The Honorable Helen Chenoweth v. Clinton

• Decision Date: 02 July 1999
• Docket Number: No. 98-5095,98-5095
• Parties: (D.C. Cir. 1999) The Honorable Helen Chenoweth, the Honorable Bob Schaffer, the Honorable Don Young, and the Honorable Richard W. Pombo, all in their official capacities, Appellants v. William J. Clinton, President of the United States, Kathleen A. McGinty, Chair of the Council on Environmental Quality, individually and in their official capacities, and the United State of America, Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 112

181 F.3d 112 (D.C. Cir. 1999)

The Honorable Helen Chenoweth, the Honorable Bob Schaffer, the Honorable Don Young, and the Honorable Richard W. Pombo, all in their official capacities, Appellants v. William J. Clinton, President of the United States, Kathleen A. McGinty, Chair of the Council on Environmental Quality, individually and in their official capacities, and the United State of America, Appellees

No. 98-5095

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 29, 1999

Decided Decided July 2, 1999

Appeal from the United States District Court for the District of Columbia(No. 97cv02954)

William Perry Pendley argued the cause and filed the briefs for appellants. Todd S. Welch entered an appearance.

Ethan G. Shenkman, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Lois J. Schiffer, Assistant Attorney General, and Martin W. Matzen, Attorney. Jared A. Goldstein, Attorney, entered an appearance.

Before: Edwards, Chief Judge, Ginsburg and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Opinion concurring in the judgment filed by Circuit Judge Tatel.

Ginsburg, Circuit Judge:

Appellants Helen Chenoweth, Bob Schaffer, Don Young, and Richard W. Pombo, all of whom are Members of the United States House of Representatives, sued to enjoin implementation of President Clinton's American Heritage Rivers Initiative (AHRI). They claimed the President's creation of the program by executive order exceeded his statutory and constitutional authority. Characterizing the Representatives' claim as a "generalized grievance[ ] about the conduct of government," the district court held the plaintiffs lacked standing to sue and dismissed their complaint. The Representatives now appeal, arguing that the district court failed properly to apply our decisions in Kennedy v. Sampson, 511 F.2d 430 (1974), and Moore v. U.S. House of Representatives, 733 F.2d 946 (1984). In part based upon the intervening decision in Raines v. Byrd, 521 U.S. 811 (1997), we affirm the judgment of the district court.

I. Background

The President announced his intention to create the AHRI in his 1997 State of the Union address. Soon afterward, the Council on Environmental Quality published a notice describing the program. Under the AHRI, it explained, federal agencies would be called upon to provide support for local efforts to preserve certain historically significant rivers and riverside communities. See 62 Fed. Reg. 27,253 (May 19, 1997). In June, 1997 Representatives Chenoweth, Schaffer, and Pombo introduced a bill "[t]o terminate further development and implementation" of the AHRI. H.R. 1842, 105th Congress. The bill never came to a vote. The President formally established the AHRI by executive order in September, 1997. See Exec. Order 13,061, 62 Fed. Reg. 48,445.

Their legislative efforts having failed, the appellants brought this lawsuit, claiming the AHRI violates the Anti Deficiency Act, 31 U.S.C. § 1301 et seq., the Federal Land Management and Policy Act, 43 U.S.C. § 1701 et seq., the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and the Commerce, Property, and Spending Clauses of, and the Tenth Amendment to, the Constitution of the United States. According to the complaint, the President's issuance of the AHRI by executive order, without statutory authority therefor, "deprived [the plaintiffs] of their constitutionally guaranteed responsibility of open debate and vote on issues and legislation" involving interstate commerce, federal lands, the expenditure of federal monies, and implementation of the NEPA. The Representatives sought a declaration that the issuance of the AHRI was unlawful and an injunction against its implementation.

The district court granted the President's motion to dismiss, concluding that the injury the Representatives claim to have suffered--the deprivation of their right as Members of the Congress to vote on (or, more precisely, against) the AHRI--is "too abstract and not sufficiently specific to support a finding of standing." The Representatives then took this appeal.

II. Analysis

The Representatives' claim of standing is predicated upon the theory that by issuing Executive Order 13,061, the President denied them their proper role in the legislative process and, consequently, diminished their power as Members of the Congress. They rely primarily upon Moore, in which we held that the infringement of a legislator's "right[ ] to participate and vote on legislation in a manner defined by the Constitution" is an injury sufficiently direct and concrete to support the legislator's standing to sue. 733 F.2d at 951. To understand why their facially plausible argument is unpersuasive, some background is necessary.

