DocketNumber： 89-7182
Judges： Wald, Mikva, Buckley
Filed Date： 10/26/1990
Status： Precedential
Modified Date： 11/4/2024
Opinion for the court filed by Circuit Judge BUCKLEY.
Dissenting opinion filed by Circuit Judge MIKVA.
Citizens for the Abatement of Aircraft Noise challenge the constitutionality of certain conditions attached by Congress to the transfer of two federally owned and operated airports to a regional airport authority
I. Background
A. Legislative Background
The Washington, D.C., metropolitan area is served by two major airports, Washington National and Washington Dulles International. These are owned by the Federal Government and were operated by it from the time they were opened (in 1941 and 1962, respectively) until March 1987, when they were leased to the newly formed Metropolitan Washington Airports Authority (“MWAA" or “Authority”). Their history of federal ownership and control is unique, as all other civilian airports in the country are operated by local, state, or regional authorities. Because of the importance of National and Dulles to the economic development of Northern Virginia and the District of Columbia, there have been several unsuccessful attempts over the years to transfer control of the airports to local authorities. In 1984, a commission under the chairmanship of former Virginia Governor A. Linwood Holton issued a report that provided the necessary catalyst for the relinquishment of federal control.
The Holton Commission recommended that the airports be turned over to an independent regional authority to be established by the Commonwealth of Virginia and the District of Columbia. To this end, the Virginia Assembly passed legislation authorizing the creation of the Metropolitan Washington Airports Authority. See 1985 Va. Acts ch. 598. The District of Columbia followed suit. See D.C.Law 6-67, 32 D.C.Reg. 6,093, 7,393 (1985). These acts empowered the Authority to acquire the airports by lease or otherwise, to issue bonds, carry out expansion plans, and perform other acts necessary to the task of administering the airports. Neither the Virginia nor the D.C. legislation provided for a special board with the power to veto the actions of the Authority and its governing board.
At about the same time, Congress also began work on legislation to implement the Holton Commission’s recommendations and, on April 11, 1986, the Senate approved a bill that provided for a straightforward transfer of control over the airports to the Authority. 132 Cong.Rec. 7,263-81 (1986). Subsequently, in the course of the House Subcommittee on Aviation’s consideration of the measure, its staff prepared drafts of three proposals for the establishment of a board composed of members of Congress that would have the power to review and disapprove actions taken by the new Authority.
Under the first proposal, Congress would create a “Federal Board of Review” having the power to veto Authority decisions. This board would consist of the Comptroller General plus three members appointed by the House and three by the Senate. The second proposal would require that the board be established by state law as a condition for the transfer of the airports to the Authority. Its congressional members, however, would continue to be appointed directly by their respective houses. Under the third proposal, the members would be selected by the Authority’s Board of Directors from names submitted by the congressional leadership and would serve in their individual capacities as representatives of the airports’ users.
In an advisory letter addressed to the Subcommittee Chairman, Assistant Attorney General John R. Bolton (“AAG”) expressed the view that the first approach was clearly unconstitutional, as it sought to establish a committee of Congress' vested with the authority to take legislative action — in the form of a veto — without meeting the Constitution’s Bicameralism and Presentment requirements, namely, that legislative acts be approved by both houses
While the second proposal addressed some of these concerns by having the board created by state law rather than directly by Congress, the AAG concluded that this alternative was similarly flawed because Congress, through its agents, would still be exercising direct control over the operations of the airports. Id. at 5-7. The AAG, however, found the third proposal constitutionally acceptable, although not free from doubt. He reasoned that as the members would be representing their own interests as airport users, their membership on the board would not implicate separation-of-powers concerns. Id. at 7-8. Nevertheless, his letter suggested that efforts should be made to minimize the institutional role of Congress in the board’s affairs, as the avoidance of constitutional difficulties turned on the board members’ representing only their individual interests. Id. at 8.
