RAINES, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET, ET AL. v. BYRD ET AL.
No. 96-1671
Supreme Court of the United States
June 26, 1997
Argued May 27, 1997
521 U.S. 811
Acting Solicitor General Dellinger argued the cause for appellants. With him on the briefs were Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Douglas N. Letter.
Alan B. Morrison argued the cause for appellees. With him on the briefs were Lloyd N. Cutler, Louis R. Cohen, Charles J. Cooper, Michael A. Carvin, David Thompson, and Michael Davidson.*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.†
The District Court for the District of Columbia declared the Line Item Veto Act unconstitutional. On this direct appeal, we hold that appellees lack standing to bring this suit,
*Thomas B. Griffith, Morgan J. Frankel, Steven F. Huefner, Geraldine R. Gennet, Kerry W. Kircher, and Michael L. Stern filed a brief for the United States Senate et al. as amici curiae urging reversal.
Briefs of amicus curiae urging affirmance were filed for the Association of the Bar of the City of New York by David P. Felsher, Louis A. Craco, Jr., and James F. Parver; and for David Schoenbrod et al. by Mr. Schoenbrod, pro se, and Marci A. Hamilton, pro se.
G. William Frick filed a brief for the American Petroleum Institute as amicus curiae.
†JUSTICE GINSBURG joins this opinion.
I
The appellees are six Members of Congress, four of whom served as Senators and two of whom served as Congressmen in the 104th Congress (1995-1996).1 On March 27, 1996, the Senate passed a bill entitled the Line Item Veto Act by a vote of 69 to 31. All four appellee Senators voted “nay.” 142 Cong. Rec. S2995. The next day, the House of Representatives passed the identical bill by a vote of 232 to 177. Both appellee Congressmen voted “nay.” Id., at H2986. On April 4, 1996, the President signed the Line Item Veto Act (Act) into law. Pub. L. 104-130, 110 Stat. 1200, codified at
The provisions of the Act do not use the term “veto.” Instead, the President is given the authority to “cancel” certain spending and tax benefit measures after he has signed them into law. Specifically, the Act provides:
“[T]he President may, with respect to any bill or joint resolution that has been signed into law pursuant to
Article I, section 7, of the Constitution of the United States , cancel in whole—(1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit; if the President—
“(A) determines that such cancellation will—(i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest; and
“(B) notifies the Congress of such cancellation by transmitting a special message ... within five calendar days (excluding Sundays) after the enactment of the law [to which the cancellation applies].” § 691(a) (some indentations omitted).
The President‘s “cancellation” under the Act takes effect when the “special message” notifying Congress of the cancellation is received in the House and Senate. With respect to dollar amounts of “discretionary budget authority,” a cancellation means “to rescind.” § 691e(4)(A). With respect to “new direct spending” items or “limited tax benefit[s],” a cancellation means that the relevant legal provision, legal obligation, or budget authority is “prevent[ed] ... from having legal force or effect.” §§ 691e(4)(B), (C).
The Act establishes expedited procedures in both Houses for the consideration of “disapproval bills,” § 691d, bills or joint resolutions which, if enacted into law by the familiar procedures set out in
The Act provides that “[a]ny Member of Congress or any individual adversely affected by [this Act] may bring an action, in the United States District Court for the District of Columbia, for declaratory judgment and injunctive relief on
“The Act ... (a) alter[s] the legal and practical effect of all votes they may cast on bills containing such separately vetoable items, (b) divest[s] the [appellees] of their constitutional role in the repeal of legislation, and (c) alter[s] the constitutional balance of powers between the Legislative and Executive Branches, both with respect to measures containing separately vetoable items and with respect to other matters coming before Congress.” Id., ¶ 14.
