Schlesinger v. Reservists Committee to Stop the War



418 U.S. 208

Schlesinger v. Reservists Committee to Stop the War


No. 72-1188 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.


1. Respondents had no standing to sue as citizens, since the claimed nonobservance of the Incompatibility Clause which they assert deprives citizens of the faithful discharge of the legislative duties of reservist Members of Congress implicates only the generalized interest of all citizens in constitutional governance, and is thus merely an abstract injury, rather than the concrete injury that is essential to satisfy Art. III's "case or controversy" requirement. Pp. 216-227.

2. Respondents also lacked standing to sue as taxpayers, since they failed to establish the required "logical nexus between the [taxpayer] status asserted and the claim sought to be adjudicated." Flast v. Cohen, 392 U.S. 83, 102. Pp. 227-228.

162 U.S.App.D.C. 19, 495 F.2d 1075, reversed and remanded.

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., [p209] 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.

418 U.S. 208

Schlesinger v. Reservists Committee to Stop the War


No. 72-1188 Argued: January 14, 1974 --- Decided: June 25, 1974
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, Cause 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:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments [p210] whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The Constitution thereby makes Members of Congress ineligible for appointment to certain offices through the limitation of the Ineligibility Clause, and prohibits Members of Congress from holding other offices through the latter limitation, the Incompatibility Clause.

Respondents, the Reservists Committee to Stop the War and certain named members thereof, [n1] challenged the Reserve membership of Members of Congress [n2] as being [p211] 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 roll 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. [p212]

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, [n3] 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,

deprives or may deprive the individual named plaintiffs and all other citizens and taxpayers of the United States of the faithful discharge by members of Congress who are members of the Reserves of their duties as members of Congress, to which all citizens and taxpayers are entitled.

Pet. for Cert. 46.

Petitioners filed a motion to dismiss respondents' complaint on the ground that respondents lacked standing to bring the action, and because the complaint failed to state a cause of action upon which relief could be granted. The latter ground was based upon the contention that the Incompatibility Clause sets forth a qualification for Membership in the Congress, U.S.Const., Art. I, § 5, cl. 1, not a qualification for a position in the Executive Branch. The power to judge that qualification was asserted [p213] to rest exclusively with Congress, not the courts, under Powell v. McCormack, 395 U.S. 486, 550 (1969).

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 recent years, the Supreme Court has greatly expanded the concept of standing, and, in this Circuit, the concept has now been almost completely abandoned.

323 F.Supp. at 839. The court then held that, of the four classes respondents sought to represent, "[o]nly their status as citizens" gave them standing to sue in this case. Id. at 840. The District Court denied standing to respondents as reservists, as opponents of our Vietnam involvement, and as taxpayers. The court acknowledged that there were very few instances in which the assertion of "merely the undifferentiated interest of citizens," ibid., would be sufficient, but was persuaded to find that interest sufficient here by several considerations it found present in the nature of the dispute before it and by the asserted abandonment of standing limitations by the Court of Appeals, whose decisions were binding on the District Court.

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. [p214]

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. [n4] 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. [p215]



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, [n5] 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, [p216] 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. [n6] 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.


Citizen Standing
To have standing to sue as a class representative it is essential that a plaintiff must be a part of that class, that is, he must possess the same interest and suffer the same injury shared by all members of the class he represents. Indiana Employment Division v. Burney, 409 U.S. 540 (1973); Bailey v. Patterson, 369 U.S. 31 (1962). In granting respondents standing to sue as representatives [p217] of the class of all United States citizens, the District Court therefore necessarily -- and correctly -- characterized respondents' interest as "undifferentiated" from that of all other citizens.

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. [n7] 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

alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which [p218] the court so largely depends for illumination of difficult constitutional questions.

Id. at 204. Although dealing with a case of claimed taxpayer standing, Flast v. Cohen, supra, gave further meaning to the need for a "personal stake" in noting that it was meant to assure that the complainant seeking to adjudicate his claim was the "proper party" to present the claim "in an adversary context and in a form historically viewed as capable of judicial resolution." 392 U.S. at 100, 101. In the circumstances of Flast, the Court held that the taxpayer-complainant before it had established a relationship between his status as a taxpayer and his claim under the Taxing and Spending Clause sufficient to give assurance

that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness, and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution.

Id. at 106. While Flast noted that the "case or controversy" limitation on the federal judicial power found in Art. III is a "blend of constitutional requirements and policy considerations," id. at 97, the Court, subsequently, in the context of judicial review of regulatory agency action, held that whatever else the "case or controversy" requirement embodied, its essence is a requirement of "injury in fact." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152 (1970). Although we there noted that the categories of judicially cognizable injury were being broadened, id. at 154, we have more recently stressed that the broadening of categories "is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." [418 U.S. 219] Sierra Club v. Morton, 405 U.S. 727, 738 (1972). And, in defining the nature of that injury, we have only recently stated flatly: "Abstract injury is not enough." O'Shea v. Littleton, 414 U.S. 488, 494 (1974).

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:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States . . . the Emoluments whereof shall have been encreased during such time. . . .

