UNITED STATES HOUSE OF REPRESENTATIVES, APPELLANT v. STEVEN T. MNUCHIN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF THE TREASURY, ET AL., APPELLEES
No. 19-5176
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided September 25, 2020
Reheard En Banc April 28, 2020
Argued February 18, 2020
Remanded to Panel August 7, 2020
Appeal from the United States District Court for the District of Columbia (No. 1:19-cv-00969)
Douglas N. Letter, General Counsel, U.S. House of Representatives, argued the cause for appellant. With him on the briefs were Todd B. Tatelman, Principal Deputy General Counsel, Megan Barbero and Josephine Morse, Deputy General Counsel, Adam A. Grogg and William E. Havemann, Associate General Counsel, Kristin A. Shapiro, Assistant General Counsel, and Carter G. Phillips, Virginia A. Seitz, Joseph R. Guerra, and Christopher A. Eiswerth.
Lawrence S. Robbins, D. Hunter Smith, and Megan Browder were on the brief for amici curiae Former General Counsels of the U.S. House of Representatives in support of appellants and reversal. Alan E. Untereiner entered an appearance.
Irvin B. Nathan, Robert N. Weiner, Andrew T. Tutt, and Samuel F. Callahan were on the brief for amici curiae Former Members of Congress in support of appellant.
Michael S. Raab, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Hashim M. Mooppan, Deputy Assistant Attorney General, and Mark R. Freeman and Courtney L. Dixon, Attorneys.
Lawrence J. Joseph was on the brief for amicus curiae Rep. Andy Barr in support of appellees and affirmance.
Miles L. Terry, Benjamin P. Sisney, Jay Alan Sekulow, Andrew J. Ekonomou, and Jordan A. Sekulow were on the brief for amicus curiae The American Center for Law and Justice in support of appellees.
Before: MILLETT and WILKINS, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge SENTELLE.
I.
A.
On review of a district court‘s dismissal for lack of jurisdiction, we make legal determinations de novo. See Williams v. Lew, 819 F.3d 466, 471 (D.C. Cir. 2016). As a result, we consider anew whether the House established that it has standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). In doing so, we “accept as true all material allegations of the complaint, [and] draw[] all reasonable inferences from those allegations in plaintiffs’ favor.” LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). Additionally, in assessing standing, we assume the House is correct on the merits of the underlying claims. Id. Applying that framework to the House‘s complaint, we assume the following facts:
After protracted disagreement and negotiation between President Trump and the House of Representatives over the President‘s request for appropriation to erect a physical barrier along the boundary between the United States and Mexico, Congress enacted a budget resolution which included an appropriation of $1.375 billion “for the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector.”
The President signed the bill but announced that he planned to “us[e] his legal authority to take Executive action to secure additional resources” beyond the funding appropriated by Congress and signed into law by the President. J.A. 151. He identified three specific sources for the additional funds: the Treasury Forfeiture Fund, Department of Defense funds appropriated for the Support of Counterdrug Activities (
B.
On April 5, 2019, the House filed this action seeking declaratory and injunctive
Specifically, the complaint alleged that the defendants violated the Appropriations Clause of the Constitution,
The first of the contested sources of additional funding is the Counterdrug Activities fund. Under
The second contested source of additional funding is the reallocation of funds under
C.
Under Article III of the Constitution, federal courts are courts of limited jurisdiction.
The House, as the party invoking federal jurisdiction, bears the burden of demonstrating that it has an injury. Lujan, 504 U.S at 561. “[T]he manner and degree of evidence required” to show injury changes based on the “stage[] of the litigation.” Id. “At the pleading stage, general factual allegations of injury resulting from the defendant‘s conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.‘” Id. (alteration in original) (quoting Lujan v. Nat‘l Wildlife Fed‘n, 497 U.S. 871, 889 (1990)). As with the plaintiff in Food & Water Watch, Inc. v. Vilsack, the House filed a complaint and a motion for preliminary injunction. Defendants moved to dismiss. The House‘s assertion of injury should be evaluated under the motion to dismiss standard. 808 F.3d 905, 913 (D.C. Cir. 2015). We review the issue of standing de novo. Id.
