Congress just fight for right to challenge presidential usurpation

D.C. Circuit's Heritage Rivers Decision a Disaster

For 25 years, the U.S. Court of Appeals for the District of Columbia has heard lawsuits by members of Congress challenging the actions of either their colleagues in Congress or the President and his appointees. While members of Congress lack the "personal injury" required for "standing" (the right to sue), the circuit found injury to "the members' rights to participate and vote on legislation in a manner defined by the Constitution."

Thus, the circuit held, in 1974, that Sen. Ted Kennedy (D.-Mass.) had standing to challenge a "pocket veto" of legislation by President Nixon and, in 1984, that Rep. Henson Moore (R.-La.) had standing to challenge revenue-raising legislation that did not "originate" in the House.

However, it appears this quarter-centuryold precedent will be overturned. That reversal will come in Chenoweth, et al. v. Clinton, in which Rep. Helen Chenoweth (R.-Idaho) and four of her colleagues challenged President Clinton's authority to implement his American Heritage Rivers Initiative (AHRI), asserting that the AHRI is legislation that only Congress may enact.

In the long tradition of the D.C. circuit, Chenoweth argues that Clinton's usurpation of the role of Congress denied her the "right to participate in a constitutionally prescribed method of enacting . . . legislation." Consistent with precedent, she challenges, not the implementation or the constitutionality of the law, but the manner in which the AHRI became "law," that is, in violation of the "constitutionally mandated process of enacting law."

District Court's 'Remarkable'

Reasoning on Standing

Remarkably, when the district court ruled on standing, it decided the issue, not in accordance with the circuit's cases on point, but on the basis of a recent ruling of the U.S. Supreme Court, Raines v. Byrd. That case was a challenge by Sen. Robert Byrd (D.W.Va.) and others to the constitutionality of the Line Item Veto Act. The court dismissed their challenge, holding that they had suffered no injury: "Their votes were given full effect. They simply lost that vote."

Added the court, "The alleged cause of their injury is not the [executive's] exercise of legislative power but the actions of their own colleagues in Congress in passing the act." Even more remarkably, when Chenoweth was appealed, the three-judge panel concluded that the circuit's earlier holdings in Kennedy and Moore had been overturned by Raines v. Byrd. Although the Supreme Court case was decided on different grounds and the facts differed from cases where the circuit gave standing to members of Congress, the circuit threw in the towel. If that view holds and if the court's anticipated decision is not overturned, the ability of members of Congress to sue for usurpation of their authority will end.

What recourse will there then be when a President exercises powers neither given him by the Constitution nor delegated to him by Congress? Of course, an injured private citizen or group of citizens may sue, but such litigation faces all but insurmountable challenges. The better answer is for Congress, as an institution, to object, not necessarily to what the President is doing or why he is doing it, but how it is being done. After all, in our constitutional system, there is a right way and a wrong way for doing things, even worthwhile things that deserve doing. Sadly, too few members of Congress seem concerned about the Constitution. In discussions of the AHRI, for example, many members of Congress agreed that Clinton lacked authority for the program, but refused to object, saying, "It sounds like a good idea."

If the federal courts opt out of the battle between Congress and the executive, as the D.C. circuit seems likely to do, protection of niceties such as the "constitutionally mandated process of enacting laws" may be left up to the handful of citizen groups able to go to court and stay there. But that is not where the responsibility lies. It's up to Congress to defend the Constitution. Whether Congress is up to the task remains to be seen.

Mr. Perry is the president and chief legal officer of the Mountain States Legal Foundation, under whose auspices this article was produced

Copyright Human Events Publishing, Inc. Apr 2, 1999
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