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    "type": "document",
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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: JGR/Pocket Veto\n(4 of 5)\nBox: 36\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\n57a\nBut the transformation this court has wrought in\nits own powers necessarily runs much farther than\nthat. If Congress, its Houses, or its members can\nsue the President for a declaration of abstract legal\nright, it must follow that the President may, by the\nsame token, sue Congress. For example, Presidents\nat least since Franklin Roosevelt have objected to the\ndevice known as the congressional veto on the grounds\nof its unconstitutionality. Had they understood our\nconstitutional system as this court now understands\nit, these Presidents need not have waited for a pri-\nvate person to raise the issue in INS V. Chadha, 103\nS. Ct. 2764 (1983), to obtain a declaration of the un-\nconstitutionality of that device, but could have sued\nCongress at any time. This court may become a\npotent supplement to the checks and balances the\nConstitution provides. Under the majority's reason-\ning, whenever the President vetoes a bill that, in his\njudgment, requires him to execute an unconstitu-\ntional law or invades his legitimate constitutional\nthan a generalized grievance, while the pocket veto would be\ntreated as occasioning an injury \"to the members' rights to\nparticipate and vote on legislation in a manner defined by the\nConstitution.\" 733 F.2d at 951. The grounds for this differ-\nence in treatment are that a legislator has \"a right and a\nduty to participate\" in the process by which a bill becomes\nlaw. Id. at 952. That may be, but the legislator whose vote\nis nullified by a pocket veto has exercised his right and ful-\nfilled his duty-it is the impairment of his lawmaking power\nthat, on this court's analysis, gives him standing to sue. Since\nthat impairment occurs whenever a President fails to enforce\nthe law as Congress intended it, enforcement challenges must\nbe heard if this court's rationale is to be fairly applied. Thus,\nthis court's view of standing, applied in a principled fashion,\nwould move the obligation to \"take Care that the Laws be\nfaithfully executed\" out of article II of the Constitution and\ndivide it between articles I and III.\n58a\npowers and Congress overrides his veto, the Presi-\ndent may sue before the ink is dry for a judicial\ndeclaration of unconstitutionality. We will become\nnot only a party of the legislative process but perhaps\nthe most important part.\nIndeed, if unlawful interference with one's official\npowers is enough to confer standing I do not know\nwhy members of the judiciary should not join in the\ngame, with the added advantage, of course, that\none federal judge's lawsuit claiming a right to pow-\ners denied would be heard and decided by other fed-\neral judges. Thus, when Congress limited the habeas\ncorpus jurisdiction of the District Court for the Dis-\ntrict of Columbia, there is no reason, under the\nmajority's rationale, why a district court judge, or\na judge of this court who had lost appellate jurisdic-\ntion, should not have sued Congress and the Presi-\ndent for a declaration of unconstitutionality. In this\ncourt he would, apparently, have won, see Pressley V.\nSwain, 515 F.2d 1290 (D.C. Cir. 1975) (en banc) ;\nPalmore V. Superior Court of the District of Colum-\nbla, 515 F.2d 1294 (D.C. Cir. 1975) (en banc),\nthough he would not have succeeded in the Supreme\nCourt, see Swain V. Pressley, 430 U.S. 372 (1977).\nIntra-branch disputes also must succumb to this\ncourt's plenary interpretation of its own powers. See,\ne.g., Vander Jagt, 699 F.2d 1166. Individual legisla-\ntors now have standing to sue each other, the Houses\nof Congress, other bodies composed of legislators,\nsuch as committees and caucuses, and SO on. Virtu-\nally every internal rule, custom, or practice by which\nthe internal operations of Congress are regulated is\nreviewable at the discretion of this court at the\nbehest of disgruntled legislators. That means, for\nexample, that the opponents of a filibuster have\n59a\nstanding to sue for an injunction directing the fili-\nbuster to cease. Legislators who were not selected to\nserve on the committees of their choice have stand-\ning to challenge the manner in which the selection\nprocess was conducted. Indeed, this court has so held.\nVander Jagt, 699 F.2d at 1170. No matter how\nintrusive the relief sought, this court has jurisdiction\nSO long as the legislator can show some relationship\nbetween the congressional behavior he challenges and\nhis own influence and effectiveness as a legislator.\nCongress, in short, is subject to judicial oversight to\nwhatever degree this court, exercising its newly-\ninvented powers of equitable discretion, decides super-\nvision is warranted, or, as one of our cases puts it,\nnot \"startlingly unattractive.\" Vander Jagt, 699 F.2d\nat 1176 (quoting Davids V. Akers, 549 F.2d 120, 123\n(9th Cir. 1977) ) It appears that our constitutional\njurisdiction now rests less upon law than upon\naesthetic judgments.\nThe same reasoning, of course, applies to disputes\nwithin the Executive and Judicial Branches. The\nhead of an agency who believes that another agency\nhas improperly encroached on an area confided to\nhis administration by statute or regulation no longer\nneed bring the dispute before the President, for the\ncourts stand ready to resolve it.⁴ Beyond that, a\ncabinet officer aggrieved by an Executive Order or\nany other exercise of presidential power, one which\narguably requires him to violate an act of Congress,\ncan proceed to challenge the offending directive in\nfederal court, where declaratory judgment and in-\n4 The majority clearly believes that Chapman V. FPC, 345\nU.S. 153 (1953), establishes that this is already the law, but\nas shown infra at pp. 47-51, that case does not at all have the\nimport the majority ascribes to it.\n60a\njunctive relief are available to set the President\nright. Presumably, a district judge whose jurisdic-\ntion had been limited by a court of appeals decision\ncould seek rehearing en banc or petition the Supreme\nCourt for a writ of certiorari. According to this\ncourt's rationale, I should be able to petition the\nSupreme Court for a writ of certiorari or of man-\ndamus to overturn the result in this case because it\nunconstitutionally alters my duties and powers as\nan article III judge.⁵\nNor must it be forgotten that the Constitution con-\ntemplates areas of authority for the states, areas in\nwhich the national government is not to impinge.\nShould Congress enact a law that arguably is beyond\nits powers and that has an impact upon citizens of\nthe several states, it would seem, under this court's\nreasoning, that members of a state legislature, whose\njurisdiction had been ousted, would have standing to\nsue the national executive to enjoin enforcement of\nthat law. Certainly the State itself would have\nstanding. States, after all, have constitutional func-\ntions and powers as surely as Congress does.\nEnough has been said perhaps to indicate the\nbreathtaking transformation of the judicial function,\nthe relationships between the branches of the na-\ntional government, and the relationships between fed-\n5 Lest this be regarded as fantasy or burlesque, it should\nbe noted that this very sort of litigation within the judicial\nbranch is being attempted. See In re Robson and Will, petition\nfor mandamus or in the alternative for cert. filed, 58 U.S.L.W.\n3552 (U.S. Feb. 5, 1985) (No. 84-1127) (United States Dis-\nstrict Judges seeking relief against Court of Appeals on\ngrounds that Court of Appeals improperly substituted its dis-\ncretion for that of the District Court, and exceeded its au-\nthority by ordering a remedy that is contrary to law). The\npossibilities seem boundless.\n61a\neral and state governments that waits at the end of\nthe road upon which this court has set its foot. It\nis clear from the cases that even this first step is\nillegitimate.\nII.\nIt is easily demonstrated from several different\nlines of cases that the doctrine of congressional\nstanding is ruled out by binding Supreme Court prec-\nedent. These lines of authority will be examined\nseparately, and I will then suggest that they are but\nfacets of the same set of considerations.\nA.\nIt has been noted already that the rationale upon\nwhich the majority accords standing to members of\nCongress and the Senate in this case would equally\npermit suits by states to challenge federal laws or\nactions that seem to impinge upon their sovereignty.\nBut this result, of course, contravenes Massachusetts\nV. Mellon, 262 U.S. 447 (1923), and does SO in a\nway that shows both the impropriety of the doctrine\nof governmental standing and the impropriety of that\ndoctrine even if confined, illogically, to suits by con-\ngressmen.\nIn Massachusetts V. Mellon, the Commonwealth of\nMassachusetts brought an original action in the Su-\npreme Court against various federal officials to en-\njoin, as unconstitutional, enforcement of the Mater-\nnity Act. 262 U.S. at 478. The statute provided ap-\npropriations to be apportioned among states that\nwould comply with the law's provisions for the pur-\npose of federal-state cooperation to reduce maternal\nand infant mortality and protect the health of moth-\ners and infants. Id. at 479. Massachusetts, in an\nargument exactly parallel to that the majority ad-\n62a\nvances here, claimed that the Maternity Act was a\nusurpation of power not granted to Congress, but\nreserved to the States, by the Constitution. The\nState asserted standing because its \"rights and pow-\ners as a sovereign State\n[had] been invaded.\" Id.\nThe Supreme Court responded that\nin SO far as the case depends upon the assertion\nof a right on the part of the State to sue in its\nown behalf we are without jurisdiction. In that\naspect of the case we are called upon to adjudi-\ncate, not rights of person or property, not rights\nof dominion over physical domain, not quasi-\nsovereign rights actually invaded or threatened,\nbut abstract questions of political power, of sov-\nereignty, of government.\n[T]his Court is\nwithout authority to pass abstract opinions\nupon the constitutionality of acts of Congress\nId. at 484-85.\nIn the present case we are asked to pass an ab-\nstract opinion upon the constitutionality of an act\nof the President. Unlike the Supreme Court, the\nmajority here complies with that request. But, if\nMassachusetts V. Mellon is right, the majority is\nwrong. If, on the other hand, the majority is right,\nits rationale would, as already noted, lead to the over-\nruling of Massachusetts V. Mellon, not merely in its\ngeneral approach, but on the specific situation pre-\nsented there: all states would have standing to chal-\nlenge any action by any branch of the federal govern-\nment even though nothing more concrete than dis-\nagreement about constitutional powers was at stake.\nSince this court is not empowered to overrule Massa-\n63a\nchusetts V. Mellon,ᶜ I think the reasoning of that\ncase requires a conclusion that there is no standing\nhere.\n6\nThe majority claims that Massachusetts V. Mellon is \"in\nno respect\ncontrary\" to the majority's position. Maj.\nop. at 11 n.14. But the majority then proceeds to explain that\ncase and cases that came afterward, such as National League\nof Cities V. Usery, 426 U.S. 833 (1976), overruled on other\ngrounds, Garcia V. San Antonio Metropolitan Transit Author-\nity, 53 U.S.L.W. 4135 (U.S. Feb. 19, 1985) (Nos. 82-1913 &\n82-1951), in a way that shows Massachusetts V. Mellon to be\ncontrary to its position in every respect. Thus, the majority\nquotes a passage from that decision pointing out that Massa-\nchusetts complained of federal usurpation of the reserved\npowers of the states \"by the mere enactment of the statute,\nthough nothing has been done and nothing is to be done with-\nout their consent.\" Maj. op. at 11 n.14 (quoting 262 U.S. at\n483). The majority concludes its discussion with the state-\nment that \"Massachusetts V. Mellon did not establish that\ngovernmental officials and entities necessarily and always\nlack standing to raise claims of infringement of lawful func-\ntions. Rather, the case explicitly leaves open the possibility\nof suit by a state when \"rights of the State falling within the\nscope of the judicial power' are at stake, a possibility later to\nbecome an actuality in, e.g., National League of Cities.\" Maj.\nop. at 11 n.14. That neatly expresses my point, not the ma-\njority's. The difference between Massachusetts V. Mellon and\nNational League of Cities is that in the former only an in-\njury to governmental powers was alleged while in the latter\nstates and cities were required by federal statute to expend\nmoney. See National League of Cities, 426 U.S. at 846-47.\nThat was the concrete injury in fact that conferred standing.\nThe case now before us alleges only a usurpation of govern-\nmental powers and hence, on the teaching of the two Supreme\nCourt decisions cited, is outside our jurisdiction. In short,\nMassachusetts V. Mellon is to National League of Cities as the\npresent case is to the Pocket Veto Case.\n64a\nB.\nThe Supreme Court's decisions about suits over\n\"generalized grievances\" are closely related to Mas-\nsachusetts V. Mellon and require the same result here.