Before this court, the House maintains that it has suffered a concrete injury and thus has standing to contest the Executive‘s self-appropriation of funds described above. In its brief, the House distills Supreme Court precedent on legislative standing to two factors: (1) the institution must suffer an institutional injury, which the House describes as events that cause a “disruption of [a legislative] body‘s specific powers,” House Br. at 20 (alteration in original) (quoting Tenn. ex rel. Tenn. Gen. Assembly v. U.S. Dep‘t of State, 931 F.3d 499, 511 (6th Cir. 2019)), and (2) “there
The House alleges that it has suffered an institutional injury because the defendants’ actions have disrupted Congress‘s specific authority over the appropriation of federal funds. Id. at 23-24. Congress‘s authority is derived from the Appropriations Clause,
The House answers that there is no mismatch between the institution injured and the institution bringing the lawsuit. According to the House, while the Appropriations Clause grants the power to both chambers of Congress in limiting the spending of federal funds, each chamber also possesses a unique interest in appropriations. That interest, the House argues, stems from the nature of appropriations, namely, that appropriations legislation must be passed, “otherwise the government literally cannot function.” Id. at 25. As a result, the House suggests that each chamber has “the power to dictate funding limits” because if either chamber does not pass an appropriation, there will be no funds for the federal government to spend on the project or goal to which the proposed appropriation is directed. Id. at 26.
In support of its position that each chamber has a distinct interest, the House relies on statements from the founding era. In particular, the House turns to the history of the passage and amendment of the Appropriations Clause. In an early draft of the Constitution, all appropriation bills had to originate in the House and could not be altered by the Senate. See 2 The Records of the Federal Convention of 1787, at 131 (M. Farrand ed., 1911) (hereinafter Records); House Br. at 26-27. The origination provision was removed, the House asserts, because it made the Senate subservient to the House in appropriations and the Framers intended that each chamber would have the independent ability to limit spending. Additionally, the House references statements from the founding era that recognize the federal purse has “two strings” and “[b]oth houses must concur in untying” them. 2 Records at 275. The structure of the “two strings” system means, the House maintains, that the House, by not passing an appropriation, can prevent the expenditure of funds for a government project, such as the proposed border wall even if the Senate disagrees. In sum, as the House asserts, “unlike the situation in which one chamber of Congress seeks to enforce a law that it could not have enacted on its own, a suit to enforce a spending limit vindicates a decision to block or limit spending that each
II.
A.
At the time this appeal was initiated, the appellees argued that there was no controlling precedent directly on point as to the question of whether a single chamber could ever have standing. After the oral arguments in this case, this court accepted for en banc review another case involving the question whether the Constitution categorically denies the House standing to sue the Executive Branch. See McGahn, 968 F.3d 755 (D.C. Cir. 2020). The en banc court has now rendered its decision in McGahn and returned this case to the original panel for disposition. The McGahn court clearly held that a single house of Congress could have standing to pursue litigation against the Executive for injury to its legislative rights. Id. at 778.
