University of Missouri School of Law Scholarship Repository Faculty Publications 1986 Congressional Standing to Sue: Whose Vote is This, Anyway? R. Lawrence Dessem University of Missouri School of Law, [email protected] Follow this and additional works at:http://scholarship.law.missouri.edu/facpubs Part of theAdministrative Law Commons,Courts Commons,Law and Politics Commons, and thePresident/Executive Department Commons Recommended Citation R. Lawrence Dessem, Congressional Standing to Sue: Whose Vote Is This, Anyway?, 62 Notre Dame L. Rev. 1 (1986) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. Congressional Standing to Sue: Whose Vote is This, Anyway? R. Lawrence Dessem* In recent years Members of the United States Congress have brought suit against the executive branch of the federal government with growing frequency. As early as 1978, the United States Court of Appeals for the District of Columbia Circuit noted: "An increasing number of congressmen and senators are repairing to the courts, either instead of, or after, resorting to the political process, to challenge executive actions and policies. Such cases, because of their almost inevitable political overtones, present the courts with some very difficult jurisdictional ques- tions."1 These "difficult jurisdictional questions" are the subject of this article. The article is divided into three major sections. Section I traces the development of a separate doctrine of "congressional standing." It ex- amines the doctrine's development from the Supreme Court's initial con- sideration of legislative standing through the current opinions of the United States Court of Appeals for the District of Columbia Circuit. Sec- tion II then analyzes three possible theories of congressional injury and standing. Derivative, representative, and third-party standing theories are all rejected as a basis for congressional standing. While rejecting the suggestion that congressmen possess a personal interest in "their" votes sufficient to constitute the "distinct and palpable injury"2 required for * Associate Professor of Law, University of Tennessee College of Law. B.A., 1973, Macalester College;J.D., 1976, Harvard University. As an attorney with the United States Department ofJus- tice, the author represented the executive branch in two of the cases cited in this article: Cranston v. Reagan, 611 F. Supp. 247 (D.D.C. 1985), and Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), vacated sub nom., NOW, Inc. v. Idaho, 459 U.S. 809 (1982). 1 Reuss v. Balles, 584 F.2d 461,465 n.14 (D.C. Cir.), cert. denied, 439 U.S. 997 (1978) (citation omitted). See also Gregg v. Barrett, 771 F. 2d 539, 543 (D.C. Cir. 1985), stating that, "It has become a growing phenomenom to see individual members of Congress challenge actions or failures to act as violations of the members' interests as legislators." Indeed, in 1973 Senator Walter Mondale acknowledged "a greater awareness on the part of Members of the Congress-and the American people--of the dangers of illegal executive branch actions, and the potential of court challenges as a means ofcorrecting such illegality." 119 CONG. REc. 33,796 (1973). AsJudge Ruth Bader Ginsburg has noted, these congressional plaintiffs have included both "liberal" and "conservative" legislators. Ginsburg, InvitingJudicialActivisim:A 'Liberal' or 'Conservative' Technique?, 15 GA. L. REv. 539, 541-42 (1981). These lawsuits also have sparked commentary in legal journals. See McGowan, Congressmen in Court. The New Plaintffs, 15 GA. L. REv. 241 (1981); Note, The Justiciabililty of Congressional-Plaintiff Suits, 82 COLUM. L. REV.5 26 (1982); Note, Congress Versus the Executive: The Role of the Courts, 11 HAav. J. ON LEGIs. 352 (1974); Note, CongressionalA ccess to the Federal Courts, 90 HARv. L. REV. 1632 (1977); Note, The Burger Court's Unified Approach to Standing and its Impact on CongressionalP laintiffs, 60 NOTRE DAME L. Rav. 1187 (1985); Note, Standing to Sue for Members of Congress, 83 YALE L.J. 1665 (1974); Comment, Standing Versus Justiciability: Recent Developments in ParticipatoryS uits Brought by Congressional Plaintif1f98s2, B.Y.U. L. REv. 371 (1982); Comment, StandingforS tate and FederalL egislators, 23 SANTA CLARA L. REV. 811 (1983); Comment, CongressionalS tanding to Challenge Executive Action, 122 U. PA. L. REv. 1366 (1974). 