Transcript

IN THE SUPREME COURT OF THE UNITED STATES

METROPOLITAN WASHINGTON AIRPORTS AUTHORITY, ET AL., Petitioners v. CITIZENS FOR THE ABATEMENT OF AIRCRAFT NOISE, INC., ET AL.

No. 90-906

April 16, 1991

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:13 a.m.

APPEARANCES:

DAVID L. SHAPIRO, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of Respondent United States, supporting the Petitioners.

WILLIAM T. COLEMAN, JR., ESQ., Washington, D.C.; on behalf of the Petitioners.

PATTI A. GOLDMAN, ESQ., Washington, D.C.; on behalf of the Respondents.

PROCEEDINGS

10:13 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in No. 90-906, Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise.

Mr. Shapiro.

ORAL ARGUMENT OF DAVID L. SHAPIRO ON BEHALF OF RESPONDENT UNITED STATES, SUPPORTING PETITIONERS

MR. SHAPIRO: Thank you, Mr. Chief Justice, and may it please the Court:

This case involves a challenge to the constitutional validity of the Board of Review created as part of the administrative structure under which Washington Dulles and Washington National Airports have been leased by the Federal Government to an Airports Authority created by joint action of Virginia and the District of Columbia. The problem in this case, and it is a novel one, arises from the fact that Congress made it a condition of the lease that the Airports Authority create a Board of Review, that this Board of Review have veto power over certain significant actions of the Airport Authority, and that the Board of Review shall consist of Members of Congress to be selected by the Airports Authority from lists to be furnished by the Speaker of the House and the President pro tem of the Senate.

The problem was addressed by the court of appeals after holding that the controversy was justiciable, and the court of appeals made essentially two determinations. First, that the Board of Review was exercising Federal power and that its constitutionality had to be analyzed on that basis; and second, that when it was analyzed on that basis, its existence, its authority, and its composition violated the principle of separation of powers.

We contend that the court of appeals was wrong on both scores. First, and very significant to the analysis, we contend that it was wrong in concluding that for purposes of separation of powers analysis the Board of Review was exercising Federal power. The authority of the Board of Review derived from the joint action of Virginia and the District of Columbia in accordance with Federal conditions that were laid down in the act.

Secondly, we believe that the conditions laid down in the act, although they do raise significant separation of powers questions in the unusual circumstances of this case, do not violate that basic separation of powers principle.

If we may first address the rationale of the court of appeals, we note that it is at best only half-heartedly defended by the respondents. We think that choice was correct, that the court of appeals' rationale was wrong. The Board of Review is not created by Federal law. The Board of Review was created independently by the joint action of the State of Virginia and the District of Columbia in accordance with conditions laid down by Federal law.

But Virginia and the District of Columbia were not coerced into creating that board any more than South Dakota was coerced into raising the drinking age to 21 as a condition of receiving Federal funds. Indeed we believe that the inducement, which admittedly did exist, was probably a good deal less than in that case and than in the case of Steward Machine Company against Davis.

QUESTION: Mr. Shapiro, by the same logic I suppose you would be -- you're defending an effort by Congress to structure some kind of board of review with effective veto power, as this board has, over, for instance, the Federal funding of aid to the States for transportation or health services or welfare benefits, or anything else that the Federal Government provides money for. I mean, that would be your theory, and it would be a means by which the Congress could in effect have a veto exercised by members of its appropriate committees.

MR. SHAPIRO: Your Honor, we believe that this branch of the analysis doesn't solve the problem. It only poses the question. That is we think that the fact that the board itself was not created by Congress leaves a difficult constitutional analysis --

QUESTION: Well, Congress certainly had a gun pointed at the heads of Virginia and the District of Columbia, which wanted to establish an airport authority, and Congress said fine, you can do it but you're going to give us the veto in effect.

MR. SHAPIRO: But we believe, Your Honor, that in terms of this Court's analysis and in terms of practical realities it was an offer they could refuse. That is it was not the kind of coercion that this Court has said literally destroys the independence of the State actor.

Now, as I said, we believe that that simply poses the constitutional issue. We have tried to explain in our brief that the constitutional issue that is posed by these conditions is a very difficult and serious one.

QUESTION: Why does it just pose it, Mr. Shapiro? If you say that there is no Federal power being exercised here, isn't that an end of the separation of powers problem?

MR. SHAPIRO: Well, there are -- there are two possible conceptual approaches to this, Your Honor. One is the one you just suggested, that is taken I think perhaps by the petitioner, to say if it's done by the States and if they weren't coerced, that's the end of it. The respondents take the opposite conceptual approach and say if Congress has attached this condition, then Congress is asserting itself in a way in which it is not allowed to by the Constitution.

