Common Cause v. Biden ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
COMMON CAUSE, et al., )
)
Plaintiffs, )
) Civil Action No. 12-775 (EGS)
v. )
)
JOSEPH R. BIDEN, JR., )
in his official capacity as )
President of the United States )
Senate, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiffs in this action are a non-profit organization
devoted to government accountability and election reform, four
members of the United States House of Representatives, and three
individuals who allege they would have benefitted from the DREAM
Act. They bring this suit against representatives of the United
States Senate seeking a declaratory judgment that Rule XXII (the
“Cloture Rule” or the “Filibuster Rule”) -- which requires a
vote of sixty senators to proceed with or close debate on bills
or presidential nominations and a two-thirds vote to proceed
with or close debate on proposed amendments to the Senate Rules
-- is unconstitutional because it is “inconsistent with the
principle of majority rule.” In the alternative, Plaintiffs
challenge Senate Rule V, which provides that the Senate’s rules
continue from one Congress to the next, unless amended. Pending
before the Court is Defendants’ Motion to Dismiss pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Defendants make three arguments: (1) Plaintiffs lack standing to
bring this suit; (2) the Speech or Debate Clause bars this suit;
and (3) the Complaint presents a non-justiciable political
question.
The Court acknowledges at the outset that the Filibuster
Rule is an important and controversial issue. As Plaintiffs
allege, in recent years, even the mere threat of a filibuster is
powerful enough to completely forestall legislative action.
However, this Court finds itself powerless to address this issue
for two independent reasons. First, the Court cannot find that
any of the Plaintiffs have standing to sue. Standing is the
bedrock requirement of an Article III court’s jurisdiction to
resolve only those cases that present live controversies. While
the House Members have presented a unique posture, the Court is
not persuaded that their alleged injury -- vote nullification --
falls into a narrow exception enunciated by the Supreme Court in
Raines v. Byrd. And none of the other Plaintiffs have
demonstrated that this Court can do anything to remedy the
alleged harm they have suffered: the inability to take advantage
of the opportunity to benefit from proposed legislation that was
never debated, let alone enacted. The Court is even less
2
persuaded that the Plaintiffs possess a “procedural” right,
grounded in the text of the Constitution, that entitles them to
the majority enactment of legislation. Second, and no less
important, the Court is firmly convinced that to intrude into
this area would offend the separation of powers on which the
Constitution rests. Nowhere does the Constitution contain
express requirements regarding the proper length of, or method
for, the Senate to debate proposed legislation. Article I
reserves to each House the power to determine the rules of its
proceedings. And absent a rule’s violation of an express
constraint in the Constitution or an individual’s fundamental
rights, the internal proceedings of the Legislative Branch are
beyond the jurisdiction of this Court.
Accordingly, upon consideration of Defendants’ Motion to
Dismiss, the response and reply thereto, the supplemental briefs
filed by the parties, the arguments made at the hearing held on
December 10, 2012, the relevant law, the entire record in this
case, and for the reasons stated below, the Court will GRANT
Defendants’ Motion to Dismiss.
I. BACKGROUND
A. History of the Cloture Rule
The Complaint sets forth the following background regarding
the history of the Cloture Rule. At the time the Constitution
was adopted, there was no recognized “right” on the part of
3
members of legislative or other parliamentary bodies to engage
in unlimited debate over the objections of the majority (i.e.,
to “filibuster”). Compl. ¶ 20. Under the established rules of
parliamentary procedure that prevailed both in England and in
the Continental Congress prior to the adoption of the
Constitution, the majority had the power to end a debate and
bring a measure to an immediate vote at any time over the
objection of the minority by adopting a “motion for the previous
question.” Id. ¶ 21. The Articles of Confederation were an
exception, however; under the Articles of Confederation, voting
was by state, and the “United States in Congress” was unable to
take action without a supermajority vote of nine of the thirteen
states. Id. ¶ 24. Because the Framers of the Constitution had
observed first-hand the paralysis caused by the supermajority
voting requirement in the Articles of Confederation, the Framers
refused to require more than a majority, either as a condition
of a quorum or for the passage of legislation under the proposed
new constitution. Id. ¶ 25. Only six exceptions to the
principle of majority rule were expressly enumerated in the
Constitution.1
1
(1) Impeachments, U.S. Const. art. 1, § 3, cl. 6; (2)
expelling members, U.S. Const. art. 1, § 5, cl. 2; (3)
overriding a Presidential veto of a bill, U.S. Const. art. 1 , §
7, cl. 2; (4) overriding a Presidential veto of an Order,
Resolution or Vote, U.S. Const. art. 1, § 7, cl. 3; (5)
ratification of treaties by the Senate, U.S. Const. art. 2, § 2,
4
The first rules adopted by the Senate in 1789 adopted the
previous question motion. Id. ¶ 37. In 1806, however, the
previous question motion was eliminated from the rules of the
Senate, apparently at the urging of Vice President Aaron Burr,
who, in his farewell address before the Senate in 1805,
suggested that the previous question motion was unnecessary
because it had been invoked only once during the four years that
he had presided over the Senate. Id. ¶ 38. From 1806 until
1917, the Senate had no rule that allowed the majority to limit
debate or terminate a filibuster. Despite the absence of a rule
for limiting debate, filibusters were relatively rare during
this period and occurred at an average rate of one every three
years between 1840 and 1917. Id. ¶ 40. In 1917, however, after
a small minority of senators filibustered a bill authorizing
President Wilson to arm American merchant ships, leading to
public outrage, the Senate adopted the predecessor to the
current Cloture Rule. Id. ¶¶ 41-43. The 1917 rule required a
two-thirds vote of the Senate to end debate. Id. ¶ 45.
Filibusters remained relatively rare from 1917 to 1970.
cl. 2; and (6) amendments to the Constitution, U.S. Const. art.
V. In addition, two exceptions were subsequently added by
amendment: (1) removal of the disability to hold public office
of any person who engaged in insurrection or rebellion against
the United States, U.S. Const. amend. XIV, § 3; and (2) a
determination that the President is unable to discharge the
powers and duties of his office, U.S. Const. amend. XXV, § 4.
See Compl. ¶¶ 26-27.
5
The Cloture Rule was not amended again until 1975, when the
Senate agreed to a compromise amendment to Rule XXII. The
amendment changed the number of votes required for cloture from
two-thirds of senators present and voting to three-fifths of the
Senate, not merely those present and voting (i.e., sixty votes).
In addition, the amendment provided that cloture on motions to
amend the Senate’s rules would continue to require a vote of
two-thirds of senators present and voting. The number of votes
required to invoke cloture has not changed since 1975. See
Defs.’ Mem. of P. & A. in Supp. of Mot. to Dismiss (“Defs.’
Mem.”) at 8. Rule XXII of the Standing Rules of the Senate
provides in pertinent part as follows:
[A]t any time a motion signed by sixteen Senators, to bring
to a close the debate upon any measure . . . is presented
to the Senate, the Presiding Officer, or clerk at the
direction of the Presiding Officer, shall at once state the
motion to the Senate, and . . . he shall lay the motion
before the Senate and direct that the clerk call the roll,
and upon the ascertainment that a quorum is present, the
Presiding Officer shall, without debate, submit to the
Senate by a yea-and-nay vote the question:
“Is the sense of the Senate that the debate shall be
brought to a close?” And if that question shall be decided
in the affirmative by three-fifths of the Senators duly
chosen and sworn -- except on a measure or motion to amend
the Senate rules, in which case the necessary affirmative
vote shall be two-thirds of the Senators present and voting
-- then said measure . . . shall be the unfinished business
to the exclusion of the all other business until disposed
of.
Standing Rules of the Senate Rule XXII § 2; see also Compl. ¶
16. Rule V states that the “rules of the Senate shall continue
6
from one Congress to the next Congress unless they are changed
as provided in these rules.” Standing Rules of the Senate Rule
V § 2.
