Cambell v. Clinton

• Citation: 203 F.3d 19
• Decision Date: 18 February 2000
• Docket Number: No. 99-5214,99-5214
• Parties: (D.C. Cir. 2000) Tom Campbell, Member, U.S. House of Representatives, et al.,Appellants v. William Jefferson Clinton, President of the United States, Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

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203 F.3d 19 (D.C. Cir. 2000) Tom Campbell, Member, U.S. House of Representatives, et al.,Appellants
v.
William Jefferson Clinton, President of the United States, Appellee No. 99-5214 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued October 22, 1999
Decided February 18, 2000

Appeal from the United States District Court for the District of Columbia(No. 99cv01072)

Jules L. Lobel argued the cause for appellants. With him on the briefs were H. Lee Halterman, Joel E. Starr, Michael Ratner, Jennifer M. Green, Franklin Siegel, William Goodman, and James R. Klimaski.

William B. Schultz, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellee.On the brief were David W. Ogden, Acting Assistant Attorney General, Mark B. Stern and Robert M. Loeb, Attorneys, and Wilma A. Lewis, U.S. Attorney.

Before: Silberman, Randolph, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Separate concurring opinion filed by Circuit Judge Silberman.

Separate opinion concurring in the judgment filed by Circuit Judge Randolph.

Separate concurring opinion filed by Circuit Judge Tatel.

Silberman, Circuit Judge:

A number of congressmen, led by Tom Campbell of California, filed suit claiming that the President violated the War Powers Resolution and the War Powers Clause of the Constitution by directing U.S. forces' participation in the recent NATO campaign in Yugoslavia.The district court dismissed for lack of standing. We agree with the district court and therefore affirm.

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I.

On March 24, 1999, President Clinton announced the commencement of NATO air and cruise missile attacks on Yugoslav targets. Two days later he submitted to Congress a report, "consistent with the War Powers Resolution," detailing the circumstances necessitating the use of armed forces, the deployment's scope and expected duration, and asserting that he had "taken these actions pursuant to [his] authority ... as Commander in Chief and Chief Executive." On April 28, Congress voted on four resolutions related to the Yugoslav conflict: It voted down a declaration of war 427 to 2 and an "authorization" of the air strikes 213 to 213, but it also voted against requiring the President to immediately end U.S. participation in the NATO operation and voted to fund that involvement. The conflict between NATO and Yugoslavia continued for 79 days, ending on June 10 with Yugoslavia's agreement to withdraw its forces from Kosovo and allow deployment of a NATO-led peacekeeping force.¹Throughout this period Pentagon, State Department, and NATO spokesmen informed the public on a frequent basis of developments in the fighting.

Appellants, 31 congressmen opposed to U.S. involvement in the Kosovo intervention, filed suit prior to termination of that conflict seeking a declaratory judgment that the President's use of American forces against Yugoslavia was unlawful under both the War Powers Clause of the Constitution and the War Powers Resolution ("the WPR"). See 50 U.S.C. § 1541 et seq. The WPR requires the President to submit a report within 48 hours "in any case in which United States Armed Forces are introduced ... into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances," and to "terminate any use of United States Armed Forces with respect to which a report was submitted (or required to be submitted), unless the Congress ... has declared war or has enacted a specific authorization for such use of United States Armed Forces" within 60 days. Appellants claim that the President did submit a report sufficient to trigger the WPR on March 26, or in any event was required to submit a report by that date, but nonetheless failed to end U.S. involvement in the hostilities after 60 days. The district court granted the President's motion to dismiss, see Campbell v. Clinton, 52 F. Supp.2d 34 (D.D.C. 1999), and this appeal followed.

II.

The government does not respond to appellants' claim on the merits. Instead the government challenges the jurisdiction of the federal courts to adjudicate this claim on three separate grounds: the case is moot; appellants lack standing, as the district court concluded; and the case is non-justiciable. Since we agree with the district court that the congressmen lack standing it is not necessary to decide whether there are other jurisdictional defects.

