Congressional Standing to Sue: An Overview

Congressional Standing to Sue: An Overview

Order Code RL30280
CRS Report for Congress
Received through the CRS Web
Congressional Standing to Sue:
An Overview
Updated June 19, 2001
Jay R. Shampansky
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Congressional Standing to Sue: An Overview
Summary
Standing is a threshold procedural question which turns not on the merits of the
plaintiff’s complaint but rather on whether he has a legal right to a judicial
determination of the issues he raises. The law of standing is a blend of constitutional
requirements and prudential considerations.
The constitutional component of standing is rooted in the separation of powers
doctrine, and in particular on the limitation of the federal judicial power granted by
Article III of the Constitution to “cases” and “controversies.” To satisfy
constitutional standing requirements, a plaintiff must allege a personal injury that is
fairly traceable to alleged unlawful conduct by the defendant and that is likely to be
redressed by the requested relief.
Raines v. Byrd, a 1997 case, was the first ruling of the Supreme Court on the
issue of the standing of Members of Congress when they assert an injury to their
institutional authority as legislators. The suit was filed by six Members of Congress
who had voted against the Line Item Veto Act against the Secretary of the Treasury
and the Director of the Office of Management and Budget, alleging that the act
unconstitutionally increased the President’s power by authorizing him to “cancel”
certain spending and tax benefit measures after he signed them into law, without
complying with the requirements of bicameral passage and presentment to the
President. The Court held that the plaintiffs lacked standing, and thus the suit was
dismissed.
The Court in Raines recognized the separation of powers problems posed by
congressional plaintiff suits and addressed them as part of the constitutional standing
analysis, but did not clarify the extent to which such problems may limit the ability of
Members to sue in federal court.
The Court in Raines was prepared to recognize a Member's standing based on
a personal injury to a private right but considered an injury to a legislator's voting
power to be an official injury. The Court in Raines was willing to find an institutional
injury to be sufficient if that injury amounted to nullification of a particular vote and
if the plaintiffs’ votes would have been sufficient to pass or defeat a particular bill.
The Court in Raines may have insisted that congressional plaintiffs allege either a
personal injury to a private right or an institutional injury amounting to nullification
of a vote because it is in such cases that the injury is concrete, particularized, and thus
presents a case appropriate for judicial resolution.

Contents
What Is Standing? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Congressional Standing before Raines v. Byrd . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Decision in Raines v. Byrd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Analysis: Congressional Standing after Raines v. Byrd . . . . . . . . . . . . . . . . . . . . 5
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Congressional Standing to Sue:
An Overview
This report provides an overview of the standing of Members of Congress in
light of the Supreme Court’s holding in Raines v. Byrd1 that individual Members
lacked standing to challenge the constitutionality of a public law.2
What Is Standing?
Standing is a threshold procedural question which turns not on the merits of the
plaintiff’s complaint but rather on whether he has a legal right to a judicial
determination of the issues he raises.3 The law of standing is a mixture of
constitutional requirements and prudential considerations,4 and the cases do not
always clearly distinguish between the constitutional and prudential aspects.5
1521 U.S. 811 (1997). For a detailed analysis of Raines, see The Supreme Court, 1996 Term:
Leading Cases, 111 Harv. L. Rev. 217 (1997)[hereinafter, Leading Cases]. See also Devins
and Fitts, The Triumph of Timing: Raines v. Byrd and the Modern Supreme Court’s Attempt
to Control Constitutional Confrontations, 86 Geo. L.J. 351 (1997)(separation of powers
analysis of Supreme Court’s ruling in light of congressional standing decisions of the D.C.
Circuit); Entin, War Powers and Foreign Affairs: The Dog That Rarely Barks, 47 Case W.
Res. L. Rev. 1305 (1997)(application of Raines to disputes concerning War Powers
Resolution).
2The focus of this report is congressional standing to challenge the constitutionality of a public
law or to challenge actions of the executive branch. However, it is noted that there have been
instances in which congressional plaintiffs have filed suit, in their official capacities, against
other Members. See, e.g., Moore v. U.S. House of Representatives, 733 F.2d 946 (D.C.Cir.
