Chenoweth, Helen v. Clinton, William J.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 29, 1999 Decided July 2, 1999

No. 98-5095

The Honorable Helen Chenoweth,

the Honorable Bob Schaffer,

the Honorable Don Young, and

the Honorable Richard W. Pombo,

all in their official capacities,

Appellants

v.

William J. Clinton, President of the United States,

Kathleen A. McGinty, Chair of the

Council on Environmental Quality,

individually and in their official capacities,

and the United State of America,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 97cv02954)

William Perry Pendley argued the cause and filed the

briefs for appellants. Todd S. Welch entered an appearance.

Ethan G. Shenkman, Attorney, U.S. Department of Jus-

tice, argued the cause for appellees. With him on the brief

were Lois J. Schiffer, Assistant Attorney General, and Mar-

tin W. Matzen, Attorney. Jared A. Goldstein, Attorney,

entered an appearance.

Before: Edwards, Chief Judge, Ginsburg and Tatel,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Opinion concurring in the judgment filed by Circuit Judge

Tatel.

Ginsburg, Circuit Judge: Appellants Helen Chenoweth,

Bob Schaffer, Don Young, and Richard W. Pombo, all of

whom are Members of the United States House of Represen-

tatives, sued to enjoin implementation of President Clinton's

American Heritage Rivers Initiative (AHRI). They claimed

the President's creation of the program by executive order

exceeded his statutory and constitutional authority. Charac-

terizing the Representatives' claim as a "generalized griev-

ance[ ] about the conduct of government," the district court

held the plaintiffs lacked standing to sue and dismissed their

complaint. The Representatives now appeal, arguing that the

district court failed properly to apply our decisions in Kenne-

dy v. Sampson, 511 F.2d 430 (1974), and Moore v. U.S. House

of Representatives, 733 F.2d 946 (1984). In part based upon

the intervening decision in Raines v. Byrd, 521 U.S. 811

(1997), we affirm the judgment of the district court.

I. Background

The President announced his intention to create the AHRI

in his 1997 State of the Union address. Soon afterward, the

Council on Environmental Quality published a notice describ-

ing the program. Under the AHRI, it explained, federal

agencies would be called upon to provide support for local

efforts to preserve certain historically significant rivers and

riverside communities. See 62 Fed. Reg. 27,253 (May 19,

1997). In June, 1997 Representatives Chenoweth, Schaffer,

and Pombo introduced a bill "[t]o terminate further develop-

ment and implementation" of the AHRI. H.R. 1842, 105th

Congress. The bill never came to a vote. The President

formally established the AHRI by executive order in Septem-

ber, 1997. See Exec. Order 13,061, 62 Fed. Reg. 48,445.

Their legislative efforts having failed, the appellants

brought this lawsuit, claiming the AHRI violates the Anti-

Deficiency Act, 31 U.S.C. s 1301 et seq., the Federal Land

Management and Policy Act, 43 U.S.C. s 1701 et seq., the

National Environmental Policy Act, 42 U.S.C. s 4321 et seq.,

and the Commerce, Property, and Spending Clauses of, and

the Tenth Amendment to, the Constitution of the United

States. According to the complaint, the President's issuance

of the AHRI by executive order, without statutory authority

therefor, "deprived [the plaintiffs] of their constitutionally

guaranteed responsibility of open debate and vote on issues

and legislation" involving interstate commerce, federal lands,

the expenditure of federal monies, and implementation of the

NEPA. The Representatives sought a declaration that the

issuance of the AHRI was unlawful and an injunction against

its implementation.

The district court granted the President's motion to dis-

miss, concluding that the injury the Representatives claim to

have suffered--the deprivation of their right as Members of

the Congress to vote on (or, more precisely, against) the

AHRI--is "too abstract and not sufficiently specific to sup-

port a finding of standing." The Representatives then took

this appeal.

II. Analysis

The Representatives' claim of standing is predicated upon

the theory that by issuing Executive Order 13,061, the Presi-

dent denied them their proper role in the legislative process

and, consequently, diminished their power as Members of the

Congress. They rely primarily upon Moore, in which we held

that the infringement of a legislator's "right[ ] to participate

and vote on legislation in a manner defined by the Constitu-

tion" is an injury sufficiently direct and concrete to support

the legislator's standing to sue. 733 F.2d at 951. To under-

stand why their facially plausible argument is unpersuasive,

some background is necessary.

