Chenoweth, Helen v. Clinton, William J.

CHENOWETH, Helen The Honorable Schaffer, the Hon Bob Honorable Honorable Young, and Don

orable offi Pombo, their all in W.

Richard Appellants, capacities,

cial CLINTON, J.

William McGinty, States, Kathleen A.

United Environmen the Council

Chair individually Quality,

tal the United capacities,

official America, Appellees. State cause argued Perry Pendley William Todd appellants. for the briefs and filed

No. appearance. an entered Welch S. Appeals, Court States United Shenkman, De- Attorney, U.S. G. Ethan Circuit. of Columbia District Justice, argued cause partment on the brief him With appellees. 29, 1999. Argued Jan. Schiffer, Attorney Gener- Assistant Lois J. 2, 1999. July Decided Matzen, Attorney. al, Martin W. Goldstein, Attorney, entered A. Jared appearance. EDWARDS, Judge, Chief

Before: TATEL, Judges. Circuit GINSBURG filed Circuit for the Court Opinion Judge GINSBURG. filed judgment concurring

Opinion Judge TATEL. by Circuit GINSBURG, Judge: Circuit Chenoweth, Bob Helen Appellants W. Schaffer, and Richard Young, Don Pombo, are Members of of whom all Representatives, House States Presi- enjoin implementation of sued Rivers Heritage American dent Clinton’s (AHRI). They claimed Initiative by ex- program creation of President’s statutory and his order exceeded ecutive Characterizing authority. “general- as a claim Representatives’ gov- about the conduct grievance[ ] ized plain- ernment,” held the district court sue dismissed tiffs lacked now complaint. the district arguing appeal, our decisions properly apply failed H3 (1974), Sampson, 511 F.2d 430 was unláwful injunction and an against its and Moore v. House Representa- implementation. tives, (1984). In part based The granted district court the Presi- upon the intervening decision in dismiss, dent’s motion concluding that Byrd, 521 U.S. 138 117 the injury claim to (1997), L.Ed.2d we affirm the judg- deprivation suffered —the of their ment of the district court. right as Members of the Congress to vote (or, more precisely, against) I. Background AHRI —is “too abstract and not sufficient-

The President announced his intention ly specific to support a finding of stand- to create the AHRI in his 1997 State of ing.” The Representatives then took this afterward, the Union address. Soon appeal.

Council on Quality pub Environmental a lished notice describing the program. TI. Analysis AHRI, Under it explained, federal The Representatives’, claim of agencies upon would be called provide predicated is upon support for local to preserve efforts cer by issuing 13,061, Executive Order tain historically significant rivers and riv the President denied them their proper erside communities. Fed.Reg. See 62 and, role the legislative process conse 27,253 1997). June, (May quently, diminished their power as Mem Chenoweth, Schaffer, and bers of Congress. They rely primarily Pombo introduced a bill “[t]o terminate in which we held that further development and implementation” infringement of a legislator’s “right[] of the AHRI. H.R. 105th Congress. participate and vote on legislation in a The bill never came- to a vote. by manner defined the Constitution” anis formally established the AHRI injury sufficiently direct and concrete to by executive order in September, 1997. support legislator’s standing to sue. 13,061, 48,- See Exec. Order 62 Fed.Reg. 733 F.2d at 951. To understand why their facially plausible argument is unpersua failed, Their having efforts sive, background some necessary. lawsuit, appellants brought this claim- general principle governs ing the AHRI violates the Anti-Deficiency our standing firmly established: Act, § seq., U.S.C. 1301 et the Federal cannot, A federal court consistent Ar with Act, Land Management and Policy III, jurisdiction ticle exercise over a law § seq., U.S.C. 1701 et the National EnvF plaintiff suit unless the has suffered Act, ronmental Policy § U.S.C. 4321 et traceable, “personal injury fairly to the de Commerce, seq., and the Property, and allegedly fendant’s unlawful conduct and of, Spending Clauses Tenth likely to be redressed the requested to, Amendment of the Constitution 737, 751, Wright, relief.” Allen According States. to the com- 82 L.Ed.2d 556 plaint, the President’s issuance of the Application general rule ato Mem order, AHRI statuto- without ber of objects who to the therefor, ry authority “deprived plain- [the participants legisla actions other constitutionally tiffs] guaranteed process, tive subject upon is a responsibility open debate vote on which spoken great this has not with issues legislation” involving interstate clarity. lands, commerce, federal the expenditure monies, implementation federal Historically, political disputes between Representatives sought NEPA. The Legislative Members of the Exec- declaration that the issuance of AHRI utive Branches were resolved re- Committee, at Market courts. See