\nThe merits of the dispute offered us turn upon the\ninterpretation of article I, section 7, clause 2 of the\nConstitution. That is a task for which courts are\nsuited, and I would have no hesitation in reaching\nand deciding the substantive question if this were a\nsuit by a private party who had a direct stake in the\noutcome. The Pocket Veto Case, 279 U.S. 655 (1929),\nwas, of course, just such a suit.' This action, how-\nT In The Pocket Veto Case, Congress passed a bill authoriz-\ning certain Indian tribes to present their claims against the\nUnited States to the Court of Claims. 279 U.S. at 672. The\nbill was presented to the President less than ten days before\nan intersession adjournment, id.; the President neither signed\nthe bill nor returned it to the originating house, and the bill\nwas not published as a law. Id. at 673. The Indian tribes took\nthe position that the bill became law, and filed a petition in\nthe Court of Claims raising various claims in accordance with\nthe terms of the bill. The United States defended on the\nground that the bill had not become law under article I, section\n7, and the Court of Claims dismissed the petition for that\nreason. Id. The Supreme Court allowed a member of the\nHouse Committee on the Judiciary to appear as an amicus, but\nthere was no suggestion that any legislator had standing to\nsue. Id.\nWright V. United States, 302 U.S. 583 (1938), followed the\nsame format. Congress passed a bill giving the Court of\nClaims jurisdiction to adjudicate Wright's claim against the\nUnited States. 302 U.S. at 586. The United States opposed\nWright's petition, arguing that the bill had never become\nlaw, and the Court of Claims agreed. Id. Moreover, the same\npattern is evident in the other Supreme Court cases that have\ninterpreted the presentation clause. Edwards V. United States,\n286 U.S. 482 (1932), involved a private bill giving the Court\nof Claims jurisdiction to adjudicate Edwards' claim against\n65a\never, is not. This is an action by representatives of\npeople who themselves have no concrete interest in\nthe outcome but only a \"generalized grievance\" about\nan allegedly unconstitutional operation of govern-\nment. It is well settled that citizens, whose interest\nis here asserted derivatively, would have no standing\nto maintain this action.⁸ That being so, it is impos-\nthe United States; the Court of Claims certified to the Su-\npreme Court the question whether the bill became law, given\nthat it had been signed by the President after a final adjourn-\nment but within ten days of presentation. Id. at 485. La Abra\nSilver Mining Co. V. United States, 175 U.S. 423 (1899), dif-\nfers only in that there Congress passed a bill authorizing the\nAttorney General to bring suit in the Court of Claims to de-\ntermine whether an award made by a United States Commis-\nsion to La Abra had been obtained by fraud. 175 U.S. at 441.\nConsequently, in La Abra the private party, rather than the\ngovernment, raised the defense that the bill had not be-\ncome law, because signed by the President during a congres-\nsional recess. Id. at 446, 451. These cases provide no support\nfor conferring standing to raise presentation clause issues on\ncongressional plaintiffs.\n8 It is also well settled that the states would not have stand-\ning to assert such generalized grievances on behalf of their\ncitizens. Massachusetts V. Mellon also holds that a State, as\nparens patriae, may not \"institute judicial proceedings to pro-\ntect citizens of the United States from the operation of the\nstatutes thereof,\" because \"it is no part of its duty or power\nto enforce their rights in respect of their relations with the\nFederal Government.\" 262 U.S. at 485-86. The Supreme Court\nrecently reaffirmed that holding in Alfred L. Snapp & Son,\nInc. V. Puerto Rico, 458 U.S. 592, 610 n.16 (1982), while in-\ndicating that a state would have standing as parens patriae\nto \"secure the federally created interests of its residents\nagainst private defendants.\" Id. This illustrates, rather\ndramatically one would think, that what is a sufficient injury\nin fact when asserted against a private defendant may, for\nreasons of separation of powers and federalism, be deemed\n66a\nsible that these representatives should have standing\nthat their constituents lack.\nThe Supreme Court has repeatedly rejected the\nproposition that one who sues as a citizen or tax-\npayer, alleging nothing more than that the govern-\nment is acting unconstitutionally, has standing to\nsue. A naked claim that a constitutional violation\nhas occurred, the Court has said, \"would adversely\naffect only the generalized interest of all citizens in\nconstitutional governance, and that is an abstract\ninsufficient to confer standing against a branch of the federal\ngovernment. It is precisely these reasons of separation of\npowers and federalism that compel the parallel conclusion that\ninjury to governmental powers does not constitute an injury\nin fact or a judicially cognizable injury, as the Supreme Court\nhas elaborated those terms in connection with the article III\nstanding requirements.\nLest this point be misunderstood, I emphasize that I do not\nread either Mellon or Snapp as holding that the prohibition\non state parens patriae suits against the federal government\nis in all cases a constitutional limitation rather than a pru-\ndential one. In my view, that prohibition is a constitutional\nrequirement where, as in Mellon, individuals within the state\nwould lack standing to sue because they have suffered no in-\njury that is judicially cognizable under article III. To permit\nCongress to confer standing on a state in such a case would be\nto authorize evasion of the constitutional standing require-\nments by allowing the state as a representative of its citizens\nto sue when those who are represented could not. But where\nprivate individuals could satisfy the injury in fact require-\nment of article III, there is no threat to separation of powers\nor to federalism in allowing Congress to confer parens patriae\nstanding on the state as the representative of persons who\nhave suffered a concrete injury and would themselves have\nstanding. Consequently, in this second category of cases the\nrule is prudential and, although fully binding on the courts\nuntil Congress acts, may be eliminated by congressional en-\nactments.\n67a\ninjury.\" Schlessinger V. Reservists Committee To\nStop the War, 418 U.S. 208, 217 (1974). See United\nStates V. Richardson, 418 U.S. 166 (1974) ; Laird V.\nTatum, 408 U.S. 1 (1972) ; Ex parte Levitt, 302\nU.S. 633 (1937). This is true even though \"citizens\nare the ultimate beneficiaries of those [constitu-\ntional] provisions,\" Reservists, 418 U.S. at 227. Tax-\npayers face the same bar. In Frothingham V. Mellon,\n262 U.S. 447, 486 (1923), the Court denied standing\nto a federal taxpayer who alleged that a spending\nbill was unconstitutional. Despite the fact that such\nbills may have the effect of taking money from the\nindividual taxpayer and putting it to a purpose the\nConstitution interdicts, the general rule is still that\nthe taxpayer lacks standing because he \"suffers in\nsome indefinite way in common with people gen-\nerally.\" Id. at 488. See Valley Forge Christian Col-\nlege V. Americans United for Separation of Church\n& State, 454 U.S. 464, 476-81 (1982). Thus, these\nlegislators lack standing in their individual, as op-\nposed to their representative, capacities. The major-\nity appears to concede that, insisting only upon rep-\nresentative standing.\nYet, the legislators on whom this court has be-\nstowed standing have alleged only two things-an\nunconstitutional act and an impairment of their con-\nstitutional powers as a result of that act. It is clear\nthat the citizens and taxpayers these legislators rep-\nresent would not have standing if they alleged that\nthe same unconstitutional act had impaired the offi-\ncial powers of their representatives. That would be\ntrue despite the fact that citizens and taxpayers are\nthe \"ultimate beneficiaries\" of the constitutional\npowers their representatives possess. Indeed, that\nwas precisely the argument that was rejected in\nReservists, where the plaintiffs alleged that they, as\n68a\ncitizens and taxpayers, had been deprived \"of the\nfaithful discharge by members of Congress\nof\ntheir duties as members of Congress, to which all\ncitizens and taxpayers are entitled.\" 418 U.S. at 212\n(quoting Petition for Certiorari at 46).\nIf the people of the United States would not have\nstanding to bring this action (and it is undeniable\nthat they would not), then how can the representa-\ntive of the people have standing that their constitu-\nents do not? The only possible answer is that elected\nrepresentatives have a separate private right, akin to\na property interest, in the powers of their offices.\nBut that is a notion alien to the concept of a repub-\nlican form of government. It has always been the\ntheory, and it is more than a metaphor, that a demo-\ncratic representative holds his office in trust, that he\nis nothing more nor less than a fiduciary of the peo-\nple. Indeed, as I show in Part III below, the Framers\nof the Constitution most certainly did not intend to\nallow suits such as this, which means they did not\nconceive of the powers of elected representatives as\napart from the powers of the electorate. It is for\nthat reason that Judge Scalia was entirely correct in\nstating that \"no officers of the United States, of\nwhatever Branch, exercise their governmental pow-\ners as personal prerogatives in which they have a\njudicially cognizable private interest. They wield\nthose powers not as private citizens but only through\nthe public office which they hold.\" Moore, 733 F.2d\nat 959 (Scalia, J., concurring).\nJustice Frankfurter's separate opinion in Cole-\nman V. Miller, 307 U.S. 433, 460 (1939), made the\nsame point on behalf of himself and Justices Black,\nRoberts, and Douglas:\n69a\nWe can only adjudicate an issue as to which\nthere is a claimant before us who has a special,\nindividualized stake in it. One who is merely\nthe self-constituted spokesman of a constitutional\npoint of view can not ask us to pass on it. The\nKansas legislators [who challenged the state's\nratification of an amendment to the United\nStates Constitution] could not bring suit explic-\nitly. on behalf of the people of the United States\nto determine whether Kansas could still vote for\nthe Child Labor Amendment. They can not gain\nstanding here by having brought such a suit in\ntheir own names.\nId. at 467. He said that injuries to voting procedures\n\"pertain to legislators not as individuals but as po-\nlitical representatives executing the legislative proc-\ness.\" Id. at 470. The Court majority did not dis-\nagree with this SO far as suits in federal courts were\nconcerned, but found an interest sufficient to confer\nstanding only because the suit came from a state\ncourt that had found standing under state law. Id.\nat 446. Justice Frankfurter's analysis thus remains\nfully applicable to the action before us now.\nThis court now necessarily adopts as a premise to\nits reasoning that legislators, and other members of\ngovernment, have a private individual stake in their\nofficial powers that is separate from their fiduciary\nrole. If not, it is utterly anomalous to allow the rep-\nresentative to sue when those he represents may not.\nOne might as well drop the pretense, allow not only\nlegislators but citizens and taxpayers to sue, and de-\nclare Richardson, Reservists, and Frothingham over-\nruled and Justice Frankfurter's Coleman analysis\nrejected. Though the majority does not declare it,\n70a\nthat is what it has effectively accomplished for this\ncircuit with the doctrine of congressional standing.\nC.\nThe Supreme Court last Term handed down a de-\ncision that makes clear both the foundations of stand-\ning doctrine and the utter incompatibility of those\nfoundations with this court's congressional-standing\nsuperstructure. In Allen V. Wright, 104 S. Ct. 3315\n(1984), Justice O'Connor, writing for the Court ma-\njority, restated fundamentals to which we should\nrevert every time an expansion of standing is con-\ntemplated.\nArticle III of the Constitution confines the\nfederal courts to adjudicating actual \"cases\" and\n\"controversies.\" As the Court explained in Val-\nley Forge Christian College V. Americans United\nfor Separation of Church and State, Inc., 454\nU.S. 464, 471-476 (1982), the \"case or contro-\nversy\" requirement defines with respect to the\nJudicial Branch the idea of separation of pow-\ners on which the Federal Government is founded.\nThe several doctrines that have grown up to\nelaborate that requirement are \"founded in con-\ncern about the proper-and properly limited—\nrole of the courts in a democratic society.\"\nWarth V. Seldin, 422 U.S. 490, 498 (1975).\nId. at 3324. She specified the foundations of the doc-\ntrine: \"the law of Art. III standing is built on a\nsingle basic idea-the idea of separation of powers.\"\nId. at 3325. Moreover,\nthe standing inquiry must be answered by refer-\nence to the Art. III notion that federal courts\nmay exercise power only \"in the last resort, and\n71a\nas a necessity,\" Chicago & Grand Trunk R. Co.\nV. Wellman, 143 U.S. 339, 345 (1892), and only\nwhen adjudication is \"consistent with a system\nof separated powers and [the dispute is one]\ntraditionally thought to be capable of resolution\nthrough the judicial process,\" Flast V. Cohen,\n392 U.S. 83, 97 (1968). See Valley Forge, 454\nU.S., at 472-473.