QUESTION: Well, but there -- which is to say that there is Federal power being exercised. But you are contending that there is no Federal power being exercised. And if there is no Federal power being exercised, that's the end of the thing, isn't it?

MR. SHAPIRO: Well, the Federal power takes the form of a condition. We see the question as being the question whether the Federal power in the form of a condition is an unconstitutional condition because of its implications for the separation of powers.

QUESTION: So you say there is Federal power being exercised in the form of a condition.

MR. SHAPIRO: By Congress, yes.

QUESTION: Oh. Well, I thought you were saying there was no Federal power being exercised.

MR. SHAPIRO: No, I'm sorry, Your Honor. I was saying that we think the court of appeals was wrong in saying that the Board of Review is exercising Federal power in the actions that it takes, that the Board of Review effectively is a Federal agency and has to be analyzed as such. If that were true, it seems to us clear that it would violate both the incompatibility --

QUESTION: Well, I mean, nobody contests that the statute that Congress passed is an exercise of Federal power. Is that all you're saying? That's the only Federal power, the statute?

MR. SHAPIRO: That's correct. And the granting of the lease by the Department of --

QUESTION: Well, Congress certainly had the power to pass the statute.

MR. SHAPIRO: Yes, it did. Yes, it did.

QUESTION: Well, then that's the end of the case. The Federal power involved -- the only Federal power involved, you tell us, was the statute. Congress certainly had authority to pass that. There is no Federal power involved in the exercise by the board. What is left?

MR. SHAPIRO: I think what is left is the question that Justice O'Connor raises about whether or not Congress may properly use conditions like this attached to Federal statutes as a way of effectively usurping executive authority.

QUESTION: But it's not -- that would be a valid argument if they were using the condition in order, unconstitutionally, to exercise Federal power. But you're telling me that at the end of the rainbow there is no unconstitutional exercise of Federal power. So therefore it can't be an unconstitutional condition because there is nothing unconstitutional about it. Congress passed a statute, which it can do, and this board is not exercising Federal power. Where is the unconstitutionality?

MR. SHAPIRO: We -- well, what we are concerned about -- first of all we believe that in this case what exercise of Federal power there was did not violate the Constitution. But change the case, for example, to a case in which Congress had reserved the authority to appoint members of the board. Then of course there would be the additional exercise of Federal power involved in the appointment, or Congress had reserved the authority to remove members of the board.

Now, one of the arguments that is suggested by the court of appeals, and that I think is adopted by the respondents, is that there is in this case additional exercise of Federal power in the form of a kind of de facto appointment and removal power existing in Congress. For example, it is suggested that, by removing members of the Board of Review from relevant congressional committees, Congress can effectively remove them from their position of authority in State office. So that would be an additional exercise of Federal power.

QUESTION: Just to finish up your response to Justice O'Connor, do I understand that the Government's only problem, the executive branch's only problem with this statute is a federalism problem, not a separation of powers problem? It's just the unconstitutional condition because it impinges on the States. Is that the only problem the executive branch has with this?

MR. SHAPIRO: No. No, it is not, Your Honor. We do, in addition, have a separation of powers problem. We think that problem is answered in the context of this case. We don't think it can be answered in all of the hypotheticals that Justice O'Connor raises in her question, because we think that if Congress were to use this condition device as a way of putting Members of Congress into essentially executive roles in the playing out of Federal programs at the State level, that that would be a usurpation of executive authority and interference with the executive role.

QUESTION: Well, Mr. Shapiro --

QUESTION: Does the Government take a position as to whether the Members of Congress who are appointed to this -- these State, or State boards, or this board set up by the States, whether their term on the board survives their term on the committee in question?

MR. SHAPIRO: Yes, Your Honor. We believe that the requirement that the members of the Board of Review be both Members of Congress and in most cases members of certain relevant committees do constitute solely qualifications for appointment. We think that is clear from the structure of the statute, that subsection 1 refers to appointment of 2456(f). Subsection 2 refers to fixed terms of office, which in our view do not require that, once appointed, those members of the board either continue to be Members of Congress or continue to be members of the relevant committees.

Incidentally, the only time, as I understand it, that that has come up, when Senator Kassebaum did cease to be a member of the relevant committee, she did resign from the board. But our view under the statute is that that's not required.

QUESTION: I suppose if you interpreted the Constitution that way, a senator who has to be a citizen to be elected, should he abandon his American citizenship during his 6-year term, could continue to serve, because it's only a qualification for taking the office and not for continuing in it?

