*1 DEFENSE, OF SECRETARY SCHLESINGER, et al. COMMITTEE TO STOP v. RESERVISTS THE WAR et al. Argued January 14, 1974 Decided June
No. 72-1188. *2 General Bork for petitioners. Solicitor the cause argued Acting Attorney him on the brief were Assistant With Jaffe, Leon- Friedman, General Solicitor Deputy General Schaitman, ard William Appier. D.
William A. Dobrovir argued the cause and filed brief respondents.* for Burger of opinion delivered the
Mr. Chief Justice the Court. Reserv- granted sub nom. Richardson v. certiorari,
We War, Stop ists Committee to 411 U. S. (1973), judgment Appeals affirming, review the Court partial summary- without opinion, the District Court’s for judgment respondents I, declaring “Article Sec- tion Clause of the Constitution renders a member ineligible to hold a commission in Congress the Armed Forces Reserve his Reserv during continuance office.” Stop Laird, ists Committee 323 Supp. 833, War v. F.
843 (DC 1971). hold We do not have standing to sue taxpayers. as citizens The judgment .or of the of Appeals Court is therefore reversed.
I Article cl. I, 6, § Constitution provides: Federal
“No Representative Senator or during the shall, Time for he elected, appointed any civil Office under the Authority States, United which shall have been created, or the Emoluments *Thomas H. King, Maurice F. Biddle, Shapiro and Harold filed a brief for the Reserve Officers Association the United as States amicus curiae. time; during such been encreased shall have
whereof any under the United Office holding Person and no his during of either House a Member States, shall be in Office.” Continuance Congress Members of thereby makes The Constitution through certain offices ineligible appointment Ineligibility prohibits Mem- limitation of Clause, through holding from other offices bers limitation, Incompatibility latter Clause. Respondents, Stop the Reservists Committee to thereof,1 challenged War and certain named members membership Reserve of Members of Congress2 being Committee, 1The California, unincorpo- located in national *3 present rated association of and former officers and enlisted mem- Reserves, organized purpose opposing bers of the for the of the military using the involvement of United States in Vietnam and of involvement, all including lawful to end that efforts its means individually steps necessary members appropriate to take and all to end that respondents involvement. The five individual were Committee, all of the California, members and residents of United taxpayers. filed, States and the suit of citizens At time was four Ready the were status; individuals in active Reserve the status fifth, then the cochairman, unspecified. Committee was 2 At filed, the time suit 130 Congress Members of the 91st Reserves, were also members of the Ready, which are divided into Standby, components. By and Retired Congress, the end of the 92d 119 Members were reservists. 2, 1973, As of November the 93d Congress seen the number 107, of its reservists reduced to all but one of officers, whom are App. 5, commissioned and none occupy Ready whom can Reserve status of the individual re- spondents, supra, Dept, n. 1. v, of Defense 2 Directive 1200.7 c. § (July 2, 1970); (c)(2). 32 CFR 125.4 (including Of the § man) the one active, enlisted are in inactive, in the Standby Reserve; and 73 Reserve, are in the Retired 16 of whom receive pay. retirement Two other Army Members are in the Na- Guard, Ready Reserve, tional and thus in the (b), U. C.S. §269 governors but since the ap- various States control pointments Guard, to petitioners offices in the provide could They com- Incompatibility Clause. in violation against peti- in District menced a class action Court and the three Service tioners, Secretary of Defense of manda- seeking (1) an order the nature Secretaries, strike from petitioners requiring to them mus directed presently Congress Reserves all Members of rolls of the who discharge member of the Reserves thereon, any became and to subsequently Congress, a Member seek to from Members and former Members of reclaim while Congress Reserve Members received any pay said injunc- serving (2) permanent Members of Congress, petitioners from preventing tion on the rolls placing any serving Congress Reserves Member of while (3) membership in the Congress, and a declaration that Reserves office under United prohibited is an States I, incompatible Members of Art. cl. § with membership the Congress.
Respondents sought the above relief behalf of on four persons. classes Committee and indi- represent vidual sought the interests of (1) persons opposed all to United military States involve- ment and purporting Vietnam to use lawful means, including communication persuasion with and of Mem- bers of Congress, to end that involvement. The individ- ual respondents sought alone to represent the interests *4 of (2) all officers and enlisted members of the Reserves who were not Members of Congress, (3) taxpayers all of States, United (4) all citizens of the United States. The interests of these four classes were alleged to adversely by affected the Reserve membership of Congress Members of in ways. various regarding relief such judgment reservists. The of the District Court did not therefore extend to category this of reservist. 323 Supp. 833, (DC 1971). F. 838 n. 3 taxpayers alleged citizens and were here, relevant As to have because complaint suffered respondents’ holding position Reserve Congress Members of subject said to be to the possibility Executive Branch were influence in violation Branch,3 of undue Executive independence concept implicit Congress of the IArt. of the Constitution. Reserve membership also Congress said incon- place upon possible to Members of obligations might sistent which cause them to violate their duty faithfully perform to as reservists or as Members Congress. membership by Reserve Members Con- gress thus, respondents’ to according complaint,
“deprives may deprive or named individual plaintiffs and all other citizens taxpayers the United States faithful mem- discharge of Congress bers who are members of the Reserves of their duties as members of Congress, to all citizens and taxpayers are entitled.” for Pet. Cert. 46.