This third proposal was adopted with minor modifications and was signed into law as the Metropolitan Washington Airports Act of 1986. 49 U.S.C.App. §§ 2451-2461 (Supp. V 1987) (“Airports Act”). The Airports Act authorized a long-term lease of National and Dulles Airports to the Authority created by Virginia and the District of Columbia. Under its terms, however, the Authority was required to establish a board of review composed entirely of members of Congress, with the power to veto certain actions of the Authority. 49 U.S.C. App. § 2456(f).
In response to this congressional action, Virginia and the District amended their respective statutes to empower the Authority to create such a board. 1987 Va. Acts ch. 665, § 1, Sec. 5(5); D.C.Law 7-18 § 3(c)(2), 34 D.C.Reg. 3,805, 5,249 (1987). These acts, however, did not require the Authority to establish a review board, nor did they specify what its composition or powers would be in the event the Authority decided to create one. By contrast, the Airports Act not only required the Authority to establish the present Board of Review as a condition for the lease of the airports, but described its composition and powers in great detail:
The [Authority’s] board of directors shall be subject to review of its actions ... by a Board of Review of the Airports Authority. Such Board of Review shall be established by the board of directors and shall consist of the following, in their individual capacities, as representatives of users of the Metropolitan Washington Airports:
(A) two members [from each of two named House committees] from a list provided by the Speaker of the House;
(B) two members [from each of two named Senate committees] from a list provided by the President pro tempore of the Senate; and
(C) one member chosen alternately from members of the House of Representatives and members of the Senate, from a list provided by the Speaker of the House or the President pro tempore of the Senate, respectively.
49 U.S.C.App. § 2456(f)(1).
The Act required that the Board be granted the power to disapprove the following decisions of the Authority:
(i) the adoption of an annual budget;
(ii) the authorization for the issuance of bonds;
(iii) the adoption, amendment, or repeal of a regulation;
(iv) the adoption or revision of a master plan, including any proposal for land acquisition; and
(v) the appointment of the chief executive officer.
Id. § 2456(f)(4). The Act then states that in the event the Board is
*52 unable to carry out its functions under this subchapter by reason of a judicial order, the Airports Authority shall have no authority to perform any of the actions that are required by [subsection (f)(4)] to be submitted to the Board of Review.
Id. § 2456(h).
After the enactment of this legislation, the Secretary of Transportation entered into a lease with the Authority on March 2, 1987. Six months later its board of directors completed selection of the Board of Review from the lists submitted by the Speaker of the House of Representatives and the President pro tempore of the Senate. On March 13, 1988, the Authority adopted a Master Plan for the renovation of National and Dulles International Airports. On April 13, 1988, the Board of Review voted not to disapprove the Plan, which is now being implemented.
B. Procedural Background
On November 16, 1988, Citizens for the Abatement of Aircraft Noise and two of its individual members (collectively, “Citizens”) filed this lawsuit seeking declaratory and injunctive relief. They sought an order declaring that the Board of Review’s disapproval authority was unconstitutional, and an order prohibiting the Board from taking any action under the Airports Act and barring the Authority from taking any action that would have to be submitted to the Board pursuant to the Act.
Citizens argued that the Board of Review was unconstitutional on several grounds. First, they claimed, on the basis of INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), that its veto power represents “an extra-constitutional check on the execution of the law.” Citizens for the Abatement of Aircraft Noise v. Metropolitan Washington Airports Authority, 718 F.Supp. 974, 983 (D.D.C.1989) (internal quotes omitted). In Chadha, the Supreme Court struck down the provision in the Immigration and Nationality Act, 8 U.S.C. § 1254(c)(2), providing for the veto by either house of Congress of decisions of the Attorney General to allow particular deportable aliens to remain in the United States. The Court held that when Congress takes action that is legislative in character, it must meet the Bicameralism and Presentment requirements of the Constitution. See 462 U.S. at 951-59, 103 S.Ct. at 2784-88. Actions were deemed “legislative in character” if they affected the legal rights and responsibilities of persons outside the Legislative Branch. See id. at 952, 103 S.Ct. at 2784. Citizens argued that a Board veto, like the one-house veto, would be such a legislative act, and therefore, under Chadha, the Board could not constitutionally exercise such power in the absence of passage by both houses and presentation to the President.