2 Warth v. Seldin, 422 U.S. 490, 501 (1975). HeinOnline -- 62 Notre Dame L. Rev. 1 1986-1987 NOTRE DAME LAW REVIEW [Vol. 62:1 article III standing purposes, the article finds that truly direct injury to an individual Member of Congress is a proper predicate for congressional standing. Section III next considers the circumstances under which the Congress, as an institution, might possess standing and concludes that suits initiated by Congress would not suffer from the same deficiencies as do suits brought by its individual Members. Accordingly, this section of the article concludes that, in appropriate circumstances, the courts should recognize the standing of the Congress to sue the Executive. The Supreme Court has recognized that in determining the standing to sue of private plaintiffs, "No principle is more fundamental to thejudi- ciary's proper role in our system of government than the constitutional limitation of federal court jurisdiction to actual cases or controversies."3 This same constitutional limitation, and concern, is heightened when the standing to sue of a congressman, rather than of a private person, is at issue. Accordingly, resolution of the issue of congressional standing re- quires an examination of the "proper role" of both the courts and the Congress in "our system of government." I. The Development of a Separate Doctrine of "Congressional Standing" A. The Supreme Court's Initial Considerationo f Legislative Standing With increasing frequency in recent years, the Supreme Court has addressed the standing to sue of private plaintiffs.4 The Court has held that "[t]he concept of standing is part of [an article III constitutional] limitation,"5 the standing question in all cases being "whether the plain- tiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal court jurisdiction and to justify exercise of the court's remedial powers on his behalf.' 6 The Court also has stressed that "[t]he nature of the injury is central to the Art. III in- quiry, because standing also reflects a due regard for the autonomy of those most likely to be affected by a judicial decision. ''7 The Supreme Court recently summarized the article III standing re- quirements as follows: [A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to 'show that he personally has suffered some ac- tual or threatened injury as a result of the putatively illegal conduct of 3 Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37 (1976). 4 E.g., Diamond v. Charles, 106 S. Ct. 1697 (1986); City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Valley Forge Christian College v. Americans United For Separation of Church and State, 454 U.S. 464 (1982); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59 (1978); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976); Warth v. Seldin, 422 U.S. 490 (1975); O'Shea v. Littleton, 414 U.S. 488 (1974); Association of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150 (1970); Baker v. Carr, 369 U.S. 186 (1962). 5 Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976). 6 Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). Justice Scalia has described standing somewhat more colorfully as follows: "In more pedes- trian terms, it is an answer to the very first question that is sometimes rudely asked when one person complains of another's actions: 'What's it to you?' " Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SuFroLu U. L. REv. 881, 882 (1983). 7 Diamond v. Charles, 106 S. Ct. 1697, 1703 (1986). HeinOnline -- 62 Notre Dame L. Rev. 2 1986-1987 1986] CONGRESSIONAL STANDING the defendant,' Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979), and that the injury 'fairly can be traced to the challenged ac- tion' and 'is likely to be redressed by a favorable decision,' Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 (1976).8 Despite the large number of recent cases in which the Supreme Court has addressed the standing doctrine, it has never directly consid- ered the circumstances under which a Member of Congress possesses standing to sue in his or her official capacity.9 However, in its 1939 deci- sion in Coleman v. Miller the Court did consider the standing to sue of state legislators.10 The Coleman case involved a dispute over the authority of the Lieu- tenant Governor of Kansas to cast the tie-breaking vote on a resolution for the ratification of a proposed child labor amendment to the United States Constitution. The Coleman plaintiffs consisted of the twenty mem- bers of the Kansas Senate who had voted against the resolution." The Kansas Supreme Court upheld both the Lieutenant Governor's authority to cast the deciding vote and the validity of the resolution itself.'2 The United States Supreme Court's subsequent consideration of the case produced an "Opinion of the Court" authored by Chief Justice Hughes which only two other justices joined. In this opinion, the Chief Justice concluded that at least the twenty senators who had voted against the resolution had standing to challenge its purported ratification by 8 Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982), quoted in Diamond v. Charles, 106 S. Ct. 1697, 1707-08 (1986). 