Petitioners filed respondents’ a motion to com- dismiss plaint ground on the that respondents lacked to bring the action, and complaint because the failed to state a upon cause action which relief granted. could be ground latter was based upon the contention that the Incompatibility Clause sets qualification forth a for Membership in the Congress, U. Const., S. Art. I, 5,§ cl. qualification not a position in the Executive power Branch. The judge qualification was as- 3Respondents appear have reference part had pressure conceivably applied could be to reservist Members of through such offices as the power President’s to call reservists to duty consent, active without their 10 U. S. C. 672-675, or his §§ power discharge reservists, commissioned who serve at his pleasure. 10 U. S. C. 593. § *5 Congress, courts, with not the exclusively serted rest to McCormack, Powell 395 U. S. under to de- it had The District Court concluded first bring the standing to respondents termine whether had and, authority, action without citation to stated: ex- Supreme greatly “In recent Court has years standing in panded concept this Circuit concept has now been aban- completely almost F. Supp., doned.” 323 at 839. respondents
The court then held four classes sought represent, “[o]nly gave their status as citizens” Id., them case. at 840. standing sue this District Court denied as opponents of our reservists, Vietnam involvement, as taxpayers. The court acknowledged that there were very few “merely instances which the assertion ibid., of citizens,” undifferentiated interest would be suf- ficient, persuaded but was to find that interest sufficient here by present several considerations it found dispute nature before and by it the asserted aban- donment of standing limitations Appeals, Court of whose decisions binding were on District Court.
In response petitioners’ contention that Incom- patibility Clause sets forth a qualification only Mem- bership the Congress, Congress which might alone judge, the District Court characterized the issue as whether respondents presented nonjusticiable “political question,” resolution of the text of the Consti- tution was committed to the under Baker v. Carr, 369 U. S. (1962). The court held that the failure of the Executive Branch to remove reservist Members of Congress from positions their Reserve justiciable. *6 standing political and issues of
Having resolved the held the District Court respondents, favor question in the Reserves is an commission merits that a on the meaning within the under the United States” “Office fore- the basis of the Clause. On Incompatibility summary granted partial final order the court its going, Incom- by declaring that respondents judgment ineligi- renders a Member of patibility Clause a Reserve his continuance during office, hold ble, respondents’ denied “commission”; parts the court such sought motion for summary judgment permanent which injunction and relief in nature of mandamus.4 Supp., F. at 843. Appeals judgment Court of affirmed the of the unpublished opinion
District an Court “on the basis opinion the memorandum of the District Court.” The Appeals Court of added it that was “also of the view that [respondents] have requisite standing and that their judicially claim is enforceable under the rationale of” Cohen, Carr, Flast v. Baker (1968), and supra. present questions Petitioners three for review: (1) whether have “either as standing, citizens or as federal taxpayers,” to bring claim, (2) this whether respondents’ presents claim “political question” not sub- ject review, (3) and whether “membership” in the Reserves constitutes “Office under the United States” within the meaning Incompatibility Clause. Pet. for Cert. 2. 4 Respondents not, did in the Appeals, Court of or cross-
petition challenge here the District injunctive Court’s denial of light mandamus In ground relief. of disposition for our case, we need not and do not validity address ourselves to the scope or of the District ruling Court’s on respondents’ the merits of claim, or granted. the relief it
II A Cohen, supra, In Flast v. the Court noted concept of expresses which justiciability, jurisdictional courts imposed upon limitations federal by the “case or controversy” requirement Ill, of Art. em- bodies both the question doctrines political upon petitioners in part rely. Each of these doc- *7 poses trines a distinct separate and limitation, Powell v. McCormack, Carr, 395 S., 512; U. at Baker v. supra, so that either 198, standing the of or the absence presence political of a question prevent suffices to the of power judiciary federal from invoked being complaining The party. more sensitive and com- plex determining task of particular whether a pre- issue political sents question a causes as did the courts, District here, Court turn to initially, although invariably,5 to question standing In light to sue. of the District action petitioners’ Court’s we turn to contention that re- spondents lacked standing bring to the suit. Our con- clusion that the District Court in holding erred respondents standing had to sue as United citizens, States 5 The lack of a fixed proper sequence rule as to the analysis of involving contentions more than concept one facet of the justiciability recently was Appeals exhibited the Court of Circuit, the Second bypassed standing on determination justiciable to rule that a claim was not presented politi- because it question: cal standing party of a need question “[T]he not come into if a court determines for other reasons the issue raised before the bench non-justieiable.” is
That court thus held in justiciable question effect that if no pre no standing. sented one has Laird, DaCosta v. 471 F. 2d 1152 (1973). See Sierra Club Morton, also v. (1972) 405 ; U. S. Cohen, Flast as tax- standing respondents’ denying correct but questions other consider need to eliminates payers, by petitioners. presented as each standing to considered Court
The District suit; brought respondents in which capacities four holding that four, three of standing as to rejected it The Court citizens. sue as could respondents solely upon affirmance, based judgment Appeals’ District did not alter the Court, the District opinion of pre- standing question standing. ruling on Court’s is addressed to for certiorari petition in the sented and standing on citizen seeks holding District Court’s also had whether question add the Respondents do not contend taxpayers.6 as them denying standing erred in District Court sought pro- capacities they in which the other two e., i. of American involvement opponents military as ceed, proceed therefore reservists. We Vietnam, only as citizens respondents’ standing consideration of taxpayers. B *8 Standing Citizen representative it is To have as a standing sue class plaintiff class, that part essential that a must be a of that is, he possess must the same interest and suffer the same by shared all represents. members of the class he Employment Indiana Division Burney, v. 409 540 Patterson, Bailey v. (1973); In U. S. 31 granting respondents standing to representatives sue as Appeals did no The Court of more than judgment affirm the Court, including the District the latter’s respondents’ denial of standing taxpayers. may, however, Petitioners sought have taxpayer standing raise the issue of in this Court because of the ambiguous Appeals’ reference in the judgment Court of of affirmance Cohen, supra, to Flast a taxpayer-standing case. citizens, the District Court of all United States the class correctly re- necessarily
therefore —characterized —and from of all spondents’ interest as “undifferentiated” other citizens. only in the claim ad-
The interest all citizens share by presents injury one which vanced Respondents the abstract. seek to have the Judicial compel Branch the Executive Branch in conform- to act ity Incompatibility shared with the an interest Clause, very language respondents’ all citizens. The com- supra, plaint, reveals that it is more nothing than a matter of speculation whether the claimed non- deprives observance that Clause citizens of the faith- ful discharge of the legislative duties reservist Mem- Congress. bers of And nonobservance, that claimed standing alone, adversely only would general- affect ized interest of all citizens constitutional governance, injury.7 and that is an previ- abstract The has Court ously declined to treat “generalized grievances” about the conduct of Government taxpayer as basis for standing. Flast v. Cohen, 392 S.,U. at 106. We consider now whether a citizen under gener- sue such a complaint. alized analysis
Our
begins
Carr,
with Baker v.
“alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness sharpens which presentation upon issues generalized respondents’ nature of claim is revealed e., scope i. sought, of relief removal of all reservist Members of Congress from Reserve status rather than the removal of those *9 reservist Members who manifested their they actions that were influenced their Reserve adversely status to act respondents’ interest. of illumination depends largely court so 204. at Id., questions.” constitutional
difficult stand- taxpayer of claimed with a case Although dealing to the meaning Cohen, further supra, gave Flast v. ing, meant noting that it stake” “personal for a need his adjudicate seeking to complainant that to assure “in an the claim present “proper party” claim was historically viewed form adversary and context 101. S., at 392 U. judicial resolution.” capable Flast, held that the Court In the circumstances re- established a before it had taxpayer-complainant claim his taxpayer lationship between his status as give Clause sufficient Taxing Spending under the assurance necessary framed with the questions
“that the will be be contested with specificity, the issues will litigation will be and that the necessary adverseness pursued necessary vigor to assure that with challenge constitutional will be made a form tra- judicial ditionally thought capable to be resolu- Id., at tion.” 106. Flast controversy”
While noted that the “case or limita- judicial power tion on the federal found Ill in Art. is a policy “blend of constitutional con- requirements and id., siderations,” in the Court, subsequently, context of review of regulatory action held agency that whatever else the “case or controversy” requirement its embodied, requirement essence is a “injury fact.” Processing Association Data Service Organizations, Inc. Camp, we Although there noted categories judicially cognizable injury id., were being broadened, at 154, we have recently more categories stressed that the broadening of “is a different matter from abandoning the requirement party seeking review must himself have suffered injury.”
219 Morton, (1972). And, v. 738 727, Sierra Club 405 U. S. only we have defining injury, the nature that flatly: enough.” is not recently injury stated “Abstract Littleton, O’Shea 488, Ex Lévitt, parte (1937), 302 U. was the S. 633 other in which question occasion faced a under Court § Art. cl. under I, although challenge was made Ineligibility Clause, Incompatibility not the Clause petition involved here. There a was filed in this Court seeking an order to why show cause one of the Justices should be disqualified serve as an Associate Justice. The petition asserted that the appointment and confirma- tion of the Justice in August 1937 was unlawful because Act March 1937, permitting Justices to retire full salary at after a period specified service, thereby increased the emoluments of the office and that stat- ute was enacted while the challenged Justice was a Sen- ator. The appointment of the Justice the President and his confirmation by the Senate were thus said to vio- late the Ineligibility provides: Clause which
. “No Senator or Representative shall, during the Time for he was elected, appointed any civil Office under the Authority of the United . States . . the Emoluments whereof shall have been encreased during such time . .. .” The Court held:
“The motion papers upon disclose no interest part of the petitioner other than of a citizen and a member of the bar of this Court. That insufficient. It is an established principle that entitle a private individual invoke the power to determine the validity of executive or legis- lative action he must show that he has sustained or is immediately danger of sustaining a direct result of that action and it is not com- interest merely general he sufficient U. S., public.” all mon to members 634.8 vitality continued today recognized Court has *11 Richardson, ante, 176-179; v. States Lévitt,9 United
of 1, (1972). We Tatum, 13 Laird 408 U. S. v. see also may not sue standing to holding in that Lévitt reaffirm alleged here the kind interest of upon an be predicated of the in members public, common all held injury nature of necessarily abstract of the because actual or injury, whether share. Concrete all citizens a dispute of indispensable element is that threatened, traditionally in a to form part in cast it which serves 8 holding, support number of in of its a cases The Court cited language quoted similar to that nearly all of which contained 447, Frothingham Mellon, (1923) 488 v. 262 U. S. text. See “merely (insufficient he suffers some party for a to show that generally”); Fairchild v. way people with indefinite common (“Plaintiff (1922) 126, 129-130 Hughes, S. 258 U. require by every citizen,
right, to that the Government possessed moneys according public be law and administered private Obviously general right does entitle a this not wasted. Judges Tyler v. suit”); the federal a citizen to institute in courts of 405, (1900) (“even proceed- Registration, U. S. 406 a Court 179 of public ing prosecutes plain- . which he for the benefit . . [the injury himself, distinguished generally peculiar must aver tiff] Harris, great citizens”). body fellow See Giles v. from his also (1903) J.) (“The alleges 475, (Holmes, 189 486 plaintiff registration the whole scheme of Alabama is a fraud constitution upon States, the Constitution of the us to United declare asks it void. But of he course could not maintain a bill for mere air”). in the Frizzell, declaration Cf. Newman v. U. 238 S. 550 (1915). recently The Court approval has also cited with two of the principal upon parte Levitt, (1937). cases relied in Ex S. 633 U. Frothingham Mellon, supra, support was used for in O’Shea v. Littleton, Hughes, 414 U. 494 (1974), S. as was Fairchild v. supra, Carr, used in Baker v. 369 U. S. judicial It the essential
capable resolution. adds dispute by specificity requiring to the dimension particular injury complaining party suffered a have by the challenged caused action as unlawful. This consistently held personal stake is what the Court has complainant present enables a authoritatively complete upon perspective court a conse- adverse quences flowing specific set of undergirding from facts grievance. his presentations Such authoritative are an integral part process, rely for a court must parties’ on the treatment the facts and claims before develop it to its rules of law.10 concrete Only presents the factual court, context within which a aided by parties argue who capable within the context, is making decisions.