1984), cert. denied, 469 U.S. 1106 (1985).
3See Flast v. Cohen, 392 U.S. 83, 99 (1968).
4See Department of Commerce v. House of Representatives, 525 U.S. 316, 328-29 (1999).
By law, Congress can grant a right to sue to a plaintiff who would otherwise lack standing.
Such a law can eliminate prudential, but not constitutional, standing requirements. Raines v.
Byrd, 521 U.S. at 820 n.3. In the Line Item Veto Act, Congress granted standing to sue to
“any Member of Congress or any individual adversely affected by” the act. P.L. 104-130, §
692(a)(1), 110 Stat. 1200 (1996). Congress also recently granted standing to challenge the
use of statistical sampling methods in the census. See Department of Commerce v. House of
Representatives, 525 U.S. at 328-29.
5Valley Forge Christian College v. Americans United for Separation of Church and State,
454 U.S. 464, 471 (1982).

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“‘[T]he law of Art. III standing is built on a single basic idea--the idea of
separation of powers,’”6 and in particular on the limitation of the federal judicial
power granted by article III to “cases” and “controversies.”7 To satisfy constitutional
standing requirements, “‘[a] plaintiff must allege personal injury fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be redressed by the requested
relief.’”8
“In addition to the immutable [constitutional] requirements ..., ‘the federal
judiciary has also adhered to a set of prudential principles that bear on the question
of standing.’ Like their constitutional counterparts, these ‘judicially self-imposed
limits on the exercise of federal jurisdiction,’ are ‘founded in concern about the
proper--and properly limited--role of the courts in a democratic society,’ but unlike
their constitutional counterparts, they can be modified or abrogated by Congress ....”9
The prudential components of standing doctrine require that (1) a plaintiff assert his
own legal rights and interests rather than those of third parties, (2) a plaintiff’s
complaint be encompassed by the “zone of interests” protected or regulated by the
constitutional or statutory guarantee at issue, and (3) courts decline to adjudicate
“‘abstract questions of wide public significance’ which amount to ‘generalized
grievances’ pervasively shared and most appropriately addressed in the representative
branches.”10
Congressional Standing before Raines v. Byrd
The cases which have presented the issue of the standing of Members, in their
official capacities as legislators, have generally been challenges to executive branch
actions or to acts of Congress. Prior to Raines v. Byrd, the case law on congressional
standing consisted almost entirely of opinions of the U.S. Court of Appeals for the
D.C. Circuit. The import of these decisions following the ruling in Raines is
uncertain.11
In the leading case of Riegle v. Federal Open Market Committee,12 the court
concluded that, if a Member had standing under the rules applied in non-congressional
plaintiff cases, the separation of powers issues raised in a Member’s suit against the
executive should be addressed by application of the doctrine of circumscribed
6Raines v. Byrd, 521 U.S. at 820, quoting Allen v. Wright, 468 U.S. 737, 752 (1984).
7See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998); Baker v. Carr,
369 U.S. 186, 204 (1962).
8Department of Commerce v. United States House of Representatives, 525 U.S. at 329,
quoting Allen v. Wright, 468 U.S. at 751.
9Bennett v. Spear, 520 U.S. 154, 162 (1997).
10Valley Forge, 454 U.S. at 474.
11A leading treatise suggests that the decisions of the D.C. Circuit “may not survive in any
form.” Wright, Miller, and Cooper, Federal Practice and Procedure § 3531.11, at p. 1
(2001 Supp.). However, in one case the D.C. Circuit indicated that its pre-Raines decisions
had been limited but not overruled by Raines. See infra notes 46-47 and accompanying text.
12656 F.2d 873 (D.C. Cir.), cert. denied, 454 U.S. 1082 (1981).

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equitable discretion, under which the case was to be dismissed only if the Member
had a legislative remedy and if a similar action could be brought by a private plaintiff.
