SCHLESINGER, SECRETARY OF DEFENSE, ET AL. v.
RESERVISTS COMMITTEE TO STOP THE WAR ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
Argued January 14, 1974.
Decided June 25, 1974.
Respondents - an association of present and former members of the Armed Forces Reserve opposing United States involvement in Vietnam, and five association members who were United States citizens and taxpayers - brought a class action on behalf, inter alia, of all United States citizens and taxpayers against petitioners, the Secretary of Defense and the three Service Secretaries, challenging the Reserve membership of Members of Congress as violating the Incompatibility Clause of Art. I, 6, cl. 2, of the Constitution, which provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." The District Court held that respondents had standing to sue as citizens but not as taxpayers, and on the merits granted partial relief. The Court of Appeals affirmed.
BURGER, C. J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed a concurring opinion, post, p. 228. DOUGLAS, J., [418 U.S. 208, 209] filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 229. BRENNAN, J., post, p. 235, and MARSHALL, J., post, p. 238, filed dissenting opinions.
Solicitor General Bork argued the cause for petitioners. With him on the brief were Acting Assistant Attorney General Jaffe, Deputy Solicitor General Friedman, Leonard Schaitman, and William D. Appler.
William A. Dobrovir argued the cause and filed a brief for respondents. *
[ Footnote * ] Thomas H. King, Maurice F. Biddle, and Harold Shapiro filed a brief for the Reserve Officers Association of the United States as amicus curiae.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari, sub nom. Richardson v. Reservists Committee to Stop the War, 411 U.S. 947 (1973), to review the judgment of the Court of Appeals affirming, without opinion, the District Court's partial summary judgment for respondents declaring that "Article I, Section 6, Clause 2 of the Constitution renders a member of Congress ineligible to hold a commission in the Armed Forces Reserve during his continuance in office." Reservists Committee to Stop the War v. Laird, 323 F. Supp. 833, 843 (DC 1971). We hold that respondents do not have standing to sue as citizens or taxpayers. The judgment of the Court of Appeals is therefore reversed.
Article I, 6, cl. 2, of the Federal Constitution provides:
Respondents, the Reservists Committee to Stop the War and certain named members thereof, 1 challenged the Reserve membership of Members of Congress 2 as being [418 U.S. 208, 211] in violation of the Incompatibility Clause. They commenced a class action in the District Court against petitioners, the Secretary of Defense and the three Service Secretaries, seeking (1) an order in the nature of mandamus directed to petitioners requiring them to strike from the rolls of the Reserves all Members of Congress presently thereon, to discharge any member of the Reserves who subsequently became a Member of Congress, and to seek to reclaim from Members and former Members of Congress any Reserve pay said Members received while serving as Members of Congress, (2) a permanent injunction preventing petitioners from placing on the rolls of the Reserves any Member of Congress while serving in Congress, and (3) a declaration that membership in the Reserves is an office under the United States prohibited to Members of Congress by Art. I, 6, cl. 2, and incompatible with membership in the Congress.
Respondents sought the above relief on behalf of four classes of persons. The Committee and the individual respondents sought to represent the interests of (1) all persons opposed to United States military involvement in Vietnam and purporting to use lawful means, including communication with and persuasion of Members of Congress, to end that involvement. The individual respondents alone sought to represent the interests of (2) all officers and enlisted members of the Reserves who were not Members of Congress, (3) all taxpayers of the United States, and (4) all citizens of the United States. The interests of these four classes were alleged to be adversely affected by the Reserve membership of Members of Congress in various ways. [418 U.S. 208, 212]
As relevant here, citizens and taxpayers were alleged in respondents' complaint to have suffered injury because Members of Congress holding a Reserve position in the Executive Branch were said to be subject to the possibility of undue influence by the Executive Branch, 3 in violation of the concept of the independence of Congress implicit in Art. I of the Constitution. Reserve membership was also said to place upon Members of Congress possible inconsistent obligations which might cause them to violate their duty faithfully to perform as reservists or as Members of Congress. Reserve membership by Members of Congress thus, according to respondents' complaint,
The District Court concluded that it first had to determine whether respondents had standing to bring the action and, without citation to authority, stated:
In response to petitioners' contention that the Incompatibility Clause sets forth a qualification only for Membership in the Congress, which Congress alone might judge, the District Court characterized the issue as whether respondents presented a nonjusticiable "political question," resolution of which by the text of the Constitution was committed to the Congress under Baker v. Carr, 369 U.S. 186, 217 (1962). The court held that the failure of the Executive Branch to remove reservist Members of Congress from their Reserve positions was justiciable. [418 U.S. 208, 214]
Having resolved the issues of standing and political question in favor of respondents, the District Court held on the merits that a commission in the Reserves is an "Office under the United States" within the meaning of the Incompatibility Clause. On the basis of the foregoing, the court in its final order granted partial summary judgment for respondents by declaring that the Incompatibility Clause renders a Member of Congress ineligible, during his continuance in office, to hold a Reserve "commission"; the court denied such parts of respondents' motion for summary judgment which sought a permanent injunction and relief in the nature of mandamus. 4 323 F. Supp., at 843.
