Standing of Members of Congress

Standing of Members of Congress

The lower federal courts, principally the D.C. Circuit, developed a body of law governing the standing of Members of Congress, as Members, to bring court actions, usually to challenge actions of the executive branch.1 When the Supreme Court finally addressed the issue on the merits in 1997, however, it severely curtailed Member standing.2 All agree that a legislator “receives no special consideration in the standing inquiry,” 3 and that he, along with every other person attempting to invoke the aid of a federal court, must show “injury in fact” as a predicate to standing. What that injury in fact may consist of, however, is the basis of the controversy

Standing of Members of Congress and the U.S. Constitution

A suit by Members for an injunction against continued prosecution of the Indochina war was held maintainable on the theory that if the court found the President’s actions to be beyond his constitutional authority, the holding would have a distinct and significant bearing upon the Members’ duties to vote appropriations and other supportive legislation and to consider impeachment.4 The breadth of this rationale was disapproved in subsequent cases. The leading decision, issued by the D.C. Circuit, is Kennedy v. Sampson,5 in which a Member was held to have standing to contest the alleged improper use of a pocket veto to prevent from becoming law a bill the Senator had voted for. Thus, Congressmen were held to have a derivative rather than direct interest in protecting their votes, which was sufficient for standing purposes, when some “legislative disenfranchisement” occurred.6

Standing of Members of Congress: Developments

In a comprehensive assessment of its position, the Circuit distinguished between (1) a diminution in congressional influence resulting from executive action that nullifies a specific congressional vote or opportunity to vote in an objectively verifiable manner, which will constitute injury in fact, and (2) a diminution in a legislator’s effectiveness, subjectively judged by him, resulting from executive action, such a failing to obey a statute, where the plaintiff legislator has power to act through the legislative process, in which injury in fact does not exist.7 Having thus established a fairly broad concept of Member standing, the Circuit then proceeded to curtail it by holding that the equitable discretion of the court to deny relief should be exercised in many cases in which a Member had standing but in which issues of separation of powers, political questions, and other justiciability considerations counseled restraint.8 The status of this issue thus remains in confusion.

More about Standing of Members of Congress

Member or legislator standing has been severely curtailed, although not quite abolished, in Raines v. Byrd.9 Several Members of Congress, who had voted against passage of the Line Item Veto Act, sued in their official capacities as Members of Congress to invalidate the law, alleging standing based on the theory that the statute adversely affected their constitutionally prescribed lawmaking power.10 Emphasizing its use of standing doctrine to maintain separation-of-powers principles, the Court adhered to its holdings that, in order to possess the requisite standing, a person must establish that he has a “personal stake” in the dispute and that the alleged injury suffered is particularized as to him.11 Neither requirement, the Court held, was met by these legislators. First, the Members did not suffer a particularized loss that distinguished them from their colleagues or from Congress as an entity. Second, the Members did not claim that they had been deprived of anything to which they were personally entitled. “[A]ppellees’ claim of standing is based on loss of political power, not loss of any private right, which would make the injury more concrete…. If one of the Members were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead. The claimed injury thus runs (in a sense) with the Member’s seat, a seat which the Member holds… as trustee for his constituents, not as a prerogative of personal power.” 12

Other Aspects

So, there is no such thing as Member standing? Not necessarily so, because the Court turned immediately to preserving (at least a truncated version of) Coleman v. Miller,13 in which the Court had found that 20 of the 40 members of a state legislature had standing to sue to challenge the loss of the effectiveness of their votes as a result of a tie-breaker by the lieutenant governor. Although there are several possible explanations for the result in that case, the Court in Raines chose to fasten on a particularly narrow point. “[O]ur holding in Coleman stands (at most… ) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” 14 Because these Members could still pass or reject appropriations bills, vote to repeal the Act, or exempt any appropriations bill from presidential cancellation, the Act did not nullify their votes and thus give them standing. 15

More about Standing of Members of Congress

It may be observed that the Court’s two holdings do not cohere. If legislators have standing only to allege personal injuries suffered in their personal capacities, how can they have standing to assert official-capacity injury in being totally deprived of the effectiveness of their votes?

