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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Pocket Veto
(4 of 5)
Box: 36
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
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57a
But the transformation this court has wrought in
its own powers necessarily runs much farther than
that. If Congress, its Houses, or its members can
sue the President for a declaration of abstract legal
right, it must follow that the President may, by the
same token, sue Congress. For example, Presidents
at least since Franklin Roosevelt have objected to the
device known as the congressional veto on the grounds
of its unconstitutionality. Had they understood our
constitutional system as this court now understands
it, these Presidents need not have waited for a pri-
vate person to raise the issue in INS V. Chadha, 103
S. Ct. 2764 (1983), to obtain a declaration of the un-
constitutionality of that device, but could have sued
Congress at any time. This court may become a
potent supplement to the checks and balances the
Constitution provides. Under the majority's reason-
ing, whenever the President vetoes a bill that, in his
judgment, requires him to execute an unconstitu-
tional law or invades his legitimate constitutional
than a generalized grievance, while the pocket veto would be
treated as occasioning an injury "to the members' rights to
participate and vote on legislation in a manner defined by the
Constitution." 733 F.2d at 951. The grounds for this differ-
ence in treatment are that a legislator has "a right and a
duty to participate" in the process by which a bill becomes
law. Id. at 952. That may be, but the legislator whose vote
is nullified by a pocket veto has exercised his right and ful-
filled his duty-it is the impairment of his lawmaking power
that, on this court's analysis, gives him standing to sue. Since
that impairment occurs whenever a President fails to enforce
the law as Congress intended it, enforcement challenges must
be heard if this court's rationale is to be fairly applied. Thus,
this court's view of standing, applied in a principled fashion,
would move the obligation to "take Care that the Laws be
faithfully executed" out of article II of the Constitution and
divide it between articles I and III.
58a
powers and Congress overrides his veto, the Presi-
dent may sue before the ink is dry for a judicial
declaration of unconstitutionality. We will become
not only a party of the legislative process but perhaps
the most important part.
Indeed, if unlawful interference with one's official
powers is enough to confer standing I do not know
why members of the judiciary should not join in the
game, with the added advantage, of course, that
one federal judge's lawsuit claiming a right to pow-
ers denied would be heard and decided by other fed-
eral judges. Thus, when Congress limited the habeas
corpus jurisdiction of the District Court for the Dis-
trict of Columbia, there is no reason, under the
majority's rationale, why a district court judge, or
a judge of this court who had lost appellate jurisdic-
tion, should not have sued Congress and the Presi-
dent for a declaration of unconstitutionality. In this
court he would, apparently, have won, see Pressley V.
Swain, 515 F.2d 1290 (D.C. Cir. 1975) (en banc) ;
Palmore V. Superior Court of the District of Colum-
bla, 515 F.2d 1294 (D.C. Cir. 1975) (en banc),
though he would not have succeeded in the Supreme
Court, see Swain V. Pressley, 430 U.S. 372 (1977).
Intra-branch disputes also must succumb to this
court's plenary interpretation of its own powers. See,
e.g., Vander Jagt, 699 F.2d 1166. Individual legisla-
tors now have standing to sue each other, the Houses
of Congress, other bodies composed of legislators,
such as committees and caucuses, and SO on. Virtu-
ally every internal rule, custom, or practice by which
the internal operations of Congress are regulated is
reviewable at the discretion of this court at the
behest of disgruntled legislators. That means, for
example, that the opponents of a filibuster have
59a
standing to sue for an injunction directing the fili-
buster to cease. Legislators who were not selected to
serve on the committees of their choice have stand-
ing to challenge the manner in which the selection
process was conducted. Indeed, this court has so held.
Vander Jagt, 699 F.2d at 1170. No matter how
intrusive the relief sought, this court has jurisdiction
SO long as the legislator can show some relationship
between the congressional behavior he challenges and
his own influence and effectiveness as a legislator.
Congress, in short, is subject to judicial oversight to
whatever degree this court, exercising its newly-
invented powers of equitable discretion, decides super-
vision is warranted, or, as one of our cases puts it,
not "startlingly unattractive." Vander Jagt, 699 F.2d
at 1176 (quoting Davids V. Akers, 549 F.2d 120, 123
(9th Cir. 1977) ) It appears that our constitutional
jurisdiction now rests less upon law than upon
aesthetic judgments.
The same reasoning, of course, applies to disputes
within the Executive and Judicial Branches. The
head of an agency who believes that another agency
has improperly encroached on an area confided to
his administration by statute or regulation no longer
need bring the dispute before the President, for the
courts stand ready to resolve it.⁴ Beyond that, a
cabinet officer aggrieved by an Executive Order or
any other exercise of presidential power, one which
arguably requires him to violate an act of Congress,
can proceed to challenge the offending directive in
federal court, where declaratory judgment and in-
4 The majority clearly believes that Chapman V. FPC, 345
U.S. 153 (1953), establishes that this is already the law, but
as shown infra at pp. 47-51, that case does not at all have the
import the majority ascribes to it.
60a
junctive relief are available to set the President
right. Presumably, a district judge whose jurisdic-
tion had been limited by a court of appeals decision
could seek rehearing en banc or petition the Supreme
Court for a writ of certiorari. According to this
court's rationale, I should be able to petition the
Supreme Court for a writ of certiorari or of man-
damus to overturn the result in this case because it
unconstitutionally alters my duties and powers as
an article III judge.⁵
Nor must it be forgotten that the Constitution con-
templates areas of authority for the states, areas in
which the national government is not to impinge.
Should Congress enact a law that arguably is beyond
its powers and that has an impact upon citizens of
the several states, it would seem, under this court's
reasoning, that members of a state legislature, whose
jurisdiction had been ousted, would have standing to
sue the national executive to enjoin enforcement of
that law. Certainly the State itself would have
standing. States, after all, have constitutional func-
tions and powers as surely as Congress does.
Enough has been said perhaps to indicate the
breathtaking transformation of the judicial function,
the relationships between the branches of the na-
tional government, and the relationships between fed-
5 Lest this be regarded as fantasy or burlesque, it should
be noted that this very sort of litigation within the judicial
branch is being attempted. See In re Robson and Will, petition
for mandamus or in the alternative for cert. filed, 58 U.S.L.W.
3552 (U.S. Feb. 5, 1985) (No. 84-1127) (United States Dis-
strict Judges seeking relief against Court of Appeals on
grounds that Court of Appeals improperly substituted its dis-
cretion for that of the District Court, and exceeded its au-
thority by ordering a remedy that is contrary to law). The
possibilities seem boundless.
61a
eral and state governments that waits at the end of
the road upon which this court has set its foot. It
is clear from the cases that even this first step is
illegitimate.
II.
It is easily demonstrated from several different
lines of cases that the doctrine of congressional
standing is ruled out by binding Supreme Court prec-
edent. These lines of authority will be examined
separately, and I will then suggest that they are but
facets of the same set of considerations.
A.
It has been noted already that the rationale upon
which the majority accords standing to members of
Congress and the Senate in this case would equally
permit suits by states to challenge federal laws or
actions that seem to impinge upon their sovereignty.
But this result, of course, contravenes Massachusetts
V. Mellon, 262 U.S. 447 (1923), and does SO in a
way that shows both the impropriety of the doctrine
of governmental standing and the impropriety of that
doctrine even if confined, illogically, to suits by con-
gressmen.
In Massachusetts V. Mellon, the Commonwealth of
Massachusetts brought an original action in the Su-
preme Court against various federal officials to en-
join, as unconstitutional, enforcement of the Mater-
nity Act. 262 U.S. at 478. The statute provided ap-
propriations to be apportioned among states that
would comply with the law's provisions for the pur-
pose of federal-state cooperation to reduce maternal
and infant mortality and protect the health of moth-
ers and infants. Id. at 479. Massachusetts, in an
argument exactly parallel to that the majority ad-
62a
vances here, claimed that the Maternity Act was a
usurpation of power not granted to Congress, but
reserved to the States, by the Constitution. The
State asserted standing because its "rights and pow-
ers as a sovereign State
[had] been invaded." Id.
The Supreme Court responded that
in SO far as the case depends upon the assertion
of a right on the part of the State to sue in its
own behalf we are without jurisdiction. In that
aspect of the case we are called upon to adjudi-
cate, not rights of person or property, not rights
of dominion over physical domain, not quasi-
sovereign rights actually invaded or threatened,
but abstract questions of political power, of sov-
ereignty, of government.
[T]his Court is
without authority to pass abstract opinions
upon the constitutionality of acts of Congress
Id. at 484-85.
In the present case we are asked to pass an ab-
stract opinion upon the constitutionality of an act
of the President. Unlike the Supreme Court, the
majority here complies with that request. But, if
Massachusetts V. Mellon is right, the majority is
wrong. If, on the other hand, the majority is right,
its rationale would, as already noted, lead to the over-
ruling of Massachusetts V. Mellon, not merely in its
general approach, but on the specific situation pre-
sented there: all states would have standing to chal-
lenge any action by any branch of the federal govern-
ment even though nothing more concrete than dis-
agreement about constitutional powers was at stake.
Since this court is not empowered to overrule Massa-
63a
chusetts V. Mellon,ᶜ I think the reasoning of that
case requires a conclusion that there is no standing
here.
6
The majority claims that Massachusetts V. Mellon is "in
no respect
contrary" to the majority's position. Maj.
op. at 11 n.14. But the majority then proceeds to explain that
case and cases that came afterward, such as National League
of Cities V. Usery, 426 U.S. 833 (1976), overruled on other
grounds, Garcia V. San Antonio Metropolitan Transit Author-
ity, 53 U.S.L.W. 4135 (U.S. Feb. 19, 1985) (Nos. 82-1913 &
82-1951), in a way that shows Massachusetts V. Mellon to be
contrary to its position in every respect. Thus, the majority
quotes a passage from that decision pointing out that Massa-
chusetts complained of federal usurpation of the reserved
powers of the states "by the mere enactment of the statute,
though nothing has been done and nothing is to be done with-
out their consent." Maj. op. at 11 n.14 (quoting 262 U.S. at
483). The majority concludes its discussion with the state-
ment that "Massachusetts V. Mellon did not establish that
governmental officials and entities necessarily and always
lack standing to raise claims of infringement of lawful func-
tions. Rather, the case explicitly leaves open the possibility
of suit by a state when "rights of the State falling within the
scope of the judicial power' are at stake, a possibility later to
become an actuality in, e.g., National League of Cities." Maj.
op. at 11 n.14. That neatly expresses my point, not the ma-
jority's. The difference between Massachusetts V. Mellon and
National League of Cities is that in the former only an in-
jury to governmental powers was alleged while in the latter
states and cities were required by federal statute to expend
money. See National League of Cities, 426 U.S. at 846-47.
That was the concrete injury in fact that conferred standing.
The case now before us alleges only a usurpation of govern-
mental powers and hence, on the teaching of the two Supreme
Court decisions cited, is outside our jurisdiction. In short,
Massachusetts V. Mellon is to National League of Cities as the
present case is to the Pocket Veto Case.
64a
B.
The Supreme Court's decisions about suits over
"generalized grievances" are closely related to Mas-
sachusetts V. Mellon and require the same result here.
