181 F.3d 112 (D.C. Cir. 1999)
The Honorable Helen Chenoweth, the Honorable Bob Schaffer, the Honorable Don Young, and the Honorable Richard W. Pombo, all in their official capacities, Appellantsv.William J. Clinton, President of the United States, Kathleen A. McGinty, Chair of the Council on Environmental Quality, individually and in their official capacities, and the United State of America, Appellees
No. 98-5095
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 29, 1999Decided Decided July 2, 1999

Appeal from the United States District Court for the District of Columbia(No. 97cv02954)
William Perry Pendley argued the cause and filed the  briefs for appellants.  Todd S. Welch entered an appearance.
Ethan G. Shenkman, Attorney, U.S. Department of Justice, argued the cause for appellees.  With him on the brief  were Lois J. Schiffer, Assistant Attorney General, and Martin W. Matzen, Attorney.  Jared A. Goldstein, Attorney,  entered an appearance.
Before:  Edwards, Chief Judge, Ginsburg and Tatel,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Opinion concurring in the judgment filed by Circuit Judge  Tatel.
Ginsburg, Circuit Judge:


1
Appellants Helen Chenoweth,  Bob Schaffer, Don Young, and Richard W. Pombo, all of  whom are Members of the United States House of Representatives, sued to enjoin implementation of President Clinton's  American Heritage Rivers Initiative (AHRI).  They claimed  the President's creation of the program by executive order  exceeded his statutory and constitutional authority.  Characterizing the Representatives' claim as a "generalized grievance[ ] about the conduct of government," the district court  held the plaintiffs lacked standing to sue and dismissed their  complaint.  The Representatives now appeal, arguing that the  district court failed properly to apply our decisions in Kennedy v. Sampson, 511 F.2d 430 (1974), and Moore v. U.S. House  of Representatives, 733 F.2d 946 (1984).  In part based upon  the intervening decision in Raines v. Byrd, 521 U.S. 811  (1997), we affirm the judgment of the district court.

I. Background

2
The President announced his intention to create the AHRI  in his 1997 State of the Union address.  Soon afterward, the  Council on Environmental Quality published a notice describing the program.  Under the AHRI, it explained, federal  agencies would be called upon to provide support for local  efforts to preserve certain historically significant rivers and  riverside communities.  See 62 Fed. Reg. 27,253 (May 19, 1997).  In June, 1997 Representatives Chenoweth, Schaffer,  and Pombo introduced a bill "[t]o terminate further development and implementation" of the AHRI.  H.R. 1842, 105th  Congress.  The bill never came to a vote.  The President  formally established the AHRI by executive order in September, 1997.  See Exec. Order 13,061, 62 Fed. Reg. 48,445.


3
Their legislative efforts having failed, the appellants  brought this lawsuit, claiming the AHRI violates the Anti Deficiency Act, 31 U.S.C. § 1301 et seq., the Federal Land  Management and Policy Act, 43 U.S.C. § 1701 et seq., the  National Environmental Policy Act, 42 U.S.C. § 4321 et seq.,  and the Commerce, Property, and Spending Clauses of, and  the Tenth Amendment to, the Constitution of the United  States.  According to the complaint, the President's issuance  of the AHRI by executive order, without statutory authority  therefor, "deprived [the plaintiffs] of their constitutionally  guaranteed responsibility of open debate and vote on issues  and legislation" involving interstate commerce, federal lands,  the expenditure of federal monies, and implementation of the  NEPA.  The Representatives sought a declaration that the  issuance of the AHRI was unlawful and an injunction against  its implementation.


4
The district court granted the President's motion to dismiss, concluding that the injury the Representatives claim to  have suffered--the deprivation of their right as Members of  the Congress to vote on (or, more precisely, against) the  AHRI--is "too abstract and not sufficiently specific to support a finding of standing."  The Representatives then took  this appeal.

II. Analysis

5
The Representatives' claim of standing is predicated upon  the theory that by issuing Executive Order 13,061, the President denied them their proper role in the legislative process  and, consequently, diminished their power as Members of the  Congress.  They rely primarily upon Moore, in which we held  that the infringement of a legislator's "right[ ] to participate  and vote on legislation in a manner defined by the Constitution" is an injury sufficiently direct and concrete to support the legislator's standing to sue.  733 F.2d at 951.  To understand why their facially plausible argument is unpersuasive,  some background is necessary.