Appellants moved to dismiss for lack of jurisdiction, claiming (among other things) that appellees lacked standing to sue and that their claim was not ripe. Both sides also filed motions for summary judgment on the merits. On April 10, 1997, the District Court (i) denied appellants’ motion to dismiss, holding that appellees had standing to bring this suit and that their claim was ripe, and (ii) granted appellees’ summary judgment motion, holding that the Act is unconstitutional. 956 F. Supp. 25. As to standing, the court noted that the Court of Appeals for the District of Columbia “has repeatedly recognized Members’ standing to challenge measures that affect their constitutionally prescribed lawmaking powers.” Id., at 30 (citing, e. g., Michel v. Anderson, 14 F. 3d 623, 625 (CADC 1994); Moore v. U. S. House of Representatives, 733 F. 2d 946, 950-952 (CADC 1984)). See also 956 F. Supp., at 31
The court held that appellees’ claim was ripe even though the President had not yet used the “cancellation” authority granted him under the Act: “Because [appellees] now find themselves in a position of unanticipated and unwelcome subservience to the President before and after they vote on appropriations bills, Article III is satisfied, and this Court may accede to Congress’ directive to address the constitutional cloud over the Act as swiftly as possible.” Id., at 32 (referring to § 692(a)(1), the section of the Act granting Members of Congress the right to challenge the Act‘s constitutionality in court). On the merits, the court held that the Act violated the Presentment Clause,
The Act provides for a direct, expedited appeal to this Court. § 692(b) (direct appeal to Supreme Court); § 692(c) (“It shall be the duty of ... the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any [suit challenging the Act‘s constitutionality] brought under [§ 3(a) of the Act]“). On April 18, eight days after the District Court issued its order, appellants filed a jurisdictional statement asking us to note probable jurisdiction, and on April 21, appellees filed a
II
Under
One element of the case-or-controversy requirement is that appellees, based on their complaint, must establish that they have standing to sue. Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992) (plaintiff bears burden of establishing standing). The standing inquiry focuses on whether the plaintiff is the proper party to bring this suit, Simon, supra, at 38, although that inquiry “often turns on the nature and source of the claim asserted,” Warth v. Seldin, 422 U. S. 490, 500 (1975). To meet the standing requirements of Article III, “[a] plaintiff must allege personal injury fairly traceable to the defendant‘s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468
We have also stressed that the alleged injury must be legally and judicially cognizable. This requires, among other things, that the plaintiff have suffered “an invasion of a legally protected interest which is ... concrete and particularized,” Lujan, supra, at 560, and that the dispute is “traditionally thought to be capable of resolution through the judicial process,” Flast v. Cohen, 392 U. S. 83, 97 (1968). See also Allen, 468 U. S., at 752 (“Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable?“).
We have always insisted on strict compliance with this jurisdictional standing requirement. See, e. g., ibid. (under Article III, “federal courts may exercise power only ‘in the last resort, and as a necessity‘“) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892)); Muskrat v. United States, 219 U. S. 346, 356 (1911) (“[F]rom its earliest history this [C]ourt has consistently declined to exercise any powers other than those which are strictly judicial in their nature“). And our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one
III
We have never had occasion to rule on the question of legislative standing presented here.4 In Powell v. McCormack, 395 U. S. 486, 496, 512-514 (1969), we held that a Member of
The one case in which we have upheld standing for legislators (albeit state legislators) claiming an institutional injury is Coleman v. Miller, 307 U. S. 433 (1939). Appellees, relying heavily on this case, claim that they, like the state legislators in Coleman, “have a plain, direct and adequate interest
This Court affirmed. By a vote of 5-4, we held that the members of the legislature had standing.5 In explaining our holding, we repeatedly emphasized that if these legislators (who were suing as a bloc) were correct on the merits, then their votes not to ratify the amendment were deprived of all validity:
“Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and vir-
tually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes.” Id., at 438 (emphasis added).
“[T]he twenty senators were not only qualified to vote on the question of ratification but their votes, if the Lieutenant Governor were excluded as not being a part of the legislature for that purpose, would have been decisive in defeating the ratifying resolution.” Id., at 441 (emphasis added).