The general principle that governs our standing analysis is

firmly established: A federal court cannot, consistent with

Article III, exercise jurisdiction over a lawsuit unless the

plaintiff has suffered a "personal injury fairly traceable to the

defendant's allegedly unlawful conduct and likely to be re-

dressed by the requested relief." Allen v. Wright, 468 U.S.

737, 751 (1984). Application of the general rule to a Member

of the Congress who objects to the actions of other partici-

pants in the legislative process, however, is a subject upon

which this court has not spoken with great clarity.

Historically, political disputes between Members of the

Legislative and the Executive Branches were resolved with-

out resort to the courts. See Raines, 521 U.S. at 826-28

(describing conflicts between Congress and various Presi-

dents decided in the political arena). When Members of the

Congress first began to seek judicial relief from allegedly

illegal executive actions that impaired the exercise of their

power as legislators, however, we were initially receptive to

the idea that we had jurisdiction to hear their complaints. In

Kennedy, for instance, we found that a United States Senator

had standing to challenge the President's pocket veto of

legislation that both Houses of the Congress had approved.

The allegedly unlawful veto, we reasoned, injured the Senator

in a direct and personal way because it effected a "diminution

of congressional influence in the legislative process." 511

F.2d at 435. On the same theory, we held that a group of

Senators had standing to sue the President for depriving

them of a constitutionally-mandated opportunity to vote on

the abrogation of a treaty. See Goldwater v. Carter, 617 F.2d

697, 702 (en banc), vacated on other grounds, 444 U.S. 996

(1979).

After we decided Kennedy, however, the Supreme Court

began to place greater emphasis upon the separation of

powers concerns underlying the Article III standing require-

ment. Compare Flast v. Cohen, 392 U.S. 83, 100 (1968) ("The

question whether a particular person is a proper party to

maintain [an] action does not, by its own force, raise separa-

tion of powers problems"), with Warth v. Seldin, 422 U.S.

490, 498 (1975) (standing requirement "founded in concern

about the proper--and properly limited--role of the courts in

a democratic society"), and Allen v. Wright, 468 U.S. at 752

("[T]he law of Art. III standing is built on a single basic

idea--the idea of separation of powers"). In decisions follow-

ing Kennedy we noted that those concerns are present--

indeed, are particularly acute--when a legislator attempts to

bring an essentially political dispute into a judicial forum.

Accordingly, in Riegle v. Federal Open Market Committee,

656 F.2d 873 (1981), we dismissed the complaint of a Senator

who challenged the constitutionality of procedures by which

certain members of the FOMC were appointed; this result,

we held, was necessary in order to avoid an "obvious intrusion

by the judiciary into the legislative arena." Id. at 881. We

did not, however, disavow the standing analysis of Kennedy

and Goldwater. Instead, creating a doctrine of "circum-

scribed equitable discretion," we held that the court would

decline to hear the complaint of a Congressman who "could

obtain substantial relief from his fellow legislators" regardless

whether he had standing to sue. Id. Keeping distinct our

analysis of standing and our consideration of the separation of

powers issues raised when a legislator brings a lawsuit con-

cerning a legislative or executive act, we concluded, made

consonant two otherwise irreconcilable principles: first, that

congressional and private plaintiffs should be treated alike for

the purpose of determining their standing, and second, that

courts should refrain from interfering in disputes arising out

of the legislative process when a political remedy is available

from within that process. See id. at 877-82.