The “legislative remedy” aspect of this doctrine reflected a judicial reluctance to
provide a forum to a Member who has failed to exhaust possible legislative avenues
of relief or who has done so but has been unsuccessful in persuading his colleagues
of the merits of his views.13 Members had some success in establishing their standing
following adoption of the Riegle test, but such suits were frequently dismissed on the
basis of the equitable discretion doctrine.14 The problems presented by congressional
plaintiff suits were explained by the D.C. Circuit in an important post-Riegle ruling,
Moore v. U.S. House of Representatives:
Suits against coordinate branches of government by congressional plaintiffs pose
separation-of-powers concerns which may affect a complainant’s standing to
invoke the jurisdiction of the federal courts. To the extent that the Constitution
envisions limited federal court jurisdiction out of respect for the coordinate
branches of government, we have been reluctant to grant standing to members of
Congress alleging generalized, amorphous injuries due to either the actions of their
colleagues in Congress or the conduct of the Executive ....[W]here separation-of-
powers concerns are present, the plaintiff’s alleged injury must be specific and
cognizable in order to give rise to standing ....Deprivation of a constitutionally
mandated process of enacting law may inflict a more specific injury on a member
of Congress than would be presented by a generalized complaint that a legislator’s
effectiveness is diminished by allegedly illegal activities taking place outside the
legislative forum.15
The Decision in Raines v. Byrd
In Raines, six Members of Congress who had voted against the Line Item Veto
Act16 (act) brought suit against the Secretary of the Treasury and the Director of the
Office of Management and Budget, alleging that the act unconstitutionally increased
the President’s power by authorizing him to “cancel” certain spending and tax benefit
measures after he signed them into law, without complying with the requirements of
bicameral passage and presentment to the President.17
The district court declared the act unconstitutional, but the Supreme Court
vacated the judgment of the lower court and remanded with instructions to dismiss
13Riegle, 656 F.2d at 881; Moore v. U.S. House of Representatives, 733 F.2d 946, 956
(D.C.Cir. 1984) (“Congressional actions pose a real danger of misuse of the courts by
members of Congress whose actual dispute is with their fellow legislators”), cert. denied, 469
U.S. 1106 (1985).
14See, e.g., Moore, supra; Vander Jagt v. O’Neill, 699 F.2d 1166 (D.C.Cir.), cert. denied,
464 U.S. 823 (1983). But see American Federation of Government Employees v. Pierce,
697 F.2d 303 (D.C.Cir. 1982) (after determining that Member had standing, court reached
merits without reference to equitable discretion doctrine).
15733 F.2d at 951.
16P.L. 104-130, 110 Stat. 1200 (1996).
17521 U.S. at 815.

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the complaint. The Court, in an opinion by Chief Justice Rehnquist that recognized
the “restricted role for article III courts” in resolving disputes between the political
branches,18 held that plaintiffs lacked standing because their complaint did not
establish that they had suffered an injury that was personal, particularized, and
concrete.19 The majority distinguished between a personal injury to a private right and
an institutional or official one,20 and was of the view that a congressional plaintiff may
have standing in a suit against the executive if it is alleged that the plaintiff has
suffered either a personal injury (e.g., loss of a Member’s seat) or an institutional
one21 that is not “abstract and widely dispersed” but amounts to vote nullification.22
18Id. at 828. See also id. at 819-20.
19Id. at 818-20. Although the holding was based on the Court’s finding that plaintiffs did not
satisfy the first standing requirement (personal injury), the Court questioned whether the
plaintiffs could meet the second standing requirement (that the injury be “fairly traceable” to
unlawful conduct by the defendants) “since the alleged cause of ... [plaintiffs’] injury is not
... [the executive branch defendants’] exercise of legislative power but the actions of their own
colleagues in Congress in passing the act.” Id. at 830 n.11.