The Court of Appeals affirmed the judgment of the District Court in an unpublished opinion "on the basis of the memorandum opinion of the District Court." The Court of Appeals added that it was "also of the view that [respondents] have the requisite standing and that their claim is judicially enforceable under the rationale of" Flast v. Cohen, 392 U.S. 83 (1968), and Baker v. Carr, supra. Petitioners present three questions for review: (1) whether respondents have standing, "either as citizens or as federal taxpayers," to bring this claim, (2) whether respondents' claim presents a "political question" not subject to judicial review, and (3) whether "membership" in the Reserves constitutes an "Office under the United States" within the meaning of the Incompatibility Clause. Pet. for Cert. 2. [418 U.S. 208, 215]
In Flast v. Cohen, supra, at 95, the Court noted that the concept of justiciability, which expresses the jurisdictional limitations imposed upon federal courts by the "case or controversy" requirement of Art. III, embodies both the standing and political question doctrines upon which petitioners in part rely. Each of these doctrines poses a distinct and separate limitation, Powell v. McCormack, 395 U.S., at 512 ; Baker v. Carr, supra, at 198, so that either the absence of standing or the presence of a political question suffices to prevent the power of the federal judiciary from being invoked by the complaining party. The more sensitive and complex task of determining whether a particular issue presents a political question causes courts, as did the District Court here, to turn initially, although not invariably, 5 to the question of standing to sue. In light of the District Court's action we turn to petitioners' contention that respondents lacked standing to bring the suit. Our conclusion that the District Court erred in holding that respondents had standing to sue as United States citizens, [418 U.S. 208, 216] but was correct in denying respondents' standing as taxpayers, eliminates the need to consider the other questions presented by petitioners.
The District Court considered standing as to each of the four capacities in which respondents brought suit; it rejected standing as to three of the four, holding that respondents could sue only as citizens. The Court of Appeals' judgment of affirmance, based solely upon the opinion of the District Court, did not alter the District Court's ruling on standing. The standing question presented in the petition for certiorari is addressed to the District Court's holding on citizen standing and seeks to add the question whether respondents also had standing as taxpayers. 6 Respondents do not contend that the District Court erred in denying standing to them in the other two capacities in which they sought to proceed, i. e., as opponents of American military involvement in Vietnam, and as reservists. We therefore proceed to consideration of respondents' standing only as citizens and taxpayers.
The only interest all citizens share in the claim advanced by respondents is one which presents injury in the abstract. Respondents seek to have the Judicial Branch compel the Executive Branch to act in conformity with the Incompatibility Clause, an interest shared by all citizens. The very language of respondents' complaint, supra, at 212, reveals that it is nothing more than a matter of speculation whether the claimed nonobservance of that Clause deprives citizens of the faithful discharge of the legislative duties of reservist Members of Congress. And that claimed nonobservance, standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance, and that is an abstract injury. 7 The Court has previously declined to treat "generalized grievances" about the conduct of Government as a basis for taxpayer standing. Flast v. Cohen, 392 U.S., at 106 . We consider now whether a citizen has standing to sue under such a generalized complaint.