The merits of the dispute offered us turn upon the
interpretation of article I, section 7, clause 2 of the
Constitution. That is a task for which courts are
suited, and I would have no hesitation in reaching
and deciding the substantive question if this were a
suit by a private party who had a direct stake in the
outcome. The Pocket Veto Case, 279 U.S. 655 (1929),
was, of course, just such a suit.' This action, how-
T In The Pocket Veto Case, Congress passed a bill authoriz-
ing certain Indian tribes to present their claims against the
United States to the Court of Claims. 279 U.S. at 672. The
bill was presented to the President less than ten days before
an intersession adjournment, id.; the President neither signed
the bill nor returned it to the originating house, and the bill
was not published as a law. Id. at 673. The Indian tribes took
the position that the bill became law, and filed a petition in
the Court of Claims raising various claims in accordance with
the terms of the bill. The United States defended on the
ground that the bill had not become law under article I, section
7, and the Court of Claims dismissed the petition for that
reason. Id. The Supreme Court allowed a member of the
House Committee on the Judiciary to appear as an amicus, but
there was no suggestion that any legislator had standing to
sue. Id.
Wright V. United States, 302 U.S. 583 (1938), followed the
same format. Congress passed a bill giving the Court of
Claims jurisdiction to adjudicate Wright's claim against the
United States. 302 U.S. at 586. The United States opposed
Wright's petition, arguing that the bill had never become
law, and the Court of Claims agreed. Id. Moreover, the same
pattern is evident in the other Supreme Court cases that have
interpreted the presentation clause. Edwards V. United States,
286 U.S. 482 (1932), involved a private bill giving the Court
of Claims jurisdiction to adjudicate Edwards' claim against
65a
ever, is not. This is an action by representatives of
people who themselves have no concrete interest in
the outcome but only a "generalized grievance" about
an allegedly unconstitutional operation of govern-
ment. It is well settled that citizens, whose interest
is here asserted derivatively, would have no standing
to maintain this action.⁸ That being so, it is impos-
the United States; the Court of Claims certified to the Su-
preme Court the question whether the bill became law, given
that it had been signed by the President after a final adjourn-
ment but within ten days of presentation. Id. at 485. La Abra
Silver Mining Co. V. United States, 175 U.S. 423 (1899), dif-
fers only in that there Congress passed a bill authorizing the
Attorney General to bring suit in the Court of Claims to de-
termine whether an award made by a United States Commis-
sion to La Abra had been obtained by fraud. 175 U.S. at 441.
Consequently, in La Abra the private party, rather than the
government, raised the defense that the bill had not be-
come law, because signed by the President during a congres-
sional recess. Id. at 446, 451. These cases provide no support
for conferring standing to raise presentation clause issues on
congressional plaintiffs.
8 It is also well settled that the states would not have stand-
ing to assert such generalized grievances on behalf of their
citizens. Massachusetts V. Mellon also holds that a State, as
parens patriae, may not "institute judicial proceedings to pro-
tect citizens of the United States from the operation of the
statutes thereof," because "it is no part of its duty or power
to enforce their rights in respect of their relations with the
Federal Government." 262 U.S. at 485-86. The Supreme Court
recently reaffirmed that holding in Alfred L. Snapp & Son,
Inc. V. Puerto Rico, 458 U.S. 592, 610 n.16 (1982), while in-
dicating that a state would have standing as parens patriae
to "secure the federally created interests of its residents
against private defendants." Id. This illustrates, rather
dramatically one would think, that what is a sufficient injury
in fact when asserted against a private defendant may, for
reasons of separation of powers and federalism, be deemed
66a
sible that these representatives should have standing
that their constituents lack.
The Supreme Court has repeatedly rejected the
proposition that one who sues as a citizen or tax-
payer, alleging nothing more than that the govern-
ment is acting unconstitutionally, has standing to
sue. A naked claim that a constitutional violation
has occurred, the Court has said, "would adversely
affect only the generalized interest of all citizens in
constitutional governance, and that is an abstract
insufficient to confer standing against a branch of the federal
government. It is precisely these reasons of separation of
powers and federalism that compel the parallel conclusion that
injury to governmental powers does not constitute an injury
in fact or a judicially cognizable injury, as the Supreme Court
has elaborated those terms in connection with the article III
standing requirements.
Lest this point be misunderstood, I emphasize that I do not
read either Mellon or Snapp as holding that the prohibition
on state parens patriae suits against the federal government
is in all cases a constitutional limitation rather than a pru-
dential one. In my view, that prohibition is a constitutional
requirement where, as in Mellon, individuals within the state
would lack standing to sue because they have suffered no in-
jury that is judicially cognizable under article III. To permit
Congress to confer standing on a state in such a case would be
to authorize evasion of the constitutional standing require-
ments by allowing the state as a representative of its citizens
to sue when those who are represented could not. But where
private individuals could satisfy the injury in fact require-
ment of article III, there is no threat to separation of powers
or to federalism in allowing Congress to confer parens patriae
standing on the state as the representative of persons who
have suffered a concrete injury and would themselves have
standing. Consequently, in this second category of cases the
rule is prudential and, although fully binding on the courts
until Congress acts, may be eliminated by congressional en-
actments.
67a
injury." Schlessinger V. Reservists Committee To
Stop the War, 418 U.S. 208, 217 (1974). See United
States V. Richardson, 418 U.S. 166 (1974) ; Laird V.
Tatum, 408 U.S. 1 (1972) ; Ex parte Levitt, 302
U.S. 633 (1937). This is true even though "citizens
are the ultimate beneficiaries of those [constitu-
tional] provisions," Reservists, 418 U.S. at 227. Tax-
payers face the same bar. In Frothingham V. Mellon,
262 U.S. 447, 486 (1923), the Court denied standing
to a federal taxpayer who alleged that a spending
bill was unconstitutional. Despite the fact that such
bills may have the effect of taking money from the
individual taxpayer and putting it to a purpose the
Constitution interdicts, the general rule is still that
the taxpayer lacks standing because he "suffers in
some indefinite way in common with people gen-
erally." Id. at 488. See Valley Forge Christian Col-
lege V. Americans United for Separation of Church
& State, 454 U.S. 464, 476-81 (1982). Thus, these
legislators lack standing in their individual, as op-
posed to their representative, capacities. The major-
ity appears to concede that, insisting only upon rep-
resentative standing.
Yet, the legislators on whom this court has be-
stowed standing have alleged only two things-an
unconstitutional act and an impairment of their con-
stitutional powers as a result of that act. It is clear
that the citizens and taxpayers these legislators rep-
resent would not have standing if they alleged that
the same unconstitutional act had impaired the offi-
cial powers of their representatives. That would be
true despite the fact that citizens and taxpayers are
the "ultimate beneficiaries" of the constitutional
powers their representatives possess. Indeed, that
was precisely the argument that was rejected in
Reservists, where the plaintiffs alleged that they, as
68a
citizens and taxpayers, had been deprived "of the
faithful discharge by members of Congress
of
their duties as members of Congress, to which all
citizens and taxpayers are entitled." 418 U.S. at 212
(quoting Petition for Certiorari at 46).
If the people of the United States would not have
standing to bring this action (and it is undeniable
that they would not), then how can the representa-
tive of the people have standing that their constitu-
ents do not? The only possible answer is that elected
representatives have a separate private right, akin to
a property interest, in the powers of their offices.
But that is a notion alien to the concept of a repub-
lican form of government. It has always been the
theory, and it is more than a metaphor, that a demo-
cratic representative holds his office in trust, that he
is nothing more nor less than a fiduciary of the peo-
ple. Indeed, as I show in Part III below, the Framers
of the Constitution most certainly did not intend to
allow suits such as this, which means they did not
conceive of the powers of elected representatives as
apart from the powers of the electorate. It is for
that reason that Judge Scalia was entirely correct in
stating that "no officers of the United States, of
whatever Branch, exercise their governmental pow-
ers as personal prerogatives in which they have a
judicially cognizable private interest. They wield
those powers not as private citizens but only through
the public office which they hold." Moore, 733 F.2d
at 959 (Scalia, J., concurring).
Justice Frankfurter's separate opinion in Cole-
man V. Miller, 307 U.S. 433, 460 (1939), made the
same point on behalf of himself and Justices Black,
Roberts, and Douglas:
69a
We can only adjudicate an issue as to which
there is a claimant before us who has a special,
individualized stake in it. One who is merely
the self-constituted spokesman of a constitutional
point of view can not ask us to pass on it. The
Kansas legislators [who challenged the state's
ratification of an amendment to the United
States Constitution] could not bring suit explic-
itly. on behalf of the people of the United States
to determine whether Kansas could still vote for
the Child Labor Amendment. They can not gain
standing here by having brought such a suit in
their own names.
Id. at 467. He said that injuries to voting procedures
"pertain to legislators not as individuals but as po-
litical representatives executing the legislative proc-
ess." Id. at 470. The Court majority did not dis-
agree with this SO far as suits in federal courts were
concerned, but found an interest sufficient to confer
standing only because the suit came from a state
court that had found standing under state law. Id.
at 446. Justice Frankfurter's analysis thus remains
fully applicable to the action before us now.
This court now necessarily adopts as a premise to
its reasoning that legislators, and other members of
government, have a private individual stake in their
official powers that is separate from their fiduciary
role. If not, it is utterly anomalous to allow the rep-
resentative to sue when those he represents may not.
One might as well drop the pretense, allow not only
legislators but citizens and taxpayers to sue, and de-
clare Richardson, Reservists, and Frothingham over-
ruled and Justice Frankfurter's Coleman analysis
rejected. Though the majority does not declare it,
70a
that is what it has effectively accomplished for this
circuit with the doctrine of congressional standing.
C.
The Supreme Court last Term handed down a de-
cision that makes clear both the foundations of stand-
ing doctrine and the utter incompatibility of those
foundations with this court's congressional-standing
superstructure. In Allen V. Wright, 104 S. Ct. 3315
(1984), Justice O'Connor, writing for the Court ma-
jority, restated fundamentals to which we should
revert every time an expansion of standing is con-
templated.
Article III of the Constitution confines the
federal courts to adjudicating actual "cases" and
"controversies." As the Court explained in Val-
ley Forge Christian College V. Americans United
for Separation of Church and State, Inc., 454
U.S. 464, 471-476 (1982), the "case or contro-
versy" requirement defines with respect to the
Judicial Branch the idea of separation of pow-
ers on which the Federal Government is founded.
The several doctrines that have grown up to
elaborate that requirement are "founded in con-
cern about the proper-and properly limited—
role of the courts in a democratic society."
Warth V. Seldin, 422 U.S. 490, 498 (1975).
Id. at 3324. She specified the foundations of the doc-
trine: "the law of Art. III standing is built on a
single basic idea-the idea of separation of powers."
Id. at 3325. Moreover,
the standing inquiry must be answered by refer-
ence to the Art. III notion that federal courts
may exercise power only "in the last resort, and
71a
as a necessity," Chicago & Grand Trunk R. Co.
V. Wellman, 143 U.S. 339, 345 (1892), and only
when adjudication is "consistent with a system
of separated powers and [the dispute is one]
traditionally thought to be capable of resolution
through the judicial process," Flast V. Cohen,
392 U.S. 83, 97 (1968). See Valley Forge, 454
U.S., at 472-473.