9 The Court, however, has granted certiorari in a case which presents the issue of congressional standing. Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985), cert. granteds ub nom., Burke v. Barnes, 106 S. Ct. 1258 (1986). While the issue of congressional standing has been raised in several other cases decided by the Supreme Court, the Court has never directly addressed the issue. In some of the cases in which congressional standing has been raised, the Supreme Court simply did not address the standing of the congressional plaintiffs. Goldwater v. Carter, 444 U.S. 996 (1979) (mem.) (court of appeals' decision upholding standing of congressional plaintiffs to challenge the termination of a mutual defense treaty with the Republic of China vacated, but none of the four separate opinions addressed congressional standing); Environmental Protection Agency v. Mink, 410 U.S. 73, 75 n.2 (1973) (because standing of plaintiff congressmen was not reached by court of appeals, issue was not presented to, or considered by, Supreme Court). In other cases, the Supreme Court has merely affirmed, without opinion, lower court decisions dismissing actions brought by congressional plaintiffs on standing grounds. In McClure v. Carter, 513 F. Supp. 265 (D. Idaho), af'd merm., 454 U.S. 1025 (1981), a three-judge court ruled that Senator James McClure was without standing to challenge the appointment of Abner Mikva as a federal judge. In Pressler v. Simon, 428 F. Supp. 302 (D.D.C. 1976) (per curiam), aff'd mem., 434 U.S. 1028 (1978), a three-judge court held that a congressman had standing to challenge the constitutionality of two federal pay raises, but ruled against him on the merits. In a separate concurrence to the Supreme Court's affirmance of the lower court in Pressler, Justice Rehnquist stated: "Our 'unexpli- cated affirmance' without opinion could rest as readily on our conclusion that appellant lacked stand- ing to litigate the merits of the question as it could on agreement with the District Court's resolution of the merits of the question." 434 U.S. at 1029. Finally, on at least two recent occasions, the Supreme Court has considered actions brought by legislators challenging their exclusion from the legislative bodies to which they had been elected. Powell v. McCormack, 395 U.S. 486 (1969); Bond v. Floyd, 385 U.S. 116 (1966). In both of these cases the legislative bodies in question (the United States House of Representatives and the Georgia House of Representatives) refused to seat the plaintiffs or pay them legislative salaries. In neither case was the legislator's standing to sue addressed by the Supreme Court. 10 307 U.S. 433 (1939). 11 Id. at 435-36. 12 Id. at 436-37. HeinOnline -- 62 Notre Dame L. Rev. 3 1986-1987 NOTRE DAME LAW REVIEW [Vol. 62:1 Kansas.13 The Chief Justice reasoned: "Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although, if they are right in their conten- tions, their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes."'14 Justice Frankfurter, in a separate opinion in which Justices Roberts, Black, and Douglas joined, asserted that the state legislators were with- out standing to sue.-5 Justice Frankfurter argued that the state senators had no "specialized interest of their own to vindicate" in the lawsuit.'6 Instead, he asked, "What is their distinctive claim to be here, not pos- sessed by every Kansan? . . . In no repect ... do [plaintiffs'] objections relate to any secular interest that pertains to these Kansas legislators apart from interests that belong to the entire commonality of Kansas."117 Justice Frankfurter also distinguished precedents involving the votes of private citizens, concluding that "a voter's franchise is a personal right, assessable in money damages," while the votes of elected officials ''pertain to legislators not as individuals but as political representatives executing the legislative process."' 