sort complaint of Senator we dismissed (describing conflicts 826-28, constitutionality pro- Presidents various Congress and between arena). When certain members cedures decided result, began this appointed; first Members of FOMC illegal allegedly held, from in order to avoid judicial necessary relief was seek the exer impaired into the judiciary actions that intrusion executive “obvious however, not, legislators, as power did cise of Id. at 881. We arena.” legislative the idea initially receptive to of standing analysis we were disavow com to hear jurisdiction Instead, had we creat- Goldwater. instance, we Kennedy, In for plaints. equitable of “circumscribed ing a doctrine had States Senator that a United found would discretion,” held we pock the President’s challenge to standing aof Con- complaint to hear decline of Houses legislation of both et veto obtain substantial who “could gressman alleged approved. had regard- legislators” fellow relief from his reasoned, veto, injured the we ly unlawful Id. standing to sue. he had less whether way be personal direct Senator a standing of our Keeping distinct congres a of “diminution cause effected separation of our consideration process.” legislative influence sional legislator when a raised powers issues theory, we F.2d at 435. On 511 concerning legislative a or brings a lawsuit standing of Senators that a group held concluded, act, conso- made we them of depriving President for to sue the .princi- irreconcilable two nant otherwise to opportunity constitutionally-mandated a first, private congressional ples: treaty. of a abrogation vote alike for be treated should (en Carter, 697, 702 617 v. F.2d Goldwater standing, determining their of purpose banc), 444 U.S. grounds; on other vacated from second, refrain courts should (1979). 996, 533, 428 62 L.Ed.2d arising out of disputes interfering in however, the Kennedy, After we decided remedy a process when greater em- began place to Supreme Court process. See within that available from con- powers of separation phasis upon id. at 877-82. standing Article -III underlying the cerns stay squared. long did not But the circle Cohen, v. Flast Compare requirement. as jurisdictional issues such Observing that 1942, 83, 100, 20 L.Ed.2d 392 U.S. usually commit- not of a sort standing are (1968) (“The par- question whether 947 Moore, courts, see ted discretion party to main- proper is a person ticular (Scalia, J., concurring), we 733 F.2d at 962 force, not, own its action does [an] tain ap- we frequently as as Riegle questioned powers problems”), separation raise Baker, See, v. 848 e.g., Humphrey plied it. Seldin, 490, 498, 95 422 U.S. with Warth v. (1988) (concerns 211, about the F.2d 214 (1975) 2197, (standing 343 L.Ed.2d S.Ct. 45 “continue equitable discretion doctrine “founded concern requirement us”); Open v. Federal Melcher to trouble properly limited —role proper —and Comm., 561, 4n. F.2d 565 836 Market society”), and Allen courts in a democratic (1987) continuing doubt to (expressing as 752, 104 at S.Ct. Wright, v. doctrine). signifi- viability practical (“[T]he Ill is built on law of Art. open question: also Riegle was cance of separation idea—the idea single basic Bliley v. Kel- namely, exception, one With following Kenne- In decisions powers”). (1994), every decision ly, 23 pres- are those concerns dy we noted equita- the doctrine applied acute—when -indeed, particularly are ent— reversed was either discretion ble an essential- attempts bring legislator by the Su- jurisdictional another judicial forum. into a political dispute ly Kline, Court, v. Barnes see Open preme Riegle v. Federal Accordingly,