Underlying the present litigation is a dispute about the nature of Congress‘s authority under the Appropriations Clause of the Constitution and whether the President‘s refusal to follow the limits on his authority injures one House of Congress. The Constitution provides, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
The separation between the Executive and the ability to appropriate funds was frequently cited during the founding era as the premier check on the President‘s power. In fact, “the separation of purse and sword was the Federalists’ strongest rejoinder to Anti-Federalist fears of a tyrannical president.” Josh Chafetz, Congress‘s Constitution, Legislative Authority and the Separation of Powers 57 (2017); see also 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 367 (Jonathan Elliot ed., 2d ed. 1836) (hereinafter Debates) (responding to charges that the President could easily become king by explaining
As evidenced by the quotations above, a repeated theme in the founding era was the importance of putting the power of the purse specifically in the hands of the “representatives of the people.” The Federalist No. 58 at 394 (J. Madison) (Jacob E. Cooke ed., 1961); 2 Debates 393. As noted above, an early draft of the Constitution went as far as to require appropriations bills originate in the House of Representatives, the representatives of the people. 2 Records 131. While the final text does not include that same origination provision and provides only that “[a]ll bills for raising Revenue shall originate in the House of Representatives,”
While custom cannot create an interest sufficient to establish standing, it can illustrate the interest of the House in its ability, as discussed above, to limit spending beyond the shared ability of the Congress as a whole.
B.
In cases before the McGahn decision of this court, the Supreme Court considered the question of what constitutes an injury to a legislature at several points in history. This court has also considered the issue of legislative standing. Four foundational Supreme Court opinions outline the circumstances that can constitute legislative injury. The district court discussed three of the four. The fourth was released after the district court‘s memorandum decision.
We turn, first, to Coleman v. Miller, 307 U.S. 433 (1939), in which the Supreme Court determined that there was a legislative injury. In Coleman, the Kansas legislature voted on whether to ratify the Child Labor Amendment to the U.S. Constitution. Id. at 435-36. Twenty of the forty state senators voted to ratify the amendment and twenty voted against ratification. Id. at 436. The Lieutenant Governor broke the tie and voted to ratify the amendment. Id. Twenty senators and three members of the Kansas House of Representatives brought suit in Kansas state court challenging the Lieutenant Governor‘s authority to cast the deciding vote. Id. The suit made its way to the Supreme Court. The Court held that the “senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes,” thus “com[ing] directly within the provisions of the statute governing [the Supreme Court‘s] appellate jurisdiction” because the Lieutenant Governor‘s tie-breaking vote meant that the senators’ votes had been “overridden and virtually
Next, in Raines v. Byrd, 521 U.S. 811 (1997), the Supreme Court determined there was no legislative injury. In Raines, four senators and two representatives sued the Secretary of the Treasury and the Director of the Office of Management and Budget alleging that the Line Item Veto Act, which was passed over the objections of the six Members of Congress, was unconstitutional. 521 U.S. at 814. While the Act provided 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 ground that any provision of this part violates the Constitution,” the Members of Congress were still required to show an injury in fact to establish constitutional injury. Id. at 815-16, 818-19 (alteration in original). The Members of Congress described that injury as a “diminution of legislative power.” Id. at 821. The Supreme Court held, however, that the alleged injury was not sufficient to establish legislative standing. Id. at 829-30. While nullification is a theory that has supported a determination of injury, in this case, the Supreme Court noted, “[t]here is a vast difference between the level of vote nullification at issue in Coleman and the abstract dilution of institutional legislative power.” Id. at 826.
Additionally, and equally important, the Supreme Court explained, the “appellees have alleged no injury to themselves as individuals” and the potential institutional injury, diminution of power, was “wholly abstract and widely dispersed” among the other Members of Congress. Id. at 829. The opinion also “attach[ed] some importance to the fact that appellees [were not] authorized to represent their respective Houses of Congress in th[at] action, and indeed both Houses actively oppose[d] their suit.” Id. It was, therefore, significant that the plaintiffs were individual Members of Congress attempting to vindicate the rights of Congress as a whole. The Supreme Court made clear that Raines involves the standing of individual legislators, not of legislative institutions. See Bethune-Hill, 139 S. Ct. at 1953 (citing Raines for the proposition that “individual members lack standing to assert the institutional interests of a legislature“); Arizona State Legislature, 576 U.S. at 801-02 (“In Raines, this Court held that six individual Members of Congress lacked standing to challenge the Line Item Veto Act.“). Similarly, this court has also held that there was no standing for individual Members of Congress in suits against the Executive. See Campbell v. Clinton, 203 F.3d 19, 22-24 (D.C. Cir. 2000); Chenoweth v. Clinton, 181 F.3d 112, 117 (D.C. Cir. 1999). In Campbell, thirty-one individual Members of Congress “filed suit claiming that the President violated the War Powers Resolution and the War Powers Clause of the Constitution by directing U.S. forces’ participation”
For the constitutional claim, our analysis was influenced by the fact that the President has war powers independent of those of Congress and “did not claim to be acting pursuant to the defeated declaration of war or a statutory authorization, but instead ‘pursuant to [his] constitutional authority to conduct U.S. foreign relations and as Commander-in-Chief and Chief Executive.‘” Id. at 22 (alteration in original).
