Guy Vander Jagt, et al., Appellants, v. Thomas P. O'neill, Jr., et al, 699 F.2d 1166 (D.C. Cir. 1983)

Turning to this particular case, one can readily see the wisdom of not interfering with the House's method of allocating committee seats. In fact, this case is nearly identical to a suit the Ninth Circuit dismissed several years ago after Democratic representatives in Arizona challenged the Republican legislative leadership. Davids v. Akers, 549 F.2d 120 (9th Cir. 1977).

Unlike us, the Davids court reached the merits: it held that neither voters nor their representatives were deprived of equal protection or First Amendment rights when minority party legislators were disproportionately underrepresented on legislative committees. Judge Duniway quoted from an English history text and noted that " [t]he principle that such procedures are for the House itself to decide is as old as the British Parliament." 549 F.2d at 123. And in an extensive discussion (that gives new meaning to the phrase "parade of horribles"), Davids spelled out how disastrously intrusive it would be if we were to accept appellants' invitation to restructure congressional committees. To quote only a few of the Ninth Circuit's objections:

Unless Arizona voters differ markedly from those of other states, it is almost certain that every member of Arizona's House was put there by a mixture of voters--Republican, Democratic, and Independent, with perhaps a few members of splinter parties thrown in. It is nonsense to say that every member who ran on the Democratic ticket represents only Democrats... [D]id those who voted for the winners by some similar sort of osmosis, acquire the right to assert and transmit to the winning candidates not only their own Fourteenth Amendment rights but also those of all of the voters of their district who voted for the loser?... [Or m]ust we next, in the name of equal protection, weight the vote of each member in the House in proportion to the vote that he received out of the total vote in his district? ...

What if one member of the House runs as a socialist or a conservative and wins? He will be 1.66% of the membership. Is he entitled to a seat on a committee? Which one? Whom is he to displace--a Democrat or a Republican? In either case, why? ...

Particular items of legislation frequently produce large scale crossing of party lines. Are committee appointments to be juggled and rejuggled depending upon which measure is coming before a committee? ... If so, are the adjustments to be based upon the supposed views of each member, or those of his constituents, or what?

549 F.2d at 124-25.

These objections provide more than enough reason to conclude that we should not adjudicate this controversy. It is not that we think a remedy could not be fashioned.²⁷  Rather, we simply believe it would be, to quote the Davids court again, a "startlingly unattractive" idea, given our respect for a coequal branch of government, for us "to tell the Speaker of the ... House of Representatives how many Democrats, and perhaps even which Democrats, he is to appoint to the standing committees, and perhaps to each such committee." 549 F.2d at 123. Our discretion to withhold equitable and declaratory relief supplies us with ample foundation upon which to base our decision. Thus we affirm the district court's dismissal, though not because of barriers presented by the Speech or Debate Clause, or the political question doctrine.

BORK, Circuit Judge, concurring:

Appellants complain that the Democratic majority in the House of Representatives has assigned Republicans a proportion of committee and subcommittee seats substantially lower than the proportion of Republicans in the House as a whole. Appellants sue in their capacities as Republican members of the House and as voters and also purport to represent classes of Republican Representatives and voters represented by Republicans. The gravamen of their complaint is that the Democrats' action has unconstitutionally diminished the influence of appellants and those they would represent in this case in the legislative processes of the House. We affirm the district court's dismissal of the complaint. The majority reaches this result under a doctrine of remedial discretion which is a variant of the doctrine announced in Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C. Cir.), cert. denied, 454 U.S. 1082, 102 S. Ct. 636, 70 L. Ed. 2d 616 (1981). My colleagues find that plaintiffs have standing to maintain this action.

In my view, jurisdiction is absent because the plaintiffs lack standing. I concur in the judgment for that reason. A brief review of the concept of standing, particularly the standing of legislator plaintiffs as it has developed in this circuit, will demonstrate why I think that my colleagues' position is unsupportable.

