Congress goes to court: the past, present, and future of legislator standing.

AuthorArend, Anthony Clark
PositionCampbell v. Clinton

The phenomenon of litigation directly between Congress and the President concerning their respective constitutional powers and prerogatives is a recent one. It was unknown through more than a century and three quarters of our jurisprudence....

-- Judge Robert Bork (1)


    On March 24, 1999, the United States and other members of the North Atlantic Treaty Organization (NATO) began air strikes against selected targets in Yugoslavia. (2) In an address that evening, President Clinton told the American people that the United States was undertaking these actions "to protect thousands of innocent people in Kosovo from a mounting military offensive, ... to prevent a wider war, to diffuse a powder keg at the heart of Europe that has exploded twice before in this century with catastrophic results ... [a]nd ... to stand united with our allies for peace." (3) Given the recent tragedies in Bosnia, the President contended that the U.S. and its allies were seeking to act decisively before the Milosevic regime could perpetrate "ethnic cleansing" against the ethnic Albanians living in the Province of Kosovo. (4)

    While the Kosovo conflict may have had support from many members of Congress, it was authorized by neither a declaration of war nor other specific statutory authorization. In a letter provided to Congress on March 26, 1999, the President explained that he had "taken these actions pursuant to [the President's] authority ... as Commander in Chief and Chief Executive." (5) During the course of the conflict, Congress considered several legislative actions related to the conflict (6)--some aimed at authorizing the use of force, others seeking to circumscribe the actions of the President. The only such legislative measure to be adopted by Congress and signed into law was an emergency supplemental appropriations bill. This appropriations bill merely provided additional funds necessary for the continuing prosecution of the conflict and did not "contain a statement that it [was] intended to constitute specific statutory authorization within the meaning of the War Powers Resolution." (7) Consequently, Congress had provided no explicit authorization for President Clinton's actions by the time the military actions ended.

    In the wake of this congressional inaction, Congressman Tom Campbell of California and other members of the House of Representatives brought suit against President Clinton seeking a declaratory judgment that the President's actions in the Kosovo crisis were unlawful because they violated both the War Powers Clause of the Constitution (8) and applicable provisions of the War Powers Resolution. (9) In Campbell v. Clinton, both the District Court for the District of Columbia (10) and the D.C. Circuit Court of Appeals (11) found that the plaintiffs lacked standing to bring this suit and, thus, never reached the merits of the case. (12)

    Campbell v. Clinton is but one of the most recent in a long line of cases dealing with the issue of legislator standing. (13) Ever since the Vietnam War, federal legislators have been emboldened to bring suit against the President, other Executive Branch officials and agencies, and even their own House of Congress. (14) Most of these cases have been filed in the D.C. Circuit. (15) The Supreme Court has merely touched on the concept of legislator standing in a very small number of cases, the most recent being Raines v. Byrd, (16) which involved a challenge to the Line Item Veto Act. As a consequence, it has been left to the D.C. Circuit to develop a jurisprudence on legislator standing. By the 1990s, the Circuit had developed at least three distinct approaches to the question, with the last approach predominating for almost twenty years. The Supreme Court's decision in Raines, however, required the D.C. Circuit to reconsider its approaches. Campbell v. Clinton and Chenoweth v. Clinton, (17) both decided shortly after Raines, gave the appellate court the opportunity to begin this reconceptualization. But with little guidance to be gleaned from the Supreme Court's very narrow holding in Raines, and with a fundamental misunderstanding of both the nature of injury and the separation of powers doctrine, the D.C. Circuit has failed to develop an adequate approach to legislator standing.

    The purpose of this Article is to analyze the concept of legislator standing. It will argue that legislators suing in their official capacity should never be granted standing. In order to advance this argument, Part II will discuss the general doctrine of standing as it has been developed by the Supreme Court. Part III will examine the development of legislator standing, focusing primarily on the jurisprudence of the D.C. Circuit. Part IV will consider the current state of legislator standing and provide our critique. Finally, Part V will discuss the future of legislator standing and conclude that courts should explicitly reject the doctrine of legislator standing.


    Under Article III of the Constitution, the judicial power extends only to issues arising from "cases" or "controversies." (18) To a casual observer, this phrase may seem to have no legal significance. In reality, however, the "cases" or "controversies" requirement has been interpreted by courts as an indispensable restriction of the jurisdiction of the federal judiciary. Unlike the courts of numerous other countries, (19) as well as the International Court of Justice, (20) U.S. courts cannot issue advisory opinions. Instead, they are to decide a case only if it presents a "live" dispute between real disputants. As the Supreme Court noted in Simon v. Eastern Kentucky Welfare Rights Organization, "[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." (21) To ensure that this "cases and controversies" requirement is met, federal courts have developed and variously used four main justiciability doctrines: standing, mootness, (22) ripeness, (23) and the political question doctrine. (24) If a case is found to be non-justiciable on the basis of any of these doctrines, courts will dismiss it and refuse to take up the merits. (25) As the Supreme Court noted in Allen v. Wright, "[t]he Art[icle] III doctrine that requires a litigant to have `standing' to invoke the power of a federal court is perhaps the most important of these doctrines." (26) Before a court can reach the merits, therefore, it must answer--even if implicitly--the question of whether the plaintiff has standing to sue.

    Recently, the Supreme Court has had occasion to explore the concept of standing. In its decisions, the Court has elaborated upon the criteria that determine if a plaintiff has standing and has examined the doctrine's underlying rationale. As the Court observed in Lujan v. Defenders of Wildlife, "[t]hough some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." (27) At present, there appear to be three main constitutional criteria necessary to standing. (28) First, "the plaintiff must show that he [or she] personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." (29) Second, the injury must be "fairly traceable to the defendant's allegedly unlawful conduct." (30) In other words, "there must be a causal connection between the injury and the conduct complained of." (31) Third, the injury must be "likely to be redressed by a favorable decision" of the court. (32)

    While the second and third criteria are self-explanatory, the Supreme Court has spent a great deal of time elaborating on the first criterion: the requirement of injury. In Bennett v. Spear, the Court explained that standing requires "that the plaintiff have suffered an `injury in fact'--an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." (33) To be "judicially cognizable," the injured interest must be one that is "legally protected." (34) There must be a legally guaranteed right not to be injured in the fashion alleged by the plaintiff. Moreover, the injury must be real and specific. The Supreme Court rejects injuries that are "generalized." In Lujan, the Court noted that it has:

    consistently held that a plaintiff raising only a generally available grievance about government--claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large--does not state an Article III case or controversy. (35) In addition to these three fundamental constitutional requirements for standing, courts have developed prudential considerations to be used in evaluating standing. (36) These requirements are "judicially self-imposed limits on the exercise of federal jurisdiction." (37) One of these prudential considerations, established in Association of Data Processing Service Organizations v. Camp, (38) is the requirement that the injury must fall within "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." (39) This consideration was further elaborated upon in Bennett v. Spear. (40) In Bennett, the Court explained that "Congress legislates against the background of our prudential standing doctrine, which applies unless it is expressly negated." (41) Thus, Congress has the authority to spell out in a statute precisely what individuals would have interests that would fall within the "zone." As the Bennett court noted, "the breadth of the zone of interests varies according to the provisions of law at issue ..." (42) Necessarily, a court...

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