Bigger than Powell

After he was barred from taking his seat in the 90th Congress, Harlem Congressman Adam Clayton Powell naturally went to the federal courts. By so doing, he raised a rare point of constitutional law -- not merely whether Powell could or should get his seat back, but when the judicial branch of the Federal Government could or should review the conduct of the legislative branch. The decision of the U.S. Court of Appeals last week: the judiciary could review, but it shouldn't.

So fine and delicate were the questions involved that each of the three judges on the panel filed his own opinion. All, however, agreed that the court did have jurisdiction under the broad powers extended to the federal courts in "all cases arising under this Constitution." Since the seating, punishment and expulsion of a Congressman are all provided for by the Constitution, the judges thought it clear that Powell's case qualified for consideration by the courts.

But the Supreme Court has determined that the existence of jurisdiction does not require its exercise. A court sometimes has discretion not to act--particularly in controversies involving a question more properly decided by the political branch than the judicial. And the Powell case seemed to qualify as such a political question. Therefore, wrote Judge Warren E. Burger, Powell's claims "are inappropriate for judicial consideration."

Judge Burger had one final observation. Any judgment that has the effect of frustrating the House action "would inevitably bring about a direct confrontation with a co-equal branch. Conflicts between federal branches are not merely unseemly but often destructive of important values. The checks and balances we boast of can check and balance just so far. Each branch may occasionally make errors for which there may be no effective remedy," but that "is one of the prices we pay for this independence, this separateness, of each co-equal branch and for the desired supremacy of each within its sphere."

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