MR. SHAPIRO: I -- I don't know whether the language of that is identical to the language here. I think the language here is clear --

QUESTION: But Mr. Shapiro, even on that assumption, does that really answer the issue that Justice O'Connor raised? And that is, let's assume there may be incidents in which individuals may continue to serve though they don't remain Members of Congress or of the committees. There's still a problem to be answered, and that is that, as you put it, there is a, appears to be a de facto exercise of Federal power over -- in this case over the actions of a non-Federal board of directors. Congress is still de facto being allowed to exercise power, isn't it?

MR. SHAPIRO: We don't think with respect to removal that it is, Your Honor. That is we don't think Congress has either de jure or de facto removal power.

QUESTION: No, but with respect to the authority that they exercise in their approval or disapproval power over the actions of the board.

MR. SHAPIRO: Oh. Yes, Your Honor. That's a related question which we think is relevant to Justice O'Connor's question. That is are the Members of Congress who serve on the Board of Review themselves exercising congressional power? Are they agents of Congress in trying to resolve this difficult separation of powers issue.

QUESTION: And I took it that was one of the concerns in her question --

MR. SHAPIRO: Yes.

QUESTION: -- as to whether a similar structure could be erected --

MR. SHAPIRO: Yes, yes.

QUESTION: -- in relation to welfare money to the States, highway money to the States, and so on. What is your answer to that?

MR. SHAPIRO: Well, our answer to that is that in the unusual circumstances of this case we don't think the members of the Board of Review themselves are exercising congressional power or acting as agents of Congress. And that's because both in form and in substance we believe that the Members of Congress are serving as individual representatives of users. The statute specifically says they are to serve in their individual capacities as representatives of the users of the airport.

QUESTION: Mr. Shapiro, are they representatives of all users or of users who have free parking spaces?

(Laughter.)

MR. SHAPIRO: Both. Both.

QUESTION: You think they are typical users?

MR. SHAPIRO: There is no question that the parking spaces were a matter of some interest. The legislative history confirms that.

(Laughter.)

QUESTION: But not to other users.

MR. SHAPIRO: But they also have interests that are shared more broadly by all users, and indeed the legislative history suggests that they are concerned with their need to use the airport as individuals. And it's also true that that is a need that is -- excuse me, Your Honor, my time is up.

QUESTION: Thank you, Mr. Shapiro.

Mr. Coleman, we'll hear now from you.

ORAL ARGUMENT OF WILLIAM T. COLEMAN, JR. ON BEHALF OF THE PETITIONERS

MR. COLEMAN: Good morning, Mr. Chief Justice, and may it please the Court:

The basic issue here is are the congresspersons who under the statute act in their individual capacities as members of the State-created review board, quote, "officers of the United States," end quote, or as review board members do they exercise any Federal power pursuant to the laws of the United States. If the answer to these two questions is negative, as it clearly is, then the Authority's governing scheme created by the Commonwealth of Virginia and the District of Columbia does not violate present Federal separation of power doctrine.

We agree with the Government that the review board members do not exercise any Federal power. The transfer act so states. The statutes of the Commonwealth of Virginia and the District of Columbia so state. The review board got all of its power and was created under bylaw 4, which is on page 152 of the record, and therefore they are not exercising State power.

QUESTION: Well, Mr. Coleman, isn't the reality, though, that the members of the board are required to be Members of Congress, or at least a certain number of them, and they have to be members of a certain committee of Congress? And it's arguable that when they cease to be they must be removed. Now, if that is the case, is there not an exercise of Federal power on a continuing basis?

MR. COLEMAN: No, Your Honor, with all due respect. In the first place, your first question is directed to the appointment.

QUESTION: Um-hum.

MR. COLEMAN: The speaker suggests the name. It's up to the board of directors, the State agency, to select. And Mistretta and Bowsher each teach that where there's the governmental, the Congress who suggests the name, but if the appointing authority has the discretion to select among that group, then you don't have violation of article -- the article II, section 2, clause 2. So therefore, even if those people are suggested by the speaker, the fact that they are appointed by the board takes away that problem. With respect --

QUESTION: Mr. Coleman, as I understand your position, the phrase that these people shall act in their personal capacity cleanses it all. I think you would maintain that even if it were provided that this board would consist of both Houses of Congress, the Members of both Houses of Congress acting in their personal capacity, it would still be okay, wouldn't it?

MR. COLEMAN: Well, Your Honor, that would make it a harder case. But --

QUESTION: It would make it a different case. It wouldn't be harder for you, because they would still be acting in their personal capacity.

MR. COLEMAN: Well, it may be harder, some of them -- one of the --

QUESTION: No --

(Laughter.)