Next, Citizens alleged that the functions of the Review Board are executive in nature, as they involve the operation of the airports. As such, the assumption of these powers by the members of Congress serving on the Board violated the doctrine of the separation of powers. 718 F.Supp. at 982. This doctrine, which is explained in Bowsher v. Synar, 478 U.S. 714, 726-27, 106 S.Ct. 3181, 3187-88, 92 L.Ed.2d 583 (1986), prohibits legislative officers from performing executive functions. Finally, according to Citizens, the executive nature of the Board’s functions means that members of Congress cannot serve thereon without violating the Incompatibility and Ineligibility Clauses. U.S. Const, art. I, § 6, cl. 2.
The MWAA questioned the justiciability of Citizens’ claims on several grounds. On the merits, it challenged the view that the members of the Board were in fact beholden to Congress. The MWAA stated that the Act made the Board a separate entity whose members, unlike the Comptroller General in Bowsher, were not removable by Congress and hence not subject to its control; that the Authority was statutorily independent of the Federal Government, 49 U.S.C.App. § 2456(b)(1); and further, that the members of the Board served “in their individual capacities, as representatives of users of the Metropolitan Washington Airports.” Id. § 2456(f)(1). The MWAA also asserted that the authority being exercised
The district court found that the claim was justiciable, but ruled for the defendants on the merits. 718 F.Supp. 974 (D.D. C.1989).
II. Discussion
A. Justiciability
As a threshold matter, we must consider whether this case is justiciable. Although the Authority has not pressed the issue on appeal, it is well established that a court of appeals must first satisfy itself of its own jurisdiction, sua sponte if necessary, before proceeding to the merits. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976).
In the district court, the Authority argued that Citizens’ claims were not ripe, that they had failed to exhaust their administrative remedies, and that they lacked standing to bring their constitutional claim. We agree with the district court that the first two issues warrant little discussion, and we find appellants’ claims ripe and not precluded by the administrative exhaustion requirement substantially for the reasons given by the court.
We have little doubt, moreover, that appellants have alleged the distinct and palpable injury required to bring an action in federal court. To claim Article III standing, “[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Appellants’ claim that they are adversely affected by noise, air pollution, and the risks of injury associated with flights in and out of National is not challenged. See 718 F.Supp. at 981. Furthermore, that harm is “fairly traceable” to the implementation of the Master Plan, which provides for a significant increase in air traffic, because only with the Board of Review in operation can the Authority carry it out. See id. Lastly, it is obvious that a favorable ruling will redress Citizens’ alleged injuries, because if the Board’s actions are invalidated, then, under the provisions of the Act, the Authority will be unable to implement the Plan and continue expansion.
Having concluded that appellants have demonstrated Article III standing for the reasons stated above, we do not address the independent basis for standing found by the district court.
B. The Merits
As an initial matter, we must address appellees’ contention that separation-of-powers principles do not apply to the Board of Review in the first instance. They argue that as the Board does not exercise federal power and is not a federal entity, federal separation-of-powers principles are inapplicable. See Appellees’ Brief at 34. Appellees imply, moreover, that even if those principles might otherwise apply, it is now accepted that Congress may use its powers under the Property Clause to create conditions on grants of federal property and thus “to achieve indirectly objectives that it is not empowered to achieve directly.” See id. at 28. We turn first to these contentions.
1. Applicability of Separation-of-Powers Principles
a. Nature of Power Exercised by Board of Review
Appellees’ first argument for the non-applicability of separation-of-powers principles rests on the claim that the Board is not a federal entity and wields no federal powers. We will find that the Board wields federal power if we determine that it is “exercising significant authority pursuant to the laws of the United States.” Buckley v. Valeo, 424 U.S. 1, 126, 96 S.Ct. 612, 685, 46 L.Ed.2d 659 (1976). Although the Supreme Court enunciated this test in determining whether members of the Federal Election Commission were officers of the United States, we find the test equally ap
The MWAA argues that because statutes of Virginia and the District of Columbia created the Authority and conferred on it the power to create the Board of Review, the latter is in fact a creature of state law. The Virginia and D.C. statutes, however, provide for none of the troublesome characteristics of the Review Board, such as a membership limited to members of Congress and the power to veto major actions of the Authority. Rather, it is the federal Airports Act that defines the Board’s character. See 49 U.S.C.App. § 2456(f). The MWAA contends, nevertheless, that the Board of Review exercises no federal power because it derives its authority from the bylaws of an independent regional entity and participates in decisionmaking functions that are common to local airport authorities throughout the country. Appellees’ Brief at 32.