The number of actual or threatened filibusters has
increased dramatically since 1970, and now dominates the
business of the Senate. Compl. ¶ 47. In 2009, there were a
record sixty-seven filibusters in the first half of the 111th
Congress -- double the number of filibusters that occurred in
the entire twenty-year period between 1950 and 1969. By the
time the 111th Congress adjourned in December 2010, the number
of filibusters had swelled to 137 for the entire two-year term
of the 111th Congress. Id. ¶ 50. During the 111th Congress,
over four hundred bills that had been passed by the House of
Representatives -- many with broad bipartisan support -- died in
the Senate without ever having been debated or voted on because
of the inability to obtain the sixty votes required by Rule
XXII. Id. ¶ 52.
B. Allegations in the Complaint
The Complaint is brought by three groups of Plaintiffs.
Plaintiff Common Cause is a non-profit corporation formed “to
serve as a grass roots ‘citizens lobby’ to promote the adoption
of campaign finance, disclosure and other election reform
legislation by Congress and by state and local governments.”
Id. ¶ 9(A). Plaintiffs John Lewis, Michael Michaud, Henry
7
(“Hank”) Johnson, and Keith Ellison (the “House Member
Plaintiffs”), are members of the House of Representatives
representing Georgia, Maine, Georgia, and Minnesota,
respectively. Id. ¶ 9(B). Finally, Plaintiffs Erika Andiola,
Celso Mireles, and Caesar Vargas (the “DREAM Act Plaintiffs”),
are three U.S. residents who were born in Mexico, brought to the
United States by their families when they were children, and
subsequently graduated from college and obtained employment.
Id. ¶ 9(C). Each group of Plaintiffs alleges that it has
suffered injury due to the Cloture Rule preventing a majority in
the Senate from closing debate on and passing legislation that
would have benefitted the Plaintiffs -- specifically, the
DISCLOSE Act, a campaign finance reform bill, and the DREAM Act,
an immigration reform bill. See id. ¶¶ 9(D)-(E).
Plaintiffs allege that the Cloture Rule “replaces majority
rule with rule by the minority by requiring the affirmative
votes of 60 senators on a motion for cloture before the Senate
is allowed to even debate or vote on” measures before it. Id. ¶
2. According to Plaintiffs, “[b]oth political parties have used
Rule XXII when they were in the minority in the Senate to
prevent legislation and appointments proposed by the opposing
party from being debated or voted on by the Senate.” Id. ¶ 4.
Plaintiffs further assert that Rule XXII has primarily been used
“not to protect the right of the minority to debate the merits
8
of a bill or the fitness of a presidential nominee on the floor
of the Senate . . . , but to suppress and prevent the majority
from debating the merits of bills or presidential appointments
opposed by the minority.” Id. ¶ 7 (emphasis in original).
“Actual or threatened filibusters (or objections to the
commencement of debate which are the functional equivalent of a
filibuster) have become so common that it is now virtually
impossible as a practical matter for the majority in the Senate
to pass a significant piece of legislation or to confirm many
presidential nominees without the 60 votes required to invoke
cloture under Rule XXII.” Id. ¶ 18. Plaintiffs allege that
because invoking cloture is “time consuming and cumbersome,” the
mere threat of a filibuster is sufficient to forestall
consideration of a measure. Id. ¶ 15. Furthermore, because
Senate Rule V provides that Senate rules continue from one
Congress to the next, and because invoking cloture to close
debate on any resolution to amend Senate rules requires the
affirmative vote of two-thirds of Senators present and voting,
Plaintiffs assert that “the combination of Rule V and Rule XXII
has made it virtually impossible for the majority in the Senate
to amend the rules of the Senate to prevent the minority in the
Senate from obstructing the business of the Senate by
filibustering.” Id. ¶ 19.
9
The Complaint asserts that the Filibuster Rule is invalid
because it conflicts with the following constitutional
provisions and/or principles: the Senate’s Rulemaking Power,
U.S. Const. art. I, § 5, cl. 2, Compl. ¶¶ 57-59; the Quorum
Clause, U.S. Const. art. 1, § 5, id. ¶ 60(a); the Presentment
Clause, U.S. Const. art. I, § 7, id. ¶ 60(b); “the exclusive
list of exceptions” to majority rule, id. ¶ 60(c); the power of
the Vice President to vote when the Senate is “equally divided,”
U.S. Const. art. I, § 3, cl. 4, id. ¶ 60(d); the Advice and
Consent Clause, U.S. Const. art. II, § 2, cl. 2, id. ¶ 60(e);
the “equal representation of each state in the Senate,” id. ¶
60(f); “the finely wrought and exhaustively considered balance
of the Great Compromise” regarding representation of states in
Congress, id. ¶¶ 62-70 (internal quotation marks and citation
omitted); the power of the Senate “to adopt or amend its rules
by majority vote,” id. ¶ 74; and “the fundamental constitutional
principle that prohibits one Congress (or one house of Congress)
from binding its successors,” id. ¶ 75. Plaintiffs seek the
entry of a declaratory judgment, pursuant to 28 U.S.C. § 2201,
declaring the supermajority vote portions of Rule XXII
unconstitutional. Plaintiffs request that the Court sever the
unconstitutional portions of that Rule and declare that a vote
of a simple majority is all that is required to invoke cloture.
Secondarily, and in the alternative, Plaintiffs seek the entry
10
of a judgment declaring Rule V unconstitutional to the extent
that it prohibits the Senate from amending its rules by majority
vote.
C. Procedural Background
On May 14, 2012, Plaintiffs filed their Complaint against
Vice President Joseph R. Biden, Jr., in his official capacity as
President of the Senate, Nancy Erickson, in her official
capacity as Secretary of the Senate, Elizabeth MacDonough, in
her official capacity as Parliamentarian of the Senate, and
Terrance Gainer, in his official capacity as Sergeant-at-Arms of
the Senate. Defendants filed a Motion to Dismiss on July 20,
2012, and the Court heard argument on the motion on December 10,
2012. The motion is ripe for determination by the Court.
II. STANDARD OF REVIEW
Federal district courts are courts of limited jurisdiction,
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994),
and a Rule 12(b)(1) motion for dismissal presents a threshold
challenge to a court’s jurisdiction, Haase v. Sessions, 835 F.2d
902, 906 (D.C. Cir. 1987). On a motion to dismiss for lack of
subject matter jurisdiction, the plaintiff bears the burden of
establishing that the Court has jurisdiction. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). In evaluating
such a motion, the Court must “accept[] all of the factual
allegations in [the] complaint as true,” Jerome Stevens Pharms.,
11
Inc. v. FDA, 402 F.3d 1249, 1250 (D.C. Cir. 2005) (citation
omitted), but the Court “is not required . . . to accept
inferences unsupported by the facts alleged or legal conclusions
that are cast as factual allegations,” Cartwright Int’l Van
Lines, Inc. v. Doan, 525 F. Supp. 2d 187, 193 (D.D.C. 2007)
(citation omitted). In addition, the Court may consider
materials outside the pleadings where necessary to resolve
disputed jurisdictional facts. Herbert v. Nat’l Acad. of Scis.,
974 F.2d 192, 197 (D.C. Cir. 1992).2
III. ANALYSIS
The Court first addresses Plaintiffs’ standing to sue.3 The
Court finds that Plaintiffs’ attempt to invoke procedural
2
The Court follows the weight of authority in the D.C.
Circuit in construing the political question doctrine as a
threshold challenge to the Court’s jurisdiction pursuant to Rule
12(b)(1). See, e.g., Lin v. United States, 561 F.3d 502, 504
(D.C. Cir. 2009) (affirming dismissal of complaint for lack of
subject matter jurisdiction based on the political question
doctrine); Schneider v. Kissinger, 412 F.3d 190, 193 (D.C. Cir.
2005) (“The principle that the courts lack jurisdiction over
political decisions that are by their nature committed to the
political branches to the exclusion of the judiciary is as old
as the fundamental principle of judicial review.” (internal
quotation marks and citation omitted)). Even were the Court to
treat political question doctrine as a Rule 12(b)(6) ground,
rather than a Rule 12(b)(1) challenge to the Court’s
jurisdiction, the Court would nonetheless conclude that it lacks
authority to decide this case.
