 times the number of delegates and representation at the convention or should Rhode Island pay only .9 percent of the total cost and California pay 9.2 percent of the total? If the states are to be expected to cover the costs of the convention, as S. 1710 provides, this question will have to be addressed.

The second question that arises is one that is most fundamental and one never lacking in controversy: federalism and states' rights. In other words, how and under what authority can the federal government require the states to pay the costs of a national constitutional convention.

Id. at Vol. III, App. A, V; Documentary History of the Constitution, IV, p. 121. 5 S. 3. Senator Helms introduced the bill on Jan. 15, 1979. The bill was referred to the Subcommittee on the Constitution of the Judiciary Committee on Feb. 27, 1979. No further action has been taken on the bill.

S. 1710. Introduced by Senator Hatch on Sept. 5, 1979. No further action has been taken on the bill.

The other alternative method for paying the costs of a convention would be to somehow divide up the costs between the Federal Government and the States as was done in the 1787 Convention. This could be done in any number of different ways too numerous to be spelled out here. The main advantage of such an approach would be that it would be a middle of the road compromise between those persons who feel the Federal Government should pay and those who feel the states should cover the costs.

[The Washington Star, March 1, 1979]

GOVERNMENT UNIONS OPPOSE BALANCED BUDGET CONVENTION

(By Joseph Young)

Government employee unions have embarked on a battle they consider as vital to federal and postal workers as any they fought in the past.

The unions are seeking to block adoption of the constitutional amendment convention that would be called for the purpose of requiring a balanced federal budget.

Employee leaders believe such a constitutional convention could wipe out as many as 300,000 to 400,000 federal and postal jobs and reduce pay and fringe benefits of government workers.

In addition, they fear that such a constitutional convention would adopt other amendments harmful to government workers.

The AFL-CIO American Federation of Government Employees has instructed its membership throughout the country to campaign at state legislature levels and work with other groups to block ratification of the constitutional amendment. Already 28 of the 34 states required for ratification of such a constitutional amendment convention have voted their approval.

The AFL-CIO National Association of Letter Carriers has asked its membership to join other interested groups in lobbying at state levels to block the constitutional amendments from being approved.

Vincent Sombrotto, NALC president, and Tony Huerta, the union's executive vice president, told the membership:

"The real trouble is that such a convention would undoubtedly be dominated by right-wing activists and nothing could prevent the delegates from considering extremist issues such as 'Right to Work,' uniting the federal retirement program with Social Security, repeal of the income tax, and turning the Postal Service to private enterprise."

Government employee leaders emphasize that such a convention would not only eliminate hundreds of thousands of government jobs, it also would eliminate many valuable and necessary publice services.

The NALC charged such action would "seriously threaten national security, increase unemployment and induce a national depression."

GOLDWATER V. CARTER:1 ITS IMPLICATIONS FOR JUSTICIABILITY ISSUES IN THE CONVENTION METHOD OF AMENDING THE CONSTITUTION

(By Kenneth F. Ripple*)

A. INTRODUCTION

On December 13, 1979, the Supreme Court of the United States decided, in summary fashion, the challenge of certain members of Congress to the President's unilateral decision to terminate the United States' Mutual Defense Treaty with the Republic of China. The Court's three and one-quarter line order simply recites that the petition for certiorari is granted, the judgment of the Court of Appeals ' is vacated and the case is remanded to the District Court wih directions to dis

148 U.S.L.W. 3402 (U.S. Dec. 13, 1979) (No. 79-856).

3

Associate Professor of Law, University of Notre Dame. A.B. Fordham University; J.D. University of Virginia; LL.M. George Washington University. The writer gratefully acknowledges the assistance of Miss Mollie A. Murphy, '80, Notre Dame Law School. Goldwater v. Carter, No. 79-2246 (D.C.Cir. Nov. 30, 1979) (en banc). Goldwater v. Carter, No. 78-2412 (D.D.C. Oct. 17, 1979).

miss the complaint. The Court thus leaves us, quite deliberately, with no precedent at any level of judicial review either on the important threshold questions of justiciability or on the merits of the dispute. However, two members of the Court filed statements addressing various aspects of the justiciability issue. The purpose of this short paper is to relate these recent statements by members of the Court on the question of justiciability to the question of whether Congressional determinations pursuant to its responsibilities under Article V's convention method are reviewable by the Supreme Court of the United States.