“[W]e find no departure from principle in recognizing in the instant case that at least the twenty senators whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ratifying the proposed constitutional amendment, have an interest in the controversy which, treated by the state court as a basis for entertaining and deciding the federal questions, is sufficient to give the Court jurisdiction to review that decision.” Id., at 446 (emphasis added).
It is obvious, then, that our holding in Coleman stands (at most, see n. 8, infra) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.6
Even taking appellees at their word about the change in the “meaning” and “effectiveness” of their vote for appropriations bills which are subject to the Act, we think their argument pulls Coleman too far from its moorings. Appellees’
Not only do appellees lack support from precedent, but historical practice appears to cut against them as well. It is evident from several episodes in our history that in analogous confrontations between one or both Houses of Congress and the Executive Branch, no suit was brought on the basis of claimed injury to official authority or power. The Tenure of Office Act, passed by Congress over the veto of President Andrew Johnson in 1867, was a thorn in the side of succeeding Presidents until it was finally repealed at the behest of President Grover Cleveland in 1887. See generally W. Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson 210-235, 260-268 (1992). It provided that an official whose appointment to an Executive Branch office required confirmation by the Senate could not be removed without the consent of the Senate. 14 Stat. 430, ch. 154. In 1868, Johnson removed his Secretary of War, Edwin M. Stanton. Within a week, the House of Representatives impeached Johnson. 1 Trial of Andrew Johnson, President of the United States, Before the Senate of the United States on Impeachment by the House of Representatives for High Crimes and Misdemeanors 4 (1868). One of the principal charges against him was that his removal of Stanton violated the Tenure of Office Act. Id., at 6-8. At the conclusion of his trial before the Senate, Johnson was acquitted by one vote. 2 id., at 487, 496-498. Surely Johnson had a stronger claim of diminution of his official power as a result of the Tenure of Office Act than do the appellees in the present case. Indeed, if their
Succeeding Presidents—Ulysses S. Grant and Grover Cleveland—urged Congress to repeal the Tenure of Office Act, and Cleveland‘s plea was finally heeded in 1887. 24 Stat. 500, ch. 353. It occurred to neither of these Presidents that they might challenge the Act in an Article III court. Eventually, in a suit brought by a plaintiff with traditional Article III standing, this Court did have the opportunity to pass on the constitutionality of the provision contained in the Tenure of Office Act. A sort of mini-Tenure of Office Act covering only the Post Office Department had been enacted in 1872, 17 Stat. 284, ch. 335, § 2, and it remained on the books after the Tenure of Office Act‘s repeal in 1887. In the last days of the Woodrow Wilson administration, Albert Burleson, Wilson‘s Postmaster General, came to believe that Frank Myers, the Postmaster in Portland, Oregon, had committed fraud in the course of his official duties. When Myers refused to resign, Burleson, acting at the direction of the President, removed him. Myers sued in the Court of Claims to recover lost salary. In Myers v. United States, 272 U. S. 52 (1926), more than half a century after Johnson‘s impeachment, this Court held that Congress could not require senatorial consent to the removal of a Postmaster who had been appointed by the President with the consent of the Senate. Id., at 106-107, 173, 176. In the course of its opinion, the Court expressed the view that the original Tenure of Office Act was unconstitutional. Id., at 176. See also id.,
If the appellees in the present case have standing, presumably President Wilson, or Presidents Grant and Cleveland before him, would likewise have had standing, and could have challenged the law preventing the removal of a Presidential appointee without the consent of Congress. Similarly, in INS v. Chadha, 462 U. S. 919 (1983), the Attorney General would have had standing to challenge the one-House veto provision because it rendered his authority provisional rather than final. By parity of reasoning, President Gerald Ford could have sued to challenge the appointment provisions of the Federal Election Campaign Act which were struck down in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), and a Member of Congress could have challenged the validity of President Coolidge‘s pocket veto that was sustained in The Pocket Veto Case, 279 U. S. 655 (1929).
