United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 23, 2009 Decided June 23, 2009 

 Unsealed July 9, 2009 

No. 08-3056 

IN RE: GRAND JURY SUBPOENAS

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:07mc00319) 

Before: GINSBURG and KAVANAUGH, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 

 Opinion for the Court filed by Circuit Judge GINSBURG. 

 Concurring opinion filed by Circuit Judge KAVANAUGH. 

 GINSBURG, Circuit Judge: The Ethics Committee of the 

United States House of Representatives opened an 

investigation into whether a certain congressman had violated 

House Rules by accepting private funding for a trip; the 

congressman maintained the trip was primarily for the 

purpose of legislative fact-finding. After the Committee had 

closed the matter, the Government began an investigation into 

certain statements the congressman made in his responses to 

the Committee. Grand jury subpoenas were served upon the 

law firm and upon the individual lawyers who represented the 

congressman before the Ethics Committee. The congressman 

moved to quash the subpoenas on the ground, among others, 
2

that they called for testimony and documents protected by 

Article I, Section 6, the Speech or Debate Clause, of the 

Constitution of the United States, which says of senators and 

representatives that “for any Speech or Debate in either 

House, they shall not be questioned in any other Place.” The 

district court denied the motion to quash, and the 

congressman sought review in this court. We hold the 

congressman’s statements to the Ethics Committee are 

protected by the Speech or Debate Clause. Accordingly, the 

order of the district court denying the motion to quash is 

reversed, and the district court is directed to enter an order 

consistent with this opinion. 

I. Background 

 The congressman contacted the Ethics Committee in 

response to press reports about a trip he had taken. The 

Committee informed the congressman in writing that it was 

investigating allegations that the trip may have constituted an 

illegal gift because it was financed by a lobbyist or was 

substantially recreational in nature. The Committee explained 

that “if true, this course of conduct may implicate several 

laws and rules applicable to the conduct of House 

employees,” such as the rule prohibiting the acceptance from 

a registered lobbyist of expenses for travel “in connection 

with his duties as an officeholder” and acceptance of travel 

expenses from any source for an event which is “substantially 

recreational in nature.” House Rule 25, cl. 5(b). The 

Committee invited the congressman to respond to the 

allegations and recommended his response include details 

about the trip and about his understanding as to the sources of 

payment therefor. 

 The congressman retained a law firm to represent him 

before, and to prepare and submit a response to, the Ethics 
3

Committee. His lawyers’ first submission explained that the 

congressman had “participated in what was described to him, 

in advance, as a privately sponsored fact-finding trip”; they 

also recounted his understanding of who was sponsoring the 

trip and his recollection that he paid personally for his 

recreational activities. In response to a second letter from the 

Committee, his attorneys described the congressman’s 

activities related to legislative fact-finding while on the trip. 

The Ethics Committee closed its inquiry with a brief public 

statement that “the trip did not comply with House rules and 

[the congressman] has agreed to resolve the matter by paying 

the cost of the trip to the United States Treasury.” 

 Shortly thereafter, the grand jury began its investigation 

and a government lawyer told the congressman’s attorneys 

that he and his colleagues wanted to interview the 

congressman about statements in the letters the 

congressman’s attorneys had submitted to the Committee. 

When the congressman declined to be interviewed, the 

congressman’s lawyers were served with grand jury 

subpoenas for testimony and documents related to their 

representation of the congressman before the Ethics 

Committee and their preparation of the submissions made on 

his behalf. The lawyers moved to quash on the grounds of 

attorney-client privilege and the work product doctrine. The 

congressman intervened, adopted his lawyers’ arguments, and 

moved to quash on the additional ground that the documents 

and testimony sought were protected from discovery by the 

Speech or Debate Clause. 

 The district court denied the motions to quash. With 

respect to the Speech or Debate Clause, the court reasoned 

that in responding to the Ethics Committee’s inquiry, the 

congressman was not acting in his legislative capacity but in 

his personal capacity as a witness to facts relevant to the 
4

Committee’s investigation. An adverse determination of the 

sort before us under the Speech or Debate Clause being 

immediately appealable under the collateral order doctrine, 

see United States v. Rostenkowski, 59 F.3d 1291, 1297 (D.C. 