1. Mr. Justice Powell

4

B. THE STATEMENTS

Writing only for himself, Mr. Justice Powell viewed the substantive issue as basically involving "the allocation of power between the President and the Congress ***" In his judgment, that matter was not ripe since those two branches had not yet reached "a constitutional impasse." Neither the House nor the Senate had definitely rejected the President's position. Justice Powell concluded: "If the Congress chooses not to confront the President, it is not our task to do so.' ." The Justice made it clear, however, that, in the event of such a constitutional impasse, "it would be the duty of *** [the] ***Court to resolve the issue." He found no "textually demonstrable constitutional commitment of the issue to a coordinate political branch'" since "[n]o constitutional provision explicitly confers upon the President the power to terminate treaties." ,99 Moreover, the question could be resolved by the application of “normal principles of interpretation to the constitutional provisions at issue" 10 without "an initial policy determination of a kind clearly for non-judicial discretion." " Such judicial action does not imply, he argued, "lack of respect for a coordinate branch" 12 since it would eliminate, not create, multiple constitutional interpretations. 2. Mr. Justice Rehnquist

Writing for himself, the Chief Justice, Mr. Justice Stewart, and Mr. Justice Stevens (one vote short of a majority), Mr. Justice Rehnquist took the position that the case presented a political question. The Justice argued that his conclusion followed a fortiori from the holding in Coleman v. Miller.13 Central to his analysis was Chief Justice Hughes' observation in Coleman that Article V contains no explicit provision concerning rejection of an amendment by a state legislature and that Congress therefore retained final authority to decide whether "by lapse of time its proposal of the amendment had lost its vitality prior to the required ratifications." "The Constitution is similarly silent on the manner in which a treaty is to be terminated, Justice Rehnquist noted, and, since "different termination procedures may be appropriate for different treaties," 15 the matter "must surely be controlled by political standards.'"' 16 Indeed, he added, the justification for such a conclusion is even greater here since the matter involved the conduct of foreign relations. The steel seizure case, Youngstown Sheet & Tube Co. v. Sawyer could be distinguished on the ground that that suit involved a challenge to the President's authority by private litigants, while, in this case, the dispute was between "coequal branches of our government, each of which has resources available to protect and assert its interests, resources not available to private litigants outside the judicial forum." 18

8 48 U.S.L.W. at 3402, quoting Baker v. Carr, 369 U.S. 186, 217 (1962).

948 U.S.L. W. at 3402.

10 Id.

11 See note 8 supra.

12 48 U.S.L.W. at 3403, citing Powell v. McCormack, 395 U.S. 486, 548 (1969).

13 307 U.S. 433 (1939).

14 Id. at 456.

15 48 U.S.L. W. at 3403.

16 48 U.S.L.W. at 3403, quoting Dyer v. Blair, 390 F.Supp. 1291, 1302 (N.D. Ill. 1975). 17 343 U.S. 579 (1952).

18 48 U.S.L. W. at 3403. On an accompanying footnote, Mr. Justice Rehnquist quoted at length from the opinion of Chief Judge Wright (joined by Judge Tamm) in the Court of Appeals which catalogued the political tools of retaliation possessed by the Congress. Judge Wright concluded: "As our political history demonstrates, treaty creation and termination are complex phenomena rooted in the dynamic relationship between the two political branches of our government." Slip opinion at p. 13.

C. ANALYSIS

Our task is to assess the import of these statements on the issue of whether congressional determinations with respect to the convention method of amendment are justiciable. From that perspective, it would be quite easy to read too much into these statements. First, a general caveat is indicated. As Justices Blackmun and White most pointedly noted," the writings in this case are not the product of the usual deliberative process reserved for cases taken for plenary review. Certainly, the level of analysis manifested in the statements of Mr. Justice Powell and Mr. Justice Rehnquist are not the equals of other efforts on comparable topics by the same authors.20 Quite simply, these writings were forged in a "hydraulic pressure" 21 not present in deliberations on a case heard and decided in due course.

