METROPOLITAN WASHINGTON AIRPORTS AUTHORITY, ET AL., PETITONERS V.
CITIZENS FOR THE ABATEMENT OF AIRCRAFT NOISE, INC., ET AL.

   No. 90-906

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
District Of Columbia Circuit

   Reply Brief For The United States

   In their brief, respondents attempt to ride two horses at once.
First, they argue (Br. 28-33) that the Board of Review is exercising
purely federal authority and that the constitutionality of the Board
must be determined on that basis.  But this attempt to defend the
rationale of the court of appeals is half-hearted at best;  as
suggested in our opening brief (at 30), this rationale, if accepted,
would call into question the constitutionality not only of the Board
of Review but also of the Airports Authority itself and of many other
comparable state and multi-state agencies.

   Second, respondents argue that even if the Board of Review's
authority derives from state law, the Board's constitutionality cannot
be sustained.  Br. 33-39.  But in doing so, respondents fail to accord
sufficient respect to the exercise of state authority, fail to give
adequate recognition to the unusual circumstances of this case, and
fail to explain how, in these circumstances, the vital principle of
separation of powers is threatened or undermined.

   1. Respondents make a number of incorrect assertions and arguments
about the structure of the Airports Act and about the scope of the
Airports Authority's role and powers.  First, in support of their
argument that the Board of Review exercises federal power, respondents
suggest (Br. 30) that the Airports Act "mandates" the creation of the
Board.  Yet that is precisely what the Act does not do, any more than
the Act mandates the creation of an Airports Authority or mandates the
execution of a lease of federal property to that Authority.  The clear
import of the Act is that if the legislatures of Virginia and the
District of Columbia create an Airports Authority having certain
powers, and if that Authority's actions in certain respects are
subject to review by a Board of Review having certain characteristics,
then the Secretary of Transportation may enter into a lease containing
certain provisions.  See 49 U.S.C. App. 2454-2456.  Thus, creation of
the Board of Review is a condition of the lease, just as a
state-created rule on the legal drinking age was a condition of
federal aid in South Dakota v. Dole, 483 U.S. 203 (1987).

   Second, respondents err in attempting to attach significance to
what they pejoratively characterize (e.g., Br. 14, 30) as a
"drop-dead" clause -- the provision in Section 2456(h) that, if the
Board of Review is unable to carry out its functions by reason of a
judicial order, then the actions subject to its review under the Act
may not be performed.  This is, purely and simply, a non-severability
clause, which makes explicit Congress's intention that the existence
of the Board of Review is a condition essential to the exercise of
certain powers by the Authority.  That Congress regarded the Board as
essential in this respect is of no moment in appraising the
constitutionality of the Board itself.  It goes only to the
appropriate remedy in the event that the Board is held to be
unconstitutional.  See generally Alaska Airlines, Inc. v. Brock, 480
U.S. 678, 684-686 (1987);  Champlin Refining Co. v. Corporation
Comm'n, 286 U.S. 210, 234-235 (1932).

   Third, in an effort to denigrate the power of the Authority,
respondents argue (Br. 34-37) that Congress has "de facto" power to
remove members of the Board of Review by virtue of its power to
relieve those members of their congressional committee assignments,
and that the Authority must make appointments from the initial lists
furnished to it by the Speaker of the House and President pro tempore
of the Senate.  We believe that neither of these assertions is
correct.

   With respect to the alleged "de facto" removal power, respondents
rely almost entirely on the use of the word "consist" in the
description of the Board of Review in Section 2456(f)(1).  But a
reading of the entire section leaves no doubt that the term is used in
the context of appointment, and indeed paragraph (f)(2), in describing
the terms of Board of Review members, refers to them as "Members * * *
appointed" under paragraph (f)(1) (emphasis added).  Moreover, the use
of the term "consist" in this sense is by no means unusual.  For
example, the statute on the Legal Services Corporation, 42 U.S.C.
2996c(a), refers to the Corporation's Board of Directors as
"consisting of eleven voting members appointed by the President, by
and with the advice and consent of the Senate, no more than six of
whom shall be of the same political party." Clearly there, as here,
the qualifications stated are qualifications for appointment.  Whether
one who ceases to have these qualifications is subject to removal is a
question to be considered in the first instance by the body that has
the power of removal.  And in this case, for reasons stated in our
opening brief (at 31 n.18), we believe that this removal power rests
squarely and exclusively with the Airports Authority itself.

