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Nuclear Disarmament and Non-Proliferation: 





U.S. Representative
Civil Action No. 02-1137(JDB)



Washington, D.C.
October 31, 2002
7 . 10:00 a.m.
GEORGE W. BUSH, President of
the United States, et al., .






For the Plaintiffs: PETER WEISS, ESQ.
The Lawyers' Committee on Nuclear Policy
211 East 43rd Street, #1204
New York, New York 10017

Klimaski & Grill, P.C.
1400 K Street, N.W., Suite 1000
Washington, D.C. 20005
20 202-296-5600
For the Defendants: SHANNEN W. COFFIN, ESQ.
U.S. Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Room 3137
Washington, D.C. 20530
24 202-514-2069

Bryan A. Wayne, RPR
Official Court Reporter
APPEARANCES (Continued):
For the Defendants: VINCENT M. GARVEY, ESQ.
U.S. Department of Justice
Civil Division
Federal Programs Branch
901 E Street, N.W.
Washington, D.C. 20530
For the Defendants: JOHN C. YOO, ESQ.
U.S. Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Room 3706
Washington, D.C. 20530
Court Reporter: BRYAN A. WAYNE, RPR
Official Court Reporter
U.S. Courthouse, Room 4808-B
Washington, D.C. 20001

Proceedings reported by machine shorthand, transcript produced by computer-aided transcription.

Bryan A. Wayne, RPR
Official Court Reporter




THE DEPUTY CLERK: We have Civil Action 02-1137, Dennis Kucinich et al., versus George W. Bush. Will counsel please stand and identify yourselves for the record.

MR. WEISS: My name is Peter Weiss, and I'm here appearing for the plaintiffs.

MR. KLIMASKI: James Klimaski for the plaintiffs.

MR. BURROUGHS: John Burroughs for the plaintiffs.

THE COURT: Good morning to you all of you.

MR. COFFIN: Your Honor, Shannen Coffin for the defendants. At counsel table are Carol Federighi, Vince Garvey, and John Yoo.

THE COURT: Good morning to all of you. Mr. Weiss and Mr. Coffin will be handling the argument this morning?

MR. COFFIN: Yes, sir.

MR. WEISS: Yes, Your Honor.

THE COURT: All right. We have two motions, a motion to dismiss or for summary judgment filed by the defendants and a motion for summary judgment filed by the plaintiffs, and I guess that's the order, the chronological order in which they were filed. It seems to me to make sense to hear first from the defendants, not because of that chronological sequence, but instead because they're raising essentially threshold issues and want me to focus on those, whereas the plaintiffs want me to focus on the merits, at least ultimately.

It might make sense to hear those threshold issues coming from the source rather than the defensive side first. That does not mean that I won't allow you each to get up to the podium a second time. I may well do that, so don't feel that you're absolutely constrained. I would like you to think about roughly 45 minutes, not for your opening, but for your full presentations. But I'm not going to keep a rigid or a firm clock on you. I just ask you to keep that in mind so we can keep approximately to that time frame. So I'll hear first from Mr. Coffin.

MR. COFFIN: Good morning, Your Honor. Your Honor, as you said, we do have threshold issues to discuss. Plaintiff's claims in this case suffer from innumerable justiciability defects, and each of those defects shares one thing in common. They speak to the separation of powers problems that would arise were this court to decide the essentially political issue of whether the President had the authority to withdraw from the ABM treaty without formal  congressional approval.

As viewed through the prism of article view standing under Raines v. Byrd, the doctrine of ripeness, the political  question doctrine, or even the mootness doctrine, plaintiffs, who are a group of 30 or so members of the House of  Representatives, seek to vindicate what they themselves call the institutional interest of either the House or the whole Congress -- it's not entirely clear to me -- despite their failure of their colleagues to take a legislative action, can't turn to the courts to remedy the injury they allege.

THE COURT: Let's stop at two points that you've alluded to that are not really briefed in any significant manner in the papers. First, mootness. Are the defendants contending and asking this court to determine whether this case is moot?

MR. COFFIN: Well, Your Honor, to the extent -- the mootness argument became a little bit clearer through the last  couple rounds of briefing. The plaintiff -- THE COURT: There still isn't much briefing on it.

MR. COFFIN: No, I understand. As a matter of fact, I think we originally only raised this in a footnote because it wasn't clear exactly what the plaintiffs were arguing, but as far as I can tell, what the plaintiffs are saying is, yeah, we  have the power to act domestically, but we're really concerned  about the international effects of the treaty termination. We can't undo what the Russians have done in response to the President's withdrawal.

I would submit that given that position, the mootness does come to a head, at least to the extent they're concerned about the international effects. The reason is, they never sought any relief from the time the President announced that he was going to withdraw to the time that that withdrawal became effective, and now that the withdrawal has been done on behalf of the United States pursuant to the terms of the treaty, it's hard for this court to step in and undo that, especially where you're concerned about the effect of judicial interference, as it were, with international relationships.

THE COURT: Those last considerations flow back into other prongs --

MR. COFFIN: Absolutely, Your Honor, and I mean --

THE COURT: -- justiciability arguments here, and while we're on that, jurisprudentially, as opposed to what's the best case and the clearest resolution under the cases, but jurisprudentially, is there any order in which a federal court should look at these various prongs: ripeness, political question, standing, mootness?

MR. COFFIN: I would suggest that -- well, first of all, I would suggest that standing, ripeness, mootness are all sort of a related question. I mean, ripeness and mootness have been described as standing in time.

THE COURT: They're just questions of who, when, and still.

MR. COFFIN: That's correct, but I would think that perhaps the easiest resolution is perhaps the correct resolution as well, which is standing should be your first inquiry. Having said that, I mean, I don't think there's anything that puts ripeness or mootness behind them on the jurisprudential ladder.

The political question doctrine I think, while it is a justiciability issue because it's a little bit more complicated and because it doesn't speak to the who and the when, probably would be the last prong of your justiciability analysis. But I would suggest that the Raines v. Byrd analysis would be first, and I'd be happy to address that now.

THE COURT: Go ahead.

MR. COFFIN: It's important in discussing Raines, Chenoweth, and Campbell, which we call the triumvirate of legislative standing cases, it's important to realize what is not at issue in this case. Plaintiff's claims here fail to satisfy any number of threshold requirements of legislative standing, and they concede essentially that there's no personal injury. The first question is whether plaintiffs have been deprived of something to which they're personally entitled.

In Raines there was the discussion of the right to vote as a legislator versus the right to your seat as a legislator. That right to your seat may be much more personal than the right to vote. And here, plaintiffs, if you look at their complaint, paragraph 6 and paragraph 13 of the complaint, they've essentially conceded there's no personal injury. They sue in their official capacity so that, just as in Raines, if they were to retire tomorrow, they wouldn't have a claim. And they also sue to --

THE COURT: Maybe more -- maybe look at next week in terms of an election rather than retirement.

MR. COFFIN: That's correct, Your Honor. And in paragraph 13 of their complaint, they say that we're here to vindicate the institutional interest of Congress, and that was a very important discussion in Raines as to whether a harm is essentially personal to a particular representative or institutional to either the House of Congress or the whole Congress.

THE COURT: Now, there's some members of the judiciary, including some on the Supreme Court and some on this circuit, who have a little bit of trouble applying this requirement to personal injury in this context.

MR. COFFIN: I would suggest that there are some in this court that have applied it improperly. I think that the notion of a personal injury versus institutional injury speaks to whether the plaintiffs are seeking to vindicate what is essentially an injury to the entire branch or an entire house of Congress versus whether they're seeking to vindicate what is essentially their own claim.

Here I don't think it's hard for you to have to resolve that issue, because the plaintiffs have told you that what they're seeking to vindicate here is the institutional interest of at least the House of Representatives. I want to make a very important point here, though. To the extent they're seeking to vindicate the two thirds -- their claim is that two thirds of the Senate has to be involved in the termination of a particular treaty. That claim is entirely off the board because there are only members of the House of Representatives here.

THE COURT: Well, since you've raised this, this is a question that I think is more appropriate to focus for Mr. Weiss, but where does the concept -- I know where the concept of the Senate's role in treaty-making comes from; we all know that. Where does the House of Representatives' role as it's presented in this case that the termination of a treaty   would have to be approved by a majority of both houses? What's the source of that theory?