8 Accordingly, because Frankfurter believed the Court should "leave intra-parliamentary controversies to parliaments and outside the scrutiny of law courts,"19 he concluded that the Kansas legislators were without standing to sue. Coleman's authority as precedent for modem congressional standing cases is problematic. Neither Chief Justice Hughes nor Justice Frank- furter mustered a majority of the Court in support of their respective opinions. Moreover, Colemen dealt with the standing to sue of state legis- lators rather than of Members of Congress.20 Furthermore, the Coleman plaintiffs included every state senator who had voted against the child labor resolution, and the votes of these senators, if plaintiffs' legal theory was correct, would have been sufficient to defeat the adoption of the res- olution. Quite different concerns may, and should, apply in actions 13 Id. at 446. 14 Id. at 438. However, after concluding that the senators had standing to sue, the ChiefJus- tice's opinion did not reach the merits of plaintiff's claims because of the political question doctrine. Id. at 446-56. 15 Id at 460-70. In addition to this separate opinion which explicitly addressed standing, im- plicit in Justice Butler's dissent (in which Justice McReynolds joined) is the presumption that the legislators possessed standing to sue. Id. at 470-74. 16 Id. at 464. 17 Id. In an aside Justice Frankfurter also opined that, if the Kansas legislators were found to have standing, "[b]y as much right could a member of the Congress who had voted against the passage of a bill because moved by constitutional scruples urge before this Court our duty to con- sider his arguments of unconstitutionality." Id. at 465. 18 Id. at 469, 470. 19 Id. at 469. 20 The United States Court of Appeals for the District of Columbia Circuit has distinguished Coleman from congressional standing cases as follows: The major distinguishing factor between Coleman and the present case lies in the fact that the plaintiffs in Coleman were state legislators. A separation of powers issue arises as soon as the Coleman holding is extended to United States legislators. If a federal court decides a case brought by a United States legislator, it risks interfering with the proper affairs of a co- equal branch. Harrington v. Bush, 553 F.2d 190, 204-05 n.67 (D.C. Cir. 1977). HeinOnline -- 62 Notre Dame L. Rev. 4 1986-1987 19861 CONGRESSIONAL STANDING brought by individual congressmen who cannot even convince their fel- low legislators of the correctness of their cause.21 Despite the weaknesses of Coleman as a judicial precedent, the case represents the Supreme Court's only specific consideration of legislative standing. Thus, after Coleman the lower federal courts were left to grap- ple with the issue of congressional standing to sue. B. The Initial CongressionalS tanding Decisions In The Lower Federal Courts Despite the acceptance of legislative standing by Chief Justice Hughes in Coleman, it was not until the early 1970's that congressmen attempted to resort to the federal courts in significant numbers. The ini- tial congressional lawsuits challenged miscellaneous actions of the execu- tive branch.22 However, the issue that served as the catalyst for the growing number of such lawsuits was American military involvement in Southeast Asia. Indeed, lawsuits challenging the legality of American involvement in Southeast Asia resulted in consideration of congressional standing by three separate United States courts of appeals.23 In two of these cases the plaintiff congressmen were found to lack standing.24 The third deci- sion recognized congressional standing but provided only a short-lived precedent even in the circuit in which it was decided.25 However, the decision of the United States Court of Appeals for the District of Colum- bia Circuit in Mitchell v. Laird is instructive, for it represents perhaps the broadest appellate construction of congressional standing to sue. In Mitchell v. Laird the court of appeals upheld the standing of thir- teen Members of Congress to challenge the constitutionality of the United States' involvement in Southeast Asia. The Court found congres- sional standing because the declaratory judgment sought "would bear upon the duties of plaintiffs to consider whether to impeach defendants, and upon plaintiffs' quite distinct and different duties to make appropria- tions to support the hostilities, or to take other