No. 99-1843
In the Supreme Court of the United States
TOM CAMPBELL, MEMBER, UNITED STATES HOUSE OF
REPRESENTATIVES, ET AL., PETITIONERS
v.
WILLIAM JEFFERSON CLINTON,
PRESIDENT OF THE UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
MARK B. STERN
MARK S. DAVIES
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether this case is moot because the military air operations that are
the subject of petitioners' suit have been completed.
2. Whether individual Members of Congress have standing to challenge military
air operations in Kosovo on the ground that the operations allegedly exceeded
the President's constitutional and statutory authority.
In the Supreme Court of the United States
No. 99-1843
TOM CAMPBELL, MEMBER, UNITED STATES HOUSE OF
REPRESENTATIVES, ET AL., PETITIONERS
v.
WILLIAM JEFFERSON CLINTON,
PRESIDENT OF THE UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-54a) is reported at 203
F.3d 19. The opinion of the district court (Pet. App. 55a-79a) is reported
at 52 F. Supp. 2d 34.
JURISDICTION
The judgment of the court of appeals was entered on February 18, 2000. The
petition for a writ of certiorari was filed on May 18, 2000. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Petitioners are 31 Members of the United States House of Representatives.
They brought suit in federal district court against the President of the
United States seeking a declaration that the military air operations in
Kosovo initiated on March 24, 1999, violated Article I, Section 8, Clause
11 of the Constitution, which confers on Congress the power to "declare
War," and the War Powers Resolution, 50 U.S.C. 1541 et seq. The district
court dismissed the suit on the ground that petitioners lack standing to
sue. Pet. App. 55a-79a. The court of appeals affirmed. Id. at 1a-54a.
1. In early 1998, Serbia in the Federal Republic of Yugoslavia (FRY) launched
a violent crackdown against ethnic Albanians in Kosovo. Pet. App. 59a. On
March 21, 1999, Ambassador Richard Holbrooke made a final diplomatic effort
to resolve the conflict. Id. at 60a. That effort was unsuccessful. Ibid.
On March 23, 1999, the Senate passed a concurrent resolution providing that
"the President of the United States is authorized to conduct military
air operations and missile strikes in cooperation with our NATO allies against
the Federal Republic of Yugoslavia." S. Con. Res. 21, 106th Cong.,
1st Sess. (1999); see 145 Cong. Rec. S3118 (daily ed. Mar. 23, 1999). On
March 24, 1999, the North Atlantic Treaty Organization (NATO) began a series
of air strikes in the FRY. Pet. App. 60a-61a. The NATO campaign included
air operations conducted by United States military forces. Ibid. On March
26, 1999, and again on April 7, 1999, President Clinton submitted reports
to the Congress regarding the military air operations. Id. at 61a-62a.
On April 28, 1999, the United States House of Representatives voted on four
measures relevant to the present case. The House of Representatives defeated
a joint resolution that would have declared a state of war between the United
States and the FRY. Pet. App. 62a (citing H.R.J. Res. 44, 106th Cong., 1st
Sess. (1999)); see 145 Cong. Rec. H2427, H2440-H2441 (daily ed. Apr. 28,
1999). By a tie vote of 213 to 213, the House of Representatives defeated
a concurrent resolution previously passed by the Senate (see p. 2, supra)
that would have expressly authorized the President to conduct military air
operations and missile strikes against the FRY. Pet. App. 62a (citing S.
Con. Res. 21, 106th Cong., 1st Sess. (1999)); see 145 Cong. Rec. H2441,
H2451-H2452 (daily ed. Apr. 28, 1999). The House of Representatives defeated
a concurrent resolution that would have directed the President "to
remove United States Armed Forces from their positions in connection with
the present operations against the [FRY]." Pet. App. 62a-63a (quoting
H.R. Con. Res. 82, 106th Cong., 1st Sess. (1999)); see 145 Cong. Rec. H2414,
H2426-H2427 (daily ed. Apr. 28, 1999). And the House of Representatives
passed a bill (never acted on by the Senate) to prohibit the use of Defense
Department funds for deployment of United States ground forces to the FRY
without specific congressional authorization. Pet. App. 63a (citing H.R.
1569, 106th Cong., 1st Sess. (1999)); see 145 Cong. Rec. H2400, H2413-H2414
(daily ed. Apr. 28, 1999).
On May 20, 1999, Congress passed a law that provided emergency supplemental
appropriations for the conflict in the FRY. See 1999 Emergency Supplemental
Appropriations Act, Pub. L. No. 106-31, §§ 2002, 2005-2006, 113
Stat. 79-80; Pet. App. 63a. On June 10, 1999, the President announced the
termination of air strikes in Kosovo. 35 Weekly Comp. Pres. Doc. 1074-1077.