20Justice Souter, concurring, seemed to attach less importance than the majority to the
distinction between personal and official injury (id. at 831) but agreed with the majority that
plaintiffs lacked standing. Justice Breyer, dissenting, argued that there is no absolute
constitutional distinction between cases involving a “personal” harm and those involving an
“official” harm (id. at 841) and would have granted standing. Id. at 843. Unlike the majority,
which viewed injury to a legislator’s voting power as an official injury, Justice Stevens,
dissenting, asserted that a legislator has a personal interest in the ability to vote, and stated
that deprivation of the right to vote would be a sufficient injury to establish standing. Id. at
837 and 837 n.2
21See Chenoweth v. Clinton, 997 F. Supp. 36, 38-39 (D.D.C. 1998) (personal injury more
likely to result in grant of standing, but institutional injury is sufficient under Raines), aff’d,
181 F.3d 112 (D.C.Cir. 1999). See also Planned Parenthood v. Ehlmann, 137 F.3d 573,
577-78 (8th Cir. 1998)(standing of state legislators).
22The Court in Coleman v. Miller, 307 U.S. 433 (1939), held that Kansas state legislators had
standing to bring suit against state officials to recognize that the legislature had not ratified
a proposed amendment to the United States Constitution. The plaintiffs in that case included
twenty senators whose votes against the measure would have been sufficient to defeat it but
whose votes were essentially nullified by the tie-breaking vote of the state’s lieutenant
governor, the presiding officer of the senate, in favor of ratification. The Raines Court
distinguished the injury alleged by the plaintiffs in that case (“the abstract dilution of
institutional legislative power”) from the injury asserted in Coleman (vote nullification) (521
U.S. at 826), and found it unnecessary to decide whether Coleman might also be distinguished
on other grounds. Therefore, Raines did not address the question of whether Coleman would
warrant granting standing in a suit by federal legislators even though such an action raises
separation of powers concerns not present in Coleman. 521 U.S. at 824 n.8.
Coleman, the only case in which the Court has held that legislators alleging an
institutional injury have standing (Raines, 521 U.S. at 821) may be a “narrow exception to
... [Raines’] personal-capacity injury requirement based on the concreteness of the alleged
injury.” Leading Cases, supra note 1, at 223. Because of the considerable difference
between the vote nullification in Coleman and the alleged dilution of legislative power in
Raines, it was not necessary for the Raines Court to determine “the precise parameters” of
(continued...)

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In the view of the Court, the Raines plaintiffs alleged23 an institutional injury which
damaged all Members (a reduction of legislative and political power), rather than a
personal injury to a private right, which would be more particularized and concrete.24
The Court in Raines declined to decide whether the outcome might have been
different if: (a) plaintiffs had been authorized to represent the House and Senate (in
fact, both Houses opposed the suit); (b) Members lacked a legislative remedy (the
Court noted that Members could “repeal the act or exempt appropriations bills from
its reach”); or (c) the act was not subject to constitutional challenge in a suit by other
plaintiffs.25
Analysis: Congressional Standing after Raines v.
Byrd
The law of congressional standing, which even prior to the Court’s ruling in
Raines was described as “both complex ... and contentious,”26 has now been
characterized as a “doctrine fraught with analytical inconsistency and uncertain
boundaries.”27 Raines, the first ruling of the Court on the issue of the standing of
Members of Congress when they assert an injury to their institutional authority as
legislators, revealed the Court’s reluctance to grant standing to Members because of
separation of powers considerations, but the case did not fully define the
circumstances in which congressional plaintiff suits may be permissible.
The Court in Raines recognized the separation of powers problems posed by
congressional plaintiff suits28 and addressed them as part of the constitutional standing
22(...continued)
vote nullification that must be alleged for Members to have standing under the Coleman
exception to Raines. Campbell v. Clinton, 52 F. Supp. 2d 34, 42 (D.D.C. 1999), aff’d, 203
F.3d 19 (D.C. Cir.), cert. denied, 121 S.Ct. 50 (2000).
23Plaintiffs alleged that the act injured them “in their official capacities” by (1) altering the
effect of all votes they might cast on bills containing items that could be cancelled by the
President; (2) divesting them of their constitutional role with regard to the repeal of legislation;
and (3) shifting the balance of power between the executive and legislative branches. 521
U.S. at 816.