\nId. The concept of congressional standing, born in\nthis circuit and relied upon by the majority today, is\ninconsistent with every one of the criteria laid down\nin this passage from Allen V. Wright.\nThis may be seen by contrasting two opposing con-\nceptions of the role of the federal courts in our pol-\nity. The first, and more traditional, view is that\nfederal courts sit to adjudicate disputes between liti-\ngants; the power of the courts derives entirely from\nthe necessity to apply the law to concrete controver-\nsies. Judges interpret the Constitution and apply it\nonly out of necessity, and as a last resort, because the\nConstitution is law and may not be ignored by a\ncourt of law. In the course of adjudication, the court\nmay have to declare a statute enacted by Congress\nunconstitutional or it may have to make the same\ndeclaration concerning an act of the President. That\nis an awesome power, but it is confined, limited, and\ntamed because it is exercised only when the need to\ndecide a concrete controversy makes it inevitable. It\nis \"merely the incidental effect of what Marbury V.\nMadison took to be the judges' proper business-\n'solely, to decide on the rights of individuals.'\nScalia, The Doctrine of Standing as an Essential Ele-\nment of the Separation of Powers, 17 Suffolk U.L.\nRev. 881, 884 (1983) (footnote omitted). This view\n72a\nof the powers of the federal judiciary is the one re-\niterated by the Supreme Court in Allen V. Wright.\nTocqueville understood the genius that underlay\nthis definition of the judicial role:\n[B]y leaving it to private interest to censure the\nlaw, and by intimately uniting the trial of the\nlaw with the trial of an individual, legislation is\nprotected from wanton assaults and from the\ndaily aggressions of party spirit. The errors of\nthe legislator are exposed only to meet a real\nwant; and it is always a positive and appreci-\nable fact that must serve as the basis of a\nprosecution.\n[T]he American judge is brought into the polit-\nical arena independently on his own will. He\njudges the law only because he is obliged to\njudge a case.\nIt is true that, upon this sys-\ntem, the judicial censorship of the courts of jus-\ntice over the legislature cannot extend to all laws\nindiscriminately, inasmuch as some of them can\nnever give rise to that species of contest which is\ntermed a lawsuit.\nThe Americans have often\nfelt this inconvenience; but they have left the\nremedy incomplete, lest they should give it an\nefficacy that might in some cases prove danger-\nous.\n1 A. De Tocqueville, Democracy In America 106-07\n(T. Bradley ed. 1945).\nThe competing view, which this court adopted with\nthe congressional standing doctrine, is that \"the busi-\nness of the federal courts is correcting constitutional\nerrors, and that 'cases and controversies' are at best\nconvenient vehicles for doing SO and at worst nui-\n73a\nsances that may be dispensed with when they become\nobstacles to that transcedent endeavor.\" Valley\nForge, 454 U.S. at 489. The Valley Forge Court\ncould not have been clearer in rejecting this position:\n\"This philosophy has no place in our constitutional\nscheme.\" Id. Yet, by means of its invention of stand-\ning for officials or branches of government to seek\nthe continual arbitration of this court in their legal\ndisputes with one another, this court has adopted,\nas the law of this circuit, the philosophy decisively\nrejected in Valley Forge and Allen V. Wright.\n9 The majority insists that Allen V. Wright has \"nothing to\ndo with 'governmental standing,' but it concedes that Allen\nV. Wright emphasized that \"the traditional standing criteria\"\nare \"grounded in, and are to be applied with reference to, the\nprinciple of separation of powers.\" Maj. op. at 11 n.14. The\nmajority cannot have it both ways. My disagreement with the\nmajority, put in the technical terms of traditional standing\ncriteria, is over whether impairment of governmental powers\nis a judicially cognizable injury, that is, an \"injury in fact\"\nfor purposes of article III. Just as Massachusetts V. Mellon\nI\ndemonstrates that considerations of federalism limit the cate-\ngory of judicially cognizable injury in controversies between\na state and the United States, Valley Forge and Allen V.\nWright show, not only in their general approach but in their\nspecific application of the \"traditional standing criteria,\" that\nconsiderations of separation of powers have the same limiting\neffect. In Valley Forge the Court held that the unconstitutional\ngovernment conduct plaintiffs had alleged did not constitute\na judicially cognizable injury, because \"[a]lthough [they]\nclaim that the Constitution has been violated, they claim\nnothing else. They fail to identify any personal injury suf-\nfered by the plaintiffs as a consequence of the alleged consti-\ntutional error, other than the psychological consequence pre-\nsumably produced by observation of conduct with which one\ndisagrees.\" 454 U.S. at 485. Yet, as the Valley Forge Court\nundoubtedly was aware, psychological consequences are fami-\nliar bases for claims in other legal contexts. The Supreme\n74a\nThe difference between the two conceptions of the\njudicial power may be stated more succinctly. In the\ntraditional view, it is the necessity to decide a case\nthat creates a court's duty to \"say what the law is.\"\nMarbury V. Madison, 5 U.S. (1 Cranch) 137, 177\nCourt's refusal to treat the psychological effects of allegedly\nunconstitutional government conduct as judicially cognizable\n\"can only mean that the Court perceives that to confer stand-\ning in such cases would impermissibly alter its function.\"\nVander Jagt, 699 F.2d at 1178 (Bork, J., concurring).\nSimilarly, in Allen V. Wright, although recognizing that the\nstigmatizing injury caused by racial discrimination will con-\nfer standing in some circumstances, 104 S. Ct. at 3327, the\nCourt held that the plaintiffs did not have standing because\nthey were not personally subject to the discrimination they\nchallenged. Id. To treat this \"abstract stigmatic injury\" as\ncognizable, the Court stated, would transform the federal\ncourts into \"no more than a vehicle for the vindication of the\nvalue interests of concerned bystanders.\" Id. (quoting United\nStates V. SCRAP, 412 U.S. 669, 687 (1973)\nThe Allen V. Wright Court's treatment of the \"fairly trace-\nable\" requirement even more clearly takes a separation-\nof-powers approach. The \"fairly traceable\" requirement \"ex-\namines the causal connection between the assertedly unlawful\nconduct and the alleged injury.\" 104 S. Ct. at 3326 n.19. Yet,\nthough the Court recognized that the challenged IRS tax-\nexemption practices might make some difference to the ability\nof plaintiffs' children to receive a desegregated education, and\nthough it conceded that that harm is not only judicially cog-\nnizable but \"one of the most serious injuries recognized in our\nlegal system,\" id. at 3328, it nonetheless held that the causa-\ntion requirement was not met. Why? Because, the Court said,\n\"we rely on separation of powers principles to interpret the\n'fairly traceable' component of the standing requirement.\" Id.\nat 3330 n.26. It is evident, then, that the majority's assertion\nthat Allen V. Wright is irrelevant to governmental standing is\nunsupportable, and ignores both that opinion's general ap-\nproach to the purposes of the standing doctrine and its appli-\ncation of the technical standing criteria.\n75a\n(1803). In the new view, it is the court's desire to\npronounce upon the law that leads to the necessity to\ncreate a case. This is a case created by the court.\nThere would be no case or controversy here but for\nfabrication of the doctrine of congressional standing.\nThe court has fashioned a doctrine, in contradic-\ntion of Allen V. Wright, that transforms it from a\ntribunal exercising its powers \"only in the last resort,\nand as a necessity\" to a governing body for the entire\nfederal government, available upon request to any\ndissatisfied member of the Legislative, Executive or\nJudicial Branch. Plainly, the courts of this circuit,\nif no other, are now not the last but the first resort.\nWe have abandoned concern that our performance\nbe \"consistent with a system of separated powers\"\nfor a role of continual and pervasive intrusiveness\ninto the relationships of the branches and, indeed, re-\nlationships within the branches. Nor can it be said\neven that the disputes we invite are those \"tradi-\ntionally thought to be capable of resolution through\nthe judicial process,\" for no one ever thought, until\nwe did, that courts should step directly between the\nother branches and settle disputes, presented in the\nabstract, about powers of governance. Moreover, as\nAlexander M. Bickel said, \"the 'standing' and 'case'\nrequirement creates a time lag between legislation\nand adjudication, as well as shifting the line of\nvision. Hence it cushions the clash between the\nCourt and any given legislative majority\n\"\nA. Bickel, The Least Dangerous Branch 116 (1962).\nIn this respect, the standing requirement is like the\nrequirement of ripeness, another of the traditional\naspects of dispute resolution through the judicial\nprocess.\n76a\nCongressional standing, which must expand into\ngovernmental standing for the President, the judici-\nary, and the states, if its rationale is honored, com-\npletely dispenses with the traditional, limited func-\ntion of the judiciary and violates every one of the\ncriteria for constitutional standing laid down by the\nSupreme Court in Allen V. Wright.\nD.\nJust as Allen V. Wright teaches that standing re-\nquirements are built around the constitutional con-\ncept of \"separation of powers,\" Massachusetts V.\nMellon suggests that those same requirements also\nplay a vital part in the parallel constitutional concept\nof federalism. As separation of powers and federal-\nism apply in a context like this one, the fundamental\nconsideration appears to be the need to limit the role\nof the courts in the interplay of our various govern-\nmental institutions. The role of the courts is lim-\nited, not excluded, since a person denied a monetary\nbenefit or other concrete interest could invoke the\nauthority of the courts by asserting that a bill had\nbecome law because of the invalidity of a pocket veto.\nThe difference between a judicial function limited by\nthe doctrine of standing and one not SO limited lies\nin the relative dominance of the judicial branch, in\nthe timing of judicial action, and in the number of\nconstitutional principles generated that curb the pow-\ners and freedoms of other governmental units.\nAs Judge Scalia recently observed, \"[t]he degree\nto which the courts become converted into political\nforums depends not merely upon what issues they are\npermitted to address, but also upon when and at\nwhose instance they are permitted to address them.\"\nScalia, supra, 17 Suffolk U.L. Rev. at 892. A federal\n77a\njudiciary that is available on demand to lay down the\nrules of the powers and duties of other branches and\nof federal and state governments will quickly be-\ncome the single, dominant power in our governmental\narrangements. The concept of the fragmentation of\npower, upon which both the ideas of the separation\nof powers and of federalism rest, will be, if not\ndestroyed, at least very seriously eroded. See gener-\nally The Federalist No. 51, at 351 (J. Madison)\n(J. Cooke ed. 1961) (explaining that both separa-\ntion of powers and the division of power between\nstate and federal governments serve to protect the\nliberty of the governed by dividing the power of\ngovernment). A majority of Supreme Court Justices\nwill have something very like the power to govern\nthe nation by continuously allocating powers and in-\nhibitions to every other governmental institution. As\nChief Justice John Marshall put it in a speech to\nCongress:\nA case in law or equity was a term well under-\nstood, and of limited signification. It was a con-\ntroversy between parties which had taken a\nshape for judicial decision. If the judicial power\nextended to every question under the constitu-\ntion, it would involve almost every subject proper\nfor legislative discussion and decision; if to ev-\nery question under the laws and treaties of the\nUnited States, it would involve almost every sub-\nject on which the executive could act. The divi-\nsion of power which the gentleman had stated,\ncould exist no longer, and the other departments\nwould be swallowed up by the judiciary.\nSpeech of the Honorable John Marshall to the United\nStates House of Representatives, 18 U.S. (5 Wheat.)\n78a\nAppendix at 3, 16 (1820). The concept of standing\nprevents this undesirable centralization of authority\nby severely limiting the occasions upon which courts\nare authorized to lay down the rules for governments\nand institutions of government.\nStanding requirements, like the requirement of\nripeness, also delay the invocation of judicial power.\nThis means that there is time for the real impact of\nlaws and actions to become clear, thus making the\nconstitutional inquiry less abstract and more focuse\".\nThe law is given a chance to go into effect and have\nsome impact upon persons in the society SO that its\nconstitutionality can be judged according to its renl\neffects upon real persons in real circumstances. The\ncourts are enabled to think about real interests and\nclaims, not words. Constitutional adjudication should\noperate upon the basis of realities, not general prop\"\nsitions.