With that general caution noted, it is possible to cull from the statement of Mr. Justice Rehnquist a limited amount of relevant analysis. Certainly, his reliance on Coleman does seem to establish that at least four Justices of the present Court are willing to accept the holding of Coleman that Congress alone may accept or reject a state's ratification of a proposed amendment. These same Justices would apparently reject Justice Powell's comment that Coleman can be limited to circumstances where the particular proposed amendment would overrule a decision of the Court. More significantly, these Justices would apparently reject the view that absence of a textual provision covering Congressional rejection of a petition for convention or a proposed amendment or the failure of Congress to act makes the matter any less a political question. It appears that they would consider such issues committed to another branch of government (and thus not judicially manageable in the sense of the Baker v. Curr criteria) as long as the subject matter was clearly committed by the text to the exclusive control of that other branch. Such a structural approach to constitutional interpretation, especially in the area of separation of powers, is certainly not novel" and has, indeed, a certain common sense quality.

25

Mr. Justice Rehnquist's statement takes the further position that Goldwater is actually a stronger case for the application of the political question doctrine than Coleman since it deals with foreign affairs, a matter which he is willing to accept as a traditional area of Executive exclusivity. Here, Justice Rehnquist ignores the crucial fact that, in Goldwater, the Court was confronted with a question of allocating power between two branches of government, a task which, as Mr. Justice Powell notes, the Court has been quite able to undertake in some contexts and where it has performed the important function of preserving the separation of powers by the allocation of power.20 On the other hand, Coleman and situations posed by the pending constitutional convention procedures bill do not involve a dispute between two branches of the Federal Government. Rather they require the Court to second-guess a judgment which it has already found to be the exclusive prerogative of one other branch. Arguably, in this latter situation, there is far less need for the Court to act and a far greater possibility of unresolved "multifarious pronouncements by various departments on one question." 27

Since Justice Powell relies so heavily on the duty of the Court to arbitrate interbranch disputes over the allocation of power, it is difficult to assess how his remarks bear on the justiciability of Congressional determinations with respect to the convention method of amending the constitution. As noted, supra, cases arising under the procedures bill would not involve allocating power between two branches of government. They would, however, involve fact-specific review of Congressional action or inaction. Such litigation would be quite

19 These Justices filed a short statement indicating that they would not have decided the case without plenary consideration, including oral argument.

20 See, e.g., Warth v. Seldin, 422 U.S. 490 (1975).

21 Northern Securities Co. v. United States, 193 U.S. 197, 401 (1904) (dissenting opinion of Holmes, J.).

22 48 U.S.L. W. at 3403, n. 2.

23 369 U.S. at 217.

24 See, e.g., United States v. Nixon, 418 U.S. 683, 703-713 (1974); Youngstown Sheet & Tube Co. v Sawyer, 343 U.S. 579, 634 (1952) (concurring opinion of Jackson, J.).

25 48 U.S.L.W. at 3403, citing United States v. Curtiss-Wright Corp., 299 U.S. 304, 315 (1936).

26 48 U.S.L.W. at 3403. citing Buckley v. Valeo, 424 U.S. 1, 138 (1976); United States v. Nixon, 418 U.S. 683, 707 (1974): The Pocket Veto Case, 279 U.S. 655, 676-678 (1929); Myers v. United States, 272 U.S. 52 (1926).

27 Baker v. Carr, 369 U.S. at 217.

analogous to the example of a non-justiciable controversy which Mr. Justice Powell offers in Goldwater-the review of a President's decision to act or not to act pursuant to a treaty provision in a given situation."

D. CONCLUSION

Goldwater deals with a justiciability question quite different from the one which is posed by current legislative proposals purporting to make Congressional determinations with respect to a constitution convention reviewable in the courts. Goldwater involves an interbranch dispute; the latter situations would not. It is clear from Goldwater, however, that at least four Justices appear disposed to follow a structural rather than literal approach in deciding if a given activity is committed to the exclusive care of another branch. Moreover, at least five Justices seem ready to declare non-justiciable any dispute calling for a fact-specific review of a determination which another branch clearly had the prerogative to make alone. These developments make the justiciability of Congressional determinations under a convention procedures bill even more suspect than they appeared before Goldwater. They reemphasize the Court's reassessment in recent years of the proper role of the judiciary in resolving policy matters which the Constitutional scheme leaves to the more democratically responsive branches.

28 48 U.S.L.W. at 3402.