considering the motions, all opposition thereto and the oral arguments of the parties, this Court has concluded that the dispute in this case between the executive and legislative branches related to the ballistic missile defense program is not yet ripe for judicial resolution. It is also questionable whether the congressional Plaintiffs have yet established standing.
Nonetheless, the Court does not accept the Defendants' argument that this matter is inherently non-justiciable. On standing, it is foreseeable that the congressional Plaintiffs might yet be able to climb the requisite high wall of congressional standing with respect to this matter. On the political question issue, while the Court seeks generally to honor the doctrine of judicial abstention, it will not condone the executive branch violating the law if such violation becomes clear and not resolvable otherwise.
1. Standing. The Members of Congress who bring this action, like any plaintiffs, must demonstrate that they have standing under Article III to invoke the jurisdiction of this Court. See Boehner v. Anderson, 308 U.S. App. D.C. 94, 30 F.3d 156, 159 (D.C. Cir. 1994)(citing Reuss v. Balles, 189 U.S. App. D.C. 303, 584 F.2d 461, 466 (D.C. Cir.), cert. denied, 439 U.S. 997, 58 L. Ed. 2d 670, 99 S. Ct. 598 (1978))("a legislator receives no special consideration in the standing inquiry"). To do so, Plaintiffs must demonstrate that they have suffered "(1)...an injury in fact; (2) to an interest arguably within the zone of interests protected in the constitutional guarantee at issue...(3) resulting from the putatively illegal conduct and; (4) which could be redressed by a favorable decision of the court." Michel v. Anderson, 817 F. Supp. 126, 136 (D.D.C. 1993), aff'd, 304 U.S. App. D.C. 325, 14 F.3d 623 (D.C. Cir. 1994)(citing Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976).
Suits by congressional plaintiffs against the Executive Branch "pose separation-of-powers concerns which may affect a complainant's standing to invoke the jurisdiction of the federal courts." Moore v. United States House of Representatives, 236 U.S. App. D.C. 115, 733 F.2d 946, 951 (D.C. Cir. 1984), cert. denied, 469 U.S. 1106, 83 L. Ed. 2d 775, 105 S. Ct. 779 (1985). Congressional plaintiffs must ensure that their alleged injury is "'specific and cognizable,' arising out of an interest 'positively identified by the Constitution.'" United Presbyterian Church in the U.S.A. v. Reagan, 238 U.S. App. D.C. 229, 738 F.2d 1375, 1381 (D.C. Cir. 1984)(quoting Moore, 733 F.2d at 951); see also Michel, 817 F. Supp. at 136 ("Absent a compelling and specific injury, the Court must decline to involve itself in an action against a coordinate branch of government.").
Against this background, courts will not grant standing to congressional plaintiffs "alleging generalized, amorphous injuries due to either the actions of their colleagues in Congress or the conduct of the Executive." Moore, 733 F.2d at 951. Courts will grant standing to congressional plaintiffs when "the alleged diminution in congressional influence...amounts to a disenfranchisement, a complete nullification or withdrawal of a voting opportunity." Goldwater v. Carter, 199 U.S. App. D.C. 115, 617 F.2d 697, 702 (D.C. Cir.), vacated and remanded on other grounds, 444 U.S. 996 (1979); Moore, 733 F.2d at 952. See also Harrington v. Bush, 180 U.S. App. D.C. 45, 553 F.2d 190 (D.C. Cir. 1977); Kennedy v. Sampson, 167 U.S. App. D.C. 192, 511 F.2d 430 (D.C. Cir. 1974).
Each of the parties argues that the case law on congressional standing creates a different "bright line" test for nullification of a congressional vote and, consequently, the creation of congressional standing. Defendants point to Harrington and claim that the congressional disenfranchisement required to create standing cannot be created from a post-enactment interest. In Harrington, a legislator sought declaratory and injunctive relief to prevent the Central Intelligence Agency from using funds for allegedly illegal activities. The court rejected plaintiff's various asserted constitutional injuries of impairment to past and prospective votes on appropriations and the general lawmaking powers of Congress. The court then concluded that, while there is always a potential for misuse of appropriated funds, a legislator must establish a connection between such activities and specific congressional interests to have standing. Id. at 212. Defendants point to the court's statement that a legislator's " rights, interests and prerogatives lie in the power to make laws" and that "once a bill becomes a law, such injury which is inflicted by its operations would seem to fall equally on all citizens." Id. at 213. Defendants would have this Court conclude with the Harrington court that where the impact of illegality is shared by all citizens, any injury "becomes a 'generalized grievance about the conduct of government' which lacks the specificity to support a claim of standing." Id. at 214.
But this matter is distinguishable from Harrington. The Harrington court found that the appellant-congressman's "real interest is in having the question of the legality of certain of the CIA's activities decided one way or the other....[he] claims no particular interest in the outcome and it appears that either result would serve his asserted need for information...appellant is a bystander as to the result of the controversy." Id. at 209. Moreover, the appellant-congressman in Harrington claimed "subjective injury to his overall effectiveness" as a legislator rather than "objective injury the [his] vote on a particular bill." Id. at 212. In this matter, however, Plaintiffs point to an alleged and objective nullification of two specific congressional votes related to the THAAD and NTW programs.
Moreover, this Court cannot accept the proposition that a Member of Congress has no greater interest in a specific law once enacted than does any other citizen of the republic and that no post-enactment actions or omissions of the executive branch would be actionable in the courts. Such an outcome would overturn congressional votes by effectively giving the President the ability to nullify duly authorized congressional actions. The Founding Fathers strongly believed that such a power would be dangerous and unwarranted.