MR. COFFIN: The simple answer is there is no source, but the plaintiffs argue that it somehow emanates from either  the supremacy clause or the necessary and proper clause. The supremacy clause, however, as we've noted and scholars have noted, is simply a status-providing provision. It speaks to the status of federal law; it doesn't say anything about the termination of laws and why you would infer from the supremacy clause that a treaty that is subject to approval by two-thirds vote of the Senate is somehow subject to a vote of both houses as a result of simply the supremacy clause. I don't see it. I don't think there's any basis --

THE COURT: Other than by a comparison by what has to be done to terminate a statutory provision.

MR. COFFIN: Well, I think that's their argument, but if you look at how they become laws; first of all, the laws don't become laws the same way -- the treaty and the statute don't become the supreme law of the land in the same way; in two ways:

First, there's the two-thirds role of the Senate versus both houses with respect to a statute, but even more importantly, that when the Senate approves a treaty by two-thirds vote, it doesn't become the law of the land; it still requires the President to put that treaty into effect. He has the ultimate decision as to whether or not to put that treaty into effect. When you look at statutes, it's always --

THE COURT: Unlike overriding a veto, there's nothing the congress can do if the President chooses not to put a treaty into effect.

MR. COFFIN: That's exactly right. The President has the ultimate decision of whether to put a treaty into effect, so the fact is you can't compare a treaty to a statute; it's apples versus oranges.

THE COURT: Now, there's some things that are different about this case and Raines, are there not? The Court in Raines, Justice Rehnquist identified a number of considerations that led to the conclusion there that there was no legislator standing.

Some of the considerations are different in this case than in that case. In that case, is it not true that when Justice Rehnquist noted that there may be some question about traceability, that that's not an issue here? There, it was arguably the legislature's act in passing the legislation that really was at issue as opposed to any presidential act. Here  it is clearly is a presidential act, is it not?

MR. COFFIN: Well, I'm not sure that's exactly right, Your Honor, because the plaintiffs -- if the plaintiffs' theory is correct on the merits, and that's what you have to assume for purposes of standing, their argument is that 50 percent  vote of both houses would get them there, but they've not been able to get that far in the legislature. There have been  numerous resolutions brought, including one by the named plaintiff, Representative Kucinich, that would have stated that the President can't withdraw from a treaty unilaterally.

Mr. Kucinich's resolution was defeated on a point of privilege, and as a matter of fact, Chairman Hyde, who was the principal opponent of that resolution, rose to say that the reason it should be defeated on the point of privilege is that it was improper for the House to have a role in treaty termination. So there's no privileges of the House that were at issue. So as far as traceability goes, this really is in part an intrabranch dispute.

THE COURT: Well, I agree with you. I think you're on a slightly different point than I was on. You're really addressing the issue of whether there's a constitutional impasse here going back to Justice Powell's language in Goldwater.

What I'm going over at the moment is traceability. Justice Rehnquist did note at the end of the opinion in Raines that there was some question as to whether the injury was fairly traceable to the appellants in that case as opposed to being really at its source the action of the legislature.

Here there's no such question. Here it's clear that the injury alleged is directly traceable to the act of the President, the defendant in the lawsuit, one of the defendants, in terminating the treaty, is that not correct?

MR. COFFIN: I think that's right, but I don't think  it's material to the resolution of this issue.

THE COURT: You think that's an unimportant consideration?

MR. COFFIN: At least as applied to this case. It is an unimportant consideration because traceability is simply one element of standing that has to be met.

THE COURT: What about the fact that there's in Raines, as history proved by the City of New York case following after Raines, what about the fact that whereas in Raines there clearly was someone else who could bring the suit or bring the challenge? Here there isn't, is it?

MR. COFFIN: Well, there are two answers to that. First of all, the Raines court expressly said we're not expressing an opinion on whether or not that makes a difference.

THE COURT: But nonetheless talked about it.

MR. COFFIN: Well, I think that the answer to that question is the Supreme Court's teaching on many occasions that the fact that someone doesn't have standing to bring a claim doesn't mean that you should grant standing to individuals who otherwise wouldn't have standing. So I think the answer is it doesn't matter. The answer to the question if it were pressed to the Supreme Court would likely be that that was not the important factor in the case.

THE COURT: So it's a distinction, but it's not one that makes a difference in the resolution.

MR. COFFIN: I think that's absolutely correct.

THE COURT: What about the difference between the options and alternatives open to the plaintiffs? In Raines I think you had, at least in a general sense, two options that were open. One was legislative action, i.e., voting and overruling, overturning the legislation, and the other was appropriations. Here, at most, there may be some appropriations power. There's not really any legislative action that Congress can take, is there?

MR. COFFIN: I have to disagree with that. I think that the best case to look at to answer that question is Campbell, because Campbell does discuss this alternative remedies issue. And you're right; plaintiffs have conceded that they have the appropriations authority here, so they could prevent spending on ABM systems.

THE COURT: Although their argument is that that can't reach what is a crucial part of this, and this is --

MR. COFFIN: A part that is moot.

THE COURT: Well, no. This is the other part to the treaty.

MR. COFFIN: Right. And that's my point. The part that is moot, the part that they've waited too long to address. I mean, I think that's a really important point, Your Honor. This suit wasn't brought until after the notification and the formal withdrawal became final. I mean, there were six months --

THE COURT: I think it was two days before the withdrawal became final. I'm not sure of that, but it was very close in time. Wasn't June 13 the date that it became final?


THE COURT: I think the case was filed on June 11. But nonetheless --

MR. COFFIN: Well, the point still stands. The fact is they didn't seek any relief. The point is they didn't seek any emergency relief from this court to prevent the withdrawal from happening. So while they did file suit, they certainly didn't do anything to prevent the withdrawal at the time.

But getting back to the remedies discussion, Congress has in the past not only prevented appropriations, but enacted laws that we've discussed. Now, the point of that discussion is simply to say that Congress has passed provisions that prevented the deployment of ABM systems, so they clearly have authority to enact legislation that would have the effect that the treaty was intended to have. But the plaintiffs have argued --

THE COURT: So it would indirectly do the same thing as the appropriations power.

MR. COFFIN: That's right. The plaintiffs have argued, however, that what is at issue here is the fact that they can't undo what's been done. Same was true of Campbell. The issue there was the President's war-making. The Court in Campbell said that you can stop that war-making, but you sure as heck can't undo the past war-making. So if the President had acted unconstitutionally up to the point that the Court were to issue relief in Campbell, that couldn't be undone, and the analogy is the same here.

The plaintiffs have plenty of authority to stop the effect of the withdrawal by preventing ABM systems from being deployed, and I have to say they've been wholly unsuccessful in doing so. There is a statute that was enacted in 1999 that we've cited, the NMDA, National Missile Defense Act, that essentially presaged what happened here, because it said that it is the policy of the United States to deploy a system that essentially -- I mean, read between the lines -- that would violate the ABM treaty.

So it's very important to note that the plaintiffs have been unsuccessful in getting that relief, and that was in terms of talking about the availability of remedies under the Coleman analysis. I mean, that's a really important point. In Coleman, the Court, the Raines Court, really first of all said we're not really saying that Coleman is still good law, but we'll limit it to this particular circumstance.

They noted that there weren't federalism problems in the case, and there weren't separation of powers problems in the case because it involved the State Legislative Act. And the federalism problems were ameliorated because the Kansas Supreme Court had decided to take action on the case.

But assuming that it stands for anything, the Court said it stands at most for the proposition that legislators whose votes would have been sufficient to defeat or enact a specific legislative act have standing to sue if the legislative action does go into effect or does not go into effect, depending on what their vote is, on the grounds that their votes would be completely nullified. There's several reasons why there's not the complete nullification at issue here.

First of all, there's never been an actual vote on the merits of the President's decision here. There have been plenty of resolutions that have been introduced into the legislature, at least a couple of them have been defeated, and several of them have just been set aside and not acted on. So again, the notion of ripeness that infuses Raines as part of the standing analysis certainly isn't met here. If you accept the plaintiffs' allegations as true, the plaintiffs' votes, 30 or so members of the House, wouldn't have been sufficient to defeat the measure that's challenged.