Moreover, when a court is asked to undertake constitu- *12 adjudication, important tional the most and delicate its responsibilities, requirement of concrete injury further serves the function of insuring adjudi- that such place cation unnecessarily. does not take principle This particularly is applicable here, an where seek interpretation of a provision constitutional which has never before been construed First, federal courts. concrete injury removes from speculation realm whether there is a need power real to exercise the judicial protect review order to of the interests complaining party.
“The desire to obtain [sweeping cannot be relief] 10This in sharp political is processes contrast to the in which inquiry can action, initiate and objec- define and issues tives, virtually and exercise power by way unlimited hearings reports, making a plenary thus record consideration and solu- legislative tions. inherently general function is rather than particular and is responsive not intended to be assert- adversaries ing specific claims peculiar or interests to themselves. with the compliance substitute for
accepted as a present facts complainant must rule that general requires need that his individual to show sufficient he McCabe v. Atchi remedy for which asks.” Co., son, T. & S. F. U. S. 151, R. within which the
Second, the discrete factual context occurred or is threatened insures fram- injury concrete by the required precise of relief no broader than ing ruling applied. to which the court’s would be facts This the relief especially important sought produces when a confrontation with one of the coordinate branches of the Government; practical here the relief sought would, about conflict with two branches. bring coordinate effect, permit complainant To who has no concrete require rule on important court to constitutional is- sues in the abstract would potential create the for abuse Judiciary distort the role of the process, relationship its to the Executive Legislature and the open Judiciary arguable charge pro- viding “government by injunction.”
“The powers of judiciary the federal be ade- will quate for great placed upon burdens them only if they are employed prudently, recognition with of the strengths as well as the hazards that go with our representative kind of government.” Flast v. Cohen, 392 U. at 131 S., (Harlan, J., dissenting).11 *13 Our conclusion that is no there citizen standing here, apart from being accord with all other federal courts of appeals that have considered the question, until 11 expressed apprehension We have about claims of based ” on “mere problem.’ ‘interest g., See, a Club, Sierra e. S., 405 U. at 739. Earlier cases of the Court comparable evidenced concern. g., e. See, Frizzell, Newman S., v. 238 U. at 552 n. 8.
223 under is also Appeals’ holding review,12 now Court of of holdings Court. It is consistent recent this with complaint thing for a court hear an individual’s one specific action will cause that government that certain Data competitive injury, Association person private Processing Organizations, Camp, Service Inc. 397 v. U. S. (1970), complaint enjoyment 150 or that individual a impaired by been certain natural resources has such SCRAP, United States v. 412 669, 687 (1973), U. action, S. but it is another matter to allow a citizen to on the call courts The questions.13 pro- to resolve abstract former setting vides the a focused consideration of concrete In injury. although assert an allegations latter, arguable conflict with some limitation the Constitu- only tion, speculation it can be a matter of whether the claimed violation injury par- has caused concrete complainant. ticular Volpe, (CA10
12 Lamm v. 1971); Pietsch v. 1202, 449 F. 2d 1204 States, President United 861, (CA2 1970) F. (Clark, 434 2d 863 Troutman J.); Shriver, (CA5 171, 1969) (citing v. 417 F. 2d 174 Levitt, supra); Nixon, Velvel v. (CA10 236, 1969); 415 2dF. 239 Pauling McElroy, v. 107 App. 252, D. U. S. C. F. 2d 278 Brown, (1960); 254 Sharrow v. cf. (CA2 447 1971). F. 2d 97 And aside from the review, opinion decision under other that appears to have Laird, ruled otherwise is Atlee Supp. v. 339 F. (ED 1972), 1347 Pa. upon relied the decision of the District Id., Court here. at 1357 n. 8. 13 Appeals’ The Court of Carr, reliance on Baker v. 369 U. S. (1962), inapposite. SCRAP, United States v. (1973), pointed personal out that a stake in a fraction of a vote in Baker v. Carr Id., support was standing. sufficient at 689 14. n. injury Baker was asserted injury thus concrete to funda voting mental rights, distinguished from the abstract nonobservance of the by respondents Constitution asserted as citizens. Carr, In Baker approval early Court cited with case Liverpool, N. Y. & Phila. S. S. Co. Emigration, v. Comm’rs U. (1885), S. 33 where it held that a adjudge federal court can rights only “in actual Id., controversies.” at 39. *14 224 by considerations advanced the several