Id. The concept of congressional standing, born in
this circuit and relied upon by the majority today, is
inconsistent with every one of the criteria laid down
in this passage from Allen V. Wright.
This may be seen by contrasting two opposing con-
ceptions of the role of the federal courts in our pol-
ity. The first, and more traditional, view is that
federal courts sit to adjudicate disputes between liti-
gants; the power of the courts derives entirely from
the necessity to apply the law to concrete controver-
sies. Judges interpret the Constitution and apply it
only out of necessity, and as a last resort, because the
Constitution is law and may not be ignored by a
court of law. In the course of adjudication, the court
may have to declare a statute enacted by Congress
unconstitutional or it may have to make the same
declaration concerning an act of the President. That
is an awesome power, but it is confined, limited, and
tamed because it is exercised only when the need to
decide a concrete controversy makes it inevitable. It
is "merely the incidental effect of what Marbury V.
Madison took to be the judges' proper business-
'solely, to decide on the rights of individuals.'
Scalia, The Doctrine of Standing as an Essential Ele-
ment of the Separation of Powers, 17 Suffolk U.L.
Rev. 881, 884 (1983) (footnote omitted). This view
72a
of the powers of the federal judiciary is the one re-
iterated by the Supreme Court in Allen V. Wright.
Tocqueville understood the genius that underlay
this definition of the judicial role:
[B]y leaving it to private interest to censure the
law, and by intimately uniting the trial of the
law with the trial of an individual, legislation is
protected from wanton assaults and from the
daily aggressions of party spirit. The errors of
the legislator are exposed only to meet a real
want; and it is always a positive and appreci-
able fact that must serve as the basis of a
prosecution.
[T]he American judge is brought into the polit-
ical arena independently on his own will. He
judges the law only because he is obliged to
judge a case.
It is true that, upon this sys-
tem, the judicial censorship of the courts of jus-
tice over the legislature cannot extend to all laws
indiscriminately, inasmuch as some of them can
never give rise to that species of contest which is
termed a lawsuit.
The Americans have often
felt this inconvenience; but they have left the
remedy incomplete, lest they should give it an
efficacy that might in some cases prove danger-
ous.
1 A. De Tocqueville, Democracy In America 106-07
(T. Bradley ed. 1945).
The competing view, which this court adopted with
the congressional standing doctrine, is that "the busi-
ness of the federal courts is correcting constitutional
errors, and that 'cases and controversies' are at best
convenient vehicles for doing SO and at worst nui-
73a
sances that may be dispensed with when they become
obstacles to that transcedent endeavor." Valley
Forge, 454 U.S. at 489. The Valley Forge Court
could not have been clearer in rejecting this position:
"This philosophy has no place in our constitutional
scheme." Id. Yet, by means of its invention of stand-
ing for officials or branches of government to seek
the continual arbitration of this court in their legal
disputes with one another, this court has adopted,
as the law of this circuit, the philosophy decisively
rejected in Valley Forge and Allen V. Wright.
9 The majority insists that Allen V. Wright has "nothing to
do with 'governmental standing,' but it concedes that Allen
V. Wright emphasized that "the traditional standing criteria"
are "grounded in, and are to be applied with reference to, the
principle of separation of powers." Maj. op. at 11 n.14. The
majority cannot have it both ways. My disagreement with the
majority, put in the technical terms of traditional standing
criteria, is over whether impairment of governmental powers
is a judicially cognizable injury, that is, an "injury in fact"
for purposes of article III. Just as Massachusetts V. Mellon
I
demonstrates that considerations of federalism limit the cate-
gory of judicially cognizable injury in controversies between
a state and the United States, Valley Forge and Allen V.
Wright show, not only in their general approach but in their
specific application of the "traditional standing criteria," that
considerations of separation of powers have the same limiting
effect. In Valley Forge the Court held that the unconstitutional
government conduct plaintiffs had alleged did not constitute
a judicially cognizable injury, because "[a]lthough [they]
claim that the Constitution has been violated, they claim
nothing else. They fail to identify any personal injury suf-
fered by the plaintiffs as a consequence of the alleged consti-
tutional error, other than the psychological consequence pre-
sumably produced by observation of conduct with which one
disagrees." 454 U.S. at 485. Yet, as the Valley Forge Court
undoubtedly was aware, psychological consequences are fami-
liar bases for claims in other legal contexts. The Supreme
74a
The difference between the two conceptions of the
judicial power may be stated more succinctly. In the
traditional view, it is the necessity to decide a case
that creates a court's duty to "say what the law is."
Marbury V. Madison, 5 U.S. (1 Cranch) 137, 177
Court's refusal to treat the psychological effects of allegedly
unconstitutional government conduct as judicially cognizable
"can only mean that the Court perceives that to confer stand-
ing in such cases would impermissibly alter its function."
Vander Jagt, 699 F.2d at 1178 (Bork, J., concurring).
Similarly, in Allen V. Wright, although recognizing that the
stigmatizing injury caused by racial discrimination will con-
fer standing in some circumstances, 104 S. Ct. at 3327, the
Court held that the plaintiffs did not have standing because
they were not personally subject to the discrimination they
challenged. Id. To treat this "abstract stigmatic injury" as
cognizable, the Court stated, would transform the federal
courts into "no more than a vehicle for the vindication of the
value interests of concerned bystanders." Id. (quoting United
States V. SCRAP, 412 U.S. 669, 687 (1973)
The Allen V. Wright Court's treatment of the "fairly trace-
able" requirement even more clearly takes a separation-
of-powers approach. The "fairly traceable" requirement "ex-
amines the causal connection between the assertedly unlawful
conduct and the alleged injury." 104 S. Ct. at 3326 n.19. Yet,
though the Court recognized that the challenged IRS tax-
exemption practices might make some difference to the ability
of plaintiffs' children to receive a desegregated education, and
though it conceded that that harm is not only judicially cog-
nizable but "one of the most serious injuries recognized in our
legal system," id. at 3328, it nonetheless held that the causa-
tion requirement was not met. Why? Because, the Court said,
"we rely on separation of powers principles to interpret the
'fairly traceable' component of the standing requirement." Id.
at 3330 n.26. It is evident, then, that the majority's assertion
that Allen V. Wright is irrelevant to governmental standing is
unsupportable, and ignores both that opinion's general ap-
proach to the purposes of the standing doctrine and its appli-
cation of the technical standing criteria.
75a
(1803). In the new view, it is the court's desire to
pronounce upon the law that leads to the necessity to
create a case. This is a case created by the court.
There would be no case or controversy here but for
fabrication of the doctrine of congressional standing.
The court has fashioned a doctrine, in contradic-
tion of Allen V. Wright, that transforms it from a
tribunal exercising its powers "only in the last resort,
and as a necessity" to a governing body for the entire
federal government, available upon request to any
dissatisfied member of the Legislative, Executive or
Judicial Branch. Plainly, the courts of this circuit,
if no other, are now not the last but the first resort.
We have abandoned concern that our performance
be "consistent with a system of separated powers"
for a role of continual and pervasive intrusiveness
into the relationships of the branches and, indeed, re-
lationships within the branches. Nor can it be said
even that the disputes we invite are those "tradi-
tionally thought to be capable of resolution through
the judicial process," for no one ever thought, until
we did, that courts should step directly between the
other branches and settle disputes, presented in the
abstract, about powers of governance. Moreover, as
Alexander M. Bickel said, "the 'standing' and 'case'
requirement creates a time lag between legislation
and adjudication, as well as shifting the line of
vision. Hence it cushions the clash between the
Court and any given legislative majority
"
A. Bickel, The Least Dangerous Branch 116 (1962).
In this respect, the standing requirement is like the
requirement of ripeness, another of the traditional
aspects of dispute resolution through the judicial
process.
76a
Congressional standing, which must expand into
governmental standing for the President, the judici-
ary, and the states, if its rationale is honored, com-
pletely dispenses with the traditional, limited func-
tion of the judiciary and violates every one of the
criteria for constitutional standing laid down by the
Supreme Court in Allen V. Wright.
D.
Just as Allen V. Wright teaches that standing re-
quirements are built around the constitutional con-
cept of "separation of powers," Massachusetts V.
Mellon suggests that those same requirements also
play a vital part in the parallel constitutional concept
of federalism. As separation of powers and federal-
ism apply in a context like this one, the fundamental
consideration appears to be the need to limit the role
of the courts in the interplay of our various govern-
mental institutions. The role of the courts is lim-
ited, not excluded, since a person denied a monetary
benefit or other concrete interest could invoke the
authority of the courts by asserting that a bill had
become law because of the invalidity of a pocket veto.
The difference between a judicial function limited by
the doctrine of standing and one not SO limited lies
in the relative dominance of the judicial branch, in
the timing of judicial action, and in the number of
constitutional principles generated that curb the pow-
ers and freedoms of other governmental units.
As Judge Scalia recently observed, "[t]he degree
to which the courts become converted into political
forums depends not merely upon what issues they are
permitted to address, but also upon when and at
whose instance they are permitted to address them."
Scalia, supra, 17 Suffolk U.L. Rev. at 892. A federal
77a
judiciary that is available on demand to lay down the
rules of the powers and duties of other branches and
of federal and state governments will quickly be-
come the single, dominant power in our governmental
arrangements. The concept of the fragmentation of
power, upon which both the ideas of the separation
of powers and of federalism rest, will be, if not
destroyed, at least very seriously eroded. See gener-
ally The Federalist No. 51, at 351 (J. Madison)
(J. Cooke ed. 1961) (explaining that both separa-
tion of powers and the division of power between
state and federal governments serve to protect the
liberty of the governed by dividing the power of
government). A majority of Supreme Court Justices
will have something very like the power to govern
the nation by continuously allocating powers and in-
hibitions to every other governmental institution. As
Chief Justice John Marshall put it in a speech to
Congress:
A case in law or equity was a term well under-
stood, and of limited signification. It was a con-
troversy between parties which had taken a
shape for judicial decision. If the judicial power
extended to every question under the constitu-
tion, it would involve almost every subject proper
for legislative discussion and decision; if to ev-
ery question under the laws and treaties of the
United States, it would involve almost every sub-
ject on which the executive could act. The divi-
sion of power which the gentleman had stated,
could exist no longer, and the other departments
would be swallowed up by the judiciary.
Speech of the Honorable John Marshall to the United
States House of Representatives, 18 U.S. (5 Wheat.)
78a
Appendix at 3, 16 (1820). The concept of standing
prevents this undesirable centralization of authority
by severely limiting the occasions upon which courts
are authorized to lay down the rules for governments
and institutions of government.
Standing requirements, like the requirement of
ripeness, also delay the invocation of judicial power.
This means that there is time for the real impact of
laws and actions to become clear, thus making the
constitutional inquiry less abstract and more focuse".
The law is given a chance to go into effect and have
some impact upon persons in the society SO that its
constitutionality can be judged according to its renl
effects upon real persons in real circumstances. The
courts are enabled to think about real interests and
claims, not words. Constitutional adjudication should
operate upon the basis of realities, not general prop"
sitions.