3
Although the Court may dismiss the Complaint on any
jurisdictional threshold ground, see Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 585 (1999), the D.C. Circuit has counseled
that standing should be addressed before political question
doctrine, see Reuss v. Balles, 584 F.2d 461, 465 n.14 (D.C. Cir.
12
standing fails because Plaintiffs have failed to identify a
procedural right that protects their concrete, particularized
interests. In addition, each group of plaintiffs has failed to
demonstrate Article III standing because they have not
demonstrated an injury-in-fact that is caused by the Cloture
Rule and that would be redressable by any action of this Court.
Finally, the Court finds that this case presents a non-
justiciable political question and that dismissal is appropriate
on that basis as well.
A. Standing
Article III of the Constitution restricts the jurisdiction
of the federal courts to adjudicating actual “cases” and
“controversies.” U.S. Const. art. III, § 2; see also Allen v.
Wright, 468 U.S. 737, 750 (1984). 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)); see also Valley Forge
Christian Coll. v. Ams. United for Separation of Church and
State, 454 U.S. 464, 471 (1982). One aspect of this “case-or-
controversy” requirement is that plaintiffs must have standing
to sue, an inquiry that focuses on whether the litigant is
1978). Indeed, the Supreme Court has stated that standing is
“the most important of the jurisdictional doctrines.” FW/PBS,
Inc. v. Dallas, 493 U.S. 215, 231 (1990) (citation omitted).
13
entitled to have the court decide the merits of the dispute.
Allen, 468 U.S. at 750-51 (quoting Warth, 422 U.S. at 498).
To establish the “irreducible constitutional minimum” of
Article III standing, a plaintiff must show that: (1) he has
suffered an “injury in fact” which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical; (2) there is a causal connection between the
alleged injury and the conduct complained of that is fairly
traceable to the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed by a
favorable decision. Lujan, 504 U.S. at 560-61 (citations
omitted). The standing inquiry is “especially rigorous when
reaching the merits of the dispute would force [the Court] to
decide whether an action taken by one of the other two branches
of the Federal Government was unconstitutional.” Raines v.
Byrd, 521 U.S. 811, 819-20 (1997). If the Court finds that one
of the Plaintiffs has standing, it need not consider the
standing of the other Plaintiffs. See Tozzi v. Dep’t of Health
and Human Servs., 271 F.3d 301, 310 (D.C. Cir. 2001). In
assessing Plaintiffs’ standing, the Court assumes that
Plaintiffs will prevail on the merits of their constitutional
claims. See Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1105
(D.C. Cir. 2008).
14
1. Procedural Standing
Plaintiffs argue that they have procedural standing, a more
relaxed version of the standing doctrine. See Pls.’ Opp’n to
Mot. to Dismiss (“Pls.’ Opp’n”) at 31-33. “The person who has
been accorded a procedural right to protect his concrete
interests can assert that right without meeting all the normal
standards for redressability and immediacy.” Lujan, 504 U.S. at573 n.7. As the D.C. Circuit has recognized, “where plaintiffs
allege injury resulting from violation of a procedural right
afforded to them by statute and designed to protect their
threatened concrete interest, the courts relax--while not wholly
eliminating--the issues of imminence and redressability, but not
the issues of injury in fact or causation.” Center for Law and
Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005).
Thus, the D.C. Circuit has held that plaintiffs have procedural
standing only if, inter alia, (1) the government violated their
procedural rights designed to protect their threatened, concrete
interest, and (2) the violation resulted in injury to their
concrete, particularized interest. Id. However, the procedural
standing doctrine “does not -- and cannot -- eliminate any of
the ‘irreducible’ elements of standing[.]” Fla. Audubon Soc’y
v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996). For the reasons
discussed below, the Court concludes that Plaintiffs have failed
to demonstrate that they have a “procedural right” to enactment
15
of legislation by a simple majority. Moreover, Plaintiffs have
failed to show that any such right was designed to protect their
particularized interest.
In Lujan, the Supreme Court offered two examples of
procedures designed to protect a party’s concrete interest: (1)
the requirement for a hearing prior to a denial of a license
application is designed to protect the applicant, and (2) the
requirement that a federal agency prepare an environmental
impact statement before conducting a major federal action such
as constructing a dam is designed to protect neighbors of the
proposed dam. See 504 U.S. at 572. Thus, for example, the D.C.
Circuit has found procedural standing where a plaintiff alleged
that the FAA authorized certain runway use at a local airport
without performing an environmental assessment. The court
stated “[t]he procedural requirements of NEPA were designed to
protect persons . . . who might be injured by hasty federal
actions taken without regard for possible environmental
consequences. . . . And [plaintiff] has adequately demonstrated
that the FAA’s failure to follow the NEPA procedures poses a
‘distinct risk’ to his ‘particularized interests’--given the
location of his home, he is uniquely susceptible to injury
resulting from increased use of the secondary runways.” City of
Dania Beach v. FAA, 485 F.3d 1181, 1186 (D.C. Cir. 2007)
(citation omitted).
16
Here, Plaintiffs argue that they are asserting procedural
rights based upon “the procedures governing the enactment of
statutes set forth in the text of Article I.” Pls.’ Opp’n at 32
(relying on INS v. Chadha, 462 U.S. 919 (1983) and Clinton v.
New York, 524 U.S. 417 (1998)). According to Plaintiffs, the
Presentment Clause, Article I, section 7, is the “only []
procedure [prescribed by the Constitution] for the passage of
laws.” Id. at 1.4 Plaintiffs further allege that although the
Presentment Clause does not create an individual right to have a
bill passed by the Senate, it does create a procedural right to
have the bill fairly considered by the majority in the Senate.
See id. at 2.
However, Plaintiffs identify no authority for the
proposition that an individual has a “procedural right” to any
particular form of congressional consideration or debate on a
bill. The Supreme Court cases on which Plaintiffs purport to
rely do not address procedural standing and thus are not
instructive on this issue. For example, in Chadha, the Supreme
Court held that a provision of the Immigration and Nationality
4
The Presentment Clause, Article I, section 7 states, in
relevant part: “Every bill which shall have passed the House of
Representatives and the Senate, shall, before it becomes a Law,
be presented to the President of the United States.” Plaintiffs
also rely on the Quorum Clause, Article I, section 5, clause 1,
which states: “a Majority of each [House] shall constitute a
Quorum to do Business.”
17
Act that authorized the House of Representatives alone, by
resolution, to invalidate an immigration decision of the
Executive Branch (the “one-House veto”) was unconstitutional
because it violated the Presentment Clause. See 462 U.S. at
952-58. Similarly, in Clinton, the Supreme Court ruled
unconstitutional the Line Item Veto Act, which gave the
President the power to cancel certain types of statutory
spending and tax provisions after they had been signed into law.
See 524 U.S. at 448-49. Plaintiffs rely on the Court’s analysis
of the merits in both cases. The Court recognized that the
Presentment Clause’s requirement that legislative action be
passed by both Houses and then presented to the President
“represents the Framers’ decision that the legislative power of
the Federal Government be exercised in accord with a single,
finely wrought and exhaustively considered, procedure.” Chadha,
462 U.S. at 951; see also Clinton, 524 U.S. at 440. Nowhere in
either case, however, did the Court analyze whether or not the
Constitution, and more specifically Article I, confers an
individual procedural right sufficient for standing.
More importantly, however, Plaintiffs’ attempt to invoke
procedural standing fails because they are unable to demonstrate
that any alleged procedural right to majority consideration of
proposed legislation is designed to protect Plaintiffs’
particularized, concrete interests. As the D.C. Circuit has
18
recognized, not all procedural-rights violations are sufficient
for standing; a plaintiff must show that “the procedures in
question are designed to protect some threatened concrete
interest of his that is the ultimate basis of his standing.”
Center for Law and Educ., 396 F.3d at 1157 (citing Lujan, 504
U.S. at 573 n.8). “[D]eprivation of a procedural right without
some concrete interest that is affected by the deprivation--a
procedural right in vacuo--is insufficient to create Article III
standing.” Summers v. Earth Island Inst., 555 U.S. 488, 496
(2009).
