Tom CAMPBELL, Member, U.S. House of Representatives, et al., Appellants, v. William Jefferson CLINTON, President of the United States, Appellee, 340 U.S. App. D.C. 149

Opinion for the Court filed by Circuit Judge SILBERMAN. Separate concurring opinion filed by Circuit Judge SILBERMAN. Separate opinion concurring in the judgment filed by Circuit Judge RANDOLPH. Separate concurring opinion filed by Circuit Judge TATEL. SILBERMAN, Circuit Judge: A number of congressmen, led by Tom Campbell of California, filed suit claiming that the President violated the War Powers Resolution and the War Powers Clause of the Constitution by directing U.S. forces’ participation in the recent NATO campaign in Yugoslavia. The district court dismissed for lack of standing.

We agree with the district court and therefore affirm. I. On March 24, 1999, President Clinton announced the commencement of NATO air and cruise missile attacks on Yugoslav targets.

Two days later he submitted to Congress a report, “consistent with the War Powers Resolution,” detailing the circumstances necessitating the use of armed forces, the deployment’s scope and expected duration, and asserting that he had “taken these actions pursuant to [his] authority ... as Commander in Chief and Chief Executive.” On April 28, Congress voted on four resolutions related to the Yugoslav conflict: It voted down a declaration of war 427 to 2 and an “authorization” of the air strikes 213 to 213, but it also voted against requiring the President to immediately end U.S. participation in the NATO operation and voted to fund that involvement.

The conflict between NATO and Yugoslavia continued for 79 days, ending on June 10 with Yugoslavia’s agreement to withdraw its forces from Kosovo and allow deployment of a NATO-led peacekeeping force. Throughout this period Pentagon, State Department, and NATO spokesmen informed the public on a frequent basis of developments in the fighting.

Appellants, 31 congressmen opposed to U.S. involvement in the Kosovo intervention, filed suit prior to termination of that conflict seeking a declaratory judgment that the President’s use of American forces against Yugoslavia was unlawful under both the War Powers Clause of the Constitution and the War Powers Resolution (“the WPR”). See 50 U.S.C. § 1541 et seq.

The WPR requires the President to submit a report within 48 hours “in any case in which United States Armed Forces are introduced ... into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” and to “terminate any use of United States Armed Forces with respect to which a report was submitted (or required to be submitted), unless the Congress ... has declared war or has enacted a specific authorization for such use of United States Armed Forces” within 60 days.

Appellants claim that the President did submit a report sufficient to trigger the WPR on March 26, or in any event was required to submit a report by that date, but nonetheless failed to end U.S. involvement in the hostilities after 60 days. The district court granted the President’s motion to dismiss, see Campbell v. Clinton, 52 F.Supp.2d 34 (D.D.C.1999), and this appeal followed. II. The government does not respond to appellants’ claim on the merits.

Instead the government challenges the jurisdiction of the federal courts to adjudicate this claim on three separate grounds: the case is moot; appellants lack standing, as the district court concluded; and the case is nonjusticiable. Since we agree with the district court that the congressmen lack standing it is not necessary to decide whether there are other jurisdictional defects. The question whether congressmen have standing in federal court to challenge the lawfulness of actions of the executive was answered, at least in large part, in the Supreme Court’s recent decision in Raines v.

Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). Raines involved a constitutional challenge to the President’s authority under the short-lived Line Item Veto Act. Individual congressmen claimed that under that Act a President could veto (unconstitutionally) only part of a law and thereby diminish the institutional power of Congress. Observing it had never held that congressmen have standing to assert an institutional injury as against the executive, see id. at 821, 117 S.Ct. 2312, the Court held that petitioners in the case lacked “legislative standing” to challenge the Act.

The Court noted that petitioners already possessed an adequate political remedy, since they could vote to have the Line Item Veto Act repealed, or to provide individual spending bills with a statutory exemption. See id. at 829, 117 S.Ct. 2312. Thereafter in Chenoweth v. Clinton, 181 F.3d 112, 115 (D.C.Cir.1999), emphasizing the separation-of-powers problems inherent in legislative standing, we held that congressmen had no standing to challenge the President’s introduction of a program through executive order rather than statute.