There would be nothing irrational about a system that granted standing in these cases; some European constitutional courts operate under one or another variant of such a regime. See, e. g., Favoreu, Constitutional Review in Europe, in Constitutionalism and Rights 38, 41 (L. Henkin & A. Rosenthal eds. 1990); Wright Sheive, Central and Eastern European Constitutional Courts and the Antimajoritarian Objection to Judicial Review, 26 Law & Pol‘y Int‘l Bus. 1201, 1209 (1995); A. Stone, The Birth of Judicial Politics in France 232 (1992); D. Kommers, Judicial Politics in West Germany: A Study of the Federal Constitutional Court 106 (1976). But it is obviously not the regime that has obtained under our Constitution to date. Our regime contemplates a more restricted role for Article III courts, well expressed by Justice Powell in his concurring opinion in United States v. Richardson, 418 U. S. 166 (1974):
“The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury v. Madison, 1 Cranch 137 (1803),] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.” Id., at 192.
IV
In sum, appellees have alleged no injury to themselves as individuals (contra, Powell), the institutional injury they allege is wholly abstract and widely dispersed (contra, Coleman), and their attempt to litigate this dispute at this time and in this form is contrary to historical experience. We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.10 See n. 2, supra. We also note that our conclusion neither deprives Members of Congress of an adequate remedy (since they may repeal the Act or exempt appropriations bills from its reach), nor forecloses the Act from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act). Whether the case would
We therefore hold that these individual members of Congress do not have a sufficient “personal stake” in this dispute and have not alleged a sufficiently concrete injury to have established Article III standing.11 The judgment of the District Court is vacated, and the case is remanded with instructions to dismiss the complaint for lack of jurisdiction.
It is so ordered.
JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring in the judgment.
Appellees claim that the Line Item Veto Act, Pub. L. 104-130, 110 Stat. 1200, codified at
There is, first, difficulty in applying the rule that an injury on which standing is predicated be personal, not official. If
Nor is appellees’ injury so general that, under our case law, they clearly cannot satisfy the requirement of concreteness. On the one hand, appellees are not simply claiming
Because it is fairly debatable whether appellees’ injury is sufficiently personal and concrete to give them standing, it behooves us to resolve the question under more general
While it is true that a suit challenging the constitutionality of this Act brought by a party from outside the Federal Government would also involve the Court in resolving the dispute over the allocation of power between the political branches, it would expose the Judicial Branch to a lesser risk. Deciding a suit to vindicate an interest outside the
“[B]y connecting the censureship of the laws with the private interests of members of the community, . . . the legislation is protected from wanton assailants, and from the daily aggressions of party-spirit.” 1 A. de Tocqueville, Democracy in America 105 (Schoken ed. 1961).
The virtue of waiting for a private suit is only confirmed by the certainty that another suit can come to us. The parties agree, and I see no reason to question, that if the President “cancels” a conventional spending or tax provision pursuant to the Act, the putative beneficiaries of that provision will likely suffer a cognizable injury and thereby have standing under Article III. See Brief for Appellants 19-20, and n. 10; Brief for Appellees 32-33. By depriving beneficiaries of the money to which they would otherwise be entitled, a cancellation would produce an injury that is “actual,” “personal and individual,” and involve harm to a “legally protected interest,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, and n. 1 (1992) (internal quotation marks omitted); assuming the canceled provision would not apply equally to the entire public, the injury would be “concrete,” id., at 560, 573-574; and it would be “fairly trace[able] to the challenged action of the” executive officials involved in the cancellation, id., at 560 (internal quotation marks omitted), as well as probably “redress[able] by a favorable decision,” id., at 561 (internal quotation marks and citation omitted). See, e. g.,
I therefore conclude that appellees’ alleged injuries are insufficiently personal and concrete to satisfy Article III standing requirements of personal and concrete harm. Since this would be so in any suit under the conditions here, I accordingly find no cognizable injury to appellees.
