skip navigation
search

CRS Annotated Constitution

Article III -- Table of ContentsPrev | Next
[p.665]

Organizational Standing.—Organizations do not have standing as such to represent their particular concept of the public interest,377 but organizations have been permitted to assert the rights of their members.378 In Hunt v. Washington State Apple Advertising Comm.,379 the Court promulgated elaborate standards, holding that an organization or association “has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit.” Similar considerations arise in the context of class actions, in which the Court holds that a named representative with a justiciable claim for relief is necessary when the action is filed and when the class is certified, but that following class certification there need be only a live controversy with the class, provided the adequacy of the representation is sufficient.380

Standing of States to Represent Their Citizens.—The right of a State to sue as parens patriae, in behalf of its citizens, has long been recognized.381 No State, however, may be parens patriae of her citizens “as against the Federal Government.”382 But a State may sue on behalf of the economic welfare of its citizens to protect[p.666]them from environmental harm383 and to enjoin other States and private parties from engaging in actions harmful to the economic or other well– being of its citizens.384 The State must be more than a nominal party without a real interest of its own, merely representing the interests of particular citizens who cannot represent themselves;385 it must articulate an interest apart from those of private parties that partakes of a “quasi–sovereign interest” in the health and well–being, both physical and economic, of its residents in general, although there are suggestions that the restrictive definition grows out of the Court’s wish to constrain its original jurisdiction and may not fit such suits brought in the lower federal courts.386

Standing of Members of Congress.—The lower federal courts have of late developed a body of law with respect to the standing of Members of Congress, as Members, to bring court actions, usually to challenge actions of the executive branch. Most of the law has developed in the District of Columbia Circuit,387 and the Supreme Court has yet to consider the issue on the merits.388 [p.667]It seems clear that a legislator “receives no special consideration in the standing inquiry,”389 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.

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.390 The breadth of this rationale was disapproved in subsequent cases. The leading decision is Kennedy v. Sampson,391 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.392 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.393 Having thus established[p.668]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.394 The status of this issue thus remains in confusion.

Supplement: [P. 668, add new paragraph at end of section:]

Member or legislator standing has been severely curtailed, although not quite abolished, in Raines v. Byrd.19 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.20 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.21 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.” 22

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,23 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.” 24 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.25

It will not pass notice 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? A period of dispute in the D.C. Circuit seems certain to follow.


Footnotes

377 Sierra Club v. Morton, 401 U.S. 727 (1972). An organization may, of course, sue to redress injuries to itself. See Havens Realty Co. v. Coleman, 455 U.S. 363, 378–379 (1982).
378 E.g., Joint Anti–Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951); NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958); NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964); United Mine Workers v. Illinois State Bar Assn., 389 U.S. 217 (1967); United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971).
379 432 U.S. 333, 343 (1977). The organization here was not a voluntary membership entity but a state agency charged with furthering the interests of apple growers who were assessed annual sums to support the Commission. Id., 341–345. See also Warth v. Seldin, 422 U.S. 490, 510–517 (1975); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39–40 (1976); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 263–264 (1977); Harris v. McRae, 448 U.S. 297, 321 (1980); International Union, UAW v. Brock, 477 U.S. 274 (1986).
380 United States Parole Comm. v. Geraghty, 445 U.S. 388 (1980). Geraghty was a mootness case.
381 Louisiana v. Texas, 176 U.S. 1 (1900) (recognizing the propriety of parens patriae suits but denying it in this particular suit).
382 Massachusetts v. Mellon, 262 U.S. 447, 485–486 (1923). But see South Carolina v. Katzenbach, 383 U.S. 301 (1966) (denying such standing to raise two constitutional claims against the United States but deciding a third); Oregon v. Mitchell, 400 U.S. 112, 117 n. 1 (1970) (no question raised about standing or jurisdiction; claims adjudicated).
383 Missouri v. Illinois, 180 U.S. 208 (1901); Kansas v. Colorado, 206 U.S. 46 (1907); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907); New York v. New Jersey, 256 U.S. 296 (1921); Pennsylvania v. West Virginia, 262 U.S. 553 (1923); North Dakota v. Minnesota, 263 U.S. 365 (1923).
384 Georgia v. Pennsylvania Railroad Co., 324 U.S. 439 (1945) (antitrust); Maryland v. Louisiana, 451 U.S. 725, 737–739 (1981) (discriminatory state taxation of natural gas shipped to out–of–state customers); Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982) (discrimination by growers against Puerto Rican migrant workers and denial of Commonwealth’s opportunity to participate in federal employment service laws).
385 New Hampshire v. Louisiana, 108 U.S. 76 (1883); Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938); Oklahoma v. Atchison, T. & S.F.Ry., 220 U.S. 277 (1911); North Dakota v. Minnesota, 263 U.S. 365, 376 (1923); Pennsylvania v. New Jersey, 426 U.S. 660 (1976).
386 Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607–608 (1982). Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, argued that the Court’s standards should apply only in original actions and not in actions filed in federal district courts, where, they contended, the prerogative of a State to bring suit on behalf of its citizens should be commensurate with the ability of private organizations to do so. Id., 610. The Court admitted that different considerations might apply between original actions and district court suits. Id., 603 n. 12.
387 Member standing has not fared well in other Circuits. Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir., 1973), cert. den., 416 U.S. 936 (1974); Harrington v. Schlesinger, 528 F.2d 455 (4th Cir., 1975).
388 In Coleman v. Miller, 307 U.S. 433, 438 (1939), the Court 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) (three–judge 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. Ibid. 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 set forth reasons 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.
389 Reuss v. Balles, 584 F.2d 461, 466 (D.C.Cir.), cert. den., 439 U.S. 997 (1978).
390 Mitchell v. Laird, 488 F.2d 611 (D.C.Cir. 1973).
391 511 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.), and id., 711–712 (Judge Wright), vacated and remanded with instructions to dismiss, 444 U.S. 996 (1979)
392 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.), cert. den., 439 U.S. 997 (1978).
393 Goldwater v. Carter, 617 F.2d 697, 702, 703 (D.C.Cir.) (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 Com. 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).
394 Riegle v. FOMC, 656 F.2d 873 (D.C.Cir.), cert. den., 454 U.S. 1082 (1981).

Supplement Footnotes

19 521 U.S. 811 (1997) .
20 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. Sec. 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) .
21 521 U.S. at 819.
22 521 U.S. at 821.
23 307 U.S. 433 (1939) .
24 521 U.S. at 823.
25 521 U.S. at 824–26.
Article III -- Table of ContentsPrev | Next