legislative actions related to such hostilities ....26 The District of Columbia Circuit soon expressly disapproved Mitch- 21 See infra notes 158-62 and accompanying text. 22 See, e.g., Nader v. Bork, 366 F. Supp. 104, 105-06 (D.D.C. 1973) (congressmen held to have standing to seek judicial declaration concerning legality of the dismissal of the Watergate Special Prosecutor); Brown v. Ruckelshaus, 364 F. Supp. 258, 263-64 (C.D. Cal. 1973) (congressman held to lack standing to challenge allotment by Environmental Protection Agency of federal water pollution control funds); Williams v. Phillips, 360 F. Supp. 1363, 1365-66 (D.D.C. 1973) (senators held to have standing to challenge legality of individual serving as acting director of Office of Economic Opportu- nity). See also State Highway Comm'n of Mo. v. Volpe, 479 F.2d 1099, 1099 n.1 (8th Cir. 1973) (amicus brief submitted on behalf of congressmen in action challenging impoundment of federal highway funds). 23 Harrington v. Schlesinger, 528 F.2d 455 (4th Cir. 1975); Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973). See also Drinan v. Nixon, 364 F. Supp. 854 (D. Mass. 1973); Gravel v. Laird, 347 F. Supp. 7 (D.D.C. 1972). 24 Harrington v. Schlesinger, 528 F.2d 455, 459 (4th Cir. 1975); Holtzman v. Schlesinger, 484 F.2d 1307, 1315 (2d Cir. 1973). 25 Mitchell v. Laird, 488 F.2d 611, 613-14 (D.C. Cir. 1973). 26 488 F.2d at 614. The court of appeals nevertheless found the case to be nonjusticiable be- cause it presented a political question. 488 F.2d at 616. HeinOnline -- 62 Notre Dame L. Rev. 5 1986-1987 NOTRE DAME LAW REVIEW [Vol. 62:1 ell's broad theory of congressional standing in Harrington v. Bush.27 Rather than Mitchell v. Laird,28 it was the subsequent decision of the United States Court of Appeals for the District of Columbia Circuit in Kennedy v. Sampson29 that became the seminal case on congressional standing. C. Kennedy v. Sampson and its progeny While not the first judicial decision recognizing legislative standing, the 1974 decision of Kennedy v. Sampson30 soon became the leading con- gressional standing case within both the District of Columbia Circuit and the other federal appellate circuits generally.31 Senator Edward M. Ken- nedy brought the case in the United States District Court for the District of Columbia to challenge an attempted "pocket veto" by President Nixon of a bill for which Senator Kennedy had voted.32 Although Sena- tor Kennedy sued in his capacity as a citizen and taxpayer, as well as in his capacity as a senator, neither the district court nor the court of ap- peals considered his asserted standing as either a citizen or a taxpayer.33 Instead, both courts held that Senator Kennedy had standing to sue as an individual Member of Congress.34 27 553 F.2d 190, 207-08 (D.C. Cir. 1977). In Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974), the congressional standing case decided by the D.C. Circuit one year after Mitchell, the court of appeals did not even cite Mitchell, despite the fact that both the district court and the congres- sional plaintiff in Kennedy had explicitly relied upon the earlier decision. See Harrington v. Bush, 553 F.2d 190, 208 (D.C. Cir. 1977); Kennedy v. Sampson, 364 F. Supp. 1075, 1079 (D.D.C. 1973). Moreover, bothJudge Tamm, who wrote for the Kennedy panel, and ChiefJudge Bazelon were on the appellate panel that had decided Mitchell v. Laird. In addition to this treatment in the District of Columbia Circuit, the two other United States courts of appeals which have considered the congres- sional standing rationale adopted in Mitchell have refused to adopt such reasoning. Harrington v. Schlesinger, 528 F.2d 455, 459 (4th Cir. 1975); Holtzman v. Schlesinger, 484 F.2d 1307, 1315 (2d Cir. 1973). 28 See supra notes 25, 26 and accompanying text. 29 511 F.2d 430 (D.C. Cir. 1974). 