Our analysis begins with Baker v. Carr, 369 U.S. 186 (1962), where the Court stated that the gist of the inquiry must be whether the complaining party has
Ex parte Levitt, 302 U.S. 633 (1937), was the only other occasion in which the Court faced a question under Art. I, 6, cl. 2, although that challenge was made under the Ineligibility Clause, not the Incompatibility Clause involved here. There a petition was filed in this Court seeking an order to show cause why one of the Justices should not be disqualified to serve as an Associate Justice. The petition asserted that the appointment and confirmation of the Justice in August 1937 was unlawful because the Act of March 1, 1937, permitting Justices to retire at full salary after a period of specified service, thereby increased the emoluments of the office and that the statute was enacted while the challenged Justice was a Senator. The appointment of the Justice by the President and his confirmation by the Senate were thus said to violate the Ineligibility Clause which provides:
Moreover, when a court is asked to undertake constitutional adjudication, the most important and delicate of its responsibilities, the requirement of concrete injury further serves the function of insuring that such adjudication does not take place unnecessarily. This principle is particularly applicable here, where respondents seek an interpretation of a constitutional provision which has never before been construed by the federal courts. First, concrete injury removes from the realm of speculation whether there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party.
To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing "government by injunction."
Finally, the several considerations advanced by the District Court in support of respondents' standing as citizens do not militate against our conclusion that it was error to grant standing to respondents as citizens. First, the District Court acknowledged that any injury resulting from the reservist status of Members of Congress was hypothetical, but stressed that the Incompatibility Clause was designed to prohibit such potential for injury. 14 323 F. Supp., at 840. This rationale fails, however, to compensate for the respondents' failure to present a claim under that Clause which alleges concrete injury. The claims of respondents here, like the claim under the Ineligibility Clause in Levitt, supra, would require courts to deal with a difficult and sensitive issue of constitutional adjudication on the complaint of one who does not allege "a personal stake in the outcome of the controversy." Baker v. Carr, 369 U.S., at 204 . To support standing there must be concrete injury in a form which assures "the necessary specificity" called for by Flast, 392 U.S., at 106 , and "that concrete adverseness . . . upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, supra, at 204. [418 U.S. 208, 225] Standing was thus found by premature evaluation of the merits of respondents' complaint. 15
The District Court next acknowledged this Court's longstanding reluctance to entertain "generalized grievances about the conduct of government," Flast v. Cohen, 392 U.S., at 106 , but distinguished respondents' complaint from such grievances by characterizing the Incompatibility Clause as "precise [and] self-operative." 323 F. Supp., at 840. Even accepting that characterization of the Clause it is not an adequate substitute for the judicially cognizable injury not present here. Moreover, that characterization rested, as did the preceding characterization, on an interpretation of the Clause by way of the Court's preliminary appraisal of the merits of respondents' claim before standing was found. In any event, the Ineligibility Clause involved in Levitt, supra, is no less specific or less "precise [and] self-operative" than the Incompatibility Clause.
The District Court further relied on the fact that the adverse parties sharply conflicted in their interests and views and were supported by able briefs and arguments. Id., at 841. We have no doubt about the sincerity of respondents' stated objectives and the depth of their commitment to them. But the essence of standing
Furthermore, to have reached the conclusion that respondents' interests as citizens were meant to be protected by the Incompatibility Clause because the primary purpose of the Clause was to insure independence of each of the branches of the Federal Government, similarly involved an appraisal of the merits before the issue of standing was resolved. All citizens, of course, share equally an interest in the independence of each branch of Government. In some fashion, every provision of the Constitution [418 U.S. 208, 227] was meant to serve the interests of all. Such a generalized interest, however, is too abstract to constitute a "case or controversy" appropriate for judicial resolution. 16 The proposition that all constitutional provisions are enforceable by any citizen simply because citizens are the ultimate beneficiaries of those provisions has no boundaries.
Closely linked to the idea that generalized citizen interest is a sufficient basis for standing was the District Court's observation that it was not irrelevant that if respondents could not obtain judicial review of petitioners' action, "then as a practical matter no one can." Our system of government leaves many crucial decisions to the political processes. The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing. See United States v. Richardson, ante, at 179.