Cir. 1995), the congressman filed a notice of appeal from that 

portion of the district court’s order rejecting his invocation of 

the Speech or Debate Clause. 

II. Analysis 

 To reiterate, the Constitution says of senators and 

representatives that “for any Speech or Debate in either 

House, they shall not be questioned in any other Place.” In 

keeping with the purpose of the privilege to “prevent 

intimidation by the executive and accountability before a 

possibly hostile judiciary,” United States v. Johnson, 383 U.S. 

169, 181 (1966), without unduly infringing “the rights of 

private individuals,” Gravel v. United States, 408 U.S. 606, 

624 n.15 (1972), the Supreme Court has interpreted the 

immunity as applying only to “legislative acts,” including 

matters that are “an integral part of the deliberative and 

communicative processes by which Members participate in 

committee and House proceedings,” id. at 624-25. 

Legislative fact-finding is therefore a protected activity. 

McSurely v. McClellan, 553 F.2d 1277, 1286-87 (D.C. Cir. 

1976). Drawing upon the reasoning of the Supreme Court in 

Gravel, which concerned “things done by [a] Senator’s agent 

or assistant which would have been legislative acts, and 

therefore privileged, if performed by the Senator personally,” 

408 U.S. at 616, the district court held a congressman may 

“assert the Speech or Debate Clause to bar compelled 

disclosure of testimony or documents from his attorney about 

the congressman’s legislative acts.” The Government does 

not contest that ruling. The Government does argue, 

however, that statements the congressman made in response 
5

to the Ethics Committee’s inquiry into whether his trip 

constituted an unlawful gift are not legislative acts and are 

therefore outside the scope of the Clause. 

 This court has considered twice before whether a 

congressman’s statements to a congressional ethics committee 

are protected by the Speech or Debate Clause. In Ray v. 

Proxmire, 581 F.2d 998 (1978), the plaintiff sued a senator 

for making an allegedly libelous statement in a letter he 

submitted to the Senate Ethics Committee, which was 

investigating whether he had misused Senate rooms to benefit 

his wife’s travel business. The senator had allegedly arranged 

for the use of Senate rooms by his wife’s clients as they 

toured Washington, D.C. The court held the statements 

protected by the Speech or Debate Clause: 

In responding to a Senate inquiry into an 

exercise of his official powers, Senator 

Proxmire was engaged in a matter central to 

the jurisdiction of the Senate .... There is no 

indication that he disseminated his letter to 

anyone whose knowledge of its contents was 

not justified by legitimate legislative needs. 

Nor is there any suggestion that the statement 

objected to intimated anything not reasonably 

spurred by the subject of [the] inquiry. 

Id. at 1000. 

United States v. Rose, 28 F.3d 181 (1994), was a civil 

action in which the Government charged a congressman with 

knowingly filing false financial disclosure statements. The 

complaint relied upon testimony Rose had given to the House 

Ethics Committee. Although the defendant’s obligation to 

disclose his financial information was based upon his status as 
6

a congressman, the court held the Speech or Debate Clause 

inapplicable because the committee was not inquiring into the 

“exercise of [his] official powers.” Id. at 189 (quoting Ray, 

581 F.2d at 1000). The court explained: 

The testimony was not addressed to a pending 

bill or to any other legislative matter; it was, 

instead, the Congressman’s defense of his 

handling of various personal financial 

transactions. In short, Congressman Rose was 

acting as a witness to facts relevant to a 

congressional investigation of his private 

conduct; he was not acting in a legislative 

capacity. 

Id. at 188 (internal citation omitted). Senator Proxmire’s 

letter, in contrast, was his “response to an allegation that [he] 

had misused Senate rooms, an allegation that directly touched 

the institution of the Senate and raised a possible violation of 

Senate Rules.” Id. at 189. 

 In the present case, the Government argues Rose rather 

than Ray controls because the congressman was responding to 

an inquiry not into the exercise of his official powers but 

merely into his “receipt of a prohibited personal gift,” a 

recreational vacation. But that begs the question whether the 

congressman was exercising his official power of legislative 

fact-finding, which was precisely the issue the Ethics 

Committee was trying to resolve. 