6
The general principle that governs our standing analysis is  firmly established:  A federal court cannot, consistent with  Article III, exercise jurisdiction over a lawsuit unless the  plaintiff has suffered a "personal injury fairly traceable to the  defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."  Allen v. Wright, 468 U.S.  737, 751 (1984).  Application of the general rule to a Member  of the Congress who objects to the actions of other participants in the legislative process, however, is a subject upon  which this court has not spoken with great clarity.


7
Historically, political disputes between Members of the  Legislative and the Executive Branches were resolved without resort to the courts.  See Raines, 521 U.S. at 826-28  (describing conflicts between Congress and various Presidents decided in the political arena).  When Members of the  Congress first began to seek judicial relief from allegedly  illegal executive actions that impaired the exercise of their  power as legislators, however, we were initially receptive to  the idea that we had jurisdiction to hear their complaints.  In  Kennedy, for instance, we found that a United States Senator  had standing to challenge the President's pocket veto of  legislation that both Houses of the Congress had approved.The allegedly unlawful veto, we reasoned, injured the Senator  in a direct and personal way because it effected a "diminution  of congressional influence in the legislative process."  511  F.2d at 435.  On the same theory, we held that a group of  Senators had standing to sue the President for depriving  them of a constitutionally-mandated opportunity to vote on  the abrogation of a treaty.  See Goldwater v. Carter, 617 F.2d  697, 702 (en banc), vacated on other grounds, 444 U.S. 996  (1979).


8
After we decided Kennedy, however, the Supreme Court  began to place greater emphasis upon the separation of  powers concerns underlying the Article III standing requirement.  Compare Flast v. Cohen, 392 U.S. 83, 100 (1968) ("The  question whether a particular person is a proper party to maintain [an] action does not, by its own force, raise separation of powers problems"), with Warth v. Seldin, 422 U.S.  490, 498 (1975) (standing requirement "founded in concern  about the proper--and properly limited--role of the courts in  a democratic society"), and Allen v. Wright, 468 U.S. at 752  ("[T]he law of Art. III standing is built on a single basic  idea--the idea of separation of powers").  In decisions following Kennedy we noted that those concerns are present-indeed, are particularly acute--when a legislator attempts to  bring an essentially political dispute into a judicial forum. Accordingly, in Riegle v. Federal Open Market Committee,  656 F.2d 873 (1981), we dismissed the complaint of a Senator  who challenged the constitutionality of procedures by which  certain members of the FOMC were appointed;  this result,  we held, was necessary in order to avoid an "obvious intrusion  by the judiciary into the legislative arena."  Id. at 881.  We  did not, however, disavow the standing analysis of Kennedy  and Goldwater.  Instead, creating a doctrine of "circumscribed equitable discretion," we held that the court would  decline to hear the complaint of a Congressman who "could  obtain substantial relief from his fellow legislators" regardless  whether he had standing to sue.  Id.  Keeping distinct our  analysis of standing and our consideration of the separation of  powers issues raised when a legislator brings a lawsuit concerning a legislative or executive act, we concluded, made  consonant two otherwise irreconcilable principles:  first, that  congressional and private plaintiffs should be treated alike for  the purpose of determining their standing, and second, that  courts should refrain from interfering in disputes arising out  of the legislative process when a political remedy is available  from within that process.  See id. at 877-82.


