UNITED STATES v. RICHARDSON

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Argument of Bork

Chief Justice Warren E. Burger: We’ll hear arguments next in 72-885, William v. Richardson.

Mr. Solicitor General, you may proceed whenever you are ready.

Mr. Bork: Mr. Chief Justice and may it please the Court.

This case presents at this stage is only an issue of federal taxpayer standing and the question is whether the exception made in the rule of Frothingham against Mellon by the later decision of Flast against Cohen should be widened to grandstanding in cases not involving the Establishment Clause and the Free Exercise of clauses of the First Amendment.

The Government will attempt to demonstrate that an affirmative answer, the answer the respondent here seeks would effectively overrule all of Frothingham which Flast did not purport to do, and would probably destroy the concept of standing altogether.

That result we think is precluded by considerations rooted in Article III of the Constitution, and by considerations relating to the role of this Court and other federal courts in exercising the power of judicial review.

Respondent brought this suit in the District Court for the Western District of Pennsylvania to enjoin the publication by the Secretary of the Treasury of the combined statements of receipts, expenditures and balances of United States Government on the ground that, that document does not identify appropriations for and expenditures by the Central Intelligence Agency.

Now, this confidentiality of CIA funding, its spending is expressly provided by statute as an exception to the general statute which requires that the Secretary of the Treasury annually lay before Congress the combined statement.

The CIA budget of course is reflected in the total figures in the combined statement, but it is not identified as such.

Respondent’s theory is that this congressionally provided confidentiality violates the Statements and Accounts Clause of Article I, Section 9, Clause 7 which reads, “No money shall be drawn from the Treasury, but in consequence of appropriations made by law and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.

The District Court dismissed respondent’s complaint on the ground that he lacks standing as a taxpayer, but the Court of Appeals for the Third Circuit sitting en banc reversed with three judges dissenting.

I would like to approach this case initially through an examination of Flast against Cohen in an attempt to show that, that case denies respondents standing here.

And then I would like to turn briefly to issue of constitutional policy and argue that the standing concept in cases like this is in Article III concept as Flast against Cohen recognizes and it’s important to preserve that concept.

I think the majority opinion in Flast plainly denies standing in this case.

Only if the limits set by that case to taxpayer's standing are abandoned can respondent here be accorded standing and of course Flast must be seen against the background of Frothingham against Mellon.

In that case, in Frothingham, the taxpayer attacked the constitutionality of the Maternity Act of 1921 which setup a Federal program to grant -- make grants to States who would undertake programs to reduce maternal and infant mortality.

And the taxpayer sued and challenged the constitutionality of the Maternity Act on the grounds that it is exceeded the powers delegated to Congress under Article I, that it violated the powers reserved to the States by the Tenth Amendment and that deprived her through the taxing process of her property without due process of law under the Fifth Amendment.

Those are constitutional claims that at that time were certainly regarded as quite as important as any constitutional claim to respondents who seeks to litigate here.

But this Court nevertheless denied standing and that rule against taxpayers standing stood in violate until Flast.

The Flast majority was very careful to the state that it was reading the Frothingham rule intact except for the defined category of cases and the exception it made in the Frothingham rule was for cases in which the taxpayer could show a logical annexes between the taxpayers’ status and the claim he sought to adjudicate and that logical nexus test breaks down into two further tests in Flast.

First, there must be a logical link between the taxpayers’ status and the type of legislative enactment sought to be attacked.

And second, there must be similar nexus between the test status of taxpayer and the precise nature of the constitutional infringement alleged.

I don’t think, pardon me, the respondent in this case can satisfy either of those tests.

The Flast opinion set up this first nexus, the one between the status of taxpayer and the enactment to this challenge.

I quote a taxpayer would be a proper party to allege the unconstitutionality, only of exercises of congressional power under the taxing and spending clause of Article I, Section 8.

The respondent here of course is not attacking any exercise of the taxing and spending power under Article -- under Section 8.

He is attacking a reporting provision under Section 9.

The Court in Flast continued, “It will not be sufficient for a taxpayer to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.”

Now I would like to make two observations about that first test in connection with this case.

The first is that here the respondent makes no complaint of any injury to his pocket book.

He is not saying that any tax money is being taken from him in violation of the constitution.

So that there is no link between the status he asserts, that of a taxpayer and the statute permitting CIA funding to be placed in the budgets of other agencies or departments.

It’s apparent on the face of the matter that what he has is the interest common to all citizens, that is as this Court has put it, merely a general interest common to all members of the public and that he seeks to air his generalized grievances about the conduct of Government and those are precisely the phrases of this Court has used to describe a litigant who has no standing.

The second observation I would like to make about this first test in Flast is that the theory of the majority of the Court of Appeals below and I believe the theory of the respondent here is that the first Flast test is satisfied because the respondent is injured by lack of knowledge about the CIA budget.

As the respondent’s brief puts it, it is the intimacy of the constitutional provision to the spending process that is relevant.

If that were the test, then Flast actually left no vestiture to Frothingham despite its protestations to the contrary.

Taxpayers would have I think, under that test, standing to litigate any grievance that is colorably related to the appropriation process.

And that in turn would inject the courts into every imaginable question bearing on the constitutionality of actions by the legislative and executive branches at the request of every disgruntled taxpayer, who wanted to oppose some governmental program or procedure.