We find it irrelevant that the Board may be performing a function generally discharged by local authorities in other areas. The federal power includes the power to build, own, and operate airports. If the authority exercised by the Board over the operation of National and Dulles is derived from a federal source or exercised on behalf of the federal government, then separation-of-powers principles apply irrespective of the fact that the powers at issue are similar to those enjoyed by states or localities. Moreover, even though it is true, as the Authority asserts and the district court concluded, that Virginia and the District of Columbia could have walked away from the deal offered by Congress, their acceptance of the offer does not mean that the terms attached to it cannot result in an exercise of federal power. Nor is there any significance in the fact that the federal government was acting in a proprietary capacity when it required the Authority to create the Board as a condition to the lease of the airports. Whether Congress was legislating as sovereign or proprietor, any reservation of federal authority is subject to separation-of-powers constraints. See Springer v. Government of the Philippine Islands, 211 U.S. 189, 202-03, 48 S.Ct. 480, 482-83, 72 L.Ed. 845 (1928) (whether government deals with property in sovereign or proprietary capacity, it “nevertheless acts in its governmental capacity”).
In order to secure the lease of the airports that are its sole reason for existence, the Authority had to create a board with the composition and authority dictated by the federal statute:
The board of directors shall be subject to review of its actions and to requests, in accordance with this subsection, by a Board of Review of the Airports Authority. Such Board of Review shall be established by the board of directors and shall consist of the following____
49 U.S.C.App. § 2456(f)(1) (emphasis added). It is thus clear to us that, once the deal was accepted, it is federal law that resulted in the establishment of the Board of Review with its particular composition and authority. If there were any doubt about the matter, the provision in the statute disabling the Authority from performing many of its critical functions in the event the Board of Review is invalidated by judicial order makes plain that the law functions to maintain a federally mandated presence in the operation of the airports. See 49 U.S.C.App. § 2456(h).
In this light, it is wholly unrealistic to view the Board of Review as solely a creature of state law immune to separation-of-powers scrutiny. The district court itself noted the Supreme Court’s caution that “separation-of-powers analysis does not turn on the labelling of an activity, but rather focuses on the unique aspects of the congressional plan at issue and its practical consequences.” 718 F.Supp. at 983 (quoting Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 665, 102 L.Ed.2d 714 (1989)) (internal quotes and citations omitted). The court failed to see, however, that the “practical consequences” of the current arrangement are to maintain in place by federal law a body composed exclusively of
The district court thus begs the question when it concludes that separation-of-powers principles do not apply because Congress has not accreted powers to itself at the expense of the Executive, but rather has offered the airports to the Authority subject to conditions that the Authority, not Congress, has implemented. See id. at 986. As the Board exercises oversight responsibilities as a consequence of the Airports Act, separation-of-powers principles dictate that such oversight, like any exercise of federal power, be carried out in a manner consistent with the Federal Constitution.
b. Whether Board of Review Provision Is Legitimate as Valid Exercise of Congress’s Property Clause Powers
In an argument based on the Supreme Court’s decision in South Dakota v. Dole, 483 U.S. 203, 210-11, 107 S.Ct. 2793, 2797-99, 97 L.Ed.2d 171 (1987), the MWAA maintains that the Board, as constituted and empowered, is nevertheless legitimate because it was created in the course of Congress’s lawful exercise of its extensive power under the Property Clause to dispose of federal property. Even if Congress could not constitutionally establish the Board directly, this argument runs, it has the power under the Property Clause to achieve the same result indirectly.