And again, the only real vote that speaks to the policy of the United States through the congress is consistent with what the President did here because the NMDA said that we should build this sort of ABM system. So there's really no vote nullification, because plaintiffs complain only of their failure to convince their colleagues of the need for legislative action.

THE COURT: I want to make sure you have time to talk about Goldwater and also about the merits, but let me ask you one other question about Raines and the rationales -- and I use the plural -- expressed in that case. Tell me what the defendants' view on the historical experience is, to the extent that that is relevant to determining the legislative standing issue.

MR. COFFIN: Well, Raines obviously discussed the history of particular measures that were relevant to the line item veto and said that historical experience there certainly didn't support legislator standing in that circumstance. I think the history here -- this again shows the interrelationship between the justiciability issues, but the history here shows that this has been resolved through the political process.

And if you consider Raines and standing as protecting the political process from undue interference -- and Raines certainly emphasized that. I mean, they said that we have to be particularly careful in applying these standards when what we would, if we were to reach the merits, would have been to pass on the constitutionality of another branch's actions. But if you read the history here, the answer is it's been worked out by the political branches throughout history, and it's been worked out in a number of different ways.

So the fact that there may have been post hoc approval by Congress or some sense of the Senate or sense of the congress resolution that might have been enacted to authorize the President to act in a particular case just speaks to the fact that history in this case shows that this is very much a political animal and that a court stepping in to allow legislator standing would interfere with that balance that's been worked out very well.

THE COURT: And that's the historical experience that is relevant, not what the resolution was in terms of any quarrels between Congress and the President over treaty termination issues, but rather whether the courts were looked to in the first instance by the other branches, and secondly, became involved in revolving those issues. That's the element of historical experience --

MR. COFFIN: That's what Raines discussed, yes. I mean, I think -- I don't remember the particular measure that was discussed in Raines, but it was whether presidents had turned to the courts. I think the Anti-Tenure Act was exactly what was discussed.

THE COURT: The Tenured Office Act.

MR. COFFIN: Right, Tenured Office Act, and the observation by the majority in Raines was that -- well, I mean

15 if this was unconstitutional, why hadn't presidents been bringing cases? I mean, they certainly would have been within their rights to seek a declaration that this sort of thing is unconstitutional, but they didn't. And that sort of experience is exactly what the Court found important in determining, as far as history goes, the legislative standing.

Here, as I say, before Goldwater there had been nothing, and Goldwater is the only case that really there has been a court challenge. In that case, it didn't take the Supreme Court of the United States even merits briefing to realize that they had no role to play. While lower courts made different decisions, the Supreme Court didn't even need to get past the cert stage to know that this was the sort of question that they shouldn't touch.

Let me turn to Goldwater for a moment. I want to just emphasize Justice Powell's concurrence for a moment, not because it is somehow controlling on this court but because it's reinforced by Raines.

THE COURT: Well, it isn't controlling on this court. If you look -- again, I'm turning to jurisprudential principles. If you look at a splintered Supreme Court decision where there are various rationales for the result, there is a doctrine that says look for the narrowest among those rationales. Is not ripeness a narrower rationale than political question? Because all ripeness says is, okay, maybe there is an issue for the courts at some context at some time, but not here in this setting.

MR. COFFIN: I think that's right. It's also sort of the narrowest part of Raines that you could attach to without deciding the broader questions of what remedies are available and the like because the issue hasn't come to a political head. I think so the rationale of Powell's concurrence is certainly binding on this court because, as you say, it is a narrower ground, and this case is on all fours factually in terms of what the majority held in that case, but also because Raines' discussion of Coleman kind of subsumes the same concept.

Justice Powell in Goldwater discussed differences between the President and Congress and how commonplace they are and the fact that they should generally be resolved through political rather than legal considerations. And because only a few members of Congress had challenged the President's action in Goldwater, Congress itself had taken no official action.

That's the same sort of issue that Raines discussed when they were limiting the Supreme Court's earlier decision -- not in Powell, but in Coleman -- where Congress itself hadn't voted. There had not been a vote, and the plaintiffs in front of them weren't a sufficient number to effectuate the action that they're complaining of.

Here for that ripeness -- this isn't conceding that this would be enough, but to at least meet the ripeness complaint, there would have to be a joint resolution, at least, of both houses under plaintiffs' theory that the House has some role and everyone who voted on that joint resolution or enough people who were sufficient to pass that joint resolution are in front of you today arguing that you should resolve this issue.

That might resolve the ripeness part of the dispute. It certainly wouldn't resolve the fact that they have other remedies.

THE COURT: Can the defendants here foresee any circumstance in which the question of whether the President can unilaterally terminate a treaty is appropriate for the courts to resolve?

MR. COFFIN: Oh, I don't think so. I think at the end of the day that there is not a situation, and I think Goldwater is at least some indication because of the political question analysis, but I don't think that at the end of the day this would be a justiciable issue, even if they'd gone through those steps, because this is a political issue and they have plenty of remedies to rectify what they see as a wrong by the President.

I mean, we certainly have never wanted to overemphasize this statement in Campbell, but the fact is Campbell said if the ability to impeach the President exists, then you have your ultimate remedy. And that certainly would apply here, although again --

THE COURT: What about a treaty that was more in line with the situation in the Beacon case? Massachusetts case? Are you familiar --

MR. COFFIN: I'm familiar with the case; I'm just not sure what your question is.

THE COURT: Well, the plaintiffs in that case were basically commercial entities who were contending that the executive action had injured their commercial interests because they no longer were able to have their commercial arrangements with Nicaragua. Why isn't that a setting that perhaps there could be a need for a court to resolve the question whether a treaty can be unilaterally terminated by the President?

MR. COFFIN: Well, I think that -- the answer to that question may get back to your earlier question about whether someone else could sue. Certainly there have been circumstances, and this may have been one of them, where someone other than a member of the legislature sues on an issue that affects whether a treaty is in force and the like.

Might there be standing in those circumstances? Perhaps, ut it doesn't get past the fact that in Beacon Products the Court said I'm not going to reach this issue because it's a purely political question. So while you might get past the threshold for standing for private parties in those circumstances who may somehow have an injury as a result of the existence of the treaty, I'm not conceding that --

THE COURT: Even if you had a 100 to zero sense of a Senate resolution saying that the President had to consult with the Senate in order to terminate the treaty at issue and that the Senate did not want the President to terminate the treaty --

MR. COFFIN: Are you asking whether a private party in that circumstance would have standing?

THE COURT: I'm just adding that fact to the hypothetical, with the private party and that fact --

MR. COFFIN: Again, that might get past your ripeness threshold, but it doesn't get past the fact that this is the sort of question that is political in nature and has generally been resolved through the interrelationship between the parties.

I mean, there's no question that if Congress as a whole is upset with what the President has done here, they have many direct and indirect ways of taking issue with it. So I'm not sure that even under those circumstances there would be standing, no.

THE COURT: Or if there were standing, you'd still would have the obstacle of a political question.

MR. COFFIN: Oh, absolutely. The political question obstacle, while it sounds as similar themes, is an entirely different obstacle. So I can address briefly -- we've kind of covered those themes, but I can address them briefly if you'd like me to.

THE COURT: I think you should make a decision whether you want to address the merits briefly in advance of your rebuttal.

MR. COFFIN: Yeah. Let me move on. As I say, as far as the political question analysis goes, the fact that the Goldwater court reached the decision, Beacon Products thought that that was a compelling reason to dismiss the case before it, and I want to point out on political question one statement that the plaintiffs make in their briefs.

I think they're trying to make a different point, but the notion of potential embarrassment from multifarious pronouncements is the very reason why once the President has already withdrawn from a treaty and the six-month period has run and it's become effective and notice has been given to the other parties, it's the very reason this court can't step in because the confusion that that would create internationally would be substantial.

And plaintiffs in their brief, while trying to make a slightly different point, admit that in the area of foreign affairs that their point -- the point they're trying to make is you should decide this for future treaties, which of course you can't do because you have to decide the case on the facts before you.

