BATES, District Judge.
Thirty-two members of the House of Representatives (hereinafter "plaintiffs" or "the congressmen") bring this action against President George W. Bush, Secretary of State Colin Powell, and Secretary of Defense Donald H. Rumsfeld ("defendants") challenging President Bush's unilateral withdrawal from the 1972 Anti-Ballistic Missile Treaty ("ABM Treaty") without the approval of Congress. The congressmen contend that because the Supremacy Clause of the Constitution classifies treaties, like Acts of Congress, as the "supreme law of the land," the President cannot terminate a treaty without congressional consent, any more than he could repeal a statute. Defendants counter that the congressmen lack standing to bring this action, that their complaint raises a nonjusticiable political question, and that their claim is not ripe. Defendants further contend that given the President's plenary power over foreign relations under the Constitution and the fact that the treaty authority is in Article II of the Constitution delineating the Executive Branch's powers, and in light of historical practice over the past 200 years, the President's withdrawal from the ABM Treaty without seeking congressional approval was constitutional.
Before the Court are cross-motions for summary judgment, and several amicus briefs. The Court does not reach the merits of plaintiffs' claim in the face of two prongs of the justiciability doctrine, each founded on separation of powers concerns. Under the ruling in Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), the Court finds that these thirty-two congressmen have not alleged the requisite injury to establish standing to pursue their claim. And pursuant to Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979), the Court concludes that the treaty termination issue is a nonjusticiable "political question" that cannot be resolved by the courts. Accordingly, this action will be dismissed.
The United States and the Soviet Union entered into the bilateral ABM Treaty on October 3, 1972.
President Bush, however, concluded that the world order and international security had drastically changed since the inception of the ABM Treaty three decades ago. Accordingly, on December 13, 2001, he gave Russia the requisite six-months notice of the intention of the United States to
ABM Treaty, art. XV, cl. 2. The White House explained that "[t]he Soviet Union no longer exists [and] Russia is not an enemy, but in fact is increasingly allied with us on a growing number of critically important issues."
President Bush also explained that a number of foreign regimes "have acquired or are actively seeking to acquire weapons of mass destruction ... [that] pose a direct threat to the territory and security of the United States." Id. "The attacks against the U.S. homeland on September 11 vividly demonstrate that the threats we face today are far different from those of the Cold War." Def. Motion, Ex. 2, supra note 2. Compliance with the Treaty, President Bush noted, "hinders our government's ability to develop ways to protect our people from future terrorist or rogue state missile attacks."
Before he withdrew from the Treaty, however, President Bush did not submit the question of treaty termination to the Senate or the House. Nor did the President otherwise seek congressional consent for the withdrawal. Nearly six months after President Bush announced his intention to terminate the treaty, these congressmen brought suit on June 11, 2002, just two days before the termination of the ABM Treaty became effective.
Defendants raise a number of distinct bases for dismissing plaintiffs' complaint on jurisdictional grounds, including standing, political question, and ripeness. These doctrines all arise out of the "bedrock requirement" that courts hear only "cases and controversies." See Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). As the Supreme Court has explained, "[t]he federal courts are under an independent obligation to examine their own jurisdiction, and standing `is perhaps the most important of the jurisdictional doctrines.'" FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)).
Article III of the Constitution restricts the jurisdiction of the federal courts to "Cases" and "Controversies." U.S. Const. art. III, § 2; Flast v. Cohen, 392 U.S. 83, 94, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Allen, 468 U.S. at 750, 104 S.Ct. 3315. 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, 104 S.Ct. 3315 (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)); Valley Forge, 454 U.S. at 471, 102 S.Ct. 752. One aspect of this "case-or-controversy" requirement is that plaintiffs must have standing to sue, an inquiry that focuses on whether the plaintiff is the proper party to bring suit. FW/PBS, Inc., 493 U.S. at 231, 110 S.Ct. 596. Hence, "`the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.'" Allen, 468 U.S. at 750-51, 104 S.Ct. 3315 (quoting Warth, 422 U.S. at 498, 95 S.Ct. 2197).