Finally, respondents’ as support standing District Court our conclusion that it was against do not militate citizens citizens. standing First, to grant error to any injury result- acknowledged the District Court of Congress from the reservist status Members ing Incompatibility but stressed that hypothetical, prohibit potential for in- designed Clause was such F. 840. rationale how- jury.14 Supp., fails, 323 at This for compensate respondents’ present failure to ever, injury. under that alleges a claim Clause which concrete respondents here, The claims of like claim under the Lévitt, supra, Clause in Ineligibility require would courts to deal with a difficult and sensitive issue of constitutional adjudication on complaint of one who does not allege “a personal stake in the controversy.” outcome of the Carr, Baker v. S., support 369 at 204. To U. standing injury there must be concrete in a form which “the assures necessary specificity” Flast, called for 392 S.,U. and “that concrete upon . adverseness . . which the court largely depends so for illumination of con- difficult questions.” Carr, stitutional Baker v. supra, at 204. 14The District Court made analogy to conflict-of-interest statutes which, said, it are avoiding directed at potential, circumstances of actual, impropriety. We have no doubt if the enacted a statute creating legal right, requisite such a would be found in an invasion of O’Shea v. right. Littleton, S., 414 Linda 2; U. at 493 n. D., R. S. v. Richard 410 U. S. (1973); n. 3 Processing Association Data Service Organizations, Inc. Camp, But satisfy the prerequisite Art. Ill the complaining party would still required allege specific right invasion of suffered him. Standing could not be it found —as is not here —in a citizen alleged who no more than right of all other citizens to have government conducted without what he perceived, without himself having suffered concrete harm, proscribed to be conflicts interest. *15 premature of the by found evaluation Standing was thus respondents’ complaint.15 of merits acknowledged this Court’s The District Court next griev- longstanding “generalized reluctance entertain Cohen, of Flast v. ances about the conduct government,” respondents’ com- S., distinguished 392 U. at but plaint grievances by from such Incom- characterizing the patibility “precise self-operative.” Clause [and] F. Supp., accepting at 840. Even that characteriza- tion of is for adequate the Clause it not an substitute judicially not cognizable injury present here. More- over, rested, preceding that characterization as did the on interpretation by of characterization, the Clause way of the appraisal Court’s merits preliminary respondents’ claim any before found. In standing was event, the Ineligibility supra, Clause involved in Lévitt, is no less or specific less “precise self-operative” [and] than the Incompatibility Clause.
The District Court further relied on the fact parties adverse sharply conflicted their interests and views and were supported able briefs and arguments. Id., at 841. have We no doubt sincerity about respondents’ objectives stated depth and of their commitment to them. But the essence of standing
“is not a question motivation of possession but requisite . . . interest is, or is threatened 15Looking “to the substantive issues” which Flast stated “appropriate both necessary” taxpayer relation to express purpose of determining “whether there is a logical nexus [taxpayer] between the status asserted and the claim sought adjudicated.” to be S., 392 TJ. step 102. This is appropriate on a claim of citizen standing since the Flast test nexus applicable is not taxing where the spending power is not chal lenged. Hence there was no occasion for the District Court or the Appeals Court of to reach or evaluate what it saw as the merits respondents’ complaint. conduct.” by the unconstitutional injured be, Education, Board 342 U. S. Doremus of motivation to inadequacy theme as to the This same opinion in in the Court’s support standing suggested is Club, supra: 8ierra how problem,’ no matter
“But a mere ‘interest quali- no matter how the interest and longstanding problem, fied the organization evaluating the organization is not sufficient to render the itself ‘adversely ‘aggrieved’ affected’ or within mean- *16 of the APA.” 405 739. ing S.,U. Respondents’ motivation indeed them brought sharply into conflict but as the Court petitioners, with has noted, motivation is for the actual substitute needed the courts and adversaries to focus litigation judicial efforts and decisionmaking. Moreover, quality evaluation presentation on the merits was a retrospective judgment that could have properly been arrived at after standing had been permit found so as to to court consider merits. A corollary logical approach to this would be the mani- festly untenable view that the inadequacy presen- tation on the merits would be an appropriate basis for denying standing. to
Furthermore, have reached the conclusion that re- spondents’ interests as citizens were meant to pro- tected the Incompatibility Clause because the primary purpose of the Clause was to insure independence of each of the branches of the Federal Government, similarly in- volved appraisal of the merits before the issue of stand- ing was resolved. All citizens, of course, share equally an interest in the independence of each branch of Govern- ment. In some fashion, every provision of the Consti- of all. Such a interests to serve the tution was meant to consti- too abstract however, is generalized interest, judicial reso- controversy” appropriate or tute a “case pro- all constitutional proposition lution.16 The because by any simply citizen visions are enforceable provisions of those citizens are the ultimate beneficiaries has no boundaries. inter- generalized citizen
Closely linked to the idea that the District standing est is a sufficient basis for if Court’s observation that it was not irrelevant petition- respondents could not obtain review of practical ers’ “then as a matter one Our action, no can.” system government many leaves crucial decisions to political processes. The if assumption respondents standing sue, have no no one standing, would have not a standing. reason find United See States v. Rich- ardson, ante, at 179.