   With respect to the Airports Authority's discretion to reject all
the candidates on an original list, or to ask for a different or
expanded list, the statute itself is silent.  The Authority has
assumed it has that power, even though it chose not to exercise it
when the original lists were submitted to it.  See J.A. 57;  see also
J.A. 34-35.  And since the power of appointment under the statute
plainly does reside in the Authority and not in Congress under Section
2456(f)(1), the most reasonable construction of the statute is that
the Authority may insist on a different or expanded list of nominees.
Moreover, as with the question of removal, any ambiguities in the
statute should be resolved in a way that minimizes or eliminates
constitutional difficulties.  See, e.g., Morrison v. Olson, 487 U.S.
654, 682 (1988).

   2. Respondents argues (Br. 28-33) that the powers of the Board of
Review are "federally retained powers." If respondents were correct
that the Board of Review is exercising federal authority, then we
would agree that the Board's existence cannot be squared with
separation of powers principles or indeed with the specific
requirements of bicameralism and presentment, the specific
requirements of the Appointment Clause, or the specific prohibitions
of the Incompatibility and Ineligibility Clauses.  See Gov't Br.
24-26.  But respondents' attempt in this part of their brief to defend
not only the result reached by the court below, but also the
majority's rationale, is half-hearted and unavailing.  As explained in
our opening brief (at 29-31), the Authority derives its powers not
from Congress but from the joint action of Virginia and the District
of Columbia.  This is not "federal" power;  it is power derived from
state and local sources to administer federally leased property
pursuant to federal consent.  Moreover, respondents never suggest, nor
do they even attempt to explain, how the Authority itself (or any
comparable state or multi-state agency) could survive constitutional
challenge if the court of appeals' rational is correct.  The
conditions imposed by Congress in the Airports Act were just as
detailed with respect to the Authority as they were with respect to
the Board of Review, if not more so.  And if the Authority is
exercising federal power as a result, presumably all of its members
except the one appointed by the President have been named to office in
violation of the Appointments Clause.  /1/

   3. Once the underbrush is cleared, the question is properly
focused:  Whether the exercise of power by joint action of Virginia
and the District of Columbia -- pursuant to which the Board of Review
was established -- passes constitutional muster.  As respondents
acknowledge (Br. 19, 28), it clearly would withstand challenge if the
Board of Review had been created by Virginia and the District of
Columbia in the absence of a federal statute.  The question of
constitutionality is posed because the requirement of a Board of
Review was included in the Airports Act as a condition of the lease.
But in arguing that the Board of Review cannot stand, respondents
seriously understate the significance of the unusual circumstances of
this case, and thus fail to give any content to the alleged threat to
separation of powers principles.

   a. Respondents assert (Br. 40) that our emphasis on the special
circumstances of this case "lack(s) any constitutional foundation."
This assertion puts the shoe on the wrong foot.  Since the case
involves the exercise of non-federal power in creating the Board of
Review, there is no basis for finding a violation of any specific
constitutional provision -- be it bicameralism, presentment,
appointments, incompatibility, or ineligibility.  Rather, the question
is a different one:  whether an arrangement of this sort, which does
not violate any specific constitutional prohibition or requirement,
offers a device whereby the Legislative Branch may breach the barriers
created by separation of powers principles.  This question necessarily
requires an examination of the circumstances.

   b. We have emphasized in our brief that in this case, several
conditions we view as necessary to constitutional validity have been
met.  Two of those conditions -- that the Board has been created by
nonfederal authority and that the creation of the Authority was not
"coerced" by Congress /2/ -- are not questioned by respondents, at
least at this point in their argument.  But respondents take issue
with the third -- that both in form and in substance Members of
Congress must serve in their capacity as individuals -- and argue that
it offers no limiting principle.  Br. 39-44.  In making this
contention, respondents misunderstand both the nature of our argument
and its application.

   The principal reason why this requirement of individual interest
must be satisfied both in form and in substance, as it was here, is
that, when the requirement is satisfied, it becomes far more difficult
to conclude that the Members are acting as delegates of Congress or
that the case involves a threat of "legislative" intrusion into the
Executive Branch.  /3/ The statute and the Authority Bylaws
contemplate that the Board of Review will represent the users of the
airports (49 U.S.C. App. 2456(f)(1);  Pet. App. 151a), and the Members
are selected as such.  J.A. 45, 47;  Pet. App. 175a.  /4/ Indeed, the
Act disqualifies from service on the Board those Members whose home
districts are so close to Washington that they are the least likely to
be frequent users.  49 U.S.C. App. 2456(f)(1).