The concept of standing relates to the fitness of a particular party to litigate a particular issue. To be a fit litigant the party must have "a personal stake in the outcome of the controversy" so "as to assure that concrete adverseness which sharpens the presentation of issues." Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962). There is, however, more to the concept of standing than that. The standing requirement contains so many variables that the Supreme Court once felt impelled to say that " [g]eneralizations about standing to sue are largely worthless as such," though one valid generalization is that the question is to be "considered in the framework of Article III which restricts judicial power to 'cases' and 'controversies.' " Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 151, 90 S. Ct. 827, 829, 25 L. Ed. 2d 184 (1970). This court recently summarized the elements of standing in Riegle, 656 F.2d at 878: "the maximum burden which a plaintiff must bear to attain standing [consists of the] establishment of (i) injury-in-fact (ii) to an interest protected by the relevant law (iii) where the injury is caused by defendants' actions or capable of judicial redress." The element of "injury-in-fact," upon which the present case turns, is sometimes stated as "judicially cognizable injury." Metcalf v. National Petroleum Council, 553 F.2d 176, 187 (D.C. Cir. 1977).

The term "judicially cognizable injury" brings to the surface what should be obvious in any event: injury in fact, far from being a simple, descriptive term, is a concept freighted with policies that limit the kinds of injury courts may consider. One might suppose that any person who feels strongly that he has been hurt by another's act possesses "that concrete adverseness which sharpens the presentation of issues." But the law does not view the matter that simply. Courts may take cognizance only of injuries of certain types, and the limitations are often defined less by the reality of the litigant's "adverseness" than by the courts' view of the legitimate boundaries of their own power. "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise. In both dimensions it is founded in concern about the proper--and properly limited--role of the court in a democratic society." Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975) (citation omitted).

This theme is apparent in many Supreme Court decisions. In Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974), for example, plaintiffs sued in their capacities as both taxpayers and citizens to require the Secretary of Defense to remove members of Congress from membership in the military reserve. The suit alleged that such membership violated the "Incompatibility Clause" of Art. I, Sec. 6, cl. 2: "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." The Supreme Court held that plaintiffs lacked standing to sue because, in essence, plaintiffs alleged an injury that was common to all citizens and taxpayers and so asserted only "generalized grievances." See Reservists, 418 U.S. at 217, 94 S. Ct. at 2930 (citing Flast v. Cohen, 392 U.S. 83, 106, 88 S. Ct. 1942, 1955-1956, 20 L. Ed. 2d 947 (1968)). Such grievances are not that direct, palpable harm that injury in fact requires. See United States v. Richardson, 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974); Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972); Ex parte Levitt, 302 U.S. 633, 58 S. Ct. 1, 82 L. Ed. 493 (1937). It did not matter that plaintiffs in Reservists, Richardson, Tatum, and Levitt were motivated to litigate quite as much as any other plaintiffs, for, as the Chief Justice stated in Reservists:

We have no doubt about the sincerity of respondents' stated objectives and the depth of their commitment to them. But the essence of standing

"is not a question of motivation but of possession of the requisite ... interest that is, or is threatened to be, injured by the unconstitutional conduct." Doremus v. Board of Education, 342 U.S. 429, 435, [72 S. Ct. 394, 397, 96 L. Ed. 475] (1952).

418 U.S. at 225-26, 94 S. Ct. at 2934. Similarly, in refusing to accept as judicially cognizable a taxpayer organization's complaint that the conveyance of government-owned property to an educational institution supervised by a religious order violated the Establishment Clause of the First Amendment, the Court stated:

Although [plaintiffs] claim that the Constitution has been violated, they claim nothing else. They fail to identify any personal injury suffered by the plaintiffs as a consequence of the alleged constitutional error, other than the psychological consequences presumably produced by observation of conduct with which one disagrees. This is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms.

Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 485-86, 102 S. Ct. 752, 765, 70 L. Ed. 2d 700 (1982) (emphasis in original).

The law, of course, often takes account of psychological consequences. The Supreme Court's refusal to do so when a plaintiff makes the serious assertion that the harm is created by the unconstitutional conduct of the government can only mean that the Court perceives that to confer standing in such cases would impermissibly alter its function. To make judicially cognizable all injuries that persons actually feel and can articulate would widen immeasurably, perhaps illimitably, the authority of the federal courts to govern the life of the society. "Relaxation of standing requirements is directly related to the expansion of judicial power." Richardson, 418 U.S. at 188, 94 S. Ct. at 2952 (Powell, J., concurring). Conversely, by refusing to expand standing, by attempting to confine jurisdiction so far as possible to cases of a "form historically viewed as capable of judicial resolution," Flast v. Cohen, 392 U.S. 83, 101, 88 S. Ct. 1942, 1953, 20 L. Ed. 2d 947 (1968), courts can at least attempt to keep their scope of authority constant over time and so leave the resolution of a wide variety of problems to other institutions, both public and private. All of the doctrines that cluster about Article III--not only standing but mootness, ripeness, political question, and the like--relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.