But the circle did not long stay squared. Observing that

jurisdictional issues such as standing are not of a sort usually

committed to the discretion of courts, see Moore, 733 F.2d at

962 (Scalia, J., concurring), we questioned Riegle as frequent-

ly as we applied it. See, e.g., Humphrey v. Baker, 848 F.2d

211, 214 (1988) (concerns about the doctrine of equitable

discretion "continue to trouble us"); Melcher v. Federal Open

Market Comm., 836 F.2d 561, 565 n.4 (1987) (expressing

doubt as to continuing viability of doctrine). The practical

significance of Riegle was also open to question: With one

exception, namely, Bliley v. Kelley, 23 F.3d 507, 510 (1994),

every decision in which we applied the doctrine of equitable

discretion was either reversed upon another jurisdictional

ground by the Supreme Court, see Barnes v. Kline, 759 F.2d

21 (D.C. Cir. 1985), vacated sub nom. Burke v. Barnes, 479

U.S. 361 (1987), or reached the same result that would have

obtained had we treated separation of powers concerns as

part of our inquiry into the plaintiff's standing. See, e.g.,

Moore, 733 F.2d at 956; Vander Jagt v. O'Neill, 699 F.2d

1166, 1175 (1983). In Moore, for instance, we held that

although congressmen had standing to object to the purport-

edly unconstitutional origination of a revenue-raising bill in

the Senate, the district court properly dismissed their com-

plaint under Riegle because their "rights [could] be vindicated

by congressional repeal of the [offending] statute." 733 F.2d

at 956. Our conclusion that the plaintiffs had standing to sue,

in other words, got them into court just long enough to have

their case dismissed because of the separation of powers

problems it created. Recognizing the limited impact of the

Riegle doctrine, we noted in United Presbyterian Church v.

Reagan, 738 F.2d 1375 (D.C. Cir. 1984), that "[i]t seems ...

inconvenient ... to distinguish between those legislator

claims that lack standing, and those that should be denied a

favorable exercise of remedial discretion for reasons generally

indistinguishable from those that underlie the doctrine of

standing." Id. at 1382.

So matters stood when the Supreme Court recently decided

Raines v. Byrd. The plaintiffs in that case were congress-

men who objected to the Line Item Veto Act, which gave the

President the authority to "cancel" spending provisions in an

appropriations bill without vetoing the bill in its entirety.

According to the plaintiffs, the Act injured them by "al-

ter[ing] the legal and practical effect of all votes they ... cast

on bills containing ... separately vetoable items," thus "di-

vest[ing them] of their constitutional role" in the legislative

process. 521 U.S. at 816. The district court found that the

plaintiffs had standing, citing Moore for the proposition that

an act interfering with the "constitutionally mandated process

of enacting law" imposes upon legislators an injury cognizable

under Article III. Byrd v. Raines, 956 F. Supp. 25, 31

(D.D.C. 1997).

On direct appeal, the Supreme Court reversed. The Court

characterized the plaintiffs' injury as "wholly abstract and

widely dispersed" and hence insufficient to warrant judicial

remediation. 521 U.S. at 829. The Court was apparently

unmoved by the concern we expressed in Moore that the

consideration of separation of powers issues would "distort[ ]"

our standing analysis, 733 F.3d at 954; to the contrary, it

emphasized that standing requirements are "especially rigor-

ous" when reaching the merits of a case would raise questions

about the proper scope of judicial authority. 521 U.S. at 819-

20. Having found that the plaintiffs lacked standing to sue,

the Court did not find it necessary to consider the applicabili-

ty (or the validity) of the doctrine of equitable discretion.

Against the backdrop of Raines and our own decisions

after Goldwater, the futility of the present Representatives'

claim is apparent. As the plaintiffs point out, the injury they

allegedly suffered when the President issued Executive Order

13,061--a dilution of their authority as legislators--is precise-

ly the harm we held in Moore and Kennedy to be cognizable

under Article III. It is also, however, identical to the injury

the Court in Raines deprecated as "widely dispersed" and

"abstract." If, as the Court held in Raines, a statute that

allegedly "divests [congressmen] of their constitutional role"

in the legislative process does not give them standing to sue,

521 U.S. at 816, then neither does an Executive Order that

allegedly deprives congressmen of their "right[ ] to partici-

pate and vote on legislation in a manner defined by the

Constitution." 733 F.2d at 951. Consequently, the portions

of our legislative standing cases upon which the current

plaintiffs rely are untenable in the light of Raines.

The Representatives protest that the injury alleged in

Raines was less severe than that suffered by the plaintiffs in

Moore. The votes of those Members of the Congress who

opposed the Line Item Veto Act, they observe, were given full

effect; they were simply too few to carry the day. The

plaintiffs in Moore, on the other hand, claimed to have been

entirely deprived of their constitutional right to originate a

bill intended to raise revenue. Here, similarly (per the

plaintiffs), the President denied Members of the Congress

any opportunity to vote for or against the AHRI. Not only

does Moore therefore survive Raines, urge the Representa-

tives, but the present case more closely resembles the former

than the latter.