On June 21, 1999, after NATO's Secretary General announced the official
termination of the NATO air campaign, Secretary of Defense William Cohen
announced the redeployment of over 300 United States aircraft back to their
home bases. Pet. App. 35a.
2. Petitioners are 31 Members of the United States House of Representatives
who voted against the proposed declaration of war and authorization of the
military operation. During the pendency of the bombing campaign, petitioners
filed suit in the United States District Court for the District of Columbia,
naming as the defendant the President of the United States. Their complaint
alleged that the President had violated the War Powers Clause of the Constitution
and the War Powers Resolution by authorizing air strikes in the FRY for
a period of more than 60 days without congressional authorization. Pet.
App. 3a, 64a. Petitioners sought an order declaring that the United States
air strikes were unlawful and that the President was required to withdraw
United States forces from the FRY by May 25, 1999 (60 days after the President's
initial report to Congress regarding the air campaign). Id. at 55a-56a,
64a-65a.
On June 8, 1999, two days before the President announced the termination
of United States air strikes, the district court dismissed the complaint
on the ground that petitioners lack standing to sue. Pet. App. 55a-79a.
The court explained that "[t]he dispute over standing in this case
centers on whether plaintiffs, suing in their capacities as members of the
House of Representatives, have alleged a particularized and personal injury
sufficient to establish their interest in this litigation." Id. at
69a. It concluded that under the applicable precedents of this Court, "the
injury of which plaintiffs complain- the alleged 'nullification' of congressional
votes defeating the measures declaring war and providing the President with
authorization to conduct air strikes-is not sufficiently concrete and particularized
to establish standing." Id. at 73a.
3. The court of appeals affirmed. Pet. App. 1a-54a.
a. In holding that petitioners lack standing to sue, the court of appeals
placed primary reliance on Raines v. Byrd, 521 U.S. 811 (1997), in which
this Court concluded that individual Members of Congress did not have standing
to bring a constitutional challenge to the Line Item Veto Act. Pet. App.
4a. The court of appeals emphasized in particular the availability of alternative
means by which Members of Congress may seek to influence United States foreign
policy. The court explained:
Congress certainly could have passed a law forbidding the use of U.S. forces
in the Yugoslav campaign; indeed, there was a measure-albeit only a concurrent
resolution-introduced to require the President to withdraw U.S. troops.
Unfortunately, however, for those congressmen who, like [petitioners], desired
an end to U.S. involvement in Yugoslavia, this measure was defeated by a
139 to 290 vote. Of course, Congress always retains appropriations authority
and could have cut off funds for the American role in the conflict. Again
there was an effort to do so but it failed; appropriations were authorized.
And there always remains the possibility of impeachment should a President
act in disregard of Congress' authority on these matters.
Id. at 10a. The court of appeals concluded that because "Congress has
a broad range of legislative authority it can use to stop a President's
war making, * * * under [Raines] congressmen may not challenge the President's
war-making powers in federal court." Id. at 11a (citation omitted).
b. Judge Randolph filed a separate opinion concurring in the judgment. Pet.
App. 22a-38a. Judge Randolph concluded that "the case is moot"
because "[a]ll agree that the 'hostilities' ended by June 21, 1999,
after NATO's Secretary General announced the official termination of the
air campaign and Secretary of Defense Cohen announced the redeployment of
more than 300 U.S. aircraft back to their home bases." Id. at 22a,
35a. Judge Randolph rejected petitioners' contention that their suit fell
within the exception to the mootness bar for issues "capable of repetition,
yet evading review." Id. at 35a-38a. He explained, inter alia, that
because military conflicts sometimes "last for years," the category
of conduct that is the subject of petitioners' suit-"offensive wars
initiated without congressional approval"-is not "'inherently'
of a sort that evades review." Id. at 36a.
Judge Randolph also concluded that petitioners lack standing to sue. Pet.
App. 24a-34a. He explained that petitioners' votes against a declaration
of war were not deprived of legal effect, since they served to deny the
President various powers that are available only "in time of war."
Id. at 26a-29a. Judge Randolph further observed that petitioners' "real
complaint is not that the President ignored their votes" but "that
he ignored the War Powers Resolution," and that petitioners' theory
of standing would logically apply whenever a President is alleged to have
acted in violation of a federal statute. Id. at 30a. Judge Randolph found
that asserted basis for standing to be "highly problematic, not only
because the principle is unconfined but also because it raises very serious
separation-of-powers concerns." Ibid.
c. Judge Silberman and Judge Tatel filed separate concurring opinions. Pet.
