Campbell, Tom v. Clinton, William J.

concurring in the judgment:

The majority opinion does not, I believe, correctly analyze plaintiffs’ standing to sue. It misconceives the holding of Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), and conflicts with the law of this circuit. I believe plaintiffs lack standing, at least to litigate their constitutional claim, but for reasons the majority opinion neglects. I also believe that the case is moot, an optional disposition of the appeal.1 The serious questions about the constitutionality of the War Powers Resolution2 must therefore be put off for still another day.

I. Standing

The Constitution reserves the power to declare “war”3 to Congress and delegates the power to conduct war to the President. Compare U.S. Const, art. I, § 8, cl. 11, with id. art. II, § 2. When President Clinton committed armed forces to the attack on the Federal Republic of Yugoslavia, he did so without a declaration of war from Congress. On April 28, 1999, after air operations and missile strikes were underway, the House of Representatives voted 427 to 2 against a declaration of war. See H.R.J. Res. 44, 106th Cong. (1999); 126 Cong. Rec. H2440-41 (daily ed. Apr. 28, 1999).

The War Powers Resolution, passed over President Nixon’s veto in 1973, implements Congress’s power to declare war under the Constitution. See 50 U.S.C. § 1541(a)-(b). It commands the President *29to “terminate any use of United States Armed Forces” within sixty days “unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (8) is physically unable- to meet as a result of an armed attack upon the United States.” 50 U.S.C. § 1544(b). The Senate, on March 23, 1999, 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. (1999); 145 Cong. Rec. S3118 (daily ed. Mar. 23, 1999). The House rejected that measure by a tie vote on April 28, 1999. See 126 Cong. Reo. H2451-52 (daily ed. Apr. 28,1999).

The Members of Congress appearing as plaintiffs contend that President Clinton violated the Constitution and the War Powers Resolution and that they are entitled to a judicial declaration so stating. They have standing, they say, because President Clinton’s prosecution of the war “completely nullified” their votes against declaring war and against authorizing a continuation of the hostilities. See Amended Complaint ¶ 18; Brief for Plaintiffs-Appellants at 8, 16.

A.

The quoted phrase- — “completely nullified” — is from Raines v. Byrd, 521 U.S. 811, 823, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), giving the Court’s appraisal of the rule in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). The majority opinion in our case seems to assume that the only thing left of legislative standing is whatever Raines preserves. I will not quarrel with the assumption, at least for cases in which a legislator is claiming that his vote has been illegally nullified.4 The heart of the Raines decision is this: “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, 117 S.Ct. 2312.5

Here, plaintiffs had the votes “sufficient to defeat” “a specific legislative action”— they defeated a declaration of war (their constitutional claim) and they blocked a resolution approving the President’s continuation of the war (their statutory claim). To follow precisely the formulation in Raines, they would have standing oiily if the legislative actions they defeated went “into effect.” Obviously, this did not happen: war was not declared, and the President never maintained that he was prosecuting the war with the House’s approval.

Plaintiffs’ reply is that the President’s military action against Yugoslavia without congressional authorization had the effect of completely nullifying their votes, of making their votes worthless. With respect to their vote against declaring war, that clearly is not true. A congressional declaration of war carries with it profound consequences.6 The United States Code *30is thick with laws expanding executive power “in time of war.” See Offioe of the Judge Advooate GeneRAL, United States AiR Foroe, Digest of War and EMERGENCY LEGISLATION AFFECTING THE DEPARTMENT of Defense 171-84 (1996) (listing statutes “effective in time of war”); cf. id. at 185-91 (listing statutes “effective in time of national emergency declared by the President”); id. at 192-98 (listing statutes “effective in time of national emergency declared by Congress”).7 Under these laws, the President’s authority over industries, the use of land, and the terms and conditions of military employment is greatly enhanced.8 A declaration of war may also have the effect of decreasing commercial choices and curtailing civil liberties.9 See William H. Rehnquist, All the Laws but One: Civil Liberties in Wartime 218-19 (1998) (“Without question the government’s authority to engage in conduct that infringes civil liberty is greatest in time of declared war — the Schenck and Hirabayashi opinions make this clear.... [B]ut from the point of view of governmental authority under the Constitution, it is clear that the President may do many things in carrying out a congressional directive that he may not be able to do on his own.”).