   Respondents do not seriously rebut our argument that the
individuals who serve on the Board of Review have a special and
distinctive relationship with the airports, which supports their
capacity to serve as representatives of users.  /5/ Rather, the thrust
of respondents' argument is that such a relationship may exist in
other settings as well.  Significantly, respondents devote almost no
attention to any specific perceived evil flowing from this particular
arrangement and concentrate instead on a parade of horribles that will
purportedly arise in subsequent cases.  /6/

   Respondents' effort to minimize the distinctive nature of the
individual-capacity-and-representation-of-users characterization is
unpersuasive on its own terms.  Respondents' examples are inapposite
-- they involve, for the most part, either situations in which Members
of Congress have the same interest as members of the public (such as
telephone rates) or those in which Members have a unique interest not
shared by the general public at all (such as franking privileges).
The singular characteristic of the airports context -- which justifies
Members' service in their individual capacities and as representatives
of users -- is that, on the one hand, they use the airports to a far
greater degree than members of the general public, but, on the other
hand, they share usage of the airports with the general public.
Furthermore, and unlike the examples given by respondents, this shared
but intensive quality of the usage is a predictable and inevitable
incident of congressional service.  Indeed, as we have noted (Br. 34),
the interest of individual Members in traveling to and from
legislative sessions is the subject of explicit, constitutional
recognition and protection (Art. I, Section 6, Cl. 1), a fact ignored
by respondents and a characteristic not shared by their examples.

   In sum, respondents' efforts notwithstanding, the requirement of
service in an individual capacity is both significant in its bearing
on the case and limited in its scope.

   c. Moreover, it is important to recognize, as respondents quite
studiously do not, the novelty of this question of the interplay
between state authority and federal separation of powers principles.
/7/ In these circumstances, well-established principles of judicial
restraint warrant that the Court should proceed with caution -- that
it should avoid broad pronouncements attempting to resolve all the
cases that might ever arise and that it should focus on whether the
alleged evils actually exist in the case at hand.  /8/

   To this end, we have argued that in the present case, there exist
not only certain conditions necessary to constitutional validity but
also two additional circumstances of obvious significance:  (1) that
the statute deals not with a matter in which federal presence in both
established and expected but with an area of activity where federal
involvement is an anomaly;  and (2) that the Executive Branch has from
the beginning both supported and participated in the development and
evolution of the statutory scheme.

   Once again, respondents do not deny the existence of these factors;
 rather, they make a cryptic and unimpressive effort to denigrate
them.  Thus, on the point that federal ownership and management of
commercial airports are anomalous, respondents simply say (Br. 43-44)
that other areas of federal involvement were anomalous before the
federal government became involved in them.  But surely, the question
whether the constitutional prerogative of the Executive Branch is
threatened is a question influenced by the history and extent of
federal concern;  here, Congress and the Executive agreed that federal
management and operation of these commercial airports was both
incongruous and inappropriate.  And on the related point of Executive
Branch participation in the formulation and implementation of the
statutory scheme, respondents come up only with a non sequitur (id. at
44):  that the lack of Executive Branch objection does not deprive
this Court of the authority to decide the issue if it is properly
presented.  We agree completely (see Gov't Br. 37), but our point is a
more modest one:  courts have in the past recognized the significance
of the concurrence of the Legislative and Executive Branches on a
question involving the separation of powers between them, /9/ and this
case presents an appropriate occasion for doing so again.  /10/

                      *     *     *     *     *

   For the foregoing reasons and those set forth in our opening brief,
the judgment of the court of appeals should be reversed.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General /11/

   APRIL 1991

   /1/ Respondents rely heavily on the fact that, in their view, the
concept of the Board of Review "originated" in Congress, rather than
in Virginia or the District.  See, e.g., Br. 29.  They do not,
however, make clear whether they regard the origin of the concept as
constitutionally decisive.  If the contention is that constitutional
validity turns on who had the idea first, it is a bizarre suggestion
-- surely the constitutional analysis would not be appreciably
different if the Governor of Virginia had suggested the Board of
Review, Virginia and the District of Columbia had included it in their
original statutes, and Congress had then enacted precisely the same
Airports Act.  And, if respondents' contention is not to that effect,
their emphasis on the "origin" of the idea is entirely irrelevant.