\nA firm standing concept also decreases the number\nof occasions upon which courts will frame constitu\ntional principles to govern the behavior of other\nbranches and of states. There will thus be fewer\nconstitutional principles of that sort in the system\nThat, too, is a benefit. The business of government\nis intensely practical and much is accomplished by\ncompromise and accommodation. The powers of the\nbranches with respect to one another, as well as the\nreciprocal powers of the federal and state govern-\nments, ebb and flow as the exigencies of changing cir-\ncumstances suggest. It is proper and healthful that,\nthis should be so. These matters should not be always\nsettled at the outset by declarations of abstract prin-\nciple from an isolated judiciary not familiar with the\nvery real and multitudinous problems of governing.\nFluid relationships should not be frozen and the play\n79a\nremoved from the joints of government. That is pre-\ncisely the tendency that must come into being, how-\never, if elimination of standing requirements permits\nthe explosive proliferation of constitutional declara-\ntions about governmental powers.\nOur democracy requires a mixture of both princi-\nple and expediency. As Professor Bickel put the\nmatter:\n[T]he absolute rule of principle is\nat war\nwith a democratic system.\nNo society, certainly not a large and hetero-\ngeneous one, can fail in time to explode if it is\ndeprived of the arts of compromise, if it knows\nno ways of muddling through. No good society\ncan be unprincipled; and no viable society can be\nprinciple-ridden.\nA. Bickel, supra, at 64. While all branches of gov-\nernment are obliged to honor the Constitution, the\ndeclaration of constitutional principle with binding\neffect is primarily the task of the federal courts. If\nthe federal courts can routinely be brought in to\nbranches of the federal government disagree, every\ntime the federal and the state governments contend,\nthen we will indeed become a \"principle-ridden,\" in\nfact a judge-ridden, society. Traditional standing\nrequirements are a principal barrier between us and\nthat unhappy condition.\nThe arguments just made indicate that, except\nwhere a conventional lawsuit requires a judicial res-\nolution, much of the allocation of powers is best left\nto political struggle and compromise. Indeed, it was\nto facilitate and safeguard such a continuing process\nthat the checks and balances of the Constitution were\ncreated. It was to allow room for the evolution of\n80a\nthe powers of various offices and branches that the\nConstitution's specification of those powers was made\nsomewhat vague. The Framers contemplated organic\ndevelopment, not a structure made rigid at the out-\nset by rapid judicial definition of the entire subject\nas if from a blueprint. The majority finds this plan\ninadequate and the idea of political struggle between\nthe political branches distasteful, at best \"time-con-\nsuming,\" at worst involving \"retaliation.\" Maj. op.\nat 16. Just SO. That is what politics in a democracy\nis and what it involves. It is absurd to say, as the\nmajority does, that a \"political cure seems to us\nconsiderably worse than the disease, entailing, as it\nwould, far graver consequences for our constitutional\nsystem than does a properly limited judicial power\nto decide what the Constitution means in a given\ncase.\" Id. That is a judgment about how the Con-\nstitution might better have been written and it is\nnot a judgment this or any other court is free to\nmake. Moreover, I know of no grave consequences\nfor our constitutional system that have flowed from\npolitical struggles between Congress and the Presi-\ndent. This nation got along with that method of re-\nsolving matters between the branches for 185 years,\nuntil this court discerned that the nation would be\nbetter off if we invented a new role for ourselves.\nAnd, of course, it is true that matters of government\nwill be much neater, if less democratic, to the extent\nthat judges undertake to decide them in the first\ninstance. One must not, furthermore, take seriously\nthe majority's promise that this court's congressional\nstanding doctrine \"will help to preserve, not defeat,\nthe separation of powers.\" Maj. op. at 16. As I have\nshown, there is no principled way to limit the judicial\npower the majority would have us take for our own,\n81a\nand the result must inevitably lead to the destruction,\nnot the preservation, of the separation of powers.\nAs I show next, those who framed, proposed, and\nratified our Constitution chose a different mixture of\nprinciple and compromise for our polity, a different\nprocess of growth, struggle, and accommodation when\nthey chose the role to be played by courts.\nIII.\nThough we are obligated to comply with Supreme\nCourt precedent, the ultimate source of constitutional\nlegitimacy is compliance with the intentions of those\nwho framed and ratified our Constitution. The doc-\ntrine of congressional or governmental standing is\ndoubly pernicious, therefore, because it flouts not\nonly the rules enunciated and applied by the Supreme\nCourt but the historical meaning of our basic docu-\nment as well. The criteria of Allen V. Wright are not\nsimply Court-made; they reflect and express the de-\nsign of the Framers of the Constitution. No other\nconclusion is possible from a consideration of what\nthe Framers did and did not do.\nAt the outset of the Constitutional Convention,\nGovernor Randolph presented a series of resolutions\nframed by the Virginia delegation and commonly\ncalled the Virginia Plan. As Farrand says, \"[t]hese\nresolutions are important, because amended and ex-\npanded they were developed step by step until they\nfinally became the constitution of the United States.\"\nM. Farrand, The Framing of the Constitution of the\nUnited States 68 (1913). The eighth resolution pro-\nposed that the new national legislature be controlled\nby placing a veto power in a Council of Revision con-\nsisting of the executive and \"a convenient number of\nthe National Judiciary.\" 1 M. Farrand, The Records\n82a\nof the Federal Convention of 1787, at 21 (1st ed.\n1911). A Council SO composed would be controlled\nby the votes of the judiciary, and the latter would\nin that way heavily influence, and often control, the\nrelationship between the President and Congress. By\nvetoing or refusing to veto, the judiciary could up-\nhold one branch against the other and make itself\nthe umpire of the constitutional system, not in the\nlast resort or as a necessity, but on a continuing,\nfront-line basis. The judiciary would, as well, be\ndrawn up immediately next to the legislative process\nand decide what was to be law and what was not\non the basis of abstract reasoning, without the ben-\nefit conferred by the passage of time, the cooling of\npassions, and an issued framed in a concrete factual\nsetting.\nWe do not, of course, know all of the reasons why\nthe members of the Convention repeatedly defeated\nthe proposal for a Council of Revision.10 But we do\n10 The Council of Revision was initially rejected when\nGerry's motion \"which gave the Executive alone without the\nJudiciary the revisionary control on the laws\" was adopted.\n1 M. Farrand, The Records of the Federal Convention of 1787,\nat 104 (1st ed. 1911) (June 4, 1787). On three occasions\nthereafter Madison and Wilson renewed the proposal for the\nCouncil of Revision, each time without success. 1 M. Farrand,\nsupra, at 138, 140 (June 6, 1787) ; 2 M. Farrand, supra, at 73,\n80 (July 21, 1787) ; 298 (Aug. 15, 1787). Gerry raised the\nobjection that the power of judicial review was sufficient to\nprotect the judiciary from \"encroachments on their own de-\npartment,\" and protested that review of public policy was no\npart of the judicial function. 1 M. Farrand, supra, at 97-98.\nKing and Dickinson argued in addition that the proposal\nwould dilute the executive's unitary character and make it less\naccountable for the use to which this power was put. Id. at\n139, 140. Strong worried that the judges might be unable to\nbe impartial in interpreting the laws if they were given a\n83a\nknow the effect the Council would have had upon\nour constitutional arrangements and upon the role\nof the courts-effects remarkably similar to those that\nwould result from the final adoption of this circuit's\ndoctrine of governmental standing-and we do know\nthat the idea was rejected.\nThere are, however, more, and stronger, infer-\nences to be drawn from the work of the Convention\nthan merely those that may be drawn from the rejec-\ntion of the Council of Revision. We know, for ex-\nample, that the Convention drafted article III of the\nConstitution in a way that does not contemplate suits\ndirectly between the branches of government. Article\nIII extends \"judicial power\" to various categories of\n\"cases\" and \"controversies,\" which itself indicates\nthe Framers had in mind a role for the judiciary\nsimilar to the common-law function with which they\nwere familiar. It is perhaps more noteworthy that\narticle III creates, as specific, independent categories\nof federal judicial power, \"controversies\" between\nstates, between a state and citizens of another state,\nand SO on. Given that listing, it is incredible that\nFramers who intended to extend judicial power to\ndirect controversies between Congress and the Presi-\ndent failed to include SO important a category in\ntheir recitation.\nThe drafters, moreover, singled out especially sen-\nsitive categories of judicial power for the original\njurisdiction of the Supreme Court. Thus, article III\npart in making them, 2 M. Farrand, supra, at 75, Luther\nMartin pointed out that the judges could not be presumed\nmore expert in legislative affairs than the legislators, id. at 76,\nand Ghorum urged that the judges might well sacrifice the\nexecutive rather than support him against the legislature.\nId. at 79.\n84a\ngives the Supreme Court original jurisdiction over\n\"all Cases affecting Ambassadors, other public Min-\nisters and Consuls, and those in which a State shall\nbe Party.\" Had they contemplated that the federal\ncourts would regularly supervise relationships be-\ntween Congress and the President, the Framers\nwould undoubtedly have placed that class of cases\nwithin the Supreme Court's original jurisdiction.\nThat inference is made certain by the fact that arti-\ncle III contemplated that \"inferior [federal] courts\"\nmight not be established at all. In fact, federal ques-\ntion jurisdiction was not given to the lower federal\ncourts for almost a century after the framing of the\nConstitution. Act of Mar. 3, 1875, ch. 137, § 1, 18\nStat. 470, 470. That fact also demonstrates that the\npolitical branches were not to sue each other. The\nFramers simply cannot have contemplated that dis-\nputes directly between Congress and the President\nwould be decided in the first instance in any of the\nthirteen existing state court systems.\nIt is notorious that the Constitution nowhere men-\ntions any power of judicial review. That fact has\nbeen much bruited in the never-ending debate over\nthe legitimacy of the power asserted in Marbury V.\nMadison. It is entirely conceivable, of course, that\nFramers who thought the Constitution would be law,\nand who made it supreme law in article VI of the\nConstitution, simply assumed that the Constitution\nwould be applied by the courts when cases arose\nrequiring it. Indeed, there are a number of com-\nments preserved from the Convention debates that\nsuggest this is precisley what some members did as-\nsume. 11 But it is absolutely inconceivable that Fram-\n11 See, e.g., 1 M. Farrand, The Records of the Federal Con-\nvention of 1787, at 97 (1st ed. 1911) (remarks of Gerry)\n85a\ners who intended the federal courts to arbitrate\ndirectly disputes between the President and Congress\nshould have failed to mention that function or to\nhave mentioned judicial review at all. The statesmen\nwho carefully spelled out the functions of Congress\nand the President and the details of how the execu-\ntive and legislative branches might check each other\ncould hardly have failed even to mention the judicial\nlynchpin of the constitutional system they were creat-\ning-not if they had even the remotest idea that the\njudiciary was to play such a central and dominant\nrole.\nThe intentions of the Framers need not be derived\nentirely from the records of the Constitutional Con-\nvention, nor even from the structure and language\nof the document itself. Courts may and frequently\ndo look to evidence of what was said and done imme-\ndiately after the original act of composition. Con-\nsider, for example, Hamilton's well-known defense\nof the institution of judicial review in The Federalist\nNo. 78. That defense, in essence, is that the limita-\ntions on the constitutional powers of Congress \"can\nbe preserved in practice no other way than through\nthe medium of the courts of justice; whose duty it\nmust be to declare all acts contrary to the manifest\ntenor of the constitution void.\" The Federalist No.