It is clear, then, that standing doctrine incorporates concerns about the role proper to the federal judiciary. This case presents the further questions whether among those concerns is the issue of separation of powers and whether separation-of-powers considerations are relevant to a request that a court order the reallocation of committee assignments in Congress. It is on these questions that I differ from my colleagues. It is true that the Supreme Court once indicated that separation of powers is no part of the Article III component of standing:

The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.

Flast v. Cohen, 392 U.S. at 100-101, 88 S. Ct. at 1953. Subsequently, however, the Court suggested that separation-of-powers considerations properly find a place in the judge-made prudential aspects of standing:

[T]he Court has held that when the asserted harm is a "generalized grievance" shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction. E.g., Schlesinger v. Reservists to Stop the War, supra; United States v. Richardson, supra; Ex parte Levitt, 302 U.S. 633, 634 [58 S. Ct. 1, 1, 82 L. Ed. 493] (1937) .... Without such limitations--closely related to Art. III concerns but essentially matters of judicial self-governance--the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions....

Warth v. Seldin, 422 U.S. at 499-500, 95 S. Ct. at 2205-2206. That alone would be enough to demonstrate that the standing concept incorporates concerns about the powers appropriate to each branch of the federal government and that we must take those concerns into account here. The Court's 1982 decision in Valley Forge, however, goes farther and reads separation-of-powers concepts back into that part of the standing requirement which rests upon a constitutional, rather than a prudential, foundation. Discussing the requirement of injury, Justice Rehnquist's opinion for the majority states:

In this manner does Art. III limit the federal judicial power "to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process." Flast v. Cohen, supra, [392 U.S.] at 97 [88 S. Ct. at 1951].

Valley Forge, 454 U.S. at 472, 102 S. Ct. at 758. After noting that " [t]he exercise of the judicial power also affects relationships between the co-equal arms of the national government," id., the opinion goes on to quote with approval from Justice Powell's concurring opinion in Richardson:

" [R]epeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of other branches."

454 U.S. at 474, 102 S. Ct. at 759 (citation omitted).

Immediately after this passage quoted in Valley Forge, Justice Powell's concurrence in Richardson continues:

We should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.

418 U.S. at 188, 94 S. Ct. at 2952 (footnote omitted). The majority does not believe Valley Forge will bear the reading I give it. In view of that opinion's own language and the language it quotes, however, I do not see how Valley Forge can bear any other construction. Whether the requirement is rooted in Article III or in judicial prudence, I conclude, therefore, that the Supreme Court continues to regard the standing concept as informed by considerations of separation of powers. We should so apply the requirement here.

Since we must accept the complaints' allegations as true, we can permit ourselves no doubt that a failure to achieve a share of committee and subcommittee assignments in proportion to their numbers in the legislative body results in a diminution of a political party's influence and effectiveness in forwarding or opposing legislation. In consequence, appellants' influence and effectiveness are diminished. If the constitutional standards that appellants urge upon us mandate proportional representation, an issue that neither the majority nor I reach, then it is clear that appellants have, in fact, suffered an injury. The question to be answered, however, is whether that fact of injury is what the law means by injury in fact. I think not.

Prior to the Riegle decision in 1981, this circuit had worked out a fairly definite formula to relate separation-of-powers concerns to the problem of legislator standing. In light of Valley Forge, I regard this formula as the law of this circuit, and would apply it without now inquiring as to whether a less permissive rule might be preferable. In Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974), a decision I think this court should reexamine under more appropriate circumstances, we found that a senator had standing to challenge the legality of the President's pocket veto of an enacted bill because the effect was to make a complete nullity of the senator's vote. In Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977), on the other hand, a member of the House of Representatives complained that the secrecy of some Central Intelligence Agency activities under statutory concealment provisions impaired his effectiveness as a legislator. We found that an inadequate basis for injury in fact. This distinction between diminution of a legislator's influence and nullification of his vote was adopted by the en banc court in Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.), judgment vacated on other grounds, 444 U.S. 996, 100 S. Ct. 533, 62 L. Ed. 2d 428 (1979). The per curiam opinion, joined by Judges McGowan, Robinson, Wilkey, and Wald, found the plaintiff legislators had standing, but only because they met a very demanding test:

To be cognizable for standing purposes, the alleged diminution in congressional influence must amount to a disenfranchisement, a complete nullification or withdrawal of a voting opportunity; and the plaintiff must point to an objective standard in the Constitution, statutes or congressional house rules, by which disenfranchisement can be shown.