This reasoning misperceives the theory of standing at issue

in Raines. The plaintiffs in that case did not contend, as the

Representatives imply, that their injury was the result of a

procedural defect in the passage of the Line Item Veto Act.

Rather, their view was that once the Act became law, it

"alter[ed] the constitutional balance of powers between the

Legislative and Executive Branches," to their detriment. 521

U.S. at 816. This is only a minor variation on the injury

asserted in Moore, where the beneficiary of the alleged

change in the constitutional order was the Senate rather than

the President. More to the point, it is exactly the position

taken by the Representatives here: Their injury, they say, is

the result of the President's successful effort "to usurp Con-

gressional authority by implementing a program, for which

[he] has no constitutional authority, in a manner contrary to

the Constitution." Applying Moore, this court presumably

would have found that injury sufficient to satisfy the standing

requirement; after Raines, however, we cannot.

Raines notwithstanding, Moore and Kennedy may remain

good law, in part, but not in any way that is helpful to the

plaintiff Representatives. Whatever Moore gives the Repre-

sentatives under the rubric of standing, it takes away as a

matter of equitable discretion. It is uncontested that the

Congress could terminate the AHRI were a sufficient number

in each House so inclined. Because the parties' dispute is

therefore fully susceptible to political resolution, we would,

applying Moore, dismiss the complaint to avoid "meddl[ing] in

the internal affairs of the legislative branch." 733 F.2d at

956. Applying Raines, we would reach the same conclusion.

Raines, therefore, may not overrule Moore so much as re-

quire us to merge our separation of powers and standing

analyses. In citing Moore, of course, the Representatives are

not asking us to do that; instead, they would have us simply

ignore half of that opinion.

As for Kennedy, it may survive as a peculiar application of

the narrow rule announced in Coleman v. Miller, 307 U.S. 433

(1939). The plaintiffs in Coleman were certain Kansas legis-

lators who alleged that the Lieutenant Governor of Kansas

had acted unlawfully by casting the tie-breaking vote in the

state senate in favor of a constitutional amendment. Accord-

ing to the Court, the 20 legislators who had voted against the

amendment had standing to sue because the Lieutenant

Governor's act deprived them of their "plain, direct and

adequate interest in maintaining the effectiveness of their

votes." Id. at 438.

Although Coleman could be interpreted more broadly, the

Raines Court read the case to stand only for the proposition

that "legislators whose votes would have been sufficient to

defeat (or enact) a specific legislative Act have standing to

sue if that legislative action goes into effect (or does not go

into effect) on the ground that their votes have been com-

pletely nullified." 521 U.S. at 823. Even under this narrow

interpretation, one could argue that the plaintiff in Kennedy

had standing. The pocket veto challenged in that case had

made ineffective a bill that both houses of the Congress had

approved. Because it was the President's veto--not a lack of

legislative support--that prevented the bill from becoming

law (either directly or by the Congress voting to override the

President's veto), those in the majority could plausibly de-

scribe the President's action as a complete nullification of

their votes.

In this case, however, the Representatives do not allege

that the necessary majorities in the Congress voted to block

the AHRI. Unlike the plaintiffs in Kennedy and Coleman,

therefore, they cannot claim their votes were effectively

nullified by the machinations of the Executive. Consequent-

ly, even if Kennedy is still viable after Raines, it cannot bear

the weight the Representatives would place upon it.*

III. Conclusion

The district court correctly held the plaintiff Representa-

tives lack standing to pursue this lawsuit. Their claim to

standing on the ground that the President's implementation

of the AHRI without congressional consent injured them by

diluting their authority as Members of the Congress is indis-

tinguishable from the claim to standing the Supreme Court

rejected in Raines. Nor can the Representatives claim that

their vote was nullified by the President's action. The deci-

sion of the district court is therefore

Affirmed.

* For two reasons our concurring colleague would have us decide

this case as though the Supreme Court had never decided Raines.