Plaintiffs assert that “structural constitutional limits
are designed to ‘protect the individual.’” Pls.’ Opp’n at 33
(quoting Bond v. United States, 131 S. Ct. 2355, 2365 (2011)).
Bond, however, does not involve procedural standing and is
distinct from the instant case. In Bond, the plaintiff, who had
been convicted of a federal crime, challenged the statute under
which she was convicted as a violation of the Tenth Amendment.
The Court stated that “it [was] clear” Ms. Bond had Article III
standing because she was injured by the statute when she was
convicted of a federal crime; and indeed, the Court’s
invalidation of the statute would redress that harm. See 131 S.
Ct. at 2361-62. The issue in Bond was whether the individual
plaintiff, rather than a State, was the proper party to bring a
Tenth Amendment challenge, a question of prudential standing,
19
not procedural standing. See id. at 2360, 2363-64. The Supreme
Court stated:
An individual has a direct interest in objecting to laws
that upset the constitutional balance between the National
Government and the States when the enforcement of those
laws causes injury that is concrete, particular, and
redressable. . . . The recognition of an injured person’s
standing to object to a violation of a constitutional
principle that allocates power within government is
illustrated . . . by cases in which individuals sustain
discrete, justiciable injury from actions that transgress
separation-of-powers limitations.
Id. at 2364-65 (emphasis added). Bond stands for the
proposition that where a plaintiff has already suffered an
Article III injury-in-fact due to a statute, that individual can
challenge the statute’s validity under the Constitution. See
id. at 2365 (“[I]ndividuals, too, are protected by the
operations of separation of powers and checks and balances; and
they are not disabled from relying on those principles in
otherwise justiciable cases and controversies.” (emphasis
added)). It does not stand for the proposition that the
Constitutional principle of separation of powers confers an
individual right that is sufficient to meet the more relaxed
requirements of procedural standing.5
5
The case is also factually distinct because the Court
could redress Ms. Bond’s injury, whereas here, this Court cannot
redress Plaintiffs’ deprivation of the opportunity to benefit
from legislation that was never enacted, as will be discussed in
more detail infra Part III.A.2.a.
20
Beyond their inability to point to a precise procedural
right conferred by Article I, Plaintiffs do not point to a
concrete interest, particular to these Plaintiffs, that Article
I of the Constitution was designed to protect. The Court
therefore concludes that Plaintiffs have not demonstrated
procedural standing.
2. Article III Standing
As noted above, to demonstrate Article III standing, a
plaintiff must establish a concrete and particularized injury,
which is fairly traceable to the alleged illegal action, and
likely to be redressed by a favorable decision. Lujan, 504 U.S.
at 560-61. Plaintiffs assert that all three groups of
Plaintiffs have Article III standing. Because the DREAM Act
Plaintiffs and Common Cause present common issues of law with
respect to the standing inquiry, the Court analyzes standing as
to these two groups together, and considers the standing of the
House Member Plaintiffs separately below.
a. DREAM Act Plaintiffs and Common Cause
Both the DREAM Act Plaintiffs and Common Cause allege that
the Cloture Rule injured them by depriving them of the
“opportunity to benefit” from the DREAM and DISCLOSE Acts. See
Pls.’ Opp’n at 46-48, 55-57 (citing, e.g., N.E. Fla. Chapter of
Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S.
656 (1993); CC Distribs., Inc. v. United States, 883 F.2d 146,
21
150 (D.C. Cir. 1989) (“[A] plaintiff suffers a constitutionally
cognizable injury by the loss of an opportunity to pursue a
benefit . . . even though the plaintiff may not be able to show
that it was certain to receive that benefit had it been accorded
the lost opportunity.”)).6 Plaintiffs emphasize that they are
not alleging a “substantive right” to either bill, but rather
that their injury arises out of “the Senate’s use of
unconstitutional procedures to block a bill that would have
benefitted plaintiffs.” Pls.’ Opp’n at 48; see also id. at 43-
6
Common Cause asserts that it has organizational standing.
For an organization to have standing in its own right, it must
meet the same requirements of individual standing: injury-in-
fact, causation, and redressability. See Havens Realty Corp. v.
Coleman, 455 U.S. 363, 378-79 (1982); Nat’l Treasury Emps. Union
v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). In the
Complaint, Common Cause also alleged associational standing.
See Compl. ¶ 9(D)(1). An association may have standing to sue
on behalf of its members if “(1) at least one of its members
would have standing to sue in his own right, (2) the interests
the association seeks to protect are germane to its purpose, and
(3) neither the claim asserted nor the relief requested requires
that an individual member of the association participate in the
lawsuit.” Sierra Club v. EPA, 292 F.2d 895, 898 (D.C. Cir.
2002). In their Motion to Dismiss, Defendants argued that
Common Cause did not meet the requirements of associational
standing because it had not specifically identified any of its
members who suffered the requisite harm. See Defs.’ Mem. at 22-
23. Plaintiffs did not respond to this argument in their
Opposition. The Court therefore finds that Plaintiffs have
conceded that they do not have associational standing. See
Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.
Supp. 2d 15, 25 (D.D.C. 2003), aff’d, 98 F. App’x 8 (D.C. Cir.
2004) (“It is well understood in this Circuit that when a
plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a
court may treat those arguments that the plaintiff failed to
address as conceded.” (citation omitted)).
22
44 (“The use of Rule XXII to illegally block the DISCLOSE Act
during the 111th Congress--in violation of the procedures
governing the enactment of statutes--injured Common Cause as an
organization because Common Cause diverted staff, time, and
resources to combatting the effects of secret expenditures by
Super PACs that would have been prohibited by the DISCLOSE
Act.”).
The Court is not persuaded that Plaintiffs’ alleged injury
is akin to a deprivation of a contracting opportunity, as
recognized by City of Jacksonville and its progeny. In those
cases, although the plaintiff did not have to show that it would
have obtained the particular benefit at issue, it still had to
show that its injury was “certainly impending.” See, e.g.,
Adarand Constrs., Inc. v. Pena, 515 U.S. 200, 211-12 (1995).
Neither the DREAM Act nor the DISCLOSE Act was ever debated by
the Senate, let alone enacted into law. And Plaintiffs’
assertion that the bills are likely to be re-introduced does not
demonstrate that the bills will ever be enacted by the House and
the Senate and signed by the President. As a result, there is
no existing or certainly impending opportunity from which
Plaintiffs could benefit, but for the Cloture Rule. Any injury
is therefore hypothetical, rather than concrete.7 As Defendants
7
Cf. Clinton, 524 U.S. at 432 (“[Plaintiffs] suffered an
immediate injury when the President canceled the limited tax
23
argue, to recognize such an injury as sufficient for Article III
standing would potentially permit standing for any individual
who would have benefitted from any piece of legislation that
passed one House of Congress but not the other.8
Even were the Court persuaded that this was sufficient to
demonstrate an injury-in-fact, however, neither the DREAM Act
Plaintiffs nor Common Cause can show causation or redressability
benefit that Congress had enacted to facilitate the acquisition
of processing plants. . . . Congress enacted § 968 for the
specific purpose of providing a benefit to a defined category of
potential purchasers of a defined category of assets. The
members of that statutorily defined class received the
equivalent of a statutory ‘bargaining chip’ to use in carrying
out the congressional plan to facilitate their purchase of such
assets. . . . [Plaintiffs] had concrete plans to utilize the
benefits of § 968 . . . By depriving them of their statutory
bargaining chip, the cancellation inflicted a sufficient
likelihood of economic injury to establish standing under our
precedents.”).
8
Common Cause also has not demonstrated a sufficient injury
to its organizational mission. An organization seeking to
establish Havens standing must show a “direct conflict between
the defendant’s conduct and the organization’s mission.” Nat’l
Treasury Emps. Union, 101 F.3d at 1430; see also ASPCA v. Feld
Entm’t, Inc., 659 F.3d 13, 25 (D.C. Cir. 2011). According to
Plaintiffs, the DISCLOSE Act’s defeat “undoubtedly set back
Common Cause’s mission of encouraging transparency in elections.
