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No. 96-1671 Raines v. Byrd (96-1671), 521 U.S. 811 (1997)
Concurrence
[ Souter ]
Syllabus
Dissent
[ Stevens ]
Dissent
[ Breyer ]
Opinion
[ Rehnquist ]
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No. 96-1671


FREDERICK D. RAINES, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET, et al., APPELLANTS v. ROBERT C. BYRD et al.

on appeal from the united states district court for the district of columbia

[June 26, 1997]

Justice Souter, concurring in the judgment, with whom Justice Ginsburg joins, concurring.

Appellees claim that the Line Item Veto Act, Pub. L. 104-130, 110 Stat. 1200, codified at 2 U. S. C. A. §691 et seq. (Supp. 1997), is unconstitutional because it grants the President power, which Article I vests in Congress, to repeal a provision of federal law. As Justice Stevens points out, appellees essentially claim that, by granting the President power to repeal statutes, the Act injures them by depriving them of their official role in voting on the provisions that become law. See post, at 2-3. Under our precedents, it is fairly debatable whether this injury is sufficiently "personal" and "concrete" to satisfy the requirements of Article III. [n.1]

There is, first, difficulty in applying the rule that an injury on which standing is predicated be personal, not official. If our standing doctrine recognized this as a distinction with a dispositive effect, the injury claimed would not qualify: the Court is certainly right in concluding that appellees sue not in personal capacities, but as holders of seats in the Congress. See ante, at 9. And yet the significance of this distinction is not so straightforward. In Braxton County Court v. West Virginia ex rel. State Tax Comm'rs, 208 U.S. 192 (1908), it is true, we dismissed a challenge by a county court to a state tax law for lack of jurisdiction, broadly stating that " `the interest of a [party seeking relief] in this court should be a personal and not an official interest,' " id., at 198 (quoting Smith v. Indiana, 191 U.S. 138, 149 (1903)); accord, Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 151 (1951) (Frankfurter, J., concurring). But the Court found Braxton County "inapplicable" to a challenge by a group of state legislators in Coleman v. Miller, 307 U.S. 433, 438, and n. 3 (1939), and found the legislators had standing even though they claimed no injury but a deprivation of official voting power, id., at 437-446. [n.2] Thus, it is at least arguable that the official nature of the harm here does not preclude standing.

Nor is appellees' injury so general that, under our case law, they clearly cannot satisfy the requirement of concreteness. On the one hand, appellees are not simply claiming harm to their interest in having government abide by the Constitution, which would be shared to the same extent by the public at large and thus provide no basis for suit, see, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 482-483 (1982); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, 220 (1974); Fairchild v. Hughes, 258 U.S. 126, 129-130 (1922). Instead, appellees allege that the Act deprives them of an element of their legislative power; as a factual matter they have a more direct and tangible interest in the preservation of that power than the general citizenry has. Cf. Coleman, supra, at 438 (concluding that state legislators had a "plain" and "direct" interest in the effectiveness of their votes); see also Hendrick v. Walters, 865 P. 2d 1232, 1236-1238 (Okla. 1993) (concluding that a legislator had a personal interest in a suit to determine whether the Governor had lawfully assumed office due to substantial interaction between the Governor and legislature); Colorado General Assembly v. Lamm, 704 P. 2d 1371, 1376-1378 (Colo. 1985) (concluding that the legislature had suffered an injury in fact as a result of the Governor's exercise of his line item veto power). On the other hand, the alleged, continuing deprivation of federal legislative power is not as specific or limited as the nullification of the decisive votes of a group of legislators in connection with a specific item of legislative consideration in Coleman, being instead shared by all the members of the official class who could suffer that injury, the Members of Congress. [n.3]

Because it is fairly debatable whether appellees' injury is sufficiently personal and concrete to give them standing, it behooves us to resolve the question under more general separation of powers principles underlying our standing requirements. See Allen v. Wright, 468 U.S. 737, 752 (1984); United States v. Richardson, 418 U.S. 166, 188-197 (1974) (Powell, J., concurring). While "our constitutional structure [does not] require . . . that the Judicial Branch shrink from a confrontation with the other two coequal branches," Valley Forge Christian College, supra, at 474, we have cautioned that respect for the separation of powers requires the Judicial Branch to exercise restraint in deciding constitutional issues by resolving those implicating the powers of the three branches of Government as a "last resort," see ibid. The counsel of restraint in this case begins with the fact that a dispute involving only officials, and the official interests of those, who serve in the branches of the National Government lies far from the model of the traditional common law cause of action at the conceptual core of the case or controversy requirement, see Joint Anti-Fascist Refugee Comm., supra, at 150, 152 (Frankfurter, J., concurring). Although the contest here is not formally between the political branches (since Congress passed the bill augmenting Presidential power and the President signed it), it is in substance an interbranch controversy about calibrating the legislative and executive powers, as well as an intrabranch dispute between segments of Congress itself. Intervention in such a controversy would risk damaging the public confidence that is vital to the functioning of the Judicial Branch, cf. Valley Forge Christian College, supra, at 474 (quoting Richardson, supra, at 188 (Powell, J., concurring)), by embroiling the federal courts in a power contest nearly at the height of its political tension.