24Id. at 821.
25Id. at 829-30.
26Leading Cases, supra note 1, at 218 n.1.
27Id. at 218.
28Problems posed for the judiciary in resolving a dispute involving the two political branches
are less severe when a suit is brought by a private plaintiff because the role of the courts in
hearing such cases has been recognized since Marbury v. Madison, 1 Cranch 137 (1803).
See Raines v. Byrd, 521 U.S. at 833-34 (Souter, J., concurring). The vitality of this principle
was demonstrated when the Court, the year after Raines, invalidated the Line Item Veto Act
in a suit filed by several non-congressional plaintiffs. Clinton v. City of New York, 524 U.S.
417 (1998).

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analysis,29 but did not clarify the extent to which such problems may limit the ability
of Members to sue in federal court. Prior to Raines, the D.C. Circuit did not address
separation of powers problems as part of the standing inquiry but rather under the
equitable discretion doctrine as matters that might require a court to exercise judicial
self-restraint.30
Under both Raines and Riegle, a congressional plaintiff is more likely to succeed
in establishing his standing if he alleges a particular injury rather than an injury related
to a generalized grievance about the conduct of government or an injury amounting
to a claim of diminished effectiveness as a legislator.31 The Court in Raines was
prepared to recognize a Member's standing based on a personal injury to a private
right32 but considered an injury to a legislator's voting power to be an official injury.
The D.C. Circuit cases had found Members to have a personal interest in the exercise
of their governmental powers.33
The Court in Raines was willing to find an institutional injury to be sufficient if
that injury amounted to nullification of a particular vote34 and if the plaintiffs’ votes
“would have been sufficient to pass or defeat a specific bill,”35 whereas the D.C.
Circuit also was willing to accept other types of institutional injuries related to the
29Prudential limitations on standing had been removed by law. 521 U.S. at 820 n.3.
30See Chenoweth v. Clinton, 181 F.3d 112 (D.C.Cir. 1999).
31See Raines, 521 U.S. at 822-24; Moore v. U.S. House of Representatives, 733 F.2d 946,
951-52 (D.C.Cir. 1984), cert. denied, 469 U.S. 1106 (1985).
32The example given by the Court was the loss of the Member’s seat (and the loss of his
salary) at issue in Powell v. McCormack, 395 U.S. 486 (1969). Raines, 521 U.S. at 820-21.
The plaintiff in Powell clearly had standing to challenge the loss of his salary resulting from
his exclusion by the House in the 90th Congress because such loss of salary constituted a
personal injury to a private right. In a ruling of the D.C. Circuit prior to Raines, it was held
that a Member had standing to challenge the automatic cost of living adjustment (COLA)
provisions of the Ethics Reform Act of 1989, as those provisions affected congressional
salaries, and that the equitable discretion doctrine did not preclude such a challenge even
though the 1989 act could have been amended or repealed, because the Member sued in his
capacity as a government employee. Boehner v. Anderson, 30 F.3d 156 (D.C. Cir. 1994).
In a ruling of the 10th Circuit after Raines, it was held that a Member lacked standing to
challenge two COLA’s received pursuant to the 1989 act because the alleged injury was not
shown to be personal (COLA’s were received by all Members) and concrete (allegation that
COLA’s damaged Member’s political position found to be more abstract than dilution of
legislative power alleged in Raines). Schaeffer v. Clinton, 240 F.3d 878, 885, 886 (10th Cir.
2001). The court in Schaeffer, id. at 886, found “the cursory discussion [of standing] in
Boehner unpersuasive and contrary to recent Supreme Court law ....”
33See Synar v. United States, 626 F. Supp. 1374, 1381and n.7(D.D.C.) (three-judge court),
aff’d sub nom. Bowsher v. Synar, 478 U.S. 714 (1986).
34521 U.S. at 826.
35Leading Cases, supra note 1, at 220, citing Raines, 521 U.S. at 822-23.

