dictate, for me, that until Congress legislates otherwise as to employment standards for its own staffs, judicial power in this area is circumscribed. The Court today encroaches on that barrier. Cf. Sinking Fund Cases, 9 Otto 700, 718, 25 L Ed 496, 25 L Ed 504 (1878).

In relation to his or her constituents, and in the performance of constitutionally defined functions, each Member of the House or Senate occupies a position in the Legislative Branch comparable to that of the President in the Executive Branch; and for the limited purposes of selecting personal staffs, their authority should be uninhibited except as Congress itself, or the Constitution, expressly provides otherwise.

The intimation that if Passman were still a Member of the House, a federal court could command him, on pain of contempt, to re-employ Davis represents an astonishing break with concepts of separate, coequal branches; I would categorically reject the notion that courts have any such power in relation to the Congress. MR. JUSTICE STEWARD, with whom Mr. Justice Rehnquist joins, dissenting.

Few questions concerning a plaintiff's complaint are more basic than whether it states a cause of action. The present case, however, involves a preliminary question that may be completely dispositive, for, as the Court recognizes, "the Clause shields federal legislators with absolute immunity 'not only from the consequences of litigation's results, but also from the burden of defending themselves.' Dombrowski v. Eastland, 387 US 82, 85, [18 L Ed 2d 577, 87 S Ct 1425)." Ante, at n 11, 60 L Ed 2d 857. See also Eastland v. United Servicemen's Fund, 421 US 491, 503, 44 L Ed 2d 324, 95 S Ct 1813.

If, therefore, the respondent's alleged conduct was within the immunity of the Speech or Debate Clause, that is the end of this case, regardless of the abstract existence of a cause of action or a damages remedy. Accordingly, it seems clear to me that the first question to be addressed in this litigation is the Speech or Debate Clause claim-a claim that is far from frivolous.

I would vacate the judgment and remand the case to the Court of Appeals with directions to decide the Speech or Debate Clause issue.*

MR. JUSTICE POWELL, with whom the Chief Justice and Mr. Justice Rehnquist join, dissenting.

Although I join the opinion of The Chief Justice, I write separately to emphasize that no prior decision of this Court justifies today's intrusion upon the legitimate powers of Members of Congress.

The Court's analysis starts with the general proposition that "the judiciary is clearly discernible as the primary means through which [constitutional] rights may be enforced," ante, at --, 60 L Ed 2d 860. It leaps from this generalization, unexceptionable itself, to the conclusion that individuals who have suffered an injury to a constitutionally protected interest, and who lack an "effective" alternative, “must be able to invoke the existing jurisdiction of the courts for the protection of their justifiable constitutional rights." Id., at ——, 60 L Ed 2d 860 (emphasis supplied). Apart from the dubious logic of this reasoning, I know of no precedent of this Court that supports such an absolute statement of the federal judiciary's obligation to entertain private suits that Congress has not authorized. On the contrary, I have thought it clear that federal courts must exercise a principled discretion when called upon to infer a private cause of action directly from the language of the Constitution. In the present case, for reasons well summarized by The Chief Justice, principles of comity and separation of powers should require a federal court to stay its hand.

To be sure, it has been clear at least since Bivens v. Six Unknown Fed. Narcotics Agents, 403 US 388 29 L Ed 2d 619, 91 S Ct 1999 (1971) that in appropriate circumstances private causes of action may be inferred from provisions of the Constitution.1 But the exercise of

*

This issue was fully briefed and argued before the en banc Court of Appeals. The court's opinion gives no indication of why the court did not decide it.

1A court necessarily has wider latitude in interpreting the Constitution than it does in construing a statute, McCulloch v. Maryland, 4 Wheat 316, 407, 4 L Ed 579 (1819). Moreover, the federal

this responsibility involves discretion, and a weighing of relevant concerns. As Mr. Justice Harlan observed in addressing this very point, a court should "take into account [a range of policy considerations] at least as broad as the range of those a legislature would consider with respect to an express statutory authorization of a traditional remedy." Bivens, supra, at 407, 29 L Ed 619, 91 S Ct 1999.

Among those policies that a court certainly should consider in deciding whether to imply a constitutional right of action is that of comity toward an equal and coordinate branch of government.2 As Chief Justice Waite observed over a century ago, "One branch of government cannot encroach on the domain of another without danger. The safety of our institutions depends courts have a far greater responsibility under the Constitution for the protection of those rights derived directly from it, than for the definition and enforcement of rights created solely by Congress. Bivens v. Six Unknown Fed. Narcotics Agents, 403 US 388, 407 29 L Ed 2d 619, 91 S Ct 1999 (1971) (Harlan, J., concurring).