The question whether congressmen have standing in federal court to challenge the lawfulness of actions of the executive was answered, at least in large part, in the Supreme Court's recent decision in Raines v. Byrd, 521 U.S. 811 (1997).Raines involved a constitutional challenge to the President's authority under the short-lived Line Item Veto Act. Individual congressmen claimed that under that Act a President could veto (unconstitutionally) only part of a law and thereby diminish the institutional power of Congress. Observing it had never held that congressmen have standing to assert an institutional injury as against the executive,

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see id. at 821,² the Court held that petitioners in the case lacked "legislative standing" to challenge the Act. The Court observed that petitioners already possessed an adequate political remedy, since they could vote to have the Line Item Veto Act repealed, or to provide individual spending bills with a statutory exemption. See id. at 829.

Thereafter in Chenoweth v. Clinton, 181 F.3d 112, 115 (D.C. Cir. 1999), emphasizing the separation-of-powers problems inherent in legislative standing, we held that congressmen had no standing to challenge the President's introduction of a program through executive order rather than statute. As in Raines, appellants contended that the President's action inflicted an institutional injury upon Congress, in this case by circumventing its legislative authority, but, we said,

It is uncontested that the Congress could terminate the [contested program] were a sufficient number in each House so inclined. Because the parties' dispute is there-fore fully susceptible to political resolution, we would[under circuit precedent] dismiss the complaint to avoid"meddl[ing] in the internal affairs of the legislative branch." Applying Raines, we would reach the same conclusion.

Id. at 116 (citation omitted).

There remains, however, a soft spot in the legal barrier against congressional legal challenges to executive action, and it is a soft spot that appellants sought to penetrate. In 1939 the Supreme Court in Coleman v. Miller voted 5-4 to recognize the standing of Kansas State legislators in the Supreme Court to challenge the actions of the Kansas Secretary of State and the Secretary of the State Senate. See 307 U.S. 433 (1939). That case arose out of a State Senate vote on the ratification of a constitutional amendment, the Child Labor Amendment, proposed by Congress in 1924. The State Senate split 20 to 20, and the Lieutenant Governor, the presiding officer of the Senate, then cast a deciding vote in favor. The State House subsequently also passed a ratification resolution. Thereupon the twenty State Senators who voted against ratification plus one more (who presumably had voted for the resolution) brought a mandamus action in the State Supreme Court challenging the Lieutenant Governor's right to vote.³ They sought an order compelling the Secretary of the Senate to erase the endorsement on the resolution and restraining the Secretary of State from authenticating the resolution and passing it on to the Governor. The Supreme Court of Kansas entertained the action but ruled against the plaintiffs on the merits. Granting certiorari, the United States Supreme Court determined that "at least the twenty senators whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ... have an interest ... sufficient to give the Court jurisdiction," id. at 446, because they have a legal interest "in maintaining the effectiveness of their votes." Id. at 438.

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In Raines the plaintiff congressmen had relied on Coleman to argue that they had standing because the presidential veto had undermined the "effectiveness of their votes." The Supreme Court noted that Coleman might be distinguished on grounds that the federal constitutional separation of powers concerns that underlay its decision in Raines (and which we emphasized in Chenoweth) were not present, or that if the Court in Coleman had not taken the case a question of federal law--the ratification vel non by the Kansas Legislature--would remain as decided by the Kansas Court. But cf. Coleman, 307 U.S. at 465-66 (opinion of Frankfurter, J.).But the Court thought it unnecessary to cabin Coleman on those grounds. See Raines, 521 U.S. at 824 n.8. Instead, the Court emphasized that the congressmen were not asserting that their votes had been "completely nullified":

They have not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated...

Nor can they allege that the Act will nullify their votes in the future in the same way that the votes of the Coleman legislators had been nullified ...In addition, a majority of Senators and Congressmen can vote to repeal the Act, or to exempt a given appropriations bill....

Id. at 824.

Here the plaintiff congressmen, by specifically defeating the War Powers Resolution authorization by a tie vote and by defeating a declaration of war, sought to fit within the Coleman exception to the Raines rule. This parliamentary tactic led to an extensive argument before us as to exactly what the Supreme Court meant by a claim that a legislator's vote was completely "nullified."

It is, to be sure, not readily apparent what the Supreme Court meant by that word. It would seem the Court used nullify to mean treating a vote that did not pass as if it had, or vice versa. The "nullification"...