In the third Supreme Court decision, Arizona State Legislature v. Arizona Independent Redistricting Commission, Arizona voters approved an initiative that would strip the Arizona state legislature of its authority to draw district lines. 576 U.S. at 792. The Arizona state legislature sued in federal court seeking to enjoin the use of the newly drawn legislative district maps. Id. The Supreme Court agreed with the special district court that the state legislature had standing. Id. at 793. In particular, the Supreme Court relied on the fact that the state legislature was “an institutional plaintiff asserting an institutional injury, and [the plaintiff] commenced this action after authorizing votes in both of its chambers.” Id. at 802. The Supreme Court contrasted the situation in Arizona State Legislature with that in Raines where the plaintiffs were individual members but “[t]he ‘institutional injury’ at issue . . . scarcely zeroed in on any individual Member.” Id. Additionally, the Supreme Court noted, the voter initiative “would ‘completely nullif[y]’ any vote by the Legislature, now or ‘in the future,‘” as the state senators’ votes were nullified in Coleman. Id. at 804 (alteration in original) (quoting Raines, 521 U.S. at 823-24). In sum, the Arizona state legislature had standing because “there was no mismatch between the body seeking to litigate and the body to which the relevant constitutional provision allegedly assigned” authority. Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1953 (2019).
Finally, we reach Virginia House of Delegates v. Bethune-Hill, which was released after the district court‘s opinion in this case. In Bethune-Hill, voters sued the state alleging that its districts, drawn after the 2010 census, were racially gerrymandered. 139 S. Ct. at 1949-50. The Virginia House of Delegates intervened as defendants. Id. at 1950. A special three-judge district court enjoined the use of the new districts because “the [S]tate ha[d] [unconstitutionally] sorted voters . . . based on the color of their skin.” Id. (alterations and omission in original) (quoting Bethune-Hill v. Va. State Bd. of Elections, 326 F. Supp. 3d 128, 180 (2018)). When Virginia‘s Attorney General declined to appeal, the House of Delegates did so. Id. The House of Delegates alleged that it had standing both on behalf of the state, id. at 1951-53, and on its own, id. at 1953-56. The Supreme Court swiftly dismissed the House of Delegates‘s allegation that it had standing on behalf of the state because the Attorney General was the only party authorized to represent the state. Id. at 1952.
The Supreme Court also held that the House of Delegates did not have standing on its own. Id. at 1953-56. The House of Delegates rested assertions of standing on “its role in enacting redistricting legislation in particular.” Id. at 1953. But the Supreme Court noted that its “precedent . . . lends no support for the notion that one House of a bicameral legislature, resting solely on its role in the legislative process, may appeal on its own behalf a judgment invalidating a state enactment.”
These four cases seemingly give rise to two important questions for analyzing legislative standing: First, did the defendant‘s action curtail the power and authority of the institution? The authority of the Kansas Senate was curtailed by the tie-breaking vote of the Lieutenant Governor in Coleman. So too was the power of the Arizona legislature curtailed by the voter initiative in Arizona State Legislature. But the Virginia House of Delegates did not have its power curtailed when the General Assembly‘s redistricting was enjoined by a special three-judge district court.