The general principle that governs our standing analysis is firmly established: A federal court cannot, consistent with Article III, exercise jurisdiction over a lawsuit unless the plaintiff has suffered a "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751 (1984). Application of the general rule to a Member of the Congress who objects to the actions of other participants in the legislative process, however, is a subject upon which this court has not spoken with great clarity.

Historically, political disputes between Members of the Legislative and the Executive Branches were resolved without resort to the courts. See Raines, 521 U.S. at 826-28 (describing conflicts between Congress and various Presidents decided in the political arena). When Members of the Congress first began to seek judicial relief from allegedly illegal executive actions that impaired the exercise of their power as legislators, however, we were initially receptive to the idea that we had jurisdiction to hear their complaints. In Kennedy, for instance, we found that a United States Senator had standing to challenge the President's pocket veto of legislation that both Houses of the Congress had approved.The allegedly unlawful veto, we reasoned, injured the Senator in a direct and personal way because it effected a "diminution of congressional influence in the legislative process." 511 F.2d at 435. On the same theory, we held that a group of Senators had standing to sue the President for depriving them of a constitutionally-mandated opportunity to vote on the abrogation of a treaty. See Goldwater v. Carter, 617 F.2d 697, 702 (en banc), vacated on other grounds, 444 U.S. 996 (1979).

After we decided Kennedy, however, the Supreme Court began to place greater emphasis upon the separation of powers concerns underlying the Article III standing requirement. Compare Flast v. Cohen, 392 U.S. 83, 100 (1968) ("The question whether a particular person is a proper party to maintain [an] action does not, by its own force, raise separation of powers problems"), with Warth v. Seldin, 422 U.S. 490, 498 (1975) (standing requirement "founded in concern about the proper--and properly limited--role of the courts in a democratic society"), and Allen v. Wright, 468 U.S. at 752 ("[T]he law of Art. III standing is built on a single basic idea--the idea of separation of powers"). In decisions following Kennedy we noted that those concerns are present-indeed, are particularly acute--when a legislator attempts to bring an essentially political dispute into a judicial forum. Accordingly, in Riegle v. Federal Open Market Committee, 656 F.2d 873 (1981), we dismissed the complaint of a Senator who challenged the constitutionality of procedures by which certain members of the FOMC were appointed; this result, we held, was necessary in order to avoid an "obvious intrusion by the judiciary into the legislative arena." Id. at 881. We did not, however, disavow the standing analysis of Kennedy and Goldwater. Instead, creating a doctrine of "circumscribed equitable discretion," we held that the court would decline to hear the complaint of a Congressman who "could obtain substantial relief from his fellow legislators" regardless whether he had standing to sue. Id. Keeping distinct our analysis of standing and our consideration of the separation of powers issues raised when a legislator brings a lawsuit concerning a legislative or executive act, we concluded, made consonant two otherwise irreconcilable principles: first, that congressional and private plaintiffs should be treated alike for the purpose of determining their standing, and second, that courts should refrain from interfering in disputes arising out of the legislative process when a political remedy is available from within that process. See id. at 877-82.

But the circle did not long stay squared. Observing that jurisdictional issues such as standing are not of a sort usually committed to the discretion of courts, see Moore, 733 F.2d at 962 (Scalia, J., concurring), we questioned Riegle as frequently as we applied it. See, e.g., Humphrey v. Baker, 848 F.2d 211, 214 (1988) (concerns about the doctrine of equitable discretion "continue to trouble us"); Melcher v. Federal Open Market Comm., 836 F.2d 561, 565 n.4 (1987) (expressing doubt as to continuing viability of doctrine). The practical significance of Riegle was also open to question: With one exception, namely, Bliley v. Kelley, 23 F.3d 507, 510 (1994), every decision in which we applied the doctrine of equitable discretion was either reversed upon another jurisdictional ground by the Supreme Court, see Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985), vacated sub nom. Burke v. Barnes, 479 U.S. 361 (1987), or reached the same result that would have obtained had we treated separation of powers concerns as part of our inquiry into the plaintiff's standing. See, e.g., Moore, 733 F.2d at 956; Vander Jagt v. O'Neill, 699 F.2d 1166, 1175 (1983). In Moore, for instance, we held that although congressmen had standing to...