The vote of the House on April 28, 1999, deprived President Clinton of these powers. The vote against declaring war fol*31lowed immediately upon the vote not to require immediate 'withdrawal. Those who voted against a declaration of war did so to deprive the President of the authority to expand hostilities beyond the bombing campaign and, specifically, to deprive him of the authority to introduce ground troops into the conflict. See 145 Cong. Reo. H2427-41 (daily ed. Apr. 28, 1999). There is no suggestion that despite the vote, President Clinton invaded Yugoslavia by land or took some other action authorized only during a declared war. It follows that plaintiffs’ votes against declaring war were not for naught. For that reason, plaintiffs do not have standing to sue on their constitutional claim.

As to their claim under the War Powers Resolution, the beauty of this measure, or one of its defects (see the Addendum to this opinion), is in its automatic operation: unless a majority of both Houses declares war, or approves continuation of hostilities beyond 60 days, or Congress is “physically unable to meet as a result of an armed attack upon the United States,” the Resolution requires the President to withdraw the troops. 50 U.S.C. § 1544(b). The President has nothing to veto. Congress may allow the time to run without taking any vote, or it may — -as the House did here — take a vote and fail to muster a majority in favor of continuing the hostilities.

To put the matter in terms of Raines once again, plaintiffs had the votes “sufficient to defeat” “a specific legislative action” — they blocked a resolution authorizing the President’s continuation of the war with Yugoslavia — but it is not true, in the language of Raines, that this “legislative action” nevertheless went “into effect.” Congressional authorization- simply did not occur. The President may have acted as if he had Congress’s approval, or he may have acted as if he did not need it. Either way, plaintiffs’ real complaint is not that the President ignored their votes; it is that he ignored the War Powers Resolution, and hence the votes of an earlier Congress, which enacted the law over President Nixon’s veto. It is hard for me to see that this amounts to anything more than saying: “We, the members of Congress, have standing .because the President violated one of our laws.” To hold that Members of Congress may litigate on such a basis strikes me as highly problematic, not only because the principle is unconfined but also because it raises very serious separation-of-powers concerns. See Raines, 521 U.S. at 825 n. 8, 117 S.Ct. 2312; Barnes v. Kline, 759 F.2d 21, 41 (D.C.Cir.1985) (Bork, J., dissenting), vacated as moot, 479 U.S. 361, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987). But because the case is moot, I need say rio more.

B.

The majority opinion analyzes standing rather differently than I do. It says plaintiffs lack standing to'pursue their statutory claim because “they continued, after the votes, to enjoy ample legislative power to have stopped prosecution of the ‘war.’” Maj. op. at 23. For specifics, the opinion points out that Congress defeated House Concurrent Resolution 82, a resolution requiring immediate disengagement from the conflict in Yugoslavia; that “Congress always retains appropriations authority and could have cut off funds for the American role in the conflict”;10 and that “there *32always remains the possibility of impeachment.” Id.11 The same reason — the possibility of future legislative action — is used to defeat plaintiffs’ standing with respect to their constitutional claim. Id. at 23.

The majority has, I believe, confused the right to vote in the future with the nullification of a vote in the past, a distinction Raines clearly made. See 521 U.S. at 824, 117 S.Ct. 2312. To say that your vote was not nullified because you can vote for other legislation in the future is like saying you did not lose yesterday’s battle because you can fight again tomorrow. The Supreme Court did not engage in such illogic. When the Court in Raines mentioned the possibility of future legislation, it was addressing the argument that “the [Line Item Veto] Act will nullify the [Congressmen’s] votes in the future....” Id. This part of the Court’s opinion, which the majority adopts here, is quite beside the point to our case. No one is claiming that their votes on future legislation will be impaired or nullified or rendered ineffective.

Besides, as long as Congress and the Constitution exist, Members will always be able to vote for legislation. And so the majority’s decision is tantamount to a decision abolishing legislative standing. I have two problems with this. First, if we are going to get rid of legislative standing altogether, we ought to do so openly and not under the cover of an interpretation, or rather misinterpretation, of a phrase in Raines. If the Supreme Court had meant to do away with legislative standing, it would have said so and it would have given reasons for taking that step.