Here, the District Court, applying the Flast holding, denied respondents' standing as taxpayers for failure to satisfy the nexus test. We agree with that conclusion since respondents did not challenge an enactment under Art. I, 8, but rather the action of the Executive Branch in permitting Members of Congress to maintain their Reserve status. 17
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.
[ Footnote 2 ] At the time suit was filed, 130 Members of the 91st Congress were also members of the Reserves, which are divided into Ready, Standby, and Retired components. By the end of the 92d Congress, 119 Members were reservists. As of November 2, 1973, the 93d Congress has seen the number of its reservists reduced to 107, all but one of whom are commissioned officers, App. 5, and none of whom can occupy the Ready Reserve status of the individual respondents, supra, n. 1. Dept of Defense Directive 1200.7 v, c. 2 (July 2, 1970); 32 CFR 125.4 (c) (2). Of the 107, 20 (including the one enlisted man) are in the active, and 12 in the inactive, Standby Reserve; and 73 are in the Retired Reserve, 16 of whom receive retirement pay. Two other Members are in the Army National Guard, and thus in the Ready Reserve, 10 U.S.C. 269 (b), but since the governors of the various States control appointments to offices in the Guard, petitioners could not provide [418 U.S. 208, 211] relief regarding such reservists. The judgment of the District Court did not therefore extend to this category of reservist. 323 F. Supp. 833, 838 n. 3 (DC 1971).
[ Footnote 3 ] Respondents appear to have had reference in part to pressure that conceivably could be applied to reservist Members of Congress through such offices as the President's power to call reservists to active duty without their consent, 10 U.S.C. 672-675, or his power to discharge commissioned reservists, who serve only at his pleasure. 10 U.S.C. 593.
[ Footnote 4 ] Respondents did not, in the Court of Appeals, or by cross-petition here challenge the District Court's denial of injunctive and mandamus relief. In light of the ground for our disposition of the case, we need not and do not address ourselves to the validity or scope of the District Court's ruling on the merits of respondents' claim, or the relief it granted.
[ Footnote 5 ] The lack of a fixed rule as to the proper sequence of judicial analysis of contentions involving more than one facet of the concept of justiciability was recently exhibited by the Court of Appeals for the Second Circuit, which bypassed a determination on standing to rule that a claim was not justiciable because it presented a political question:
[ Footnote 6 ] The Court of Appeals did no more than affirm the judgment of the District Court, including the latter's denial of respondents' standing as taxpayers. Petitioners may, however, have sought to raise the issue of taxpayer standing in this Court because of the ambiguous reference in the Court of Appeals' judgment of affirmance to Flast v. Cohen, supra, a taxpayer-standing case.
[ Footnote 7 ] The generalized nature of respondents' claim is revealed by the scope of relief sought, i. e., removal of all reservist Members of Congress from Reserve status rather than the removal of only those reservist Members who manifested by their actions that they were influenced by their Reserve status to act adversely to respondents' interest.
[ Footnote 8 ] The Court cited a number of cases in support of its holding, nearly all of which contained language similar to that quoted in the text. See Frothingham v. Mellon, 262 U.S. 447, 488 (1923) (insufficient for a party to show "merely that he suffers in some indefinite way in common with people generally"); Fairchild v. Hughes, 258 U.S. 126, 129 -130 (1922) ("Plaintiff has only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit"); Tyler v. Judges of Court of Registration, 179 U.S. 405, 406 (1900) ("even in a proceeding which he prosecutes for the benefit of the public . . . [the plaintiff] must generally aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens"). See also Giles v. Harris, 189 U.S. 475, 486 (1903) (Holmes, J.) ("The plaintiff alleges that the whole registration scheme of the Alabama constitution is a fraud upon the Constitution of the United States, and asks us to declare it void. But of course he could not maintain a bill for a mere declaration in the air"). Cf. Newman v. Frizzell, 238 U.S. 537, 550 (1915).