In South Dakota, the Court upheld a federal law directing the Secretary of Transportation to withhold five percent of otherwise allocable federal highway funds from States that did not have a minimum drinking age of at least twenty-one years. South Dakota had argued that the law violated the Twenty-first Amendment’s reservation of power over intoxicating liquors to the States. The Court ruled that even assuming that Congress lacked the authority, in light of the amendment, to legislate a national minimum drinking age directly, nonetheless its powers to spend for the “general Welfare” were broad enough to sustain the conditions. See id. at 206-09, 107 S.Ct. at 2795-97. Noting that Congress’s powers under the Property Clause, U.S. Const, art. IV, § 3, cl. 2, are as broad as those under the Spending Clause, id., art. I, § 8, cl. 1, the Authority now suggests that Congress may circumvent the limitations on its authority imposed by the separation-of-powers doctrine by placing appropriate conditions on the transfer of government property. See Appellees’ Brief at 27-28.
We believe the present case is distinguishable from South Dakota. It is well established that Congress may use its Spending Clause powers to advance policies that lie beyond the reach of its constitutional authority to legislate directly. See United States v. Butler, 297 U.S. 1, 66, 56 S.Ct. 312, 319, 80 L.Ed. 477 (1936). Thus, as the Court reasoned in South Dakota, the “independent constitutional bar” on direct congressional action is not “a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly.” 483 U.S. at 210, 107 S.Ct. at 2798. Congress may make valid use of its Spending and Property Clause powers to achieve, through economic incentives, objectives that it might not be able to mandate directly. It does not follow, however, that Congress may use the same device to circumvent the functional constraints placed on it by the Constitution.
In the former case, the States help Congress achieve objectives beyond its immediate constitutional reach by agreeing themselves to legislate in areas where they constitutionally can legislate, but Congress cannot. They do this in exchange for an economic benefit provided by Congress in the exercise of its Spending (or Property) Clause powers. In the instant case, by contrast, Virginia and the District of Columbia cannot authorize Congress to exercise functions forbidden it by the Constitution. If federal power is wielded, then that power must be wielded in a constitutional manner. Thus, we conclude, South Dakota does not remove this case from separation-of-powers scrutiny.
2. Application of Separation-of-Powers Principles to Board of Review
Having concluded that separation-of-powers principles are applicable to this
In support of their argument that the Board’s structure violates the basic requirement that Congress not perform executive functions, appellants make two claims that appear at first inconsistent. First, they argue that the Airports Act gives to a group under the control of Congress an executive function, namely, the power to oversee the Authority’s management of the airports. See Appellants’ Brief at 30. Appellants argue, at the same time, that the Act violates the Bicameralism and Presentment requirements enunciated in Chadha because it grants the Board a veto power over the Authority. See id. These claims appear inconsistent because the first assumes that the Board is performing an executive function, in violation of Bowsher, while the second assumes that the Board, in exercising its veto powers, is performing a legislative function without benefit of Bicameralism and Presentment, in violation of Chadha.
In reality these positions are not logically inconsistent but rather two sides of the same theoretical coin, by which Congress must either stay clear of executive decisions once a legislative grant of authority has been made or intervene only with new, validly enacted law. See Chadha, 462 U.S. at 954-55, 103 S.Ct. at 2785-86 (once Congress confers power on the Executive, it must “abide by its delegation of authority until that delegation is legislatively altered or revoked”). Here, there is no claim that the actions of the Board of Review would satisfy the Bicameralism and Presentment requirements enunciated in Chadha. But because we find that the operation of the Board of Review partakes of an executive function, and that the Board is in essence a congressional agent, we invalidate it under the first of appellants’ claims without expressing a view on the second.
Bowsher, we believe, is the relevant touchstone for what constitutes an executive function. In Bowsher, the Supreme Court focused on the fact that the Balanced Budget and Emergency Deficit Control Act of 1985 contemplated that the Comptroller General would exercise independent judgment and evaluations with respect to the execution of various budget-cutting measures. See 478 U.S. at 732-33, 106 S.Ct. at 3190-91. The Court determined, first, that “because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers.” Id. at 732, 106 S.Ct. at 3191. It then found the authority vested in the Comptroller General to be unconstitutional because, although an agent of Congress, he was required to exercise responsibilities of an executive nature.