\n78, at 524 (A. Hamilton) (J. Cooke ed. 1961). It\nis important that Hamilton's discussion of judicial\nreview is immediately preceded by a passage in\nwhich he repeatedly emphasizes the comparative im-\npotence of the judiciary. The enormous power that\n109 (remarks of King) ; 2 M. Farrand, supra, at 76 (remarks\nof L. Martin) ; 93 (remarks of Madison) ; 299 (remarks of\nGouverneur Morris). But see 2 M. Farrand, supra, at 298\n(remarks of Mercer) ; 299 (remarks of Dickenson).\n86a\nthe judiciary would acquire from jurisdiction over\ninter- and intra-branch disputes would have made a\nmockery of his quotation of Montesquieu to the effect\nthat \"of the three powers above mentioned [the oth-\ners being the legislative and the executive], the JU-\nDICIARY is next to nothing.\" Id. at 523 n.* (quot-\ning Spirit of Laws, vol. 1, at 186). Had Hamilton\neven suspected that disagreements between the pop-\nular branches over their respective powers were\n\"cases\" or \"controversies\" within the meaning of\narticle III, it is not to be believed that he would\nhave described the judiciary as \"from the nature of\nits functions,\nalways\nthe least dangerous to\nthe political rights of the constitution\nId. at\n522. In fact, the judiciary would be the branch most\ndangerous to those political rights.\nIndeed, the only discussion in The Federalist of\npossible judicial involvement in disputes between the\nPresident and Congress comes in connection with the\nimpeachment power. The problem, Hamilton says,\nwas to create \"[a] well constituted court for the\ntrial of impeachments.\" The Federalist No. 65, at\n439 (A. Hamilton) (J. Cooke ed. 1961). He defines\nthat court's jurisdiction in terms of those offenses\nthat derive from \"the abuse or violation of some\npublic trust. They are of a nature which may with\npeculiar propriety be denominated POLITICAL, as\nthey relate chiefly to injuries done immediately to\nthe society itself.\" Id. He then considers, and re-\njects, the proposal that the Supreme Court should\nhave been given this jurisdiction, in part on the\ngrounds that it lacks the independence and authority\nto discharge this delicate task without a dangerous\nconfrontation with one branch or the other. Id. at\n441. The majority's doctrine of congressional stand-\n87a\ning brings the two political branches before us as\nadversaries just as much as would giving trials of\nimpeachments to the judiciary. Today's dispute is\nonly over a pocket veto that has little continuing\nimportance, but the invitation we now issue will\nultimately bring before us the most profound and\nagitated issues of politics and government. The task\nof umpiring disputes between the coordinate branches\nwhich this court has agreed to undertake is no more\nsuited to judicial competence than trial by impeach-\nment, and raises the same or greater dangers of\nrepeated and head-on confrontation with the other\nbranches that underlie Hamilton's objections.¹² Thus,\nthe whole tenor of Hamilton's authoritative discus-\nsion of the Judicial Branch is completely inconsistent\nwith the existence of the jurisdiction the majority\nclaims to possess.\nA similar point may be made about Hamilton's dis-\ncussion of the President's veto power in The Fed-\neralist No. 73. Hamilton asserts that the use of the\nveto power to prevent \"the passing of bad laws\" was\n12 Tocqueville saw this point as well. After speaking of the\nAmerican practice of leaving the invocation of judicial power\nto contests of private interest, he said:\nI am inclined to believe this practice of the American\ncourts to be at once most favorable to liberty and to public\norder. If the judge could attack the legislator only openly\nand directly, he would sometimes be afraid to oppose him;\nand at other times party spirit might encourage him to\nbrave it at every turn. The laws would consequently be\nattacked when the power from which they emanated was\nweak, and obeyed when it was strong; that is to say,\nwhen it would be useful to respect them, they would often\nbe contested; and when it would be easy to convert them\ninto an instrument of oppression, they would be respected.\n1 A. de Tocqueville, supra, at 107.\n88a\nonly a secondary purpose of its adoption by the\nFramers. \"The primary inducement to conferring\nthe power in question upon the executive,\" he says,\n\"is to enable him to defend himself.\" The Federalist\nNo. 73, at 495 (A. Hamilton) (J. Cooke ed. 1961).\nThe risk is that \"he might gradually be stripped of\nhis authorities by successive resolutions or annihi-\nlated by a single vote.\" Id. at 494. Thus, \"the case\nfor which the veto power is chiefly designed [is] that\nof an immediate attack upon the constitutional rights\nof the executive.\" Id. at 497. But, if this court's\ngovernmental standing doctrine is correct, Hamilton\nhas described a power that is largely superfluous.\nThe President would not need to defend himself\nthrough the veto power-he could at once challenge\nany \"vote[s]\" or \"resolutions\" that endangered his\n\"constitutional rights\" as President in the courts.\nEven the Anti-Federalists did not urge the exist-\nence of such unbounded judicial power as an objec-\ntion to the proposed constitution. The most detailed\nAnti-Federalist critique of judicial review was sup-\nplied by the pseudonymous Brutus, whose principal\nargument was that the federal courts would by con-\nstitutional interpretation bring about \"an entire sub-\nversion of the legislative, executive and judicial\npowers of the individual states.\" H. Storing, The\nComplete Anti-Federalist 2.9.139 (1981). His de-\nscription of judicial review is revealing: when the\nlegislature enacts laws that the court judges to be\nunconstitutional, \"the court will take no notice of\nthem,\" and this will discourage the legislature from\npassing \"laws which they know the courts will not\nexecute.\" Id. at 2.9.148. Had Brutus thought the\ncourts were free not only to refuse to execute an un-\nconstitutional law, but to review it for unconstitu-\n89a\ntionality where no question of execution had arisen,\nhis argument would have gained immeasurably from\nsome mention of that fact. There is none.\nIt must be concluded, therefore, that those who\ndrafted, proposed, and ratified the Constitution did\nnot intend that the judiciary should entertain suits\ndirectly between the political branches of the na-\ntional government. The judiciary they envisioned\nwas to play no such dominant role in affairs of state.\nTheir intention precludes the doctrine of standing\ndevised by this court to thrust the judiciary into that\nleading position.\nIV.\nTo make its standing doctrine more palatable this\ncourt has adopted a doctrine of remedial or equitable\ndiscretion. This doctrine permits the court to say\nthat a congressional plaintiff has standing, and hence\nthat the court has jurisdiction, and yet refuse to hear\nthe case because the court is troubled by the separa-\ntion-of-powers implications of deciding on the merits.\nWe have no such equitable discretion, however, for\n\"[w]e have no more right to decline the exercise of\njurisdiction which is given, than to usurp that which\nis not given.\" Cohens V. Virginia, 19 U.S. (6\nWheat.) 264, 404 (1821). By claiming that discre-\ntion, the court has created for itself a kind of certi-\norari jurisdiction-which it took an act of Congress\nto create for the Supreme Court. There would be no\nneed to violate the settled principle of federal juris-\nprudence that a court with jurisdiction may not de-\ncline it if the article III limits on this court's juris-\ndiction were adhered to.¹³\n13 The standing requirements of article III are jurisdic-\ntional-discretion plays no part in their application. The\n90a\nThe introduction of discretion into the standing\ninquiry is therefore an attempt to change the very\nnature of that doctrine. Indeed, this court has\nplainly indicated as much: \"The most satisfactory\nmeans of translating our separation-of-powers con-\ncerns into principled decisionmaking is through a\ndoctrine of circumscribed equitable discretion.\n[T]his test avoids the problems engendered by the\ndoctrines of standing, political question, and ripe-\nness.\" Riegle V. Federal Open Market Committee,\n656 F.2d 873, 881 (D.C. Cir.), cert. denied, 454 U.S.\n1082 (1981). Indeed it does. The equitable discre-\ntion doctrine avoids the problems of standing, politi-\ncal question, and ripeness by ignoring them. But\nthose problems are real; they relate to the properly\nlimited role of the courts in a democratic polity. To\navoid them in this way is to say that the limit upon\nthe courts' capacity to intrude upon areas of demo-\ncratic governance comes not from the Constitution\nbut entirely from the courts' sense of fitness. That\nis hardly an adequate safeguard. Moreover, this\ncourt has no right to avoid the problems of standing.\nThey arise in large part from the Constitution and\nthe Supreme Court has made it abundantly clear, in\ncases such as Valley Forge and Allen V. Wright, that\nthey must be addressed, and addressed with the sep-\naration of powers in mind.¹⁴ The doctrine of reme-\nprudential standing requirements are no less jurisdictional.\nI am aware of no case in which the Court has held that a lower\nfederal court may decide that those requirements need not\nbe satisfied if the court thinks it would be inequitable to deny\nstanding.\n14 The only justification for Riegle's claim that separation-\nof-powers considerations are irrelevant to the standing in-\nquiry was an inference from the fact that the Supreme Court\n91a\ndial discretion removes separation-of-powers consid-\nerations from the jurisdictional inquiry and con-\nverts them into mere interests to be balanced. Thus,\nthe doctrine relegates separation of powers to second-\nclass status and subordinates the structure of our\nconstitutional system to the discretion of this court.\nIt is impossible for me to view that prospect with\nequanimity.\nIt is plain on the face of these developments that\nwhat we are observing constitutes a major aggran-\ndizement of judicial power. Any lingering doubts on\nthis score are laid to rest by this court's stated pre-\nsumption in favor of exercising discretion to decide\n2 case when, if a decision on the merits were with-\nheld, \"non-frivolous claims of unconstitutional action\nwould go unreviewed by a court.\" Riegle, 656 F.2d\nat 882; see also Moore, 733 F.2d at 956; Vander\nJagt, 699 F.2d at 1170, 1174 n.23. The function of\nthe article III case-or-controversy limitations, includ-\nvacated our judgment finding standing in Goldwater V. Carter,\n617 F.2d 697 (D.C. Cir.), judgment vacated on other grounds,\n444 U.S. 996 (1979), on grounds of nonjusticiability, with\nsome Justices relying on the ripeness doctrine and others on\nthe political question doctrine. Riegle, 656 F.2d at 880. That\ninference was dubious to begin with, for Justices who found\nthe case nonjusticiable on other grounds had no need to dis-\ncuss standing. The evidence, which I have already recited in\nPart II-C supra, that the Court now regards separation-\nof-powers considerations as inseparable from the constitu-\ntional component of standing analysis, consists of explicit\nstatements by the Court, rather than inferences from state-\nments the Court did not make because there was no need to\nmake them. Therefore, even if Riegle was a justifiable de-\nparture from this court's established standing analysis, which\nI do not believe, there is no warrant whatsoever for adhering\nto that departure in the wake of the invalidation of the premise\non which it rested.\n92a\ning the standing requirement, is, however, precisely\nto ensure that claims of unconstitutional action will\ngo unreviewed by a court when review would under-\nmine our system of separated powers and undo the\nlimits the Constitution places on the power of the\nfederal courts. The Supreme Court has repeatedly\nsaid that standing is not \"a requirement that must\nbe observed only when satisfied.\" Valley Forge, 454\nU.S. at 489. See also Reservists, 418 U.S. at 227\n(\"[t]he assumption that if respondents have no\nstanding to sue, no one would have standing, is not a\nreason to find standing\") ; Richardson, 418 U.S. at\n179 (\"the absence of any particular individual or\nclass to litigate these claims gives support to the ar-\ngument that the subject matter is committed to the\nsurveillance of Congress, and ultimately to the politi-\ncal process\"). In each of these cases the Court was\nfaced with the contention that if the plaintiff was not\npermitted to litigate the issue, no one could. In none\nof those cases did the Court make the response which,\nif the governmental standing doctrine were correct,\nwould have been most natural, obvious and ready to\nhand: that, while citizens or taxpayers have no\nstanding to raise abstract claims about the allegedly\nunconstitutional operation of government, their rep-\nresentatives undoubtedly would. If the doctrine of\ngovernmental standing were correct, there would\nalways be some governmental official or entity whose\npowers were affected by alleged violations of any\nparticular constitutional provision. In Richardson, to\ntake a single example, members of Congress could\nhave sued to force the President to publish the budget\nof the Central Intelligence Agency, or to force Con-\ngress to force the President to do so, on the grounds\nthat they had been denied an opportunity to vote to\nappropriate or not to appropriate funds for specific\n93a\n1\nCIA programs by virtue of the statute permitting the\nAgency to account for its expenditures \"solely on the\ncertificate of the Director.