H5 (C.A.D.C.1985), cognizable vacated sub nom. under Article Byrd III. Barnes, Burke (D.D.C.1997). 956 F.Supp. 93 L.Ed.2d 732 or reached the On appeal, direct Supreme Court same result that would have obtained had reversed. The Court characterized the separation powers we treated concerns plaintiffs’ injury “wholly abstract and part inquiry of our into widely dispersed” and hence insufficient See, standing. e.g., judicial warrant 956; O’Neill, Jagt Vander remediation. 699 F.2d 829; instance, S.Ct. 2312. The Court appar- was that although we held congressmen had ently unmoved the concern we ex- object purportedly un pressed Moore that the consideration of origination constitutional of a revenue-rais separation of powers issues would “dis- Senate, ing in bill the the district court ]” our standing analysis, tort properly complaint dismissed their under 954; to the contrary, emphasized that Biegle “rights because their [could] be vin standing requirements are “especially rig- by congressional dicated repeal of the [of orous” when reaching the merits of a case fending] statute.” 733 F.2d at 956. Our would questions raise the proper plaintiffs conclusion that the had standing scope- judicial of authority. 521 U.S. at sue, words, to got other them into court 819-20, 117 S.Ct. Having found that just long enough to their case dis plaintiffs the sue, lacked standing to the missed because of the separation powers Court did not find it necessary to consider problems it created. Recognizing lim the the applicability validity) the impact doctrine, ited of the Riegle we not doctrine of equitable discretion. ed in United Presbyterian Church v. Rea gan, (D.C.Cir.1984), Against the backdrop of Raines and our ... “[i]t seems ... inconvenient to distin Goldwater, own decisions after the futility guish between those legislator claims that of the present Representatives’ claim is lack standing, and should be apparent. plaintiffs out, As the point the denied favorable exercise of remedial injury they allegedly suffered when the discretion for generally "reasons indistin President 13,061— issued Executive Order guishable from those that underlie the doc a dilution of authority legisla- trine of standing.” Id. at 1382. precisely tors —is the harm we held in So matters stood when the Supreme Moore and Kennedy cognizable to be un- Court recently decided Raines v. Byrd. also, der Article III. It iden- The in that plaintiffs case congress- were tical to the injury the Court in Raines objected men who to the Line Item Veto deprecated “widely dispersed” and “ab- Act, which gave the President the authori- If, Raines, stract.” as the Court held in ty to “cancel” spending provisions in’an that allegedly statute [congress- “divests appropriations bill vetoing the bill constitutional, of their men] role” in the entirety. its to According plaintiffs, legislative process give does not them injured the Act them by “alter[ing] the sue, 521 U.S. at legal practical effect of all they votes 2312, then neither an Executive does Or- ... cast on bills ... containing separately der that allegedly deprives congressmen items,” vetoable thus “divest[ing them] of their “right[ to participate ] and vote on their constitutional role” in legislative legislation in a manner defined process. 521 U.S. at 117 S.Ct. 2312. Constitution.” 733 F.2d at 951. Conse- The district court found that the plaintiffs quently, portions legislative of our standing, citing Moore for proposi- tion an cases which the interfering with the current “con- stitutionally process plaintiffs rely are enacting light untenable mandated imposes law” upon legislators Raines. under Representatives gives the in- Moore protest away as standing, it takes rubric less severe in Raines was