C Taxpayer Standing Consideration of whether have sue taxpayers raises a from whether question different they Cohen, may sue as supra, citizens. Flast v. estab- lished that as a taxpayer can, status under certain limited circumstances, supply personal stake essential *17 standing. There, the Court held that, order to ensure necessary personal “a stake, there must be logical Processing Satisfaction of the Data require- “zone of interest” ment seemingly upon relied to find standing citizen support does not such first, two reasons: case involved review under the regulatory agency Administrative Procedure Act of alleged action private competitive have caused injury; second, Processing required Data showing injury fact, in addition to the requirement. “zone of interest” judicially cognizable Until a inquiry shown no other is is relevant to consideration standing. citizen [taxpayer] nexus between the status asserted and the In adjudicated,” to be 392 U. at 102. sought S., claim Flast, taxpayer Court determined demon- such a he “logical because, (1) challenged strated nexus” under the “congressional power taxing the exercise (2) clause of . .” and “the spending § Art. 8 . I, challenged specific enactment exceed constitutional [ed] imposed upon congres- limitations the exercise Id., taxing spending power” sional I, § under Art. 8. at 102-1Ó3.
Here, the District the Flast Court, applying holding, denied respondents’ standing taxpayers for failure to satisfy the nexus test. agree We with that conclusion since respondents did challenge not an enactment under I,Art. 8,§ but rather the action of the Executive Branch in permitting Members of to maintain their Reserve status.17
Accordingly, the judgment of the Appeals Court of reversed, and the case is remanded to the District Court for further proceedings consistent with opinion. this
It is so ordered. Mr. Justice Stewart, concurring.
I agree with the Court that lack stand- ing to sue either as citizens or taxpayers in this case. Here, unlike United Richardson, States v. ante, p. 166, the respondents do allege the petitioners have refused perform duty affirmative imposed upon earlier, supra, As noted 211, respondents requested the District compel Court petitioners to seek to pay reclaim Reserve received by reservist Congress. Members of Such relief would follow from invalidity of Executive action paying persons who could not lawfully reservists, have been not from invalidity of the stat utes authorizing pay lawfully to those who were Reservists. *18 by taxpayer Nor there be them the Constitution. can Cohen, is standing under Flast v. S. since there 83, U. no to an simply challenge taxing exercise spending power. wholly judgment
The Court’s in this case is consistent SCRAP, with 669. Standing United States v. U. S. is been today wanting injury found because an has by suffered many, but rather because none of the re- spondents alleged palpable the sort of direct, required plaintiff under III. Like Art. Frothingham Mellon, v.
seek only to air what we in Flast “generalized described grievances government.” about the conduct of 392 U. S., prior at 106. Our make cases clear that such al- abstract' legations cannot suffice to confer Art. Ill standing, and I opinion join judgment therefore of the Court.
Mr. Justice Mr. Mar- with whom Douglas, Justice dissenting. joins, shall requirement judicially to sue “standing” is
created instrument serving (1) protects several ends: It may the status quo reducing challenges made it and its institutions. It greatly restricts persons may the classes of who challenge administrative application action. Its in this case to make serves bureaucracy of the Pentagon more and from more immune the protests of citizens. (2) It bar sometimes used to from questions the courts the Constitution are viz., left to other two coordinate branches resolve, the so-called political question. (3) way It is times a of ridding court dockets whether questions of abstract or questions no concrete involving controversial issue. Frothingham
Our leading Mellon, case is 262 U. S. decided taxpayer where challenged the constitutionality of an Act gave grants *19 maternal and plan to reduce agreed to a which to States mortality. The Court said: infant likely pro- any statute,
“The administration a imposed upon vast additional taxation to duce of whose several extent taxpayers, number of the constantly changing, and is liability is indefinite of individual essentially public and not a matter and liti- may champion If taxpayer one concern. may every taxpayer cause, a then other gate such respect of the statute here same, do the not other respect every under but also review act statute whose administration appropriation outlay of requires public and whose money, validity may be The questioned. suggestion bare of such a with its attendant result, inconveniences, far to goes sustain conclusion which we have reached, that a suit this character cannot be main- tained. It is of much significance precedent no sustaining right to maintain suits like this been called to our attention, although, since the formation of the an government, as examination of the acts of Congress will disclose, large number of statutes appropriating or involving expendi- ture moneys for non-federal purposes have been enacted and carried Id., into effect.” at 487-488. That ruling had it an .in admixture of “political question” said because, Court, only occasion when may federal court act is when a federal law results “some direct suffered or threatened, presenting a justiciable Id., issue.” at 488. When that element lacking, judicial intrusion would trespass powers on granted another department of Government. “To do so would be not to decide controversy, but position assume a of authority over governmental authority co-equal department, of another acts Id., possess.” we do at 488-489. plainly Frothingham years In 1968—45 after case was —that Cohen, Flast 392 U. S. where federal revisited taxpayers enjoin of federal expenditure sued funds of Congress an Act financial granting under aid held that religious taxpayers schools. Court those *20 First, “standing” did have sue for two reasons. the exercise of they challenged congressional because power Taxing under the and of Spending I, Clause Art. of Constitution, expenditure the not the § incidental 8, tax in the of essentially regu- of funds administration Second, latory statute. the challenged because enact- imposed ment exceeded the upon limitations the exercise of congressional taxing spending power. the and 392 See S., at 102-104. Therefore, U. the Court concluded that taxpayer personal the had requisite id., “the stake,” litigation 101, the to have sue “standing” to and the Court went on hold that the Establishment Clause of “operates the First specific Amendment aas constitutional limitation upon of Congress taxing exercise power and spending conferred I, § Art. 8.” 392 U. S., at 104. present
The
implicates
provisions
case
of
two
the Con
stitution. Article I, 8,
1, provides:
cl.
“The
§
Congress
lay
shall have Power To
and
Imposts
collect Taxes, Duties,
Excises,
pay
provide
the Debts and
for the com
mon Defence and general Welfare of
the United
States
that
“no
..
.
Person
.”
Article
holding any
I,
§
6,
el.