First he says the effect of Raines upon our prior decisions was not

briefed by the parties. However, the parties plainly joined the

issue whether Raines overrules our cases on the subject of legisla-

tive standing. See Appellees' Br. at 16 ("After the Supreme Court's

decision in Raines ... it is questionable whether a member of

Congress alleging an institutional injury can ever have Article III

standing"); Appellant's Rep. Br. at 7 (asserting "[t]here is absolute-

ly no authority" supporting the President's assertion "that Raines

overturned Moore").

Second, he says the Representatives would lack standing even

under the pre-Raines law of this circuit. This point rests upon the

implicit premise that the standing analysis in Moore and Kennedy

might have force after Raines, albeit (as he acknowledges) in

circumstances not presented here. We think it clear, however, that

our analysis in this case must account for the impact of Raines on

the prior precedent of this circuit, and further, that Raines leaves

no room for the broad theory of legislative standing that we

adopted in Moore and Kennedy.

Tatel, Circuit Judge, concurring in the judgment: I agree

that appellants lack standing. I think the court should have

reached that result, however, without exploring the extent to

which Raines v. Byrd, 117 S. Ct. 2312 (1997), limits our

decisions in Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir.

1974), and Moore v. United States House of Representatives,

733 F.2d 946 (D.C. Cir. 1981). See Maj. Op. at 7-10.

In the course of deciding that Raines essentially overrules

the theory of legislative standing recognized in Kennedy and

Moore, my colleagues read those decisions too broadly, stat-

ing that the legislator injury we found cognizable in those

cases "is precisely the harm" that appellants allege here.

Maj. Op. at 8. But unlike appellants, the legislators in

Kennedy and Moore challenged alleged constitutional defects

in the way specific pieces of legislation were passed or

defeated. See Moore, 733 F.2d at 951-53 (revenue-raising bill

allegedly originated in the Senate, not the House); Kennedy,

511 F.2d at 434-36 (allegedly unconstitutional presidential

pocket veto of legislation passed by Congress). Contrary to

appellants' claim that they have been "denied the 'right[ ] to

participate and vote on legislation in a manner defined by the

Constitution,' "Appellant's Br. at 16 (quoting Moore, 733 F.2d

at 951), they can point to no defect in any "discrete aspect of

the process by which a bill becomes law (the actual vote on

the legislation) [or] those post-enactment events denying the

bill's status as law," Harrington v. Bush, 553 F.2d 190, 211

(D.C. Cir. 1977). This case is therefore indistinguishable

from and controlled by United Presbyterian Church in the

U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984). There, as

here, a Member of Congress challenged the legality of an

executive order, claiming that it was promulgated without

congressional or constitutional authorization. See id. at 1381-

82. We held that the Member lacked standing because he

raised only " 'a generalized grievance about the conduct of

government, not a claim founded on injury to the legislator by

distortion of the process by which a bill becomes law.' " Id.

at 1382 (quoting Moore, 733 F.2d at 952); see also Daughtrey

v. Carter, 584 F.2d 1050, 1057 (D.C. Cir. 1978) (rejecting the

argument that legislators have standing to challenge execu-

tive nonenforcement of an act as a usurpation of the legisla-

tive right to enact repealing legislation); Harrington, 553

F.2d at 211 (rejecting the argument that a legislator has

standing to challenge allegedly illegal CIA activities as an

impairment of his prospective votes on related legislation).

For precisely the same reason, appellants lack standing to

challenge the American Heritage Rivers Initiative.

Although Raines limits Kennedy and Moore to some ex-

tent, it changes nothing in United Presbyterian or the other

cases where we have rejected legislator standing to raise

similar "generalized grievances." Because United Presbyte-

rian still squarely controls, it is unnecessary to reach the

difficult issue of the precise extent to which Raines limits

Kennedy and Moore, an issue not briefed in this case beyond

the conclusory assertions cited by the court. See Texas

Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685,

697-98 (D.C. Cir. 1991) (in the "absence of any substantive

briefing on the issue," where the parties "content [them-

selves] with conclusory assertions," this court normally will

not address the argument). I think the court should have

deferred addressing the implications of Raines until present-

ed with a case in which legislators assert injury involving a

discrete aspect of the process by which a specific bill has

become (or failed to become) law.