A firm standing concept also decreases the number
of occasions upon which courts will frame constitu
tional principles to govern the behavior of other
branches and of states. There will thus be fewer
constitutional principles of that sort in the system
That, too, is a benefit. The business of government
is intensely practical and much is accomplished by
compromise and accommodation. The powers of the
branches with respect to one another, as well as the
reciprocal powers of the federal and state govern-
ments, ebb and flow as the exigencies of changing cir-
cumstances suggest. It is proper and healthful that,
this should be so. These matters should not be always
settled at the outset by declarations of abstract prin-
ciple from an isolated judiciary not familiar with the
very real and multitudinous problems of governing.
Fluid relationships should not be frozen and the play
79a
removed from the joints of government. That is pre-
cisely the tendency that must come into being, how-
ever, if elimination of standing requirements permits
the explosive proliferation of constitutional declara-
tions about governmental powers.
Our democracy requires a mixture of both princi-
ple and expediency. As Professor Bickel put the
matter:
[T]he absolute rule of principle is
at war
with a democratic system.
No society, certainly not a large and hetero-
geneous one, can fail in time to explode if it is
deprived of the arts of compromise, if it knows
no ways of muddling through. No good society
can be unprincipled; and no viable society can be
principle-ridden.
A. Bickel, supra, at 64. While all branches of gov-
ernment are obliged to honor the Constitution, the
declaration of constitutional principle with binding
effect is primarily the task of the federal courts. If
the federal courts can routinely be brought in to
branches of the federal government disagree, every
time the federal and the state governments contend,
then we will indeed become a "principle-ridden," in
fact a judge-ridden, society. Traditional standing
requirements are a principal barrier between us and
that unhappy condition.
The arguments just made indicate that, except
where a conventional lawsuit requires a judicial res-
olution, much of the allocation of powers is best left
to political struggle and compromise. Indeed, it was
to facilitate and safeguard such a continuing process
that the checks and balances of the Constitution were
created. It was to allow room for the evolution of
80a
the powers of various offices and branches that the
Constitution's specification of those powers was made
somewhat vague. The Framers contemplated organic
development, not a structure made rigid at the out-
set by rapid judicial definition of the entire subject
as if from a blueprint. The majority finds this plan
inadequate and the idea of political struggle between
the political branches distasteful, at best "time-con-
suming," at worst involving "retaliation." Maj. op.
at 16. Just SO. That is what politics in a democracy
is and what it involves. It is absurd to say, as the
majority does, that a "political cure seems to us
considerably worse than the disease, entailing, as it
would, far graver consequences for our constitutional
system than does a properly limited judicial power
to decide what the Constitution means in a given
case." Id. That is a judgment about how the Con-
stitution might better have been written and it is
not a judgment this or any other court is free to
make. Moreover, I know of no grave consequences
for our constitutional system that have flowed from
political struggles between Congress and the Presi-
dent. This nation got along with that method of re-
solving matters between the branches for 185 years,
until this court discerned that the nation would be
better off if we invented a new role for ourselves.
And, of course, it is true that matters of government
will be much neater, if less democratic, to the extent
that judges undertake to decide them in the first
instance. One must not, furthermore, take seriously
the majority's promise that this court's congressional
standing doctrine "will help to preserve, not defeat,
the separation of powers." Maj. op. at 16. As I have
shown, there is no principled way to limit the judicial
power the majority would have us take for our own,
81a
and the result must inevitably lead to the destruction,
not the preservation, of the separation of powers.
As I show next, those who framed, proposed, and
ratified our Constitution chose a different mixture of
principle and compromise for our polity, a different
process of growth, struggle, and accommodation when
they chose the role to be played by courts.
III.
Though we are obligated to comply with Supreme
Court precedent, the ultimate source of constitutional
legitimacy is compliance with the intentions of those
who framed and ratified our Constitution. The doc-
trine of congressional or governmental standing is
doubly pernicious, therefore, because it flouts not
only the rules enunciated and applied by the Supreme
Court but the historical meaning of our basic docu-
ment as well. The criteria of Allen V. Wright are not
simply Court-made; they reflect and express the de-
sign of the Framers of the Constitution. No other
conclusion is possible from a consideration of what
the Framers did and did not do.
At the outset of the Constitutional Convention,
Governor Randolph presented a series of resolutions
framed by the Virginia delegation and commonly
called the Virginia Plan. As Farrand says, "[t]hese
resolutions are important, because amended and ex-
panded they were developed step by step until they
finally became the constitution of the United States."
M. Farrand, The Framing of the Constitution of the
United States 68 (1913). The eighth resolution pro-
posed that the new national legislature be controlled
by placing a veto power in a Council of Revision con-
sisting of the executive and "a convenient number of
the National Judiciary." 1 M. Farrand, The Records
82a
of the Federal Convention of 1787, at 21 (1st ed.
1911). A Council SO composed would be controlled
by the votes of the judiciary, and the latter would
in that way heavily influence, and often control, the
relationship between the President and Congress. By
vetoing or refusing to veto, the judiciary could up-
hold one branch against the other and make itself
the umpire of the constitutional system, not in the
last resort or as a necessity, but on a continuing,
front-line basis. The judiciary would, as well, be
drawn up immediately next to the legislative process
and decide what was to be law and what was not
on the basis of abstract reasoning, without the ben-
efit conferred by the passage of time, the cooling of
passions, and an issued framed in a concrete factual
setting.
We do not, of course, know all of the reasons why
the members of the Convention repeatedly defeated
the proposal for a Council of Revision.10 But we do
10 The Council of Revision was initially rejected when
Gerry's motion "which gave the Executive alone without the
Judiciary the revisionary control on the laws" was adopted.
1 M. Farrand, The Records of the Federal Convention of 1787,
at 104 (1st ed. 1911) (June 4, 1787). On three occasions
thereafter Madison and Wilson renewed the proposal for the
Council of Revision, each time without success. 1 M. Farrand,
supra, at 138, 140 (June 6, 1787) ; 2 M. Farrand, supra, at 73,
80 (July 21, 1787) ; 298 (Aug. 15, 1787). Gerry raised the
objection that the power of judicial review was sufficient to
protect the judiciary from "encroachments on their own de-
partment," and protested that review of public policy was no
part of the judicial function. 1 M. Farrand, supra, at 97-98.
King and Dickinson argued in addition that the proposal
would dilute the executive's unitary character and make it less
accountable for the use to which this power was put. Id. at
139, 140. Strong worried that the judges might be unable to
be impartial in interpreting the laws if they were given a
83a
know the effect the Council would have had upon
our constitutional arrangements and upon the role
of the courts-effects remarkably similar to those that
would result from the final adoption of this circuit's
doctrine of governmental standing-and we do know
that the idea was rejected.
There are, however, more, and stronger, infer-
ences to be drawn from the work of the Convention
than merely those that may be drawn from the rejec-
tion of the Council of Revision. We know, for ex-
ample, that the Convention drafted article III of the
Constitution in a way that does not contemplate suits
directly between the branches of government. Article
III extends "judicial power" to various categories of
"cases" and "controversies," which itself indicates
the Framers had in mind a role for the judiciary
similar to the common-law function with which they
were familiar. It is perhaps more noteworthy that
article III creates, as specific, independent categories
of federal judicial power, "controversies" between
states, between a state and citizens of another state,
and SO on. Given that listing, it is incredible that
Framers who intended to extend judicial power to
direct controversies between Congress and the Presi-
dent failed to include SO important a category in
their recitation.
The drafters, moreover, singled out especially sen-
sitive categories of judicial power for the original
jurisdiction of the Supreme Court. Thus, article III
part in making them, 2 M. Farrand, supra, at 75, Luther
Martin pointed out that the judges could not be presumed
more expert in legislative affairs than the legislators, id. at 76,
and Ghorum urged that the judges might well sacrifice the
executive rather than support him against the legislature.
Id. at 79.
84a
gives the Supreme Court original jurisdiction over
"all Cases affecting Ambassadors, other public Min-
isters and Consuls, and those in which a State shall
be Party." Had they contemplated that the federal
courts would regularly supervise relationships be-
tween Congress and the President, the Framers
would undoubtedly have placed that class of cases
within the Supreme Court's original jurisdiction.
That inference is made certain by the fact that arti-
cle III contemplated that "inferior [federal] courts"
might not be established at all. In fact, federal ques-
tion jurisdiction was not given to the lower federal
courts for almost a century after the framing of the
Constitution. Act of Mar. 3, 1875, ch. 137, § 1, 18
Stat. 470, 470. That fact also demonstrates that the
political branches were not to sue each other. The
Framers simply cannot have contemplated that dis-
putes directly between Congress and the President
would be decided in the first instance in any of the
thirteen existing state court systems.
It is notorious that the Constitution nowhere men-
tions any power of judicial review. That fact has
been much bruited in the never-ending debate over
the legitimacy of the power asserted in Marbury V.
Madison. It is entirely conceivable, of course, that
Framers who thought the Constitution would be law,
and who made it supreme law in article VI of the
Constitution, simply assumed that the Constitution
would be applied by the courts when cases arose
requiring it. Indeed, there are a number of com-
ments preserved from the Convention debates that
suggest this is precisley what some members did as-
sume. 11 But it is absolutely inconceivable that Fram-
11 See, e.g., 1 M. Farrand, The Records of the Federal Con-
vention of 1787, at 97 (1st ed. 1911) (remarks of Gerry)
85a
ers who intended the federal courts to arbitrate
directly disputes between the President and Congress
should have failed to mention that function or to
have mentioned judicial review at all. The statesmen
who carefully spelled out the functions of Congress
and the President and the details of how the execu-
tive and legislative branches might check each other
could hardly have failed even to mention the judicial
lynchpin of the constitutional system they were creat-
ing-not if they had even the remotest idea that the
judiciary was to play such a central and dominant
role.
The intentions of the Framers need not be derived
entirely from the records of the Constitutional Con-
vention, nor even from the structure and language
of the document itself. Courts may and frequently
do look to evidence of what was said and done imme-
diately after the original act of composition. Con-
sider, for example, Hamilton's well-known defense
of the institution of judicial review in The Federalist
No. 78. That defense, in essence, is that the limita-
tions on the constitutional powers of Congress "can
be preserved in practice no other way than through
the medium of the courts of justice; whose duty it
must be to declare all acts contrary to the manifest
tenor of the constitution void." The Federalist No.
78, at 524 (A. Hamilton) (J. Cooke ed. 1961). It
is important that Hamilton's discussion of judicial
review is immediately preceded by a passage in
which he repeatedly emphasizes the comparative im-
potence of the judiciary. The enormous power that
109 (remarks of King) ; 2 M. Farrand, supra, at 76 (remarks
of L. Martin) ; 93 (remarks of Madison) ; 299 (remarks of
Gouverneur Morris). But see 2 M. Farrand, supra, at 298
(remarks of Mercer) ; 299 (remarks of Dickenson).