30 Id. 31 While the majority of the congressional standing cases have been brought and decided in the District of Columbia Circuit, some congressional plaintiffs have brought suit in other judicial cir- cuits. Ameron, Inc. v. U.S. Army Corps of Eng'rs, 787 F.2d 875, 888 (3d Cir. 1986); Harrington v. Schlesinger, 528 F.2d 455, 459 (4th Cir. 1975); Holtzman v. Schlesinger, 484 F.2d 1307, 1315 (2d Cir. 1973); McClure v. Carter, 513 F. Supp. 265 (D. Idaho), aff'd sub. nom., McClure v. Reagan, 454 U.S. 1025 (1981) (mem.); Brown v. Ruckelshaus, 364 F. Supp. 258, 263-264 (C.D. Cal. 1973). See also Drummond v. Bunker, 560 F.2d 625 (5th Cir. 1977) (members of Congress intervened in action concerning Panama Canal negotiations; standing issue not reached by the court). In addition to the above congressional actions, federal judicial circuits other than the District of Columbia Circuit have decided cases concerning the standing to sue of state legislators. Dennis v. Luis, 741 F.2d 628, 630-34 (3d Cir. 1984); Korioth v. Briscoe, 523 F.2d 1271, 1277-78 (5th Cir. 1975); Idaho v. Freeman, 529 F. Supp. 1107, 1116-21 (D. Idaho 1981), vacated on other grounds sub nom., NOW, Inc. v. Idaho, 459 U.S. 809 (1982); Dyer v. Blair, 390 F. Supp. 1291, 1297-98 (N.D. IIl. 1975); Trombetta v. Florida, 353 F. Supp. 575, 576 (M.D. Fla. 1973). See also Colorado General Assembly v. Lamm, 700 P.2d 508, 515-16 (Colo. 1985) (en banc); Wilt v. Beal, 26 Pa. Commw. 298, 363 A.2d 876, 878-881 (1976). However, even in those congressional and legislative standing cases decided outside the District of Columbia Circuit, that circuit's decision in Kennedy v. Sampson has been cited and followed. See, e.g., Harrington v. Schlesinger, 528 F.2d at 459; Idaho v. Freeman, 529 F. Supp. at 1118-20; McClure v. Carter, 513 F. Supp. at 270. 32 364 F. Supp. 1075 (D.D.C. 1973). 33 364 F. Supp. at 1077-79; 511 F.2d at 433. 34 364 F. Supp. at 1079; 511 F.2d at 433. HeinOnline -- 62 Notre Dame L. Rev. 6 1986-1987 19861 CONGRESSIONAL STANDING In affirming the district court's standing decision, the court of ap- peals relied upon Coleman v. Miller.35 However, in contrast to Coleman, where all twenty senators who had voted against the challenged resolu- tion brought suit, Senator Kennedy was the sole plaintiff who sued con- cerning the attempted pocket veto. The court of appeals explicitly noted that Senator Kennedy "ha[d] not been authorized to prosecute this suit on behalf of the Senate or the Congress."'36 Nevertheless, the court con- cluded that article III standing requirements were satisfied by Senator Kennedy's assertion that the attempted pocket veto had "nullified" his vote in favor of the legislation in question.37 While recognizing that any interest of, or injury to, Senator Kennedy was merely "derivative" of that of the Congress, the court nevertheless concluded that "the office of United States Senator does confer a participation in the power of the Congress which is exercised by a Senator when he votes for or against proposed legislation.''38 Three years after its decision in Kennedy v. Sampson the Court of Ap- peals for the District of Columbia Circuit again faced the issue of con- gressional standing in Harringtonv . Bush.39 In this lawsuit, Congressman Harrington challenged certain activities of the Central Intelligence Agency and asserted that such activities had injured him as a congress- man in connection with the impeachment, appropriations, and general lawmaking powers of Congress. The Court of Appeals, however, refused to follow its earlier decision in Mitchell v. Laird. It instead concluded that even though the declaratory judgment sought by Congressman Harring- ton would "bear upon" his congressional duties, he nevertheless lacked standing to sue.40 In reaching this conclusion, the Harrington court asserted that "there are no special standards for determining congressional standing ques- tions."'4' The court rejected the Congressman's argument that he en- joyed a "special relationship" to the legislative process that was significant for standing purposes. The court concluded that "[t]here is no doubt that, as a Congressman, appellant occupies a special relation- ship to the legislative process. This relationship, however, merely de- fines his power to act in the process, not the impact of any illegality on his Congressional status."42 35 307 U.S. 433 (1939). 36 511 F.2dat433. 37 Id. 38 511 F.2d at 436. In a separate concurrence Judges Fahy and Bazelon agreed that Senator Kennedy had standing, stating that the senator "represents a sovereign state whose people have a deep interest in the Act and look to their Senators to protect that interest" and that he possessed "a legal right" to seek to protect "his own interest as a national legislator in the bill for which he voted." 511 F.2d at 446. 39 553 F.2d 190 (D.C. Cir. 1977). The year after its decision in Kennedy the U.S. Court of Ap- peals for the D.C. Circuit decided two cases in which it found the congressional plaintiffs without standing to sue. Public Citizen, Inc. v. Sampson, No. 74-1619 (D.C. Cir. June 16, 1975); Stokes v. General Servs. Admin., No. 74-1886 (D.C. Cir. June 9, 1975). However, neither of these cases was officially reported. See Harrington v. Bush, 553 F.2d at 194 n.4. 