Goldwater v. Carter, 617 F.2d at 702.¹ 

The Supreme Court vacated the judgment of this court in Goldwater because various Justices thought that either the doctrine of ripeness or that of political question should have prevented us from reaching the merits. None of the Justices who so concluded mentioned the question of standing. This led the Riegle court to conclude that the standing concept was no longer viewed by the Supreme Court as a proper vehicle for separation-of-powers concerns; accordingly, the Riegle opinion shifted those considerations into a "doctrine of circumscribed equitable discretion." 656 F.2d at 881. The evidence for the conclusion that the Supreme Court had silently rejected Warth v. Seldin in Goldwater was very thin. Justices who found the case nonjusticiable on grounds of ripeness or political question had no occasion to discuss standing. The Valley Forge decision, which came after Riegle, demonstrates--conclusively, I believe--that the concept of standing continues to incorporate separation-of-powers considerations. The premise on which Riegle rested, therefore, is no longer valid.

There are compelling reasons rooted in the concept of separation of powers, and in particular in the proper role of courts in relation to the political branches, for us to adopt again the position we took in Goldwater, and to hold that appellants lack standing here. Appellants' complaint invites federal courts to participate extensively in the internal processes of Congress. We should decline the invitation because of the consequences of accepting it. If an allegation of a diminution of influence on the legislative process were sufficient to confer standing, federal courts doubtless would be invited to rule upon the ways in which committee and subcommittee members are chosen, since, party lines aside, it is clear that those chosen for committees on the budget or foreign affairs or rules generally have more influence than those not so chosen. Perhaps we could be called upon to rule on filibusters, since those who filibuster may have disproportionate influence over legislative outcomes. Courts might be asked to control the order in which legislation is brought to the floor, debated, and voted on. Surely we would be requested to remedy disproportionate assignments of staff as between committee majorities and minorities, for those assignments affect influence on the legislative process. Examples of this sort could be multiplied, but perhaps enough has been said to indicate why federal courts should firmly refuse to enter upon the wholly inappropriate task of ensuring absolute equity in Congress's legislative procedures. It is absurd to think that courts should purge the political branches of politics.²

The function appellants would have us perform would be extraordinarily intrusive, involving frequent, "repeated and essentially head-on confrontations" between Congress and the federal courts. Appellants would, for example, have the district court order appellees O'Neill, Wright, Long, the Democratic Steering Committee, and the Democratic Caucus to allocate additional committee and subcommittee seats to Republicans so that Republican assignments will be in proportion to their strength in the House. This injunction or mandamus would be enforced by the court's power to hold appellees in contempt should they fail to reconstitute the House's committees and subcommittees as desired. Merely to state what is sought is to make plain that appellants propose nothing less than a revolution in the judiciary's relationship to the political branches. How extraordinarily intrusive such a judicial function would be may be seen by imagining reciprocal cases. For courts to reassign congressional committee seats would be no less intrusive than for Congress to enact a law forbidding the members of this court from conferring on the decision of cases or forbidding specified judges from sitting on cases of a particular type. If the courts would not accept such invasions of their sphere, they ought not attempt the invasion of Congress's sphere sought by appellants.

But there are more than considerations of comity and respect here, more than historical tradition and the constitutional need to retain limits on judicial power. There is the very real problem of a lack of judicial competence to arrange complex, organic, political processes within a legislature so that they work better. The caution the late Alexander M. Bickel addressed to political reformers may profitably be heeded by judges as well:

James I spoke of the mystery of the King's power. The institutions of a secular, democratic government do not generally advertise themselves as mysteries. But they are. What they do, how they do it, or why it is necessary to do what they do is not always outwardly apparent. Their actual operation must be assessed, often in sheer wonder, before they are tinkered with, lest great expectations be not only defeated, but mocked by the achievement of their very antithesis.