My second problem is just as serious, perhaps more so: the majority’s decision conflicts with this court’s latest legislative standing decision. In Chenoweth v. Clinton, 181 F.3d 112, 116-17 (D.C.Cir.1999), we interpreted Raines consistently with my analysis in this case and concluded that a previous legislative standing decision of this court—Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974)—upholding legislative standing to challenge the legality of a pocket veto was still good law. The plaintiff in Kennedy had standing under the proper interpretation of Raines, we held, because the “pocket veto challenged in that case had made ineffective a bill that both houses of the Congress had approved. Because it was the President’s veto — not a lack of legislative support — -that prevented the bill from becoming law (either directly or by the Congress voting to override the President’s veto), those in the majority could plausibly describe the President’s action as a complete nullification of then-votes.” 181 F.3d at 116-17. If Chenoweth is correct, the majority opinion in this case must be wrong. If Chenoiueth is correct, it is no answer to say — as the majority says in this ease — that standing is lacking because, despite the pocket veto, Congress could pass the same law again, or it could retaliate by cutting off appropriations for the White House or it could impeach the President.

C.

My position, the majority complains, “sidesteps” plaintiffs’ merits “claim that *33the President unconstitutionally conducted a war without authority,” Maj. op. at 23. This is meant to be criticism? A properly-conducted standing analysis almost always avoids — sidesteps—a decision on the merits.12 In the next breath, the majority turns around and contradicts itself, proclaiming that my analysis “conflates standing with the merits.” Id. I am familiar with what I have written. I do not recall having rendered a judgment about whether the President violated the Constitution. The careful reader will, I think, agree with me. Nor do I present “as an alternative reason for denying standing that the President did not ... take any actions constituting war in the constitutional sense.” Id. The majority’s sentence is doubly misleading. Here is my alternative reason for denying standing, pure. and simple: regardless whether President Clinton waged a “war,” plaintiffs never claimed that he exercised statutory authority reserved to him only when Congress has declared a war; and so their votes against declaring war cannot be considered a nullity. Thus, one, I have taken no position on whether the President engaged in a “war,” and two, I say only that plaintiffs never alleged that the President utilized these statutory powers. Too often a strategy in legal argumentation is to pretend to answer an argument by misstating it.13 My argument remains unanswered. All the majority has done is to misstate it almost as badly as it has misread Raines.

II. Mootness

The amended complaint, filed on May 19, 1999, sought a declaratory judgment “that no later than May 25, 1999, the President must terminate the involvement of the United States Armed Forces in such hostilities unless Congress declares war, or enacts other explicit authorization, or has extended the sixty day period.” Amended Complaint at 12; see 50 U.S.C. § 1544(b)(l)-(2). All 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.

To save their case from mootness, plaintiffs therefore invoke the rule regarding issues “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911); Christian Knights of the Ku Klux Klan v. District of Columbia, 972 F.2d 365, 369-71 (D.C.Cir.1992). Plaintiffs must, but cannot, satisfy both elements to prevail. Their constitutional and statutory claims are at cross purposes.

The “evading review” part of the formulation is temporal. How quickly must an activity begin and end to evade judicial review? This depends on which court does the reviewing. The Supreme Court has treated the matter in terms of itself. Hence evading review means evading Supreme Court review, see Christian Knights, 972 F.2d at 369, which can be (though usually is not) swift review. See, e.g., New York Times Co. v. United States, 408 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Some undeclared wars', or in the euphemism of the day, “hostilities,” are over quickly; others, like the Korean War and the war in *34Vietnam, last for years. Circuit precedent requires us to determine whether the activity challenged is “inherently” of a sort that evades review; circuit precedent also holds that “offensive wars initiated without congressional approval” are not in that category. Conyers v. Reagan, 765 F.2d 1124, 1128 (D.C.Cir.1985). That holding, which remains the law of the circuit, means that we must treat plaintiffs’ claims as moot.

