finding that four congressmen did not have standing to challenge the President’s use of executive order to enact a new environmental program, and stating “[i]f, as the Court held in Raines, a statute that allegedly ‘divests [congressmen] of their constitutional role’ in the legislative process, does not give standing to sue, then neither does an Ex ecutive Order that allegedly deprives congressmen of their ‘right[] to participate and vote on legislation in a manner defined by the Constitution’” (citation omitted)
How later courts described this case
- finding that four congressmen did not have standing to challenge the President’s use of executive order to enact a new environmental program, and stating “[i]f, as the Court held in Raines, a statute that allegedly ‘divests [congressmen] of their constitutional role’ in the legislative process, does not give standing to sue, then neither does an Ex ecutive Order that allegedly deprives congressmen of their ‘right[] to participate and vote on legislation in a manner defined by the Constitution’” (citation omitted)
- explaining that the plaintiffs' claim of standing was predicated on theory that by introducing a particular initiative via executive order rather than statute, the President denied them "their constitutionally guaranteed responsibility of open debate and vote on issues and legislation," thereby "diminish[ing] their power as Members of Congress," and holding that such theory did not satisfy Coleman 's vote nullification standard
- concluding members of House of Representatives did not possess standing to challenge to the President’s creation of conservation program through executive order because dispute was susceptible to political resolution in that Congress could vote to terminate program
- concluding House members lacked standing to challenge the President’s implementation of a program through executive order, in part because “[i]t is uncontested that the Congress could terminate the [program] were a sufficient number in each House so inclined”
Written by the judges who cited it.
The opinion
TATEL, Circuit Judge,
concurring in the judgment:
I agree that appellants lack standing. I think the cqurt should have reached that result, however, without exploring the extent to which Raines v. Byrd, 521 U.S. 811 , 117 S.Ct. 2312 , 138 L.Ed.2d 849 (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.1984). See Maj. Op. at 115-17.
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, stating that the legislator injury we found cognizable in those cases “is precisely the harm” that appellants allege here. Maj. Op. at 116. But unlike appellants, the legislators in Kennedy and Moore challengéd 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 voté 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 legisla *118 tion) [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 executive nonenforcement of an act as a usurpation of the legislative 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 extent, it changes nothing in United Presbyterian or the other cases where we have rejected legislator standing to raise similar “generalized grievances.” Because United Presbyterian 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 [themselves] with conclu-sory assertions,” this court normally will not address the argument). I think the court should have deferred addressing the implications of Raines until presented 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.