 The first letter the congressman received from the 

Committee had described its investigation as looking into the 

receipt of an unlawful gift — which, taken alone, might well 

have signaled an inquiry into a wholly personal transaction 

similar to that in Rose. But the nature of the inquiry was 
7

clarified when the congressman claimed the trip for which he 

had received private sponsorship was for the purpose of 

legislative fact-finding. The Committee’s inquiry thereafter 

was directed to whether the trip was an exercise of the 

congressman’s official powers or an abuse of those powers, 

i.e. a privately sponsored vacation. 

 Just as Senator Proxmire’s “allegedly defamatory 

statement” about a local travel business, Ray, 581 F.2d at 

1000, was protected by the Speech or Debate Clause because 

it was “reasonably spurred by the subject of [the] inquiry” 

into whether he had abused his office to help his wife’s travel 

business, the congressman’s statements in this case are 

protected because they were directly spurred by the inquiry 

into whether he had abused his office to obtain a vacation. 

The statements at issue in Rose, by contrast, concerned his 

“personal loans” and “personal financial transactions,” 28 

F.3d at 188; there was no connection between those 

statements and any act done or claimed to have been done in 

his legislative capacity. 

 In sum, this case is controlled by Ray rather than by Rose, 

the congressman’s testimony is covered by the Speech or 

Debate Clause, and he may “not be questioned in any other 

Place” concerning it. The order of the district court denying 

the congressman’s motion to quash the subpoenas is, 

accordingly, 

Reversed. 
 KAVANAUGH, Circuit Judge, concurring: I join the 

opinion of the Court. I add this concurring opinion to express 

my concern about the confusion that has resulted from our 

decisions in Ray v. Proxmire, 581 F.2d 998 (D.C. Cir. 1978), 

and United States v. Rose, 28 F.3d 181 (D.C. Cir. 1994). The 

disarray has prompted all of the competing parties in this case 

— the Executive Branch, the House of Representatives, and 

an individual Member of Congress — to suggest that the en 

banc Court reconsider Ray, Rose, or both. I agree that the full 

Court should do so at an appropriate time. 

The Constitution’s Speech or Debate Clause provides an 

immunity and privilege that protect communications by 

Members of Congress in official congressional proceedings. 

See U.S. CONST. art. I, § 6, cl. 1 (protecting “Speech or 

Debate in either House”). In Ray, however, the Court watered 

down the constitutional text and decided that a Member’s 

speech in a congressional disciplinary proceeding warrants 

protection only if the legislative committee is inquiring into a 

Member’s “exercise of his official powers.” 581 F.2d at 

1000. Under that approach, the Speech or Debate Clause does 

not cover a Member’s speech in a congressional disciplinary 

proceeding if the committee is investigating his or her 

“private conduct.” Rose, 28 F.3d at 188. 

In my judgment, the Ray/Rose test does not accord with 

the text of the Speech or Debate Clause and the Supreme 

Court’s precedents. A Member’s statement to a congressional 

ethics committee is speech in an official congressional 

proceeding and thus falls within the protection of the Clause. 

See Gravel v. United States, 408 U.S. 606, 625 (1972) (“The 

heart of the Clause is speech or debate in either House.”). 

The Ray/Rose test not only distorts the constitutional text, but 

also creates a host of practical and jurisprudential difficulties 

— perhaps best exemplified by the fact that Ray and Rose 

reached different results on very similar facts. The en banc 
2

Court should replace the Ray/Rose test with a rule that 

adheres to the text of the Speech or Debate Clause. 

I 

A 

Article I, Section 6 of the Constitution provides that 

“Senators and Representatives . . . shall in all Cases, except 

Treason, Felony and Breach of the Peace, be privileged from 

Arrest during their Attendance at the Session of their 

respective Houses, and in going to and returning from the 

same; and for any Speech or Debate in either House, they 

shall not be questioned in any other Place.” U.S. CONST. 

art. I, § 6, cl. 1 (emphasis added). Drawing on similar 

language from the 1689 English Bill of Rights and several 

colonial constitutions, the Constitutional Convention 

approved the Speech or Debate Clause with no apparent 

disagreement. Nor was the Clause the subject of controversy 

during the ratification period. See JOSH CHAFETZ,

DEMOCRACY’S PRIVILEGED FEW 74, 87-88 (2007); JOSEPH

STORY, 1 COMMENTARIES ON THE CONSTITUTION OF THE 

UNITED STATES § 863 (1833). As the Framers drafted it, the 

Clause helps maintain the separation of powers among the 

three Branches. See Kilbourn v. Thompson, 103 U.S. 168, 

201-02 (1880); AKHIL REED AMAR, AMERICA’S 

CONSTITUTION: A BIOGRAPHY 101-02 (2005). The Supreme 

Court has explained that the Clause assures Members of 

Congress “wide freedom of speech, debate, and deliberation 

without intimidation or threats from the Executive Branch” or 

from private citizen suits. Gravel v. United States, 408 U.S. 