JUSTICE STEVENS, dissenting.
The Line Item Veto Act purports to establish a procedure for the creation of laws that are truncated versions of bills that have been passed by the Congress and presented to the President for signature. If the procedure is valid, it will deny every Senator and every Representative any opportunity to vote for or against the truncated measure that survives the exercise of the President‘s cancellation authority. Because the opportunity to cast such votes is a right guaranteed by the text of the Constitution, I think it clear that the persons who are deprived of that right by the Act have standing to challenge its constitutionality. Moreover, because the impairment of that constitutional right has an immediate impact on their official powers, in my judgment they need not wait until after the President has exercised his cancellation authority to bring suit. Finally, the same reason
Assuming for the moment that this procedure is constitutionally permissible, and that the President will from time to time exercise the power to cancel portions of a just-enacted law, it follows that the statute deprives every Senator and every Representative of the right to vote for or against measures that may become law. The appellees cast their challenge to the constitutionality of the Act in a slightly different way. Their complaint asserted that the Act “alter[s] the legal and practical effect of all votes they may cast
In my judgment, the deprivation of this right—essential to the legislator‘s office—constitutes a sufficient injury to provide every Member of Congress with standing to challenge the constitutionality of the statute. If the dilution of an individual voter‘s power to elect representatives provides that voter with standing—as it surely does, see, e. g., Baker v. Carr, 369 U.S. 186, 204-208 (1962)—the deprivation of the right possessed by each Senator and Representative to vote for or against the precise text of any bill before it becomes law must also be a sufficient injury to create Article III standing for them.2 Although, as JUSTICE BREYER demonstrates, see post, at 840-843 (dissenting opinion), the majority‘s attempt to distinguish Coleman v. Miller, 307 U.S. 433, 438 (1939), is not persuasive, I need not rely on that case to
Moreover, the appellees convincingly explain how the immediate, constant threat of the partial veto power has a palpable effect on their current legislative choices. See Brief for Appellees 23-25, 29-31. Because the Act has this immediate and important impact on the powers of Members of Congress, and on the manner in which they undertake their legislative responsibilities, they need not await an exercise of the President‘s cancellation authority to institute the litigation that the statute itself authorizes. See
Given the fact that the authority at stake is granted by the plain and unambiguous text of Article I, it is equally clear to me that the statutory attempt to eliminate it is invalid.
Accordingly, I would affirm the judgment of the District Court.
JUSTICE BREYER, dissenting.
As the majority points out, Congress has enacted a specific statute (signed by the President) granting the plaintiffs authority to bring this case. Ante, at 815-816, citing
I concede that there would be no case or controversy here were the dispute before us not truly adversary, or were it not concrete and focused. But the interests that the parties assert are genuine and opposing, and the parties are therefore truly adverse. Cf. Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339 (1892). Moreover, as JUSTICE STEVENS points out, the harm that the plaintiffs suffer (on their view of the law) consists in part of the systematic abandonment of laws for which a majority voted, in part of the creation of other laws in violation of procedural rights which (they say) the Constitution provides them, and in part of the consequent and immediate impediment to their ability to do the job that the Constitution requires them to do. See ante, at 835-837, 838 (dissenting opinion); Complaint ¶ 14; App. 34-36, 39-40, 42-46, 54-55, 57-59, 62-64. Since federal courts might well adjudicate cases involving comparable harms in other contexts (such as purely private contexts), the harm at issue is sufficiently concrete. Cf., e. g., Bennett v. Spear, 520 U. S. 154, 167-174 (1997); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656 (1993). See also ante, at 831-832 (SOUTER, J., concurring in judgment). The harm is focused and the accompanying legal issues are both focused and of the sort that this Court is used to deciding. See, e. g., United States v. Munoz-Flores, 495 U. S. 385, 392-396 (1990). The plaintiffs
Nonetheless, there remains a serious constitutional difficulty due to the fact that this dispute about lawmaking procedures arises between Government officials and is brought by legislators. The critical question is whether or not this dispute, for that reason, is so different in form from those “matters that were the traditional concern of the courts at Westminster” that it falls outside the scope of Article III‘s judicial power. Ibid. Justice Frankfurter explained this argument in his dissent in Coleman, saying that courts traditionally
“leave intra-parliamentary controversies to parliaments and outside the scrutiny of law courts. The procedures for voting in legislative assemblies—who are members, how and when they should vote, what is the requisite number of votes for different phases of legislative activity, what votes were cast and how they were counted—surely are matters that not merely concern political action, but are of the very essence of political action, if ‘political’ has any connotation at all. . . In no sense are they matters of ‘private damage.’ They pertain to legislators not as individuals but as political representatives executing the legislative process. To open the law courts to such controversies is to have courts sit in judgment on the manifold disputes engendered by procedures for voting in legislative assemblies.” Id., at 469-470.