\" 50 U.S.C. § 403j (b). A\nsimilar analysis would apply to Reservists and Valley\nForge. The concession that there are constitutional\nquestions that cannot be litigated because of standing\nrequirements is, therefore, an additional proof that\n4\nthere is no congressional or governmental standing.\n7\nThe limits that standing places upon judicial power\ndo not mean that many important questions of consti-\na\ntutional power will forever escape judicial scrutiny.\nMany of the constitutional issues that congressional\nr\nor other governmental plaintiffs could be expected to\nlitigate would in time come before the courts in suits\nbrought by private plaintiffs who had suffered a di-\ni-\nrect and cognizable injury. That is entirely appro-\npriate, and it belies the argument that this court's\ngovernmental standing doctrine is necessary to pre-\nserve our basic constitutional arrangements.\n1,\nAt bottom, equitable discretion is a lawless doctrine\nthat is the antithesis of the \"principled decisionmak-\nto\ning\" that was invoked to justify its manufacture. A\n0\ndoctrine of remedial discretion more than \"suggests\nthe sore of rudderless adjudication that courts strive\nto avoid,\" Vander Jagt, 699 F.2d at 1175-it is rud-\nderless adjudication. A sampling of the cases in\nd\nwhich this doctrine has been invoked makes that quite\nse\nclear. For example, in Riegle the court suggested that\nthe equitable discretion doctrine should apply only to\nto\ncongressional plaintiffs, not to private plaintiffs. 656\nF.2d at 881. Indeed, the Riegle court said that the\nfact that a private plaintiff would have standing to\n- -\nsue would weigh against hearing the congressional\nIs\nplaintiff on the merits, because under those circum-\nto\nstances the unconstitutional action or statute would\nic\n94a\nnot go unreviewed. Id. In Vander Jagt, a group of\ncongressmen sued their fellow legislators, and they\nsued both as congressmen and as individual voters—\nthat is, as private plaintiffs. 699 F.2d at 1167 n.1.\nThe court held that the plaintiffs had standing both\nas congressmen and as voters. Id. at 1168, 1169 n.4.\nNonetheless, the court dismissed all the claims because\n\"this case raises separation-of-powers concerns simi-\nlar to Riegle's.\" Id. at 1175. Had it followed Riegle,\nthe Vander Jagt court would have reached the merits\nof the private plaintiffs' claims-a result I would\nhave found even more objectionable than what the\ncourt actually did, see id. at 1183 n.3 (Bork, J., con-\ncurring), but one which would at least have had the\nvirtue of predictability. It is hardly an argument in\nfavor of remedial discretion that whatever standards.\none panel fashions the next is free to disregard on\n\"equitable\" grounds.\nUltimately, the doctrine of equitable discretion\nmakes cases turn on nothing more than the sensitivity\nof a particular trio of judges. One cannot, unfor-\ntunately, have any solid grounds for supposing that\nthese aesthetic judgments, though subjective and\nvarying, will at least mark out an irreducible realm\nof \"startling| [] unattractive[ness].\" Vander Jagt,\n699 F.2d at 1176. As the spectacle of public officials\nsuing other public officials over abstract constitutional\nquestions becomes familiar, the taint will wear off,\nand what seemed unattractive will appear inevitable.\nAlexander Pope's dictum, though grown trite, is too\napt to ignore: \"Vice is a monster of so frightful\nmien/As to be hated needs but to be seen;/Yet seen\ntoo oft, familiar with her face,/We first endure, then\npity, then embrace.\" An Essay on Man, Epistle 11,\n1. 217. The combination of congressional standing\nand equitable discretion will very probably prove to\n95a\nhave been but a way-station to general, continual, and\nintrusive judicial superintendence of the other institu-\ntions in which the Framers chose to place the business\nof governing.\nV.\nThe majority maintains that its holding that appel-\nlants have standing is supported by decisions of the\nSupreme Court and required by binding precedent in\nthis circuit. Neither of those claims withstands anal-\nysis.\nA.\nThe principal Supreme Court decisions the majority\ndeploys in support of its position are Coleman V.\nMiller, 307 U.S. 433 (1939) ; United States V. ICC,\n337 U.S. 426 (1949) ; Chapman V. FPC, 345 U.S. 153\n(1953) ; Nixon V. Administrator of General Services,\n433 U.S. 425 (1977) ; and INS V. Chadha, 103 S. Ct.\n2764 (1983). An inspection of these cases, however,\nreveals that they do not support the revolutionary\nproposition for which they are conscripted.\nThe majority states that Coleman V. Miller, 307\nU.S. 433 (1939), proves that \"a claim that is founded\non a specific and concrete harm to [lawmaking]\npowers\" is \"judicially cognizable.\" Maj. op. at 13-14.\nColeman proves nothing of the kind. But the case is\nnot merely inapposite to the point for which the ma-\njority cites it. In fact, the Supreme Court's reason-\ning affirmatively demonstrates that the majority is\nwrong and that the appellants before us have no\nstanding to maintain this action.\nIn Coleman, a group of Kansas State Senators who\nhad voted to reject a proposed amendment to the fed-\neral Constitution challenged in the state courts the\nvalidity of the Lieutenant Governor's tie-breaking\nvote in favor of ratification. 307 U.S. at 436. The\n96a\nSupreme Court found that they had standing, upon a\ngrant of certiorari, to contest the merits of an ad-\nverse decision by the Kansas Supreme Court. But\nChief Justice Hughes' opinion for the majority made\nit clear that the Court accorded standing to obtain\nreview of a federal constitutional question only be-\ncause there existed a legal interest accepted as suffi-\ncient for standing by the highest state court. Thus,\nthe opinion held that the state senators had \"an in-\nterest in the controversy which, treated by the state\ncourt as a basis for entertaining and deciding the\nfederal questions, is sufficient to give the Court juris-\ndiction to review that decision.\" Id. at 446 (emphasis\nadded).\nThe critical importance of state court standing to\nobtain federal constitutional review was made even\nclearer by the distinction the Chief Justice drew be-\ntween Leser V. Garnett, 258 U.S. 130 (1922), and\nFairchild V. Hughes, 258 U.S. 126 (1922). Both cases\ninvolved suits by citizens to have the nineteenth\namendment declared not a part of the Constitution.\nThe only difference between the cases relevant to the\nstanding issue was that Leser was brought in the\nMaryland courts and Fairchild was brought in a fed-\neral court.¹⁵ As the Chief Justice pointed out, the\n15 The majority offers a different basis for distinguishing\nbetween Leser and Fairchild-the fact that the plaintiff in\nLeser was a citizen of Maryland, which had refused to extend\nsuffrage to women, while the named plaintiff in Fairchild was\na citizen of New York, which had amended its constitution to\ngrant women suffrage. See maj. op. at 14 n.15. The majority\nfinds this difference a \"more plausible basis for distinguishing\nthe two cases,\" but that would be irrelevant even if it were\ntrue. The question is not how we would distinguish those\ncases, but how the Coleman Court distinguished them, and it\nis clear that the basis offered by Chief Justice Hughes was\n97a\nSupreme Court on the same day in opinions written\nby the same Justice (Brandeis, J.) took jurisdiction\nover the Maryland case, stating that the laws of\nMaryland authorized the suit, but held that the fed-\neral court was without jurisdiction because plaintiffs,\nhaving only a general interest in government accord-\ning to law, an interest possessed by every citizen, had\nno standing. 307 U.S. at 440.\nJustice Frankfurter wrote separately for himself\nand three other Justices to deny that the plaintiffs in\nColeman had standing. Frankfurter clearly thought\nthat a legislator's interest in his official powers could\nnot confer standing in federal courts because such in-\nterests were not \"matters of 'private damage.\" 307\nU.S. at 470. He expressly agreed with the idea that\nthat in Leser the citizen's suit was commenced in state court\nand allowed to go forward under the laws of the state, whereas\nin Fairchild the suit was brought in federal court. Indeed, the\nChief Justice made no mention whatsoever of the fact that\nthe only named plaintiff in Fairchild was a citizen of New\nYork. He described Fairchild as simply \"a suit by citizens\nof the United States,\" 307 U.S. at 440.\nThe majority concludes that the Coleman Court shared its\nnovel rationale for distinguishing Leser from Fairchild, be-\ncause the Court said that \"[t]he interest of the plaintiffs in\nLeser V. Garnett as merely qualified voters at general elections\nis certainly much less impressive than the interest of the\ntwenty senators in the instant case.\" 307 U.S. at 441. The\nquoted language implies, at most, only that the Coleman Court\nwas unwilling to take the position that in any case in which a\nstate court determined that the plaintiffs had standing, no\nmatter how remote, abstract, or generalized the plaintiffs'\ngrievance might be, the Supreme Court would be bound to\nreview the state court's decision if it fell within the Court's\nstatutory jurisdiction. That does not alter the fact that the\nColeman Court perceived the interest of the Kansas legislators\nas of a type that would not give them standing to bring suit\nin federal court.\n98a\nstanding under Kansas law could confer standing in\nthe United States Supreme Court. See id. at 465-66.\nHe thus rejected the distinction made by Leser and\nFairchild and adopted by Chief Justice Hughes in\nColeman. 16 The Court majority's adoption of that dis-\n16 It may be that Coleman drew the distinction it did, and\nthus allowed review of a claim heard in a state court under\nstate standing rules more permissive than federal standing\nrules, because to deny review in such cases would leave in\nplace a body of state court interpretations of the federal Con-\nstitution that the Supreme Court could never pass upon. The\nresult might be federal constitutional law that differed from\nstate to state. The problem of erroneous or differing state\ncourt interpretations of the United States Constitution and\nlaws can be avoided only if the Supreme Court accepts the\nstate's basis of standing as sufficient for review or if it re-\nquires state courts to apply federal standing rules in order\nto entertain suits based on federal law.\nDoremus V. Board of Education, 342 U.S. 429 (1952), can be\nread as adopting the latter course. In Doremus, the Court\ncharacterized the state court's opinion as \"advisory\" and\ndismissed the appeal (from a declaratory judgment that a\nstate statute was constitutional) on the grounds that \"be-\ncause our own jurisdiction is cast in terms of 'case or con-\ntroversy,' we cannot accept as the basis for review, nor as\nthe basis for conclusive disposition of an issue of federal law\nwithout review, any procedure which does not constitute\nsuch.\" 342 U.S. at 434 (emphasis added). The emphasized\nlanguage suggests that the Court might have vacated a state\ncourt judgment enjoining enforcement of the statute, but that\nthe Court would simply dismiss an appeal from a state court\njudgment upholding the challenged statute (as the Doremus\nCourt in fact did). If Doremus means that the Supreme\nCourt has adopted this approach as one of general applica-\nbility, it would follow that there is yet another reason why\nColeman lends no support to the majority's position: even\nColeman's narrow holding would then no longer be good law\nbecause that holding expressly rests on the state court's de-\ncision that the state senators had standing to sue under state\nlaw.\n99a\nin\ntinction shows not only that Coleman's finding of\nstanding is confined to cases where states recognize\nstanding in their own courts but demonstrates also\nin\nthat the same plaintiffs would not have standing in\na federal court. All nine Justices in Coleman agreed\nto the latter proposition. The case before us was\nbrought in a federal court. Coleman proves, there-\nfore, that the plaintiffs here have no standing. It is,\nin\nto say the least, distinctly peculiar that the majority\ncites the case for its own contrary conclusion.\nhe\nThe majority draws from United States V. ICC the\nproposition that courts may not avoid justiciable con-\ntroversies \"simply because one or both parties are co-\nthe\nordinate branches of the government.\" Maj. op. at\n10. In whatever limited sense this statement may be\ntrue, it has no application where the only alleged\nbasis for the plaintiff's standing is its powers as one\nbe\nof the contending branches, and hence the statement\nis not relevant to the present case. This is a suit in\na\nwhich the standing of appellants rests exclusively on\nan alleged impairment of their respective governmen-\ntal powers. United States V. ICC was not that at all.\nas\nThough the government was appealing an order of\nthe ICC, its real opponents were railroads from which\nit sought reparations in its proprietary, not its gov-\nernmental, capacity. 337 U.S. at 428. Thus the gov-\nernment's standing did not rest on impairment of\ngovernmental powers. As the Court said, \"[t]he\nbasic question is whether railroads have illegally ex-\nacted sums of money from the United States.