Standing focuses on the particular injury allegedly suffered by the plaintiff:
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and quotation marks omitted). "These requirements together constitute the `irreducible constitutional minimum' of standing, which is an `essential and unchanging part' of Article III's case-or-controversy requirement, and a key factor in dividing the power of government between the courts and the two political branches." Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (internal citations omitted) (quoting Lujan, 504 U.S. at 559-60, 112 S.Ct. 2130).
Raines v. Byrd
The question whether members of Congress have standing to sue Executive Branch officials is neither novel nor unsettled. Indeed, this case is squarely within the holding of Raines v. Byrd. The Supreme Court in Raines emphasized that in cases of inter-branch disputes between the Executive and Legislative Branches of government, courts must conduct a more exacting scrutiny of standing, particularly
Like the congressmen here, the plaintiffs in Raines were a small number of members of Congress suing the Executive Branch. They challenged the constitutionality of the Line Item Veto Act, 2 U.S.C. § 691 et seq., which authorized the President to strike, or "veto," specific items or provisions within appropriations legislation. Although the plaintiffs in Raines had voted against the bill, both the Senate and the House passed the legislation by wide margins, and President Clinton signed it into law.
After losing the fight in Congress, the congressmen in Raines brought their challenge to court, arguing that the Act "unconstitutionally expand[ed] the President's power" and "violate[d] the requirements of bicameral passage and presentment by granting to the President, acting alone, the authority to `cancel' and thus repeal provisions of federal law." Raines, 521 U.S. at 816, 117 S.Ct. 2312. The Line Item Veto Act, they contended, "divest[ed] the plaintiffs of their constitutional role in the repeal of legislation," and "alter[ed] the constitutional balance of powers between the Legislative and Executive Branches." Id. The District Court found that the congressmen's claim that the Act "dilute[d] their Article I voting power" was a sufficient injury to confer standing, and ultimately found that the Act violated the Presentment Clause of the Constitution, amounting to an unconstitutional delegation of legislative power to the President. See Byrd v. Raines, 956 F.Supp. 25, 31, 32-38 (D.D.C.1997). On direct review, the Supreme Court vacated the District Court's ruling, and held that the plaintiffs could not meet "the bedrock requirement" of standing:
521 U.S. at 818-19, 117 S.Ct. 2312 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)).
In order to establish standing, the Supreme Court emphasized, a plaintiff must show that the "claimed injury is personal, particularized, concrete, and otherwise judicially cognizable." 521 U.S. at 820, 117 S.Ct. 2312. The Court underscored that the injury must be personal to that plaintiff in order to satisfy the Article III case-or-controversy requirement:
Id. at 818-19, 117 S.Ct. 2312; see also Lujan, 504 U.S. at 561 n. 1, 112 S.Ct. 2130 ("By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.").
The Supreme Court characterized the congressmen's alleged injury in Raines as
B. The Application of
The injuries in Raines are precisely the type of injuries raised here. The complaint alleges that plaintiffs have standing because President Bush failed to obtain congressional consent to withdraw from the ABM Treaty, and hence they were "deprived of their constitutional right and duty to participate in treaty termination." Compl. ¶ 13. Plaintiffs allege that the Constitution requires "that the making, modifying, and terminating of treaties be the joint prerogative of the executive and legislative branches," and that in light of the Constitution's checks and balances "the President has a duty to seek and obtain the concurrence of two-thirds of the Senate or a majority of both Houses for the termination of a treaty." Compl. ¶¶ 11-12. As their complaint characterizes it, "plaintiffs have sustained a grievous institutional injury by being deprived of their constitutional right and duty to participate in treaty termination." Id. at ¶ 13. This alleged injury mirrors that claimed in Raines, where the congressmen argued they were "divest[ed] ... of their constitutional role in the repeal of legislation." 521 U.S. at 816, 117 S.Ct. 2312. It is, effectively, the same institutional injury as in Raines, where the Line Item Veto Act allegedly "alter[ed] the constitutional balance of powers between the Legislative and Executive Branches." Id.
