Taking the Government to Court

New kinds of plaintiffs are taking the federal government to court in increasing numbers of cases. These plaintiffs are Senators and Representatives. Their causes almost invariably charge that a government agency or department has acted unlawfully under laws passed by Congress or under the Constitution.
Just a few days ago, Federal District Judge William B. Jones, ruled that Howard J. Phillips was serving illegally as acting director of the Office of Economic Opportunity and ordered him to cease taking any further action as head of the agency. The case was brought in March by Senators Williams, Pell, Mondale and Hathaway who were represented by Alan Morrison of Public Citizen. The Senators claimed that since Mr. Phillips had not been confirmed by the Senate, as required by law, he would have to be removed from office. The case for the Senators was decisive because President
Nixon had not even sent Phillips’ name to the Senate for confimation.
In recent months, increasing numbers of Representatives and Senators are finding the federal courts an attractive outlet for their concerns over government lawless­ness. The legislators argue that the Executive branch illegality has the effect of negating or diluting the votes of elected members of Congress. For example, if the White House can unlawfully impound funds, make war, reorganize agencies, reduce corporate taxes and engage in other activity reserved for the Congress under the Constitution, then elected Representatives are being stripped of authority given them by the people under the laws of the land.
Here are some examples of recent cases brought by members of Congress:
– Earlier this year five Representatives and twenty-two Senators, including most Senate Committee chairmen, filed a support brief arguing that theDepartment of Transportation had unlawfully withheld funding for roadconstruction in Missouri. In April the Federal Circuit court of Appeals ruled that the Department had no authority to impound funds appropriated by Congress.
– Cong. Ogden Reid filed a class action suit last year against the Price Commission which challenged the rate increase granted to the New York Telephone company.
– Cong. Parren Mitchell and twelve other Representatives filed suit against Secretary of Defense Melvin Laird in 1972 seeking an injunction against further conduct of the war in Indochina unless the war was authorized by the Congress within sixty days.
– Senator Edward Kennedy argued his own case in federal court challenging the constitutionality of the President’s “pocket veto” of the Family Practice of Medicine Act.
– Reps. John Moss, Patsy Mink, Les Aspin and others have invoked the Freedom of Information Act to penetrate the walls of government secrecy around reports affecting issues of health and safety or the performance of government bureaucrats.
– Members of Congress have brought cases challenging airline rate increases approved by the Civil Aeronautics Board and inadequate enforcement of the coal mine safety act by the Bureau of Mines.
Legislators who bring these cases lose some and win some. They encounter all manner of specious or obstructionist defenses by government agencies including the assertion that members of Congress lack standing to sue or do not meet the $10,000 jurisdictional amount for suing in federal court. But the largest obstacle is the lack of Congressional lawyers to bring such actions.
Congress has lawyers who help with drafting legislation. But, for the most part, this elected branch of government has had to rely on legal opinions by the Executive branch’s Justice Department. This is no way to strengthen the system of checks and balancesand separation of powers.
Up to now, members of Congress have resorted to outside public interest lawyers to represent them in many of the cases brought against federal departments. There is a serious need for the establishment of an Office of Congressional Counsel to be the legal adviser and advocate for legislators who wish to restrain unlawful government, whether by informed legal disclosures or litigation.