But they admit that in the area of foreign affairs an a posteriori confrontation could lead precisely to the kind of embarrassment for multifarious pronouncements by departments on the same question that was contemplated in Baker and Goldwater as well. So I think even they recognized that at this stage of the game as to this treaty it's hard for this court to step in.

We haven't shied away from the merits of this dispute, Your Honor, and I'll try to be very brief on the merits and reserve some time to rebut, but we haven't shied away from the merits because we think that the text, the Supreme Court's decisions, the structure of the Constitution and history all point to the answer that this is a permissible method of withdrawal from a treaty, especially a treaty like this which as in Goldwater allows for its termination, has a termination clause as this one does.

THE COURT: Well, why doesn't in terms of the text -- and since you separate them, let's address them separately, text and structure. In terms of the text, why doesn't the textural reference that is the only reference here giving the Senate a role in the making of a treaty implicitly carry with it a role in the unmaking of a treaty?

MR. COFFIN: The answer to that is the structure --

THE COURT: Well, I asked you to separate them.

MR. COFFIN: The text and structure are related.

THE COURT: So it isn't really the text that is the important thing here; it's more the structure.

MR. COFFIN: It's where the text lies, how's that? The executive power in Article II is not expressly limited like the legislative authority. The legislative authority in Article I says all legislative powers herein granted. If you looked at just the treaty ratification clause, that would suggest that Congress has been granted a role in treaty ratification, but it hasn't been granted a role in treaty termination. So that in itself provides an answer.

But the fact that the Senate's role in treaty ratification falls within Article II suggests, as the Supreme Court has suggested, that this is generally an executive power because it relates of course to the foreign relations, the external relations of the United States. So by falling within Article II, the treaty power does two things.

First, it confirms that this is a presidential power, generally speaking. The President has every role except for the advice and consent of the Senate role in treaty ratification. But it's also a limitation on executive power, and the important thing about the fact that it's a limitation is that because there's a general grant of the executive power, the Supreme Court has said that you can't infer greater limitations from silence on the subject.

THE COURT: In this day and age, you wouldn't, would you, contend that the only role of the congress in foreign relations is the Senate's role, advise and consent role, in the making of treaties?

MR. COFFIN: I would say in terms of what plenary means, when the Supreme Court has used the term previously, it means that the President has the principal role, that Congress has some role, but it is the role that's limited in the Constitution and powers that relate to that. And it's very difficult to see how treaty termination necessarily flows from treaty ratification, especially when you view it as a limitation on executive power.

So perhaps text and structure do flow together, but I think that the answer, reading those provisions: the executive power provision, the legislative power provision, the chief executive power, and the location of the treaty ratification provision within Article II as a limitation that should be strictly construed on presidential authority, that's your textural answers all wrapped up in a bundle.

But you've hit on something. I think we can't ignore what the Supreme Court said about the President's role in Curtis Wright and numerous cases since then that the President is the sole organ of the federal government, certainly the voice of the federal government in foreign relations and has the greatest power I think is the best reading of that in modern parlance in the field of international relations.

THE COURT: Well, if I listen to the plaintiffs with both this doctrine, if you will, and perhaps with political question and justiciability, particularly Baker and Flass-type concerns, those are disfavored and are not really what the Supreme Court is looking to these days.

MR. COFFIN: Your Honor, I haven't seen anything that says that in any case, and it seems to be their position on Goldwater, for instance, is that the Supreme Court isn't the same as it was in the 1970s. I mean, I was thinking about that this morning, and the same could be said -- THE COURT: I don't think that's ever been a successful argument.

MR. COFFIN: Marbury versus Madison could be the same argument today.

THE COURT: It's not expressly adopted by federal courts.

MR. COFFIN: The Curtis Wright language has been used by the Court in recent days, in the last 20 years for certain, and I don't think that it's been limited in any particular way that affects this case. I think it certainly is a principle  that this court would have to fall back on in thinking about the merits of this case.

As I said before, the point I want to make about the President's authority here, and I think I might have made it in a different context, is the President has every power except that small role of the Senate in treaty ratification. He himself decides whether to negotiate and what agreements to reach.

Then once an agreement is reached, he submits it to the Senate for approval, and after approval by the Senate, he decides whether to put it in force. And some of the cases we've also cited have explained that the President also has the power to decide whether a treaty remains valid. So where the executive branch insists that a treaty is still in force, the Supreme Court in TWA versus Franklin Mint, 466 U.S. 243 at 253, courts generally don't accept those decisions.

It won't override the President's decision that a treaty remains valid because of the need to speak with a single voice in foreign relations, and the same rule I think flows from that for treaty termination. The several commentators in the restatement have said that the President has the authority to suspend a treaty in accordance with its terms, and I don't want to rely on a decision that's been vacated, but the Goldwater D.C. Circuit opinion is very persuasive in their analysis of this question and for the same reasons that we've been discussing here.

Historical practice, as I've said before, is generally mixed, but there have been numerous instances of the President withdrawing unilaterally from a treaty, and Beacon and Goldwater are good examples.

THE COURT: Has either house of Congress ever taken the position as an institution that the President cannot unilaterally terminate a treaty?

MR. COFFIN: From my historical reading, I think that the House might have taken that decision in a resolution in 1945. It did not pass the Senate, so the House tried to say that we have a role. The Senate disagreed, and the resolution didn't go any further. I don't know that you can --

THE COURT: I was starting to say it had a role in treaty termination.

MR. COFFIN: Yeah. I think that's my recollection of a lot of historical reading in the last couple of weeks. I don't think that speaks at all to what the current House's position is, and certainly the fact that the Senate didn't agree at the time I don't think gets them very far.

Your Honor, we've already discussed the supremacy clause argument. I think the plaintiffs rely essentially on the supremacy clause notion, but for the reasons I've stated already, I don't think that gets them very far. And the necessary and proper clause begs the question: necessary and proper to what?

If their argument is that a congressional role is necessary and proper to effectuate the advise and consent role of the Senate, I just don't see how that follows. I don't see how the House has a role based on the necessary and proper clause. So that essentially is our argument on the merits.

THE COURT: Then let me hear from Mr. Weiss, and you'll get a further opportunity to rebut.

MR. COFFIN: Thank you, Your Honor.

THE COURT: Thank you.

MR. WEISS: Good morning, Your Honor.

THE COURT: Good morning, Mr. Weiss.

MR. WEISS: I noted you are very interested in the question of justiciability, and I expect that you will have equally sharp questions for me on that issue as you did for Mr. Coffin. So I just want to get the merits out of the way first if that's all right with you.

THE COURT: I'll let you proceed in the order you want to proceed.

MR. WEISS: Okay, because that's really the principal part of our case. Now, actually, I should say that we view the question of justiciability as extricably interwoven with the question of the merits. And what I mean by that is that running throughout the entire set of briefs of the defendants as well as Mr. Coffin's presentation this morning is one thunderous statement; namely, there is nothing that Congress can do to prevent a President from terminating a treaty. I could qualify that by the references that Mr. Coffin made to resolutions.

THE COURT: I'm not sure that Justice Powell, were he alive, would agree with that or that some other members of the Supreme Court would agree with that or other commentators. Is it not the case that Congress, by whatever actions it takes -- for instance, in this case, if there were in fact a sense of the Senate, an overwhelming sense of the Senate vote or an overwhelming resolution by the House, that that might not be a crucial fact in the give-and-take between the two branches of government and the resolution of the question with respect to any particular treaty and whether congressional consultation was going to occur. Because historically in lots of instances, as I'm sure you're going to point out, such consultation did occur.

MR. WEISS: Right. We're talking here about the difference between might and must. The defendants are saying if Congress took a strong position, a majority position representing the entire institution in opposition to the President, it might make a difference. We're saying from a constitutional point of view that is not enough because the Constitution is not a precatory document. The Constitution commands. It does not beg.

So I certainly agree with Your Honor that it is more than conceivable that if, say, in this instance the entire Congress had spoken loudly with a strong voice in opposition to the ABM treaty, the President would have been foolish not to pay attention to that voice from the congress. However, defendants continue to say, and I have a list of about seven quotes from their briefs which I will not burden you with today, that no matter what, no matter what Congress does, they don't recognize that Congress has a role to play in treaty termination.