There are striking similarities between the claims in Raines and the claims here. Both groups of congressmen brought their claims in "their official capacities as members of the United States Congress." Compare Compl. ¶ 6 with Raines, 521 U.S. at 816, 117 S.Ct. 2312. Both allege injuries to the constitutional role and power of the Legislative Branch — here, in the treaty termination process, and in Raines, in the repeal of legislation. In both cases, all members of Congress (not just those bringing the lawsuit) suffered the alleged injuries equally. Indeed, the congressmen here conceded at the hearing on the parties' motions that their alleged injuries extend to all members of the House and Senate, just as the injury alleged in Raines did. See 521 U.S. at 821, 117 S.Ct. 2312 (injury "necessarily damage[d] all Members of Congress and both Houses of Congress equally").
In each case, moreover, the congressmen had actually voted on measures they opposed, but lost the vote. In Raines, the congressmen had voted on the legislation establishing the Line Item Veto Act: "[T]heir votes were given full effect. They simply lost that vote." 521 U.S. at 824, 117 S.Ct. 2312. Likewise, here the congressmen voted on a resolution against President Bush's termination of the Treaty, and lost. On June 6, 2002, Representative Kucinich offered a resolution in the House:
Simply put, Raines teaches that generalized injuries that affect all members of Congress in the same broad and undifferentiated manner are not sufficiently "personal" or "particularized," but rather are institutional, and too widely dispersed to confer standing.
Id. at 821, 117 S.Ct. 2312 (citations omitted; emphasis in original). In short, "the institutional injury they allege is wholly abstract and widely dispersed." Id. at 829, 117 S.Ct. 2312. So, too, here the claim that plaintiffs were deprived of a constitutional right and duty to participate in treaty termination is, like the dilution of legislative power alleged in Raines, an institutional injury lacking a personal, particularized nature.
Raines, 521 U.S. at 821, 117 S.Ct. 2312 (emphasis in original).
Thus, in nearly every respect, plaintiffs' alleged injuries are effectively the same as those raised in Raines, involving a similar alleged loss of legislative power to the Executive Branch. Both groups of congressmen asserted purely institutional injuries that were not personal to the individual congressmen. Under Raines, then, the plaintiffs here do not have standing.
C. Decisions Subsequent to
This Circuit has applied Raines in two subsequent cases, underscoring the principle that absent some discrete, personal, particularized injury, a handful of congressmen will not have standing to bring suit against the Executive Branch. Each case — like this one — involved congressmen suing the President over an alleged diminution of their roles as members of Congress.
In Chenoweth v. Clinton, 181 F.3d 112 (D.C.Cir.1999), four congressmen brought suit against President Clinton challenging an environmental program enacted through executive order rather than legislation. The President's use of an executive order, plaintiffs claimed, "deprived [them] of their constitutionally guaranteed responsibility of open debate and vote on issues and legislation" involving interstate commerce and the expenditure of federal money. 181 F.3d at 113. The alleged injury in Chenoweth was "predicated upon the theory that ... the President denied them their proper role in the legislative process and, consequently, diminished their power as Members of Congress." Id. Finding Raines dispositive, the court concluded that the congressmen did not have standing and dismissed the case:
Id. at 115 (citations omitted). The court found the plaintiffs' claimed injury — the "dilut[ion of] their authority as members of Congress" — was "indistinguishable from the claim to standing the Supreme Court rejected in Raines." Id. at 117.