   Respondents also suggest that the Board functions as an "agent" of
Congress.  Br. 33-37.  This assertion rests, in large part, on the
mischaracterization of appointment and removal powers (id. at 34-37),
which is discussed above.  If respondents are suggesting that Members
of Congress necessarily and automatically serve as agents of Congress
because of their status as Members of Congress (id. at 33-34), such a
contention is flatly inconsistent with the Framers' considered
decision that Members of Congress may simultaneously serve in state
offices.  See Gov't Br. 21-23.

   /2/ See South Dakota v. Dole, 483 U.S. at 211-212;  Steward Machine
Co. v. Davis, 301 U.S. 548 (1937).

   /3/ Respondents place great weight on certain statements in the
legislative history regarding the maintenance of congressional
control.  Br. 31-32, 42.  In addition to the fact that particular
remarks in the course of a floor debate should not be the basis for
invalidating a statute and that the appropriate focus should be on the
structural arrangements created by the statute itself (see Gov't Br.
34-35 n.20), respondents' account of the legislative history
selectively ignores evidence supporting the role of Members of
Congress as representatives of users.  See, e.g., 132 Cong. Rec.
32,143 (1986) (Rep. Hammerschmidt) ("A board of review composed of
Congressmen is created to protect the interests of all users of the
two airports.");  id. at 6069 (Sen. Kassebaum) ("Most Members are
intensely interested in the amount of service to and from certain
cities, from both National and Dulles.");  id. at 6070 (Sen. Danforth)
("I think any Senator who has gone through National Airport, and that
is all of us in the last week or two, recognizes that something is
seriously wrong with that airport.").

   /4/ Respondents stress that most of the members of the Board of
Review are drawn from specified committees.  Br. 34, 43.  As we
explained in our opening brief (at 35 n.20), however, if the service
of Members of Congress on the Board of Review as individual users is
otherwise valid, the requirement of committee membership is not
sufficient to invalidate that role.

   /5/ Respondents offer only the insubstantial contention that
Members of Congress may be unrepresentative because they might not
travel to the airports on public transportation, might not have their
families with them, and do have reserved congressional parking spaces.
 Br. 42.  In addition to the fact that the first two are speculative,
it cannot seriously be maintained that these characteristics are of
sufficient weight to disable Members of Congress from serving in the
individual capacity specified by the Airports Act and the Authority
By-laws.  49 U.S.C. App. 2456(f)(1);  Pet. App. 151a.  Respondents
also seek to rely on the legislative history and the requirement of
committee membership (Br. 42-43), but the fallacies of this reliance
have been discussed.  Notably, respondents attempt to suggest "a more
logical approach" for protecting user needs (id. at 42), thereby
conceding the validity of the goal itself;  whether a particular
legislative approach is simply wiser or "more logical" than another
is, of course, a question of legislative discretion rather than
constitutional command.

   /6/ Thus, in respondents' view, the airports arrangement will
provide "a blueprint" (Br. 1), "a roadmap" (id, at 19), "no limiting
principle" (id. at 20), and, again, "a blueprint" (id. at 39).

   /7/ As we explained in our opening brief (at 27 n.15), Springer v.
Philippine Islands, 277 U.S. 189 (1928), which is cited extensively by
respondets (Br. 24-25), addresses an entirely different problem -- the
allocation of authority between branches at the same level of
government.

   /8/ See, e.g., Rescue Army v. Municipal Court, 331 U.S. 549, 569
(1947) ("(C)onstitutional issues affecting legislation will not be
determined * * * in broader terms than are required by the precise
facts to which the ruling is to be applied.");  Liverpool, New York &
Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39
(1885) (this Court "is bound by two rules, to which it has rigidly
adhered, one, never to anticipate a question of constitutional law in
advance of the necessity of deciding it;  the other never to formulate
a rule of constitutional law broader than is required by the precise
facts to which it is applied").  See also Mistretta v. United States,
488 U.S. 361, 407 (1989).

   /9/ See, e.g., Nixon v. Administrator of General Services, 433 U.S.
425, 441, 449 (1977).  See also Gov't Br. 37.

   /10/ We note that respondents incorrectly state that Assistant
Attorney General Bolton's analysis of the constitutionality of the
Airports Act proposal was "(i)n order to bolster congressional support
for the administration's transfer legislation." Br. 8.  Respondents
may disagree with the Assistant Attorney General's analysis, but there
clearly is no basis for attributing ulterior motives to that analysis
(which objected to two of the three proposals submitted by Congress),
or for concluding that the analysis was anything but a serious,
considered, and principled evaluation of the constitutional validity
of the proposals.  See J.A. 25-35.

   /11/ The Solicitor General is disqualified in this case.