---

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 Breyer, dissenting.

As the majority points out, Congress has enacted a specific statute (signed by the President) granting the plaintiffs authority to bring this case. Ante, at 3, citing 2 U.S.C. § 692(a)(1). That statutory authorization "eliminates any prudential standing limitations and significantly lessens the risk of unwanted conflict with the Legislative Branch." Ante, at 8, n. 3. Congress, however, cannot grant the federal courts more power than the Constitution itself authorizes us to exercise. Cf. Hayburn's Case, 2 Dall. 409 (1792). Thus, we can proceed to the merits only if the "judicial Power" of the United States--"extend[ing] to . . . Cases, in Law and Equity" and to "Controversies"--covers the dispute before us. U. S. Const., Art. III, §2.

I concede that there would be no case or controversy here were the dispute before us not truly adversary, or were it not concrete and focused. But the interests that the parties assert are genuine and opposing, and the parties are therefore truly adverse. Compare Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339 (1892). Moreover, as Justice Stevens points out, the harm that the plaintiffs suffer (on their view of the law) consists in part of the systematic abandonment of laws for which a majority voted, in part of the creation of other laws in violation of procedural rights which (they say) the Constitution provides them, and in part of the consequent and immediate impediment to their ability to do the job that the Constitution requires them to do. See ante, at 1-2, 4 (Stevens, J., dissenting); Complaint ¶14; App. 34-36, 39-40, 42-46, 54-55, 57-59, 62-64. Since federal courts might well adjudicate cases involving comparable harms in other contexts (such as purely private contexts), the harm at issue is sufficiently concrete. Cf., e.g., Bennett v. Spear, 520 U. S. ___, ___ (1997) (slip op. at 11-19); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656 (1993). See also ante, at 2-3 (Souter, J., concurring in judgment). The harm is focused and the accompanying legal issues are both focused and of the sort that this Court is used to deciding. See, e.g., United States v. Munoz Flores, 495 U.S. 385, 392-396 (1990). The plaintiffs therefore do not ask the Court "to pass upon" an "abstract, intellectual proble[m]," but to determine "a concrete, living contest between" genuine "adversaries." Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., dissenting).

Nonetheless, there remains a serious constitutional difficulty due to the fact that this dispute about lawmaking procedures arises between government officials and is brought by legislators. The critical question is whether or not this dispute, for that reason, is so different in form from those "matters that were the traditional concern of the courts at Westminster" that it falls outside the scope of Article III's judicial power. Ibid. Justice Frankfurter explained this argument in his dissent in Coleman, saying that courts traditionally

"leave intra parliamentary controversies to parliaments and outside the scrutiny of law courts. The procedures for voting in legislative assemblies--who are members, how and when they should vote, what is the requisite number of votes for different phases of legislative activity, what votes were cast and how they were counted--surely are matters that not merely concern political action, but are of the very essence of political action, if `political' has any connotation at all. . . . In no sense are they matters of `private damage.' They pertain to legislators not as individuals but as political representatives executing the legislative process. To open the law courts to such controversies is to have courts sit in judgment on the manifold disputes engendered by procedures for voting in legislative assemblies." Id., at 469-470.

Justice Frankfurter dissented because, in his view, the "political" nature of the case, which involved legislators, placed the dispute outside the scope of Article III's "case" or "controversy" requirement. Nonetheless, the Coleman court rejected his argument.

Although the majority today attempts to distinguish Coleman, ante, at 9-14, I do not believe that Justice Frankfurter's argument or variations on its theme can carry the day here. First, as previously mentioned, the jurisdictional statute before us eliminates all but constitutional considerations, and the circumstances mentioned above remove all but the "political" or "intragovernmental" aspect of the constitutional issue. Supra, at 1-2.