The same result was reached in Campbell v. Clinton, 203 F.3d 19 (D.C.Cir.2000). There, thirty-one congressmen challenged President Clinton's use of armed forces in Yugoslavia, claiming that the President "acted illegally — in excess of his authority — because he waged war in the constitutional sense without a congressional delegation," in violation of the War Powers Resolution, thereby "inflict[ing] an institutional injury upon Congress, in this case
The injuries alleged in Chenoweth and Campbell — which the Court of Appeals found were insufficient to establish standing — are much like the injuries claimed here. The congressmen claim that they have been divested of their constitutional role in treaty termination. That is no different from the alleged injury in Chenoweth — being divested of a role in voting on and approving or rejecting legislation — or the alleged injury in Campbell — being divested of a role in declaring war. Indeed, the injury alleged by plaintiffs here, that President Bush's termination of the ABM Treaty "dilute[d] their Article I voting power," is virtually indistinguishable from the injuries asserted in Chenoweth and Campbell, which also involved alleged dilution of authority as members of Congress. Plaintiffs do not — and cannot — explain how their alleged injuries are personal to them. Rather, their claim of a "grievous institutional injury" where they are "deprived of their constitutional right ... to participate in treaty termination" is no different from the institutional injuries alleged in Chenoweth, Campbell, and Raines.
D. Political Remedies
The conclusion that plaintiffs do not have standing is reinforced by the fact that, in addition to seeking judicial resolution, they have a number of other, equally effective remedies available to pressure the President to obtain congressional consent to the termination of the ABM Treaty. Plaintiffs assert that "[g]iven the President's mistaken view of his authority to engage in treaty termination on his own, Plaintiffs are completely without any legislative remedy to rectify the President's proposed unlawful termination of the ABM Treaty." Compl. ¶ 14. The Court disagrees. These congressmen have remedies they can use as political leverage to prevent the President's unilateral termination of the ABM Treaty as part of the give-and-take discussion and compromise envisioned by the Framers of the Constitution. Indeed, the availability of legislative countermeasures was a factor in the Supreme Court's decision in Raines. See 521 U.S. at 829, 117 S.Ct. 2312; see also id. at 821, 117 S.Ct. 2312 ("In the future, a majority of Senators and Congressmen can pass or reject appropriations bills; the Act has no effect on this process.").
The fact that plaintiffs have several political arrows in their legislative quiver underscores the reluctance of courts needlessly to involve themselves in inter-branch disputes. "Because the parties' dispute is therefore fully susceptible to political resolution, we would ... dismiss the complaint to avoid meddl[ing] in the internal affairs of the legislative branch." Chenoweth, 181 F.3d at 116 (citation omitted). "Historically, political disputes between Members of the Legislative and the Executive Branches were resolved without resort to the courts." Id. at 113-14.
Id. at 1005 n. 1, 100 S.Ct. 533 (quoting Goldwater v. Carter, 617 F.2d 697, 716 (D.C.Cir.1979) (Wright, J., concurring)). And in Campbell, the court also stressed that the congressmen had other remedies:
Id. at 23. These political remedies are part of the fabric of Raines:
Id. at 24.
Like the congressmen in Raines, Goldwater, and Campbell, plaintiffs here had extensive "self-help" remedies available to pressure President Bush on terminating the ABM Treaty without Congressional consent. Congressmen can certainly influence a President's actions through the appropriations power by, for example, attempting to deny funding for any ABM system President Bush seeks to build or deploy. See Campbell, 203 F.3d at 23. They could even pass legislation, perhaps over President Bush's veto, prohibiting the development or deployment of ABM systems. Congress could also refuse to fund unrelated matters that were important to the President, or even reduce budgets for the Executive Branch; the Senate could reject presidential nominees, or could refuse to provide consent to enter into other treaties submitted by the President; and as a last resort, Congress always has the option of impeachment. See id.
