Skaggs v. Carle
| Decision Date | 22 April 1997 |
| Docket Number | No. 95-5323,95-5323 |
| Citation | 110 F.3d 831 |
| Parties | , 79 A.F.T.R.2d 97-2258, 65 USLW 2721 David E. SKAGGS, et al., Appellants, v. Robin H. CARLE, Clerk of the United States House of Representatives, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Louis R. Cohen argued the cause for appellants, with whom Lloyd N. Cutler, Jonathan J. Frankel, Bruce A. Ackerman and David A. Westbrook were on the briefs.
Kerry W. Kircher, Senior Assistant Counsel, U.S. House of Representatives, argued the cause for appellee, with whom Geraldine R. Gennet, Deputy General Counsel, was on the brief.
David G. Leitch, Amy F. Kett, Daniel J. Popeo and Paul D. Kamenar were on the brief for amici curiae Washington Legal Foundation, et al.
Before: EDWARDS, Chief Judge, WILLIAMS, and GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
The appellants, a group comprising 27 Members of the United States House of Representatives, six of their constituents, and the
[324 U.S.App.D.C. 89] League of Women Voters, appeal the judgment of the district court dismissing their challenge to two rules of the House of Representatives. The appellants claim that the rules violate the Constitution of the United States by infringing upon the rights of the individual Representatives to speak, to be heard, and to be counted. Because the injury that the appellants allege is hypothetical rather than actual, they lack standing to pursue this case. We therefore affirm the judgment of the district court.
On January 4, 1995 the House of Representatives adopted House Rules XXI(5)(c) and XXI(5)(d). The former provides that: "No bill or joint resolution, amendment, or conference report carrying a Federal income tax rate increase shall be considered as passed or agreed to unless so determined by a vote of not less than three-fifths of the Members voting." The latter provides that: "It shall not be in order to consider any bill, joint resolution, amendment, or conference report carrying a retroactive Federal income tax rate increase."
The appellants brought suit challenging the constitutionality of each rule. See Skaggs v. Carle, 898 F.Supp. 1 (D.D.C.1995). They argued that the three-fifths majority required by Rule XXI(5)(c) is repugnant to the principle of majority rule they see embodied in the presentment clause of Article I, § 7 of the Constitution (). As for Rule XXI(5)(d), they argued both that it unconstitutionally precludes the House from considering legislation upon which it is empowered by Article I, § 8 to act, and that it abridges the first amendment rights of the individual Members to speak and, on behalf of their constituents, to petition on the floor of the House.
Robin H. Carle, the Clerk of the House, moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court granted the motion, concluding that prudence counsels against deciding the merits of a partisan political dispute:
Whether expressed in terms of a failure of standing, or "equitable" or "remedial" discretion, the fundamental consideration underlying those decisions is one of prudent self-restraint: federal courts should generally refrain, as a matter of policy, from intruding in the name of the Constitution upon the internal affairs of Congress at the behest of lawmakers who have failed to prevail in the political process.
Id. at 2. The court also dismissed the voters' derivative claims: To allow the voters to raise the claims of their Representatives, the court reasoned, "is an all-too-facile expedient to circumvent the doctrine of equitable discretion, and to subvert altogether the holdings of the line of discretionary abstention cases." Id. at 3. The plaintiffs appealed.
The appellants call upon the court to consider the constitutionality of two rules governing the internal workings of a coordinate branch of the Government. The appellants maintain that we are both authorized and competent to perform this task: The harm worked by the Rules--diluting the Representatives' votes and diminishing their ability to advocate a position--is apparent, as is the command of the Constitution that we remedy that harm. The Clerk responds, among other things, that the appellants lack standing because they have suffered no concrete injury.
According to the appellants, the presentment clause establishes that a simple majority of the Members voting in each House of the Congress is all that is needed to pass a bill. Therefore, we are told, by providing that legislation carrying an income tax increase will not be considered to have passed in the House even if it receives the support of a majority (but not of a three-fifths majority), Rule XXI(5)(c) runs afoul of the presentment clause.
