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.