MR. COLEMAN: So that's a harder case. But if the determination is that they are selected by State people and they are not exercising State power, then it doesn't violate the Constitution. In a constitutional debate it's dramatic the extent to which the people struggle to make sure that a Federal official still had the right to serve in State office. And that's what happened here.

Now, with respect to the second part of your question, our position, it is clear, Justice O'Connor, that there is no power of removal by the Congress. And the fact that they used the word de facto reminds me of that Justice Jackson opinion where he says if we use a word like quasi, you know that you're really covering up a disorderly bad, because clearly you're saying you want to (inaudible). Here the statute says only that the nominees shall consist of. Secondly, the lease which you have to read says it shall be made up and selected from the list of.

Thirdly, they are appointed for a specific term. And as you know, Chief Justice, in your appointment with Smithsonian, you were appointed but you lose office the moment you're no longer Chief Justice. That's in the statute. That's not in this statute here. Fourthly, the appointing authority, namely the board of directors, specifically say that they can be removed for cause.

So I think under all of your cases it is clear here that you have to find that once these people are appointed by the board of directors, they cannot be removed by the Congress, and they can only be removed by the board of directors or State agency.

QUESTION: Mr. Coleman, in your research of, among the doings of the founders, that it is clear that people could hold both Federal and State office, but is there anyone who said that you could hold State office or be nominated to State office by virtue of your Federal office? That is ex officio that a State can provide the Speaker of the House shall be our Governor, or the Speaker of the House shall be our --

MR. COLEMAN: Well, Your Honor, that's not this case here. The moment you said officio --

QUESTION: I know it isn't, but this is a case where it is not just Federal officials who happen to run for State office or get appointed separately for, independently of their being Federal officials. They acquire this State office only ex officio, only because they are Federal officials. Now, is there anything in the sayings of the founders about that?

MR. COLEMAN: No, but there is in your cases, Your Honor. I think Mistretta is right on the point. There the statute says a person had to be an article III judge, but yet you held the fact that they were an article III judge didn't mean that once nominated by the head of the judicial conference that the President couldn't select them, and by selecting them that they were not functioning as article III judges.

QUESTION: Well, you're not blaming me for that, Mr. Coleman.

(Laughter.)

MR. COLEMAN: Well, I think you would know more about that case than the other people because you dissented.

QUESTION: But of course there was no question in that case that they were exercising Federal power. We didn't have to reach that question. Here the question is whether or not the congressmen, because they are appointed as congressmen, are not exercising Federal power. Suppose on this board five, six of the board were Members of Congress. No difference to your case?

MR. COLEMAN: Well, the nine persons are selected from the group of 107 Congressmen and 47 Senators. And, but they are appointed by a State agency, and therefore they are exercising State power.

QUESTION: Well, but as a practical matter a Congressman's powers during the time he is in office as a Congressman, his committee assignments, his perks, are all controlled by the Speaker. And it seems to me very, very clear that a Congressman who serves on the board can have his actions de facto reviewed by Federal authorities, particularly legislative officials.

MR. COLEMAN: Well, but they, but the statute says no, he serves in his individual capacity. What you're saying is the people that pass the statute are going to violate statute. And it seems to me if that happened, if that [ILLEGIBLE WORDS] you may well then have a grounds for removing for cause.

QUESTION: But, Mr. Coleman, all of our separation of powers jurisprudence looks to the practical effect of the constraints and the compulsions and the authority that a Federal agency has over its own officials, and in this case the Federal entity is the Congress.

MR. COLEMAN: Well, can we look to the practical? Here you have a situation where, whatever is happening, there is no power being exercised on any other Federal branch of the Government. Too, here, you have the executive agreeing and standing up, not only negotiating this in the lease, but in addition signing the statute, but standing up at the bar of this Court saying that this does not in any way infringe on my executive power.

QUESTION: But this Courts sits to protect the executive against its own improvidence from time to time.

(Laughter.)

MR. COLEMAN: Yes, sir. But there is no case, Your Honor, there is no case where you have ever held that there was an incursion on the executive power when the executive stands up at the bar of this Court and says my power is not being intruded upon. Secondly, there is no case where you have ever determined --

QUESTION: Yes, but in the legislative veto cases the executive from time to time has taken the position that veto was all right, I think, had he not?

MR. COLEMAN: Yes. But in the case that --

QUESTION: In the one that was argued here.

MR. COLEMAN: But the Chadha case he stood at the bar of this Court --

QUESTION: Right.

MR. COLEMAN: -- and said it wasn't all right.

QUESTION: Yeah.

MR. COLEMAN: In addition --

QUESTION: It just shows the executive's views on these issues can change in different administrations.