86a
the judiciary would acquire from jurisdiction over
inter- and intra-branch disputes would have made a
mockery of his quotation of Montesquieu to the effect
that "of the three powers above mentioned [the oth-
ers being the legislative and the executive], the JU-
DICIARY is next to nothing." Id. at 523 n.* (quot-
ing Spirit of Laws, vol. 1, at 186). Had Hamilton
even suspected that disagreements between the pop-
ular branches over their respective powers were
"cases" or "controversies" within the meaning of
article III, it is not to be believed that he would
have described the judiciary as "from the nature of
its functions,
always
the least dangerous to
the political rights of the constitution
Id. at
522. In fact, the judiciary would be the branch most
dangerous to those political rights.
Indeed, the only discussion in The Federalist of
possible judicial involvement in disputes between the
President and Congress comes in connection with the
impeachment power. The problem, Hamilton says,
was to create "[a] well constituted court for the
trial of impeachments." The Federalist No. 65, at
439 (A. Hamilton) (J. Cooke ed. 1961). He defines
that court's jurisdiction in terms of those offenses
that derive from "the abuse or violation of some
public trust. They are of a nature which may with
peculiar propriety be denominated POLITICAL, as
they relate chiefly to injuries done immediately to
the society itself." Id. He then considers, and re-
jects, the proposal that the Supreme Court should
have been given this jurisdiction, in part on the
grounds that it lacks the independence and authority
to discharge this delicate task without a dangerous
confrontation with one branch or the other. Id. at
441. The majority's doctrine of congressional stand-
87a
ing brings the two political branches before us as
adversaries just as much as would giving trials of
impeachments to the judiciary. Today's dispute is
only over a pocket veto that has little continuing
importance, but the invitation we now issue will
ultimately bring before us the most profound and
agitated issues of politics and government. The task
of umpiring disputes between the coordinate branches
which this court has agreed to undertake is no more
suited to judicial competence than trial by impeach-
ment, and raises the same or greater dangers of
repeated and head-on confrontation with the other
branches that underlie Hamilton's objections.¹² Thus,
the whole tenor of Hamilton's authoritative discus-
sion of the Judicial Branch is completely inconsistent
with the existence of the jurisdiction the majority
claims to possess.
A similar point may be made about Hamilton's dis-
cussion of the President's veto power in The Fed-
eralist No. 73. Hamilton asserts that the use of the
veto power to prevent "the passing of bad laws" was
12 Tocqueville saw this point as well. After speaking of the
American practice of leaving the invocation of judicial power
to contests of private interest, he said:
I am inclined to believe this practice of the American
courts to be at once most favorable to liberty and to public
order. If the judge could attack the legislator only openly
and directly, he would sometimes be afraid to oppose him;
and at other times party spirit might encourage him to
brave it at every turn. The laws would consequently be
attacked when the power from which they emanated was
weak, and obeyed when it was strong; that is to say,
when it would be useful to respect them, they would often
be contested; and when it would be easy to convert them
into an instrument of oppression, they would be respected.
1 A. de Tocqueville, supra, at 107.
88a
only a secondary purpose of its adoption by the
Framers. "The primary inducement to conferring
the power in question upon the executive," he says,
"is to enable him to defend himself." The Federalist
No. 73, at 495 (A. Hamilton) (J. Cooke ed. 1961).
The risk is that "he might gradually be stripped of
his authorities by successive resolutions or annihi-
lated by a single vote." Id. at 494. Thus, "the case
for which the veto power is chiefly designed [is] that
of an immediate attack upon the constitutional rights
of the executive." Id. at 497. But, if this court's
governmental standing doctrine is correct, Hamilton
has described a power that is largely superfluous.
The President would not need to defend himself
through the veto power-he could at once challenge
any "vote[s]" or "resolutions" that endangered his
"constitutional rights" as President in the courts.
Even the Anti-Federalists did not urge the exist-
ence of such unbounded judicial power as an objec-
tion to the proposed constitution. The most detailed
Anti-Federalist critique of judicial review was sup-
plied by the pseudonymous Brutus, whose principal
argument was that the federal courts would by con-
stitutional interpretation bring about "an entire sub-
version of the legislative, executive and judicial
powers of the individual states." H. Storing, The
Complete Anti-Federalist 2.9.139 (1981). His de-
scription of judicial review is revealing: when the
legislature enacts laws that the court judges to be
unconstitutional, "the court will take no notice of
them," and this will discourage the legislature from
passing "laws which they know the courts will not
execute." Id. at 2.9.148. Had Brutus thought the
courts were free not only to refuse to execute an un-
constitutional law, but to review it for unconstitu-
89a
tionality where no question of execution had arisen,
his argument would have gained immeasurably from
some mention of that fact. There is none.
It must be concluded, therefore, that those who
drafted, proposed, and ratified the Constitution did
not intend that the judiciary should entertain suits
directly between the political branches of the na-
tional government. The judiciary they envisioned
was to play no such dominant role in affairs of state.
Their intention precludes the doctrine of standing
devised by this court to thrust the judiciary into that
leading position.
IV.
To make its standing doctrine more palatable this
court has adopted a doctrine of remedial or equitable
discretion. This doctrine permits the court to say
that a congressional plaintiff has standing, and hence
that the court has jurisdiction, and yet refuse to hear
the case because the court is troubled by the separa-
tion-of-powers implications of deciding on the merits.
We have no such equitable discretion, however, for
"[w]e have no more right to decline the exercise of
jurisdiction which is given, than to usurp that which
is not given." Cohens V. Virginia, 19 U.S. (6
Wheat.) 264, 404 (1821). By claiming that discre-
tion, the court has created for itself a kind of certi-
orari jurisdiction-which it took an act of Congress
to create for the Supreme Court. There would be no
need to violate the settled principle of federal juris-
prudence that a court with jurisdiction may not de-
cline it if the article III limits on this court's juris-
diction were adhered to.¹³
13 The standing requirements of article III are jurisdic-
tional-discretion plays no part in their application. The
90a
The introduction of discretion into the standing
inquiry is therefore an attempt to change the very
nature of that doctrine. Indeed, this court has
plainly indicated as much: "The most satisfactory
means of translating our separation-of-powers con-
cerns into principled decisionmaking is through a
doctrine of circumscribed equitable discretion.
[T]his test avoids the problems engendered by the
doctrines of standing, political question, and ripe-
ness." Riegle V. Federal Open Market Committee,
656 F.2d 873, 881 (D.C. Cir.), cert. denied, 454 U.S.
1082 (1981). Indeed it does. The equitable discre-
tion doctrine avoids the problems of standing, politi-
cal question, and ripeness by ignoring them. But
those problems are real; they relate to the properly
limited role of the courts in a democratic polity. To
avoid them in this way is to say that the limit upon
the courts' capacity to intrude upon areas of demo-
cratic governance comes not from the Constitution
but entirely from the courts' sense of fitness. That
is hardly an adequate safeguard. Moreover, this
court has no right to avoid the problems of standing.
They arise in large part from the Constitution and
the Supreme Court has made it abundantly clear, in
cases such as Valley Forge and Allen V. Wright, that
they must be addressed, and addressed with the sep-
aration of powers in mind.¹⁴ The doctrine of reme-
prudential standing requirements are no less jurisdictional.
I am aware of no case in which the Court has held that a lower
federal court may decide that those requirements need not
be satisfied if the court thinks it would be inequitable to deny
standing.
14 The only justification for Riegle's claim that separation-
of-powers considerations are irrelevant to the standing in-
quiry was an inference from the fact that the Supreme Court
91a
dial discretion removes separation-of-powers consid-
erations from the jurisdictional inquiry and con-
verts them into mere interests to be balanced. Thus,
the doctrine relegates separation of powers to second-
class status and subordinates the structure of our
constitutional system to the discretion of this court.
It is impossible for me to view that prospect with
equanimity.
It is plain on the face of these developments that
what we are observing constitutes a major aggran-
dizement of judicial power. Any lingering doubts on
this score are laid to rest by this court's stated pre-
sumption in favor of exercising discretion to decide
2 case when, if a decision on the merits were with-
held, "non-frivolous claims of unconstitutional action
would go unreviewed by a court." Riegle, 656 F.2d
at 882; see also Moore, 733 F.2d at 956; Vander
Jagt, 699 F.2d at 1170, 1174 n.23. The function of
the article III case-or-controversy limitations, includ-
vacated our judgment finding standing in Goldwater V. Carter,
617 F.2d 697 (D.C. Cir.), judgment vacated on other grounds,
444 U.S. 996 (1979), on grounds of nonjusticiability, with
some Justices relying on the ripeness doctrine and others on
the political question doctrine. Riegle, 656 F.2d at 880. That
inference was dubious to begin with, for Justices who found
the case nonjusticiable on other grounds had no need to dis-
cuss standing. The evidence, which I have already recited in
Part II-C supra, that the Court now regards separation-
of-powers considerations as inseparable from the constitu-
tional component of standing analysis, consists of explicit
statements by the Court, rather than inferences from state-
ments the Court did not make because there was no need to
make them. Therefore, even if Riegle was a justifiable de-
parture from this court's established standing analysis, which
I do not believe, there is no warrant whatsoever for adhering
to that departure in the wake of the invalidation of the premise
on which it rested.
92a
ing the standing requirement, is, however, precisely
to ensure that claims of unconstitutional action will
go unreviewed by a court when review would under-
mine our system of separated powers and undo the
limits the Constitution places on the power of the
federal courts. The Supreme Court has repeatedly
said that standing is not "a requirement that must
be observed only when satisfied." Valley Forge, 454
U.S. at 489. See also Reservists, 418 U.S. at 227
("[t]he assumption that if respondents have no
standing to sue, no one would have standing, is not a
reason to find standing") ; Richardson, 418 U.S. at
179 ("the absence of any particular individual or
class to litigate these claims gives support to the ar-
gument that the subject matter is committed to the
surveillance of Congress, and ultimately to the politi-
cal process"). In each of these cases the Court was
faced with the contention that if the plaintiff was not
permitted to litigate the issue, no one could. In none
of those cases did the Court make the response which,
if the governmental standing doctrine were correct,
would have been most natural, obvious and ready to
hand: that, while citizens or taxpayers have no
standing to raise abstract claims about the allegedly
unconstitutional operation of government, their rep-
resentatives undoubtedly would. If the doctrine of
governmental standing were correct, there would
always be some governmental official or entity whose
powers were affected by alleged violations of any
particular constitutional provision. In Richardson, to
take a single example, members of Congress could
have sued to force the President to publish the budget
of the Central Intelligence Agency, or to force Con-
gress to force the President to do so, on the grounds
that they had been denied an opportunity to vote to
appropriate or not to appropriate funds for specific
93a
1
CIA programs by virtue of the statute permitting the
Agency to account for its expenditures "solely on the
certificate of the Director." 50 U.S.C. § 403j (b). A
similar analysis would apply to Reservists and Valley
Forge. The concession that there are constitutional
questions that cannot be litigated because of standing
requirements is, therefore, an additional proof that
4
there is no congressional or governmental standing.
7
The limits that standing places upon judicial power
do not mean that many important questions of consti-
a
tutional power will forever escape judicial scrutiny.
Many of the constitutional issues that congressional
r
or other governmental plaintiffs could be expected to
litigate would in time come before the courts in suits
brought by private plaintiffs who had suffered a di-
i-
rect and cognizable injury. That is entirely appro-
priate, and it belies the argument that this court's
governmental standing doctrine is necessary to pre-
serve our basic constitutional arrangements.