E. Plaintiffs' Lack Authority to Bring Suit
Equally importantly, the thirty-two congressmen here have not been authorized, implicitly or explicitly, to bring this lawsuit on behalf of the House, a committee of the House, or Congress as a whole. Indeed, in the year since President Bush announced his intention to withdraw from the ABM Treaty, neither the House nor Congress has made any attempt whatsoever to register disapproval as a body, or to insist on a role in the termination of the Treaty. In Raines, the Supreme Court "attach[ed] some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action." 521 U.S. at 829, 117 S.Ct. 2312. The Supreme Court has observed that individual members of Congress cannot represent the interests of an entire House or all of Congress:
United States v. Ballin, 144 U.S. 1, 7, 12 S.Ct. 507, 36 L.Ed. 321 (1892); see also Reed v. County Commissioners, 277 U.S. 376, 388, 48 S.Ct. 531, 72 L.Ed. 924 (1928) (suit by a committee or subcommittee failed absent specific authority from the House); Bender v. Williamsport Area School Dist., 475 U.S. 534, 544, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ("Generally speaking, members of collegial bodies do not have standing to perfect an appeal the body itself has declined to take."); cf. United States House of Representatives v. United States Dep't of Commerce, 11 F.Supp.2d 76, 89 (D.D.C.1998) (full House of Representatives specifically authorized to bring suit through statutory provision).
It is entirely logical, from an institutional standpoint, that a group of congressmen bringing suit in court, purportedly to protect Congress's interests, must first have the authority to represent the interests of Congress, the House of Representatives, or the Senate. Permitting individual congressmen to run to federal court any time they are on the losing end of some vote or issue would circumvent and undermine the legislative process, and risk substituting judicial considerations and assessments for legislative ones. In Goldwater v. Carter,
Id. Raines also relies on the availability of alternate remedies, coupled with an absence of voiced Congressional support for the lawsuit, as a reason to find no standing. Here, there is no claim that Congress, as an institution, has asserted its role in the treaty termination process, and there is certainly nothing to suggest that these thirty-two congressmen speak on behalf of Congress as a whole.
Of course, this is not the first time that members of Congress have sued the President because he terminated a treaty without obtaining congressional consent. Prior to Raines, twenty-five congressmen sued President Carter in Goldwater v. Carter, on the precise grounds asserted by the plaintiffs here, but the Supreme Court dismissed the case as nonjusticiable. Defendants assert that pursuant to Goldwater, plaintiffs' claim is likewise not justiciable because the issue involves a congressional challenge to the plenary authority of the President to conduct foreign relations, which is a "political question." This Court agrees that, even if these congressmen somehow had standing to bring this lawsuit, the treaty termination issue is nonetheless a nonjusticiable political question best left for resolution to the political branches of our government.
Goldwater v. Carter
Goldwater is the only Supreme Court decision to date that addresses the constitutional role of Congress in treaty termination. In 1979, as a precondition for formally recognizing the People's Republic of China, President Carter unilaterally terminated a 25-year-old mutual defense treaty with Taiwan, without obtaining congressional consent. Eight senators, one former senator, and sixteen House members "claim[ed] that the President's action in terminating the treaty with Taiwan has deprived them of their constitutional role with respect to a change in the supreme law of the land." 444 U.S. at 997-98, 100 S.Ct. 533 (Powell, J., concurring). By a 6-3 vote, the Supreme Court remanded to the District Court and ordered the case
The Court's ruling resulted in four opinions, two concurring in the judgment and two dissenting. Four Justices in the majority — Justices Rehnquist, Stevens and Stewart, and Chief Justice Burger — concluded that the case should be dismissed because the issue presented a nonjusticiable political question that was inappropriate for resolution by the courts. Justice Powell concurred, finding that the issue was "not ripe for judicial review" because neither Congress nor the President had asserted their constitutional authority to the point of political impasse. Justice Marshall simply concurred in the result.
Three Justices dissented from the Court's order to remand for dismissal. Without reaching the merits, Justices Blackmun and White stated only that the case should be set for oral argument and considered fully. Justice Brennan disagreed that the issue was nonjusticiable and concluded that the President had a constitutional right to withdraw from the treaty, without congressional consent, given "the President's well-established authority to recognize, and withdraw recognition from, foreign governments." Id. at 1006, 100 S.Ct. 533 (Brennan, J., dissenting).
