D.D.C.: no standing to challenge involvement in Libyan conflict

After concluding that ten members of Congress lack standing to challenge the U.S. military’s involvement in the Libyan conflict, a district court dismissed their lawsuit against President Obama and his administration. Kucinich v. Obama, No. 11-1096, 2011 WL 5005303 (D.D.C. Oct. 20, 2011). Reggie B. Walton, a George W. Bush nominee, wrote the opinion.

In June 2011, Representative Dennis Kucinich, along with nine other members of Congress, filed a lawsuit against President Obama and his administration based on the United States’ involvement in the Libyan conflict. In their Complaint, the Plaintiffs sought declaratory relief on several matters, including declarations that the U.S. military operations in Libya constitute a war, that several of the President’s policies involving the North Atlantic Treaty and a United Nations resolution are unconstitutional, and that the President’s use of previously appropriated funds to support “an undeclared war” is unconstitutional. In addition, the Plaintiffs sought to enjoin all U.S. military operations in Libya unless and until Congress declares war.

In mid-August, the Defendants filed a motion to dismiss, claiming that the Plaintiffs do not have standing, and that, even if they did, their claims raise nonjusticiable political questions.

The court began its Opinion by addressing the two rationales on which the Plaintiffs asserted standing – legislative standing and taxpayer standing. Regarding legislative standing, the court first explained that members of Congress have legislative standing in a lawsuit against a member of the Executive Branch only in very limited circumstances. For instance, if a member of Congress were to allege only an “abstract dilution of institutional legislative power,” he or she would not have legislative standing. See Raines v. Byrd, 521 U.S. 811, 824 (1997). If, on the other hand, the President were to nullify a member of Congress’s vote on a legislative act and the nullification were to cause the legislative act to fail, the member of Congress would most likely have legislative standing. See Coleman v. Miller, 307 U.S. 433 (1939).

Returning to the facts of the case, the court concluded that the Plaintiffs’ first allegation regarding legislative standing – that the President’s unilateral actions deprived them of an opportunity to exercise their constitutionally prescribed duty of declaring war – is merely an allegation of an “abstract dilution of institutional legislative power,” and thus does not establish legislative standing. See Raines, 521 U.S. at 824. Since President Obama’s actions deprived each member of the House of Representatives from fulfilling his her constitutional duties, not just the ten Plaintiffs, the court reasoned that the alleged injuries were “too widely dispersed to confer standing” on the Plaintiffs. See Kucinich v. Bush, 236 F. Supp 2d 1, 7 (D.D.C 2002). Moreover, the Plaintiffs did not file their lawsuit on behalf of all members of the House of Representatives; instead, the ten Plaintiffs represented only themselves, which, according to the court, “counsels strongly against a conclusion that the exercise of judicial power at this time is warranted . . . .” See id. at 12.

Next, the court turned to the Plaintiffs’ second and final allegation regarding legislative standing – that the President’s actions “nullified” the Plaintiffs’ June 24th vote against authorizing the “limited use” of U.S. military forces in the Libyan conflict – and concluded that the allegation fails to establish legislative standing for several reasons. First, the court concluded that President Obama did not “nullify” the Plaintiffs’ votes because he based his actions on authority independent of the June 24th vote – he claimed to be acting pursuant to his constitutional authority as Commander-in-Chief. Second, the Plaintiffs retained several legislative remedies, including impeachment of the President and utilization of the Congressional appropriations authority. Finally and relatedly, the court rejected the Plaintiffs’ “nullification” argument because the Plaintiffs had attempted to invoke their legislative remedies.

After finding that the Plaintiffs do not have legislative standing, the court addressed whether they have taxpayer standing. After noting that taxpayer standing is available only under narrow circumstances, the court went on to explain that for taxpayer standing to apply the allegedly unlawful action must stem from congressional spending. See Flast v. Cohen, 392 U.S. 83, 102 (1968). According to the court, the Plaintiffs did not satisfy this standard because they failed to allege that the United States’ expenditures associated with the Libyan conflict were authorized or directed by Congress. Although the Plaintiffs alleged that the funds used by the President for military operations were drawn from those set aside by Congress for Overseas Contingency Operations, the court characterized the funds as “discretionary,” and concluded that the “Flast exception does not ‘encompass discretionary Executive Branch spending.’” See In re Navy Chaplaincy v. U.S. Navy, 534 F.3d 756, 762 (D.C. Cir. 2008). Additionally, the court declined to interpret the War Powers Clause as a limitation on congressional spending, noting that no other court had interpreted the clause in that manner.

Because the court concluded that the Plaintiffs lack standing, the court did not address whether the Plaintiffs’ claims raise nonjusticiable political questions.

–Scott Herrig, University of California, Berkeley-School of Law 2012

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