Second, is there a mismatch between the entity pursuing litigation and the entity whose authority or right was curtailed? In Arizona there was not. In both Bethune-Hill and Raines, there was, as the plaintiff was attempting to vindicate the rights of another entity.
In addition to those two questions, our cases and the Supreme Court‘s additionally consider three other factors: the history of interbranch disputes in the courts, alternative political remedies available to the plaintiff, see, e.g., Raines, 521 U.S. at 829 (considering whether litigating the dispute is “contrary to historical experience” and whether Congress would have “an adequate remedy” without judicial intervention), and separation of powers, Chenoweth, 181 F.3d at 116-17. In none of the above decisions of the Supreme Court or this court was there ever an express determination of the first question before us: whether a single house of a bicameral legislature can ever have standing to litigate an alleged injury to its legislative prerogative distinct from the institutional standing of the entire legislature to litigate an institutional injury to the body as a whole. In McGahn, the en banc court considered that question in deciding an action brought on behalf of the House of Representatives to enforce a subpoena not involving the joinder of the Senate. The court answered the standing question with a resounding “yes.”
We need not re-analyze what the en banc court so recently expounded. It suffices to note that the McGahn court spoke in conventional language of standing. In distinguishing Bethune-Hill, in which the Supreme Court had found no standing, from McGahn, in which there was standing, the en banc court explained that in Bethune-Hill the Supreme Court focused on the fundamental proposition that to effect standing, an injury must be particularized. “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.‘” McGahn, 968 F.3d at 766 (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016)). In Bethune-Hill the alleged injury was to the Virginia legislature as a whole. The House of Delegates was not the injured party and therefore had no standing. In McGahn, the injury was particularized to the House of Representatives
When the injury alleged is to the Congress as a whole, one chamber does not have standing to litigate. When the injury is to the distinct prerogatives of a single chamber, that chamber does have standing to assert the injury. The allegations are that the Executive interfered with the prerogative of a single chamber to limit spending under the two-string theory discussed at the time of the founding. Therefore, each chamber has a distinct individual right, and in this case, one chamber has a distinct injury. That chamber has standing to bring this litigation.
As in Arizona State Legislature, the House is suing to remedy an institutional injury to its own institutional power to prevent the expenditure of funds not authorized. Taking the allegations of the complaint as true and assuming at this stage that the House is correct on the merits of its legal position, the House is individually and distinctly injured because the Executive Branch has allegedly cut the House out of its constitutionally indispensable legislative role. More specifically, by spending funds that the House refused to allow, the Executive Branch has defied an express constitutional prohibition that protects each congressional chamber‘s unilateral authority to prevent expenditures. It is therefore “an institutional plaintiff asserting an institutional injury” that is both concrete and particularized, belonging to the House and the House alone. Arizona State Legislature, 576 U.S. at 802.
To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House‘s key out of its hands. That is the injury over which the House is suing.
That injury—the snatched key—fits squarely within the Lujan mold because it is not a generalized interest in the power to legislate. Rather, the injury is concrete and particularized to the House and the House alone. The alleged Executive Branch action cuts the House out of the appropriations process, rendering for naught its vote withholding the Executive‘s desired border wall funding and carefully calibrating what type of border security investments could be made. The injury, in other words, “zeroe[s] in” on the House. Arizona State Legislature, 576 U.S. at 802; see also I.N.S. v. Chadha, 462 U.S. 919, 946 (1983) (“These provisions of Art. I are integral parts of the constitutional design for the separation of powers.“).
Applying the “especially rigorous” standing analysis that the Supreme Court requires in cases like this, Arizona State Legislature, 576 U.S. at 803 n.12, reinforces the House‘s injury in fact. To hold that the House is not injured or that courts cannot recognize that injury would rewrite the Appropriations Clause. That Clause has long been understood to check the power of the Executive Branch by allowing it to expend funds only as specifically authorized. As then-Judge Kavanaugh wrote for this court, the Appropriations Clause is “a bulwark of the Constitution‘s separation of powers among the three branches of the National Government,” and it “is particularly important as a restraint on Executive Branch officers.” U.S. Dep‘t of Navy v. Fed. Lab. Rel. Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012).