[ Footnote 9 ] The Court has also recently cited with approval two of the principal cases relied upon in Ex parte Levitt, 302 U.S. 633 (1937). Frothingham v. Mellon, supra, was used for support in O'Shea v. Littleton, 414 U.S. 488, 494 (1974), as was Fairchild v. Hughes, supra, used in Baker v. Carr, 369 U.S. 186, 208 (1962).
[ Footnote 10 ] This is in sharp contrast to the political processes in which the Congress can initiate inquiry and action, define issues and objectives, and exercise virtually unlimited power by way of hearings and reports, thus making a record for plenary consideration and solutions. The legislative function is inherently general rather than particular and is not intended to be responsive to adversaries asserting specific claims or interests peculiar to themselves.
[ Footnote 11 ] We have expressed apprehension about claims of standing based on "mere `interest in a problem.'" See, e. g., Sierra Club, 405 U.S., at 739 . Earlier cases of the Court evidenced comparable concern. See, e. g., Newman v. Frizzell, 238 U.S., at 552 n. 8.
[ Footnote 12 ] Lamm v. Volpe, 449 F.2d 1202, 1204 (CA10 1971); Pietsch v. President of United States, 434 F.2d 861, 863 (CA2 1970) (Clark, J.); Troutman v. Shriver, 417 F.2d 171, 174 (CA5 1969) (citing Levitt, supra); Velvel v. Nixon, 415 F.2d 236, 239 (CA10 1969); Pauling v. McElroy, 107 U.S. App. D.C. 372, 374, 278 F.2d 252, 254 (1960); cf. Sharrow v. Brown, 447 F.2d 94, 97 (CA2 1971). And aside from the decision under review, the only other opinion that appears to have ruled otherwise is Atlee v. Laird, 339 F. Supp. 1347 (ED Pa. 1972), which relied upon the decision of the District Court here. Id., at 1357 n. 8.
[ Footnote 13 ] The Court of Appeals' reliance on Baker v. Carr, 369 U.S. 186 (1962), is inapposite. United States v. SCRAP, 412 U.S. 669 (1973), pointed out that a personal stake in a fraction of a vote in Baker v. Carr was sufficient to support standing. Id., at 689 n. 14. The injury asserted in Baker was thus a concrete injury to fundamental voting rights, as distinguished from the abstract injury in nonobservance of the Constitution asserted by respondents as citizens.
In Baker v. Carr, the Court cited with approval the early case of Liverpool, N. Y. & Phila. S. S. Co. v. Comm'rs of Emigration, 113 U.S. 33 (1885), where it was held that a federal court can adjudge rights only "in actual controversies." Id., at 39.
[ Footnote 14 ] The District Court made analogy to conflict-of-interest statutes which, it said, are directed at avoiding circumstances of potential, not actual, impropriety. We have no doubt that if the Congress enacted a statute creating such a legal right, the requisite injury for standing would be found in an invasion of that right. O'Shea v. Littleton, 414 U.S., at 493 n. 2; Linda R. S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973); Association of Data Processing Service Organization, Inc. v. Camp, 397 U.S. 150, 154 (1970). But to satisfy the Art. III prerequisite the complaining party would still be required to allege a specific invasion of the right suffered by him. Standing could not be found - as it is not here - in a citizen who alleged no more than the right of all other citizens to have government conducted without what he perceived, without himself having suffered concrete harm, to be proscribed conflicts of interest.
[ Footnote 15 ] Looking "to the substantive issues" which Flast stated to be both "appropriate and necessary" in relation to taxpayer standing was for the express purpose of determining "whether there is a logical nexus between the [taxpayer] status asserted and the claim sought to be adjudicated." 392 U.S., at 102 . This step is not appropriate on a claim of citizen standing since the Flast nexus test is not applicable where the taxing and spending power is not challenged. Hence there was no occasion for the District Court or the Court of Appeals to reach or evaluate what it saw as the merits of respondents' complaint.