9
But the circle did not long stay squared.  Observing that  jurisdictional issues such as standing are not of a sort usually  committed to the discretion of courts, see Moore, 733 F.2d at  962 (Scalia, J., concurring), we questioned Riegle as frequently as we applied it.  See, e.g., Humphrey v. Baker, 848 F.2d  211, 214 (1988) (concerns about the doctrine of equitable  discretion "continue to trouble us");  Melcher v. Federal Open  Market Comm., 836 F.2d 561, 565 n.4 (1987) (expressing doubt as to continuing viability of doctrine).  The practical  significance of Riegle was also open to question:  With one  exception, namely, Bliley v. Kelley, 23 F.3d 507, 510 (1994),  every decision in which we applied the doctrine of equitable  discretion was either reversed upon another jurisdictional  ground by the Supreme Court, see Barnes v. Kline, 759 F.2d  21 (D.C. Cir. 1985), vacated sub nom. Burke v. Barnes, 479  U.S. 361 (1987), or reached the same result that would have  obtained had we treated separation of powers concerns as  part of our inquiry into the plaintiff's standing.  See, e.g.,  Moore, 733 F.2d at 956;  Vander Jagt v. O'Neill, 699 F.2d  1166, 1175 (1983).  In Moore, for instance, we held that  although congressmen had standing to object to the purportedly unconstitutional origination of a revenue-raising bill in  the Senate, the district court properly dismissed their complaint under Riegle because their "rights [could] be vindicated  by congressional repeal of the [offending] statute."  733 F.2d  at 956.  Our conclusion that the plaintiffs had standing to sue,  in other words, got them into court just long enough to have  their case dismissed because of the separation of powers  problems it created.  Recognizing the limited impact of the  Riegle doctrine, we noted in United Presbyterian Church v.  Reagan, 738 F.2d 1375 (D.C. Cir. 1984), that "[i]t seems ...  inconvenient ... to distinguish between those legislator  claims that lack standing, and those that should be denied a  favorable exercise of remedial discretion for reasons generally  indistinguishable from those that underlie the doctrine of  standing."  Id. at 1382.


10
So matters stood when the Supreme Court recently decided  Raines v. Byrd.  The plaintiffs in that case were congressmen who objected to the Line Item Veto Act, which gave the  President the authority to "cancel" spending provisions in an  appropriations bill without vetoing the bill in its entirety. According to the plaintiffs, the Act injured them by "alter[ing] the legal and practical effect of all votes they ... cast  on bills containing ... separately vetoable items," thus "divest[ing them] of their constitutional role" in the legislative  process.  521 U.S. at 816.  The district court found that the  plaintiffs had standing, citing Moore for the proposition that an act interfering with the "constitutionally mandated process  of enacting law" imposes upon legislators an injury cognizable  under Article III.  Byrd v. Raines, 956 F. Supp. 25, 31  (D.D.C. 1997).


11
On direct appeal, the Supreme Court reversed.  The Court  characterized the plaintiffs' injury as "wholly abstract and  widely dispersed" and hence insufficient to warrant judicial  remediation.  521 U.S. at 829.  The Court was apparently  unmoved by the concern we expressed in Moore that the  consideration of separation of powers issues would "distort[ ]"  our standing analysis, 733 F.3d at 954;  to the contrary, it  emphasized that standing requirements are "especially rigorous" when reaching the merits of a case would raise questions  about the proper scope of judicial authority.  521 U.S. at 81920.  Having found that the plaintiffs lacked standing to sue,  the Court did not find it necessary to consider the applicability (or the validity) of the doctrine of equitable discretion.


12
Against the backdrop of Raines and our own decisions  after Goldwater, the futility of the present Representatives'  claim is apparent.  As the plaintiffs point out, the injury they  allegedly suffered when the President issued Executive Order  13,061--a dilution of their authority as legislators--is precisely the harm we held in Moore and Kennedy to be cognizable  under Article III.  It is also, however, identical to the injury  the Court in Raines deprecated as "widely dispersed" and  "abstract."  If, as the Court held in Raines, a statute that  allegedly "divests [congressmen] of their constitutional role"  in the legislative process does not give them standing to sue,  521 U.S. at 816, then neither does an Executive Order that  allegedly deprives congressmen of their "right[ ] to participate and vote on legislation in a manner defined by the  Constitution."  733 F.2d at 951.  Consequently, the portions  of our legislative standing cases upon which the current  plaintiffs rely are untenable in the light of Raines.


13
The Representatives protest that the injury alleged in  Raines was less severe than that suffered by the plaintiffs in  Moore.  The votes of those Members of the Congress who  opposed the Line Item Veto Act, they observe, were given full effect;  they were simply too few to carry the day.  The  plaintiffs in Moore, on the other hand, claimed to have been  entirely deprived of their constitutional right to originate a  bill intended to raise revenue.  Here, similarly (per the  plaintiffs), the President denied Members of the Congress  any opportunity to vote for or against the AHRI.  Not only  does Moore therefore survive Raines, urge the Representatives, but the present case more closely resembles the former  than the latter.