Office
2,
of
[1]
under
Constitution
United
says
agree
1 I
Judiciary Committee,
with
conclusion of the House
Rep.
885,
Cong.,
H. R.
(1916),
No.
64th
1st Sess.
commission
in the National Guard is an “office” in the constitutional
sense.
distinguishable.
A commission in the Reserves
See United
is not
Hartwell,
States
Congress. Armed Services keeping in the challenging his Defense hold who Congress States Members the United as reservists. commissions appropriations make various Acts of Congress
Various 92-145, L. g., e. Pub. the services reservists. See, seq., Stat. 1154. 414; § Pub. 801 et 92-545, Stat. L. Incom- I, § Article cl. is often referred to proposed patibility Clause. convention some At the 1783 Members allowed to serve appar- Branch,2 opposed; Executive others were Mason ently represented majority view when he insisted “ineligibility keep by excluding will out corruption, office-hunters.” Article cl. Establish- I, 6, § like the ment Clause designed First as a Amendment, “was specific potential bulwark against such abuses ... ... *21 operates a specific as upon” constitutional limitation such expenditures. Cohen, Flast v. supra, at 104.
As stated p. Hamilton in The Federalist No. 76, (H. Lodge ed. 1888), had Incompatibility Clause specific purpose: to avoid “the influ- danger of executive ence upon the legislative body.”
While have standing their taxpayers, as citizenship also gives them standing challenge to appropriation acts financing activities of reservists.
We tend to overlook political the basic legal reality that the people, not the bureaucracy, are the sovereign. Our Federal Government was security created for the and happiness of the people. Executives, lawmakers, and 2See Farrand, M. The Records of the Federal Convention of pp. 283-290 3 Id., at 491. Judiciary of are inferior in the that members sense they con- carry are office out and execute the to stitutional regime.
The of that “We the Preamble the Constitution states People” ordained and established the Constitution. Independence
The insure Declaration stated that to Rights,” “certain unalienable “Governments are insti- among Men, deriving just powers tuted their from the governed” consent of the and “That whenever Form any of Government ends, becomes destructive of it is these Right the People to alter or to abolish it.” present
The case does not involve restructuring society procedure left legislative part action but —a mostly to constitutional conventions. All citi- zens this case seek is to have the Constitution enforced as it is written. It is not a suit to Members of unseat Congress. Any run that issued would the Sec- decree retary of Defense to take the off challenged reservists his list. complaint interest citizens is obvious. The injuries to
alleges ability average citizen political advocacy make his effective whenever it touches on the vast interests of the It Pentagon. is said all oppose who expansion military influence our national find they affairs are a powerful lobby— met with the Reserve Officers strong Association —which has con- gressional allies.
Whether or true dowe not know. So far Incompatibility Clause of the Constitution is con- cerned that contention is immaterial. It is as immaterial function of Art. I, § cl. the Constitution as *22 suggestion would be a that establishment religion under Amendment benign First given in a case. What Framers did in each case to set up was constitutional fences barring certain certain affiliations, of appropriations. kinds Their judgment was that appropriations no that great evil was so potential made. be character should that in the written guarantees in of citizens The interest than citizens Who other obvious. seems Constitution Incompatibility Clause to have right a better Incompatibility is their interests enforced? It Branch The Executive protect. designed was Clause principality compet- fiefdom or regime our is not a under It power. center of as another ing Legislative with the is that framework, and it operates within constitutional keep want to framework these citizens constitutional my concern. We rightful intact. That their is, view, of a generalized grievances that more than have insisted shown, “personal citizen that he must have a stake Carr, Baker 204. But outcome" monetary In “personal stake” need not be a one. Baker v. Carr right vote, important it was the badge citizenship. “personal stake” in the present Incompatibility keeping case is Clause an operative force the Government the en- freeing bureaucracy of the federal tanglement with the Legisla- Branch. tive Lévitt, parte
Ex 302 U. S. is not opposed. Lévitt moved this Court to have it declare the appointment of Mr. Justice Black unconstitutional. He alleged that Mr. Justice Black, had Senator, voted to increase “emoluments” of the office of Associate Justice therefore barred from taking office reason of Art. I, 6, cl. § the Constitution. The Court denied the motion to file an original action stating: is an
“It established principle that to entitle a private individual to invoke power validity determine the of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct *23 the result of that action and it is not sufficient merely he common to all general has a interest public.” at 634. members U. S., Mr. Black The “emolument” of officewhich Justice as Senator had voted to the retirement com- increase was pensation spelled federal out the Act judges as c. 21, March 50 Stat. 24. That emolument 1/1937, might never accrue to appointee for he would first have to serve number of designated years. a It turned though out even Black 34 years Justice served over he never received any benefits under the Retirement Act. Hence the Court in deciding showed wisdom that Levitt injury.” showed no “direct His claim constitutional remote, violation was speculative, contingent. The present suit no deficiency. such It asserts present, ongoing conflict Pentagon’s policies between the and the Incompatibility Clause of the Constitution. interest the citizen in ques- this constitutional
tion is, of course, common to all citizens. But as we
SCRAP,
United
States v.
said in
I would affirm judgment below.