Justice Thurgood Marshall: Mr. Solicitor General, do I gather from your brief that no one can attack this?

Mr. Bork: I am -- Mr. Justice Marshall, I am unable for the moment to imagine how this particular provision could be attacked, but of course that is not --

Justice Potter Stewart: The Court will be --

Mr. Bork: Yes the Court, the Court yes, but that of course is not a unusual situation with constitutional provisions.

For a variety of reasons just as you can be among them, a variety of constitutional provisions may not be enforced by a court.

Chief Justice Warren E. Burger: But Congress could require them to render an account down to the last postage stamp if they wanted, could they not?

Mr. Bork: Undoubtedly, yes Mr. Chief Justice.

Congress could require them to specify the number and salary level of every secret agents throughout the rest of the world.

There is no question about that.

Chief Justice Warren E. Burger: Isn’t the issue in this case, who is to define what is a regular statement and account under --

Mr. Bork: That --

Chief Justice Warren E. Burger: -- whether it’s Congress or whether it’s the court or someone else?

Mr. Bork: That is the -- a question we must get into it to some degree at least Mr. Chief Justice that it also impinges upon the ultimate question if the respondent were found to have standing, but I think the second Flast test which talks about what is the purpose of a constitutional provision necessarily requires to be talked about that as well.

I think the history --

Chief Justice Warren E. Burger: If we need to get to that at all that’s the point, isn’t it?

Mr. Bork: Well --

Chief Justice Warren E. Burger: If we reach that, are you suggesting that it’s not necessary to reach that?

Mr. Bork: No, no I was about Mr. Chief Justice to discuss that very point.

Chief Justice Warren E. Burger: Very well.

You're own schedule Mr. Solicitor General.[Laughter]

Mr. Bork: The second Flast test is of course the question of whether the taxpayer has stated a relationship and nexus between themselves and the constitutional provision.

And as our position is you just suggested, it might be Mr. Chief Justice, that in fact this provision is designed toward the protection of Congress.

It's designed to give Congress control over executive spending to find out what the Executive is spending and what the Executive is receiving.

I think that’s apparent both from the history of the statute although the history is not free from ambiguity in all candor, but I think is even more apparent from the necessary construction of this clause in connection with other clauses.

In the history, the history is set forth in our brief, the opposition of George Mason and Patrick Henry to this clause of the constitution was apparently founded upon the fact that it might allow secrecy and expend some accounts.

In addition to that in a phrase which is perhaps not entirely free from bad ambiguity, but I think it supports the Government’s position here.

In the debate in the constitutional convention on this clause in September 14 which is reported in 2 Farrand's records at page 619.

James Wilson of Pennsylvania supported the motion to change the provision before them from an accounting year-by-year in annual accounting to an accounting from time-to-time which is the present language in the clause, by saying that many operations of finance cannot be properly published at certain times.

But I think we rely unless upon that history which I think is incomplete than we do upon two other factors.

One is, but after that history it became regular practice for the Congress to keep some appropriations secret when the occasion of the national interest seem to demand it.

Our brief at page 26 points to the fact that there was secret appropriation in 1811 to $100,000.00 I believe for the occupation of Spanish Florida an Act by the Congress which obviously had a great deal of sensitivity in Foreign Affairs.

That appropriation was kept secret for seven years until 1818 when it was published and of course the most famous example of this kind of procedure was the $2 billion secretly spent to develop the atom bomb in the Manhattan project during World War II.

So I think there is a course to the historic practice which supports the idea that this is -- the reporting is in the control of Congress and its intended to give Congress control over what the Executive is doing with funds.

Justice William H. Rehnquist: Mr. Solicitor General if it's just for the benefit of Congress, I would think Congress could have provided for that by law for finding it the Constitution?

Doesn’t that suggest that it is does designed the benefit somebody in addition to Congress?

Mr. Bork: Mr. Justice Rehnquist, I wouldn’t think so.

There are a number of things in the Constitution, I think which give powers exclusively to Congress and are for the benefit of Congress and not for the benefit of others.

The power to expel members, the power to pass on for the qualifications and a variety of others.

I don’t think every constitutional provision is because it is a constitutional provision necessarily designed to be enforced by the citizens.

Justice Potter Stewart: Oh!

But by hypothesis every provision of the Constitution it is for the benefit of the American public, by hypothesis I should say, is it not?

Mr. Bork: Entirely true Mr. Justice Stewart by hypothesis.

Justice Potter Stewart: And for every member the American Public?

Mr. Bork: I beg your pardon?

Justice Potter Stewart: For every member of the American Public.

Mr. Bork: That is entirely true.

Justice Potter Stewart: I mean that the President has to be a national born citizen or that the Senator has to be, what is it, 30 years old or whatever.

It is presumably by -- it wouldn’t be there were it not by hypothesis for the member -- for the benefit of each member of the public in the United States of America.

Mr. Bork: That’s entirely true.

The question always is, is it enforceable by every member of the public and our position here is that this is a provision enforceable by Congress and waivable by Congress and not enforceable by every citizen who may object to the way Congress enforces it.

