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Plaintiffs further state that on July 25, 1978, the Senate passed by a vote of 94 to 0, the “Dole-Stone Amendment” to the International Security Assistance Act of 1978, which stated in pertinent part:

It is the sense of the Senate that there should be prior consultation between the Senate and the executive branch on any proposed policy changes affecting the continuation

in force of the Mutual Defense Treaty of 1954. Plaintiffs also state that on September 7, 1978, at the urging of conferees appointed by the House of Representatives, the committee on conference on the International Security Assistance Act of 1978, adopted the Senate provision with an amendment to change all references to the "Senate” to “Congress”, with the exception of the reference to the "Senate” which remain in paragraph (a)(4) concerning advice and consent to treaties. The “Dole-Stone Amendment" was thus amended to read in pertinent part:

It is the sense of the Congress that there should be prior
consultation between the Congress and the executive
branch on any proposed policy changes affecting the con-
tinuation in force of the Mutual Defense Treaty of 1954.

[Complaint at 8.) Plaintiffs further state that on September 26, 1978, the defendant, President Carter signed into law the International Security Assistance Act of 1978, including the “Dole-Stone Amendment” as approved by the committee on conference, and that on October 10, 1978, 5 days before the adjournment of the 95th Congress, plaintiff, Senator Goldwater introduced in the Senate, Senate Concurrent Resolution 109, which states in pertinent part:

That, in accordance with the separation of powers under
the Constitution, the President should not unilaterally
take any action which has the effect of abrogating or
otherwise affecting the validity of any of the security trea-
ties, comprising the post-World War II complex of treaties,
including mutual defense treaties, without the advice and
consent of the Senate, which was involved in their initial
ratification, or the approval of both Houses of Congress.

[Complaint at 9.] Plaintiffs further declare that the Congress has never directed the President to alter or terminate the Defense Treaty, and that on December 15, 1978, while the Congress was not in session, defendant, President Carter publicly announced his unilateral decision that the United States would recognize the Peoples Republic of China as the sole legal government of China as of January 1, 1979; and also publicly announced his unilateral decision to terminate the Defense Treaty with the Republic of China, or to give notice of its termination, without having made any prior consultation with the Senate or the House of Representatives, without obtaining the Senate's advice and consent, and without the express or implied approval of either House of Congress.

Plaintiffs claim that the unilateral action by the President has deprived, and will continue to deprive them of their substantial constitutional and statutory rights to be consulted, and to exercise their right to vote on the matter of the continued application and operation of the Defense Treaty which the Senate approved in 1955, and that they have suffered and will continue to suffer a direct injury in fact to their right to vote and exercise their legislative duties.

Plaintiffs in their complaint pray not only that the President be enjoined from taking any further action or making any statements which will have the effect of terminating, or creating any expectations that the Defense Treaty has been or will be terminated; but also that the court declare that any decision by the United States to terminate the Defense Treaty cannot be made by the President alone since he is not the party to that treaty as specified under Article X of that treaty; and that any decision of the United States to terminate the Defense Treaty must be made by and with the full consultation of the entire Congress, and with the advice and consent of the Senate, or with the approval of both Houses of Congess.

On January 2, 1979, plaintiffs filed an amended complaint. The amended complaint adds Congressman Robert K. Dornan as a plaintiff, and asserts that the action presented for the court's determination, a pure question of law; whether the President has exceeded the powers conferred upon him by the Constitution or by any other law; and that the court is bound to determine the validity of the President's action. The plaintiffs also assert in their amended complaint that the President has announced that he interprets the term "Party" in Article X of the Defense Treaty to mean "the President acting alone" and has thereby exercised a function clearly reserved to the Judicial Branch. Also added by the amended complaint is an allegation that the actions of the President and the Secretary of State have rendered or will render ineffective or otherwise nullify the votes of certain plaintiffs who approved the resolution of ratification of the Defense Treaty. The amended complaint also expands a previous allegation that the President's action, if left unchallenged, will set a dangerous precedent which will enable him or any other President to abrogate or terminate any defense treaty at will. Included as exhibits attached to the amended complaint were provisions of U.S. defense treaties with NATO, Japan, the Philippines, and South Korea, which were alleged to be similar or identical to Article X of the Defense Treaty, and a partial listing of other U.S. treaties allegedly containing similar termination provisions.