So we have a situation here that's quite similar I think to what happened very recently with the resolution on Iraq where the President originally said I don't have to go to Congress; my lawyers tell me I can go to war. And then he heard from Congress.

I don't think he heard in terms of a majority resolution, but he heard loudly enough to make him go to Congress, I would say, perhaps because he wanted to engage in a dialogue, perhaps because there were political considerations, but he's never given up the position that he didn't have to go to the congress. And this is very similar to what's happening to the treaty termination issue.

THE COURT: Accepting your analogy or your development of that similarity and also asking for your forgiveness for proceeding on justiciability issues which you concede are interwoven with the merits, is that not, as you've just expressed it, exactly the reason why the third branch, the courts, should stay out of those political resolutions of the two branches over such questions?

MR. WEISS: No. I would answer that with a categorical no, Your Honor, because we have to look at the reality of the political aspects of this. Unfortunately, perhaps because of Goldwater, perhaps for other reasons, the sentiment prevailed in Congress that they had no right to challenge the President on this.

Senator Daschle said so explicitly in the statement that he issued, which is in the record, on the day that the President gave the notice of withdrawal. He said this is a very bad decision, it's a terrible decision, it's going to have all kinds of awful consequences, but the President has the right to do it.

Now, as long as that sentiment prevails in Congress and in the public at large, why should these legislators, who are very busy people and have a lot of important issues on their dockets, bother even to try to pass a resolution? And incidentally, in answer to one of your last questions to Mr. Coffin, has Congress ever taken a position on this, the Senate came very close to taking a position on it at the time of Goldwater.

THE COURT: It was a 59-35 vote, but that wasn't a final vote. And indeed, the matter never came to a final vote.

MR. WEISS: No. But it was a 59-35 vote. So that's more than a handful, which is how defendants have characterized the number of members of Congress who are interested in this issue. As long as we're on that, I would also like to point out that in addition to the 32 plaintiffs, there were about 130 other members of Congress who voted with Congressman Kucinich in his appeal from the rejection of his resolution, so 169 members of Congress wanted that issue discussed as recently as last June.

Incidentally, let me interject here to say that I have heard that Senator Kucinich's plane from Cleveland has been delayed. I intended to introduce him, but I hope to have a chance to do so later.

THE COURT: I hope you do.

MR. WEISS: Now, what we're basing our case on principally is it's a kind of nullification. So again, I'm moving into standing because I can't get away from it, and we are saying that the government's position that no matter what Congress does, the President ultimately, while he may listen to Congress, he may change his position because he thinks Congress is wise or because of politics, ultimately he is the sole decider of termination of treaties.

Now, we're saying this is the most complete nullification that you can conceive because it's a nullification in advance, and while we're not resting our case principally on Coleman, we do think that there is a lesson in Coleman for this particular issue. The nullification --

THE COURT: If you look to Coleman for that issue, I think you have to take both parts of the sentence in which that nullification is discussed, the first part of the sentence being that it takes a group of plaintiffs who could in fact sustain the vote the other way, and even if you analogize this to a vote situation, we don't have a group of plaintiffs who could sustain the vote the other way. So there really isn't a nullification in the Coleman strict sense.

MR. WEISS: No, that's absolutely correct. That's why I said we don't rely principally on Coleman, but we do have not only the whole spirit of the Constitution which cannot be ignored in any kind of constitutional debate which goes back actually to the fact that the original draft of the Constitution called for the President to have no power over treaties, that it was going to be entirely a matter for Congress.

I don't know exactly why that changed. I think there may be some explanation in Elliott's debates. We haven't found it so far, but anyway, ultimately what happened, as we all know at this point, is that we have the advise and consent clause for the Senate, and we have nothing specific about termination, just as we have nothing specific about how laws are repealed. We have something very specific about who makes laws, the legislative branch, and it doesn't say how they are appealed.

So the position that the government takes that the only exception to the President's plenary power over foreign affairs is what is specifically texturally committed to the President simply cannot stand, as it cannot stand in any case in which the courts interpret, based on the spirit of the Constitution, argument by analogy, argument from reasoning, as the Supreme Court just this past May did in the Federal Maritime case in which Justice Thomas said we must look at what the founders would have thought, the framers, I think he said. I don't think this is anything new in constitutional interpretation, and that's really what --

THE COURT: Not seizing on your last point, because I'm not sure that anyone could speculate as to what the framers would have thought on this point that I'm going to ask you a question on, let me return to the question that I asked Mr. Coffin near the outset that I think is more appropriately addressed to you.

Where does the authority of the House in treaty-unmaking, if you will, or treaty termination, come from? What's the derivation of that authority? I understand how senators or the Senate could be pointing to the express language of the Constitution giving the Senate a role in treaty-making. What do you look to, to support the proposition that treaty termination can only be done either by consultation and two-thirds vote of the Senate or by a vote of a majority of both houses? Where does that come from?

MR. WEISS: We look primarily to the supremacy clause, Your Honor. Treaties made and to be made are the supreme law of the land, and therefore they are, in the words of Justice Marshall in Foster v. Nielsen to be completely equated to statutes.

THE COURT: But there are three parts of the law of the land. There's not only statutes and treaties; there's also the Constitution, and certainly the Constitution or constitutional provision cannot be changed or terminated through a majority vote of each house.

MR. WEISS: That's true.

THE COURT: It has its own mechanism for termination, and the same is true for laws which parallel the way laws go into effect. Why wouldn't, in this context with treaties, the parallel be the way treaties go into effect? In other words, if you're right through a supremacy clause argument, doesn't that get you not only to the point where the President has to consult with the Senate and get two-thirds approval by the Senate to terminate the treaty?

MR. WEISS: Actually, you are raising a point that was at issue between Jefferson and Madison about this, because Jefferson is on record as saying treaties being the supreme law of the land, they can only be rescinded by Congress.

THE COURT: And that's not exactly the point I'm making; I'm just saying why doesn't your supremacy clause argument lead to the parallel termination of treaties with making, which means is the Senate, not the House.

MR. WEISS: I just want to bring in Jefferson, because Madison took your view, the one that you just expressed, and he said treaties being made with the advice and consent of the Senate -- I'm paraphrasing -- can only be unmade in exactly the same way in which they were made.

THE COURT: And I think Hamilton took the view that the executive could do it on his or her own.

MR. WEISS: Right.

THE COURT: So we've got our framers in various positions on this, and I'm not sure it's of all that much help.

MR. WEISS: We do indeed. Framology is something like Bible study.

THE COURT: But what about my point in terms of the parallelism? Doesn't it make some sense? If you're going to rely on the supremacy clause, why does that lead to a role by the House?

MR. WEISS: It leads to a role by the House if you accept that treaties are fully equivalent to laws. And let me try and answer --

THE COURT: Fully equivalent to laws in the same way that they're fully equivalent to the Constitution, but if the Constitution can't be changed simply by majority vote of the two houses --

MR. WEISS: That's exactly correct, but Foster v. Nielsen doesn't say that the Constitution is equated to laws. It says treaties are equated to laws, because the Constitution is explicit on how the Constitution is to be amended, so therefore, Congress cannot intrude on the specific provisions of the Constitution in a way that would contradict it.

THE COURT: I don't understand the logic. I understand what you just said there, but I don't understand the logic of the next step, which would be to say that, and therefore because our method of terminating, changing, or repealing laws is through both houses voting and the President signing a piece of legislation, the same way that the legislation becomes law, therefore the method of terminating treaties has to be that same method that is used for laws, because that's not how treaties are made.

MR. WEISS: That's true. That's not how treaties are made, but once they're made, they become laws. And so they must be treated as laws, I think as some of the cases say, in other respect.

Then there's another constitutional provision that is relevant here that I think has not been mentioned in the previous presentation for questioning, and that's the duty of the President to take care that the laws be faithfully executed. So again, if you accept the treaty as equivalent to laws, it doesn't make very much sense to say that the President can faithfully execute his duty with respect to any particular treaty/law by terminating it.

So we have these two highly relevant specific constitutional provisions here, but then apart from that we, as I said, and I don't want to repeat, I don't want to go over that terrain again, the whole spirit of the Constitution of the role, and the increasing role to which you referred, Your Honor, a little while ago of Congress in foreign affairs would, it seems to me, dictate not only some kind of role for Congress but would dictate a system in which there is a trigger for that role to be exercised.