If he does object to the way Congress enforces, I think his clear remedy is to deal with Congress and try -- if he wants the CIA budget published, the simple matter is to go to a Congressman and go to his Congress and get other like-minded citizens to get Congress to require that the CIA be -- budget be published.

Justice Potter Stewart: To convince Congress even that is their constitutional duty to do so?

Mr. Bork: That is correct.

Justice Potter Stewart: Even if they don’t want to?

Mr. Bork: That is correct.

But I think from other aspect of this derived from the consideration of the structure which the constitution puts together in the case that, that is the correct reading of this clause.

It'd be exceedingly strange just in passing if the framers had believed they would never be matters relating to Foreign Affairs and never be matters relating to Military Affairs and Military Intelligence that must not be disclosed to the world in full.

That’s -- that would be attributing to the framers a lack of practicality which I don’t think we may attribute to them.

Now, the respondent’s brief attempts to find the negative pregnant in the fact that the constitution explicitly authorizes in Article I, Section 5, Clause 3, each house to keep secret its debates and decisions on matters that it believes require secrecy and respondent argues that see they knew how to provide for secrecy when it was called for and the fact that they did not provide for it in the Statement and Accounts Clause, explicitly means that it doesn’t exist, power of confidentiality does not exist.

I think the necessary inference runs quite the other way.

It would be extraordinary if the framers had intended the House in the Senate to be able to keep secret matters which they regarded as sensitive, but at the same time required the executive to publish those same matters to the world.

Chief Justice Warren E. Burger: What is the practice now? I am not very clear on it with reference to publishing details of the expenses of the operation of the Congress itself and perhaps it’s not relevant?

Mr. Bork: Well, Mr. Chief Justice I hope it’s not because I cannot answer the question.

Chief Justice Warren E. Burger: I have the impression that there are complaints from time-to-time and others by various people that Congress does not ever publish any account on the detailed expenditures?

Mr. Bork: I have not -- I have heard those complaints, I have not inquired into the details here.

Perhaps, I should say something that question brings to mind and that is that these matters, the CIA funding is not kept secret entirely from Congress.

Obviously, the matter is sensitive.

The appropriation’s committees of both the House and the Senate have sub-committees to which the CIA budget and expenditures are reported and from time-to-time in the Senate there is joint membership between the Armed Services Committee and the Budget Committee.

So there is a congressional check on this process.

It is just that it is deemed wise I suppose that matters of this sensitivity not be given to bodies of the size of the full House and the full Senate.

I think then it is fairly plain I think that the respondents claim the standing as a taxpayer doesn’t meet either first or the second Flast test requiring a logical nexus between his status and enactment and his status in the constitution.

When you think about -- when I think about his claim to standing here, it seems to me that he'd be indistinguishable from the claim to standing made in Ex parte Levitt where a citizen and a member the bar of this Court filed a motion requiring, asking that Mr. Justice Black be required to show cause why he should not be disqualified to be a member of this Court because of Article I, Section 6, Clause 2.

And the Court thought so little of that claim that they dismissed with per curiam opinion saying that they did not sit to discuss generalized grievances about the way the Government is operating.

I think this case is also indistinguishable from Laird against Tatum.

That was a case in which there was a citizen interest in the possible chilling effect in Army Intelligence System though there was no direct impact upon the plaintiffs.

And they were denied standing, the case is already standing case that cites Ex Parte Levitt for its main holding.

I would think that citizens in general would have as much interest in the possible and alleged chilling effect from an Army Surveillance System upon First Amendment values as citizen if in general would have here upon the reporting of the CIA budget.

Justice Potter Stewart: Mr. Solicitor General, if I may interrupt you and to go back a moment.

Did you have a citation for the case arising, arising under the Article I, Section 6 posture of the short per curiam on this.

Mr. Bork: Ex parte Levitt, Mr. Justice Stewart is found at 302 U.S. 633.

Justice Potter Stewart: Thank you.

Mr. Bork: So I think the Laird v. Tatum is also a direct holding and a more recent one, Laird than Ex parte Levitt, that there is no standing in this case, I think I should say why I think it’s important, why I think standing is much more than a rule of judicial self-restraint or discretionary rule as the respondent’s brief puts it and as some of the cases put it, I think it is.

We can see what the standing here is in Article III doctrine.

It's a doctrine relates fundamentally to the way that this Court and the lower federal courts (Inaudible) in judicial review.

It is usually said that standing isn’t an issue of whether the party is a proper one.

Whereas justiciability is an issue, it's a question of whether the issue was one that’s suitable for a court to handle.

I think that it is not put it quite accurately.

I think standing is a branch of justiciability because it goes -- it examines the party only to discover whether he is a party who will put the issue in the forum, in a forum which is suitable for judicial resolution.

And that makes it I think an aspect or a subdivision of justiciability and I think the Flast opinion agrees that indeed it is an aspect of justiciability, it is an Article III doctrine.

It has also said that the doctrine one having to do with whether the issue will be presented by sufficient adverseness.

I suppose extending standing to all citizens might require -- might result in the decline in the vigor of adversary presentation in some cases, it is also necessary to admit that it will not in many because citizen standing will be used often by persons with ideological interests or groups with ideological interests who will press the case with great vigor.

So, I am not so sure that the decline in vigor presentation is a general problem, although it maybe in some cases.