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constitutionally prescribed process for enacting legislation, including injuries related
to dilution of legislative authority.36
The Court in Raines may have insisted that congressional plaintiffs allege either
a personal injury to a private right or an institutional injury amounting to nullification
of a vote because it is in such cases that the injury is concrete, particularized, and thus
presents a case appropriate for judicial resolution.37 Furthermore, the Court may have
been willing to recognize an institutional injury amounting to nullification of a vote
on a particular matter in a suit filed by a “controlling bloc” of legislators because in
such an action plaintiffs “sue in effect as representatives of their legislative bodies
....[S]uits to protect legislative power brought by representatives of Congress, or by
Congress itself, do not seek to protect a private stake in official power,”38 a stake
which the Court in Raines was not willing to recognize.39 Additionally, the Raines
Court indicated that it would not find a nullification of a vote if some means of
legislative redress was available to the plaintiffs.40
The limits on standing established in Raines “may well preclude” a Member from
obtaining standing in a suit to challenge an act of Congress41 because in such a case
the availability of legislative remedies (including the repeal or amendment of the act)42
would prevent the court from finding vote nullification. Raines will greatly restrict
“standing to challenge executive action, although there may be a better opportunity
to achieve standing in this setting”43 if the plaintiff Member can show the nullification
of a vote by the executive, as in Coleman, and can thus establish an institutional
injury.44
36Chenoweth v. Clinton, 181 F.3d 112 (D.C.Cir. 1999). See, e.g., Moore v. U.S. House of
Representatives, 733 F.2d at 952 (alleged deprivation of right to debate resulting from alleged
violation of constitutional requirement that revenue-raising measures originate in the House).
It may be more difficult for a congressional plaintiff to establish his standing after Raines,
but it is noted that cases in which congressional plaintiffs established standing under Riegle
were often either dismissed under the equitable discretion doctrine or were reversed by the
Supreme Court on other jurisdictional grounds. See Chenoweth v. Clinton.
37Leading Cases, supra note 1, at 222.
38Id. at 224.
39521 U.S. at 821. See also Alaska Legislative Council v. Babbitt, 181 F.3d 1333 (D.C. Cir.
1999)(denying standing, under Raines analysis, to committee and individual members of state
legislature in suit against Secretary of federal department).
40521 U.S. at 824. See also Leading Cases, supra note 1, at 226 n.61 (arguing that “the mere
possibility of a legislative remedy takes a legislator’s injury out of the requisite category of
nullification”) (emphasis added).
41Wright, Miller, and Cooper, supra note 11, at p. 1.
42Raines, 521 U.S. at 824.
43Wright, Miller, and Cooper, supra note 11, at p. 1.
44Congressional plaintiffs may name executive branch officials as defendants in suits alleging
vote nullification by the executive. See, e.g., Coleman v. Miller, 307 U.S. 433 (1939), aff’g
146 Kan. 390, 71 P.2d 518 (1937) (among the named defendants were executive and
(continued...)

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Following Raines, decisions of the D.C. Circuit have attempted to clarify (a) the
meaning of “nullification” as used in Raines and (b) the status of pre-Raines Circuit
rulings. In regard to the meaning of “nullification,” the D.C. Circuit concluded in
Campbell v. Clinton45 that the availability of a legislative remedy precludes the finding
of nullification. In regard to the status of its pre-Raines rulings, the majority of the
court of appeals in Chenoweth v. Clinton46 believed that Raines had limited but not
overruled those cases.47
44(...continued)
legislative branch officials, including William M. Lindsay, “as Lieutenant Governor and
President ex officio of the Senate”); Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974).
Congressional plaintiffs may also name executive branch officials as defendants in suits
challenging the constitutionality of an act of Congress (e.g., Raines; Riegle v. Federal Open
Market Committee, 656 F.2d 873 (D.C. Cir.), cert. denied, 454 U.S. 1082 (1981)). As the
court explained in Riegle, 656 F.2d at 879 n.6: “When a plaintiff alleges injury by
unconstitutional action taken pursuant to a statute, his proper defendants are those acting
unconstitutionally under the law ..., and not the legislature which enacted the statute. See
generally Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175-80 (1803).”
