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Kucinich v. Bush

December 30, 2002


The opinion of the court was delivered by: John D. Bates, United States District Judge.


Thirty-two members of the House of Representatives (hereinafter "plaintiffs" or "the congressmen") bring this action against President George W. Bush, Secretary of State Colin Powell, and Secretary of Defense Donald H. Rumsfeld ("defendants") challenging President Bush's unilateral withdrawal from the 1972 Anti-Ballistic Missile Treaty ("ABM Treaty") without the approval of Congress. The congressmen contend that because the Supremacy Clause of the Constitution classifies treaties, like Acts of Congress, as the "supreme law of the land," the President cannot terminate a treaty without congressional consent, any more than he could repeal a statute. Defendants counter that the congressmen lack standing to bring this action, that their complaint raises a non-justiciable political question, and that their claim is not ripe. Defendants further contend that given the President's plenary power over foreign relations under the Constitution and the fact that the treaty authority is in Article II of the Constitution delineating the Executive Branch's powers, and in light of historical practice over the past 200 years, the

President's withdrawal from the ABM Treaty without seeking congressional approval was constitutional.

Before the Court are cross-motions for summary judgment, and several amicus briefs. The Court does not reach the merits of plaintiffs' claim in the face of two prongs of the justiciability doctrine, each founded on separation of powers concerns. Under the ruling in Raines v. Byrd, 521 U.S. 811 (1997), the Court finds that these thirty-two congressmen have not alleged the requisite injury to establish standing to pursue their claim. And pursuant to Goldwater v. Carter, 444 U.S. 996 (1979), the Court concludes that the treaty termination issue is a non-justiciable "political question" that cannot be resolved by the courts. Accordingly, this action will be dismissed.


The United States and the Soviet Union entered into the bilateral ABM Treaty on October 3, 1972. *fn1 The ABM Treaty strictly limited the number and location of anti-ballistic missile systems that each side could deploy for defense against nuclear missile attacks. Both nations agreed not to develop ABM technology, and not to test or deploy such technology on land, at sea, or in space. A critical component of an interlocking framework of arms control agreements, the ABM Treaty was a cornerstone of the Cold War policy of "mutually assured destruction," an understanding that without ABM defenses neither side would risk starting a nuclear war because it knew the other side would massively retaliate, thus ensuring the widespread destruction of both nations.

President Bush, however, concluded that the world order and international security had drastically changed since the inception of the ABM Treaty three decades ago. Accordingly, on December 13, 2001, he gave Russia the requisite six-months notice of the intention of the United States to withdraw from the ABM Treaty, pursuant to the Treaty's termination clause:

Each Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests. It shall give notice of its decision to the other Party six months prior to withdrawal from the Treaty. ABM Treaty, art. XV, cl. 2.

The White House explained that "[t]he Soviet Union no longer exists [and] Russia is not an enemy, but in fact is increasingly allied with us on a growing number of critically important issues." *fn2 The State Department cited the development of "a new strategic relationship with Russia that is cooperative rather than adversarial," including "strong relationships with most states of the former Soviet Union." See United States Department of State, Text of Diplomatic Notes Sent to Russia, Belarus, Kazakhstan, and Ukraine (Dec. 14, 2002).

President Bush also explained that a number of foreign regimes "have acquired or are actively seeking to acquire weapons of mass destruction . . . [that] pose a direct threat to the territory and security of the United States." Id. "The attacks against the U.S. homeland on September 11 vividly demonstrate that the threats we face today are far different from those of the Cold War." Def. Motion, Ex. 2, supra note 2. Compliance with the Treaty, President Bush noted, "hinders our government's ability to develop ways to protect our people from future terrorist or rogue state missile attacks." *fn3

Before he withdrew from the Treaty, however, President Bush did not submit the question of treaty termination to the Senate or the House. Nor did the President otherwise seek congressional consent for the withdrawal. Nearly six months after President Bush announced his intention to terminate the treaty, these congressmen brought suit on June 11, 2002, just two days before the termination of the ABM Treaty became effective. *fn4


Defendants raise a number of distinct bases for dismissing plaintiffs' complaint on jurisdictional grounds, including standing, political question, and ripeness. These doctrines all arise out of the "bedrock requirement" that courts hear only "cases and controversies." See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). As the Supreme Court has explained, "[t]he federal courts are under an independent obligation to examine their own jurisdiction, and standing 'is perhaps the most important of the jurisdictional doctrines.'" FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)). *fn5 The Court will therefore begin its analysis with standing, and then proceed to the related issue of whether a non-justiciable political question is presented. In light of the resolution of these threshold jurisdictional issues, the Court does not reach the merits of plaintiffs' claims.

I. Standing

Article III of the Constitution restricts the jurisdiction of the federal courts to "Cases" and "Controversies." U.S. Const. art. III, § 2; Flast v. Cohen, 392 U.S. 83, 94 (1968); Allen, 468 U.S. at 750. This requirement has given rise to "several doctrines . . . 'founded in concern about the proper -- and properly limited -- role of the courts in a democratic society.'" Allen, 468 U.S. at 750 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)); Valley Forge, 454 U.S. at 471. One aspect of this "case-or-controversy" requirement is that plaintiffs must have standing to sue, an inquiry that focuses on whether the plaintiff is the proper party to bring suit. FW/PBS, Inc., 493 U.S. at 231. Hence, "'the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.'" Allen, 468 U.S. at 750-51 (quoting Warth, 422 U.S. at 498).

Standing focuses on the particular injury allegedly suffered by the plaintiff: First, the plaintiff must have suffered an injury in fact -- an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations and quotation marks omitted). "These requirements together constitute the 'irreducible constitutional minimum' of standing, which is an 'essential and unchanging part' of Article III's case-or-controversy requirement, and a key factor in dividing the power of government between the courts and the two political branches." Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (internal citations omitted) (quoting Lujan, 504 U.S. at 559-60).