What standing and the requirement of an injury in fact actually does is delay the presentation of the issue to the Court until the law challenged has some actual impact upon members of the society and I think that’s important for a variety of reasons.

One is that we ought to examine cases, the courts ought to examine cases in concrete factual settings because our constitutional law too is law that has a common law tradition.

A common law of jurisprudence and we like to concrete factual settings because they qualify the rules announced in the cases.

They explained the meanings of the rule to people who must read the cases and they help the Court in imagining the difficulties they can get into with a particular rule because it is presented with factual situations that indicate the complexities that are involved.

So the standing issue aside from being -- it is also has an aspect of fairness to parties who maybe interested.

That is a party may have a specific injury done to him and a rule of citizen or taxpayer standing might result in somebody who does not have such interests or a factual setting getting to the courts first with this case and perhaps resulting in a rule that would not have been arrived or not arrived at in precisely that form, had a person with a real person's stake had been in the case.

But primary, I think the concept is important as a rule of fairness to the court.

I think not just fairness to the court, but the ability of the court to perform the awesome function of judicial review with maximum effectiveness sanction.

Where there is citizen standing and taxpayer standing, generally, is quite plain I think that we would have an increased number of groups and persons who would attack the statutes the moment they were enacted.

Who would attack Executive programs the moment they were announced and having standing, they would find themselves in court debating abstract theorems instantly.

There are two things wrong with that.

I have already discussed I think what’s wrong with that in terms of the fact that the issues are not quite well without a concrete factual setting.

But there’s also something wrong with ideological litigation in that lawyers in such litigation often do not explore the issues fully.

They are looking for a sweeping constitutional result and are likely not to explore narrow or statutory or factual problems that maybe quite important to the court.

Whereas a person with a personal stake wants to win the case and will explore every ground upon which he might win that case.

This kind of standing which would come immediately after a law has passed or statute or executive action announced means that the court at the behest of such a litigant and ideological litigant does not want to explore all the concrete settings, in fact there is no concrete setting, would in effect repeat the legislative or executive decision making process that had just concluded and would probably repeat it with fewer materials than were available to the legislature and to the executive in arriving at the decision, I don’t think that, that is the court’s test in the system of judicial review.

It makes the court into something like the counsel of revision, the framers rejected.

It puts the court in something of the position of giving advisory opinions and I think that would be most unfortunate for the function of this Court.

Thank you.

Justice Harry A. Blackmun: General Bork, may I ask you a question that has nothing to do really I suppose on the merits.

This case was heard en banc for the Third Circuit.

I notice that District Judge Kraft sat on the en banc panel, do you know on what authority he participated?

Mr. Bork: I don’t know the authority.

Justice Thurgood Marshall: Could be that if he was on the panel he is automatically on it?

Justice Harry A. Blackmun: Well, this is what I question because Section 46 (c) makes no reference whatsoever to a District Judge who sat on the panel.

It makes reference only to a Circuit Judge of the Circuit who has retired sitting on the panel.

And my point I guess is that with an eight-judge court would Judge Rosen desist Judge Kraft’s status in my view somewhat questionable and Chief Judge Sykes not participating with majority.

I wonder where the five to three-vote really comes out today.

Mr. Bork: In our brief or in our petition Mr. Justice Blackmun, I am sorry to say that I am having difficulty at moment locating the footnote.

Chief Justice Warren E. Burger: I think you have pointed out that it made no difference in the end result.

but there was some doubt perhaps about a District Judge?

Mr. Bork: I think Mr. Chief Justice that we did say that there was only some doubt, probably it was incorrect, but in this case we do not make a big point.

Justice Harry A. Blackmun: You are making no point of it, but I am --

Justice William J. Brennan: This is in the footnote 5, Mr. Solicitor General of your petition.

That’s where you made reference to it.

Mr. Bork: Page 6.

Justice William J. Brennan: Page 6.

Justice Byron R. White: Mr. Solicitor General, you do not address yourself in the brief or to the -- or in your oral argument to the question of justifiability it’s -- the District Court said -- How do you view the District Court’s decision to dismiss?

Mr. Bork: Oh!

I think it was entirely correct Mr. Justice White.

Justice Byron R. White: On what ground did he dismiss?

Mr. Bork: District Court dismissed on both grounds of standing and political question.

The Court of Appeals sitting en banc addressed only the standing issue because it thought it that the political question issue was so entwined, intertwined with the merits of the case.

Justice Byron R. White: And you don’t -- your suggestion is that if we disagreed with you on standing I take it you anticipate we would remand to the Court of Appeals to consider political question or --

Mr. Bork: Or to the District Court --

Justice Byron R. White: You do not address yourself to that issue here?

Mr. Bork: No, I think that Mr. Justice White, I think the Court of Appeals was correct that the political question issue could be resolved much more effectively if we were into the full merits of the case than we can at this stage.

I think standing is all that really can be effectively discussed in the posture of the case is in now.

Justice Byron R. White: So the Court of Appeals did say that it did not reach here the political question -- it must have reversed to District Court on that too, it must have?

Mr. Bork: Well, in the sense that if -- I suppose it did in the sense that it said political question was not properly considered until we got to the merits.

Justice Byron R. White: So the dismissal on that ground was reversed also by the Court?