App. 14a-21a, 45a-54a. Judge Silberman stated that "no one" is
able "to challenge a President's arguably unlawful use of force,"
because courts "lack judicially discoverable and manageable standards"
for addressing whether a President unlawfully used force. Id. at 14a (citation
and internal quotation marks omitted). Judge Tatel explained that he did
"not share [Judge Silberman's] view that the case poses a nonjusticiable
political question." Id. at 45a. He agreed, however, that petitioners
lack standing to sue. Ibid.
ARGUMENT
Petitioners' claims are moot because the military air operations that are
the subject of this action have concluded. Moreover, the court of appeals
correctly held that petitioners lack standing to sue, and its decision does
not conflict with any decision of this Court or of any other court of appeals.
Further review is not warranted.
1. Article III, Section 2 of the Constitution restricts the jurisdiction
of the federal courts to "Cases" and "Controversies."
"[A]n actual controversy must be extant at all stages of review, not
merely at the time the complaint is filed." Arizonans for Official
English v. Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser v. Newkirk,
422 U.S. 395, 401 (1975)). A case is moot when the issues presented have
no continuing adverse impact and there is no effective relief that a court
may grant. See O'Shea v. Littleton, 414 U.S. 488, 496 (1974).
As Judge Randolph's concurring opinion explains (see Pet. App. 22a, 35a-38a),
straightforward application of established principles makes clear that petitioners'
claim is moot. Petitioners brought this action to challenge the legality
of the United States' participation in the NATO air campaign in the FRY.
Id. at 3a. Petitioners acknowledge (Pet. 21) that the air campaign that
was the subject of their lawsuit ended over a year ago. Petitioners' claim
for declaratory relief is therefore moot.
Contrary to petitioners' contention (Pet. 21), this case does not fall within
the exception to mootness for matters "capable of repetition, yet evading
review." See Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).
Armed conflicts (as demonstrated by the conflicts in Vietnam and Korea)
are not inherently of such short duration as to evade judicial review. Nor
is there any reason to conclude that the individual petitioners in this
case are likely to cast votes in circumstances analogous to those presented
here.1
2. a. As the court of appeals correctly recognized, this Court's decision
in Raines v. Byrd, 521 U.S. 811 (1997), makes clear that petitioners lack
standing to sue. This Court has "consistently held that a plaintiff
raising only a generally available grievance about government-claiming only
harm to his and every citizen's interest in proper application of the Constitution
and laws, and seeking relief that no more directly and tangibly benefits
him than it does the public at large-does not state an Article III case
or controversy." Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-574
(1992). The Court's decision in Raines makes clear that the same principle
applies when a Member of Congress invokes the jurisdiction of the federal
courts. See 521 U.S. at 830 (holding that the challenge to the Line Item
Veto Act should be dismissed because the plaintiff Members of Congress "do
not have a sufficient 'personal stake' in this dispute and have not alleged
a sufficiently concrete injury to have established Article III standing").
In Raines, this Court held that the plaintiff Members of Congress could
not establish standing to challenge the Line Item Veto Act based on an asserted
diminution of their voting power. See 521 U.S. at 821-826. As the court
of appeals correctly held, petitioners' asserted injury cannot meaningfully
be distinguished from the claims in Raines. Petitioners assert that the
President violated the Constitution and the War Powers Resolution by initiating
and continuing the Kosovo air campaign without obtaining adequate congressional
approval. They claim "irreparable harm" resulting from a deprivation
of their "right and duty * * * to commit this country to war, or to
prevent, by refusing their assent, the committing of this country to war,"
as well as a "complete[] nullifi[cation of] their vote against authorizing
military air operation and missile strikes." C.A. App. 9. Like the
injury alleged in Raines, the harms asserted here are quintessential "institutional
injur[ies]" that "damage[] all Members of Congress and both Houses
of Congress equally," and that are claimed only on the basis of petitioners'
official status as legislators. See Raines, 521 U.S. at 821. As in Raines,
moreover, petitioners remain free to utilize the legislative process to
vindicate their policy objectives. Compare Raines, 521 U.S. at 829 (noting
that "Members of Congress * * * may repeal the [Line Item Veto] Act
or exempt appropriations bills from its reach") with Pet. App. 11a
(observing that "Congress has a broad range of legislative authority
it can use to stop a President's war making").2
b. Petitioners' reliance (Pet. 9-13) on Coleman v. Miller, 307 U.S. 433
(1939), is misplaced. In Coleman, 21 (out of 40) state senators brought
a mandamus action in the Kansas Supreme Court. Id. at 436. The gravamen
of their suit was that the State's Lieutenant Governor, as presiding officer
of the Senate, had improperly cast a tie-breaking vote in support of the
ratification of a proposed amendment to the United States Constitution.