[ Footnote 16 ] Satisfaction of the Data Processing "zone of interest" requirement seemingly relied upon to find citizen standing does not support such standing for two reasons: first, that case involved judicial review under the Administrative Procedure Act of regulatory agency action alleged to have caused private competitive injury; second, Data Processing required a showing of injury in fact, in addition to the "zone of interest" requirement. Until a judicially cognizable injury is shown no other inquiry is relevant to consideration of citizen standing.
[ Footnote 17 ] As noted earlier, supra, at 211, respondents requested the District Court to compel petitioners to seek to reclaim Reserve pay received by reservist Members of Congress. Such relief would follow from the invalidity of Executive action in paying persons who could not lawfully have been reservists, not from the invalidity of the statutes authorizing pay to those who lawfully were Reservists.
MR. JUSTICE STEWART, concurring.
I agree with the Court that the respondents lack standing to sue either as citizens or taxpayers in this case. Here, unlike United States v. Richardson, ante, p. 166, the respondents do not allege that the petitioners have refused to perform an affirmative duty imposed upon [418 U.S. 208, 229] them by the Constitution. Nor can there be taxpayer standing under Flast v. Cohen, 392 U.S. 83 , since there is simply no challenge to an exercise of the taxing and spending power.
The Court's judgment in this case is wholly consistent with United States v. SCRAP, 412 U.S. 669 . Standing is not today found wanting because an injury has been suffered by many, but rather because none of the respondents has alleged the sort of direct, palpable injury required for standing under Art. III. Like the plaintiff in Frothingham v. Mellon, 262 U.S. 447 , the respondents seek only to air what we described in Flast as "generalized grievances about the conduct of government." 392 U.S., at 106 . Our prior cases make clear that such abstract allegations cannot suffice to confer Art. III standing, and I therefore join the opinion and judgment of the Court.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL joins, dissenting.
The requirement of "standing" to sue is a judicially created instrument serving several ends: (1) It protects the status quo by reducing the challenges that may be made to it and to its institutions. It greatly restricts the classes of persons who may challenge administrative action. Its application in this case serves to make the bureaucracy of the Pentagon more and more immune from the protests of citizens. (2) It sometimes is used to bar from the courts questions which by the Constitution are left to the other two coordinate branches to resolve, viz., the so-called political question. (3) It is at times a way of ridding court dockets whether of abstract questions or questions involving no concrete controversial issue.
Our leading case is Frothingham v. Mellon, 262 U.S. 447 , decided in 1923, where a taxpayer challenged the constitutionality of an Act of Congress that gave grants [418 U.S. 208, 230] to States which agreed to a plan to reduce maternal and infant mortality. The Court said:
In 1968 - 45 years after Frothingham - that case was revisited in Flast v. Cohen, 392 U.S. 83 , where federal taxpayers sued to enjoin the expenditure of federal funds under an Act of Congress granting financial aid to religious schools. The Court held that those taxpayers did have "standing" to sue for two reasons. First, because they challenged the exercise of congressional power under the Taxing and Spending Clause of Art. I, 8, of the Constitution, not the incidental expenditure of tax funds in the administration of an essentially regulatory statute. Second, because the challenged enactment exceeded the limitations imposed upon the exercise of the congressional taxing and spending power. See 392 U.S., at 102 -104. Therefore, the Court concluded that the taxpayer had "the requisite personal stake," id., at 101, in the litigation to have "standing" to sue and the Court went on to hold that the Establishment Clause of the First Amendment "operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, 8." 392 U.S., at 104 .
The present case implicates two provisions of the Constitution. Article I, 8, cl. 1, provides: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . ." Article I, 6, cl. 2, of the Constitution says that "no Person holding any Office 1 under the United [418 U.S. 208, 232] States, shall be a Member of either House during his Continuance in Office."
The present suit is not one to oust Members from Congress. Rather it is brought against the Secretary of Defense challenging his keeping in the Armed Services of the United States Members of Congress who hold commissions as reservists.
Various Acts of Congress make various appropriations for the services of reservists. See, e. g., Pub. L. 92-145, 85 Stat. 414; Pub. L. 92-545, 801 et seq., 86 Stat. 1154.