A. Bickel, Reform and Continuity 2 (1971) (revised and expanded version of A. Bickel, The New Age of Political Reform (1968)). Courts do not understand--indeed, probably not all legislators understand--how the various rules, customs, and practices of the legislature interact and how changing one aspect could produce the most unexpected distortions of the legislative process elsewhere. Nor can I imagine that extensive trials would educate courts to become experts on legislative processes so that they could improve those processes. The task, if there is a task that needs doing, is one for political reform by those intimately familiar with the complex arrangements and interactions involved.

By contrast, the rule of Kennedy v. Sampson and Goldwater, requiring a nullification of a legislator's vote for legislator standing entails few of the problems that would flow from standing in a case like this one. The occasions of judicial intervention will be few and limited. According standing in such a case does not adopt a principle that requires courts to judge the propriety of all the manifold ways in which a legislator's influence may be diminished. If providing a judicial remedy in such a case might have a degree of intrusiveness about it, our concern should be lessened by the fact that the vote denied is a structural feature of our government, clearly assumed in Article I of the Constitution, as equal legislative influence or committee membership is not. Moreover, no question of judicial competence to rearrange complex political processes arises.

It follows from this discussion that there can be no injury in fact unless there has occurred a nullification of a legislator's vote. This conclusion would bar standing for both legislators and voters where only diminution of influence is alleged because the harm claimed and the separation-of-powers principles, which prevent the court from interfering in this fashion with the political branches, are the same in both cases. I would hold, therefore, that appellants have not alleged a judicially cognizable injury and so have no standing to maintain this action.

The majority argues that plaintiffs have standing to maintain this action but that their suit should be dismissed through an exercise of the court's "remedial discretion." It seems necessary to say a word about my colleagues' rationale, because the difference between their position and my own rests on more than a reading of precedent. It reflects a disagreement about the role of the federal courts in our government.

At the level of case law interpretation, I have sufficiently expressed my belief that, even at the time it was decided, Riegle's reasoning proceeded from a false premise about the Supreme Court's view of standing and that the invalidity of that premise was once more demonstrated by the Supreme Court's Valley Forge decision. My colleagues nevertheless maintain that Riegle is still correct. They find that standing exists when a legislator plaintiff alleges a diminution of his influence in Congress. The majority's approach, however, transforms the law enunciated in Riegle.

Riegle at least laid down firm guidelines for the application of its doctrine of "circumscribed equitable discretion":

In short, our standard would counsel dismissal of congressional plaintiff actions only in cases in which (i) the plaintiff lacks standing under the traditional tests, or (ii) the plaintiff has standing but could get legislative redress and a similar action could be brought by a private plaintiff.

656 F.2d at 882. These guidelines themselves were a remarkable assertion of judicial power, for, as the court had previously noted:

Thus, such actions as impeachment, expulsion proceedings, impoundment, and certain acts of the executive not subject to direct legislative redress or private party challenge (e.g., the pocket veto in Kennedy v. Sampson, supra) would be subject to judicial review in a congressional plaintiff case. These circumstances (which are not intended to exhaust the possibilities) represent situations where absent congressional plaintiff actions, it is possible that non-frivolous claims of unconstitutional action would go unreviewed by a court.

Id. Yet it is of course precisely the function of the Article III limitations on jurisdiction, through such doctrines as standing and political question, to ensure that nonfrivolous claims of unconstitutional action will go unreviewed by a court. That is what the Supreme Court held was required in cases such as Richardson, Reservists, and Valley Forge.

Now, however, the majority suggests that we relax still further the requirements of Riegle:

We invoke our remedial discretion in this setting because this case raises separation-of-powers concerns similar to Riegle 's, and the remedial discretion approach--which this circuit has used before--provides a more candid and coherent way of addressing those concerns.

Our regard for candor and coherence may seem anomalous, because a doctrine of remedial discretion suggests the sort of rudderless adjudication that courts strive to avoid. But Riegle makes explicit what we also seek to emphasize: this is not an area fit for inflexible doctrines or bright-line tests.

Supra at 1174-1175 (footnote omitted).