1,
At bottom, equitable discretion is a lawless doctrine
that is the antithesis of the "principled decisionmak-
to
ing" that was invoked to justify its manufacture. A
0
doctrine of remedial discretion more than "suggests
the sore of rudderless adjudication that courts strive
to avoid," Vander Jagt, 699 F.2d at 1175-it is rud-
derless adjudication. A sampling of the cases in
d
which this doctrine has been invoked makes that quite
se
clear. For example, in Riegle the court suggested that
the equitable discretion doctrine should apply only to
to
congressional plaintiffs, not to private plaintiffs. 656
F.2d at 881. Indeed, the Riegle court said that the
fact that a private plaintiff would have standing to
- -
sue would weigh against hearing the congressional
Is
plaintiff on the merits, because under those circum-
to
stances the unconstitutional action or statute would
ic
94a
not go unreviewed. Id. In Vander Jagt, a group of
congressmen sued their fellow legislators, and they
sued both as congressmen and as individual voters—
that is, as private plaintiffs. 699 F.2d at 1167 n.1.
The court held that the plaintiffs had standing both
as congressmen and as voters. Id. at 1168, 1169 n.4.
Nonetheless, the court dismissed all the claims because
"this case raises separation-of-powers concerns simi-
lar to Riegle's." Id. at 1175. Had it followed Riegle,
the Vander Jagt court would have reached the merits
of the private plaintiffs' claims-a result I would
have found even more objectionable than what the
court actually did, see id. at 1183 n.3 (Bork, J., con-
curring), but one which would at least have had the
virtue of predictability. It is hardly an argument in
favor of remedial discretion that whatever standards.
one panel fashions the next is free to disregard on
"equitable" grounds.
Ultimately, the doctrine of equitable discretion
makes cases turn on nothing more than the sensitivity
of a particular trio of judges. One cannot, unfor-
tunately, have any solid grounds for supposing that
these aesthetic judgments, though subjective and
varying, will at least mark out an irreducible realm
of "startling| [] unattractive[ness]." Vander Jagt,
699 F.2d at 1176. As the spectacle of public officials
suing other public officials over abstract constitutional
questions becomes familiar, the taint will wear off,
and what seemed unattractive will appear inevitable.
Alexander Pope's dictum, though grown trite, is too
apt to ignore: "Vice is a monster of so frightful
mien/As to be hated needs but to be seen;/Yet seen
too oft, familiar with her face,/We first endure, then
pity, then embrace." An Essay on Man, Epistle 11,
1. 217. The combination of congressional standing
and equitable discretion will very probably prove to
95a
have been but a way-station to general, continual, and
intrusive judicial superintendence of the other institu-
tions in which the Framers chose to place the business
of governing.
V.
The majority maintains that its holding that appel-
lants have standing is supported by decisions of the
Supreme Court and required by binding precedent in
this circuit. Neither of those claims withstands anal-
ysis.
A.
The principal Supreme Court decisions the majority
deploys in support of its position are Coleman V.
Miller, 307 U.S. 433 (1939) ; United States V. ICC,
337 U.S. 426 (1949) ; Chapman V. FPC, 345 U.S. 153
(1953) ; Nixon V. Administrator of General Services,
433 U.S. 425 (1977) ; and INS V. Chadha, 103 S. Ct.
2764 (1983). An inspection of these cases, however,
reveals that they do not support the revolutionary
proposition for which they are conscripted.
The majority states that Coleman V. Miller, 307
U.S. 433 (1939), proves that "a claim that is founded
on a specific and concrete harm to [lawmaking]
powers" is "judicially cognizable." Maj. op. at 13-14.
Coleman proves nothing of the kind. But the case is
not merely inapposite to the point for which the ma-
jority cites it. In fact, the Supreme Court's reason-
ing affirmatively demonstrates that the majority is
wrong and that the appellants before us have no
standing to maintain this action.
In Coleman, a group of Kansas State Senators who
had voted to reject a proposed amendment to the fed-
eral Constitution challenged in the state courts the
validity of the Lieutenant Governor's tie-breaking
vote in favor of ratification. 307 U.S. at 436. The
96a
Supreme Court found that they had standing, upon a
grant of certiorari, to contest the merits of an ad-
verse decision by the Kansas Supreme Court. But
Chief Justice Hughes' opinion for the majority made
it clear that the Court accorded standing to obtain
review of a federal constitutional question only be-
cause there existed a legal interest accepted as suffi-
cient for standing by the highest state court. Thus,
the opinion held that the state senators had "an in-
terest in the controversy which, treated by the state
court as a basis for entertaining and deciding the
federal questions, is sufficient to give the Court juris-
diction to review that decision." Id. at 446 (emphasis
added).
The critical importance of state court standing to
obtain federal constitutional review was made even
clearer by the distinction the Chief Justice drew be-
tween Leser V. Garnett, 258 U.S. 130 (1922), and
Fairchild V. Hughes, 258 U.S. 126 (1922). Both cases
involved suits by citizens to have the nineteenth
amendment declared not a part of the Constitution.
The only difference between the cases relevant to the
standing issue was that Leser was brought in the
Maryland courts and Fairchild was brought in a fed-
eral court.¹⁵ As the Chief Justice pointed out, the
15 The majority offers a different basis for distinguishing
between Leser and Fairchild-the fact that the plaintiff in
Leser was a citizen of Maryland, which had refused to extend
suffrage to women, while the named plaintiff in Fairchild was
a citizen of New York, which had amended its constitution to
grant women suffrage. See maj. op. at 14 n.15. The majority
finds this difference a "more plausible basis for distinguishing
the two cases," but that would be irrelevant even if it were
true. The question is not how we would distinguish those
cases, but how the Coleman Court distinguished them, and it
is clear that the basis offered by Chief Justice Hughes was
97a
Supreme Court on the same day in opinions written
by the same Justice (Brandeis, J.) took jurisdiction
over the Maryland case, stating that the laws of
Maryland authorized the suit, but held that the fed-
eral court was without jurisdiction because plaintiffs,
having only a general interest in government accord-
ing to law, an interest possessed by every citizen, had
no standing. 307 U.S. at 440.
Justice Frankfurter wrote separately for himself
and three other Justices to deny that the plaintiffs in
Coleman had standing. Frankfurter clearly thought
that a legislator's interest in his official powers could
not confer standing in federal courts because such in-
terests were not "matters of 'private damage." 307
U.S. at 470. He expressly agreed with the idea that
that in Leser the citizen's suit was commenced in state court
and allowed to go forward under the laws of the state, whereas
in Fairchild the suit was brought in federal court. Indeed, the
Chief Justice made no mention whatsoever of the fact that
the only named plaintiff in Fairchild was a citizen of New
York. He described Fairchild as simply "a suit by citizens
of the United States," 307 U.S. at 440.
The majority concludes that the Coleman Court shared its
novel rationale for distinguishing Leser from Fairchild, be-
cause the Court said that "[t]he interest of the plaintiffs in
Leser V. Garnett as merely qualified voters at general elections
is certainly much less impressive than the interest of the
twenty senators in the instant case." 307 U.S. at 441. The
quoted language implies, at most, only that the Coleman Court
was unwilling to take the position that in any case in which a
state court determined that the plaintiffs had standing, no
matter how remote, abstract, or generalized the plaintiffs'
grievance might be, the Supreme Court would be bound to
review the state court's decision if it fell within the Court's
statutory jurisdiction. That does not alter the fact that the
Coleman Court perceived the interest of the Kansas legislators
as of a type that would not give them standing to bring suit
in federal court.
98a
standing under Kansas law could confer standing in
the United States Supreme Court. See id. at 465-66.
He thus rejected the distinction made by Leser and
Fairchild and adopted by Chief Justice Hughes in
Coleman. 16 The Court majority's adoption of that dis-
16 It may be that Coleman drew the distinction it did, and
thus allowed review of a claim heard in a state court under
state standing rules more permissive than federal standing
rules, because to deny review in such cases would leave in
place a body of state court interpretations of the federal Con-
stitution that the Supreme Court could never pass upon. The
result might be federal constitutional law that differed from
state to state. The problem of erroneous or differing state
court interpretations of the United States Constitution and
laws can be avoided only if the Supreme Court accepts the
state's basis of standing as sufficient for review or if it re-
quires state courts to apply federal standing rules in order
to entertain suits based on federal law.
Doremus V. Board of Education, 342 U.S. 429 (1952), can be
read as adopting the latter course. In Doremus, the Court
characterized the state court's opinion as "advisory" and
dismissed the appeal (from a declaratory judgment that a
state statute was constitutional) on the grounds that "be-
cause our own jurisdiction is cast in terms of 'case or con-
troversy,' we cannot accept as the basis for review, nor as
the basis for conclusive disposition of an issue of federal law
without review, any procedure which does not constitute
such." 342 U.S. at 434 (emphasis added). The emphasized
language suggests that the Court might have vacated a state
court judgment enjoining enforcement of the statute, but that
the Court would simply dismiss an appeal from a state court
judgment upholding the challenged statute (as the Doremus
Court in fact did). If Doremus means that the Supreme
Court has adopted this approach as one of general applica-
bility, it would follow that there is yet another reason why
Coleman lends no support to the majority's position: even
Coleman's narrow holding would then no longer be good law
because that holding expressly rests on the state court's de-
cision that the state senators had standing to sue under state
law.
99a
in
tinction shows not only that Coleman's finding of
standing is confined to cases where states recognize
standing in their own courts but demonstrates also
in
that the same plaintiffs would not have standing in
a federal court. All nine Justices in Coleman agreed
to the latter proposition. The case before us was
brought in a federal court. Coleman proves, there-
fore, that the plaintiffs here have no standing. It is,
in
to say the least, distinctly peculiar that the majority
cites the case for its own contrary conclusion.
he
The majority draws from United States V. ICC the
proposition that courts may not avoid justiciable con-
troversies "simply because one or both parties are co-
the
ordinate branches of the government." Maj. op. at
10. In whatever limited sense this statement may be
true, it has no application where the only alleged
basis for the plaintiff's standing is its powers as one
be
of the contending branches, and hence the statement
is not relevant to the present case. This is a suit in
a
which the standing of appellants rests exclusively on
an alleged impairment of their respective governmen-
tal powers. United States V. ICC was not that at all.
as
Though the government was appealing an order of
the ICC, its real opponents were railroads from which
it sought reparations in its proprietary, not its gov-
ernmental, capacity. 337 U.S. at 428. Thus the gov-
ernment's standing did not rest on impairment of
governmental powers. As the Court said, "[t]he
basic question is whether railroads have illegally ex-
acted sums of money from the United States." Id. at
430. Moreover, because the railroads were present as
"the real parties in interest," id. at 432, the situation
in United States V. ICC was essentially the same as
when the United States petitions for a writ of man-
damus directed to a district court. Despite the dis-
100a
trict judge's name on the petition, the real adversary
is the party on the other side of the litigation. It is
not an action by the Executive Branch against part
of the Judicial Branch to determine their respective
governmental powers. So, too, United States V. ICC
was not a suit by the Executive Branch against an
independent agency over their respective governmen-
tal powers.