. . . Common Cause must now independently investigate each
individual Super PAC to learn what the DISCLOSE Act would have
automatically required.” Pls.’ Opp’n at 55-56. However, Common
Cause has shown no direct conflict between the allegedly illegal
conduct -- use of the Cloture Rule -- and the organization’s
mission -- encouraging transparency in elections. Rather, the
use of the Cloture Rule is but an intermediate step that
prevented a benefit to the organization’s activities.
Plaintiffs cite no authority that supports such an attenuated
injury as sufficient for purposes of organizational standing.
24
for similar reasons. As another Judge on this Court stated with
respect to an earlier challenge to the Cloture Rule:
There is no guarantee that, but for the cloture rule, the
legislation favored by [plaintiff] would have passed the
Senate; that similar legislation would have been enacted by
the House of Representatives; and that the President would
have signed into law the version passed by the Senate.
There are too many independent actors and events in the
span between a cloture vote and the failure to pass
legislation to characterize the connection as direct.
Page v. Shelby, 995 F. Supp. 23, 29 (D.D.C. 1998), aff’d without
op., 172 F.3d 920 (D.C. Cir. 1998). Not only have Plaintiffs
failed to demonstrate that the DREAM and DISCLOSE Acts would
have passed but for the Cloture Rule,9 but they also have not
9
Plaintiffs allege that at this stage, the Court must
accept as true Plaintiffs’ claim that the DREAM and DISCLOSE
Acts would have passed the Senate but for the Cloture Rule. See
Compl. ¶ 9(D)(1)(b) (“The DISCLOSE Act . . . had the support of
59 senators and the President . . . .”); id. ¶ 9(D)(2)(a)-(b);
id. ¶ 9(E)(1) (“[T]he DREAM Act had the support of a clear
majority of 55 senators and the support of the President.”).
However, this was the number of votes in favor of cloture, not
in favor of the ultimate passage of the bills. See Compl. at 6
n.3 (“Both bills . . . were supported by . . . a majority of
senators (as evidenced by the fact that both bills received 59
and 55 votes, respectively, in the Senate on motions for
cloture)[.]”). A vote in favor of cloture is not necessarily a
guarantee of ultimate support for a bill. See, e.g., Defs.’
Mem. at 36 n.29 (providing examples of instances in which
senators voted for cloture and then did not vote on the bills’
passage and vice versa). Although the Court accepts as true
Plaintiffs’ factual allegations about the number of Senators who
supported cloture, the allegation that the bills would have
passed the Senate is the type of conclusory allegation that the
Court need not accept, even at the motion-to-dismiss stage.
Cartwright Int’l Van Lines, 525 F. Supp. 2d at 193 (“In
evaluating a motion to dismiss for lack of subject-matter
jurisdiction, the court must accept the complaint’s well-pled
factual allegations as true and construe all reasonable
25
persuaded the Court that they necessarily would have benefitted
from those Acts. For example, although Plaintiffs allege that
each of the DREAM Act Plaintiffs met the requirements of the
DREAM Act considered by the previous Congress, see Compl. ¶
9(C)(1), Defendants argue that the ultimate determination would
have been at the discretion of the Secretary of Homeland
Security, see Defs.’ Mem. at 29 (citing H.R. 5281, 111th Cong. §
6(a)(1) (2010) (“Secretary of Homeland Security may cancel
removal of an alien . . .”)). The connection between the
Senate’s debate over proposed legislation, or lack thereof, and
Plaintiffs’ inability to benefit from the opportunities that
legislation would have offered is simply too tenuous to support
standing.
Finally, even if the Court could declare unconstitutional
and sever the sixty vote requirement from the Cloture Rule, that
relief would not redress Plaintiffs’ alleged injuries because it
would not provide them with the opportunity to benefit from the
DREAM Act or the DISCLOSE Act.10 Plaintiffs argue that because
inferences in the plaintiff’s favor. The court is not required,
however, to accept inferences unsupported by the facts alleged
or legal conclusions that are cast as factual allegations.”
(internal quotation marks and citation omitted)).
10
Nor would declaring Rule V unconstitutional redress
Plaintiffs’ injuries. Not only would this remedy not provide
any guarantee with respect to the DREAM and DISCLOSE Acts, which
died in the last Congress, but it also would not necessarily
ensure that the Senate would change Rule XXII to provide for
26
they have articulated a procedural right, removing a procedural
barrier will redress that violation. See Pls.’ Opp’n at 61-62.
However, as discussed supra Part III.A.1., Plaintiffs cannot
demonstrate that they have a procedural right to majority
consideration of legislation, and their attempt to recast the
relief they seek as the ability to have debate on bills is
nothing more than a generalized grievance. Plaintiffs further
contend that it is likely that severing the sixty vote
requirement from the Cloture Rule will allow the passage of both
bills: “Since the 111th Congress, multiple DREAM Act bills have
been reintroduced. . . . Likewise, the DISCLOSE Act has been
reintroduced.” Pls.’ Opp’n at 62 (citations omitted). The
Court is not in a position, however, to determine or predict
what action the Senate would take in a final vote on either
proposed bill, much less what action would be taken by the House
of Representatives and the President. Fundamentally,
Plaintiffs’ inability to demonstrate all three of the requisite
Article III standing elements is based upon the same fatal flaw:
they cannot show that the invalidation of the Cloture Rule has
any connection to, or will have any connection to, their ability
to benefit from a particular piece of legislation. The Court
majority cloture. This relief is therefore even more
speculative than a declaratory judgment with respect to Rule
XXII.
27
concludes, therefore, that it is merely speculative that
Plaintiffs’ alleged injury would be redressed by a favorable
decision.11
b. House Member Plaintiffs
Plaintiffs assert that the House Members have been injured
because the Cloture Rule nullified votes they personally cast in
favor of the DREAM Act and the DISCLOSE Act. See Pls.’ Opp’n at
49.12 Defendants contend that standing based on this claim of
11
Plaintiffs also assert that the Cloture Rule impacted the
DREAM Act Plaintiffs’ concrete interests in avoiding deportation
and obtaining a path to citizenship. See Pls.’ Opp’n at 44.
Although the Court does not seek to diminish the seriousness of
that injury, it cannot find such an allegation sufficient for
standing here because Plaintiffs cannot show that the Cloture
Rule was the cause of that harm. That is, the DREAM Act
Plaintiffs are not being denied a path to citizenship because of
the Cloture Rule; rather, their injury pre-dates the Senate’s
consideration of that Act and is the result of existing
immigration law. Nor can the DREAM Act Plaintiffs demonstrate
that this Court’s invalidation of the Cloture Rule’s
supermajority requirement would redress that harm -- no
prospective action by this Court can revive the DREAM Act, and
it is speculative whether the House, Senate and President will
agree to enact the same legislation in the future.
12
The House Member Plaintiffs additionally claim they have
suffered an informational injury because the failure of the
DISCLOSE Act to pass prevented the House Members from being able
to access critical information about the identities of parties
financing negative ads in those House Members’ campaigns. See
Pls.’ Opp’n at 54-55. However, an informational injury suffices
for standing purposes only when the complaining party “fails to
obtain information which must be publicly disclosed pursuant to
a statute.” FEC v. Akins, 524 U.S. 11, 21 (1998); see also
Shays v. FEC, 528 F.3d 914, 923 (D.C. Cir. 2008) (holding that a
Member of Congress had standing in his capacity as a candidate
for office to challenge an FEC rule that allegedly denied him
information that a statute, the Bipartisan Campaign Reform Act
28
injury is precluded by the Supreme Court’s ruling in Raines, 521
U.S. 811. See Defs.’ Mem. at 24. The Court is not persuaded
that the House Members’ alleged injury constitutes vote
nullification for two independent reasons: (1) this case is
factually distinguishable from the “narrow” exception recognized
by the Supreme Court, and (2) it arises in the federal context,
which raises fatal separation-of-powers concerns.
In Raines, four Senators and two Representatives who had
voted against the Line Item Veto Act brought suit challenging
the Act’s constitutionality. The Act gave the President
authority to “cancel” certain spending and tax benefit measures
after they had been enacted into law. See 521 U.S. at 814-15.