40 553 F.2d at 207-210. 41 553 F.2d at 214. 42 553 F.2d at 211. The court of appeals' delimitation of any "special relationship" between a congressman and the legislative process was analogous to the rejection of congressional standing in HeinOnline -- 62 Notre Dame L. Rev. 7 1986-1987 NOTRE DAME LAW REVIEW [Vol. 62:1 The court also narrowly limited its prior decision in Kennedy v. Samp- son. Rather than recognizing congressional standing to challenge the le- gality of executive branch actions undertaken subsequent to the enactment of a law, the Harrington court interpreted the "Kennedy para- digm" as "rel[ying] on nullification of a specific vote as the requisite in- jury in fact."43 Accordingly, the court denied Congressman Harrington standing to sue because his "votes ha[d] not been nullified or diminished in force because of the [alleged] post-enactment illegality"44 and because the court refused to recognize "an impairment of future unspecified votes" as sufficient injury for article III standing purposes.45 Two years after Harrington the United States Court of Appeals for the District of Columbia Circuit, sitting en banc, decided Goldwater v. Carter.46 In the court's per curiam opinion, a majority of the judges con- cluded that the plaintiff senators and representatives possessed standing to challenge the President's unilateral termination of a Mutual Defense Treaty with the Republic of China.47 The "crucial fact" leading the ma- jority to find standing was "that... there [was] no conceivable senatorial McRae v. Mathews, 421 F. Supp. 533 (E.D.N.Y. 1976), vacated on other grounds, 433 U.S. 916 (1977). In McRae, several congressman who had voted in favor of a statute sought to intervene in a judicial action in which the constitutionality of that statute was challenged. The district court found the congressmen without standing to sue because they had had their "vote[s] counted at [their] full legal value." 421 F. Supp. at 540. The court explained its ruling as follows: "To grant intervention on the ground of the members' participation in enacting the law would involve accepting as a principle that each member of the Congress has an interest to intervene in every case in which the substantive constitutionality of a provision in a federal enactment was drawn into question, or indeed, in which the interpretation of a federal statute was in question." Id. 43 553 F.2d at 211. The Harrington court also reaffirmed the theory of "derivative injury" adopted in Kennedy v. Sampson. While recognizing that Representative Harrington had not been au- thorized to prosecute any legal action, the court of appeals concluded that indirect, or derivative, injury was sufficient to establish congressional standing. Id. at 199 n.41. However, the court further concluded that Congress, itself, had not been injured and that therefore Congressman Harrington could not suffer injury derivatively. Id. at 200 n.41. 44 Id. at 213. 45 Id. at 211. On the same day that it issued its opinion in Harrington, the court of appeals also decided another congressional standing case. Metcalf v. National Petroleum Council, id. at 176 (D.C. Cir. 1977). In this second case the court relied upon Harrington in finding insufficient Senator Metcalf's injuries premised upon the alleged "nullification" of past votes and his own uncertainty as to "how best to take effective legislative action to correct the illegalities he perceive[d]." Id. at 185. Although Senator Metcalf tried to distinguish himself from Representative Harrington by also suing in his capacity as the chairman of a Senate subcommittee, the court found it to be insignificant that he had alleged injuries "relate[d] to his legislative responsibility in a specific subject area and on a specific committee." Id. at 188. The court concluded that Senator Metcalf lacked standing to sue because "[iut is the injury which must be specific, not merely the interest on which the injury has been inflicted." Id. 46 617 F.2d 697 (D.C. Cir) (per curiam) (en banc), vacated, 444 U.S. 996 (1979) (mem.). Subse- quent to its decision in Harrington, but prior to its decision in Goldwater, the court of appeals decided three other cases in which congressional plaintiffs challenged actions of the executive branch. Reuss v. Balles, 584 F.2d 461 (D.C. Cir.), cert. denied, 439 U.S. 997 (1978); Daughtrey v. Carter, 584 F.2d 1050 (D.C. Cir. 1978); Edwards v. Carter, 580 F.2d 1055 (D.C. Cir.) (per curiam), certd.en ied, 436 U.S. 907 (1978). In Renss and Daughtrey the court of appeals found the congressional plaintiffs to be without standing to sue, while in Edwards v. Carter the court recognized the question presented con- cerning plaintiffs' standing but nevertheless "proceed[ed] directly to the merits of [the] case" with- out addressing that issue. 