The exclusion of Congress from various Federal laws has been partially explained in terms of both policy and constitutional considerations. Obviously, the legal and policy rationale will vary depending on the particular law at issue. However, the constitutional bases most often cited for excluding Congress from the coverage of some employment and labor legislation includes the speech or debate clause immunity of Members and the separation of powers doctrine.

The speech and debate clause, art. I, sec. 6, cl. 1, protects Members from being ``questioned in any other place'' for their legislative acts. In Davis v. Passman,4 a divided Supreme Court held that an aide of a Member, discharged because the Member preferred a male for the job, had a cause of action under the due process clause of the Fifth Amendment to sue the Member for monetary damages.5 Because the lower court had not passed on the contention that the speech or debate clause precluded the suit, the Supreme Court declined to do so at that stage. The Court did hold that the speech and debate clause was the only source of immunity for Members of Congress under the separation of powers doctrine. Chief Justice Burger, dissenting along with Justices Powell and Rehnquist, argued that separation of powers in combination with the speech or debate clause, both sharing common roots, did not permit the suit to go forward.6 Justice Stewart, dissenting, thought the speech or debate clause issue was ``far from frivolous'' and would have remanded so that the court of appeals could decide.7

In two decisions, the United States Court of Appeals for the District of Columbia Circuit attempted to formulate a standard for applying the clause to congressional employment decisions. The discharge of the manager of the House of Representatives' restaurant was the issue in Walker v. Jones.8 Essentially, the court focussed its inquiry on whether the employee's duties could be viewed ``as work that significantly informs or influences the shaping of our nation's laws'' or whether an employee's duties were ``peculiar to a Congress Member's work as legislator,'' and ``intimately cognate . . . to the legislative process.''9 Under that standard, the clause did not apply to the employee. In Browning v. Clerk, U.S. House of Representatives,10 the discharge of an Official Reporter for the House of Representatives was challenged. The court held the congressional defendants to be immune under the speech or debate clause. The standard was ``whether the employee's duties were directly related to the due functioning of the legislative process.''11 If the employee's duties are ``such that they are directly assisting members of Congress in the `discharge of their functions,' personnel decisions affecting them are legislative and shielded from judicial scrutiny.''12

However, some reconsideration of this developing case law may be called for in light of Forrester v. White.13 This case unanimously held that a State court judge did not have judicial immunity in a suit for damages brought by a probation officer whom he had fired. The Court explained that in determining whether immunity attaches to a particular official action it applies a ``functional'' approach: ``Under that approach, we examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and we seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions. Officials who seek exemption from personal liability have the burden of showing that such an exemption is justified by overriding considerations of public policy . . . .''14

Thus, it is ``the nature of the function performed, not the identity of the actor who performed it, that inform[s] our immunity analysis.''15

Judges have absolute immunity from liability for the performance of judicial function.16 But when a judge acts in an administrative or legislative capacity, he enjoys no judicial immunity. In the Court's view. ``Judge White was acting in an administrative capacity when he demoted and discharged Forrester. Those acts . . . may have been quite important in providing the necessary conditions of a sound adjudicative system. The decisions at issue, however, were not themselves judicial or adjudicative.''17 Employment decisions, like many others, ``are often crucial to the efficient operation of public institutions,'' yet they are not entitled to absolute immunity ``even though they may be essential to the very functioning of the courts . . . .''18

Forrester v. White was, of course, not a case governed by the speech or debate clause; it was brought under 42 U.S. Code 1983, which affords persons who have been denied their constitutional rights under color of State law a cause of action against State and local defendants. Nonetheless, the Court has adverted to speech or debate principles when passing on questions of legislative immunity in 1983 action, emphasizing that the clause is one aspect of the common law principle of legislative freedom of speech.19 The Court has said ``we generally have equated the legislative immunity to which state legislators are entitled under 1983 to that accorded Congressmen under the Constitution.''20

If Forrester v. White hinges on the question of congressional immunity for labor or employment decisions, it strongly suggests that Members of Congress may have no immunity. The Forrester principle was applied by the D.C. Circuit in Gross v. Winter,21 a case involving legislative immunity in a suit filed against a member of the D.C. City Council. However, the court in Gross declined to address the question of whether special considerations applicable to Members of Congress might warrant the continuing application of the Browning standard, a matter left equally obscure in Forrester.22 It is also uncertain whether Congress could, by statute, waive any speech or debate immunity that may pertain to personnel actions by a Member.23

The other constitutional concern, separation of powers, arises since administrative enforcement of Federal EEO and labor laws is generally vested in executive agencies. Allowing an executive agency to enforce these laws against Members of Congress might, in some situations, violate the Court's separation of powers standards by ``disrupt[ing] the proper balance between the coordinate branches by prevent[ing]. . . [Congress] from accomplishing its constitutionally assigned functions.''24


4 442 U.S. 228 (1979).
5 In Bivens v. Six Unknown Named Agents of the Bureau of Narcotics, 403 U.S. 388 (1971), the Court held that a person, alleging violation of his fourth amendment search and seizure protection, in the absence of a statutory remedial cause of action, could sue individual officers for damages under an implied cause of action premised directly upon the constitutional provision in question. Davis v. Passman extended the ruling, by basing the implication of a cause of action upon the fifth amendment's due process clause, which contains an equal protection component when the Federal Government or one of its agents is the actor.
6 442 U.S. at 249.
7 Ibid. at 251. The case was settled after the Supreme Court remanded it for further proceedings, and no speech or debate clause resolution was reached.
8 733 F.2d 923 (D.C. Cir.), cert. denied, 469 U.S. 1036 (1984).
9 Ibid. at 931.
10 1A 789 F.2d 923 (D.C. Cir.), cert. denied, 479 U.S. 996 (1986).
11 Ibid. at 929 (emphasis in original).
12 Ibid.
13 108 S.Ct. 538 (1988).
14 Ibid. at 542.
15 Ibid. at 545.
16 See Stump v. Sparkman, 435 U.S. 349 (1978).
17 108 S.Ct. at 545.
18 Ibid. at 544-45.
19 e.g., Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 732 (1980).
20 Ibid. at 733.
21 76 F.2d 165 (D.C. Cir. 1989).
22 At one point, the Forrester Court observed that its ``functional'' approach is followed in all cases save for those that are governed ``by express constitutional or statutory enactment'' (108 S.Ct. at 542). Paramount of the express constitutional provisions, it then noted, is the legislative immunity created by the speech and debate clause. ``Even here, however, the Court has been careful not to extend the scope of the protection further than its purposes require'' (Ibid.) The Court then refers to Davis v. Passman, supra, for its holding that except for speech and debate clause immunity, a Member of Congress may be liable for his or her employment decisions. But when, later in the opinion, the Court observed that, no less than a judge's ability to hire and fire employees as bearing on his ability to carry out his judicial functions is the similar ability of executive branch officials to hire and fire, the Court made no reference to employment decisions by legislators, and executive officials have no such immunity as the judge was claiming (Ibid. at 545).
23 cf., United States v. Helstoski, 442 U.S. 477, 492 (1979).
24 e.g., Morrison v. Olson, 487 U.S. 654 (1988).

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