Second, the Constitution does not draw an absolute line between disputes involving a "personal" harm and those involving an "official" harm." Cf. ante, at 6, 9. See ante, at 2, n. 2 (Souter, J., concurring in judgment). Justice Frankfurter himself said that this Court had heard cases involving injuries suffered by state officials in their official capacities. Coleman, supra, at 466 (citing Blodgett v. Silberman, 277 U.S. 1 (1928), and Boynton v. Hutchinson, 291 U.S. 656, cert. dism'd on other grounds, 292 U.S. 601 (1934)). See also, e.g.,Will v. Calvert Fire Ins. Co., 437 U.S. 655, 661 (1978) (federal district judge appealing mandamus issued against him in respect to a docket keeping matter); Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 241, n. 5 (1968) (indicating that school board has standing where members must either violate oath or risk loss of school funds and expulsion from office). Coleman itself involved injuries in the plaintiff legislators' official capacity. And the majority in this case, suggesting that legislators might have standing to complain of rules that "denied" them "their vote . . . in a discriminatory manner," concedes at least the possibility that any constitutional rule distinguishing "official" from "personal" injury is not absolute. Ante, at 12, n. 7. See also ante, at 9.

Third, Justice Frankfurter's views were dissenting views, and the dispute before us, when compared to Coleman, presents a much stronger claim, not a weaker claim, for constitutional justiciability. The lawmakers in Coleman complained of a lawmaking procedure that, at worst, improperly counted Kansas as having ratified one proposed constitutional amendment, which had been ratified by only 5 other States, and rejected by 26, making it unlikely that it would ever become law. Coleman, supra, at 436. The lawmakers in this case complain of a lawmaking procedure that threatens the validity of many laws (for example, all appropriations laws) that Congress regularly and frequently enacts. The systematic nature of the harm immediately affects the legislators' ability to do their jobs. The harms here are more serious, more pervasive, and more immediate than the harm at issue in Coleman. Cf. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982), quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S., at 345 (judicial power " `is legitimate only in the last resort, and as a necessity in the determination of a real, earnest and vital controversy' ").

The majority finds a difference in the fact that the validity of the legislators' votes was directly at issue in Coleman.

"[O]ur holding in Coleman stands . . . 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." Ante, at 11.

But since many of the present plaintiffs will likely vote in the majority for at least some appropriations bills that are then subject to presidential cancellation, I think that--on their view of the law--their votes are threatened with nullification too. Cf. ante, at 11-12, n. 6, 13-14.

The majority also suggests various distinctions arising out of the fact that Coleman involved a state legislature, rather than the federal Congress. Ante, at 13, n. 8. See also ante, at 3, n. 3 (Souter, J., concurring in judgment). But Justice Frankfurter treated comparable arguments as irrelevant, and the Coleman majority did not disagree. Coleman, 307 U. S., at 462, 465-466 and n. 6 (Frankfurter, J., dissenting); id., at 446. While I recognize the existence of potential differences between state and federal legislators, I do not believe that those differences would be determinative here, where constitutional, not prudential, considerations are at issue, particularly given the Constitution's somewhat comparable concerns for state authority and the presence here of a federal statute (signed by the President) specifically authorizing this lawsuit. Compare ante, at 4-5 (Souter, J., concurring in judgment). And in light of the immediacy of the harm, I do not think that the possibility of a later challenge by a private plaintiff, see ante, at 5-6 (Souter, J., concurring in judgment), could be constitutionally determinative. Finally, I do not believe that the majority's historical examples primarily involving the Executive Branch and involving lawsuits that were not brought, ante, at 14-17, are legally determinative. See ante, at 4, n. 3 (Stevens, J., dissenting).

In sum, I do not believe that the Court can find this case nonjusticiable without overruling Coleman. Since it does not do so, I need not decide whether the systematic nature, seriousness, and immediacy of the harm would make this dispute constitutionally justiciable even in Coleman's absence. Rather, I can and would find this case justiciable on Coleman's authority. I add that because the majority has decided that this dispute is not now justiciable and has expressed no view on the merits of the appeal, I shall not discuss the merits either, but reserve them for future argument.