606, 616 (1972). 

Article I, Section 5 of the Constitution, meanwhile, 

provides that “Each House may determine the Rules of its 
3

Proceedings, punish its Members for disorderly Behaviour, 

and, with the Concurrence of two thirds, expel a Member.” 

U.S. CONST. art. I, § 5, cl. 2 (emphasis added). This Clause 

gives both Houses broad official powers to hold investigations 

“for violations of statutory law, including crimes; for 

violations of internal congressional rules; or for . . . even 

purely private conduct by a Member that, in the House’s 

opinion, reflects badly on it as an institution.” CHAFETZ,

DEMOCRACY’S PRIVILEGED FEW, at 210 (citing Congressional 

Research Service, Expulsion, Censure, Reprimand, and Fine: 

Legislative Discipline in the House of Representatives, at 3 

(2002)) (internal quotation marks omitted). The Clause thus 

grants expansive authority for each House to discipline and 

sanction its Members for improper behavior. 

This case involves the intersection of those two clauses of 

the Constitution. Specifically, we address whether a 

Member’s communications in an official congressional 

disciplinary proceeding constitute “Speech . . . in either 

House.” U.S. CONST. art. I, § 6, cl. 1. 

In my view, the answer is straightforward. Regardless 

whether the Member’s underlying “disorderly Behaviour” is 

considered official or personal, the House or Senate’s 

disciplinary proceedings are official “Proceedings” of the 

House or Senate. And a Member’s speech in such an official 

congressional proceeding constitutes “Speech . . . in either 

House.”1

 1

 I take it as a given here that “Speech” for purposes of the 

Speech or Debate Clause — just as for purposes of the First 

Amendment — covers both oral and written communications, and 

that the Clause applies to committees in either House and not only 

to the chambers in either House. See Kilbourn, 103 U.S. at 204. 
4

Therefore, under the text of the Constitution, the speech 

at issue in both Ray v. Proxmire, 581 F.2d 998 (D.C. Cir. 

1978), and United States v. Rose, 28 F.3d 181 (D.C. Cir. 

1994), should have qualified as protected speech. Both cases 

involved an official congressional proceeding: an 

investigation by the Senate Select Committee on Standards 

and Conduct in Ray; and an inquiry by the House Committee 

on Standards of Official Conduct in Rose. Both cases 

involved a Member’s speech in the official proceeding: 

Senator Proxmire’s written communications in Ray; and 

Congressman Rose’s oral testimony in Rose. The analysis 

need have gone no further. Speech by a Member in an 

official House or Senate disciplinary proceeding qualifies as 

“Speech . . . in either House” and thus is protected by the 

Speech or Debate Clause. 

The constitutional text is similarly easy to apply here. 

This case concerns written responses submitted by a Member 

in an official disciplinary investigation conducted by the 

House Committee on Standards of Official Conduct. The 

Member’s communications constitute “Speech . . . in either 

House” and thus fall within the “heart of the Clause.” Gravel, 

408 U.S. at 625. 

This result follows not just from the constitutional text 

itself but also from principles articulated by the Supreme 

Court in its Speech or Debate Clause cases. To be sure, the 

Court has not addressed the precise issue raised in this case. 