THE COURT: But the role in foreign affairs that Congress has -- and feel free to correct me if you think otherwise -- is predominantly exercised by the Senate, not by the House, is it not?

MR. WEISS: Well, yeah. It's more exercised, but there is an international relations committee in the House. As we said in one of our briefs -- there's so many I can't remember which one -- there are numerous instances of the House taking a very strong lead on international questions. The whole human rights body of laws going back to shortly after World War II came essentially out of the House, and the only -- because we thought the point was so self-evident, we only submitted one piece of evidence from very recent history showing that six members of Congress attended in their official capacity the Johannesburg meeting in August.

Now, Congress has no role -- if the House has no role to play in foreign affairs, as defendants say several times in so many words, what were these members of Congress doing there? We could think probably of a hundred other examples. So it just doesn't seem right for the President to take this kind of really very important step without so much as saying hello to Congress. That's what we have to say about the merits.

THE COURT: All right.

MR. WEISS: Let me now go to Raines, which I will be free to confess is a major obstacle for us, because Raines, while not specifically overruling any previous jurisprudence, did limit the standing of members of Congress in a rather sharp way. By equating members of Congress with ordinary plaintiffs and saying there has to be a personal stake, there has to be a personal injury, you can't come in here to represent your fellow legislators.

The problem with the defendant considering Raines as controlling here is that they overlook the fact that in a situation in which the facts are as different from Raines as you explained a little while ago, the Supreme Court decided nothing. The Supreme Court said in a situation in which there is no alternative remedy and in which -- or they said -- in which there are no noncongressional plaintiffs who could raise the issue, we are not here deciding with the lawyers.

THE COURT: I know you're building on some questions that I asked. It does seem to me that the problem from your perspective with Raines is that there are several legs, if you will, that Raines stands on, and some of those get more attention from the Court in Raines than others do.

The ones that get the most attention are the requirement of a personal injury and the requirement of a concrete and particularized injury, whether it be in the context of talking about the personal injury or in the context of talking about a nonabstract question, and then thirdly, I suppose, there's the historical experience.

Those are the issues and the bases of the Raines standing decision that get the most treatment by the Court or given the most emphasis, and those turn out to be the ones that create the most problems I think for your side in this case. So let's start by addressing those. I think some of the other issues, as you pointed out and as perhaps my questions indicated, are not as clearly in favor of the defendants in this case.

Let's start with the personal injury. Do you concede, as the defendants would have it, that there is no personal injury, no injury to the plaintiffs themselves as individuals but rather only an institutional injury here?

MR. WEISS: I have the same problem with that that four justices had in Raines, who said we really don't see this Chinese wall, if you like, between --

THE COURT: Two justices.

MR. WEISS: Well, two justices plus --

THE COURT: The majority opinion was five, but then there were two justices concurring on political question grounds.

MR. WEISS: Right. But then there were two others who dissented completely.

THE COURT: So it really was only two justices that had the fundamental problem.

MR. WEISS: They were the only two who said it. I'm assuming that the other two thought it. If you think about what the Constitution is, what members of Congress are supposed to do in representing the people and in upholding the Constitution, I understand in a narrow technical sense what the Raines majority said about the distinction between personal and official. I don't understand it in the wider political sense.

THE COURT: And that may be true of me as an individual as well. Unfortunately, sitting where I'm sitting, I have to apply the teaching and decisions of the Supreme Court, not debate them in some broader political sense. I'm bound by what the Supreme Court has decided, and you need to find a way for me, if you want to get around Raines, to distinguish this case from that case.

MR. WEISS: I thought, Your Honor, that we gave it to you in that quote which precedes the statement that we're not here deciding a situation in which there is no alternative remedy. Because if you look at the basic element of justice in a situation like that, everyone agrees that here is a crucial question which ought to be decided which has been debated on and off for at least 30 years now which has produced reams of academic literature, and now we're told to forget it; the courts after Raines will not come to your aid, and therefore the President now is in a situation where he can do whatever he pleases about treaties.

THE COURT: But if that's what Raines says, then that's what Raines says.

MR. WEISS: That's what Raines said, but not about treaties, and so when Mr. Coffin said that we're mixing treaties and laws like apples and oranges, I would say it's all fruit. It all has to do with a proper system, a proper structure of legally enforceable norms here and the norm of assigning to the President precisely the position that the framers were so concerned about when they said we are going to establish a society here without a king and therefore we have checks and balances, we have separation of powers, we have dialogue between the representatives of the people and the person sitting in the White House.

THE COURT: All right. Let's focus on what you seem to think is the key distinction between Raines and this case, and that is the absence of any readily identifiable plaintiff who could bring this case as opposed to the Raines situation where there was an identifiable plaintiff and in fact the case was brought and decided.

How do you respond to Mr. Coffin's point that as a general principle in standing law, the Supreme Court has repeatedly said that you can't create standing simply by saying that there's no one else who has standing?

MR. WEISS: I really don't know whether all of those other cases are similar on the facts to this one or whether they go to the gravity of the constitutional question.

THE COURT: They're not similar on the facts to this one, I think I'm safe in saying, but some of them are sort of the fundamental standing cases of the Supreme Court, and if the general proposition is, look, standing is not created for some particular plaintiff by virtue of the fact that there may not be any other plaintiff who can bring the suit, then that would seem to be at odds with the primary distinction that you're focusing on between this case and Raines.

MR. WEISS: Yeah. That may be, Your Honor, but that's only one of two legs of our position here. The other one is the total absence of an alternative remedy, and I heard Mr. Coffin say several times Congress has many ways of dealing with this. But what he doesn't say is there's always a footnote that says, but even if they do, it won't do them any good.

So the total absence of an alternative remedy does seem to me to take this case entirely out of the realm of situations in which members of Congress indeed have a quarrel with their fellow legislators as they did in Raines, and I'm not sure that I disagree with the holding. I'm not sure that I disagree with the holding in Raines.

I do disagree with the way it was phrased, and I think the principle emanating from Raines goes beyond what the Court was trying to do there. But still, it's there, but it is not there a hundred percent governing every single case of congressional plaintiffs coming to court.

THE COURT: Now, one of the principles articulated by the majority in Raines is -- and the Court specifically said that it wasn't sure how much reliance it was putting on this, but they pointed to the fact that the plaintiffs in that case have not been authorized by either the House or the Senate to represent the House and Senate in that suit. And that's true here as well. How important is that?

MR. WEISS: I don't think it's important. In terms of political reality, it's not important because I know it's difficult to introduce particular historical frameworks into a constitutional debate, but the President's decision to terminate the ABM treaty was taken at a time when the country, including the congress, was under the spell of 9/11 and was not likely to question anything that the President was doing in national security and foreign affairs, at least not likely until they were summoned to deal with the issue. And that is precisely what we're saying here. There has to be --

THE COURT: That's a difficult hill to climb, no pun intended, given the fact that Congress did not at any point then in the immediate aftermath of 9/11 or now take a constitutional stand on this issue. Yet you would be asking the judiciary to step in and resolve the issue even where Congress has not taken a stand in opposition to the President.

And this leads us I think inexorably to consider Goldwater, and particularly Justice Powell's view in Goldwater, which is framed in terms of ripeness, but basically is courts should not get involved in these types of questions unless there is some constitutional impasse. There was not such a constitutional impasse in Goldwater, and equally so, there's no constitutional impasse in Justice Powell's thinking in this case.

MR. WEISS: We have to look at two ways of defining impasse here. One would be where Justice Powell was talking about namely presumably a majority resolution of the Senate disagreeing with President Carter's intention to terminate the Taiwan Mutual Security Treaty. The other impasse is an impasse arising from the underlying powerlessness of Congress to deal with presidential termination.

THE COURT: That's just as true in Goldwater than it is here.

MR. WEISS: That's true, but it wasn't defined that way in the pleadings. I hope to have made, that is we, my colleagues and I, hope to have made a contribution to the analysis here.

THE COURT: I think what you're doing is -- constitutional impasse as Powell saw it and as others have seen it is really a concrete conflict between the two political branches of the government where they are at clear disagreement.