As in Raines, appellants contended that the President’s action inflicted an institutional injury upon Congress, in this case by circumventing its legislative authority, but, we said, It is uncontested that the Congress could terminate the [contested program] were a sufficient number in each House so inclined. Because the parties’ dispute is therefore fully susceptible to political resolution, we would [under circuit precedent] dismiss the complaint to avoid “meddlfing] in the internal affairs of the legislative branch.” Applying Raines, we would reach the same conclusion. Id. at 116 (citation omitted).

There remains, however, a soft spot in the legal barrier against congressional legal challenges to executive action, and it is a soft spot that appellants sought to penetrate. In 1939 the Supreme Court in Coleman v. Miller voted 5-4 to recognize the standing of Kansas State legislators in the Supreme Court to challenge the actions of the Kansas Secretary of State and the Secretary of the State Senate. See 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). That case arose out of a State Senate vote on the ratification of a constitutional amendment, the Child Labor Amendment, proposed by Congress in 1924.

The State Senate split 20 to 20, and the Lieutenant Governor, the presiding officer of the Senate, then cast a deciding vote in favor. The State House subsequently also passed a ratification resolution. Thereupon the twenty State Senators who voted against ratification plus one more (who presumably had voted for the resolution) brought a mandamus action in the State Supreme Court challenging the Lieutenant Governor’s right to vote.

They sought an order compelling the Secretary of the Senate to erase the endorsement on the resolution and restraining the Secretary of State from authenticating the resolution and passing it on to the Governor. The Supreme Court of Kansas entertained the action but ruled against the plaintiffs on the merits.

Granting certiorari, the United States Supreme Court determined that “at least the twenty senators whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ... have an interest ... sufficient to give the Court jurisdiction,” id. at 446, 59 S.Ct. 972, because they have a legal interest “in maintaining the effectiveness of their votes.” Id. at 438, 59 S.Ct. 972.

In Raines the plaintiff congressmen had relied on Coleman to argue that they had standing because the presidential veto had undermined the “effectiveness of their votes.” The Supreme Court noted that Coleman might be distinguished on grounds that the federal constitutional separation of powers concerns that underlay its decision in Raines (and which we emphasized in Chenoweth) were not present, or that if the Court in Coleman had not taken the case a question of federal law— the ratification vel non by the Kansas Legislature — would remain as decided by the Kansas Court. But cf.

Coleman, 307 U.S. at 465-66, 59 S.Ct. 972 (opinion of Frankfurter, J.). But the Court thought it unnecessary to cabin Coleman on those grounds. See Raines, 521 U.S. at 824 n. 8, 117 S.Ct. 2312.

Instead, the Court emphasized that the congressmen were not asserting that their votes had been “completely nullified”: They have not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated____ Nor can they allege that the Act will nullify their votes in the future in the same way that the votes of the Coleman legislators had been nullified ... In addition, a majority of Senators and Congressmen can vote to repeal the Act, or to exempt a given appropriations bill.... Id. at 824, 117 S.Ct. 2312.

Here the plaintiff congressmen, by specifically defeating the War Powers Resolution authorization by a tie vote and by defeating a declaration of war, sought to fit within the Coleman exception to the Raines rule. This parliamentary tactic led to an extensive argument before us as to exactly what the Supreme Court meant by a claim that a legislator’s vote was completely “nullified.” It is, to be sure, not readily apparent what the Supreme Court meant by that word. It would seem the Court used nullify to mean treating a vote that did not pass as if it had, or vice versa.

The “nullification” alleged in this ease therefore differs from Coleman in a significant respect. In that case state officials endorsed a defeated ratification, treating it as approved, while the President here did not claim to be acting pursuant to the defeated declaration of war or a statutory authorization, but instead “pursuant to [his] constitutional authority to conduct U.S. foreign relations and as Commander-in-Chief and Chief Executive.” See Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 Weekly Comp. Pres.