Article I, 6, cl. 2, is often referred to as the Incompatibility Clause. At the 1783 convention some proposed that Members of Congress be allowed to serve in the Executive Branch, 2 others were opposed; Mason apparently represented the majority view when he insisted that "ineligibility will keep out corruption, by excluding office-hunters." 3 Article I, 6, cl. 2, like the Establishment Clause of the First Amendment, "was designed as a specific bulwark against such potential abuses . . . and . . . operates as a specific constitutional limitation upon" such expenditures. Flast v. Cohen, supra, at 104.
As stated by Hamilton in The Federalist No. 76, p. 476 (H. Lodge ed. 1888), the Incompatibility Clause had a specific purpose: to avoid "the danger of executive influence upon the legislative body."
While respondents have standing as taxpayers, their citizenship also gives them standing to challenge the appropriation acts financing activities of the reservists.
We tend to overlook the basic political and legal reality that the people, not the bureaucracy, are the sovereign. Our Federal Government was created for the security and happiness of the people. Executives, lawmakers, and [418 U.S. 208, 233] members of the Judiciary are inferior in the sense that they are in office only to carry out and execute the constitutional regime.
The Preamble of the Constitution states that "We the People" ordained and established the Constitution.
The Declaration of Independence stated that to insure "certain unalienable Rights," "Governments are instituted among Men, deriving their just powers from the consent of the governed" and "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it."
The present case does not involve a restructuring of society - a procedure left to legislative action in part but mostly to constitutional conventions. All that the citizens in this case seek is to have the Constitution enforced as it is written. It is not a suit to unseat Members of Congress. Any decree that issued would run to the Secretary of Defense to take the challenged reservists off his list.
The interest of citizens is obvious. The complaint alleges injuries to the ability of the average citizen to make his political advocacy effective whenever it touches on the vast interests of the Pentagon. It is said that all who oppose the expansion of military influence in our national affairs find they are met with a powerful lobby - the Reserve Officers Association - which has strong congressional allies.
Whether that is true or not we do not know. So far as the Incompatibility Clause of the Constitution is concerned that contention is immaterial. It is as immaterial to the function of Art. I, 6, cl. 2, of the Constitution as would be a suggestion that the establishment of a religion under the First Amendment is benign in a given case. What the Framers did in each case was to set up constitutional fences barring certain affiliations, certain kinds of appropriations. Their judgment was that the [418 U.S. 208, 234] potential for evil was so great that no appropriations of that character should be made.
The interest of citizens in guarantees written in the Constitution seems obvious. Who other than citizens has a better right to have the Incompatibility Clause enforced? It is their interests that the Incompatibility Clause was designed to protect. The Executive Branch under our regime is not a fiefdom or principality competing with the Legislative as another center of power. It operates within a constitutional framework, and it is that constitutional framework that these citizens want to keep intact. That is, in my view, their rightful concern. We have insisted that more than generalized grievances of a citizen be shown, that he must have a "personal stake in the outcome," Baker v. Carr, 369 U.S. 186, 204 . But that "personal stake" need not be a monetary one. In Baker v. Carr, it was the right to vote, an important badge of citizenship. The "personal stake" in the present case is keeping the Incompatibility Clause an operative force in the Government by freeing the entanglement of the federal bureaucracy with the Legislative Branch.
Ex parte Levitt, 302 U.S. 633 , is not opposed. Levitt moved in this Court to have it declare the appointment of Mr. Justice Black unconstitutional. He alleged that Mr. Justice Black, as Senator, had voted to increase the "emoluments" of the office of Associate Justice and was therefore barred from taking office by reason of Art. I, 6, cl. 2, of the Constitution. The Court denied the motion to file an original action stating:
The interest of the citizen in this constitutional question is, of course, common to all citizens. But as we said in United States v. SCRAP, 412 U.S. 669, 687 -688, "standing is not to be denied simply because many people suffer the same injury. . . . To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody."
I would affirm the judgment below.
[ Footnote 1 ] I agree with the conclusion of the House Judiciary Committee, H. R. Rep. No. 885, 64th Cong., 1st Sess. (1916), that a commission in the National Guard is an "office" in the constitutional sense. A commission in the Reserves is not distinguishable. See United States v. Hartwell, 6 Wall. 385.