I think you're playing around both below and above that concept, below in the sense that there is some intrabranch, i.e., within Congress, dispute in terms of trying to get resolutions or Senate provisions passed and no real clarity and certainly some voting differentials there and some dispute on the issues, but that's intrabranch. That's not between branches.

And then when I said playing around above, you also have the abstract issue that you've just referred to which is the importance of this issue with respect to whether treaties can be terminated by unilateral action of the executive and the paralysis that that may mean because Congress has nothing it can really do in that content, but that's precisely the kind of abstract issue I think whether you look to Goldwater or myriad other cases that the Supreme Court thinks the federal judiciary should stay out of.

MR. WEISS: Well, the federal judiciary also has a role in constructing a framework in which the Constitution can function, and if you take Justice Powell's view literally, it means that there has to be not just ripeness in terms of a resolution here and a presidential intention there, but there has to be a full-blown constitutional crisis. And I'm not sure --

THE COURT: Impasse at least.

MR. WEISS: I would say you can't have that kind of impasse without a crisis. Anytime that the President on an important matter decides to do something and then Congress rises up in its full majesty and says you can't do it, you have a constitutional crisis.

THE COURT: Well, the problem is that this is your only hope for getting around Goldwater, because if not that, then you're going to be stuck with the plurality decision which says this issue can never be addressed by the courts.

MR. WEISS: Well, my view is I don't have to get around Goldwater, because Goldwater didn't decide anything. This goes back to the question of splintered opinions. Defendants have cited Rapa from the Third Circuit as saying in case of a splintered decision by the Supreme Court the result is binding on another case with substantially the same facts, but they haven't cited a subsequent case from this circuit, Association of Vituminous Coal Contractors versus ABFAR, which said something very different.

It said in the case of a splintered opinion, the result is binding only on the facts of that case, period. And unless there is a common denominator in which at least five justices participate, it's not binding on any other case no matter the equality of the facts.

THE COURT: Has the Supreme Court ever articulated that limiting description of his decisions?

MR. WEISS: Yes, it did.

THE COURT: In what cases?

MR. WEISS: Oh, I'm sorry. No. The Circuit did.

THE COURT: Has the Supreme Court ever said that our decisions if it's a plurality of four and a concurrence of one -- or of four, for that matter -- that there's no precedential and binding value to the case other than on precisely the same facts?

MR. WEISS: I'm not aware of any case in which the Supreme Court said that, but it seems to me to be the correct way to look at splintered decisions. So that's Goldwater, and the problem with Goldwater is that so many people thought that Goldwater put an end to the issue that we've put before this court. Last night at the airport in Washington as I was waiting to get on the shuttle, I ran into a fellow lawyer, Jill Harwood. I told her what I was about to do, and she said, oh, Goldwater decided that. That's what people believe, and that's why some clarification from this court on what Goldwater really decided or did not decide in our view is crucial.

THE COURT: Well, my clarification of that will be of no value to anyone. It's only a clarification from a higher court that will be of any value on that issue. I know my role.

MR. WEISS: Okay.

THE COURT: If I say Goldwater says X or Goldwater says Y or has this binding authority or that binding authority, it's not going to mean much unless some other judges agree with me.

MR. WEISS: Well, don't underestimate yourself, Your Honor. I think an analysis that doesn't contradict anything from a higher court would be helpful. On the political question issue, we have argued that the political question doctrine is under weighing in the Supreme Court.

Defendants have said yes, but it's still there; it hasn't been overruled. We're not here to ask you to overrule it.

We're here to say that the political question doctrine is not applicable to this case for -- I don't know how to say this without repeating myself, but if you accept that these are basically interbranch disputes, then the political question doctrine would be relevant.

If you accept our view -- did I say -- intrabranch, then it may be relevant. If you accept that it's purely an interbranch dispute between the legislative and the executive, then political question must fade into the background and yield to Justice Marshall's famous saying that it is the duty of the courts to say what the law is.

THE COURT: Let me ask you this question that I think is related to political question. If this case had been brought immediately after the notification by the President that he intended to terminate or that he was terminating the treaty before any further activity in Congress had occurred with respect to resolutions or sense of the Senate proposals, would it have been appropriate for the judiciary to step in to resolve the issue at that point? In other words, on day two, the day after the President's notification to the other treaty signatories.

MR. WEISS: Well, since I believe that it's essential for the judiciary to step in today, I can only say it would be appropriate at that time.

THE COURT: Even though Congress had not yet had the chance even to formulate its views on the issue and it would be only the particular plaintiffs, whether it be 31 members of the House or one member of the House who would be expressing his or her or their views.

MR. WEISS: That's true, but at that point the President was already on record as saying I can do this by myself.

THE COURT: Certainly on record, but as you've conceded as well, there is a give-and-take that may occur in contexts such as this, and you alluded to one, the recent resolution on Iraq, that may have occurred after that point in time of day one when this hypothetical suit was filed.

You would therefore say that that process should not even be allowed to occur, that it is proper for the courts to step in and immediately act on the issue even before the branches have had a chance to discuss and work out or not work out or reach resolution or reach impasse on the issue.

MR. WEISS: Yes, because the injury had already occurred. As Senator Daschle said in the press conference that we've placed on the record here, he said, "This is unbelievable. The Russians heard about this before we did in the Senate." So the injury was there, and therefore, it would have been appropriate for a court to step in. Ideally, if there had been a majority resolution, then certainly a court should have stepped in.

THE COURT: I would think Congress would be very concerned if the courts took the view that they should step in and take the matter out of Congress' hands, in other words, not let Congress debate and reach a position on the issue, because that's what you're saying. By saying that that case should be decided by the courts at that point, it would be precluding Congress from debating and reaching its own positions on the issue.

MR. WEISS: No. That may be a misunderstanding, Your Honor. All I'm saying is that the Court should step in to make sure that there is a debate in Congress.

THE COURT: Now, that's a role that I'm not sure you can assign to the courts to hold some sort of club over the congress to ensure that they have a debate on various issues? That would seem to me to be precisely what the Court should stay out of.

MR. WEISS: Well, I'm not talking about a remedy fashioned in quite the manner in which I just enunciated it, if I did. I'm talking about a trigger. I'm talking about the fact that when the President decides to terminate a treaty, that he is obliged to inform Congress of his intention in a formal way and ask for an up-or-down vote from either a majority of both houses or two-thirds of the Senate. And at some point it will be for a court, perhaps your court or erhaps the Supreme Court, to say which one.

Personally, it seems to me that my colleagues on this side would prefer a majority of the House because it's easier for the President to get a majority of both houses than two-thirds of the Senate.

THE COURT: Well, whatever preference either of you may have, it doesn't seem to me that it necessarily would be  where the answer lies. The answer lies in what the Constitution in the teaching of those charged with interpreting it would view as being the proper legislative, if you will, role in treaty termination.

As I said earlier, I'm having a little bit of difficulty finding the source of the majority of both houses of Congress' position, although I understand what you've identified of that source being the parallelism that the supremacy clause supplies.

MR. WEISS: Okay. If I may, Your Honor, just a final word on historical precedent. Again, I agree that as in the  case of the intent of the framers, the historical record is not totally unambiguous in treaty terminations, but as in the case of the intent of the framers, I think we have much the better side of the argument here.

THE COURT: And this returns to a question that I asked Mr. Coffin, but he focused it one way. It seems to me that historical experience is relevant on both the issues here. The merits, looking at the historical experience as to what has happened with treaty terminations, it seems to me, is of some importance.

On justiciability and all its various prongs, particularly on standing, it seems to me that it's not so much what's happened with treaty terminations; in other words, whether the President has done so unilaterally or whether it has been with consultation either with the Senate or with both the Senate and the House, that's not so important as looking at those situations and similar situations and seeing whether the parties have brought those issues to the courts and whether the courts have gotten involved in them. In other words, the historical experience in the usticiability context is: has this kind of an issue been resolved by the Article III branch. Has it been?

MR. WEISS: No. I don't believe so.

THE COURT: Isn't that the historical experience that cuts against the courts getting involved in this case?

MR. WEISS: No. I think if there had been a line of cases on treaty termination going against standing for congressional plaintiffs, that would certainly hurt us, but that's not the case.