Me. Justice Brennan, dissenting* The “standing” plaintiff of a to be heard on claim of invasion of alleged protected his legally right is estab- “ lished, my good-faith his allegation that view, 'the ” Bar- challenged action has caused him in fact.’ opinion applies 72-885,
* [This also No. United States et al. v. ante, Richardson, p. 166.] (concurring Collins, (1970) 167-168 U.
low S. inquiry, further dissenting). The Court’s result and “the connection between into the cases, in each these *24 or the stat- regulated to be protected interests zone of Association question,” in guarantee constitutional ute or Organizations, Camp, Inc. Processing v. Data Service to and “interest sought (1970), 397 U. S. ibid., not to complainant,” protected relevant, only if such on exer- to limitations “standing” but, all, g., e. see, function justiciability, as cise Carr, (1962), or reviewability, see, Baker 369 U. S. Gardner, g., e. Abbott Laboratories v. 387 U. S. alleged plainly injury Richardson fact. My Brother demonstrates this his analysis Richard- Stewart right son’s claimed to have budget of the Central Intelligence Agency published. merely The claim was not publish that failure to was a violation of the Constitu- tion. The alleged claim went further and that this viola- deprived tion Richardson, as an individual, and not as an inseparable part of the of a citizenry, right given him by 7. I, 9,§ cl. Moreover, complaint, properly Art. his con- that strued, alleged the violations him injury caused not respect right his as a citizen to know how Con- gress spending public fisc, but in respect also his as right a voter to receive information to aid his deci- sion how whom to vote. may These claims ulti- fail mately on the merits, but Richardson “standing” to assert them.
Similarly, I would hold respondent Reservists Committee and its members have demonstrated sufficient “injury fact” to maintain their suit. Their allegation they injured are taxpayers, while at glance first seeming extraordinarily difficult to prove, is neither impossible on nor, the basis of record, this made in bad faith. If Secretary of Defense a contrary takes posi- open it is regard requirements, tion with to either these summary compel judgment him to move for Barlow, respondents position. their See establish supra, More as the stringent requirements, at 175. such satisfy these Flast’s Court’s demand requirement, appropriate issues for reso- “nexus” are I “standing.” lution under the rubric of would Since injury-in-fact requirement by respondents’ find the met I taxpayer ques- have no occasion reach the allegation, respondent tion whether Committee and its Reservists members’ to their allegations interests as citi- zens would be sufficient confer under the circumstances of case. this my
Unlike Brother distinguishes who these Stewart, *25 I two would find that Flast v. Cohen, 392 U. cases, S. (1968), supports the conclusion that these allegations injury-in-fact are sufficient to give both cases “standing.” Speaking generally of standing, we there said:
“The aspect fundamental of standing is that it focuses on the party seeking get complaint his be- fore a federal court and not on the he issues wishes adjudicated. to have 'gist The the question standing’ is whether party seeking relief has ‘alleged personal such a stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court largely depends so for illumination of diffi- cult questions.’ constitutional Carr, v. Baker U. S. 186, 204 In words, other when stand- ing placed is issue a case, the question is whether person standing whose challenged is proper is a party to request an adjudication particular of a is- sue and not whether the issue itself justiciable.” is Id., at 99-100. quali- not a by Flast was test fashioned two-pronged
The fashioned but was principles general upon these fication alleging plaintiffs as a determinant solely alleged viola- challenge who taxpayers injury as Clauses Free Exercise and Establishment tions Collins, supra, Barlow v. Amendment. See the First very to the of that test extension 170-172. at confusion only produces the here challenges different ex- of the Flast test by differing views evidenced today in filed these cases. opinions several pressed in the soundly my as Brother proper sphere, Outside its Powell reliable indicator of when a test is not “a observes, that Rich- United States taxpayer standing.” federal I ardson, ante, confusion if, at 180. We avoid that Barlow, supra, recognize: we said injury in and the “[Ajlleged reviewability, fact, from pose questions largely merits that are distinct another, governed one each its own considera- inquiry tions. To inde- fail isolate and treat each pendently of the other so far as two, possible, risk obscuring given case, what is at issue in a poorly thus to risk decisions uninformed, reasoned may injustice. result in . . . “The risk of mini- ambiguity injustice can be mized cleanly severing, possible, so far as inquiries into reviewability and the from merits *26 standing.” determination of Mr. Justice Marshall, dissenting. Douglas
I agree with my respondents Brother that have I bring as citizens to this action. cannot accept majority’s characterization of respondents’ complaint alleging only “injury the abstract” and “ ‘generalized grievances’ about the conduct Gov- Ante,
eminent.” at 217. to According their complaint, respondents present and former members are various Armed Forces Reserves
“organized purpose for the opposing military- involvement States in United Vietnam and of using all lawful to means end that involvement, including efforts by its members to individually per- Congress suade the of the United States and all members of the Congress steps to take all necessary and appropriate to end that involvement.” specific they interest which asserted, thus they alleged been infringed by had violations the In- compatibility Clause, though widely doubtless shared, is certainly “general not a interest common all to members Levitt, Ex parte public.” U. S. (1937). Not all citizens desired to have the steps take necessary all to terminate American involve- ment and not all citizens who so desired Vietnam, persuade sought to of Congress members end. that Respondents right nevertheless had a under the First Amendment to attempt persuade Congressmen to end the war in Vietnam. And alleged have a right, under the Incompatibility Clause, have their arguments by Congressmen considered subject to a conflict of interest by virtue of their positions in the Armed Forces Respondents’ Reserves. complaint there- states, fore in my a view, claim of direct and concrete in- jury judicially a cognizable interest. It is a sad com- mentary priorities on our a litigant who contends violation of a federal statute has interfered with his appreciation aesthetic of natural resources can have that claim heard a federal court, see United States SCRAP, 687 (1973), while one who con- tends a specific violation of provision of the United *27 Constitution has interfered with the effectiveness States expression protected by the First is turned Amendment hearing away without a on the merits of his claim. I respectfully dissent.