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the Black Hills claim could take place. This review was to
be based on the facts found by the Court of Claims after re-
viewing all the evidence, and an application of generally con-
trolling legal principles to those facts. For these reasons,
Congress was not reviewing the merits of the Court of Claims'
decisions, and did not interfere with the finality of its judg-
ments. 106/

The legislation upheld in the Sioux Nation case, however, may be distinguishable from S. 528 in several relevant particulars. First, as observed by Justice Blackmun, the Act there did not purport to resolve the outcome of the Court of Claims new review of the merits of the claim. The remedial limits imposed by the bill, on the other hand, may be outcome determinative in the sense of requiring a court to devise a new remedy utilizing less student busing than previously ordered. Secondly, Sioux Nation involved a claim against the United States and the Court found that the 1978 Act was a valid exercise of

Congress' power to condition waivers of sovereign immunity of the United States. Finally, Justice Blackmun also found that the waiver of res judicta was within Congress' power under §8 of Article I of the Constitution to provide for payment of the Nation's debts. Accordingly, it is possible that the Court would take a different view with respect to retroactive application of the busing limitations in S. 528.

Related to Klein is a principle implied by several early decisions that the Article III guarantee of an independent judiciary prevents the legislature 107/ and the executive from reviewing a judicial decision. Chief Justice Taney,

106/ 49 U.S.L.W. at 4970.

107/ E.g. Hayburns Case, 2 U.S. (2 Dallas) 408 (1792); Gordon v. United States, Appendix I, 117 U.S. 697 (1885); Muskrat v. United States, 219 U.S. 346, 354 (1911) (citing Chief Justice Taney's draft opinion as one of "great learning"). See, also Schneiderman v. United States, 320 U.S. 118, 168-9 (1943) where Rutledge, J., concurring, commented that Congress does not have authority both to confer jurisdiction and to nullify the effects of its exercise by other jurisdictional provisions in the same statute.

for instance, argued in Gordon v. United States that the award of a

remedy is an essential part of the exercise of judicial power and that

rendering a judgment and yet having the remedy subject to Congressional

108/

approval is not an exercise of Article III power. In Chicago & Southern Air109/

lines v. Waterman Steamship Corp., the Court adopted similar reasoning to deny judicial review of a presidentially reviewable order of the Civil Aeronautics Board on the ground that such dual review would violate Article III. In strong language, Justice Jackson observed that:

Judgments within the powers vested in the courts by
the Judiciary Article of the Constitution may not
lawfully be revised, overturned or refused faith
and credit by another Department of Government. 110/

Therefore, it is possible that in permitting the Supreme Court to review constitutional determinations in school desegregation cases, but denying it authority to order certain remedies, Congress may be acting beyond its

powers under Article III.

Charts Dale

Charles Dale

Legislative Attorney
American Law Division
May 7, 1981

108/ Chief Justice Taney's last judicial writing stated:

Without such an award the judgment would be inoperative
and nugatory, leaving the aggrieved party without remedy
.unless Congress should at such future time sanction
it, and pass a law authorizing the court to carry its opi-
nion into effect. Such is not the judicial power confi-
ded to this Court, in the exercise of its appellate juris-
diction; yet it is the whole power that the Court is allow-
ed to exercise under this act of Congress. 117 U.S. at 702.

109/ 333 U.S. 103 (1948).

110/ 333 U.S. at 113-114.

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LEGAL ANALYSIS OF THE HELMS AMENDMENT NO. 69, AS MODIFIED, TO S. 951,
THE 1982 DEPARTMENT OF JUSTICE AUTHORIZATIONS ACT, REGARDING
THE TRANSPORTATION OF STUDENTS

Charles Dale
Legislative Attorney
American Law Division

July 2, 1981

LEGAL ANALYSIS OF THE HELMS AMENDMENT NO. 69, AS MODIFIED, TO S. 951, THE 1982 DEPARTMENT OF JUSTICE AUTHORIZATIONS ACT, REGARDING THE TRANSPORTATION OF STUDENTS

On June 22, 1981, Senator Helms, on behalf of himself, Senator Johnston, and several of their colleagues, submitted a modification to an earlier Helms amendment, No. 69, that would prohibit the Department of Justice (DOJ) from using any funds authorized by S. 951 to "bring or maintain" actions to require student busing for school desegregation purposes. The original version of the 1/ Helms amendment included language passed by the House on June 9 and provides as follows:

No part of any sum authorized to be appropriated
by this Act shall be used by the Department of Jus-
tice to bring or maintain any sort of action to re-
quire directly or indirectly the transportation of
any student to a school other than the school which
is nearest the student's home, except for a student
requiring special education as a result of being men-
tally or physically handicapped. 2/

As modified, the Helms amendment would retain this provision and, in addition,
incorporate a new section 2.5, entitled the "Neighborhood School Act of 1981."
The language of this new section is based on a bill, S. 528, introduced earlier
2a/
this year by Senator Johnston in somewhat revised form, and would impose limits,
in terms of time and distance of travel, on the amount of student busing that

1/ See, 127 Cong. Rec. H 2796-2780 (daily ed. 6/9/81).

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2a/ See, 127 Cong. Rec. S 6644-45 (daily ed. 6/22/81)

could be ordered by the Federal courts in school desegregation cases. The legal implications of the original Helms language, noted above, are extensively ana2b/

lyzed in a related report by the American Law Division and will not be treated separately here. Accordingly, the remainder of this report will consider the

legal and constitutional implications of the revised "Neighborhood School Act

of 1981" (hereinafter referred to as NSA) contained in the modified Helms amend

ment.

Section 2.5(b) of the NSA contains a declaration of Congressional findings

to wit:

that court ordered transportation of students beyond the public school "closest to their residences" has been an "ineffective remedy" frequently resulting in an "exodus" of children and loss of community support for public school systems; that such transportation is "expensive and wasteful of scarce supplies of petroleum fuels;" and that student busing "to achieve racial balance" has been "overused" by the courts, is "educationally unsound," and actually causes racial imbalances in the schools "without constitutional or social justification." Accordingly, $2.5(b) concludes by stating that the assignment of children to their "neighborhood public school" is "the preferred method of public school attendance and should be employed to the maximum extent consistent with the Constitution of the United States."

To implement this congressional policy, $2.5(d) of the NSA would add a new

For an

2b/ The Helms amendment, as it relates to the enforcement authority of the Department of Justice, and identical language proposed by Representative Collins in the House was first adopted by both the House and Senate last year before being eliminated in conference on H. R. 7584, the Department of State, Justice, Commerce, Judiciary, and Related Agencies Appropriations bill. analysis of these measures, which is equally pertinent to the pending version, see, CRS Report, "Legal analysis of Legislative Rider to H. R. 7584, the Departments of State, Justice, Commerce, Judiciary, and Related Agencies Appropriations Bill, Regarding the Transportation of Students," by Charles Dale, December 1, 1980.

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