MR. COLEMAN: They can change. But as you know, that Justice Powell in the Nixon v. GSA said that once the executive stands up to the bar of the Court and says that my powers are not being infringed upon, that that in itself should cause the Court to give great weight to whether you're going to strike down the statute.

I will reserve the rest of my time for rebuttal.

QUESTION: Very well, Mr. Coleman. Ms. Goldman, we'll hear now from you.

ORAL ARGUMENT OF PATTI A. GOLDMAN ON BEHALF OF THE RESPONDENTS

MS. GOLDMAN: Mr. Chief Justice, and may it please the Court:

There is no dispute that Members of Congress could not exercise the powers that are assigned to the Board of Review if the Federal Government still ran the airports. There is also no dispute that Congress could have required the Airports Authority to submit its actions to Congress for a specified period of time, or ever for approval in the form of a statute. The question here is whether Congress can make its delegation of authority over the airports subject to a condition that requires nine Members of Congress to exercise significant ongoing authority over those airports.

Four factors of the Board of Review arrangement bear directly on this issue. First, the Board of Review arose out of a Federal condition that is contained in a Federal statute and a lease of Federal property. Second, that condition requires nine Members of Congress to comprise the Board of Review. They must all be recommended by the congressional leadership, and eight of them must serve on the congressional committees that have oversight responsibilities over the airports.

The third factor is the powers exercised by the Board of Review. There is no question that the types of powers that the board exercises are executive in nature. And the fourth factor is the nonseverability clause, or what we have called the drop-dead clause. Congress has decided in the statute that if the Board of Review cannot exercise its powers, neither can the Airports Authority. And the significance of this factor is that Congress made that decision, not the District and not Virginia, and also that Congress believed that the power its Members would exercise was an essential element of the transfer.

QUESTION: Ms. Goldman, what if instead of the transaction we have here Congress had simply said we're going to give a year-to-year lease to the Metropolitan Airports Authority, no Members of Congress on the review board at all, but the review board totally independent decides to abolish parking places for Members of Congress and Justices of the Supreme Court. And the chairman of the House Commerce Committee calls the members of the review board over about a month before the first year of the lease is due to expire and he says I really don't think Congress is going to renew this lease if you do that, and they accordingly change their mind. Now, there would be nothing wrong under separation of powers with that, would there?

MS. GOLDMAN: There would be not -- no official ongoing role that Members of Congress play. Of course Congress still has the power, the retained congressional power to pass statutes and to decide whether the lease could go forward, but that's the kind of power Congress can exercise. Its mingling in the affairs may be improper, but it probably would not rise to the level of the separation of powers violation.

QUESTION: Of course if Congress wanted to renew the lease, if Congress was content with the parking spaces it got but the executive was not content because the executive had not gotten parking spaces, the President could veto the lease renewal in that situation, couldn't he? I mean, it would be the normal process of legislation by which Congress would have to act, rather than --

MS. GOLDMAN: Assuming that statute was required, then the President would have that power.

QUESTION: It's quite a different process than just having some individual Members of Congress or a committee of Congress decide to do it or not.

MS. GOLDMAN: It's a very different process, and that's precisely what's wrong with this arrangement. Members of Congress are carrying out day-to-day operational responsibilities over these airports.

It's important to recognize too that Congress did not give up the airports, and that it independently obtained this power. It refused to give up the powers that are exercised by the Board of Review. In essence this is an incomplete delegation of power. Congress gave up a large measure of the power, but not the power over the master plan and the budget and regulations. These powers it kept for the Federal Government, and it assigned these powers to nine of its own Members. As retained Federal powers, these powers cannot be exercised by Congress in this way.

QUESTION: You say assigned it to nine of their Members, but it does provide that the Members are to act in their individual capacity.

MS. GOLDMAN: It does, but that label does not change the fact that the board must consist of nine Members, that they must be recommended by the congressional leadership.

QUESTION: What do you do about the Chief Justice being on the board of the Smithsonian, being chairman of the board of the Smithsonian, which goes back quite a ways?

MS. GOLDMAN: We certainly don't want to be accused of laying a hand on the arc of the covenant, as Justice Holmes said, and fortunately I don't think we have to in this case. I think the powers that are exercised by the Smithsonian may be different in nature. They may not rise to the level of significant authority --

QUESTION: They're artistic powers, is that --

(Laughter.)

MS. GOLDMAN: I'm not familiar with the day-to-day functions that the board would exercise, but it may be that those powers are not as significant to be a Federal office under the laws of the United States, so Members of Congress may be able to exercise those functions. Here, though, the functions are clearly executive. Members of Congress could not exercise these functions in the Federal scheme, and Members of Congress could not in their individual capacity exercise a veto of the sort that was struck down by this Court in Chadha. That individual label would not save that arrangement.