Mr. Bork: Yes it was Mr. Justice White, but not on the ground that the District Court was wrong about political question but --

Justice Byron R. White: And then do you agree with that, I take it that you agree with that.

That if we disagree with you on the standing we -- the Government agrees then that the case should go back to the District Court?

Mr. Bork: I think that’s correct.

Justice Byron R. White: And how about the motion to dismiss for failure to state a cause of action?(Voice overlap)

That would still have to be reached?

Mr. Bork: That would be the merits, we have to reached the question of whether --

Justice Byron R. White: No, it wouldn’t be that – it would be the --

Mr. Bork: In the meaning of Article I, Clause -- Section 7 --

Justice Byron R. White: As to whether we're satisfied perhaps by the congressional -- by the statutes on the books?

Mr. Bork: That is correct.

Chief Justice Warren E. Burger: Did the motion to dismiss properly raise the issue of justiciability?

Unknown Speaker: It did.

Mr. Bork: I think --

Chief Justice Warren E. Burger: Is resolution of that be resolution on the merits even if he didn’t go to the -- on the justiciability issue?

Mr. Bork: It’s little hard to tell Mr. Chief Justice exactly what the District Court’s reasoning process was because the order and memorandum did not it spell it out very well.

Perhaps, he thought that when he said it was a political question.

No, I do not think that when he said that he thought he was construing Article I.

Chief Justice Warren E. Burger: Very well.

Justice Byron R. White: I thought a good part of your argument here has been that this really -- the prosecution really assigns the enforcement or the reaction to this provision, to the account’s provision to the Congress and that’ part of your standing argument?

Mr. Bork: That is true and I am --

Justice Byron R. White: And yet you don’t say that -- you don’t make any separate point of -- out of it as a political question?

Mr. Bork: On the separate point at this stage, I am -- the Flast tests drive one into a consideration of what that -- I suppose I am saying the same (Voice Overlap).

Justice Byron R. White: Are you really saying that if we reject standard, we reject your standing argument we are also necessarily rejecting the political question side of your argument?

Mr. Bork: I think that there maybe more to the political question doctrine than that and I would certainly like a chance to explore it below if we -- while the standing here --

Justice William J. Brennan: That gets back to Mr. Justice White’s original question.

If we were to disagree with you on standing, what not I think go back to the Third Circuit on the question, on the issue of political question?

Mr. Bork: Well, since the Third Circuit is already ruled Mr. Justice Brennan that --

Justice William J. Brennan: (Voice Overlap) Do you think it’s clear to have reversed too?

Mr. Bork: I think they have said that the – that it’s not appropriate in this forum to discuss political question because you have to go fully into the meaning of the clause in question into the merits in order to get the political question.

Chief Justice Warren E. Burger: Very well.

Mr. Fraenkel.

Argument of Osmond K. Fraenkel

Mr. Osmond K. Fraenkel: Mr. Chief Justice and may it please the Court.

I think the Solicitor General has towards the end of his argument raised a man of straw.

We are not claiming here that standing should be abolished and we agree with that portion of the Solicitor General’s argument that it is composed of two elements.

One, a constitutional element resting on this case and controversy clause and the other on what this Court has itself described as a discretionary element in order perhaps to limit the kind of cases that come to the Court.

In passing, I perhaps should object to the reflection placed upon what my delightful friend called ideological lawyers as confusing issues, I don’t think that is a fair description of their function.

I think ideological lawyers have done a great deal in the past to help this Court reach understanding of the problems raised by the Bill of Rights particularly, but that’s not this case.

We submit that in this case both tests are met.

What plaintiff sought here was a compliance with the constitution by the inclusion in the published reports of some reference at least to the finances of the CIA.

That’s what he asks for and that was what was refused of him and we submit the fact is a case on controversy.

He was seeking information from the government.

Now, clearly if that information had been denied him we'll say because he was a member of some minority group or was politically just faithful to the administration, information otherwise available, clearly the courts would have the right to pass on that.

And if Congress had passed the law denying information on that score, clearly this Court could pass on that law.

Chief Justice Warren E. Burger: Do you think Mr. Fraenkel that there would be the same standing and the same justiciability in a claim brought to -- by a taxpayer, your client for a full statement of account receipts and disbursements on the building of the Rayburn building for example?

Mr. Osmond K. Fraenkel: No.

No, I will agree that there must be some discretion vested somewhere as to the nature of the details, but it's one thing to say that information may be categorized, it’s another thing to say that Congress can by law take out of what the constitution says the public is entitled to have.

And the question of this Court will have to consider therefore when we come back from lunch is to what extent the constitutional provision does require some accounting by every branch of government, bearing in mind as the history shows that the framers of the constitution both in the convention and in the State Conventions which considered it later, recognized that there might be delay in publication of certain sensitive matters as of course was the case with the two instances mentioned by the Solicitor General.

Chief Justice Warren E. Burger: I am puzzled then, why you should have any difficulty with the costs of the Rayburn building Mr. Fraenkel?

There is no basis for confidentiality or any public policy to be served by that, is there?

Mr. Osmond K. Fraenkel: No, but I don’t say that --

Chief Justice Warren E. Burger: Why shouldn’t you be able to get it?

Why should your client be able to get that if he wanted it?