Furthermore, because the ICC is an independent
agency, the President had no power to terminate the
controversy by ordering the ICC to reverse its deci-
sion denying the government money damages. See
infra at pp. 50-51. That fact constitutes an additional
reason for the Court's conclusion (which the Court
rested on the presence of a dispute between the gov-
ernment and the railroads, see 337 U.S. at 430-31)
that "the established principle that a person cannot
create, a justiciable controversy against himself has
no application here." Id. at 431. It also suggests that
the government's standing might not have been sus-
tained by the Court but for the ICC's status as an in-
dependent agency.
In Chapman, which the majority construes as al-
lowing standing based on infringement of govern-
mental powers, see maj. op. at 11, the Secretary of
the Interior and an association of rural electric co-
operatives challenged the FPC's issuance of a license
to a power company to build a hydroelectric station
at a site that Congress allegedly "reserved
for
public development and SO has placed
beyond the
licensing power of the Federal Power Commission."
345 U.S. at 156. The Secretary claimed that both his
general duties relating to conservation of water re-
sources and his "specific interest" in fulfilling his
statutory duty to market public hydroelectric power
101a
were "adversely affected by the Commission's order."
Id. The Court neither endorsed nor repudiated that
argument. Its entire discussion of standing reads as
follows:
We hold that petitioners have standing. Differ-
ences of view, however, preclude a single opinion
of the Court as to both petitioners. It would not
further clarification of this complicated specialty
of federal jurisdiction, the solution of whose
problems is in any event more or less determined
by the specific circumstances of individual situa-
tions, to set out the divergent grounds in support
of standing in these cases.
Id.
It is hard to imagine a holding more confined to its
facts-for the Court supplied no rationale for its deci-
sion. But, to begin with, we may observe that in
Chapman there were private parties on both sides of
the dispute, the one defending its right to the license
it had been granted by the Commission, the other
claiming that its right to a preference in sales of
surplus power by the Secretary had been impaired.
Since the court held that the electric cooperatives had
been aggrieved, within the meaning of 16 U.S.C.
§ 8252, by the Commission's action, its parallel hold-
ing as to the Secretary, who had been allowed to in-
tervene in administrative proceedings before the Com-
mission, see United States V. FPC, 191 F.2d 796, 799
(4th Cir. 1951), was not strictly necessary to decide
the merits.
Furthermore, because the site was clearly within
the public domain,¹⁷ the court may have agreed with
17 Justice Douglas, joined in dissent by Justice Black and
Chief Justice Vinson, pointed out that the Roanoke Rapids
102a
the lower court that "the United States, representing
the people of the country, may have an interest in the
construction of a power project," United States V.
FPC, 191 F.2d at 800, while disagreeing with the
lower court's contention that that fact "does not con-
fer upon the Secretary of the Interior any authority
to go into court for its protection." Id. That would
make Chapman an instance in which the Secretary
was allowed to sue on behalf of the United States
over the federal proprietary interest in a site within
the public domain. In this connection, it is striking
that the lower court in Chapman read United States
V. ICC as "hold[ing] merely that suit by the United
States to protect its interests is not precluded merely
because the suit must be brought against a govern-
mental agency. Nothing is said to indicate that an
officer of the government may go into court against
such agency to protect the public's interest with
respect to a matter as to which he is charged with
site was a part of the public domain, because (1) the Roanoke
is a navigable stream over which Congress has plenary power,
(2) the !water power inherent in a navigable stream belongs
to the federal government, and (3) the dam sites on a navi-
gable stream are public property even if the title to the stream-
bed is in private hands. 345 U.S. at 176. Justice Douglas
thought that the public nature of the site suggested, on the
merits, that Congress had not intended to authorize private
development. See id. at 177. The Court majority disagreed,
not on the grounds that the site was not in the public domain,
but because it viewed the pertinent legislation as "a legislative
finding that the proposed projects, no matter by whom they
may be built, are desirable and consistent with the congres-
sional standards for the ordered development of the Nation's
water resources." Id. at 163. It is clear, then, that the Secre-
tary was in substance alleging that rights over property in
the public domain had, by the action of the Commission, im-
properly been vested in private hands.
103a
no duty or responsibility." Id. Thus, Chapman may
the
have turned simply on whether or not the Secretary
V.
was in fact charged with the duty of representing
the
the United States' property interest in such mat-
con-
ters-in which event, it is clear that had the Secre-
tary not been a proper party, the Solicitor General
ould
would have been. As in United States V. ICC, then,
standing was in all likelihood based on the govern-
ment's proprietary interests rather than on infringe-
ithin
ment of the Secretary's governmental powers.
That suit by some member of the executive branch
tates
was appropriate is also clear, because Chapman in-
volved neither an inter- nor intra-branch dispute.
erely
The FPC was created as an independent agency.
See 16 U.S.C. § 792 (1982) (Commissioners ap-
an
pointed by President by and with the advice of the
Senate for terms of five years) ; see also 444 U.S.C.
with
§ 3502 (10) (1982) (listing the Federal Energy Reg-
with
ulatory Commission (the successor to the FPC) as
an "independent regulatory agency"). Among other
anoke
things, that means that the Commissioners are "offi-
ower,
longs
cer[s] who occupy no place in the executive depart-
navi-
ment and who exercise[] no part of the executive
power vested by the Constitution in the President."
uglas
Humphrey's Executor V. United States, 295 U.S. 602,
the
628 (1935). The dispute in Chapman, then, was a
dispute between the Executive Branch and an agency
greed,
outside the Executive Branch. That agency was a
lative
creature of Congress, charged with substantial inde-
they
pendent responsibility and given substantial dele-
agres-
gated powers, but not itself a coordinate branch. A
solution to the dispute was not within the legal con-
Secre-
trol of the President. For although no statute ex-
in
pressly denies that a Federal Power Commissioner
im-
can be removed by the President without cause, it is
104a
clear from the regulatory and adjudicative functions
of the Commission that, as in Weiner V. United States,
357 U.S. 349, 356 (1958), "we are compelled to con-
clude that no such power is given to the President
directly by the Constitution, and none is impliedly
conferred upon him by statute simply because Con-
gress said nothing about it." Since, under the ra-
tionale of Humphrey's Executor, the President could
not order the Commission to comply with the Execu-
tive Branch's view of the public interest, a suit by
the government in its proprietary capacity was the
necessary means of resolving the dispute, and was
clearly allowable under United States V. ICC.
It may be, then, that the fact that the Executive's
dispute was with an independent agency was re-
garded by some Justices as sufficient to confer stand-
ing. It may be that some Justices were persuaded
by the presence of a private party claiming a prop-
erty right that the Secretary wished to extinguish.
In this respect, too, Chapman parallels United States
V. ICC. We cannot know the rationales of the various
Justices, but there is certainly no basis for using
an unexplained case as the reason for creating a
general rule of standing for all branches and mem-
bers of branches to assert their legal rights directly
against one another when it is clear that such a gen-
eral rule is contrary to acticle III and Supreme Court
precedent.
The majority claims that Nixon V. Administrator
of General Services, 433 U.S. 425, 439 (1977), "in-
dicat[es] that [an] incumbent President would 'be
heard to assert' [a] claim that [a statute] unconsti-
tutionally impinges upon the autonomy of the Execu-
tive Branch." Maj. op. at 8. The majority supposes
that this means the President would have standing
105a
to sue because his governmental powers had been
invaded without any other injury. That is an aston-
ishing inference to draw from a decision that has
con-
dent
absolutely nothing to do with governmental standing
and does not in any way suggest that the President
could sue Congress or one of his own subordinates in
Con-
the Executive Branch to defend his constitutional
ra-
powers.
could
Former President Nixon's standing to challenge
xecu-
by
the constitutionality of the Presidential Recordings
the
and Materials Preservation Act rested upon his alle-
gation that the statute disposed of materials that
was
were his personal property. 433 U.S. at 431, 435-36.
He raised the constitutional prerogatives of the pres-
idency not as a basis for standing but as grounds of
re-
substantive law that invalidated the Act. The situa-
tion was no different than when any private plaintiff
who has standing because of a threat to his property
advances a constitutional contention on the merits
guish.
of the dispute.
tates
The majority has apparently misinterpreted the
Court's rejection of an argument that the former
using
President could not rely upon rights pertaining to
a
an incumbent President. This was a jus tertii argu-
ment-that, for prudential reasons, the federal courts
rectly
should not allow a plaintiff to challenge the constitu-
gen-
Court
tionality of a statute on the grounds that it infringes
the constitutional rights of others. See generally
Valley Forge, 454 U.S. at 474; Singleton V. Wulff, 428
"in-
U.S. 106, 113-14 (1976). Thus, the passage the ma-
'be
jority cites from Nixon V. Administrator states only:
onsti-
"We reject the argument that only an incumbent Pres-
xecu-
ident may assert such claims [of separation of powers
and the presidential privilege of confidentiality] and
hold that appellant, as a former President, may also be
heard to assert them." 433 U.S. at 439. It is far-
106a
fetched enough to infer from this that the Court was
saying an incumbent President could sue Congress
directly, but the inference disappears without a trace
when it is realized that this was a jus tertii discus-
sion and that the Court was not even remotely con-
cerned with an impingement on the autonomy of the
Executive Branch as a basis for standing. Nixon V.
Administrator lends the majority no support what-
ever.
The majority also makes the untenable claim that
INS V. Chadha indicates that Congress has a judi-
cially cognizable interest in vindicating its constitu-
tional powers. In Chadha, the INS, the executive
agency charged with enforcing the immigration laws,
agreed with Chadha that the legislative veto author-
ized by section 244 (c) (2) of the Immigration and
Nationality Act, 8 U.S.C. § 1254 (c) (2) (1982), was
unconstitutional. 103 S. Ct. at 2772. Agreeing that
under these circumstances the court of appeals had
rightly allowed both Houses of Congress to intervene,
the Court said: "We have long held that Congress is
the proper party to defend the validity of a statute
when an agency of government, as a defendant
charged with enforcing the statute, agrees with plain-
tiffs that the statute is inapplicable or unconstitu-
tional. See Cheng Fan Kwok V. INS, [392 U.S. 206],
210 n.9 [(1968) ]; United States V. Lovett, 328 U.S.
303 (1946). 103 S. Ct. at 2778. There was, in
Chadha as in the cases the Court cited, an aggrieved
individual who sought relief that ran only against the
Executive Branch: that satisfied the injury-in-fact,
causation, and redressability requirements of article
III. Indeed, the Court specifically held that "prior to
Congress' intervention, there was adequate Art. III
adverseness even though the only parties were the
107a
INS and Chadha." Id. Although the INS agreed
that the statute requiring it to deport Chadha was
unconstitutional, but for the court of appeals' ruling
to that effect, the INS would have deported Chadha.
Id. Congress, though nominally a party, was in real-
ity much more in the position of an amicus curiae.
No judgment could be entered against Congress,
whose position as an intervenor differed from status
as an amicus only in the ability to petition for certi-
orari. Congress' intervention, in other words, merely
heightened the "concrete adverseness" of what was
already a case-or-controversy. It is a far cry from
that carefully limited holding to saying that Congress
suffers a judicially cognizable injury when its law-
making powers are infringed. See maj. op. at 13-14.