Doc. 528 (March 26, 1999). The Court did not suggest in Raines that the President “nullifies” a congressional vote and thus legislators have standing whenever the government does something Congress voted against, still less that congressmen would have standing anytime a President allegedly acts in excess of statutory authority. As the government correctly observes, appellants’ statutory argument, although cast in terms of the nullification of a recent vote, essentially is that the President violated the quarter-century old War Powers Resolution.

Similarly, their constitutional argument is that the President has acted illegally — in excess of his authority — because he waged war in the constitutional sense without a congressional delegation. Neither claim is analogous to a Coleman nullification. We think the key to understanding the Court’s treatment of Coleman and its use of the word nullification is its implicit recognition that a ratification vote on a constitutional amendment is an unusual situation.

It is not at all clear whether once the amendment was “deemed ratified,” see Raines, 521 U.S. at 822, 117 S.Ct. 2312, the Kansas Senate could have done anything to reverse that position. We think that must be what the Supreme Court implied when it said the Raines plaintiffs could not allege that the “[Line Item Veto Act] would nullify their votes in the future,” and that, after all, a majority of senators and congressmen could always repeal the Line Item Veto Act. Id. at 824, 117 S.Ct. 2312 (emphasis added).

The Coleman senators, by contrast, may well have been powerless to rescind a ratification of a constitutional amendment that they claimed had been defeated. In other words, they had no legislative remedy.

Under that reading- — which we think explains the very narrow possible Coleman exception to Raines — appellants fail because they continued, after the votes, to enjoy ample legislative power to have stopped prosecution of the “war.” In this case, Congress certainly could have passed a law forbidding the use of U.S. forces in the Yugoslav campaign; indeed, there was a measure — albeit only a concurrent resolution — introduced to require the President to withdraw U.S. troops.

Unfortunately, however, for those congressmen who, like appellants, desired an end to U.S. involvement in Yugoslavia, this measure was defeated by a 139 to 290 vote. Of course, Congress always retains appropriations authority and could have cut off funds for the American role in the conflict. Again there was an effort to do so but it failed; appropriations were authorized. And there always remains the possibility of impeachment should a President act in disregard of Congress’ authority on these matters. Appellants’ constitutional claim stands on no firmer footing.

Appellants argue that the War Powers Clause of the Constitution proscribes a President from using military force except as is necessary to repel a sudden attack. But they also argue that the WPR “implements” or channels congressional authority under the Constitution. It may well be then that since we have determined that appellants lack standing to enforce the WPR there is nothing left of their constitutional claim. Assuming, however, that appellants’ constitutional claim should be considered separately, the same logic dictates they do not have standing to bring such a challenge.

That is to say Congress has a broad range of legislative authority it can use to stop a President’s war making, see generally John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167 (1996), and therefore under Raines congressmen may not challenge the President’s war-making powers in federal court. Judge Randolph asserts that appellants lack standing because they do not claim that the President violated various statutes that depend on the existence of a war or the imminence of war.

But that position sidesteps appellants’ basic claim that the President unconstitutionally conducted a war without authority, and the logic of Judge Randolph’s reasoning (“There is no suggestion that despite the vote, President Clinton invaded Yugoslavia by land or took some other action authorized only during a declared war.”) is that if there had been a “war” appellants would have had standing. See infra at 161 (Randolph, J., concurring).

He therefore presents as an alternate reason for denying standing that the President did not “nullify” the vote against the declaration of war because he did not take any actions that constitute “war” in the constitutional sense. See id. at 159-61. That analysis, however, conflates standing with the merits. At the standing stage we must take as correct appellants’ claim that the President violated the Constitution simply by ordering U.S. forces to attack Yugoslavia.