Perhaps you could (Voice Overlap) and I am not sure how relevant it is, but I was just wondering why the clause does not reach the Congress and the Courts as well as the Executive Branch?

Mr. Osmond K. Fraenkel: Oh, I think that Congress reaches all agencies --

Chief Justice Warren E. Burger: The clause.

Mr. Osmond K. Fraenkel: Because it reaches all agencies of the Government.

But the question which Mr. Chief Justice you have just raised as to what extent the particular details as for instance whether it would be necessary to publish every appropriation made for every employee in --

Chief Justice Warren E. Burger: Well, we will resume there after lunch.[Luncheon Recess]

Mr. Fraenkel, you may proceed.

Mr. Osmond K. Fraenkel: To come back to your question Mr. Chief Justice, I suppose if we come to the merits of this case as I think if I am correct on my issue of standing the District Court will come to as to Justice Rehnquist's question earlier, I think that will go back to the District Court.

Then the question will arise what constitutionally can Congress do in fulfilling the mandate of the Constitution?

And I would suppose there would be some room for discretion as to details, but not as to categories.

In other words, if the public is as we believe entitled under the constitution to public information about what the Government does, that at least has to be outlined in broad terms and no department of Government can in our view be constitutionally excluded from the detailed account.

Now, how detailed that would be, I don’t think it becomes the constitutional question.

The Solicitor General has relied on basically three cases.

First, he says we are doing by Flast.

Well, we don’t read Flast that way.

Now it is true of course that there is language in Flast written with an eye to the particular problem that was presented by Flast.

And that language has to be construed in relation to that problem which did arise under the Establishment Clause of the First Amendment.

And when the Court talked about that as being the consideration, of course it was the consideration.

Well, I do not believe that the Court intended to say that that’s the only thing which a taxpayer could ever challenge.

Certainly the Levitt case has no bearing on this, whatever, because there is nothing in the Levitt case to indicate any connection between the individual who brought the proceeding and the appointment of Mr. Justice Black.

Whereas here, there is a direct connection between the individual who brought the suit and the refusal to give him the information which he claimed he was entitled to under the constitution.

Justice Potter Stewart: The applicant or the movement or whoever he was in Levitt was a member of the Bar of this Court interested in the -- being an officer of a Court that was constitutionally valid?

Mr. Osmond K. Fraenkel: Yes!

And there are many other questions which as has been pointed it out for instance the guarantee of the Republican Form of Government which every individual citizen is interested in, that which can probably become a subject of litigation.

Only when because of the denial of that form of government by some state, the individual is subjected to impediments which the Bill of Rights protects him against and he would then have a rest.

Justice William H. Rehnquist: But then his claim would be under the Bill of Rights and not under the Republican form of Government law, was it?

Mr. Osmond K. Fraenkel: That’s true and that of course brings us to the question which I do not think can be decided or should be decided here.

Whether this provision of the constitution is purely political which was one of the grounds of the District Court’s dismissal.

I don’t think we need reach that point or should reach that point because it is unnecessary for a resolution of the standing question if my view as correct, that a request for information which is supposedly granted by the constitution dies create a judicial basis and that is all the standing really amounts to.

Chief Justice Warren E. Burger: Let me come back if I may for a moment to the Levitt case.

It would certainly be considerably more than academic interest to the bar and to the public if one member of the Court was not a lawful member of the Court when it came either to the problem of grants of writs in the presente or in five to four decisions, would that give a degree of the concreteness?

Mr. Osmond K. Fraenkel: I would say that I suppose it’s a matter general interest to the public of this country whether one of our present Executives could be subject to impeachment perhaps, but I don’t think anyone could contend that the individual could bring a proceeding towards that end.

Because the Constitution provides that Congress shall determine that and the constitution provides that a Justice of this this Court shall be approved by the Senate and having been appointed by the President and approved by the Senate, the constitutional provisions have been complied with, it seems to me.

Chief Justice Warren E. Burger: Similarly the -- at least the claim of the government who would be undoubtedly be if it isn't already that the constitutional clause and question here has been implemented by Congress by a statute tender a general rather than a detailed annual account or periodic account?

Mr. Osmond K. Fraenkel: A particular statute which we say Congress had no power to enact because excluded, it didn’t merely describe categories, but it is excluded an important organ of Government from any disclosure.

Justice William H. Rehnquist: But couldn’t it just as well had been argued in Levitt that the Senate had no power to confirm Justice Black because he had voted to increase the emolument of the office which was sum of the constitution then prohibited him from taking?

Mr. Osmond K. Fraenkel: Well, I would say that if the constitution -- provision of the constitution that we are now considering said that the accounts of agencies of the Government shall be published to the extent that Congress may provide.

Then of course Congress’ decision could not be subjected in the way that we are attacking here.

But it didn’t and therefore it begs the question to say that Congress had the power to exclude an agency of Government that’s what this Court has decided, that’s the issue, and it wasn’t in my opinion anything like such an issue in Levitt.

And then Laird against Tatum was cited, but of course in Laird against Tatum, this Court was very careful to point out that the particular plaintiffs did not show any injury to themselves as in the Sierra case for instance, leaving open clearly the possibility that other persons who might be affected either by this surveillance of the army or by environmental disturbances would have standing.

Now that is not the situation here.