The foregoing analysis demonstrates, I think, that
the cases relied upon by the majority lend it no sup-
port and that some of them show its positions to be
wrong. But if a construction seemingly favorable to
the majority's doctrine of general governmental
standing could somehow be tortured out of one of
these or some other cases, those decisions would re-
main anomalies and exceptions that should not be
used to construct general doctrine. If we begin to
generalize from aberrations, taking as our model the
abnormal, we will ultimately produce not a natural
but a deformed thing, a doctrine that is not Jekyll
but Hyde; and that is what is being built in this cir-
cuit, a constitutional monstrosity. Constitutional doc-
trine should continually be checked not just against
words in prior opinions but against basic constitu-
tional philosophy. When that is done it becomes
plain, as I have already shown, that the doctrine of
congressional, and hence of governmental, standing
has no legitimate place in our jurisprudence.
108a
B.
It is also not the case that binding precedent in
this circuit requires us to hold that appellants have
standing. The majority rests this conclusion on Ken-
nedy V. Sampson, 511 F.2d 430 (D.C. Cir. 1974),
and Moore V. U.S. House of Representatives, 733
F.2d 946 (D.C. Cir. 1984), cert. denied, 53 U.S.L.W.
3483 (U.S. Jan. 7, 1985). See maj. op. at 8, 9 n.13.
That, I think, will clearly not do. In Kennedy, this
court held that a senator had standing to challenge
the legality of an intrasession pocket veto because the
veto nullified his vote on the bill to which it applied.
In reaching that holding, the Kennedy court nowhere
addressed the separation-of-powers considerations
that pervade the standing inquiry as articulated and
applied in subsequent Supreme Court cases, notably
Valley Forge and Allen V. Wright. The Kennedy
Court's discussion of article III standing turned ex-
clusively on a party's fitness to litigate and did not
depend on separation-of-powers considerations. 511
F.2d at 433. That view of standing had been en-
dorsed by the Supreme Court a few years before
Kennedy was decided. See Flast V. Cohen, 392 U.S.
83, 100-01 (1968). But Flast's view of standing has
proved to be an aberration, for divorcing standing
from separation-of-powers considerations inexorably
leads to successive accretions to the power of the fed-
eral judiciary, a result the Framers certainly did not
intend. Valley Forge and Allen V. Wright demon-
strate that the Court, reversing the course it took in
Flast, has restored separation-of-powers considera-
tions as the central premise of the constitutional
standing requirement. These recent Supreme Court
decisions are flatly inconsistent with the method of
analyzing the standing of congressional plaintiffs the
109a
Kennedy court employed. At a minimum, therefore,
we are bound to abandon Kennedy's rationale, and
any reaffirmation of Kennedy, to be valid, must rest
on a different standing analysis.
In view of the virtual identity, for purposes of
standing analysis, between Kennedy and the litiga-
tion now before us, an effort to supply an alternative
basis for Kennedy's result is essential if Kennedy is
to continue to be regarded as binding precedent.¹⁸
18 Concurring in Vander Jagt, 699 F.2d at 1177, I sug-
gested that we adhere to the "distinction between diminution
of a legislator's influence and nullification of his vote," 699
F.2d at 1180, which the en banc court had adopted in Gold-
water V. Carter, 617 F.2d 697 (D.C. Cir.), judgment vacated
on other grounds, 444 U.S. 996 (1979). Under the Goldwater
test, congressional plaintiffs have standing only if "the alleged
diminution in congressional influence
amount[s] to a
disenfranchisement, a complete nullification or withdrawal of
a voting opportunity." 617 F.2d at 702. By contrast, the posi-
tion adopted by the panel opinion in Vander Jagt treats any
substantial diminution of a legislator's influence on the legis-
lative process as a judicially cognizable grievance. Vander
Jagt, 699 F.2d at 1168; see also Riegle, 656 F.2d at 880. Upon
further reflection, it seems to me that not even the Goldwater
"nullification" test is adequate to the standing inquiry. When
the interest sought to be asserted is one of governmental
power, there can be no congressional standing, however con-
fined.
To begin with, it is impossible to find in the structure of
the Constitution a limited doctrine of congressional standing.
The history and structure of the Constitution rule out the
possibility that the Framers intended article III jurisdiction
to extend to intra-branch or inter-branch disputes over in-
fringement of official powers. That being so, there is no room
to argue-nor any suggestion in the text of the Constitution—
that they intended to single out the nullification of a legisla-
tor's vote for special treatment. The ultimate question is
whether the provisions in the Constitution that confer various
110a
Indeed, because none of this court's congressional
standing cases, including Moore, rests on the premise
that separation-of-powers considerations must inform
the article III standing inquiry, those cases cannot
possibly be binding precedent.19
governmental powers on the coordinate branches and reserve
powers to the states were meant to serve as a direct and in-
dependent basis for judicial review. As I have shown in Part
IV of this opinion, that is unquestionably not what the
Framers intended. As I have shown in Part I, if- their inten-
tions are to be overridden in the name of vindicating constitu-
tional grants of governmental power, they must be overridden
wherever the Constitution or other law makes such a grant.
The results of that rationale, as I have shown in Parts II and
III, are incompatible with binding Supreme Court precedent
on the subject of standing. The conclusion must be that even
the Goldwater test allows us a jurisdiction and a power that
article II forbids.
19 The panels in Riegle and Vander Jagt explicitly refused
to consider separation-of-powers implications in connection
with the standing inquiry. See Riegle, 656 F.2d at 880; Vander
Jagt, 699 F.2d at 1170 & n.5. In Harrington V. Bush, 553 F.2d
190 (D.C. Cir. 1977), the court did suggest that separation-
of-powers issues should play some role in its standing inquiry,
id. at 215, but it also stated that "we do not rest our denial
of standing on these separation of powers grounds." Id. The
opinion for the en banc court in Goldwater, 617 F.2d 697,
at most assigned only this supportive, nondispositive, weight
to separation-of-powers considerations. In Moore, the panel
opinion acknowledged that Valley Forge "reinforces the prin-
ciple that where separation-of-powers concerns are present,
the plaintiff's alleged injury must be specific and cognizable
in order to give rise to standing." 733 F.2d at 951 (foot-
note omitted). But there was no discussion whatsoever of
whether impairment of a legislator's official powers could
be treated as judicially cognizable injury without violating
that "principle." The panel contended itself with the bare
assertion that "[t]he injury alleged by appellants here is to
an interest positively identified by the Constitution." Id.
111a
Although the majority views Kennedy and Moore
as binding precedent, it offers no real defense of the
standing analysis employed in those cases, or of the
equitable discretion doctrine itself. Instead, the ma-
jority suggests that it need not consider the doctrine
of equitable discretion here because that doctrine ap-
plies only to "actions by individual congressmen
whose real grievance consists of their having failed
to persuade their fellow legislators of their point of
view, and who seek the court's aid in overturning the
results of the legislative process." Maj. op. at 12-13.
Thus the court now holds, for the first time, that
Congress, or either of its Houses, has standing to sue
the President for allegedly infringing its lawmaking
powers, and that even the limited prudential role that
the equitable discretion doctrine assigns to separa-
tion-of-powers considerations is inapplicable in such
cases. That is tantamount to adopting a per se rule
that Congress has standing to sue the President
whenever it plausibly alleges an actual impairment
of its lawmaking powers. But if Congress may sue
under these circumstances, it should follow that a
congressional plaintiff may sue whenever he plau-
sibly alleges an actual impairment of his lawmaking
powers. The harm, in each case, is of the same kind
-an injury to lawmaking powers. Kennedy stated
in dictum that the injury suffered by Congress was
"direct," while the injury suffered by an individual
member of Congress was "derivative" and "indirect."
511 F.2d at 435, 436. But that distinction has con-
sistently been treated as immaterial in this court's
congressional standing cases, and the majority does
not purport to rely on it now. That is quite under-
standable, for once impairment of governmental pow-
ers is deemed sufficient to confer standing it is ob-
112a
vious that an individual member of Congress suffers
immediately rather than remotely, as those concepts
are employed in the causation branch of the article
III standing inquiry. Moreover, the harm to an in-
dividual legislator is much greater, for his ability to
engage in political struggle with the President is far
less than the ability of an entire House or of the en-
tire Congress. The majority, if it applied the ra-
tionale for its per se rule consistently, would there-
fore abandon the equitable discretion doctrine alto-
gether.
Instead, the majority confines that doctrine to
cases in which the court believes that congressional
plaintiffs are not attempting to "overturn[] the re-
sults of the legislative process." Maj. op. at 13. The
legislative process, of course, is implicitly and quite
arbitrarily defined as a process that ends when "Con-
gress has passed an Act." Maj. op. at 13. That was
far from obvious to the Framers, who debated at
some length whether the veto improperly gave the
Executive a share in legislative power. See, e.g., 2
M. Farrand, The Records of the Federal Convention
of 1787, at 73-80 (1st ed. 1911). Thus, The Fed-
eralist had to defend the President's qualified veto
power against the charge that it violated the prin-
ciple of separation of powers. That defense took the
form, not of denial that the veto power was a legis-
lative power, but of an argument that separation of
powers was not an absolutist principle, but one
which was "entirely compatible with a partial inter-
mixture of those departments for special purposes,
preserving them, in the main, distinct and uncon-
nected." The Federalist No. 66, at 445, 446 (A.
Hamilton) (J. Cooke ed. 1961) (applying this rea-
soning to the Senate's power to try impeachments
113a
fers
and to the President's veto power). See also 2 M.
Farrand, supra, at 75 (remarks of Gerry) (arguing
against the Council of Revision on the grounds that
in-
"[i]t was making the Expositors of the Laws [the
to
Judiciary], the Legislators which ought never to be
far
done"); id. (remarks of Gouverneur Morris) (re-
en-
sponding to Gerry with the observation that "the
ra-
Judges in England had a great share in ye Legisla-
tion"). Would the majority contend that the Vice-
President's tie-breaking vote is not part of the legis-
lative process? Of course, if the alternative defini-
to
tion of the legislative process as including the veto
(and, on the same reasoning, the pocket veto) were
re-
accepted, it would follow, on the majority's own rea-
The
soning, that neither Congress nor the congressional
plaintiffs have standing to bring this action, for they
Con-
would, on that definition, be attempting to overturn
was
the results of the legislative process.
at
Apart from that, the majority offers no explana-
the
tion of why a legislator who has "failed to persuade
2
[his] fellow legislators" to enact a bill should be
treated differently from a legislator who has failed
Fed-
to persuade them to reenact the bill to which the
veto
"pocket veto" had been applied. If "the principle
that a legislator must lack collegial or 'in-house'
the
remedies before this court will confer standing,"
Riegle, 656 F.2d at 879, is, as the majority appears
of
to think, the sole basis for the equitable discretion
one
doctrine, and if that principle is applied consistently,
then the equitable discretion doctrine must be applied
to the congressional plaintiffs in the suit before us
today. That being true, the doctrine of equitable
(A.
discretion should have barred the suit by Senator
Kennedy in Kennedy V. Sampson: as the Riegle
court pointed out, he "had collegial remedies