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References

This text about Standing of Members of Congress is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] Member standing has not fared well in other Circuits. Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974); Harrington v. Schlesinger, 528 F.2d 455 (4th Cir. 1975).

[Footnote 2] Raines v. Byrd, 521 U.S. 811 (1997). In Coleman v. Miller, 307 U.S. 433, 438 (1939), the Court had recognized that legislators can in some instances suffer an injury in respect to the effectiveness of their votes that will confer standing. In Pressler v. Blumenthal, 434 U.S. 1028 (1978), affg, 428 F. Supp. 302 (D.D.C. 1976) (threejudge court), the Court affirmed a decision in which the lower court had found Member standing but had then decided against the Member on the merits. The “unexplicated affirmance” could have reflected disagreement with the lower court on standing or agreement with it on the merits. Note Justice Rehnquist’s appended statement. Id. In Goldwater v. Carter, 444 U.S. 996 (1979), the Court vacated a decision, in which the lower Court had found Member standing, and directed dismissal, but none of the Justices who addressed the question of standing. The opportunity to consider Member standing was strongly pressed in Burke v. Barnes, 479 U.S. 361 (1987), but the expiration of the law in issue mooted the case.

[Footnote 3] Reuss v. Balles, 584 F.2d 461, 466 (D.C. Cir. 1978), cert. denied, 439 U.S. 997 (1978).

[Footnote 4] Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973).

[Footnote 5] 511 F.2d 430 (D.C. Cir. 1974). In Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985), the court again found standing by Members challenging a pocket veto, but the Supreme Court dismissed the appeal as moot. Sub nom. Burke v. Barnes, 479 U.S. 361 (1987). Whether the injury was the nullification of the past vote on passage only or whether it was also the nullification of an opportunity to vote to override the veto has divided the Circuit, with the majority favoring the broader interpretation. Goldwater v. Carter, 617 F.2d 697, 702 n.12 (D.C. Cir. 1979), and id. at 711-12 (Judge Wright), vacated and remanded with instructions to dismiss, 444 U.S. 996 (1979)

[Footnote 6] Kennedy v. Sampson, 511 F.2d 430, 435-436 (D.C. Cir. 1974). See Harrington v. Bush, 553 F.2d 190, 199 n.41 (D.C. Cir. 1977). Harrington found no standing in a Member’s suit challenging CIA failure to report certain actions to Congress, in order that Members could intelligently vote on certain issues. See also Reuss v. Balles, 584 F.2d 461 (D.C. Cir. 1978), cert. denied, 439 U.S. 997 (1978).

[Footnote 7] Goldwater v. Carter, 617 F.2d 697, 702, 703 (D.C. Cir. 1979) (en banc), vacated and remanded with instructions to dismiss, 444 U.S. 996 (1979). The failure of the Justices to remark on standing is somewhat puzzling, since it has been stated that courts “turn initially, although not invariably, to the question of standing to sue.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974). But see Harrington v. Bush, 553 F.2d 190, 207 (D.C. Cir. 1977). In any event, the Supreme Court’s decision vacating Goldwater deprives the Circuit’s language of precedential effect. United States v. Munsingwear, 340 U.S. 36, 39-40 (1950); O’Connor v. Donaldson, 422 U.S. 563, 577 n.12 (1975).

[Footnote 8] Riegle v. FOMC, 656 F.2d 873 (D.C. Cir. 1981), cert. denied, 454 U.S. 1082 (1981).

[Footnote 9] 521 U.S. 811 (1997).

[Footnote 10] The Act itself provided that “[a]ny Member of Congress or any individual adversely affected” could sue to challenge the law. 2 U.S.C. § 692(a)(1). After failure of this litigation, the Court in the following Term, on suits brought by claimants adversely affected by the exercise of the veto, held the statute unconstitutional. Clinton v. City of New York, 524 U.S. 417 (1998).

[Footnote 11] 521 U.S. at 819.

[Footnote 12] 521 U.S. at 821.

[Footnote 13] 307 U.S. 433 (1939).

[Footnote 14] 521 U.S. at 823.

[Footnote 15] 521 U.S. at 824-26.