While it is true that a suit challenging the constitutionality of this Act brought by a party from outside the Federal Government would also involve the Court in resolving the dispute over the allocation of power between the political branches, it would expose the Judicial Branch to a lesser risk. Deciding a suit to vindicate an interest outside the Government raises no specter of judicial readiness to enlist on one side of a political tug of war, since "the propriety of such action by a federal court has been recognized since Marbury v. Madison, 1 Cranch 137 (1803)." Valley Forge Christian College, supra, at 473-474. And just as the presence of a party beyond the Government places the Judiciary at some remove from the political forces, the need to await injury to such a plaintiff allows the courts some greater separation in the time between the political resolution and the judicial review.

"[B]y connecting the censureship of the laws with the private interests of members of the community, . . . the legislation is protected from wanton assailants, and from the daily aggressions of party spirit." 1 A. de Tocqueville, Democracy in America 105 (Schoken ed. 1961).

The virtue of waiting for a private suit is only confirmed by the certainty that another suit can come to us. The parties agree, and I see no reason to question, that if the President "cancels" a conventional spending or tax provision pursuant to the Act, the putative beneficiaries of that provision will likely suffer a cognizable injury and thereby have standing under Article III. See Brief for United States 19-20, and n. 10; Brief for Appellees 32-33. By depriving beneficiaries of the money to which they would otherwise be entitled, a cancellation would produce an injury that is "actual," "personal and individual," and involve harm to a "legally protected interest," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, and n. 1 (1992) (internal quotation marks omitted); assuming the canceled provision would not apply equally to the entire public, the injury would be "concrete," id., at 560, 573-574; and it would be "fairly trace[able] to the challenged action of the" executive officials involved in the cancellation, id., at 560 (internal quotation marks omitted), as well as probably "redress[able] by a favorable decision," id., at 561 (internal quotation marks and citation omitted). See, e.g., Train v. City of New York, 420 U.S. 35, 40 (1975) (suit by City of New York seeking proper allotment of federal funds). While the Court has declined to lower standing requirements simply because no one would otherwise be able to litigate a claim, see Valley Forge Christian College, 454 U. S., at 489; Schlesinger, 418 U. S., at 227; United States v. Richardson, supra, at 179, the certainty of a plaintiff who obviously would have standing to bring a suit to court after the politics had at least subsided from a full boil is a good reason to resolve doubts about standing against the plaintiff invoking an official interest, cf. Joint Anti-Fascist Refugee Comm., 341 U. S., at 153-154 (Frankfurter, J., concurring) (explaining that the availability of another person to bring suit may affect the standing calculus).

I therefore conclude that appellees' alleged injuries are insufficiently personal and concrete to satisfy Article III standing requirements of personal and concrete harm. Since this would be so in any suit under the conditions here, I accordingly find no cognizable injury to appellees.


Notes

1 While Congress may, by authorizing suit for particular parties, remove any prudential standing barriers, as it has in this case, see, ante, at 8, n. 3, it may not reduce the Article III minimums.

2 As appellants note, it is also possible that the impairment of certain official powers may support standing for Congress, or one House thereof, to seek the aid of the Federal Judiciary. See Brief for United States 26, n. 14 (citing McGrain v. Daugherty, 273 U.S. 135, 174 (1927)). And, as appellants concede, see Brief for United States 20-21, 25-28, an injury to official authority may support standing for a government itself or its duly authorized agents, see, e.g., Diamond v. Charles, 476 U.S. 54, 62 (1986) (noting that "a State has standing to defend the constitutionality of its statute" in federal court); ICC v. Oregon Washington R. & Nav. Co., 288 U.S. 14, 25-27 (1933) (explaining that a federal agency had standing to appeal, because an official or an agency could be designated to defend the interests of the Federal Government in federal court); Coleman v. Miller, 307 U.S. 433, 441-445 (1939) (discussing cases).

3 As the Court explains, Coleman may well be distinguishable on the further ground that it involved a suit by state legislators that did not implicate either the separation of powers concerns raised in this case or corresponding federalism concerns (since the Kansas Supreme Court had exercised jurisdiction to decide a federal issue). See ante, at 13, n. 8.