[ Footnote 2 ] See 2 M. Farrand, The Records of the Federal Convention of 1787, pp. 283-290 (1911).
[ Footnote 3 ] Id., at 491.
MR. JUSTICE BRENNAN, dissenting. *
The "standing" of a plaintiff to be heard on a claim of invasion of his alleged legally protected right is established, in my view, by his good-faith allegation that "`the challenged action has caused him injury in fact.'" Barlow [418 U.S. 208, 236] v. Collins, 397 U.S. 159, 167 -168 (1970) (concurring in the result and dissenting). The Court's further inquiry, in each of these cases, into the connection between "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question," Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970), and the "interest sought to be protected by the complainant," ibid., is relevant, not to "standing" but, if at all, only to such limitations on exercise of the judicial function as justiciability, see, e. g., Baker v. Carr, 369 U.S. 186 (1962), or reviewability, see, e. g., Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967).
Richardson plainly alleged injury in fact. My Brother STEWART demonstrates this in his analysis of Richardson's claimed right to have the budget of the Central Intelligence Agency published. The claim was not merely that failure to publish was a violation of the Constitution. The claim went further and alleged that this violation deprived Richardson, as an individual, and not as an inseparable part of the citizenry, of a right given him by Art. I, 9, cl. 7. Moreover, his complaint, properly construed, alleged that the violations caused him injury not only in respect of his right as a citizen to know how Congress was spending the public fisc, but also in respect of his right as a voter to receive information to aid his decision how and for whom to vote. These claims may ultimately fail on the merits, but Richardson has "standing" to assert them.
Similarly, I would hold that respondent Reservists Committee and its members have demonstrated sufficient "injury in fact" to maintain their suit. Their allegation that they are injured as taxpayers, while at first glance seeming extraordinarily difficult to prove, is neither impossible nor, on the basis of this record, made in bad faith. If the Secretary of Defense takes a contrary position [418 U.S. 208, 237] with regard to either of these requirements, it is open to him to move for summary judgment and compel respondents to establish their position. See Barlow, supra, at 175. More stringent requirements, such as the Court's demand that these respondents satisfy Flast's "nexus" requirement, are not appropriate issues for resolution under the rubric of "standing." Since I would find the injury-in-fact requirement met by respondents' taxpayer allegation, I have no occasion to reach the question whether respondent Reservists Committee and its members' allegations of injury to their interests as citizens would be sufficient to confer standing under the circumstances of this case.
Unlike my Brother STEWART, who distinguishes these two cases, I would find that Flast v. Cohen, 392 U.S. 83 (1968), supports the conclusion that these allegations of injury-in-fact are sufficient to give respondents in both cases "standing." Speaking generally of standing, we there said:
[ Footnote * ] [This opinion applies also to No. 72-885, United States et al. v. Richardson, ante, p. 166.]
MR. JUSTICE MARSHALL, dissenting.
I agree with my Brother DOUGLAS that respondents have standing as citizens to bring this action. I cannot accept the majority's characterization of respondents' complaint as alleging only "injury in the abstract" and "`generalized grievances' about the conduct of the Government." [418 U.S. 208, 239] Ante, at 217. According to their complaint, respondents are present and former members of the various Armed Forces Reserves.
Respondents nevertheless had a right under the First Amendment to attempt to persuade Congressmen to end the war in Vietnam. And respondents have alleged a right, under the Incompatibility Clause, to have their arguments considered by Congressmen not subject to a conflict of interest by virtue of their positions in the Armed Forces Reserves. Respondents' complaint therefore states, in my view, a claim of direct and concrete injury to a judicially cognizable interest. It is a sad commentary on our priorities that a litigant who contends that a violation of a federal statute has interfered with his aesthetic appreciation of natural resources can have that claim heard by a federal court, see United States v. SCRAP, 412 U.S. 669, 687 (1973), while one who contends that a violation of a specific provision of the United [418 U.S. 208, 240] States Constitution has interfered with the effectiveness of expression protected by the First Amendment is turned away without a hearing on the merits of his claim.
I respectfully dissent. [418 U.S. 208, 241]