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Veto of a Bill Authorizing State Intervention in Federal Litigation.

June 10, 1940

To the House of Representatives:

I return herewith, without my approval, a bill entitled "An Act to amend the Judicial Code by adding a new section thereto, designated as section 266a, to provide for intervention by States in certain cases involving the validity of the exercise of any power by the United States, or any agency thereof, or any officer or employee thereof, and for other purposes."

This bill would enable any State to intervene in and become a party to any suit or proceeding in any court of the United States, as a matter of right, whenever the validity of any Federal action is questioned, if (1) the determination of such question should involve any conflict with the exercise of any governmental power of such State, or (2) such Federal action would impair or abridge any governmental power asserted by or exercised by such State or any agency, officer or employee thereof. In addition, it would impose on the courts of the United States, in every suit and proceeding now pending or hereafter instituted in which the validity of Federal action is questioned, the burden of ascertaining whether the determination of the question involves any conflict with the governmental power of any State and whether such Federal action would impair or abridge any governmental power asserted by or exercised by any State or any of its agencies, officers, or employees.

It was said (H. R. Rep. No. 1760, 76th Congress, 3d Session) that this bill would give the States the same right to intervene to protect the constitutionality of their statutes as is given to the United States to intervene to protect the constitutionality of acts of Congress by the Act of August 24, 1937, Ch. 754, Sec. 1 (50 Stat. 751, U.S. Code, Tit. 28, Sec. 401). However, the bill before me does not complement the 1937 Act. It does not provide for intervention by the States in cases involving the constitutionality of State statutes affecting the public interest. On the contrary, it invites the States to intervene as a matter of right to attack the exercise of any Federal power impairing or abridging any governmental power, asserted or exercised by the States or by any of their agencies, officers, or employees.

I find no justification for such broad powers of intervention by the States, particularly since the right of intervention given to the United States is limited to cases in which the constitutionality of an Act of Congress affecting the public interest is questioned.

The district courts of the United States now have discretion to permit intervention by a State in any action in which the State's claim or defense has a question of law or of fact in common with such action (Rules of Civil Procedure, Rule 24, following U.S. Code, Tit. 28, Sec. 793c). The various administrative tribunals permit intervention by States upon a showing of interest in their proceedings. The Supreme Court permits the filing of briefs by States as amici curiae as a matter of right (Revised Rules of the Supreme Court, Rule 27, paragraph 9). In my opinion, those provisions are adequate. No evidence has been presented of the inability of any State to defend the constitutionality of any of its statutes. The proposed statute would, however, subject a State's Attorney General to pressure to intervene in any case where a private litigant is opposing Federal action, on the ground that such action invades States' rights. Such exploitation of the authority of State officials for the interests of private litigants should not be encouraged.

I fear that the judicial determination of the validity of the powers of the United States or their exercise would be hampered by the proposed broader powers of intervention by the States; powers of intervention not limited to cases in which the constitutionality of State statutes is questioned. I am therefore compelled to veto the bill.

Franklin D. Roosevelt, Veto of a Bill Authorizing State Intervention in Federal Litigation. Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/209703

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