No one would have any special standing here than this plaintiff and this Court has on a number of occasions stated that standing can arise because of the circumstance that no one else could raise the issue.

For instance, in the Rhode Island so called censorship case, this Court expressly said that the booksellers there who were not directly affected had standing because otherwise the basic issues of freedom of speech involved might never be presented to the Court and of course the same was true in NAACP against Alabama and in Barrows where the question arose as to the impact of a restricted covenant whether a white person could raise the issue that such a covenant discriminated against Negroes.

This Court ruled, he could because otherwise that issue could not be raise at all.

So we come back then to the basic issue here is right to know important, not only to a taxpayer but to a citizen.

And I think that recent events in this country have clearly demonstrated how important it is for the people of this country to know what their Government is doing.

Justice Lewis F. Powell: Mr. Fraenkel on the point of the right of the public to know about expenditures by the Congress, the Solicitor General mentioned the Manhattan Project during World War II.

Would it be your position that a taxpayer would have had standing to force a divulgence of the funds that were then being appropriated for that project at that time?

Mr. Osmond K. Fraenkel: I think that in time of war many considerations exist which do not otherwise.

Certainly troop movements can be kept secret from the press, various things of that kinds are tolerated in time of war which would not be tolerated in time of peace.

Justice Lewis F. Powell: Would you think it perhaps equally important to have information that how Government to have information that might prevent war?

Mr. Osmond K. Fraenkel: Well, of course it’s important to say have information.

The question of course is how much of that information can legitimately be kept secret from the people.

And then maybe a period of time during which it can properly be kept secret as I think was recognized by some of the discussions in the conventions at the time of the adoption of the Constitution.

Chief Justice Warren E. Burger: Mr. Fraenkel --

Mr. Osmond K. Fraenkel: But we’re dealing here with an agency which had been in existence now for some 25 years.

Chief Justice Warren E. Burger: Do you know?

I do not know, or perhaps you do whether at present there is a detailed account filed by the Atomic Energy Commission on all its expenditures and what it’s -- how much it’s spending?

Mr. Osmond K. Fraenkel: I do not know, Your Honor.

Chief Justice Warren E. Burger: There is a special oversight committee of the Congress, is there not, which does have access to all the details.

Mr. Osmond K. Fraenkel: Of course there are also specific appropriations enacted by the Congress for particular agencies of government which are public acts and therefore available to the public.

As far as the CIA is concerned there is no such General Appropriations Act to see appropriations come from other agencies of government and are hint and that is the thing that we say Congress should -- had no right to do.

Justice Byron R. White: You could win on your standing argument and still lose on that argument?

Mr. Osmond K. Fraenkel: We could lose in the Court below said --

Justice Byron R. White: On the merits, on the ground?

Mr. Osmond K. Fraenkel: We can lose on the merits --

Justice Byron R. White: -- that the law wasn't violated?

Mr. Osmond K. Fraenkel: We could lose on the merits certainly.

I might point out that the plaintiff here asks this Court to review while this case was in the Court of Appeals to bring up the merits right away and this Court refused.

Of course we could loose on the merits.

We have not argued the merits fully.

We just touched on it because the other side discussed it at some length but that is true of almost any standing case.

Justice Byron R. White: Mr. Fraenkel, I do not still understand that why you say we don’t -- we aren’t -- we would not be compelled to reach the political question issue if we agreed with you on standing?

Mr. Osmond K. Fraenkel: Well, if you being --

Justice Byron R. White: Because the Court of Appeals did reverse the judgment of the District Court and at least dealt with standing -- dealt with political question to the extent that by -- upholding that it was right, that it was intertwined with the merit.

Now --

Mr. Osmond K. Fraenkel: Of course this Court has the -- I am at loss to find the right word to say the privilege may I say, of deciding anything that this Court thinks should be decided, that’s happened before.

I just don’t think it need be decided.

Justice Byron R. White: If we affirm the judge -- if we have affirm the judgment of the Court of Appeals we're also affirming their judgment that political question doctrine did not justify the dismissal by the District Court?

Mr. Osmond K. Fraenkel: You are affirming that judgment, the two questions are closely intertwined and should be reconsidered by the District Court in that light.

Justice Byron R. White: So that we -- we do then even if we don’t say anything about it if we affirm saying nothing we would at least be affirming their dealing with the political question to that extent?

Mr. Osmond K. Fraenkel: Yes, I would say so.

Of course if this Court thinks that the case is so clear that there can be no possible recovery on the merits because this is obviously a political question.

I assume this Court will in this best judgment say so.

I don’t think it should, I don’t think it need to and it seems this Court on the whole tries to avoid things it doesn’t need to do.

I suggest we stick to the question of standing.

Justice Byron R. White: But then do you think we at least need to say something if we agreed with your understanding, mustn’t we at least then say at least something about political question say we also agree with the Court of Appeals, political questions often is intertwined (Voice Overlap)

Mr. Osmond K. Fraenkel: You can say it.

You don’t need to say it affirming the judgment would accomplish the same result while saying it --

Justice Byron R. White: Well, are you suggesting that we really should decide something about saying so?(Voice overlap)

Mr. Osmond K. Fraenkel: Every time a judgment is affirmed you decide that lower was correct.