Justice Frankfurter dissented because, in his view, the “political” nature of the case, which involved legislators, placed the dispute outside the scope of Article III‘s “case” or “controversy” requirement. Nonetheless, the Coleman court rejected his argument.
Second, the Constitution does not draw an absolute line between disputes involving a “personal” harm and those involving an “official” harm. Cf. ante, at 818, 821. See ante, at 831, n. 2 (SOUTER, J., concurring in judgment). Justice Frankfurter himself said that this Court had heard cases involving injuries suffered by state officials in their official capacities. Coleman, supra, at 466 (citing Blodgett v. Silberman, 277 U. S. 1 (1928), and Boynton v. Hutchinson, 291 U. S. 656, cert. dism‘d on other grounds, 292 U. S. 601 (1934)). See also, e. g., Will v. Calvert Fire Ins. Co., 437 U. S. 655, 661 (1978) (Federal District Judge appealing mandamus issued against him in respect to a docketkeeping matter); Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 241, n. 5 (1968) (indicating that school board has standing where members must either violate oath or risk loss of school funds and expulsion from office). Coleman itself involved injuries in the plaintiff legislators’ official capacity. And the majority in this case, suggesting that legislators might have standing to complain of rules that “denied” them “their vote . . . in a discriminatory manner,” concedes at least the possibility that any constitutional rule distinguishing “official” from “personal” injury is not absolute. Ante, at 824, n. 7. See also ante, at 821.
Third, Justice Frankfurter‘s views were dissenting views, and the dispute before us, when compared to Coleman, presents a much stronger claim, not a weaker claim, for constitutional justiciability. The lawmakers in Coleman complained of a lawmaking procedure that, at worst, improperly counted
The majority finds a difference in the fact that the validity of the legislators’ votes was directly at issue in Coleman.
“[O]ur holding in Coleman stands . . . for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Ante, at 823.
But since many of the present plaintiffs will likely vote in the majority for at least some appropriations bills that are then subject to Presidential cancellation, I think that—on their view of the law—their votes are threatened with nullification too. Cf. ante, at 823, n. 6, 825.
The majority also suggests various distinctions arising out of the fact that Coleman involved a state legislature, rather than the federal Congress. Ante, at 824-825, n. 8. See also ante, at 832, n. 3 (SOUTER, J., concurring in judgment). But Justice Frankfurter treated comparable arguments as irrelevant, and the Coleman majority did not disagree. Coleman,
In sum, I do not believe that the Court can find this case nonjusticiable without overruling Coleman. Since it does not do so, I need not decide whether the systematic nature, seriousness, and immediacy of the harm would make this dispute constitutionally justiciable even in Coleman‘s absence. Rather, I can and would find this case justiciable on Coleman‘s authority. I add that because the majority has decided that this dispute is not now justiciable and has expressed no view on the merits of the appeal, I shall not discuss the merits either, but reserve them for future argument.