Id. at 435-436. The state supreme court entertained the suit on the merits,
concluded that the Lieutenant Governor was authorized to cast the deciding
vote, and held on that basis that the proposed amendment had been properly
ratified by the Kansas Legislature. Id. at 437. The plaintiffs then sought
review in this Court, which held that "at least the twenty senators
whose votes, if their contention were sustained, would have been sufficient
to defeat the resolution ratifying the proposed constitutional amendment,
have an interest in the controversy which, treated by the state court as
a basis for entertaining and deciding the federal questions, is sufficient
to give the Court jurisdiction to review that decision." Id. at 446;
see Raines, 521 U.S. at 822-823 (summarizing Coleman).
In Raines, this Court held that "Coleman stands (at most) 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." 521 U.S. at 823 (citation omitted).3
The plaintiffs in Raines, by contrast, could "not allege[] that they
voted for a specific bill, that there were sufficient votes to pass the
bill, and that the bill was nonetheless deemed defeated." Id. at 824.
While acknowledging that the Line Item Veto Act might in some sense reduce
the "effectiveness" of the plaintiffs' votes on future appropriations
bills (see id. at 825), the Court explained that "[t]here is a vast
difference between the level of vote nullification at issue in Coleman and
the abstract dilution of institutional legislative power that is alleged
here. To uphold standing here would require a drastic extension of Coleman.
We are unwilling to take that step." Id. at 826.
Like the petitioners in Raines (and unlike the plaintiffs in Coleman), petitioners
cannot claim that they comprised all or part of a legislative majority that
would have enacted (or defeated) a specific legislative measure but for
the action of the President. Petitioners emphasize (Pet. 9) that the House
of Representatives failed to pass a declaration of war and failed to authorize
United States air strikes. But the defeat of those concurrent resolutions
did not constitute a legislative command to cease all military actions in
Kosovo. Indeed, on the same day that it failed to pass those resolutions,
the House of Representatives defeated a measure that purported to require
the President to "remove United States Armed Forces from their positions
in connection with the present operations against the Federal Republic of
Yugoslavia." Pet. App. 63a (citing H.R. Con. Res. 82, supra). Congress
subsequently appropriated funds to carry out the military campaign in Kosovo.
See Pet. App. 10a, 63a; p. 3, supra. The President did not "nullify"
any congressional vote by spending appropriated funds to conduct the Kosovo
air campaign.
As Judge Randolph observed, petitioners' "real complaint is not that
the President ignored their votes," but "that he ignored the War
Powers Resolution." Pet. App. 30a. The injury that petitioners allege
is nothing more than the "wholly abstract" diminution of legislative
power that can be asserted whenever the Executive Branch is alleged to have
acted in violation of applicable statutes. Raines, 521 U.S. at 829. Under
this Court's decision in Raines, petitioners' attempt to assert a generalized
institutional injury based on Presidential actions funded by Congress was
properly dismissed for lack of standing. To recognize standing in this case
would vest individual Members of Congress with unfettered access to the
courts to challenge the validity of any Executive Branch action they believe
to be unlawful-a result severely at odds with the separation of powers principles
that underlie Article III standing requirements.
3. Petitioners also contend (Pet. 13-20) that this case raises important
questions of constitutional law regarding the allocation of responsibility
between Congress and the President for the development of United States
military policy. This case is an unsuitable vehicle for resolution of those
questions, however, since (as the courts below correctly held) petitioners'
suit does not satisfy the requirements of Article III. For the same reason,
there is no merit to petitioners' suggestion (Pet. 25) that "[t]his
Court should resolve the disagreement between Judges Silberman and Tatel
as to whether the issues presented in this case are justiciable." Independent
of their comments concerning justiciability, Judge Silberman and Judge Tatel
agreed that petitioners lack standing to bring this case.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
MARK B. STERN
MARK S. DAVIES
Attorneys
JULY 2000
1 Petitioners contend (Pet. 24) that most future United States military
actions can be expected to end within 60 days. As Judge Randolph's concurring
opinion explains, however, "[a]ccepting that prediction as accurate
dooms [petitioners'] case," since it suggests that future disputes
regarding presidential compliance with the 60-day provision of the War Powers
Resolution are unlikely to arise. Pet. App. 37a.
2 Petitioners also contend (Pet. 12) that the court of appeals' decision
conflicts with the prior decision of the District of Columbia Circuit in
Chenoweth v. Clinton, 181 F.3d 112 (1999), cert. denied, 120 S. Ct. 1286
(2000). An intra-circuit conflict typically provides no basis for invoking
this Court's review. See Wisniewski v. United States, 353 U.S. 901, 902
(1957). In any event, no true conflict exists, since the court in Chenoweth
also held that the plaintiff Representatives lacked standing. See 181 F.3d
at 113-117.
3 The Court in Raines reserved the question whether the analysis in Coleman
would apply to a suit brought by federal legislators. See 521 U.S. at 824-825
n.8.