None of the opinions in Goldwater obtained a majority of votes, and hence no single rationale controls. To be sure, six Justices voted for dismissal on jurisdictional grounds, but only four expressly agreed that the issue was a nonjusticiable political question. As a result, there is no obviously binding holding in Goldwater.
"When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds.'" Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (opinion of Stewart, Powell, and Stevens, JJ.)). However, the rule in Marks only applies when the concurrence is implicitly in agreement with the view of a majority of justices:
Ass'n of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1254 (D.C.Cir.1998) (quoting King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991)); see also Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161, 170 (3rd Cir.1999) ("in cases where the approaches differ, no particular standard is binding on an inferior court because none has received the support of a majority of the Supreme Court"). Thus, the Supreme Court's ruling in Marks "is workable — one opinion can be meaningfully regarded as `narrower' than another — only when one opinion is a logical subset of other, broader opinions." King, 950 F.2d at 781.
That is not the case in Goldwater. The plurality's conclusion that the termination of treaties is a nonjusticiable political question did not garner a majority. Justice Powell's concurring opinion, moreover, did not "implicitly approve" of Justice Rehnquist's plurality rationale, and in fact explicitly disagreed with it: "Mr. Rehnquist suggests, however, that the issue presented by this case is a nonjusticiable political question which can never be considered by
Id. at 1001, 100 S.Ct. 533. Moreover, Justice Marshall merely concurred in the result, without joining any rationale. It cannot fairly be said, moreover, that ripeness (Justice Powell's rationale) is a "logical subset" of political question (the plurality's rationale) — although perhaps narrower because it deals only with timing. Both are prongs of the case-or-controversy requirement under Article III, but they are independent justiciability doctrines.
Nonetheless, Justice Rehnquist's plurality opinion in Goldwater is instructive and compelling. See Made in the USA Foundation v. United States, 242 F.3d 1300, 1305 (11th Cir.2001) (finding plurality opinion in Goldwater "instructive, if not controlling"). The plurality concluded that the claim that President Carter was constitutionally required to obtain congressional consent before terminating a treaty could not be resolved by the courts:
444 U.S. at 1002-03, 100 S.Ct. 533 (Rehnquist, J., concurring).
In finding the claim nonjusticiable, Justice Rehnquist emphasized the lack of any textual provision providing either branch with authority for treaty termination. He reasoned that because the Constitution spoke only to the procedure for making a treaty, but not to a treaty's termination, "the situation presented here is closely akin to that presented in Coleman, where the Constitution spoke only to the procedure for ratification of an amendment, not its rejection." Id. at 1005, 100 S.Ct. 533; see also Coleman, 307 U.S. at 450, 59 S.Ct. 972.
444 U.S. at 1003, 100 S.Ct. 533 (citation omitted). While Justice Powell agreed that the issue was not justiciable, he concluded that the reason was a lack of ripeness:
Id., at 996-98, 100 S.Ct. 533.
B. Political Question
Like standing, the "political question" doctrine stems from the case-or-controversy
369 U.S. at 217, 82 S.Ct. 691. In fact, "any one of [these] characteristics may be sufficient to preclude judicial review" under the political question doctrine. Made in the USA Foundation, 242 F.3d at 1312. Several of these factors are present here.
To be sure, "while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body's participation in the abrogation of a treaty." Goldwater, 444 U.S. at 1003, 100 S.Ct. 533 (Rehnquist, J., concurring); see also Made in the USA Foundation, 242 F.3d at 1315 (the Constitution "fails to outline the Senate's role in the abrogation of treaties"). There is thus no textual commitment of the authority over treaty termination to any branch of the government. The Constitution, however, clearly relegates authority over foreign affairs to the Executive and Legislative Branches, with no role for the Judicial Branch to second-guess or reconsider foreign policy decisions. "[M]atters relating `to the conduct of foreign relations ... are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.'" Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589, 72 S.Ct. 512, 96 L.Ed. 586 (1952)).
Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948); see also Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 386, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) ("the nuances of the foreign policy of the United States ... are much more the province of the Executive Branch and Congress than of this Court") (citation omitted).