Plaintiffs moved on February 7, 1979, to join as additional plaintiffs, Senators Paul Laxalt and James A. McClure and Congressmen John H. Rousselot, Don Young, James M. Collins, Mickey Edwards, Newt Gingrich, Don Quayle and Claire W. Burgener. On February 22, 1979, an order was filed granting the motion to join the additional plaintiffs.

On February 26, 1979, defendants moved to dismiss the amended complaint or, in the alternative for summary judgment. The motion to dismiss was based on the grounds that the court lacked jurisdiction over the subject matter of the amended complaint and the amended complaint failed to state a claim upon which relief could be granted. Defendants claimed in the motion that plaintiffs' allegations raised a non-justiciable political question and that plaintiffs lacked standing to maintain the action. They also claimed that the President possessed the constitutional authority to terminate the Defense Treaty and that 8 26 of the International Security Assistance Act of 1978 placed no legal constraints upon the exercise of that authority.

On April 24, 1979 the plaintiffs filed a cross motion for summary judgment.

The defendants' motion to dismiss was granted on June 6, 1979. In its Memorandum-Order the District Court held that the plaintiffs' claim under the International assistance act of 1978 failed to state a claim upon which relief could be granted. The court stated that Section 26(b) of that Act does not set forth a binding or mandatory duty on the President's part to consult with Congress. Moreover, even if Section 26(b) could be construed as imposing a binding duty, the court could not effectively determine how much consultation the section requires.

The court felt that if the Senate as a whole were to take action approving the termination of the treaty, the present controversy would become moot. However, if the Senate or Congress were to reject the President's notice of termination or assert a right to participate in the treaty termination process, then the controversy would be ripe for a judicial declaration respecting the President's authority to act unilaterally.

On June 12, 1979 the plaintiffs filed a motion to alter or amend the court's June 6 ruling. They argued that within hours of the handing down of that ruling, the Senate made the controversy ripe by adopting the following amendment to Senate Resolution 15:

That it is the sense of the Senate that approval of the United States is required to terminate any mutual defense treaty between the United States and another nation.

[Congressional Record S7015] On July 9, 1979 the defendants filed their opposition to the plaintiffs' motion to alter or amend the judgment of June 6.

Status.—The case is pending before the U.S. District Court for the District of Columbia.

McRae v. United States Department of Health, Education, and

No. 76-C-1804 (E.D.N.Y.)

Plaintiffs in this case sought to invalidate Section 209 (the Hyde amendment) of the 1977 Appropriations Act for the Department of Labor and the Department of Health, Education, and Welfare (hereinafter “HEW') [Pub. L. 94-439] including funding for Title 19 of the Social Security Act (Medicaid). Section 209 provides that:

None of the funds contained in this Act shall be used to perform abortions except when the life of the mother

would be endangered if the fetus were carried to term. Cora McRae is a citizen of New York who was in the first trimester of her pregnancy and had decided to terminate her pregnancy after consulting with her physician.

Other plaintiffs are Planned Parenthood of New York City, Inc., Dr. Irwin B. Teran, an obstetrician and gynecologist suing individually and on behalf of others similarly situated, and the New York City Health and Hospitals Corporation. Named as defendant in the suit filed in the United States District Court for the Eastern District of New York was the Secretary of the Department of Health, Education, and Welfare (at the time David Mathews).

During the proceedings, Representative Henry J. Hyde, Senator Jesse A. Helms, and then-Senator James Buckley sought to intervene in support of the legislation. They cited as grounds their interest as Members of Congress in seeking to protect their votes in favor of the Hyde amendment from judicial nullification, and their interest as citizen-taxpayers. They argued that in passing Section 209, Congress made it clear that it was not appropriating any money for elective, nonmedically dictated abortions for the period October 1, 1976 to September 30, 1977. They also asserted that because Article I, Section 9, clause 7 of the Constitution grants Congress the exclusive power of appropriating money, and a judicial invalidation of the Hyde amendment would amount to a judicial appropriation of funds in violation of the Constitution, “[i]t is beyond the competence of any court, State or Federal, to sit in judgment respecting the wisdom of Congress when Congress refuses to make appropriations."