The plaintiffs claimed that the Act injured them in their
official capacities by “(a) alter[ing] the legal and practical
effect of all votes they may cast on bills” subject to the line
item veto, “(b) divest[ing] [them] of their constitutional role
in the repeal of legislation,” and “(c) alter[ing] the
constitutional balance of powers between the Legislative and
Executive Branches.” Id. at 816. The Supreme Court rejected
these bases for standing, finding that the plaintiffs lacked
of 2002, required be disclosed). Here, by contrast, the House
Member Plaintiffs do not identify a statute that entitles them
to information about the identities of donors to Super PACs.
Instead, they challenge the fact that the particular statute
that would have provided that entitlement was never enacted.
Therefore, Plaintiffs do not assert a sufficient informational
injury for purposes of standing.
29
“concrete injury” because their asserted harm was “a type of
institutional injury (the diminution of legislative power),
which necessarily damages all Members of Congress and both
Houses of Congress equally. . . . [plaintiffs’] claim of
standing is based on a loss of political power, not loss of any
private right, which would make the injury more concrete.” Id.
at 821. Accordingly, the Court concluded that because the
Congress members’ alleged injury was “wholly abstract and widely
dispersed,” and not personal to them as individuals, they did
not allege a sufficient injury in fact to establish Article III
standing. Id. at 829-30. The Court recognized two explicit
exceptions, however: (1) when the Members have been individually
deprived of something they are personally entitled to, as in
Powell v. McCormack, 395 U.S. 486 (1969), see Raines, 521 U.S.
at 821-22, or (2) when the Members’ votes would have been
sufficient to defeat (or enact) a bill which has gone into
effect (or not been given effect) and “their votes have been
completely nullified,” as in Coleman v. Miller, 307 U.S. 433(1939), see Raines, 521 U.S. at 823.
Plaintiffs first argue that their injury is like that in
Powell because the House Member Plaintiffs “personally cast
votes in favor of the DREAM and DISCLOSE Acts” which the
Senate’s Filibuster Rule then nullified, and therefore they “do
not raise a claim shared by every member of Congress, only those
30
who voted for the DREAM and DISCLOSE Acts[.]” Pls.’ Opp’n at
50. Plaintiffs thus assert that they “have been deprived of
something to which they personally are entitled.” Id. (citation
omitted). The Court is not persuaded by this argument. In
Powell, Representative Powell was denied payment of his salary -
- a personal entitlement -- when he was excluded from his House
seat. See 395 U.S. at 493. In contrast, the House Member
Plaintiffs’ votes are powers they exercise in their official
capacities as House Members. Just like in Raines, those votes
are not a personal entitlement. See Raines, 521 U.S. at 821(“Unlike the injury claimed by Congressman Adam Clayton Powell,
the injury claimed by the Members of Congress here is not
claimed in any private capacity but solely because they are
Members of Congress.”).
Plaintiffs next analogize their injury to that in Coleman.
There, twenty of Kansas’ forty state senators voted not to
ratify the proposed Child Labor Amendment to the Federal
Constitution. The vote deadlocked, such that the amendment
ordinarily would not have been ratified; however, the Lieutenant
Governor, the presiding officer of the State Senate, cast a
deciding vote in favor of the amendment, and it was deemed
ratified. The twenty state senators who had voted against the
amendment filed suit seeking a writ of mandamus to compel state
officials to recognize that the legislature had not, in fact,
31
ratified the amendment. See 307 U.S. at 436-37. The Supreme
Court held that the senators had standing because their “votes
against ratification have been overridden and virtually held for
naught although . . . their votes would have been sufficient to
defeat ratification. . . . [T]hese senators have a plain,
direct and adequate interest in maintaining the effectiveness of
their votes.” Id. at 438.
As the Supreme Court recognized in Raines, “our holding in
Coleman stands . . . 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. The Court in Raines distinguished the congressmen’s injury
there, stating “[t]hey have not alleged 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. Here, by contrast, Plaintiffs argue that the House
Member Plaintiffs “voted for two specific bills, that there were
sufficient votes to pass each bill, and that each bill should
have been enacted, but was nonetheless deemed defeated because
of the Senate’s illegal application of Rule XXII.” Pls.’ Opp’n
at 52.
32
The Court acknowledges that this case appears to present a
unique question on vote nullification after Raines. None of the
D.C. Circuit’s post-Raines opinions have addressed the scenario
where members of one House of Congress sued the other. See,
e.g., Campbell v. Clinton, 203 F.3d 19, 22-23 (D.C. Cir. 2000)
(holding that thirty-one congressmen did not have standing based
on a vote nullification theory to challenge the President’s use
of force in Yugoslavia without seeking congressional approval);
Chenoweth v. Clinton, 181 F.3d 112, 115 (D.C. Cir. 1999)
(finding that four congressmen did not have standing to
challenge the President’s use of executive order to enact a new
environmental program, and stating “[i]f, as the Court held in
Raines, a statute that allegedly ‘divests [congressmen] of their
constitutional role’ in the legislative process does not give
standing to sue, then neither does an Executive Order that
allegedly deprives congressmen of their ‘right[] to participate
and vote on legislation in a manner defined by the
Constitution’” (citation omitted)). Indeed, the Court is not
aware of any case in this Circuit where a court has recognized
legislative standing after Raines. The Court is not persuaded
that Plaintiffs’ alleged nullification injury is sufficient to
confer standing in this case either.
The D.C. Circuit has interpreted the Coleman exception to
mean “treating a vote that did not pass as if it had, or vice
33
versa.” Campbell, 203 F.3d at 22. As Defendants argue, the
House Member Plaintiffs’ votes in favor of the DREAM and
DISCLOSE Acts were never treated as if they did not pass.
Rather, the bills were treated as if they passed the House, but
the Senate then failed to debate or pass them itself. See
Defs.’ Reply Mem. of P. & A. in Supp. of Mot. to Dismiss at 8-9.
By contrast, in Coleman, state officials endorsed a defeated
ratification, treating it as if it had been approved. A closer
example of vote nullification, then, is the theoretical scenario
presented in Raines, where appropriations bills could have
passed both the House and Senate, been signed by the President,
but then were subject to line-by-line “cancellation” by the
President, effectively deleting what was voted on -- and passed
-- by the House and Senate. The Court found that this potential
scenario did not “nullify [plaintiffs’] votes in the future in
the same way that the votes of the Coleman legislators had been
nullified.” Raines, 521 U.S. at 824.
In the future, a majority of Senators and Congressmen can
pass or reject appropriations bills; the [Line Item Veto]
Act has no effect on this process. In addition, a majority
of Senators and Congressmen can vote to repeal the Act, or
to exempt a given appropriations bill (or a given provision
in an appropriations bill) from the Act; again, the Act has
no effect on this process. Coleman thus provides little
meaningful precedent for [plaintiffs’] argument.
Id. Here too, Plaintiffs have failed to demonstrate that their
votes to pass the DREAM and DISCLOSE Acts were nullified in the
34
same manner as in Coleman. Furthermore, the D.C. Circuit has
emphasized that the Coleman exception is a “narrow rule.”
Chenoweth, 181 F.3d at 116; see also Campbell, 203 F.3d at 24 &
n.6. Interpreting the exception in the way Plaintiffs urge,
however, would transform it from a narrow exception into a
broader one, potentially allowing members of either House of
Congress to sue the other for failure to pass a bill the other
House supported. Therefore, the Court is not persuaded that the
House Members’ alleged injury here presents “complete
nullification” of the kind recognized by the Supreme Court in
Coleman.13
Finally, the Court has considered whether separation-of-
powers concerns counsel against finding legislative standing
here. In Raines, the Supreme Court noted without deciding that
Coleman might also be distinguishable from “a similar suit
brought by federal legislators, since the separation-of-powers
concerns present in such a suit were not present in Coleman.”