4552 F. Supp. 2d 34 (D.D.C. 1999), aff’d, 203 F.3d 19 (D.C. Cir.), cert. denied, 121 S. Ct.
50 (2000). The district court held that twenty-six Members of the House lacked standing to
seek a declaration that the President violated the War Powers Clause of the Constitution and
the War Powers Resolution (50 U.S.C. § 1541 et seq.) by involving the United States in an
air offensive against the Federal Republic of Yugoslavia. Plaintiffs in Campbell argued that
they had standing because the President had “nullified” or ignored clear legislative directives
from Congress. 52 F. Supp. 2d at 42. The district court found that because a series of
congressional votes relating to the air offensive had sent “conflicting signals,” the President
had not nullified or ignored “an unambiguous directive” from Congress. Id. at 43. (The
district court explained that, to show a complete nullification of their votes, plaintiffs were
required to demonstrate that there was a “constitutional impasse” or “actual confrontation”
between the legislative and executive branches. Id.)
In the majority opinion for the court of appeals, Judge Silberman observed that it is “not
readily apparent what the Supreme Court meant” by “nullification” (203 F.3d at 22), but
found that the President had relied on his constitutional powers for his actions and had not
“nullified” legislative directives. Id. According to Silberman, “nullification” must be
understood in light of the “unusual situation” in Coleman v. Miller, 307 U.S. 433 (1939), in
which the plaintiff state legislators “had no legislative remedy,” whereas the plaintiffs in
Campbell had legislative options (including legislation barring the use of U.S. forces in the
Yugoslav campaign, legislation cutting off funding for the American participation in the
conflict, and impeachment of the President). 203 F.3d at 23. The majority opinion concluded
that the availability of a legislative option–i.e., the right to vote in the future–is a remedy for
the nullification of a prior vote (id. at 24). But Randolph, J., concurring, was of the view that
the nullification of a prior vote is unaffected by a Member’s ability to vote for other legislation
in the future. Id. at 42.
46181 F.3d 112 (D.C. Cir. 1999).
47In Chenoweth, plaintiffs alleged that the President’s creation of a program (the American
Heritage Rivers Initiative (AHRI)) by executive order, in the absence of statutory authority,
denied them their proper role in the legislative process and thus diluted their authority as
legislators. Id. at 113, 115. This was the same harm held in Moore v. U.S. House of
(continued...)

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Conclusion
Raines v. Byrd revealed the reluctance of the Court to grant standing to
Members because of separation of powers considerations, but the ruling did not fully
define the circumstances in which congressional plaintiff suits may be allowed. The
Court in Raines was of the view that a congressional plaintiff may have standing if he
has suffered either a personal injury or an institutional one that amounts to vote
nullification.
Raines may make it impossible for a Member to obtain standing to challenge an
act of Congress and will require a Member in a suit challenging executive action to
show the nullification of a vote by the executive to establish an institutional injury.
47(...continued)
Representatives, 733 F.2d 946 (D.C.Cir. 1984), cert. denied, 469 U.S. 1106 (1985) (see
supra note 36) and in Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir. 1974) (challenge to
unlawful pocket veto) to be cognizable under Art. III. Chenoweth, 181 F.3d at 115.
However, the court in Chenoweth found, id., that because such an injury is “widely dispersed”
and “abstract,” it is insufficient following Raines. Chenoweth concluded that, although
Moore would have given the Chenoweth plaintiffs standing, it would have resulted in
dismissal of the plaintiffs’ suit under the equitable discretion doctrine because of the
availability of a legislative remedy. Therefore, according to the Chenoweth court,
“Raines...may not overrule Moore” but might require the D.C. Circuit to merge its separation
of powers and standing analyses. 181 F.3d at 115-16. And, according to dicta in
Chenoweth, Kennedy “may survive [Raines] as a peculiar application” of Coleman because
the President’s pocket veto arguably nullified plaintiff’s vote. Chenoweth, 181 F.3d at 116-
17.