\" Id. at\n430. Moreover, because the railroads were present as\n\"the real parties in interest,\" id. at 432, the situation\nin United States V. ICC was essentially the same as\nwhen the United States petitions for a writ of man-\ndamus directed to a district court. Despite the dis-\n100a\ntrict judge's name on the petition, the real adversary\nis the party on the other side of the litigation. It is\nnot an action by the Executive Branch against part\nof the Judicial Branch to determine their respective\ngovernmental powers. So, too, United States V. ICC\nwas not a suit by the Executive Branch against an\nindependent agency over their respective governmen-\ntal powers.\nFurthermore, because the ICC is an independent\nagency, the President had no power to terminate the\ncontroversy by ordering the ICC to reverse its deci-\nsion denying the government money damages. See\ninfra at pp. 50-51. That fact constitutes an additional\nreason for the Court's conclusion (which the Court\nrested on the presence of a dispute between the gov-\nernment and the railroads, see 337 U.S. at 430-31)\nthat \"the established principle that a person cannot\ncreate, a justiciable controversy against himself has\nno application here.\" Id. at 431. It also suggests that\nthe government's standing might not have been sus-\ntained by the Court but for the ICC's status as an in-\ndependent agency.\nIn Chapman, which the majority construes as al-\nlowing standing based on infringement of govern-\nmental powers, see maj. op. at 11, the Secretary of\nthe Interior and an association of rural electric co-\noperatives challenged the FPC's issuance of a license\nto a power company to build a hydroelectric station\nat a site that Congress allegedly \"reserved\nfor\npublic development and SO has placed\nbeyond the\nlicensing power of the Federal Power Commission.\"\n345 U.S. at 156. The Secretary claimed that both his\ngeneral duties relating to conservation of water re-\nsources and his \"specific interest\" in fulfilling his\nstatutory duty to market public hydroelectric power\n101a\nwere \"adversely affected by the Commission's order.\"\nId. The Court neither endorsed nor repudiated that\nargument. Its entire discussion of standing reads as\nfollows:\nWe hold that petitioners have standing. Differ-\nences of view, however, preclude a single opinion\nof the Court as to both petitioners. It would not\nfurther clarification of this complicated specialty\nof federal jurisdiction, the solution of whose\nproblems is in any event more or less determined\nby the specific circumstances of individual situa-\ntions, to set out the divergent grounds in support\nof standing in these cases.\nId.\nIt is hard to imagine a holding more confined to its\nfacts-for the Court supplied no rationale for its deci-\nsion. But, to begin with, we may observe that in\nChapman there were private parties on both sides of\nthe dispute, the one defending its right to the license\nit had been granted by the Commission, the other\nclaiming that its right to a preference in sales of\nsurplus power by the Secretary had been impaired.\nSince the court held that the electric cooperatives had\nbeen aggrieved, within the meaning of 16 U.S.C.\n§ 8252, by the Commission's action, its parallel hold-\ning as to the Secretary, who had been allowed to in-\ntervene in administrative proceedings before the Com-\nmission, see United States V. FPC, 191 F.2d 796, 799\n(4th Cir. 1951), was not strictly necessary to decide\nthe merits.\nFurthermore, because the site was clearly within\nthe public domain,¹⁷ the court may have agreed with\n17 Justice Douglas, joined in dissent by Justice Black and\nChief Justice Vinson, pointed out that the Roanoke Rapids\n102a\nthe lower court that \"the United States, representing\nthe people of the country, may have an interest in the\nconstruction of a power project,\" United States V.\nFPC, 191 F.2d at 800, while disagreeing with the\nlower court's contention that that fact \"does not con-\nfer upon the Secretary of the Interior any authority\nto go into court for its protection.\" Id. That would\nmake Chapman an instance in which the Secretary\nwas allowed to sue on behalf of the United States\nover the federal proprietary interest in a site within\nthe public domain. In this connection, it is striking\nthat the lower court in Chapman read United States\nV. ICC as \"hold[ing] merely that suit by the United\nStates to protect its interests is not precluded merely\nbecause the suit must be brought against a govern-\nmental agency. Nothing is said to indicate that an\nofficer of the government may go into court against\nsuch agency to protect the public's interest with\nrespect to a matter as to which he is charged with\nsite was a part of the public domain, because (1) the Roanoke\nis a navigable stream over which Congress has plenary power,\n(2) the !water power inherent in a navigable stream belongs\nto the federal government, and (3) the dam sites on a navi-\ngable stream are public property even if the title to the stream-\nbed is in private hands. 345 U.S. at 176. Justice Douglas\nthought that the public nature of the site suggested, on the\nmerits, that Congress had not intended to authorize private\ndevelopment. See id. at 177. The Court majority disagreed,\nnot on the grounds that the site was not in the public domain,\nbut because it viewed the pertinent legislation as \"a legislative\nfinding that the proposed projects, no matter by whom they\nmay be built, are desirable and consistent with the congres-\nsional standards for the ordered development of the Nation's\nwater resources.\" Id. at 163. It is clear, then, that the Secre-\ntary was in substance alleging that rights over property in\nthe public domain had, by the action of the Commission, im-\nproperly been vested in private hands.\n103a\nno duty or responsibility.\" Id. Thus, Chapman may\nthe\nhave turned simply on whether or not the Secretary\nV.\nwas in fact charged with the duty of representing\nthe\nthe United States' property interest in such mat-\ncon-\nters-in which event, it is clear that had the Secre-\ntary not been a proper party, the Solicitor General\nould\nwould have been. As in United States V. ICC, then,\nstanding was in all likelihood based on the govern-\nment's proprietary interests rather than on infringe-\nithin\nment of the Secretary's governmental powers.\nThat suit by some member of the executive branch\ntates\nwas appropriate is also clear, because Chapman in-\nvolved neither an inter- nor intra-branch dispute.\nerely\nThe FPC was created as an independent agency.\nSee 16 U.S.C. § 792 (1982) (Commissioners ap-\nan\npointed by President by and with the advice of the\nSenate for terms of five years) ; see also 444 U.S.C.\nwith\n§ 3502 (10) (1982) (listing the Federal Energy Reg-\nwith\nulatory Commission (the successor to the FPC) as\nan \"independent regulatory agency\"). Among other\nanoke\nthings, that means that the Commissioners are \"offi-\nower,\nlongs\ncer[s] who occupy no place in the executive depart-\nnavi-\nment and who exercise[] no part of the executive\npower vested by the Constitution in the President.\"\nuglas\nHumphrey's Executor V. United States, 295 U.S. 602,\nthe\n628 (1935). The dispute in Chapman, then, was a\ndispute between the Executive Branch and an agency\ngreed,\noutside the Executive Branch. That agency was a\nlative\ncreature of Congress, charged with substantial inde-\nthey\npendent responsibility and given substantial dele-\nagres-\ngated powers, but not itself a coordinate branch. A\nsolution to the dispute was not within the legal con-\nSecre-\ntrol of the President. For although no statute ex-\nin\npressly denies that a Federal Power Commissioner\nim-\ncan be removed by the President without cause, it is\n104a\nclear from the regulatory and adjudicative functions\nof the Commission that, as in Weiner V. United States,\n357 U.S. 349, 356 (1958), \"we are compelled to con-\nclude that no such power is given to the President\ndirectly by the Constitution, and none is impliedly\nconferred upon him by statute simply because Con-\ngress said nothing about it.\" Since, under the ra-\ntionale of Humphrey's Executor, the President could\nnot order the Commission to comply with the Execu-\ntive Branch's view of the public interest, a suit by\nthe government in its proprietary capacity was the\nnecessary means of resolving the dispute, and was\nclearly allowable under United States V. ICC.\nIt may be, then, that the fact that the Executive's\ndispute was with an independent agency was re-\ngarded by some Justices as sufficient to confer stand-\ning. It may be that some Justices were persuaded\nby the presence of a private party claiming a prop-\nerty right that the Secretary wished to extinguish.\nIn this respect, too, Chapman parallels United States\nV. ICC. We cannot know the rationales of the various\nJustices, but there is certainly no basis for using\nan unexplained case as the reason for creating a\ngeneral rule of standing for all branches and mem-\nbers of branches to assert their legal rights directly\nagainst one another when it is clear that such a gen-\neral rule is contrary to acticle III and Supreme Court\nprecedent.\nThe majority claims that Nixon V. Administrator\nof General Services, 433 U.S. 425, 439 (1977), \"in-\ndicat[es] that [an] incumbent President would 'be\nheard to assert' [a] claim that [a statute] unconsti-\ntutionally impinges upon the autonomy of the Execu-\ntive Branch.\" Maj. op. at 8. The majority supposes\nthat this means the President would have standing\n105a\nto sue because his governmental powers had been\ninvaded without any other injury. That is an aston-\nishing inference to draw from a decision that has\ncon-\ndent\nabsolutely nothing to do with governmental standing\nand does not in any way suggest that the President\ncould sue Congress or one of his own subordinates in\nCon-\nthe Executive Branch to defend his constitutional\nra-\npowers.\ncould\nFormer President Nixon's standing to challenge\nxecu-\nby\nthe constitutionality of the Presidential Recordings\nthe\nand Materials Preservation Act rested upon his alle-\ngation that the statute disposed of materials that\nwas\nwere his personal property. 433 U.S. at 431, 435-36.\nHe raised the constitutional prerogatives of the pres-\nidency not as a basis for standing but as grounds of\nre-\nsubstantive law that invalidated the Act. The situa-\ntion was no different than when any private plaintiff\nwho has standing because of a threat to his property\nadvances a constitutional contention on the merits\nguish.\nof the dispute.\ntates\nThe majority has apparently misinterpreted the\nCourt's rejection of an argument that the former\nusing\nPresident could not rely upon rights pertaining to\na\nan incumbent President. This was a jus tertii argu-\nment-that, for prudential reasons, the federal courts\nrectly\nshould not allow a plaintiff to challenge the constitu-\ngen-\nCourt\ntionality of a statute on the grounds that it infringes\nthe constitutional rights of others. See generally\nValley Forge, 454 U.S. at 474; Singleton V. Wulff, 428\n\"in-\nU.S. 106, 113-14 (1976). Thus, the passage the ma-\n'be\njority cites from Nixon V. Administrator states only:\nonsti-\n\"We reject the argument that only an incumbent Pres-\nxecu-\nident may assert such claims [of separation of powers\nand the presidential privilege of confidentiality] and\nhold that appellant, as a former President, may also be\nheard to assert them.\" 433 U.S. at 439. It is far-\n106a\nfetched enough to infer from this that the Court was\nsaying an incumbent President could sue Congress\ndirectly, but the inference disappears without a trace\nwhen it is realized that this was a jus tertii discus-\nsion and that the Court was not even remotely con-\ncerned with an impingement on the autonomy of the\nExecutive Branch as a basis for standing. Nixon V.\nAdministrator lends the majority no support what-\never.\nThe majority also makes the untenable claim that\nINS V. Chadha indicates that Congress has a judi-\ncially cognizable interest in vindicating its constitu-\ntional powers. In Chadha, the INS, the executive\nagency charged with enforcing the immigration laws,\nagreed with Chadha that the legislative veto author-\nized by section 244 (c) (2) of the Immigration and\nNationality Act, 8 U.S.C. § 1254 (c) (2) (1982), was\nunconstitutional. 103 S. Ct. at 2772. Agreeing that\nunder these circumstances the court of appeals had\nrightly allowed both Houses of Congress to intervene,\nthe Court said: \"We have long held that Congress is\nthe proper party to defend the validity of a statute\nwhen an agency of government, as a defendant\ncharged with enforcing the statute, agrees with plain-\ntiffs that the statute is inapplicable or unconstitu-\ntional. See Cheng Fan Kwok V. INS, [392 U.S. 206],\n210 n.9 [(1968) ]; United States V. Lovett, 328 U.S.\n303 (1946). 103 S. Ct. at 2778. There was, in\nChadha as in the cases the Court cited, an aggrieved\nindividual who sought relief that ran only against the\nExecutive Branch: that satisfied the injury-in-fact,\ncausation, and redressability requirements of article\nIII. Indeed, the Court specifically held that \"prior to\nCongress' intervention, there was adequate Art. III\nadverseness even though the only parties were the\n107a\nINS and Chadha.\" Id. Although the INS agreed\nthat the statute requiring it to deport Chadha was\nunconstitutional, but for the court of appeals' ruling\nto that effect, the INS would have deported Chadha.\nId. Congress, though nominally a party, was in real-\nity much more in the position of an amicus curiae.