521 U.S. at 824 n.8; see also Harrington v. Bush, 553 F.2d 190,
205 n.67 (D.C. Cir. 1977) (“The major distinguishing factor
between Coleman and the present case lies in the fact that the
13
The Court is also not persuaded that the lack of a
legislative remedy transforms the injury here into the narrow
vote nullification exception. While the House Member Plaintiffs
themselves do not have a remedy, the Senate does have a remedy
of its own -- amendment of its rules. Because the other
considerations weigh against finding legislative standing here,
the Court declines to find this factor dispositive.
35
plaintiffs in Coleman were state legislators. A separation of
powers issue arises as soon as the Coleman holding is extended
to United States legislators. If a federal court decides a case
brought by a United States legislator, it risks interfering with
the proper affairs of a coequal branch.”). The law of Article
III standing “is built on a single basic idea -- the idea of
separation of powers.” Allen, 468 U.S. at 752. Here, and as
discussed in more detail infra, separation-of-powers concerns
persuade the Court that this suit is not justiciable.
B. Political Question Doctrine
Like standing, the political question doctrine stems from
the case-or-controversy requirement of Article III. The courts
lack jurisdiction over “political questions that are by their
nature ‘committed to the political branches to the exclusion of
the judiciary.’” Schneider, 412 F.3d at 193 (citation omitted);
see also Marbury v. Madison, 5 U.S. 137, 170 (1803). A court
may not, however, refuse to adjudicate a dispute merely because
a decision “may have significant political overtones.” Japan
Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986);
see also Chadha, 462 U.S. at 943 (“Resolution of litigation
challenging the constitutional authority of one of the three
branches cannot be evaded by courts because the issues have
political implications[.]”). “The nonjusticiability of a
political question is primarily a function of the separation of
36
powers.” Baker v. Carr, 369 U.S. 186, 210 (1962). In Baker,
the Supreme Court identified six circumstances in which an issue
might present a non-justiciable political question:
[1] a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or [2] a
lack of judicially discoverable and manageable standards
for resolving it; or [3] the impossibility of deciding
without an initial policy determination of a kind clearly
for nonjudicial discretion; or [4] the impossibility of a
court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government; or [5] an unusual need for unquestioning
adherence to a political decision already made; or [6] the
potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
Id. at 217. The presence of any one factor indicates that the
case presents a non-justiciable political question. See
Schneider, 412 F.3d at 194. Defendants argue that three of the
six Baker factors apply in this case: (1) Plaintiffs’ claims
involve a matter textually committed by the Constitution to the
Senate; (2) there is a lack of judicially discoverable and
manageable standards for resolving Plaintiffs’ claims; and (3)
resolution of Plaintiffs’ claims would require the Court to
intrude into the Senate’s internal proceedings, thereby
expressing a lack of respect due a coordinate branch. The Court
addresses each in turn.
1. Textual Constitutional Commitment of Rulemaking
Power to the Senate
The Supreme Court has long recognized that the power
committed in Article I, section 5 provides each House with broad
37
discretion to determine the rules of its proceedings. See
United States v. Ballin, 144 U.S. 1, 5 (1892). The parties
dispute the applicability of two Supreme Court precedents here:
Powell v. McCormack, 395 U.S. 486, and Nixon v. United States,
506 U.S. 224 (1993).
Plaintiffs assert that this case is more like Powell, in
which the Supreme Court found justiciable a challenge to the
House’s power to judge the qualifications of its Members.
There, the Court held that Representative Powell’s challenge to
his exclusion from the House was justiciable because the Court
determined that the House’s power to “be the Judge of the . . .
Qualifications of its own Members,” U.S. Const. art. I, § 5, cl.
1, was expressly limited by Article I, section 2, clause 2,
which sets forth the three textual criteria for membership (age,
residency, and citizenship). See Powell, 395 U.S. at 547-50.
Defendants assert, by contrast, that this case is more like
Nixon. There, a federal judge was convicted by the Senate on
impeachment charges and removed from office. The judge filed
suit challenging his conviction and alleging that Senate Rule XI
(governing impeachment trials) was unconstitutional because it
permitted the Senate to appoint a committee to receive evidence
and take testimony in the impeachment trial. Judge Nixon argued
that the constitutional grant to the Senate of the power to
“try” impeachments, U.S. Const. art. I, § 3, cl. 6, required the
38
full Senate, not merely a committee, to hold evidentiary
proceedings. See 506 U.S. at 228. The Supreme Court held that
the case was non-justiciable because the power to try
impeachments was textually committed to the Senate. See id. at
229-34. The Court stated:
Our conclusion in Powell was based on the fixed meaning of
“qualifications” set forth in Art. I, § 2. The claim by
the House that its power to “be the Judge of the Elections,
Returns and Qualifications of its own Members” was a
textual commitment of unreviewable authority was defeated
by the existence of this separate provision specifying the
only qualifications which may be imposed for House
membership. The decision as to whether a member satisfied
these qualifications was placed with the House, but the
decision as to what these qualifications consisted of was
not. In the case before us, there is no separate provision
of the Constitution which could be defeated by allowing the
Senate final authority to determine the meaning of the word
“try” in the Impeachment Trial Clause.
Id. at 237; see also Michel v. Anderson, 14 F.3d 623, 626-27
(D.C. Cir. 1994) (concluding that Article I, section 2’s
requirement that the House of Representatives “be composed of
Members chosen every second Year by the People of the several
States” provided an express textual limit on the rulemaking
power and thus rendered justiciable a challenge to the House’s
rule permitting non-member delegates to vote in the Committee of
the Whole). Therefore, in order to present a justiciable
challenge to congressional procedural rules, Plaintiffs must
identify a separate provision of the Constitution that limits
the rulemaking power. The Court finds that this case is more
39
like Nixon because Plaintiffs cannot identify any constitutional
provision that expressly limits the authority committed to the
Senate by Article I, section 5, clause 2.
Plaintiffs allege that the Quorum Clause, U.S. Const. art.
I, § 5, cl. 1, the Presentment Clause, U.S. Const. art. I, § 7,
cl. 2, and the existence of other constitutional provisions
expressly providing for “supermajority votes” on certain matters
provide explicit textual limits on the Senate’s rulemaking
power. This is simply not the case. None of these provisions
contains any language that expressly limits the Senate’s power
to determine its rules, including when and how debate is brought
to a close. More fundamentally, Plaintiffs have not
demonstrated that the Presentment Clause, the Quorum Clause, or
any other constitutional provision explicitly requires that a
simple majority is all that is required to close debate and
enact legislation. As is made clear in the Complaint,
Plaintiffs’ argument is that the Cloture Rule “conflicts” with
these constitutional provisions, see Compl. ¶ 60, but Plaintiffs
do not assert -- nor can they -- that any of these provisions
expressly limits the Senate’s power to determine the rules of
its proceedings.14
14
Plaintiffs attempt to compare the Senate’s rulemaking
power to the congressional power to make laws, arguing that
“[i]t cannot be that statutes adopted by both Houses of Congress
are subject to judicial review while a mere internal rule
40
Plaintiffs contend that the Senate’s rulemaking authority
has been limited by United States v. Smith, 286 U.S. 6 (1932)
and Ballin, 144 U.S. at 5, which stated that “[while] the
constitution empowers each house to determine its rules of
proceedings, [i]t may not by its rules ignore constitutional
restraints or violate fundamental rights.” See Pls.’ Opp’n at
22 (quoting Ballin, 144 U.S. at 5). According to Plaintiffs,
the Supreme Court has followed Ballin and Smith in subsequent
cases in which the Court “rejected interpretations by
congressional committees of their own rules.” Id. at 23 (citing
Chadha, 462 U.S. at 941; Yellin v. United States, 374 U.S. 109,
114 (1963) (“It has long been settled . . . that rules of
Congress are judicially cognizable”); Christoffel v. United
States, 338 U.S. 84 (1949); Vander Jagt v. O’Neill, 699 F.2d
1166, 1170, 1173 (D.C. Cir. 1982)). As Defendants assert,
however, these cases are all either distinguishable or
contradict Plaintiffs’ arguments. Indeed, in none of these
cases did courts reject Congress’s own rules as
adopted by only one House of Congress, without the consent of
the other House or the President, is exempt from judicial
scrutiny.” See Pls.’ Opp’n at 25-26. As the Supreme Court
recognized in Nixon, it has long been recognized that judicial
review was available and appropriate as a check on the
Legislature’s power with respect to statutes. See 506 U.S. at233 (citing THE FEDERALIST, NO. 78, at 524 (J. Cooke ed. 1961)).