Plaintiffs’ statutory claim — that President Clinton continued the war for more than 60 days without congressional authorization, in violation of the War Powers Resolution — also may not satisfy the “capable of repetition” element. There is an aspect of probability involved here. “By ‘capable of repetition’ the Supreme Court means ‘a reasonable expectation that the same complaining party would be subject to the same action again.’ ” Christian Knights, 972 F.2d at 370 (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 360 (1975) (per curiam)).14 This introduces some complications. Who should be considered the “same complaining parties”? And what is the “same action again”?

The same “complaining parties” must refer to the individual Members of Congress who brought this suit. They have sued in their official capacity and, as in Karcher v. May, 484 U.S. 72, 79-81, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987), the injury they allege relates to their conduct as legislators. Thus, in assessing the likelihood of a recurrence of “the same action,” the inquiry must be restricted only to the period in which these Congressmen would likely remain in office. As to the “same action,” this refers to President Clinton’s alleged violation of the War Powers Resolution by continuing hostilities for more than 60 days without Congress’s affirmative approval. How likely is that to recur? Not very, if history is any guide. The War Powers Resolution has been in effect for a quarter of a century. Yet President Clinton is the first President who arguably violated the 60-day provision. In order to show why their claims will “evade review,” plaintiffs tell us that, in modern times, United States attacks on foreign nations will be over quickly, by which they mean less than 60 days.15 Accepting that prediction as accurate dooms their case. It means that the likelihood of this President, or some other, violating the 60-day provision of the War Powers Resolution is remote, not only because we can expect other Presidents to obtain congressional approval for wars lasting more than 60 days, but also because most military actions in the future (as plaintiffs agree) will be over before the 60-day limit for undeclared or unauthorized wars has been exceeded.

ADDENDUM

Veto of War Powers Resolution

The President’s Message to the House of Representatives Returning H.J. Res. 5^2 Without His Approval. October 2U, 1973

To the House of Representatives:

I hereby return without my approval House Joint Resolution 642 — the War *35Powers Resolution. While I am in accord with the desire of the Congress to assert its proper role in the conduct of our foreign affairs, the restrictions which this resolution would impose upon the authority of the President are both unconstitutional and dangerous to the best interests of our Nation.

The proper roles of the Congress and the Executive in the conduct of foreign affairs have been debated since the founding of our country. Only recently, however, has there been a serious challenge to the wisdom of the Founding Fathers in choosing not to draw a precise and detailed line of demarcation between the foreign policy powers of the two branches.

The Founding Fathers understood the impossibility of foreseeing every contingency that might arise in this complex area. They acknowledged the need for flexibility in responding to changing circumstances. They recognized that foreign policy decisions must be made through close cooperation between the two branches and not through rigidly codified procedures.

These principles remain as valid today as they were when our Constitution was written. Yet House Joint Resolution 542 would violate those principles by defining the President’s powers in ways which would strictly limit his constitutional authority.

Clearly Unconstitutional

House Joint Resolution 542 would attempt to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years. One of its provisions would automatically cut off certain authorities after sixty days unless the Congress extended them. Another would allow the Congress to eliminate certain authorities merely by the passage of a concurrent resolution — an action which does not normally have the force of law, since it denies the President his constitutional role in approving legislation.

I believe that both these provisions are unconstitutional. The only way in which the constitutional powers of a branch of the Government can be altered is by amending the Constitution — and any attempt to make such alterations by legislation alone is clearly without force.

Undermining Our Foreign Policy

While I firmly believe that a veto of House Joint Resolution 542 is warranted solely on constitutional grounds, I am also deeply disturbed by the practical consequences of this resolution. For it would seriously undermine this Nation’s ability to act decisively and convincingly in times of international crisis. As a result, the confidence of our allies in our ability to assist them could be diminished and the respect of our adversaries for our deterrent posture could decline. A permanent and substantial element of unpredictability would be injected into the world’s assessment of American behavior, further increasing the likelihood of miscalculation and war.

If this resolution had been in operation, America’s effective response to a variety of challenges in recent years would have been vastly complicated or even made impossible. We may well have been unable to respond in the way we did during the Berlin crisis of 1961, the Cuban missile crisis of 1962, the Congo rescue operation in 1964, and the Jordanian crisis of 1970— to mention just a few examples. In addition, our recent actions to bring about a peaceful settlement of the hostilities in the Middle East would have been seriously impaired if this resolution had been in force.