But it has stated that the Speech or Debate Clause extends 

both to (i) “Speech or Debate in either House” — the “heart 

of the Clause,” as the Court has said, and to (ii) “matters” that 

are “an integral part of the deliberative and communicative 

processes by which Members participate in committee and 

House proceedings with respect to the consideration and 

passage or rejection of proposed legislation or with respect to 
5

other matters which the Constitution places within the 

jurisdiction of either House.” Id. at 625 (emphases added). A 

Member’s speech in an official House disciplinary proceeding 

qualifies under either prong of the Gravel test: Such a 

Member not only engages in “Speech or Debate in either 

House” but also, by definition, takes part in communicative 

processes with respect to matters which the Constitution 

places within the jurisdiction of the House.2

B 

The Ray Court went off the rails, in my judgment, by 

focusing on the subject matter of the underlying disciplinary 

proceeding — and by applying a test that grants protection 

only when the investigation concerns a Member’s official 

conduct, as opposed to his or her personal conduct. See Ray, 

581 F.2d at 1000; Rose, 28 F.3d at 188-89. The Court 

accordingly deemed Senator Proxmire’s letter privileged 

 2

 The Supreme Court has arguably extended the protections of 

the Speech or Debate Clause beyond what its plain text otherwise 

might suggest. See Gravel, 408 U.S. at 618, 625; Kilbourn, 103 

U.S. at 204. In particular, the Court has held that the Clause covers 

not just speech or debate but certain conduct as well — “legislative 

acts,” in the Court’s words. See United States v. Brewster, 408 

U.S. 501, 512 (1972) (“A legislative act has consistently been 

defined as an act generally done in Congress in relation to the 

business before it.”); Gravel, 408 U.S. at 625 (“The heart of the 

Clause is speech or debate in either House. Insofar as the Clause is 

construed to reach other matters, they must be an integral part of 

the deliberative and communicative processes by which Members 

participate . . . .”) (emphasis added). But the Court has not 

interpreted the Clause to provide less protection than the text 

establishes. In other words, the Court has never suggested that 

actual speech in an official congressional proceeding could 

somehow fall outside the protections of the Clause. In my 

judgment, however, the Ray/Rose test incorrectly does just that. 
6

because the disciplinary proceeding purportedly arose out of 

his official conduct — making Senate rooms available for use 

by his wife’s business. Later in Rose, however, the Court 

found Congressman Rose’s testimony not privileged because 

the proceeding purportedly arose out of his personal conduct 

— failing to properly report certain liabilities on his official 

financial disclosure report. 

The Court’s fine slicing of a Member’s speech in those 

two cases does not square with the text of the Constitution, 

which gives absolute protection to “any Speech” by a 

Member in an official congressional proceeding. 

Moreover, the Ray/Rose approach creates great 

uncertainty. After all, it can be quite difficult to determine 

whether an allegation of wrongdoing involves official or 

personal acts because the categories often overlap — for 

example, when a Member is alleged to have abused his or her 

official position for personal gain. Indeed, the results in Ray

and Rose are in great tension with one another; the two cases 

reached different results on very similar facts. 

The uncertainty caused by the Ray/Rose test is especially 

problematic in this context because the scope of a privilege 

must be clear and predictable for the privilege to serve its 

purpose. As the Supreme Court has said, “An uncertain 

privilege, or one which purports to be certain but results in 

widely varying applications by the courts, is little better than 

no privilege at all.” Upjohn Co. v. United States, 449 U.S. 

383, 393 (1981); see also Swidler & Berlin v. United States, 

524 U.S. 399, 409 (1998); Jaffee v. Redmond, 518 U.S. 1, 18 

(1996). Professor Tribe has persuasively explained this point 

with respect to the Speech or Debate Clause: 
7

Like any privilege, the one that the Speech or Debate 

Clause grants to members of Congress would be virtually 

worthless if courts judging its applicability had to 

scrutinize very closely the acts ostensibly shielded, 

especially if those courts then had to balance the 

considerations for and against extending privileged 

status. The reason is that any privilege whose criteria of 

applicability are fuzzy or multifactored or both offers too 

little predictability to its intended recipients for it to 

generate the confidence and repose that the privilege will 

have been adopted to provide, and sacrifices much of the 

privacy and security that the privilege was supposed to 

offer in the very process of determining its applicability 

in the particular case. 

LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-

20, at 1017 (3d ed. 2000). 

The Ray/Rose test has caused all three Branches great 

difficulty. One can hardly fault the esteemed District Judge 

or the Legislative and Executive Branch parties in this case 

for their efforts to make sense of our conflicting precedents. 

Nor can one blame the parties for asking us to resolve the 

confusion by overruling at least one of the two cases. 