Constitutional scholars speak with one voice in concurring with this assessment.
But this Court cannot yet conclude that Plaintiffs' vote has been nullified. The funds appropriated for the THAAD and NTW programs remain available for obligation until September 30, 1997 and the ongoing dialogue between the Department of Defense and the Congress suggests that the two branches of government may yet have a meeting of the minds. It is not yet clear that the congressional votes at issue have been nullified.
Also, Plaintiffs have not argued convincingly that standing has been created at this time based on the Kennedy case. In Kennedy, Senator Edward Kennedy of Massachusetts sued the Administrator of the General Services Administration and the Chief of White House Records to declare invalid Richard Nixon's purported exercise of a pocket-veto of the Family Practice of Medicine Act. President Nixon had allowed more than ten days to expire without signing the bill or returning it unsigned. President Nixon claimed he had effectively pocket-vetoed the Bill because the Senate's recess constituted an adjournment for purposes of the Constitution.
The court did hold in Kennedy that Senator Kennedy had established standing because President Nixon's action nullified a congressional vote. However, the level and specificity of congressional vote nullification in this matter is much less direct since it does come post-enactment. Kennedy does not go far enough to establish Plaintiff's claim at this time.
In sum, congressional standing may yet be established in this matter but Plaintiffs have not done so at this time.
2. Political Question Doctrine. The political question doctrine, an aspect of Article III jurisdiction, arises from two key constitutional principles of our system of government: the separation of powers among the three coordinate branches and the inherent limits of judicial abilities. See, e.g. Baker v. Carr, 369 U.S. 186, 210, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962); Chicago & Southern Airlines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111, 92 L. Ed. 568, 68 S. Ct. 431 (1948); United States ex rel. Joseph V. Cannon, 206 U.S. App. D.C. 405, 642 F.2d 1373, 1378-79 (D.C. Cir. 1981), cert. denied, 455 U.S. 999, 71 L. Ed. 2d 865, 102 S. Ct. 1630 (1982). The doctrine recognizes that a "court [must] not insert itself in a political matter which is principally in the dominion of a political branch of government." McIntyre v. O'Neill, 603 F. Supp. 1053, 1059 (D.D.C.), vacated on other grounds, 766 F.2d 535 (D.C. Cir. 1985).
In Baker, the Supreme Court articulated six factors which guide the determination of whether a non-justiciable political question exists:
"Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a Court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question."
369 U.S. at 217. The presence of any one of these factors is sufficient to render an issue nonjusticiable. Cranston v. Reagan, 611 F. Supp. 247, 252 (D.D.C. 1985); Barkley v. O'Neill, 624 F. Supp. 664, 667 (S.D. Ind. 1985).
The issue here is whether the Court can resolve this fundamental question between the executive and legislative branches without "expressing a lack of respect due coordinate branches of government." Baker, 369 U.S. at 217. Defendants argue that judicial review of this matter would insert the Court into a political tug-of-war between the political branches of government regarding the particulars of highly controversial strategies for two national defense systems and related budgetary disputes.
As a general proposition, it is preferable for a court to abstain for as long as possible from involving itself in such matters. "The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Otherwise we would encourage small groups or even individual Members of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict." Goldwater v. Carter, 199 U.S. App. D.C. 115, 617 F.2d 697 (D.C. Cir.), vacated and remanded on other grounds, 444 U.S. 996, 996 (1979)(Powell, J., concurring). In sum, due respect for the coordinate branches of government requires courts to refrain from resolving political disputes unless and until effective functioning of the government makes it vital to do so.
This dispute between the executive and legislative branches with respect to the ballistic missile defense program is not yet ripe for resolution by the judicial branch. Basic budgetary, technical and strategic implications of the ballistic missile defense program continue to be studied within and outside the Department of Defense and it appears that the parties continue to maintain a dialogue on how best to implement Congress' intent with respect to the program, as incorporated into the National Defense Authorization Act for Fiscal Year 1996.
The dialogue is evidenced by the March 1996 hearings held by the Senate Committee on Armed Services after the Department of Defense released the Kaminski Report. During the hearings, officials testifying on behalf of the Department of Defense and legislators engaged in a thorough and active discussion of the very issues raised in Plaintiffs' complaint. Congress may yet act on these findings to reaffirm its commitment to the milestones in the Ballistic Missile Defense Act, to alter its timetables, or to address the budgetary, technical and strategic concerns outlined by the Department of Defense. The Department of Defense may also reassess the Kaminski Report. The Court believes prudence requires that the executive and legislative branches be given further opportunities to resolve their differences before the third branch of government is brought into the dispute..
Nonetheless, there may yet come a day when Congress will speak more clearly on this matter and dialogue with the executive branch will have been exhausted. If and when that day comes, this Court will revisit the critical issues presented here. The Court does not believe that the executive can blatantly defy the Congress where the national security interest may be at stake. Under such circumstances, this Court will not condone the executive branch defying the explicit laws enacted by the Congress.
Accordingly, this Court will abstain from injecting itself into this dispute at this time and Defendant's motion to dismiss will be granted without prejudice.
United States District Judge
Having considered Defendant's motion to dismiss, all opposition thereto, argument by the parties, and for the reasons stated in the foregoing opinion, it is hereby
ORDERED that Defendant's motion be GRANTED without prejudice.
United States District Judge