In our view Judge Randolph’s criticism of our analysis does not give sufficient attention to Raines’ focus on the political self-help available to congressmen. See infra at 162 (Randolph, J., concurring). Even though the congressmen in Raines sought review before the Court of what was soon after determined in Clinton v. City of New York, 524 U.S. 417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998), to be an unconstitutional statute, the Court denied them standing as congressmen because they possessed political tools with which to remedy their purported injury.

Our colleague notes a distinction drawn by Raines between “the right to vote in the future [and] the nullification of a vote in the past,” see infra at 162 (Randolph, J., concurring), and asserts that the former does not remedy the latter. But Raines rejected this argument, which is why the congressmen in Raines lacked standing whereas petitioners in New York were allowed to contest the President’s “nullification” of particular appropriations line items. Indeed, Raines explicitly rejected Judge Randolph’s argument that legislators should not be required to turn to politics instead of the courts for their remedy.

Although the plaintiff legislators in Raines had already failed to stop passage of the Line Item Veto Act, the Court’s response was the equivalent of “if at first you don’t succeed, try and try again”— either work for repeal of the Act, or seek to have individual spending bills made exempt. See Raines, 521 U.S. at 824-25, 825 n. 9, 830. Judge Randolph overlooks this key portion of Raines when he disagrees with our conclusion that plaintiffs lack standing because they may “fight again tomorrow.” Infra at 162 (Randolph, J., concurring). •* * * Accordingly, the district court is affirmed; appellants lack standing. .

U.S. forces are currently stationed in Kosovo, which remains part of Yugoslavia, as part of the peacekeeping operation, but appellants do not claim that this deployment is relevant to their case. . The Court noted that it had found standing for a congressman in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), where he was unconstitutionally excluded from Congress, thus depriving him of a salary and the House seat he was constitutionally due, both personal injuries.

The Court did not decide whether congressmen would have standing to challenge actions of Congress which diminished their institutional role. Cf. Michel v. Anderson, 14 F.3d 623 (D.C.Cir.1994) (congressmen had standing to challenge House rule which diluted their vote in Committee of the Whole). . The government also challenges the congressmen's standing on the basis that they do not constitute a majority of the Congress.

In Raines the Supreme Court did "attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action," but it declined to say how much importance. Raines, 521 U.S. at 829-30, 117 S.Ct. 2312. Because we find that appellants lack standing for another reason, we need not discuss that issue. . See Coleman, 307 U.S. at 450, 59 S.Ct. 972 ("[T]he question of the efficacy of ratifications of state legislatures, in the light of ... attempted withdrawal, should be regarded as a political question....”). .

It is certainly not logically necessary for appellants to assert a violation of the statutes (three of which do not even depend on a declaration of war) relied upon by the concurrence in order to make their constitutional claim. . Judge Randolph also contends- that our opinion is in conflict with Chenoweth v. Clinton, 181 F.3d 112, 116-17 (D.C.Cir.1999). But as we have already described that opinion, see supra at 151, it too focused on the political options available to congressmen when denying them standing. Chenoweth did not hold, as Judge Randolph would have it, that Kennedy v.

Sampson, 511 F.2d 430 (D.C.Cir.1974), survived Raines. Instead, we stressed the increased emphasis placed by such post-Kennedy cases as Raines on separation of .powers concerns. See Chenoweth, 181 F.3d at 113-15. Although appellants' injury in Chenoweth was "precisely the harm we held in ... Kennedy to be cognizable under

Article III,” it was also "identical to the injury the Court in Raines deprecated as ‘widely dispersed’ and ‘abstract,’ ” and therefore we affirmed the district court’s dismissal for lack of standing. Id. We only suggested tentatively that "Kennedy may remain good law ... as a peculiar application of the narrow rule announced in” Coleman. See id. at 116 (emphasis added). Indeed, Judge Tatel understandably read our opinion to "essentially overrule!] the theory of legislative standing recognized in Kennedy...." See id. at 117 (Tatel, J., concurring).

In any event, Chenoweth' s discussion of Kennedy's fate after Raines was dicta, and we need not decide for purposes of this case if Kennedy, which involved the special question of a pocket veto, survived Raines.