Sometimes you do without saying anything.

Justice Byron R. White: It's not necessary in your view?

Mr. Osmond K. Fraenkel: It’s not necessary, I think --

Justice Potter Stewart: It’s the judgment that’s affirmed if it is affirmed.

It is not the opinion that’s affirmed.

Mr. Osmond K. Fraenkel: That’s right.

Well, the judgment is affirmed of course the judgment is one remanding the matter to the District Court for further consideration of the whole issue.

Justice William H. Rehnquist: Mr. Fraenkel, do you think there is a fairly sharp line between the concept of standing and concept of political question?

Mr. Osmond K. Fraenkel: Well, I assume that if the question is purely political then the Court will say, no one has standing to raise it.

That was of course the situation for a long time with the question of challenges to reapportionments.

This Court said for a long time that that was a political question that was the end of it.

Then came Baker against Carr and its progeny and there this -- for the first really modern decision this Court pointed out what standing meant.

And it said that standing involved two things, the constitutional question of case of controversy and whether or not the individual really was sufficiently involved and of course --

Justice Byron R. White: I thought Baker and Carr was the first pronouncement of the Court on that --

Mr. Osmond K. Fraenkel: Yes, but --

Justice William O. Douglas: Even the case that Baker and Carr was a reversal of a prior --

Mr. Osmond K. Fraenkel: No, no, no.

I said it was the first.

The first, well it was a --

Justice William O. Douglas: I don’t think the Court ever held that the issue was political, some members of the Court had --

Mr. Osmond K. Fraenkel: Well that was the impression I think that the bar had it at that time, but in any case --

Justice William O. Douglas: I refer you to my brother Brennan’s question --

Justice Potter Stewart: They didn't know the case really --

Mr. Osmond K. Fraenkel: In any case -- there are certain issues which I assume are so attenuous that can be formulated with such difficulty in legal litigating terms as for instance the question of the guarantee of the Republican form of government.

That --

Justice William O. Douglas: Well that was pretty well explored, wasn’t in Hughes; opinion opinion in Sterling versus Constantine?

Mr. Osmond K. Fraenkel: Well, yes I know.

After all there -- there was a denial of due process very simply.

Justice William O. Douglas: Oh!

The denial for Republican form of government?

Mr. Osmond K. Fraenkel: Well, but it was taking -- it was taking property without due process of law in effect.

Justice William O. Douglas: Well, that’s part of the Republican form of government I suppose.

Mr. Osmond K. Fraenkel: Well, that every violation of the Bill of Rights could be argued to be denial of the Republican form of government, but in any event to come back to what we considered to be the elements here.

A demand for information, a refusal of that information, the refusal justified by an Act of Congress which on its face at least -- there is to apply in the face of a direct command of the constitution.

It’s hard to say how that can be any clearer case of a person having an interest in obtaining important information.

Now, it is said by my opponents that he doesn’t claim that his tax moneys are directly involved as with taxpayer in Flast.

He claimed that is money is being improperly expended.

But of course, any taxpayer is interested vitality and knowing how his tax moneys are being spent and in perhaps he knew the facts which enabled him to make a constitutional challenge.

We don’t know here whether the facts might not disclose a basis for some constitutional challenge with respect to the expenditure of the moneys.

But certainly a taxpayer is as much interest in knowing in order to properly perform his function as a citizen which is involved as to well being a taxpayer.

What has happened in the past in order to determine how he should act in the future?

The suggestion by the Solicitor General that this would open the plug gates to all kinds of litigation, I submit is without any justification.

Here is no sudden rushing into Court to get some basic principle established the minute the Executive presents something or a law has been passed.

As I said this agency had been in existence for 25 years.

This is a -- here is no ideological expedition into philosophic notions.

A very practical matter of the taxpayer who wants to know what has been done with his money claiming that under the constitution he has a right to know, claiming that Congress has arbitrarily interfered with that right by an exclusionary statute.

Whether the Congress had the right to passed that exclusionary statute is something which the Court would will have to determine on remand as I think this Court will certainly hope it will affirm the decisions below.

Chief Justice Warren E. Burger: After he has, but suppose Mr. Fraenkel he got everything that you think he ought to have and you were satisfied with it, then what?

Mr. Osmond K. Fraenkel: Maybe nothing.

Chief Justice Warren E. Burger: What does he do with it?

Mr. Osmond K. Fraenkel: Maybe nothing and if he satisfied then he need take no further actions.

It maybe that -- what he finds out will disclose something which does justify further action.

That is something which no one seem --

Chief Justice Warren E. Burger: Such as what?

(Voice overlap) kind of action.

Mr. Osmond K. Fraenkel: Well, it might turn out if the CIA had acted unconstitutionally in some respects and might result in litigation for a declaratory judgment to that effect.

That was as Your Honors well know, a good deal of discussion involves the possibility of the CIA having been involved in domestic surveillance which is beyond its supposed function.

We don’t know.

We might learn that’s why I am hoping this Court will let us do.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Fraenkel.

Mr. Bork, you have a few minutes left if you --

Rebuttal of Bork

Mr. Bork: I think not Mr. Chief Justice.

Chief Justice Warren E. Burger: Very well.

Thank you Mr. Fraenkel, Mr. Solicitor General.

The case is submitted.