THE COURT: That's why I don't mean to limit it strictly to treaty termination. For example, if you look at Raines, the majority opinion in looking at the historical experience did not look at experiences having to do with the veto role and the legislative role and how that all worked out, things similar in that sense to the line item veto at issue. The historical experience looked at by the majority was a historical experience having no real comparison to that issue. It was more on the nature of the tenure of office cases and whether the executive would bring those cases to the courts. So here it seems to me that the historical experience as to justiciability is not limited to treaty terminations but rather whether that kind of an issue has historically been brought to the courts for resolution. Has it been?

MR. WEISS: It depends upon what you mean by that kind of an issue.

THE COURT: Well, what has been? What do you think is a historical experience that is a good parallelism for this case where some kind of a political dispute between the two branches has been brought to the courts and the courts have resolved it?

MR. WEISS: I really can't think of one as I stand here, but remembering some of the pre-Raines cases, I don't think there was one in which we had a situation of complete powerlessness on one side and complete power on the other. I can't think of one.

THE COURT: Except for Goldwater.

MR. WEISS: Except for Goldwater, and I think that is the unique character of this case. I think I've made all of the points that I was going to make, Your Honor, but may I just end with -- I haven't quoted anything in extensa, but may I just end with this quote from the certiorari brief in Goldwater, which as you know involved a group of Republican senators. I mention that only to say that this is not a political case between Democrats and Republicans. It's a truly constitutional case.

And what they said at that time is that "The Court of Appeals, in sustaining the President's authority to exclude Congress from participation in the decision to terminate a mutual defense treaty, has made an important and unprecedented allocation of constitutional powers between the executive and legislative branches of the federal government.

"No other President has claimed such authority. No other court has ever asserted that he possesses it. The singular gravity of the question cannot be swept under the rug by attempting to restrict the scope of the opinion to this one treaty."

I would submit, Your Honor, that the singular gravity of the issue persists, and we are relying on you to deal with it. Thank you, Your Honor.

THE COURT: Thank you, Mr. Weiss. Mr. Coffin, a couple of minutes, and then Mr. Weiss, I'll give you the last word.

MR. WEISS: Excuse me, Your Honor. I'm now in the position to introduce the late plaintiff, Congressman Kucinich.

THE COURT: Welcome. I'm glad to have you here, and the use of the term "late" means you're only late in arriving. It's good to have you here.

MR. COFFIN: Your Honor, let me speak to some of the points that were raised in your discussion with my colleague.

On historical experience, I think you've done better work on this than I have, perhaps. You're right that in justiciability the analysis -- well, no. You're right in the standing analysis, the analysis is the role of the courts, the historical experience and the role of the courts. Here there's absolutely none with the exception of Goldwater where the Court said hands off.

It also bears on another justiciability question, although a slightly different analysis. The political question doctrine relies on historical experience as well, and here I think it speaks to the lack of judicially discoverable manageable standards because of the various ways in which the two branches have resolved the issue. But that's not really the role of the Court's question; it's how have the branches dealt with this issue in the past, which is also the issue that relates to the merits.

On Raines, Mr. Weiss really didn't have an answer to whether or not this was a prerogative of personal power, that is, a personal injury. Their briefs certainly do say this is an constitutional injury, and I think it's really important to note, first of all, they can't identify what sort of personal injury may be at stake, but secondly, I think he essentially admitted that at least part of Coleman doesn't apply here in response to your question about the enough votes standard.

I think that's really significant, because if they don't rely principally on Coleman, Coleman is the only case, and the Supreme Court said it -- the one case in which we've upheld legislators claiming a institutional injury is Coleman. I think the combination of the lack of personal injury, the fact that they're seeking to vindicate an institutional injury, and the fact that they can't really get around Coleman means that we're done with the analysis here.

The question that you raised at the beginning about the sense of the House or the sense of the Senate, that sort of resolution and what effect it would have, the answer that the plaintiffs have given in their briefs and today is that it might make a difference but we don't know. It's precisely the fact that it might make a difference, though, that leads to the conclusion that this court shouldn't step in.

As Mr. Weiss has noted, the President would -- I'm not speaking for what he would do in those circumstances, but he would certainly, if there were an overwhelming sense of the congress resolution passed at some time before the withdrawal was effective, he would be taking a fairly large political risk in ignoring that. And that simply illustrates the separation of powers concerns that underlie Raines in this particular situation.

I want to make clear that the plaintiff's analysis here with trying to have it both ways really conflicts standing with the merits, as Campbell said. At the standing stage we must take as correct the appellant's claim that the President violated the Constitution by not seeking in this case a joint support of both houses.

If you assume that, the fact that the plaintiffs don't actually represent both houses in this case, hadn't been authorized to bring this suit, and also haven't received the support of both houses on the underlying issue, and again the NMDA speaks otherwise on the policy issue, that would also speak to a lack of standing.

THE COURT: Your view is that even if this case were brought by a majority of the House of Representatives and a majority of the Senate, it nonetheless should not be heard by the Court.

MR. COFFIN: For all the other reasons we've said, yes, Your Honor, that's right. But certainly at the threshold, you don't even have to get to those issues, because it's not.

THE COURT: Indeed, your position I think as stated earlier this morning is that treaty termination issue can never be resolved by the courts.

MR. COFFIN: That's correct. Certainly under the political question analysis, and we would suggest that because of the availability of remedies, because this is a political issue that can be resolved in the political branches, that speaks to standing as well. But again, I don't know that you have to go that far to reach this decision because the sort of combination of Raines analysis of ripeness and Justice Powell's analysis of ripeness, the issue hasn't come to a head politically between the two political branches.

The only issue on the merits, Your Honor, is the faithful execution clause, which I didn't address earlier. The reason I didn't address, again, is it begs the question if the President doesn't have the power to terminate a treaty, then there's nothing to execute. So the provision really can't be read because of the proposition of once a law always a law; it simply means that the laws that do exist must be executed by the President. So I don't think that speaks to the merits at all. If there aren't any other questions, Your Honor --

THE COURT: All right. Thank you, Mr. Coffin. Mr. Weiss, the last word.

MR. WEISS: My last word would simply be that the Constitution is not an invitation to make decisions based on political considerations. The Constitution is there to serve the people of this country in a way in which the kind of dialogue which is essential to a vibrant democracy can take place.

And what has happened in this instance is that the dialogue has been cut and nothing is left as important an issue as treaty termination which could go to things like the NATO treaty, the chemical weapons convention issue, the biological weapons convention. Nothing is left but the President's naked power. That is the essence of this case.

THE COURT: But the fact that those are political decisions by the President, or indeed, when Congress is involved in such decisions, political decisions by the congress, is not in and of itself a reason for the judiciary, the nonpolitical branch, to get involved to try to resolve political disputes, is it?

MR. WEISS: Let me refer you to a case from this court in which actually I was co-counsel 11 years ago, Dellens v. Bush in which about the same number of members of Congress plus one senator brought before Judge Harold Green the question of the President's authority to go to war with Iraq in he Gulf. And Judge Green said it's not a political question, here's no standing problem, and the President can't do it under the war powers clause of the Constitution.

He did say it wasn't ripe, but he also -- and it became ripe subsequently in a way that made it unnecessary to go back to court because Congress, by a fairly narrow majority, gave the President the required authorization. But the important part of Dellens was that Judge Green said if Congress took a view opposite to the President's intention to go to war, and if the President did not abide by that view, it would be wholly appropriate for the courts to intervene.

THE COURT: And the only question with respect to that opinion is whether it would survive analysis under Raines and under Campbell v. Clinton.

MR. WEISS: That's what makes constitutional law interesting, Your Honor.

THE COURT: Well, those are higher courts. All right. Thank you.

MR. WEISS: Thank you.

THE COURT: Thank you, Mr. Weiss. Thank you,

Mr. Coffin, and everyone else involved. I appreciate the quality of the briefing and the argument, and I will take it under consideration and get something out as expeditiously as I can. Thank you.

(Proceedings adjourned at 12:00 p.m.)


* * * * * *


I, BRYAN A. WAYNE, Official Court Reporter, certify that the foregoing pages are a correct transcript from the record of proceedings in the above-entitled matter.




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