jury alleged un- It is discretion. equitable matter of by the suffered than termi- could contested those Members Moore. The number in were a sufficient the AHRI nate Line Item opposed par- Because the inclined. House so full each observe, given Act, they were Veto fully susceptible therefore carry dispute ties’ few to effect; simply too they would, resolution, applying day. to avoid complaint dismiss entirely been hand, to have claimed other the internal affairs “meddl[ing] in right of their deprived Ap- at 956. 733 F.2d branch.” raise revenue. intended to a bill originate Raines, we would reach plying Here, plaintiffs), similarly (per Raines, therefore, not may conclusion. of the Con- Members denied require us much as Moore so overrule for or to vote opportunity gress and stand- powers separation merge our Moore only does AHRI. Not against course, Moore, of citing analyses. ing urge Repre- survive therefore asking us are more sentatives, ease present but that; instead, have us sim- they would lat- do than the the former closely resembles opinion. half of ply ignore ter. as a may it survive Kennedy, As for the misperceives reasoning This rule an- of the application narrow plain- peculiar in standing at issue Raines. Miller, in contend, nounced as the Coleman not in case did tiffs 972, 433, 83 L.Ed. 1385 injury imply, that were certain in Coleman in the The defect procedural of a was the result alleged that the who legislators Act. Rath- Kansas Line Item Veto passage had acted of Kansas Act be- Lieutenant Governor the er, was that once their view tie-breaking vote casting the unlawfully by law, constitutional the “alter[ed] came in of a constitu- favor in the state Legislative senate powers between balance of According to tional amendment. Branches,” their detri- and Executive had voted Court, legislators 2312. at S.Ct. ment. standing to had the amendment against on the a minor only variation This Lieutenant Governor’s Moore, beneficiary sue because the where asserted in “plain, direct them of deprived in constitutional change of the alleged maintaining the effec- in adequate than the interest the Senate rather order was at votes.” Id. tiveness of their exactly it is point, More President. 972. S.Ct. taken position say, is the result injury, they here: Their interpreted could be Although Coleman “to effort successful of the President’s read broadly, the Raines Court more imple- authority by Congressional usurp proposition only for the case to stand has no [he] menting program, been would have “legislators whose a manner con- authority, in enact) specific to defeat sufficient Applying trary to the Constitution.” if sue Act would have presumably court this (or does into effect goes legislative action satisfy the injury sufficient to found effect) that their into go Raines, how- requirement; after completely nullified.” votes have been ever, we cannot. Even under U.S. argue one could interpretation, this narrow Moore notwithstanding, Raines standing. Kennedy law, plaintiff that the part, good may remain Kennedy in that case pocket the The veto way helpful but not in hous- a bill that both had made ineffective Whatever Representatives. plaintiff \y¡ Congress es of the had approved. TATEL, Be- Circuit Judge, concurring in cause it was the President’s judgment: veto—not legislative support lack of prevented —that agree I that appellants lack standing. I (either becoming bill from law directly cqurt think the should have reached that or voting override the result, however, without exploring the ex- veto), President’s majority tent which Raines v. Byrd, plausibly could describe the President’s ac- L.Ed.2d 849 tion as a complete nullification of their limits our decisions in Kennedy v. Samp- votes. son, 511 (D.C.Cir.1974), Moore v. United States House Repre- case, this Representa sentatives, (D.C.Cir.1984). do not allege tives that the ma necessary Maj. Op. at jorities voted to block In the course of deciding that AHRI. Unlike essentially overrules the Coleman, theory of therefore, legisla- they cannot claim tive standing recognized in Kennedy their votes were effectively nullified Moore, my colleagues read those decisions machinations of the Executive. Conse broadly, too stating that the legislator inju- quently, even if Kennedy is still viable ry we found cognizable in those cases “is after it cannot bear the weight the precisely the harm” that appellants allege Representatives would place upon it.*