If Congress is going to exercise this type of power it must do so through the bicameralism and presentment clauses.

QUESTION: Let me ask you a question, Ms. Goldman. There are six congressional regions of the Smithsonian, and I presume they act in their individual capacity, don't they? They're not acting as a Member of Congress or as a member of a congressional committee.

MS. GOLDMAN: I believe that their appointment and service is inextricably tied to their role as a Member of Congress.

QUESTION: Well, what distinction are we talking about here then, between acting in one's individual capacity and one's presumably official capacity? Is that the alternative?

MS. GOLDMAN: Well, in the Federal scheme Members of Congress only have one identity, and that is their official role. Because of the incompatibility clause, Members cannot take off their congressional hat and become individuals serving in some Federal kind of position. In the situation of the Smithsonian their service is tied with the term of office, as we believe it is here as well.

QUESTION: So you would have no issue to raise by the mere fact that some Members of Congress happen to end up on this board if it were not for the fact that membership on the board -- that membership in Congress is a qualification for membership on the board? I mean, that's really the essence of your point. You're saying if that were not so, then it, it would in fact make sense in the normal course to say that they were acting in their individual capacities.

MS. GOLDMAN: If Members of Congress are appointed to a State office, they are not serving as Members of Congress but are clearly serving in an individual capacity.

QUESTION: And their congressional membership is merely incidental. And you're saying the fact of the qualification is what removes it from the category of what is merely incidental.

MS. GOLDMAN: It is both the qualification, the requirement that they be Members of Congress, and also that that requirement came at least in part from Congress. So that in this situation we have congressional aggrandizement, where Congress, by passing a statute that establishes this condition, has required that its own members get power over Federal property.

QUESTION: And why isn't the same -- why doesn't the same problem exist for the congressional members of the Smithsonian?

MS. GOLDMAN: It may not because the powers they exercise may not be as significant of a type of executive power --

QUESTION: Well, what if the power is the power of a board?

MS. GOLDMAN: It may be then a power that they cannot exercise. I am not as familiar with that arrangement. That's obviously not before the Court. And in Springer that was discussed in the context of the powers exercised by the legislature in the Philippine Islands, and it did not keep the majority from striking down that arrangement.

QUESTION: Do you take the position that a member of the Board of Review loses the membership if the member ceases to be a member of the appropriate congressional committee?

MS. GOLDMAN: Yes, we do. The language of the statute is that the Board of Review shall consist of the nine Members of Congress, eight of whom must serve on the oversight committees. It does not say that the board shall consider these people for appointment or shall appoint them. It says the board shall consist of these individuals.

QUESTION: Is the removal point essential to your argument?

MS. GOLDMAN: It is not. In this case the clear indication is that the Board of Review has the power over the Airports Authority. That is the critical feature.

QUESTION: Ms. Goldman, are you familiar with the national historical publications in the Records Commission?

MS. GOLDMAN: No, I am not.

QUESTION: Well, this is set up by statute, and it provides that on this, which I assume is an arm of the executive, there shall be one judicial member appointed by the Chief Justice, one Member of the House of Representatives, and one Member of the Senate. Invalid in your analysis?

MS. GOLDMAN: If its functions are advisory, it would certainly not be invalid. If it has some operational functions it may not carry out significant powers to be an agency or to rise to the level of an office of the United States. So the answer to that question would depend on the precise powers that are carried out.

QUESTION: Which you don't know.

MS. GOLDMAN: Which I don't know.

QUESTION: Well, the Chief Justice has served on it and so have I and --

MS. GOLDMAN: Certainly the service of judges would not be prohibited under a decision in this case striking down the Board of Review, since there is no incompatibility clause for judges and there would be no aggrandizement if Congress required by statute that judges serve in this type of arrangement. But the service of Members of Congress is a different story because of the aggrandizement factor and the incompatibility clause.

If this arrangement is upheld, the Board of Review would provide a road map for Congress to follow whenever it wanted to acquire a day-to-day power over the operation of Federal property or Federal funds.

QUESTION: But they'd have to do it by statute, and they would have to get the President to sign it or override his veto, wouldn't they?

MS. GOLDMAN: True. They would have to exercise that power through a consent to a compact or statute.

QUESTION: And you would say if the President willingly signed it and thought it was a good arrangement, it would still be invalid in your view?

MS. GOLDMAN: Yes, it would be, because the doctrine of separation of powers is not designed simply to protect the executive branch, in fact its primary purpose is to protect the people against arbitrary exercises of power.

