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March 2, 1998

WILLIAM J. CLINTON, et al., Defendants.

The opinion of the court was delivered by: KENNEDY

 Before this court is the plaintiffs' Motion for Preliminary Injunction and the defendants' Motion to Dismiss. Upon consideration of these motions, the responses thereto, and the entire record of the case, the court concludes that the plaintiffs' motion should be denied and that the defendants' motion should be granted on the ground that the plaintiffs lack standing to bring this action.


 Plaintiffs are four members of the U.S. House of Representatives who have sued William Clinton, President of the United States, for allegedly violating the United States Constitution by issuing Executive Order 13061. On September 11, 1997, President Clinton signed Executive Order 13061, which created the American Heritage Rivers Initiative (AHRI), an initiative designed "to protect and restore rivers and their adjacent communities." Exec. Order No. 13061, 62 Fed. Reg. 48445 (1997). Under the AHRI, "the President will designate rivers that meet certain criteria as 'American Heritage Rivers,'" and "executive agencies . . ., to the extent permitted by law . . ., shall coordinate Federal plans, functions, programs, and resources to preserve, protect, and restore rivers and their associated resources important to our history, culture, and natural heritage." Id. at Section 1 (e), (b).

 The plaintiffs contend that the President may not create legislation in the form of an Executive Order unless Congress has expressly delegated such authority to the President. The plaintiffs argue that Congress has not delegated to the president the authority to create the AHRI and that the president's action of signing Executive Order 13061 therefore violates the doctrine of Separation of Powers, as well as the Commerce Clause (Art. I, Sec. 8, Cl. 3), Property Clause (Art. IV, Sec. 3, Cl. 2), Spending Clause (Art. I, Sec. 9, Cl. 7) and Tenth Amendment of the U.S. Constitution, and the Anti-Deficiency Act, 31 U.S.C. § 1301 et seq., the Federal Land Management and Policy Act, 43 U.S.C. § 1701 et seq., and the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. Specifically, the President's action has deprived plaintiffs "of their ability to exercise their duties to review, debate, and vote on pending legislation and to conduct oversight as . . . included within the jurisdiction of their Committee and Subcommittees," and "of their constitutionally guaranteed responsibilities as Members of Congress to regulate interstate commerce, manage and regulate federal lands, and authorize and appropriate federal expenditures." (Pls.' Mot. for Prelim. Inj. at 7.) These are the injuries upon which the plaintiffs base their standing to bring this suit.

 The defendants claim that Executive Order 13061 relies entirely on existing federal programs and results in no new regulatory authority, and therefore is constitutional. The defendants argue, further, that it is not necessary to reach the merits of the plaintiffs' complaint because the complaint should be dismissed for lack of standing. The court agrees that the complaint should be dismissed for lack of standing.


 For the purposes of determining the plaintiffs' standing, "we must assume the validity of the [plaintiffs'] claim and construe the complaint in favor of the complaining parties." Moore v. U.S. House of Representatives, 236 U.S. App. D.C. 115, 733 F.2d 946, 950 (1984) (citing Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975)). Thus, we assume for this analysis that the President's signing of Executive Order 13061 unconstitutionally violated the Separation of Powers doctrine and the other constitutional provisions and statutes cited by plaintiffs.

 The recent Supreme Court case, Raines v. Byrd, 138 L. Ed. 2d 849, 117 S. Ct. 2312 (1997), discusses the doctrine of standing. The court states,

 Raines, 117 S. Ct. at 2317 (internal citations omitted).

 The Supreme Court further explains, "We have always insisted on strict compliance with this jurisdictional standing requirement. . . . And our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." Id. at 2317-2318 (internal citations omitted). Therefore, the court concluded, "we must carefully inquire as to whether appellees have met their burden of establishing that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable." Id. at 2318.

 Raines is directly relevant to the instant case because it is the most recent Supreme Court case and one of only a few addressing the issue of standing for legislators. In Raines, members of Congress challenged the constitutionality of the Line Item Veto Act, 2 U.S.C.A. § 691 et seq. (Supp. 1997), which gives the President authority to "cancel" certain spending and tax benefit measures after he has signed them into law, thus allegedly diluting the Congress members' Article I voting power. While Raines does not directly address the circumstances of the instant case, it provides important guide posts for our analysis.

 First, Raines distinguishes between a personal injury (the loss of a private right) and an institutional injury (the loss of political power) as the basis of a legislator's standing. While Raines does not categorically require that standing be based on a personal/private injury, it does suggest that a personal injury more strongly supports a finding of standing than does an institutional injury: "Appellees' claim of standing is based on a ...

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