In this case, the Board is given disapproval powers over the adoption of an annual budget, the authorization of the issuance of bonds, the adoption, amendment, or repeal of any regulation, the adoption or revision of a master plan for airport expansion, as well as the appointment of the MWAA’s chief executive officer. See 49 U.S.C.App. § 2456(f)(4)(B). This authority over key operational decisions is quintessentially executive.
We must now address whether the Board of Review is controlled by Congress, and again Bowsher will be our guide. The Authority argues, and the district court concluded, that although the Board was composed of members of Congress, it was nonetheless independent of Congress. See 718 F.Supp. at 984-85. In reaching that conclusion, the court cited the provision of the Airports Act which states that the members of the Board will act “in their individual capacities, as representatives of [the airports’] users,” 49 U.S.C.App. § 2456(f)(1), and found, inter alia, that Congress did not have the power to remove members of the Board of Review because the Act was silent on the matter. See id. at 983-84.
We believe the court misjudged the extent to which members of the Board must, as a practical matter, be seen as representatives of Congress rather than of the airports’ general users. Eight of the nine Board members are required by the Act to be members of the committees that have
The district court dismissed these ties between the Board and Congress by pointing to precedents for appointments being made from similarly limited lists. See 718 F.Supp. at 984 & n. 16. Specifically, the district court noted that the Supreme Court “expressed no qualms” about the fact that the Comptroller General was appointed from a list of three individuals provided by the Speaker and the President pro tempore, citing Bowsher, and that the Judicial Conference of the United States submits the names of six judges for three appointments to the United States Sentencing Commission, citing Mistretta. Id. These comparisons are unpersuasive.
First, the district court erred in its reliance on Mistretta. The portion of that case cited by the court, see id., dealt not with whether Congress had invaded the Executive’s domain by reserving to itself excessive control over the selection and removal process, but rather with the distinct question of whether the Executive’s appointment and removal authority over members of the Sentencing Commission threatened the independence of the Judiciary. See 109 S.Ct. at 673-74. Second, in neither of the examples cited by the district court did the names on the lists submitted consist of members of Congress. In the instant case, the lists contained exactly that — the names of individuals who will continue to serve as full-time members of the Senate or the House of Representatives and, in the case of all but one of them, on committees directly concerned with the formulation of congressional policies affecting commercial aviation. Given these continuing institutional ties, we are unable to conclude that the members of the Board are truly independent and that they can realistically be expected to act as representatives of users other than those with whom they work on a daily basis on Capitol Hill.
Moreover, contrary to what the district court found, Congress does have the power to remove members of the Board. The Act specifically requires that the Board “shall consist of” members of specified committees of the House and Senate. As each house has the right to remove any of its members from any committee at any time, Congress has the power to disqualify any one or more of them from further service on the Board. It could be argued, of course, that Congress would be unlikely to discipline members of the Review Board by removing them from their qualifying committees. Nevertheless, as the Supreme Court noted in Bowsher, in response to the objection that Congress was unlikely to remove the Comptroller General,
[t]he separated powers of our Government cannot be permitted to turn on judicial assessment of whether an officer exercising executive power is on good terms with Congress____ In constitutional terms, the removal powers over the Comptroller General’s office dictate that he will be subservient to Congress.
478 U.S. at 730, 106 S.Ct. at 3190.
We thus conclude that the Board of Review as currently established violates the constitutional prohibition, articulated in Bowsher, against legislative agents performing executive functions. As we invalidate the Board on these grounds, we do not reach appellants’ claims based on the Incompatibility and Ineligibility Clauses.
III. Conclusion
We have determined that Citizens’ claims are justiciable, and that the Board of Review, as currently constituted, unconstitutionally vests executive functions in an agent of Congress. The judgment of the district court is reversed and the case remanded with instructions to grant Citizens’ request for declaratory and injunctive relief. We direct, however, that actions taken by the Board to this date not be invalidated automatically on the basis of our decision. See Buckley v. Valeo, 424 U.S. at 142, 96 S.Ct. at 693 (past acts of invalid
It is so ordered.