Instead of continuing down the erratic path marked by the 

Ray/Rose test, the en banc Court should resolve this issue by 

looking to the text of the Speech or Debate Clause. As I read 

the Constitution and the Supreme Court’s case law, courts 

must protect, without qualification, a Member’s speech in an 

official congressional disciplinary proceeding. 
8

II 

To be sure, the above analysis of this Speech or Debate 

Clause issue raises some important questions. 

As a policy matter, the Executive Branch suggests that 

adhering to the actual text of the Clause in this context may 

thwart some criminal investigations and prosecutions — in 

particular, cases involving alleged false statements by 

Members to congressional ethics committees. That result is 

unwelcome; on the other hand, all privileges have the effect 

of impeding criminal investigations and the search for truth. 

See Swidler & Berlin v. United States, 524 U.S. 399, 406 

(1998). And it’s not as if Members would get a free pass to 

lie to congressional ethics committees. False statements can 

constitute a basis for expulsion from Congress or the lesser 

sanction of censure or reprimand (which, in turn, can augur a 

defeat at the polls). In all events, any such policy discomfort 

cannot dictate our resolution of this constitutional issue. Cf. 

Texas v. Johnson, 491 U.S. 397, 420 (1989) (Kennedy, J., 

concurring) (“The hard fact is that sometimes we must make 

decisions we do not like.”).

As a jurisprudential matter, the Executive Branch 

suggests that this kind of analysis may place too much 

emphasis on the actual words of the Speech or Debate Clause; 

it would prefer to balance the protections of the Clause 

against the interest in preventing and punishing corruption 

and false statements. But especially in separation of powers 

cases — from Marbury v. Madison to the present — the 

Supreme Court has repeatedly stressed that the precise words 

of the Constitution control and that courts must not relax the 

enduring structural protections contained in the document’s 

text. See Clinton v. New York, 524 U.S. 417, 446 (1998) 

(“Congress cannot alter the procedures set out in Article I, § 
9

7, without amending the Constitution.”); INS v. Chadha, 462 

U.S. 919, 945 (1983) (“policy arguments supporting even 

useful ‘political inventions’ are subject to the demands of the 

Constitution which defines powers and . . . sets out just how 

those powers are to be exercised”); Buckley v. Valeo, 424 U.S. 

1, 134 (1976) (practical “fears, however rational, do not by 

themselves warrant a distortion of the Framers’ work”); 

Powell v. McCormack, 395 U.S. 486, 550 (1969) (“in judging 

the qualifications of its members Congress is limited to the 

standing qualifications prescribed in the Constitution”); 

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-77 (1803) 

(carefully analyzing precise text of Article III of the 

Constitution in concluding that § 13 of Judiciary Act of 1789 

is unconstitutional and stating that “all those who have framed 

written constitutions contemplate them as forming the 

fundamental and paramount law of the nation”). 

In short, the Framers drafted and ratified the Speech or 

Debate Clause to serve as a robust shield against intimidation 

of legislators by the Executive or from private citizen suits. 

See United States v. Johnson, 383 U.S. 169, 181 (1966). In 

some respects, the Speech or Debate Clause is a counterpart 

to the executive privileges that constitute an essential part of 

the President’s “executive Power” under Article II and that 

protect the President and the Executive Branch from similar 

intimidation by the Legislature. In the context of a specific 

case, the need for evidence usually will seem weightier than 

those long-term structural safeguards. But courts must 

respect the constitutional balance between the Legislative and 

Executive Branches regardless of the perceived needs of the 

moment. 
10

* * * 

 In my judgment, the Ray/Rose test does not accord with 

the text of the Speech or Debate Clause or with the principles 

articulated by the Supreme Court in its decisions. And the 

test has created considerable confusion — leading the 

Executive Branch, the House of Representatives, and an 

individual Member of Congress to request that it be overruled. 

The test is both unwise in principle and unworkable in 

practice. Because of the importance of the Speech or Debate 

Clause to the constitutional separation of powers and to the 

operations of the Government, I respectfully suggest that, at 

an appropriate time, the en banc Court reconsider the 

Ray/Rose test and bring this aspect of our Speech or Debate 

Clause jurisprudence in line with the constitutional text. As a 

three-judge Court, we of course do not have that authority, 

and I therefore join the opinion of the Court.