While all the specific consequences of House Joint Resolution 542 cannot yet be predicted, it is clear that it would undercut the ability of the United States to act as an effective influence for peace. For example, the provision automatically cutting off certain authorities after 60 days unless they are extended by the Congress could work to prolong or intensify a crisis. Until the Congress suspended the deadline, *36there would be at least a chance of United States withdrawal and an adversary would be tempted therefore to postpone serious negotiations until the 60 days were up. Only after the Congress acted would there be a strong incentive for an adversary to negotiate. In addition, the very existence of a deadline could lead to an escalation of hostilities in order to achieve certain objectives before the 60 days expired.

The measure would jeopardize our role as a force for peace in other ways as well. It would, for example, strike from the President’s hand a wide range of important peace-keeping tools by eliminating his ability to exercise quiet diplomacy backed by subtle shifts in our military deployments. It would also cast into doubt authorities which Presidents have used to undertake certain humanitarian relief missions in conflict areas, to protect fishing boats from seizure, to deal with ship or aircraft hijackings, and to respond to threats of attack. Not the least of the adverse consequences 1 of this resolution would be-the prohibition contained in section 8 against fulfilling our obligations under the NATO treaty as ratified by the Senate. Finally, since the bill is somewhat vague as to when the 60 day rule would apply, it could lead to extreme confusion and dangerous disagreements concerning the prerogatives of the two branches, seriously damaging our ability to respond to international crises.

Failure to Require Positive Congressional Action '

I am particularly disturbed by the fact that certain of the President’s constitutional powers as Commander in Chief of the Armed Forces would terminate automatically under this resolution 60 days after they were invoked. No overt Congressional action would be required to cut off these powers — -they would disappear automatically unless the Congress extended them. In effect, the Congress is here attempting to increase its policy-making role through a provision which requires it to take absolutely no action at all.

In my view, the proper way for the Congress to make known its will on such foreign policy questions is through a positive action, with full debate on the merits of the issue and with each member taking the responsibility of casting a yes or no vote after considering those merits. The authorization and appropriations process represents one of the ways in which such influence can be exercised. I do not, however, believe that the Congress can responsibly contribute its considered, collective judgment on such grave questions without full debate and without a yes or no vote. Yet this is precisely what the joint resolution would allow. It would give every future Congress the ability to handcuff every future President merely by doing nothing and sitting still. In my view, one cannot become a responsible partner unless one is prepared to take responsible action.

Strengthening Cooperation Between the Congress and the Executive Branches

The responsible and effective exercise of the war powers requires the fullest cooperation between the Congress and the Executive and the prudent fulfillment by each branch of its constitutional responsibilities. House joint Resolution 542 includes certain constructive measures which would foster this process by enhancing the flow of information from the executive branch to the Congress. Section 3, for example, calls for consultations with the Congress before and during the involvement of the United States forces in hostilities abroad. This provision is consistent with the desire of this Administration for regularized consultations with the Congress in an even wider range of circumstances.

I believe that full and cooperative participation in foreign policy matters by both the executive and the legislative branches could be enhanced by a careful and dispassionate study of their constitutional roles. Helpful proposals for such a study have already been made in the Congress. I would welcome the establishment of a non*37partisan commission on the constitutional roles of the Congress and the President in the conduct of foreign affairs. This commission could make a thorough review of the principal constitutional issues in Executive-Congressional relations, including the war powers, the international agreement powers, and the question of Executive privilege, and then submit its recommendations to the President and the Congress. The members of such a commission could be drawn from both parties — and could represent many perspectives including those of the Congress, the executive branch, the legal profession, and the academic community.

This Administration is dedicated to strengthening cooperation between the Congress and the President in the conduct of foreign affairs and to preserving the constitutional prerogatives of both branches of our Government. I know that the Congress shares that goal. A commission on the constitutional roles of the Congress and the President would provide a useful opportunity for both branches to work together toward that common objective.

RICHARD NlXON

The White House,

October 24, 1973.