here. Maj. Op. at 116. But unlike appel- lants, legislators in Kennedy and III. Conclusion Moore challengéd alleged constitutional defects in way specific pieces of legisla- The district correctly held passed tion or defeated. See plaintiff Representatives lack standing to F.2d 951-53 (revenue-raising bill pursue this lawsuit. Their claim to stand- allegedly 'originated in Senate, not the ing the President’s House); (al- Kennedy, 511 F.2d at 434-36 implementation of the AHRI con- without legedly unconstitutional presidential pock- gressional injured consent them by dilut- legislation et veto passed by Congress). ing authority as Members of the Contrary to appellants’ claim that they indistinguishable from the have been ‘right[] “denied the partici- claim to standing Supreme Court re- pate and legislation voté on in a' manner jected in Raines. Nor can Represen- ” Constitution,’ defined Appellant’s tatives claim that their vote was nullified Br. at 951), 16 (quoting by the President’s action. The decision of they can point no defect “discrete the district court is therefore aspect process by which a bill be- (the comes law actual vote on the legisla- Affirmed. * Second, two concurring colleague For reasons our says he would have would us decide though this case as lack pre-Raines even under the law Supreme Court had never decided Raines. of this point upon circuit. This rests says he First effect of our Raines implicit premise standing analysis that the prior However, parties. decisions was not briefed Kennedy might Moore and have force after parties plainly joined the issue (as acknowledges) albeit he in circum- Raines whether overrules our cases on clear, presented stances not here. We think it subject legislative standing. Appellees’ See that our in this case must (“After Supreme at 16 Br. Court’s deci- impact account for the prior questionable sion in Raines ... it is whether a circuit, further, precedent of this Congress alleging member an institutional Raines leaves no room for broad injury can standing”); ever have Article III legislative standing adopted that we in Moore Appellant's Rep. (asserting Br. at 7 "[t]here is Kennedy. absolutely authority” supporting no the Presi- dent's assertion "that Raines overturned Moore”). assert legislators in which a case events de-

tion) post-enactment [or] law,” Harrington process aspect involving as a discrete status bill’s nying the (D.C.Cir.1977). Bush, F.2d has specific bill become by which indistinguishable therefore become) case is This law. failed Presbyteri- by United controlled from Reagan, 738 the U.S.A. an Church here, There, (D.C.Cir.1984). the le- a Member order, claiming that an executive

gality of congressional promulgated it was LIMITED, Appellant, CREIGHTON id. at authorization. or constitutional lacked the Member We held that “ THE STATE OF gener- ‘a only he raised GOVERNMENT because gov- QATAR, Appellee. the conduct grievance OF alized injury to ernment, founded on a claim No. 98-7063. the process legislator distortion ” Appeals, Court of States at 1382 law.’ Id. a bill becomes by which 952); see also F.2d at of Columbia Circuit. District (quoting Carter, F.2d Daughtrey v. Dec. Argued (D.C.Cir.1978) (rejecting the argument 2, 1999. July Decided challenge standing to legislators of an nonenforcement Rehearing En Banc Denied to enact legislative right usurpation of Sept. 1999.* Harrington, legislation); repealing that a argument (rejecting at 211 challenge alleg- standing to has legislator impair- activities as illegal CIA

edly on related prospective his

ment of rea- precisely For

legislation). challenge standing to

son, lack appellants Rivers Initiative. Heritage

the American Kennedy and

Although Raines limits extent, nothing changes some

Moore to the other cases Presbyterian or

in United rejected legislator

where we grievances.” “generalized similar

to raise still Presbyterian squarely

Because unnecessary to reach

controls, it is precise extent difficult issue Raines limits beyond this case briefed in

an issue not by the court. cited

conclusory assertions Aid, Legal Inc. v. Legal Rural

See Texas 697-98 Corp., 940

Servs. (in

(D.C.Cir.1991) sub the “absence issue,” where briefing

stantive conclu- with [themselves] “content

parties will assertions,” normally this court

sory I argument). think

not address addressing the have deferred

court should with presented until

implications Raines * participate in this matter. Judge Wald did Circuit

Case Details

Case Name: Chenoweth, Helen v. Clinton, William J.

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 2, 1999

Citation: 181 F.3d 112

Docket Number: 98-5095

Court Abbreviation: D.C. Cir.