\nNo judgment could be entered against Congress,\nwhose position as an intervenor differed from status\nas an amicus only in the ability to petition for certi-\norari. Congress' intervention, in other words, merely\nheightened the \"concrete adverseness\" of what was\nalready a case-or-controversy. It is a far cry from\nthat carefully limited holding to saying that Congress\nsuffers a judicially cognizable injury when its law-\nmaking powers are infringed. See maj. op. at 13-14.\nThe foregoing analysis demonstrates, I think, that\nthe cases relied upon by the majority lend it no sup-\nport and that some of them show its positions to be\nwrong. But if a construction seemingly favorable to\nthe majority's doctrine of general governmental\nstanding could somehow be tortured out of one of\nthese or some other cases, those decisions would re-\nmain anomalies and exceptions that should not be\nused to construct general doctrine. If we begin to\ngeneralize from aberrations, taking as our model the\nabnormal, we will ultimately produce not a natural\nbut a deformed thing, a doctrine that is not Jekyll\nbut Hyde; and that is what is being built in this cir-\ncuit, a constitutional monstrosity. Constitutional doc-\ntrine should continually be checked not just against\nwords in prior opinions but against basic constitu-\ntional philosophy. When that is done it becomes\nplain, as I have already shown, that the doctrine of\ncongressional, and hence of governmental, standing\nhas no legitimate place in our jurisprudence.\n108a\nB.\nIt is also not the case that binding precedent in\nthis circuit requires us to hold that appellants have\nstanding. The majority rests this conclusion on Ken-\nnedy V. Sampson, 511 F.2d 430 (D.C. Cir. 1974),\nand Moore V. U.S. House of Representatives, 733\nF.2d 946 (D.C. Cir. 1984), cert. denied, 53 U.S.L.W.\n3483 (U.S. Jan. 7, 1985). See maj. op. at 8, 9 n.13.\nThat, I think, will clearly not do. In Kennedy, this\ncourt held that a senator had standing to challenge\nthe legality of an intrasession pocket veto because the\nveto nullified his vote on the bill to which it applied.\nIn reaching that holding, the Kennedy court nowhere\naddressed the separation-of-powers considerations\nthat pervade the standing inquiry as articulated and\napplied in subsequent Supreme Court cases, notably\nValley Forge and Allen V. Wright. The Kennedy\nCourt's discussion of article III standing turned ex-\nclusively on a party's fitness to litigate and did not\ndepend on separation-of-powers considerations. 511\nF.2d at 433. That view of standing had been en-\ndorsed by the Supreme Court a few years before\nKennedy was decided. See Flast V. Cohen, 392 U.S.\n83, 100-01 (1968). But Flast's view of standing has\nproved to be an aberration, for divorcing standing\nfrom separation-of-powers considerations inexorably\nleads to successive accretions to the power of the fed-\neral judiciary, a result the Framers certainly did not\nintend. Valley Forge and Allen V. Wright demon-\nstrate that the Court, reversing the course it took in\nFlast, has restored separation-of-powers considera-\ntions as the central premise of the constitutional\nstanding requirement. These recent Supreme Court\ndecisions are flatly inconsistent with the method of\nanalyzing the standing of congressional plaintiffs the\n109a\nKennedy court employed. At a minimum, therefore,\nwe are bound to abandon Kennedy's rationale, and\nany reaffirmation of Kennedy, to be valid, must rest\non a different standing analysis.\nIn view of the virtual identity, for purposes of\nstanding analysis, between Kennedy and the litiga-\ntion now before us, an effort to supply an alternative\nbasis for Kennedy's result is essential if Kennedy is\nto continue to be regarded as binding precedent.¹⁸\n18 Concurring in Vander Jagt, 699 F.2d at 1177, I sug-\ngested that we adhere to the \"distinction between diminution\nof a legislator's influence and nullification of his vote,\" 699\nF.2d at 1180, which the en banc court had adopted in Gold-\nwater V. Carter, 617 F.2d 697 (D.C. Cir.), judgment vacated\non other grounds, 444 U.S. 996 (1979). Under the Goldwater\ntest, congressional plaintiffs have standing only if \"the alleged\ndiminution in congressional influence\namount[s] to a\ndisenfranchisement, a complete nullification or withdrawal of\na voting opportunity.\" 617 F.2d at 702. By contrast, the posi-\ntion adopted by the panel opinion in Vander Jagt treats any\nsubstantial diminution of a legislator's influence on the legis-\nlative process as a judicially cognizable grievance. Vander\nJagt, 699 F.2d at 1168; see also Riegle, 656 F.2d at 880. Upon\nfurther reflection, it seems to me that not even the Goldwater\n\"nullification\" test is adequate to the standing inquiry. When\nthe interest sought to be asserted is one of governmental\npower, there can be no congressional standing, however con-\nfined.\nTo begin with, it is impossible to find in the structure of\nthe Constitution a limited doctrine of congressional standing.\nThe history and structure of the Constitution rule out the\npossibility that the Framers intended article III jurisdiction\nto extend to intra-branch or inter-branch disputes over in-\nfringement of official powers. That being so, there is no room\nto argue-nor any suggestion in the text of the Constitution—\nthat they intended to single out the nullification of a legisla-\ntor's vote for special treatment. The ultimate question is\nwhether the provisions in the Constitution that confer various\n110a\nIndeed, because none of this court's congressional\nstanding cases, including Moore, rests on the premise\nthat separation-of-powers considerations must inform\nthe article III standing inquiry, those cases cannot\npossibly be binding precedent.19\ngovernmental powers on the coordinate branches and reserve\npowers to the states were meant to serve as a direct and in-\ndependent basis for judicial review. As I have shown in Part\nIV of this opinion, that is unquestionably not what the\nFramers intended. As I have shown in Part I, if- their inten-\ntions are to be overridden in the name of vindicating constitu-\ntional grants of governmental power, they must be overridden\nwherever the Constitution or other law makes such a grant.\nThe results of that rationale, as I have shown in Parts II and\nIII, are incompatible with binding Supreme Court precedent\non the subject of standing. The conclusion must be that even\nthe Goldwater test allows us a jurisdiction and a power that\narticle II forbids.\n19 The panels in Riegle and Vander Jagt explicitly refused\nto consider separation-of-powers implications in connection\nwith the standing inquiry. See Riegle, 656 F.2d at 880; Vander\nJagt, 699 F.2d at 1170 & n.5. In Harrington V. Bush, 553 F.2d\n190 (D.C. Cir. 1977), the court did suggest that separation-\nof-powers issues should play some role in its standing inquiry,\nid. at 215, but it also stated that \"we do not rest our denial\nof standing on these separation of powers grounds.\" Id. The\nopinion for the en banc court in Goldwater, 617 F.2d 697,\nat most assigned only this supportive, nondispositive, weight\nto separation-of-powers considerations. In Moore, the panel\nopinion acknowledged that Valley Forge \"reinforces the prin-\nciple that where separation-of-powers concerns are present,\nthe plaintiff's alleged injury must be specific and cognizable\nin order to give rise to standing.\" 733 F.2d at 951 (foot-\nnote omitted). But there was no discussion whatsoever of\nwhether impairment of a legislator's official powers could\nbe treated as judicially cognizable injury without violating\nthat \"principle.\" The panel contended itself with the bare\nassertion that \"[t]he injury alleged by appellants here is to\nan interest positively identified by the Constitution.\" Id.\n111a\nAlthough the majority views Kennedy and Moore\nas binding precedent, it offers no real defense of the\nstanding analysis employed in those cases, or of the\nequitable discretion doctrine itself. Instead, the ma-\njority suggests that it need not consider the doctrine\nof equitable discretion here because that doctrine ap-\nplies only to \"actions by individual congressmen\nwhose real grievance consists of their having failed\nto persuade their fellow legislators of their point of\nview, and who seek the court's aid in overturning the\nresults of the legislative process.\" Maj. op. at 12-13.\nThus the court now holds, for the first time, that\nCongress, or either of its Houses, has standing to sue\nthe President for allegedly infringing its lawmaking\npowers, and that even the limited prudential role that\nthe equitable discretion doctrine assigns to separa-\ntion-of-powers considerations is inapplicable in such\ncases. That is tantamount to adopting a per se rule\nthat Congress has standing to sue the President\nwhenever it plausibly alleges an actual impairment\nof its lawmaking powers. But if Congress may sue\nunder these circumstances, it should follow that a\ncongressional plaintiff may sue whenever he plau-\nsibly alleges an actual impairment of his lawmaking\npowers. The harm, in each case, is of the same kind\n-an injury to lawmaking powers. Kennedy stated\nin dictum that the injury suffered by Congress was\n\"direct,\" while the injury suffered by an individual\nmember of Congress was \"derivative\" and \"indirect.\"\n511 F.2d at 435, 436. But that distinction has con-\nsistently been treated as immaterial in this court's\ncongressional standing cases, and the majority does\nnot purport to rely on it now. That is quite under-\nstandable, for once impairment of governmental pow-\ners is deemed sufficient to confer standing it is ob-\n112a\nvious that an individual member of Congress suffers\nimmediately rather than remotely, as those concepts\nare employed in the causation branch of the article\nIII standing inquiry. Moreover, the harm to an in-\ndividual legislator is much greater, for his ability to\nengage in political struggle with the President is far\nless than the ability of an entire House or of the en-\ntire Congress. The majority, if it applied the ra-\ntionale for its per se rule consistently, would there-\nfore abandon the equitable discretion doctrine alto-\ngether.\nInstead, the majority confines that doctrine to\ncases in which the court believes that congressional\nplaintiffs are not attempting to \"overturn[] the re-\nsults of the legislative process.\" Maj. op. at 13. The\nlegislative process, of course, is implicitly and quite\narbitrarily defined as a process that ends when \"Con-\ngress has passed an Act.\" Maj. op. at 13. That was\nfar from obvious to the Framers, who debated at\nsome length whether the veto improperly gave the\nExecutive a share in legislative power. See, e.g., 2\nM. Farrand, The Records of the Federal Convention\nof 1787, at 73-80 (1st ed. 1911). Thus, The Fed-\neralist had to defend the President's qualified veto\npower against the charge that it violated the prin-\nciple of separation of powers. That defense took the\nform, not of denial that the veto power was a legis-\nlative power, but of an argument that separation of\npowers was not an absolutist principle, but one\nwhich was \"entirely compatible with a partial inter-\nmixture of those departments for special purposes,\npreserving them, in the main, distinct and uncon-\nnected.\" The Federalist No. 66, at 445, 446 (A.\nHamilton) (J. Cooke ed. 1961) (applying this rea-\nsoning to the Senate's power to try impeachments\n113a\nfers\nand to the President's veto power). See also 2 M.\nFarrand, supra, at 75 (remarks of Gerry) (arguing\nagainst the Council of Revision on the grounds that\nin-\n\"[i]t was making the Expositors of the Laws [the\nto\nJudiciary], the Legislators which ought never to be\nfar\ndone\"); id. (remarks of Gouverneur Morris) (re-\nen-\nsponding to Gerry with the observation that \"the\nra-\nJudges in England had a great share in ye Legisla-\ntion\"). Would the majority contend that the Vice-\nPresident's tie-breaking vote is not part of the legis-\nlative process? Of course, if the alternative defini-\nto\ntion of the legislative process as including the veto\n(and, on the same reasoning, the pocket veto) were\nre-\naccepted, it would follow, on the majority's own rea-\nThe\nsoning, that neither Congress nor the congressional\nplaintiffs have standing to bring this action, for they\nCon-\nwould, on that definition, be attempting to overturn\nwas\nthe results of the legislative process.\nat\nApart from that, the majority offers no explana-\nthe\ntion of why a legislator who has \"failed to persuade\n2\n[his] fellow legislators\" to enact a bill should be\ntreated differently from a legislator who has failed\nFed-\nto persuade them to reenact the bill to which the\nveto\n\"pocket veto\" had been applied. If \"the principle\nthat a legislator must lack collegial or 'in-house'\nthe\nremedies before this court will confer standing,\"\nRiegle, 656 F.2d at 879, is, as the majority appears\nof\nto think, the sole basis for the equitable discretion\none\ndoctrine, and if that principle is applied consistently,\nthen the equitable discretion doctrine must be applied\nto the congressional plaintiffs in the suit before us\ntoday. That being true, the doctrine of equitable\n(A.\ndiscretion should have barred the suit by Senator\nKennedy in Kennedy V. Sampson: as the Riegle\ncourt pointed out, he \"had collegial remedies"
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