QUESTION: And tell me how that is implicated in this case.

MS. GOLDMAN: In this case the respondents are individuals and organizations that represent individuals who are affected on a daily basis by the operations at National Airport. They are interested in the noise, the traffic congestion and pollution --

QUESTION: Well, protecting the executive here isn't about to cure your problem.

MS. GOLDMAN: It's not about protecting the executive. It's about protecting --

QUESTION: All it will do is delay.

MS. GOLDMAN: It might do more than that by requiring that the Airports Authority take its actions through a democratic process as required by the Constitution. And those processes are designed to protect the people from laws that create too much power to one branch of Government.

QUESTION: Well, if Congress had retained power over the airport, it could expand the airport with the -- and the executive could go along?

MS. GOLDMAN: It could do that. It may have certain interests in mind that may be adverse to other users or to the people in the area.

QUESTION: As you quoted in your brief, the problem with that is that Congress would have to pay for it, as you had an excerpt from some of the debate in which a Congressman said the beauty of it is that we control it but we don't have to pay for it.

MS. GOLDMAN: Exactly. And that same person said that Congress would be eating -- getting its cake and eating it too. And that's the problem with this arrangement is Congress can't do both. It can't give up the power and retain the core power at the same time. It has to do one or the other.

The delegation of the power did have the benefits of ensuring some degree of local control and the ability to raise money through bonds, and to remove the airports from a line item in the Federal budget. It can, the Congress cannot get rid of that responsibility but keep the decision making power over regulations and master plans, the chief executive order and the other powers that are given to the Board of Review.

If this arrangement is upheld, Congress will be able to inject itself into decisions about how the national parks are operated, perhaps grants given by the National Endowment of the Arts, postal operations, legal services programs. And the way it would do this is by delegating those programs in part to the States or private entity, but requiring the States or the private entity to subject their decisions to review by an ad [ILLEGIBLE WORD] committee of Congress, or even one House of Congress, and then Congress would be able to influence and have a mandatory say over how these programs are run.

QUESTION: So is the federalism problem as you see it that Congress has had a hand in creating the very position to which they are directing the congressional appointment?

MS. GOLDMAN: Yes. That is what creates the congressional aggrandizement here, which is the primary flaw in this arrangement. Congress retains --

QUESTION: So do you say that this board is really created by Federal law?

MS. GOLDMAN: It is mandated by a condition. If the State of, Commonwealth of Virginia and the District of Columbia wanted these airports, they had no choice but to have a board of review. It was their statutes that created the Airports Authority, but it was the Federal statute that set out the powers and composition requirements for the Board of Review. So Congress had some say and had some power that it exercised here, and it used that power to give its own Members a veto.

QUESTION: Do you think if there were a 1983 suit against members of the board that it would be an appropriate defense that they are Federal officers?

MS. GOLDMAN: In this situation, because Congress retains significant Federal powers, I think they are Federal officers. However, there could be other Federal conditions that would not create Federal offices. And even if this is not viewed to be a Federal office it would be impermissible, because it is giving Members of Congress powers over Federal property that it cannot have.

QUESTION: Well, I suppose you can concede without sacrificing your position that they're both, both State and Federal.

MS. GOLDMAN: I know no precedent for that, but I assume they have aspects of both. Even if the power that is actually exercised is viewed to be State power, Members of Congress could not serve in those positions under the doctrine of separation of powers. There is enough of a Federal role through the Federal condition to call the doctrine of separation of powers into play, and that doctrine prohibits Members of Congress from exercising these types of powers over a significant Federal interest. And here --

QUESTION: Ms. Goldman, do you think this statute offends more against separation of powers within the Federal Government or more against federalism, Federal-State relationships?

MS. GOLDMAN: This case concerns the Federal separation of powers.

QUESTION: We're not talking about federalism then in the sense of South Dakota against Dole?

MS. GOLDMAN: I don't think we are, because in the kind of condition that was at issue in that case there was a question of who had the power. Congress didn't have the power to legislate and the States did. And I think the rationale is that when the States exercise their power, their political process cleanses the Federal role.

But when you're talking about individual rights under the Federal Constitution, or the doctrine of separation of powers, which in the end protects the people, the State isn't interested in protecting those interests. And that -- the State process doesn't remove the Federal role, the Federal mandate that the separation of powers be violated.

Because of that, a condition is not the right way to accomplish this result. It doesn't erase the problems that are presented by Members of Congress serving in this role.

QUESTION: So you see there would be no problem if Congress said that every State university which obtained Federal funds should have a board of regents, five, six of whom are appointed by the President of the United States?

