investigation touches upon senior Executive Branch officials.

Rather, the public must instead rely more heavily on its individual elected representatives to ferret out and confirm, Cr rebut, allegations or waste and abuse.

The Defendants' attempt to limit the ability of

individual Members to carry out their informing function raises serious separation of powers concerns. Although the Framers did not contemplate the modern two-party political system, they certainly recognized the dangers associated with "majority faction," and, indeed, identified protecting against that danger as the primary goal of government reform. See The Federalist No. 10 (J. Madison) ("When a majority is included in a faction, the form of popular government... enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is ther the great object of which are inquiries are directed"). It is precisely because the Framers established a government without parties that the underlying principle of separation of powers demands that individual Members not be hobbled in their information gathering capacities when one political party gains control of two branches of government. Cf. United States v. Williama, 15 F.3d 1356, 1361 (6th Cir. 1994) ("Although the principle of separation of powers flows from the structure and text of the Constitution, any attempt to limit consideration of

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separation of powers to a carrow textual interpretation is

unlikely to be satisfactory") (citing The Federalist No. 48 3. Madison)).

It is in light of the constitutional importance of Members' investigative and informing responsibilities, and the separation of powers concerns raised by the infringement of Members' ability to carry out those responsibilities, that Representative Leach's claims must be evaluated. Although Representative Leach seeks only the enforcement of existing statutory disclosure mechanisms, it is well established that

* [g]reat care must be taken in interpreting statutes to maintain due regard for the separation of powers demanded by our

Constitution."

Col. 1986).'

United States v. Pees, 645 P. Supp. 697, 704 D.

As James Madison warned, "popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both." J. Madison, 9 The Writings of James Madison 103 (Galliard Hunt ed., 1910). Only by recognizing the important role of the investigative and informing responsibilities of individual Members of Congress in our Constitutional structure and by addressing the merits of Representative Leach's statutory claims in light of that role can

Even though Representative Leach did not raise any constitutional claims in this case, it is unreasonable to attribute to Congress, as Defendants urge, an intent to disable its Members from carrying out their critical informing function.

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the established benefits of the informing function continue to se

secured to the public.

C.

The Political Question And Equitable Discretion

Doctrines Are Not Applicable To Representative Leach'
Claims.

Although Representative Leach has a profound interest in obtaining the information necessary to the discharge of his constitutional duties, the constitutional or "political" concerns underlying his claims do not render this suit nonjusticiable nor do they counsel against this Court entertaining it. Contrary to Defendants' claims (Defendants' Memorandum In Support of Motion To Dismiss Or For Summary Judgment, And In Opposition To Plaintiff's Motion For Summary Judgment ("Def. Mem.") 10-20), it is plain that this case does not present a political question problem, and that this Circuit's doctrine of remedial discretion does not call for this Court to dismiss the present suit.

Representative Leach brought this suit to vindicate his right to the documents in question pursuant to three separate statutory schemes that specifically authorize judicial review of the agency action at issue here. Indeed, Section 552 (d) of the Freedom of Information Act, 5 U.S.C. 352(d) - which instructs Executive Branch agencies not to withhold documents from Congress in reliance on FOLA's exemptions affirmatively contemplates that Members of Congress will have occasion to seek enforcement of the statute in court. Representative Leach simply seeks

judicial review of agency action, and does so pursuant to

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generally applicable statutes that authorize the courts to entertain this suit. Defendants do not contest Representative Leach's standing, and he seeks nothing more than routine judicial review of his right to obtain the information at issue under FCIA, FIRREA, and the APA.

To understand why this case does not present a political question, and does not implicate the D.C. Circuit's remedial discretion doctrine, it is important to recognize the nature of the claims at issue. Representative Leach is not seeking judicial redress for any act taken by Congress, by the House of Representatives or by any Member of Congress; and he is not complaining that the statutes which the Executive Branch agencies are acting pursuant to are unconstitutional or that the agencies' conduct is otherwise ultra vires. In short, he has not brought to this Court a grievance that was occasioned by his los8 of a legislative or political battle. Instead, Representative Leach claims, simply, that Defendants have violated the law -duly enacted, valid, and generally applicable statutes by refusing to turn over documents to which he claims he is entitled.

Because Representative Leach is not asking this Court

to referee any political dispute between Members of Congress, the political question doctrine is no obstacle to reaching the merits of his claims. See Powell v. McCormack, 395 U.S. 486, 550 (1969); Baker v. Cazz, 369 U.S. 186, 217 (1962). On the

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contrary, this Court must determine only whether FOIA, FIRREA, or the APA entitle Representative Leach to relief questions of statutory construction that are quintessentially within the

judicial province.

The text of the statutes at issue readily

provide "'judicially discoverable and manageable standards for determining whether Representative Leach is entitled to relief. Nixon v. United States, 113 S. Ct. 732, 735 (1993) (quoting Baker v. Carr, 369 U.S. at 217). And the fact that broader public policy and constitutional concerns might (and should) inform the Court's consideration of the merits of the claims at issue does not undermine the fact that this case remains one about statutory interpretation.'

Defendants argue (Mem. at 12-13) that this Court will have to interpret various House Rules, as well as H.R. Res. 394, in resolving this dispute. In fact, however, the present suit is not based on any House Rule or resolution, and is instead based on generally applicable, duly enacted statutes. It is Defendants that have invoked these internal House matters in seeking to defend their refusal to turn over the documents at issue. reliance on internal House Rules as a defense, however, hardly renders non-justiciable a properly pleaded cause of action.

Mere

In any event, the mere presence of a question of interpretation of House Rules in a case does not render it nonjusticiable. In Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994), for example, the court of appeals found justiciable the question whether it was constitutional for the House to extend to delegates from territories and the District of Columbia a limited right to vote in the House Committee of the Whole. Rather than dismiss the action on political question grounds, the court reached the merits and concluded that the House action was lawful. In the course of reaching that decision, moreover, the court of appeals was called upon to interpret the House Rules, and rejected the contention that the Constitution committed the dispute solely to congressional resolution. Ses id. at 625-632.

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