If they were applying Riegle, my colleagues would dismiss the action by plaintiffs in their capacities as legislators because legislative redress is available and a similar action could be brought by a private plaintiff. But they could not dismiss the entire action since there are private plaintiffs before us: the congressmen also sued in their capacities as voters and as representatives of the classes of all voters represented in the House by Republicans.³  If the legislators here have standing, it is difficult to see why voters whose influence in Congress has been allegedly unconstitutionally diminished would not also have standing. Riegle states that such plaintiffs could not be dismissed under a doctrine of circumscribed equitable discretion:

While we discourage congressional plaintiffs in such circumstances [availability of legislative redress and private plaintiffs], it is probable that a private plaintiff could acquire standing to raise the issue of unconstitutionality before a court. Because such a private plaintiff's suit would not raise separation-of-powers concerns, the court would be obliged to reach the merits of the claim.

656 F.2d at 881.

While, as discussed above, I think a private plaintiff's suit raises identical separation-of-powers concerns because those concerns are about the relationship of the courts to Congress, it is clear that, whatever the majority proposes, it is not that we hold to Riegle.

This becomes even clearer when my colleagues offer their rationale for dismissing this suit: giving orders to the Speaker of the House of Representatives is a "startlingly unattractive" idea. Supra at 1176. It is, but the law deserves and is susceptible of greater definition than that. Even Riegle provides more, and the standing rule enunciated by this court in Goldwater provides much more. " [R]udderless adjudication" is not a necessity.

My colleagues' reliance upon the rationale of Davids v. Akers, 549 F.2d 120 (9th Cir. 1977), does not help matters. That case is nearly identical to this, and the Davids court, in a passage the majority quotes, indicates the difficulty courts would have in framing rules to deal with the subject. 549 F.2d at 125. Indeed, the Davids opinion, though it had held that the political question doctrine posed no bar, concluded its recitation of problems by saying that "a judicially discoverable and manageable standard cannot be found," id., though that is one of the categories of nonjusticiable political questions set out in Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710, 7 L. Ed. 2d 663 (1962). It is clear that many of the difficulties recited relate to defining the rights of legislators, not to the fashioning of relief. This suggests to me that Davids and the majority are actually applying the political question doctrine, here under the name of remedial discretion. The shift in terminology is not insignificant. Political question, like standing, is a doctrine that raises a jurisdictional bar to judicial power, while remedial discretion, as described in Judge Gordon's opinion for the majority, raises no bar and grants the judiciary unfettered discretion to hear a case or not, depending on the attractiveness of the idea.

My colleagues' disinclination to rest this case upon a jurisdictional ground--whether that of standing or political question--rests squarely upon the erroneous notion, expressed in Riegle and reiterated today, that there must be judicial power in all cases and that doctrines must not be adopted which might frustrate that power.⁴  Thus, the majority argues:

Thus while there are compelling prudential reasons why we should not interfere in the House's distribution of committee seats, it is nevertheless critical that we do not deny our jurisdiction over the claims in this case. As long as it is conceivable that the committee system could be manipulated beyond reason, we should not abandon our constitutional obligation--our duty and not simply our province--"to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 [2 L. Ed. 60] (1803); United States v. Nixon, 418 U.S. 683 [94 S. Ct. 3090, 41 L. Ed. 2d 1039] (1974).

Supra at 1170. Of course, when a court finds a jurisdictional bar to its exercise of power, it does state what the law is. When, on the other hand, a court claims a discretion, whose contours are not suggested, to decide or not to decide, the court refuses to say what the law is.⁵  Moreover, the assertion that to find a lack of jurisdiction is an abandonment of a constitutional duty to pronounce upon the merits of any issue offered the court can only mean that all limitations on the jurisdiction of Article III courts, including those derived from Article III itself, are unconstitutional. That proposition may fairly be described as novel. The Supreme Court does not subscribe to it. Very recently, in Valley Forge, a decision that appears to be particularly inconvenient for the standing determination by the majority, the Court repeated its rejection of a similar contention: "But ' [t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.' Schlesinger v. Reservists Committee to Stop the War, 418 U.S., at 227 [94 S. Ct. at 2935]." 454 U.S. at 489, 102 S. Ct. at 489.

In short, I find nothing in Riegle or in the majority's opinion that adequately explains the conclusion that plaintiffs have standing. Nor do I find anything that justifies the assumption of an unconfined judicial power to decide or not to decide; just such a power, of course, inheres in the version of remedial discretion offered today. Since my view of standing requires affirmance of the district court, I do not reach the issues presented by the Speech or Debate Clause and the political question doctrine.