On October 22, 1976, U.S. District Judge John Dooling issued a preliminary injunction against enforcement of the Hyde amendment. He reviewed Title 19 of the Social Security Act, saying that it had been enacted to enable each State to furnish medical assistance on behalf of families with dependent children and that it had authorized a new appropriation for each fiscal year of a sum "sufficient to carry out the purposes” of Title 19. The court declared that New York adopted Title II of the New York Social Services Act, with a goal of making high quality medical care available to everyone regardless of race, age, national origin, or economic standing. The court also reviewed a 1976 New York decision which said that Medicaid payments may not constitutionally be denied for elective abortions, and a 1975 Connecticut Federal District Court decision which held that a State cannot constitutionally deny medical assistance to indigent women seeking elective abortions.

HEW argued that plaintiffs would suffer no harm from the cutoff of funds, since the State, under its own laws and possibly under Federal constitutional imperatives, must continue to reimburse providers of elective abortions for indigents. The court rejected this argument, saying that these people were citizens of the United States as much as of the individual States—the relationship involved is one in which the States are charged with carrying out the responsibilities of the Federal Government to the Federal Government's own citizens, and not one in which the Federal Government merely grants voluntary benefits to States for providing services to the States' citizens. The State might well find funds to provide for these services said the court, but merely because a catastrophe may not follow an unconstitutional denial of an entitlement does not make such action tolerable.

The court then turned to the petition of the Members of Congress to intervene. First, Judge Dooling rejected as grounds for intervening their interest as Members of Congress. He found that they had suffered no legal injury to the validity of their votes, as

was the case in Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974). The court continued:

But that clear right-in effect, to have his vote counted at its full legal value-is not involved here. No one has challenged the correctness of the process of enactment. The challenge is to the constitutional validity of one section of a correctly enacted law. To grant intervention on the ground of the members' participation in enacting the law would involve accepting as a principle that each member of the Congress has an interest to intervene in every case in which the substantive constitutionality of a provision in a federal enactment was drawn into question, or, indeed, in which the interpretation of a federal statute was in question. [McRae v. Mathews, 421 F. Supp. 533

(E.D.N.Y. 1976).] However, the court then found that, since they were challenging the legality of a specific expenditure, the interest of the Members as citizen-taxpayers was sufficient to allow them to intervene under Flast v. Cohen, 392 U.S. 83 (1968). The court then noted that even had this interest not been sufficient, their comments would have been welcome as the submission of amici curiae.

The court said that in declaring the Hyde amendment unconstitutional, it was not appropriating funds in violation of Article I, Section 7, clause 9. Congress had determined that the funds it appropriated were sufficient to carry out title 19 and had only sought to restrict the circumstances in which the funds could be used to pay providers of lawful abortional services. Since that prohibition transcends constitutional rights, the court ruled, it cannot be given effect. Determining that plaintiff McRae and others similarly situated would suffer irreparable harm if the section were given effect, the court issued the injunction.

On October 29, 1976, the court denied a motion of HEW to amend its order of October 22, 1976, to provide that Medicaid reimbursement paid under the order was subject to recoupment if the order were to be reversed on appeal.

The Congressional intervenors filed an appeal with the Supreme Court on November 17, 1976. Their jurisdictional statement asserted that the questions presented to the court for its determination


(1) Whether the United States District Court for the Eastern District of New York exceeded its jurisdiction in entertaining respondent's complaint on its merits and in directing the Secretary of Health, Education and Welfare to expend federal funds for elective abortions.

(2) Whether there is a rational basis for the Congressional classification between medically dictated abortions and elective abortions. (Appellants' Jurisdictional Statement at

10, Buckley v. McRae, No. 76-694 (U.S. Supreme Court).] The Justice Department filed an appeal on behalf of Joseph A. Califano, now the Secretary of HEW, on February 11, 1977. (Califano v. McRae, No. 76-1113 (U.S. Supreme Court).]

On June 29, 1977, the U.S. Supreme Court dismissed the appeal in Buckley v. McRae in a brief order. That same day they also

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