2 It is settled that where discretion exists, a variety of factors rooted in the Constitution may lead a federal court to refuse to entertain and otherwise properly presented constitutional claim. See, e.g., Trainor v. Hernandez, 431 US 434, 52 L Ed 2d 486, 97 S Ct 1911 (1977); Juidice v. Vail, 430 US 327, 51 L Ed 2d 376, 97 S Ct 1211 (1977); Huffman v. Pursue, Ltd. 420 US 592, 43 L Ed 2d 482, 95 S Ct 1200 (1975); Younger v. Harris, 401 US 37, 27 L Ed 2d 669, 91 S Ct 746 (1971); Alabama Public Service Commission v. Southern R. Co., 341 US 341, 95 L Ed 1002, 71 S Ct 762 (1951); Douglas v. City of Jeannette, 319 US 157, 87 L Ed 1324, 63 S Ct 877 (1943); Burford v. Sun Oil Co., 319 US 315, 87 L Ed 1424, 63 S Ct 1098 (1943); Railroad Commission v. Pullman Co., 312 US 496, 85 L Ed 971, 61 S Ct 643 (1941); Hawks v. Hamill, 288 US 52, 77 L Ed 610, 53 S Ct 240 (1933). Traditionally the issue has arisen in the context of a federal court's exercise of its equity powers with respect to the States. Concerns of comity similar to those that govern our dealings with the States also come into play when we are asked to interfere with the functioning of Congress.

The Court suggests that because the Speech or Debate Clause of the Constitution embodies a separation-of-powers principle, the Constitution affords no further protection to the prerogatives of Members of Congress. Ante, at, 60 L Ed 2d 863. This assertion not only marks a striking departure from precedent, but also constitutes a non sequitur. Our constitutional structure of government rests on a variety of checks and balances; the existence of one such check does not negate all others.

in no small degree on a strict observance of this salutary rule." Sinking Fund Cases, 9 Otto 700, 718, 25 L Ed 496, 25 L Ed 504 (1878). Even where the authority of one branch over a matter is not exclusive, so that a federal court properly may accept jurisdiction over the dispute, we have recognized that the principle of separation of powers continues to have force as a matter of policy. For example, in United States v. Nixon, 418 US 683, 41 L Ed 2d 1039, 94 S Ct 3090 (1974), we held on the one hand that the question whether the President had a claim of privilege as to conversations with his advisers was an issue to be resolved by the judiciary, and on the other hand that separation-of-powers considerations required the recognition of a qualifed privilege.

Whether or not the employment decisions of a Member of Congress fall within the scope of the Speech or Debate Clause of the Constitution, a question the Court does not reach today, it is clear that these decisions are bound up with the conduct of his duties. As The Chief Justice observes, ante, a Congressman necessarily relies heavily on his personal staff in discharging the duties of his office. Because of the nature of his office, he must rely to an extraordinary extent on the loyalty and compatibility of everyone who works for him. Cf. Elrod v. Burns, 427 US 347, 377-388, 49 L Ed 2d 547, 96 S Ct 2673 (1976) (Powell, J., dissenting). A Congressman simply cannot perform his constitutional duties effectively, or serve his constituents properly, unless he is supported by a staff in which he has total confidence.

The foregoing would seem self-evident even if Congress had not indicated an intention to reserve to its Members the right to select, employ and discharge staff personnel without judicial interference. But Congress unmistakably has made clear its view on this subject. It

It is quite doubtful whether the Court should not consider respondent's Speech or Debate Clause claim as a threshold issue. The purpose of that Clause, when it applies, includes the protection of Members of Congress from the harassment of litigation. Since the Court chooses not to consider this claim, and addresses only the cause of action issue, I limit my dissent accordingly. In doing so, I imply no view as to the merits of the Speech or Debate issue or to the propriety of not addressing the claim before all other issues.

took pains to exempt itself from the coverage of Title VII. Unless the Court is abandoning or modifying sub silentio our holding in Brown v. General Services Administration, 425 US 820, 48 L Ed 2d 402, 96 S Ct 1961 (1976), that Title VII as amended "provides the exclusive judicial remedy for claims of discrimination in federal employment," id., at 835, 48 L Ed 2d 402, 96 S Ct 1961, the exemption from this statute for congressional employees should bar all judicial relief.

In sum, the decision of the Court today is not an exercise of principled discretion. It avoids our obligation to take into account the range of policy and constitutional considerations that we would expect a legislature to ponder in determining whether a particular remedy should be enacted. It fails to weigh the legitimate interests of Members of Congress. Indeed, the decision simply ignores the constitutional doctrine of separation of powers. In my view, the serious intrusion upon the authority of Members of Congress to choose and control their own personal staffs cannot be justified.4

I would affirm the judgment of the Court of Appeals.

4 The justification the Court relies upon is the duty of federal courts to vindicate constitutional rights-a duty no one disputes. But it never has been thought that this duty required a blind exercise of judicial power without regard to other interests or constitutional principles. Indeed, it would not be surprising for Congress to consider today's action unwarranted and to exercise its authority to reassert the proper balance between the legislative and judicial branches. If the reaction took the form of limiting the jurisdiction of federal courts, the effect conceivably could be to frustrate the vindication of rights properly protected by the Court.