The Clerk contends that the appellants lack standing to raise this challenge because they have suffered no injury by reason of In order to establish their standing to sue under Article III of the Constitution, the appellants must show that: (1) they have suffered an injury that is both "concrete and particularized" and "actual or imminent, not 'conjectural' or 'hypothetical' "; (2) that the injury is fairly traceable to the conduct of which they complain; and (3) the injury is likely to be redressed by a court decision in their favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992). The appellants bear the burden of establishing each element. Id. at 560-61, 112 S.Ct. at 2136-37. A Representative, like any other plaintiff, must satisfy each requirement--injury in fact, causation, and redressability--announced in Lujan. See Boehner v. Anderson, 30 F.3d 156, 159 (D.C.Cir.1994).
[324 U.S.App.D.C. 90] Rule XXI(5)(c) and are unlikely ever to do so. The House has never failed to deem passed a bill that has received the support of a simple majority and it is unclear whether the House will ever do so.
The appellants claim that Rule XXI(5)(c) injures them in fact because it dilutes the vote of each Representative in the same manner as did the rule challenged in Michel v. Anderson, 14 F.3d 623 (D.C.Cir.1994). In that case a group of Representatives and voters challenged the House Rule giving each territorial delegate a vote in the Committee of the Whole. The Representatives claimed that they were each entitled to cast one of no more than 435 votes in the Committee and that the rule injured them by diluting each of their votes to one of 440. The voters raised the derivative claim that they had been deprived of a Representative entitled to cast one of only 435 votes. We held that, even if the doctrine of equitable discretion blocked the Representatives' challenge, the voters had standing to complain about the dilution of their representation; they had alleged a concrete injury.
The present appellants argue that, just as the voters in Michel had standing to challenge the dilution of a Member's vote to one of 440 that could be cast in the Committee of the Whole, so too do they have standing to challenge the dilution of a Representative's vote from one of 218 to one of 261 needed (assuming that all 435 Members vote) for the House to pass an income tax increase. The injury is neither conjectural nor hypothetical, they say, because the House has already taken several votes that were subject to Rule XXI(5)(c). According to the appellants, it is immaterial that Rule XXI(5)(c) did not affect the outcome of any such vote, i.e., there was not even a simple majority in favor of an income tax increase; it is enough under Michel, they argue, that the vote of each Member is in some way diluted. In addition the appellants assert (without elaboration) that Rule XXI(5)(c) reduces each lawmaker's power to bargain with his or her colleagues in order to pass an income tax increase--presumably because each Member can now offer only 1/261st of the votes needed.
The Clerk responds that the plaintiffs in Michel would have suffered a concrete injury, namely the dilution of their Representatives' votes, as soon as a vote was taken in the Committee of the Whole, and it was certain that such a vote would be taken. Therefore, the injury alleged in Michel was imminent, if not actual. In the present case, by contrast, the Clerk contends that the appellants would be injured only if a particular piece of income tax legislation for which the Member-appellants voted were to garner a simple majority but fail to pass under Rule XXI(5)(c) for want of a three-fifths majority. That these conditions will be met is far from certain; indeed, we are told, both reason and experience suggest that it is unlikely, making the appellants' injury neither imminent nor a concrete probability but only a hypothetical and speculative possibility.
As an initial matter, we do not agree with the Clerk that, in order to establish that they have been injured by the Rule, the appellants would have to show that 218 Members have voted or would vote (but for the Rule) in favor of a bill carrying an income tax increase. The lesson of Michel is that vote dilution is itself a cognizable injury regardless whether it has yet affected a legislative outcome.
We do agree, however, that the appellants' alleged injury depends upon their assertion that Rule XXI(5)(c) in fact renders the votes Both the House Rules and their role in the 104th Congress strongly suggest that Rule XXI(5)(c) does not prevent 218 Members set upon passing an income tax increase from working their legislative will. First,...
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