A. Raines v. Byrd

The question whether members of Congress have standing to sue Executive Branch officials is neither novel nor unsettled. Indeed, this case is squarely within the holding of Raines v. Byrd. The Supreme Court in Raines emphasized that in cases of inter-branch disputes between the Executive and Legislative Branches of government, courts must conduct a more exacting scrutiny of standing, particularly the alleged injury: "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." 521 U.S. at 819-20.

Like the congressmen here, the plaintiffs in Raines were a small number of members of Congress suing the Executive Branch. They challenged the constitutionality of the Line Item Veto Act, 2 U.S.C. § 691 et seq., which authorized the President to strike, or "veto," specific items or provisions within appropriations legislation. Although the plaintiffs in Raines had voted against the bill, both the Senate and the House passed the legislation by wide margins, and President Clinton signed it into law.

After losing the fight in Congress, the congressmen in Raines brought their challenge to court, arguing that the Act "unconstitutionally expand[ed] the President's power" and "violate[d] the requirements of bicameral passage and presentment by granting to the President, acting alone, the authority to 'cancel' and thus repeal provisions of federal law." Raines, 521 U.S. at 816. The Line Item Veto Act, they contended, "divest[ed] the plaintiffs of their constitutional role in the repeal of legislation," and "alter[ed] the constitutional balance of powers between the Legislative and Executive Branches." Id. The District Court found that the congressmen's claim that the Act "dilute[d] their Article I voting power" was a sufficient injury to confer standing, and ultimately found that the Act violated the Presentment Clause of the Constitution, amounting to an unconstitutional delegation of legislative power to the President. See Byrd v. Raines, 956 F.Supp. 25, 31, 32-38 (D.D.C. 1997). On direct review, the Supreme Court vacated the District Court's ruling, and held that the plaintiffs could not meet "the bedrock requirement" of standing:

'No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.' . . . We have always insisted on strict compliance with this jurisdictional standing requirement. 521 U.S. at 818-19 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976)).

In order to establish standing, the Supreme Court emphasized, a plaintiff must show that the "claimed injury is personal, particularized, concrete, and otherwise judicially cognizable." 521 U.S. at 820. The Court underscored that the injury must be personal to that plaintiff in order to satisfy the Article III case-or-controversy requirement:

To meet the standing requirements of Article III, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751 (1984) (emphasis added). For our purposes, the italicized words in this quotation from Allen are the key ones. We have consistently stressed that a plaintiff's complaint must establish that he has a "personal stake" in the alleged dispute, and that the alleged injury suffered is particularized as to him. Id. at 818-19; see also Lujan, 504 U.S. at 561 n.1 ("By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.").

The Supreme Court characterized the congressmen's alleged injury in Raines as "the abstract dilution of institutional legislative power." Id. at 826. The congressmen there alleged a broad "type of institutional injury," particularly "the diminution of legislative power" -- an injury, the Court found, "which necessarily damages all Members of Congress and both Houses of Congress equally." Id. at 821. The Court held "that these individual members of Congress do not have a sufficient 'personal stake' in the dispute and have not alleged a sufficiently concrete injury to have established Article III standing." Id. at 830.

B. The Application of Raines Here

The injuries in Raines are precisely the type of injuries raised here. The complaint alleges that plaintiffs have standing because President Bush failed to obtain congressional consent to withdraw from the ABM Treaty, and hence they were "deprived of their constitutional right and duty to participate in treaty termination." Compl. ¶ 13. Plaintiffs allege that the Constitution requires "that the making, modifying, and terminating of treaties be the joint prerogative of the executive and legislative branches," and that in light of the Constitution's checks and balances "the President has a duty to seek and obtain the concurrence of two-thirds of the Senate or a majority of both Houses for the termination of a treaty." Compl. ¶¶ 11-12. As their complaint characterizes it, "plaintiffs have sustained a grievous institutional injury by being deprived of their constitutional right and duty to participate in treaty termination." Id. at ¶ 13. This alleged injury mirrors that claimed in Raines, where the congressmen argued they were "divest[ed] . . . of their constitutional role in the repeal of legislation." 521 U.S. at 816. It is, effectively, the same institutional injury as in Raines, where the Line Item Veto Act allegedly "alter[ed] the constitutional balance of powers between the Legislative and Executive Branches." Id.

There are striking similarities between the claims in Raines and the claims here. Both groups of congressmen brought their claims in "their official capacities as members of the United States Congress." Compare Compl. ¶ 6 with Raines, 521 U.S. at 816. Both allege injuries to the constitutional role and power of the Legislative Branch -- here, in the treaty termination process, and in Raines, in the repeal of legislation. In both cases, all members of Congress (not just those bringing the lawsuit) suffered the alleged injuries equally. Indeed, the congressmen here conceded at the hearing on the parties' motions that their alleged injuries extend to all members of the House and Senate, just as the injury alleged in Raines did. See 521 U.S. at 821 (injury "necessarily damage[d] all Members of Congress and both Houses of Congress equally").

In each case, moreover, the congressmen had actually voted on measures they opposed, but lost the vote. In Raines, the congressmen had voted on the legislation establishing the Line Item Veto Act: "[T]heir votes were given full effect. They simply lost that vote." 521 U.S. at 824. Likewise, here the congressmen voted on a resolution against President Bush's termination of the Treaty, and lost. On June 6, 2002, Representative Kucinich offered a resolution in the House:

Whereas, the President does not have the authority to repeal laws . . . . Therefore, be it resolved, That the President should respect the Constitutional role of Congress and seek the approval of Congress for the withdrawal of the United States of ...

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