14
This reasoning mis perceives the theory of standing at issue  in Raines.  The plaintiffs in that case did not contend, as the  Representatives imply, that their injury was the result of a  procedural defect in the passage of the Line Item Veto Act. Rather, their view was that once the Act became law, it  "alter[ed] the constitutional balance of powers between the  Legislative and Executive Branches," to their detriment.  521  U.S. at 816.  This is only a minor variation on the injury  asserted in Moore, where the beneficiary of the alleged  change in the constitutional order was the Senate rather than  the President.  More to the point, it is exactly the position  taken by the Representatives here:  Their injury, they say, is  the result of the President's successful effort "to usurp Congressional authority by implementing a program, for which  [he] has no constitutional authority, in a manner contrary to  the Constitution."  Applying Moore, this court presumably  would have found that injury sufficient to satisfy the standing  requirement;  after Raines, however, we cannot.


15
Raines notwithstanding, Moore and Kennedy may remain  good law, in part, but not in any way that is helpful to the  plaintiff Representatives.  Whatever Moore gives the Representatives under the rubric of standing, it takes away as a  matter of equitable discretion.  It is uncontested that the  Congress could terminate the AHRI were a sufficient number  in each House so inclined.  Because the parties' dispute is  therefore fully susceptible to political resolution, we would,  applying Moore, dismiss the complaint to avoid "meddl[ing] in  the internal affairs of the legislative branch."  733 F.2d at  956.  Applying Raines, we would reach the same conclusion. Raines, therefore, may not overrule Moore so much as re-quire us to merge our separation of powers and standing  analyses.  In citing Moore, of course, the Representatives are  not asking us to do that;  instead, they would have us simply  ignore half of that opinion.


16
As for Kennedy, it may survive as a peculiar application of  the narrow rule announced in Coleman v. Miller, 307 U.S. 433  (1939).  The plaintiffs in Coleman were certain Kansas legislators who alleged that the Lieutenant Governor of Kansas  had acted unlawfully by casting the tie-breaking vote in the  state senate in favor of a constitutional amendment.  According to the Court, the 20 legislators who had voted against the  amendment had standing to sue because the Lieutenant  Governor's act deprived them of their "plain, direct and  adequate interest in maintaining the effectiveness of their  votes."  Id. at 438.


17
Although Coleman could be interpreted more broadly, the  Raines Court read the case to stand only for the proposition  that "legislators whose votes would have been sufficient to  defeat (or enact) a specific legislative Act have standing to  sue if that legislative action goes into effect (or does not go  into effect) on the ground that their votes have been completely nullified."  521 U.S. at 823.  Even under this narrow  interpretation, one could argue that the plaintiff in Kennedy  had standing.  The pocket veto challenged in that case had  made ineffective a bill that both houses of the Congress had  approved.  Because it was the President's veto--not a lack of  legislative support--that prevented the bill from becoming  law (either directly or by the Congress voting to override the  President's veto), those in the majority could plausibly describe the President's action as a complete nullification of  their votes.


18
In this case, however, the Representatives do not allege  that the necessary majorities in the Congress voted to block  the AHRI.  Unlike the plaintiffs in Kennedy and Coleman,  therefore, they cannot claim their votes were effectively  nullified by the machinations of the Executive.  Consequently, even if Kennedy is still viable after Raines, it cannot bear  the weight the Representatives would place upon it.*

III. Conclusion

19
The district court correctly held the plaintiff Representatives lack standing to pursue this lawsuit.  Their claim to  standing on the ground that the President's implementation  of the AHRI without congressional consent injured them by  diluting their authority as Members of the Congress is indistinguishable from the claim to standing the Supreme Court  rejected in Raines.  Nor can the Representatives claim that  their vote was nullified by the President's action.  The decision of the district court is therefore


20
Affirmed.



Notes:


*
 For two reasons our concurring colleague would have us decide  this case as though the Supreme Court had never decided Raines. First he says the effect of Raines upon our prior decisions was not  briefed by the parties.  However, the parties plainly joined the  issue whether Raines overrules our cases on the subject of legislative standing.  See Appellees' Br. at 16 ("After the Supreme Court's  decision in Raines ... it is questionable whether a member of  Congress alleging an institutional injury can ever have Article III  standing");  Appellant's Rep. Br. at 7 (asserting "[t]here is absolutely no authority" supporting the President's assertion "that Raines  overturned Moore").
Second, he says the Representatives would lack standing even  under the pre-Raines law of this circuit.  This point rests upon the  implicit premise that the standing analysis in Moore and Kennedy  might have force after Raines, albeit (as he acknowledges) in  circumstances not presented here.  We think it clear, however, that  our analysis in this case must account for the impact of Raines on  the prior precedent of this circuit, and further, that Raines leaves  no room for the broad theory of legislative standing that we  adopted in Moore and Kennedy.



21
Tatel, Circuit Judge, concurring in the judgment:


22
I agree  that appellants lack standing.  I think the court should have  reached that result, however, without exploring the extent to  which Raines v. Byrd, 117 S. Ct. 2312 (1997), limits our  decisions in Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir.  1974), and Moore v. United States House of Representatives,  733 F.2d 946 (D.C. Cir. 1981).  See Maj. Op. at 7-10.


23
In the course of deciding that Raines essentially overrules  the theory of legislative standing recognized in Kennedy and  Moore, my colleagues read those decisions too broadly, stating that the legislator injury we found cognizable in those  cases "is precisely the harm" that appellants allege here. Maj. Op. at 8.  But unlike appellants, the legislators in  Kennedy and Moore challenged alleged constitutional defects  in the way specific pieces of legislation were passed or  defeated.  See Moore, 733 F.2d at 951-53 (revenue-raising bill  allegedly originated in the Senate, not the House);  Kennedy,  511 F.2d at 434-36 (allegedly unconstitutional presidential  pocket veto of legislation passed by Congress).  Contrary to  appellants' claim that they have been "denied the 'right[ ] to  participate and vote on legislation in a manner defined by the  Constitution,' "Appellant's Br. at 16 (quoting Moore, 733 F.2d  at 951), they can point to no defect in any "discrete aspect of  the process by which a bill becomes law (the actual vote on  the legislation) [or] those post-enactment events denying the  bill's status as law," Harrington v. Bush, 553 F.2d 190, 211  (D.C. Cir. 1977).  This case is therefore indistinguishable  from and controlled by United Presbyterian Church in the  U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984).  There, as  here, a Member of Congress challenged the legality of an  executive order, claiming that it was promulgated without  congressional or constitutional authorization.  See id. at 138182.  We held that the Member lacked standing because he  raised only " 'a generalized grievance about the conduct of  government, not a claim founded on injury to the legislator by  distortion of the process by which a bill becomes law.' "  Id.  at 1382 (quoting Moore, 733 F.2d at 952);  see also Daughtrey  v. Carter, 584 F.2d 1050, 1057 (D.C. Cir. 1978) (rejecting the  argument that legislators have standing to challenge executive non-enforcement of an act as a usurpation of the legislative right to enact repealing legislation);  Harrington, 553  F.2d at 211 (rejecting the argument that a legislator has  standing to challenge allegedly illegal CIA activities as an  impairment of his prospective votes on related legislation). For precisely the same reason, appellants lack standing to  challenge the American Heritage Rivers Initiative.


24
Although Raines limits Kennedy and Moore to some extent, it changes nothing in United Presbyterian or the other  cases where we have rejected legislator standing to raise  similar "generalized grievances."  Because United Presbyterian still squarely controls, it is unnecessary to reach the  difficult issue of the precise extent to which Raines limits  Kennedy and Moore, an issue not briefed in this case beyond  the conclusory assertions cited by the court.  See Texas  Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685,  697-98 (D.C. Cir. 1991) (in the "absence of any substantive  briefing on the issue," where the parties "content [themselves] with conclusory assertions," this court normally will  not address the argument).  I think the court should have  deferred addressing the implications of Raines until presented with a case in which legislators assert injury involving a  discrete aspect of the process by which a specific bill has  become (or failed to become) law.