At the same time, it would be "error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance." Baker, 369 U.S. at 211, 82 S.Ct. 691. But on the very issue before this Court — whether the Constitution provides a congressional role in treaty termination — four Justices in Goldwater concluded that the issue was a nonjusticiable political question "because it involve[d] the authority of the President in the conduct
The circumstances here present "an unusual need for unquestioning adherence to a political decision already made." Baker, 369 U.S. at 217, 82 S.Ct. 691. President Bush publicly announced his intention to withdraw from the ABM Treaty on December 13, 2001, providing Russia with the six-months notice required by the Treaty. These thirty-two congressmen, however, waited until two days before that termination became effective to bring this lawsuit. Meanwhile, long aware of the intention of the United States to withdraw from the ABM Treaty, Russia may have acted based upon the President's notice of termination. Foreign governments must be able to rely upon the pronouncements of the United States regarding its treaties.
Hence, were this Court to find the President acted unconstitutionally, and overturn his decision to terminate the ABM Treaty more than a year after he announced the decision, "the potential of embarrassment from multifarious pronouncements by various departments on one question" would be undeniable. Baker, 369 U.S. at 217, 82 S.Ct. 691; see also Made in the USA Foundation, 242 F.3d at 1305. "In determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments ... [is a] dominant consideration." Coleman, 307 U.S. at 454-55, 59 S.Ct. 972. With treaties, in particular, a single voice is needed:
Holmes v. Laird, 459 F.2d 1211, 1215 (D.C.Cir.1972) (quoting Baker, 369 U.S. at 211, 82 S.Ct. 691).
Courts have therefore repeatedly held that issues concerning treaties are largely political questions best left to the political branches of the government, not the courts, for resolution.
Lastly, this Court is further convinced that the issue presented here is nonjusticiable because "undertaking independent resolution" of the issue would result in a failure to accord the "respect due coordinate branches of government." Baker, 369 U.S. at 217, 82 S.Ct. 691. Justice Powell concluded in Goldwater that the treaty termination issue was not ripe because the political branches had not reached a "constitutional impasse." Likewise, this Court should not rule on the claim of thirty-two congressmen that President Bush ignored the constitutional role of Congress in the treaty termination process, when Congress itself has not even asserted that it has been deprived of any constitutional right. As Justice Powell stated, courts should refrain from resolving disputes raised by only a small number of congressmen:
444 U.S. at 996, 100 S.Ct. 533. In resolving an issue that neither the House nor the Senate has yet deemed worth asserting, this Court would preempt what is clearly the prerogative of Congress, and could not do so "without expressing lack of the respect due coordinate branches of government." Baker, 369 U.S. at 217, 82 S.Ct. 691. Indeed, such judicial action might simply encourage congressmen to run to court any time they disagreed with Presidential action (on a treaty or other foreign relations issue) or were on the losing end of a piece of legislation. See 444 U.S. at 997, 100 S.Ct. 533 (Powell, J., concurring).
The Court concludes that because plaintiffs have alleged only an institutional injury to Congress, not injuries that are personal and particularized to themselves, under Raines v. Byrd they do not have standing to bring this lawsuit. The Court also concludes that under Goldwater v. Carter the issue raised by these congressmen is a nonjusticiable political question. Therefore, defendants' motion to dismiss or, in the alternative, for summary judgment is granted, and plaintiffs' motion for summary judgment is denied. Plaintiffs' complaint is therefore dismissed.
A separate order has been issued on this date.
Upon consideration of plaintiffs' motion for summary judgment and defendants' motion to dismiss or, in the alternative, for summary judgment, and the entire record herein, and for the reasons stated in the Memorandum Opinion issued on this date, it is by the Court this 30th day of December, 2002, hereby
ORDERED that plaintiffs' motion is DENIED; and it is further
ORDERED that defendants' motion is GRANTED and this action is dismissed in its entirety.
Raines, 521 U.S. at 823-24, 117 S.Ct. 2312 (citations omitted).