The ironclad constitutional rule is that the Executive Branch cannot spend until both the House and the Senate say
But under the defendants’ standing paradigm, the Executive Branch can freely spend Treasury funds as it wishes unless and until a veto-proof majority of both houses of Congress forbids it. Even that might not be enough: Under the defendants’ standing theory, if the Executive Branch ignored that congressional override, the House would remain just as disabled to sue to protect its own institutional interests. That turns the constitutional order upside down. Cf. Chadha, 462 U.S. at 958 (“[T]he carefully defined limits on the power of each Branch must not be eroded.“). The whole purpose of the Appropriations Clause‘s structural protection is to deny the Executive “an unbounded power over the public purse of the nation,” and the power to “apply all its monied resources at his pleasure.” U.S. Dep‘t of Navy, 665 F.3d at 1347 (quoting 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1342, at 213-14 (1833)); see also Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937) (noting the Appropriations Clause “was intended as a restriction upon the disbursing authority of the Executive department“).
Nor does it work to say that suit can only be brought by the House and Senate together, as that ignores the distinct power of the House alone not to untie its purse string. “[E]ach Chamber of Congress [possesses] an ongoing power—to veto certain Executive Branch decisions—that each House could exercise independent of any other body.” Bethune-Hill, 139 S. Ct. at 1954 n.5. Unlike the affirmative power to pass legislation, the House can wield its appropriations veto fully and effectively all by itself, without any coordination with or cooperation from the Senate. Cf. McGahn, 968 F.3d at 768.
For that reason, expenditures made without the House‘s approval—or worse, as alleged here, in the face of its specific disapproval—cause a concrete and particularized constitutional injury that the House experiences, and can seek redress for, independently. And again, failure to recognize that injury in fact would fundamentally alter the separation of powers by allowing the Executive Branch to spend any funds the Senate is on board with, even if the House withheld its authorizations.
In short, Article III‘s standing requirement is meant to preserve not reorder the separation of powers.
In that way, this case bears no resemblance to Bethune-Hill. The House of Representatives seeks to vindicate a legal interest that it possesses completely independently of the Senate, or of the Congress as a whole. The Constitution‘s structure and the Appropriations Clause together give the House a vital power of its own: “[N]ot a dollar . . . can be used in the payment of any thing” unless the House gives its “sanction[].” Reeside, 52 U.S. (11 How.) at 291. That is quite different from an effort by one legislative chamber to enforce rights that vest solely
The claims of the House under the Administrative Procedure Act warrant little separate discussion. Those allegations in no way set forth a legislative injury distinct to the House of Representatives and affording it standing. This court has explained that Congress does not have standing to litigate a claim that the President has exceeded his statutory authority. See, e.g., Campbell, 203 F.3d at 22-24. Once a statute is passed, a claim that the Executive is exceeding his statutory authority is a generalized grievance and not particular to the body (or part of the body) that passed the law. See, e.g., Hollingsworth v. Perry, 570 U.S. 693, 707 (2013) (explaining that citizens who stewarded a ballot initiative through the electoral process did not have particularized injury to sue after it was passed); Lujan, 504 U.S. at 575-76 (“[A]n injury amounting only to the alleged violation of a right to have the Government act in accordance with law [is] not judicially cognizable . . .“). Both of these cases deal with private individuals as opposed to a house of Congress, but the logic translates to Congress as well.
CONCLUSION
The judgment of the district court insofar as it dismisses the Administrative Procedure Act claims is affirmed. Insofar as the judgment dismisses the constitutional claims, it is vacated and remanded for further proceedings consistent with this decision.