580 F.2d at 1056-57. 47 617 F.2d at 701-03. In addition to the judges who joined the per curiam majority, in his sepa- rate dissentJudge MacKinnon also concluded that the congressional plaintiffs possessed standing to sue. Id. at 716. HeinOnline -- 62 Notre Dame L. Rev. 8 1986-1987 1986] CONGRESSIONAL STANDING action that could likely prevent termination of the Treaty."'48 Accord- ingly, the majority held that the congressional plaintiffs possessed stand- ing to sue based upon a "complete nullification or withdrawal of a voting 49 opportunity." ChiefJudge Skelly Wright authored a separate concurrence in which he argued that the congressional plaintiffs lacked standing to sue.50 Judge Wright asserted that, under Kennedy v. Sampson, an individual con- gressman could not establish derivative injury unless the Congress, as a whole, had been injured. Because "a majority of Congress [had not] spo- ken unequivocally" concerning termination of the treaty, neither Con- gress, nor any individual congressman, possessed standing to sue.51 While the Supreme Court vacated the court of appeals' Goldwater de- cision,52 none of the separate Supreme Court opinions in that case ad- dressed the issue of congressional standing. Thus, two years later in the case of Riegle v. Federal Open Market Committee,53 the District of Columbia Circuit itself attempted to reconcile its various congressional standing cases and their often divergent rationales. D. The District of Columbia Circuit's "Equitable Discretion" Doctrine Concern with perceived contradictions in its congressional standing cases led the United States Court of Appeals for the District of Columbia Circuit to adopt a doctrine of "circumscribed equitable discretion" in its 1981 decision in Riegle v. Federal Open Market Committee.54 The court found "[t]wo contradictory principles" in its earlier standing decisions: First, no distinctions are to be made between congressional and pri- vate plaintiffs in the standing analysis.... Second, this court will not confer standing on a congressional plaintiff unless he is suffering an injury that his colleagues cannot redress.55 In an effort to resolve this asserted contradiction, while recognizing the separation of powers issues posed by congressional lawsuits, the Riegle court held that "[w]hen a congressional plaintiff brings a suit in- volving circumstances in which legislative redress is not available or a pri- 48 Id. at 703. 49 Id. at 702. 50 Id. at 709. 51 Id. at 712. Judge Wright also separately addressed the "prudential aspect of the standing doctrine" and suggested that this aspect of standing also cautioned against entertaining the con- gressmen's lawsuit. Id. at 715. 52 444 U.S. 996 (1979) (mem.). 53 656 F.2d 873 (D.C. Cir.), cert. denied, 454 U.S. 1082 (1981). 54 Id. In opinions of the U.S. Court of Appeals for the District of Columbia Circuit subsequent to Riegle, "the name of the new doctrine [changed] from 'circumscribed equitable discretion'. . . to 'remedial discretion.'" United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1381 n.5 (D.C. Cir. 1984). In fact,judges of the court of appeals have "use[d] the terms interchangeably." Moore v. U.S. House of Representatives, 733 F.2d 946, 961 (D.C. Cir. 1984), cert. denied, 105 S. Ct. 779 (1985) (Scalia, J., concurring). 55 656 F.2d at 877. In contrast to the second of these "contradictory principles" is the court of appeals' earlier decision in Metcalf v. National Petroleum Council, in which the court rejected the sug- gestion that "merely because appellant can pursue an alternative remedy in the legislative process, he has suffered no injury." 553 F.2d 176, 189 n.129 (D.C. Cir. 1977). However, the Metcalf court reasoned that the existence of "undiminished powers" to function as a senator established that the plaintiff "[had] suffered no specific, demonstrable injury in his capacity as a senator." Id. HeinOnline -- 62 Notre Dame L. Rev. 9 1986-1987