This argument has no bearing on the Senate’s power to determine
the rules of its own proceedings.
41
unconstitutional.15 Rather, the courts either rejected
Congress’s actions for being in violation of its own rules,16 or,
15
In Ballin, the plaintiff claimed that the House’s passage
of a statute was invalid for lack of a quorum and, in that
regard, that the House rule for determining a quorum was
unconstitutional. See 144 U.S. at 4-5. The Court stated:
The Constitution empowers each house to determine its rules
of proceedings. It may not by its rules ignore
constitutional restraints or violate fundamental rights,
and there should be a reasonable relation between the mode
or method of proceeding established by the rule and the
result which is sought to be attained. But within these
limitations all matters of method are open to the
determination of the house, and it is no impeachment of the
rule to say that some other way would be better, more
accurate or even more just. . . . The power to make rules .
. . is a continuous power, always subject to be exercised
by the house, and within the limitations suggested,
absolute and beyond the challenge of any other body or
tribunal.
Id. at 5 (emphasis added). The Court found that, as to the
question of determining a quorum, there was “no constitutional
method prescribed, [] no constitutional inhibition of any of
[the possible methods of determining a quorum], and no violation
of fundamental rights” by the House’s rule. Id. at 6.
Accordingly, the Court did not review the rule’s validity. See
id. (“The Constitution has prescribed no method of making this
determination, and it is therefore within the competency of the
house to prescribe any method which shall be reasonably certain
to ascertain the fact.”).
16
See Yellin, 374 U.S. at 121-24 (holding that House
committee violated its own rules by failing to consider the
plaintiff’s request to be interrogated in a private, executive
session, rather than in public); Christoffel, 338 U.S. at 88-89(“Congressional practice in the transaction of ordinary
legislative business is of course none of our concern . . . .
The question is neither what rules Congress may establish for
its own governance, nor whether presumptions of continuity may
protect the validity of its legislative conduct. The question is
rather what [rules] the House has established and whether they
have been followed.”); Smith, 286 U.S. at 33 (“The question
42
as in Chadha, the Court rejected a statutory provision for
violating the explicit text of the Constitution.17 As noted
above, Plaintiffs identify no explicit constitutional restraints
upon the Senate’s Cloture Rule, nor do they point to fundamental
rights which have been violated. It is precisely for this
reason that the Court finds that this challenge presents a
political question.
2. Lack of Judicially Discoverable and Manageable
Standards
The Court is also persuaded that this case presents a
political question because no judicially manageable standards
exist against which to review the Senate’s rules governing
debate.
Plaintiffs argue that they merely seek a declaratory
judgment, the exact same relief that the Court granted in
Powell. “Just as in Powell, the plaintiffs seek a declaration
‘determin[ing] that the [Senate] was without power’ to condition
primarily at issue relates to the construction of the applicable
rules, not to their constitutionality.”).
17
See 462 U.S. at 942. Moreover, in Vander Jagt, fourteen
Republican Members of the House sued the Democratic House
leadership and the Democratic Caucus, alleging that the
Democrats had systematically discriminated against them by
providing them with fewer seats on House committees and
subcommittees than they were proportionally owed, thereby
diluting their influence. See 699 F.2d at 1167. The D.C.
Circuit affirmed the district court’s dismissal of the case,
stating that it was exercising its “remedial discretion” to
withhold relief “given [its] respect for a coequal branch of
government.” Id. at 1176.
43
Senate action on the vote of a supermajority rather than a
simple majority. Such a declaration ‘requires an interpretation
of the Constitution--a determination for which clearly there are
judicially []manageable standards.’” Pls.’ Opp’n at 29-30
(quoting Powell, 395 U.S. at 549). But Powell involved the
interpretation of two seemingly contradictory constitutional
provisions: Article I, section 5, clause 1, which set forth the
House’s power to “be the Judge of the . . . Qualifications of
its own Members,” and Article I, section 2, clause 2, which
provided three explicit criteria for membership (age, residency,
and citizenship). The Court reviewed the legislative history of
Article I, section 5 and determined that the House’s power to
“judge” the qualifications of its own members was limited to the
qualifications expressly set forth in the Constitution. See 395
U.S. at 521-48; see also id. at 522 (“Our examination of the
relevant historical materials leads us to the conclusion that .
. . the Constitution leaves the House without authority to
exclude any person, duly elected by his constituents, who meets
all the requirements for membership expressly prescribed in the
Constitution.”). Here, Plaintiffs point to no standard within
the Constitution by which the Court could judge whether or not
the Cloture Rule is constitutionally valid.18
18
Plaintiffs additionally argue that Defendants “advance no
argument as to why Rule XXII is any less justiciable than the
44
3. Intrusion into the Senate’s Internal Proceedings
Finally, the Court finds that reaching the merits of this
case would require an invasion into internal Senate processes at
the heart of the Senate’s constitutional prerogatives as a House
of Congress, and would thus express a lack of respect for the
Senate as a coordinate branch of government.
Plaintiffs argue that judicial review of the Cloture Rule
would not reflect lack of respect for the Senate; instead, it
reflects respect for the Constitution. Pls.’ Opp’n at 30.
According to Plaintiffs, the “federal courts show no disrespect
for other branches of government when they perform their
constitutionally assigned duties to review and rule upon the
constitutionality of acts of the President . . . , or the joint
acts of Congress and the President . . . , or of only one House
of the legislative branch . . . . Such determinations fall
within the traditional role accorded courts to interpret the law
one-House veto in Chadha. . . . Nor has it explained why ruling
on Rule XXII would be any less appropriate than the Court’s
treatment of a Senate rule in Smith.” Pls.’ Opp’n at 30 (citing
Chadha, 462 U.S. at 942; Smith, 286 U.S. at 33). But Chadha and
Smith are also distinguishable. As noted above, Chadha involved
a challenge to the constitutionality of a statute, not an
internal Senate rule. Moreover, the dispute in Chadha was
whether the one-House veto conflicted with the Presentment
Clause, which provided a clear judicially manageable standard
for the Court to use in reviewing the one-House veto. In Smith,
as noted above, the issue was “the construction of the
applicable rules, not [] their constitutionality.” 286 U.S. at
33. The Court did not say anything about judicially manageable
standards which it would use to review the constitutionality of
an internal congressional rule.
45
and do not involve a ‘lack of the respect due [a] coordinate
[branch] of government.’” Id. (citations omitted). Plaintiffs
provide no authority, however, for the proposition that the
Court’s review of an internal rule of Congress, rather than a
legislative act, would reflect respect for the Constitution and
not a lack of respect for the Senate, particularly where, as
here, Plaintiffs have identified no constitutional restraint on
the Senate’s power to make rules regulating debate. In Judicial
Watch, Inc. v. United States Senate, although the D.C. Circuit
did not explicitly reach the political question doctrine, the
court noted:
While [plaintiff] may have asked for such a judicial
rewrite [to require a simple majority rule for cloture on
judicial nominations], our providing one would obviously
raise the most acute problems, given the Senate’s
independence in determining the rules of its proceedings
and the novelty of judicial interference with such rules.
432 F.3d 359, 361 (D.C. Cir. 2005). This Court agrees.
Accordingly, the Court finds that, absent a clear
constitutional restraint, under the separation of powers
recognized by Article III, it is for the Senate, and not this
Court, to determine the rules governing debate.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that
Plaintiffs lack standing. The Court further concludes that this
46
case presents a non-justiciable political question.19
Accordingly, the Court will GRANT Defendants’ Motion to Dismiss
and will DISMISS the Complaint. A separate Order accompanies
this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Judge
December 21, 2012
19
In view of the resolution of the motion on standing and
political question grounds, the Court does not reach Defendants'
argument that the Speech or Debate Clause bars this suit.
47