MS. GOLDMAN: I think there would be a problem in that situation. That's a federalism problem --

QUESTION: What would be the problem?

MS. GOLDMAN: -- that the Federal Government is usurping State power in that instance.

QUESTION: Well, why isn't that same problem present here?

MS. GOLDMAN: Here there is a stronger Federal interest at the outset because of the presence of Federal property in this arrangement. So the power was the Federal Government's power to delegate. And when it delegated these powers it attached conditions which kept --

QUESTION: Well, I assume the President would say the, and the Congress the same thing with expenditure of Federal funds at State universities.

MS. GOLDMAN: If Congress set up a review board that had power over the Federal monies, the connection to the Federal interest may be strong enough for the Federal doctrine of separation of powers to be called into play. But where the power is the power to run a State university, which is State power at the outset and does not change by the Federal condition, the Federal appointment of individuals would probably usurp State power.

QUESTION: But isn't the justification in each case the fact that there is Federal property in the form of Federal money going, and that these are conditions placed upon the Federal money. Don't they ultimately all stand on the same footing?

MS. GOLDMAN: I don't think they necessarily do, because Congress can pass a statute setting out the conditions that are attached to the use of Federal money. If its role ends there --

QUESTION: Isn't the difference that the -- we're not talking about a condition set once and for all by Congress which is binding because it is -- it has statutory significance. It's setting up a condition which imposes a continuing review by Federal officials.

MS. GOLDMAN: That is the -- precisely the difference. If Congress --

QUESTION: Don't we have that in both the State university example and the highway funds example?

MS. GOLDMAN: If Congress sets up an ongoing role over the Federal funds or the Federal property, then it is going too far, and that is Federal power that cannot go to Members of Congress.

QUESTION: Okay. And all you're saying is you don't really have to think of that as a federalism problem. It's a straight separation problem. Is that what you're saying?

MS. GOLDMAN: As soon as there is an on-going role by the Federal Government it is a Federal separation of powers issue.

QUESTION: Okay. And you don't have to put a federalism overlay on it. That's really what you're saying?

MS. GOLDMAN: No. There's no federalism issue --

QUESTION: Okay.

MS. GOLDMAN: -- that comes up in that context. There could be other federalism issues, but the one we're focusing on here is the purely separation of powers one when there is an ongoing Federal role.

QUESTION: Okay.

MS. GOLDMAN: If there are no further questions --

QUESTION: Thank you, Ms. Goldman.

Mr. Coleman, do you have rebuttal? You have 4 minutes remaining.

REBUTTAL ARGUMENT OF WILLIAM T. COLEMAN, JR. ON BEHALF OF THE PETITIONERS

MR. COLEMAN: Thank you, Mr. Chief Justice. It is clear here that the power of appointment is in the State board. It's equally clear that the Congress has no power whatsoever to remove these people. We make it clear in our brief that using the words "consist of" in other Federal statute doesn't mean that once the person is appointed he or she loses his job if he no longer holds the office. You also have the fact that the Federal statutes, when they want to mean that, say that. This one doesn't.

Also, here the, the State makes it clear that it has the power of removal. And we say under your cases where if you're struggling with the power of interpretation, if you can interpret the statute in a constitutional way, you should do that rather than to interpret it in a way which I really don't think is supported by the legislative history.

In addition, there was a lease created here, and that lease lay in Congress, and that lease talks in terms of appoint, not consist of. And Congress did nothing to change that. So that's an additional reason why you should try to interpret the statute the way I suggest.

Finally, our forefathers wanted to create a Federal Government, but they didn't want the Federal Government to be at war with the State government, and therefore it went out of its way to say that people that occupy Federal office could also, if the State wanted, occupy State office. Here you have that type of federalism, and there is no reason to stretch the Federal separation of powers doctrine in this case, where the chief executive of the Federal Government says I'm not being intruded upon, there is no aggrandizement. What aggrandizement can there be when all Congress did was pass a statute which authorized the Federal officials to do what the Constitution said they could do, [ILLEGIBLE WORD] serve in State office.

Now, certain States have rejected this. I think New Hampshire, for example, you have a position, provision, Justice Souter, which specifically says that the Federal official cannot occupy the State office. Virginia could have done that. It didn't do that. In its case it has a statute which says that the Federal officer can occupy the State officer.

And I repeat, unless you find that the congressional person is an officer of the United States, which I think under the statute you can't find, or unless you find that what they're doing is exercising Federal power, then I think here you have to reverse the decision of the court below.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Coleman.

The case is submitted.

(Whereupon, at 11:02 a.m., the case in the above-entitled matter was submitted.)