The Court held:

The motion papers disclose no interest upon the part of the petitioner other than that of a citizen and a member of the bar of this Court. That is insufficient. It is an established principle that, to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action, he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action, and it is not [p220] sufficient that he has merely a general interest common to all members of the public.

302 U.S. at 634. [n8]

The Court has today recognized the continued vitality of Levitt, [n9] United States v. Richardson, ante, at 176-179; see also Laird v. Tatum, 408 U.S. 1, 13 (1972). We reaffirm Levitt in holding that standing to sue may not be predicated upon an interest of the kind alleged here, which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally [p221] capable of judicial resolution. It adds the essential dimension of specificity to the dispute by requiring that the complaining party have suffered a particular injury caused by the action challenged as unlawful. This personal stake is what the Court has consistently held enables a complainant authoritatively to present to a court a complete perspective upon the adverse consequences flowing from the specific set of facts undergirding his grievance. Such authoritative presentations are an integral part of the judicial process, for a court must rely on the parties' treatment of the facts and claims before it to develop its rules of law. [n10] Only concrete injury presents the factual context within which a court, aided by parties who argue within the context, is capable of making decisions.

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.

The desire to obtain [sweeping relief] cannot be [p222] accepted as a substitute for compliance with the general rule that the complainant must present facts sufficient to show that his individual need requires the remedy for which he asks.

McCabe v. Atchison, T. & S.F. R. Co., 235 U.S. 151, 164 (1914). Second, the discrete factual context within which the concrete injury occurred or is threatened insures the framing of relief no broader than required by the precise facts to which the court's ruling would be applied. This is especially important when the relief sought produces a confrontation with one of the coordinate branches of the Government; here, the relief sought would, in practical effect, bring about conflict with two coordinate branches.

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."

The powers of the federal judiciary will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of representative government.

Flast v. Cohen, 392 U.S. at 131 (Harlan, J., dissenting). [n11] Our conclusion that there is no citizen standing here, apart from being in accord with all other federal courts of appeals that have considered the question, until the [p223] Court of Appeals' holding now under review, [n12] is also consistent with the recent holdings of this Court. It is one thing for a court to hear an individual's complaint that certain specific government action will cause that person private competitive injury, Association of Data Processing Service Organization, Inc. v. Camp, 397 U.S. 150 (1970), or a complaint that individual enjoyment of certain natural resources has been impaired by such action, United States v. SCRAP, 412 U.S. 669, 687 (1973), but it is another matter to allow a citizen to call on the courts to resolve abstract questions. [n13] The former provides the setting for a focused consideration of a concrete injury. In the latter, although allegations assert an arguable conflict with some limitation of the Constitution, it can be only a matter of speculation whether the claimed violation has caused concrete injury to the particular complainant. [p224]

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. [n14] 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. [p225] Standing was thus found by premature evaluation of the merits of respondents' complaint. [n15]

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

is not a question of motivation, but of possession of the requisite . . . interest that is, or is threatened [p226] to be, injured by the unconstitutional conduct.

Doremus v. Board of Education, 342 U.S. 429, 435 (1952). This same theme a to the inadequacy of motivation to support standing is suggested in the Court's opinion in Sierra Club, supra:

But a mere "interest in a problem," no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or "aggrieved" within the meaning of the APA.

405 U.S. at 739. Respondents' motivation has indeed brought them sharply into conflict with petitioners, but, as the Court has noted, motivation is not a substitute for the actual injury needed by the courts and adversaries to focus litigation efforts and judicial decisionmaking. Moreover, the evaluation of the quality of the presentation on the merits was a retrospective judgment that could have properly been arrived at only after standing had been found so as to permit the court to consider the merits. A logical corollary to this approach would be the manifestly untenable view that the inadequacy of the presentation on the merits would be an appropriate basis for denying 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 [p227] 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. [n16] 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.


Taxpayer Standing
Consideration of whether respondents have standing to sue as taxpayers raises a different question from whether they may sue as citizens. Flast v. Cohen, supra, established that status as a taxpayer can, under certain limited circumstances, supply the personal stake essential to standing. There, the Court held that, in order to ensure the necessary personal stake, there must be "a logical [p228] nexus between the [taxpayer] status asserted and the claim sought to be adjudicated," 392 U.S. at 102. In Flast, the Court determined that the taxpayer demonstrated such a "logical nexus" because, (1) he challenged the exercise of "congressional power under the taxing and spending clause of Art. I, § 8 . . ." and (2) "the challenged enactment exceed[ed] specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power" under Art. I, § 8. Id. at 102-103.

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. [n17]

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.

It is so ordered.

1. The Committee, located in California, is a national unincorporated association of present and former officers and enlisted members of the Reserves, organized for the purpose of opposing the military involvement of the United States in Vietnam and of using all lawful means to end that involvement, including efforts by its members individually to take all steps necessary and appropriate to end that' involvement. The five individual respondents were all members of the Committee, residents of California, and United States citizens and taxpayers. At the time suit was filed, four of the individuals were in active Ready Reserve status; the status of the fifth, then the Committee cochairman, was unspecified.

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 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).

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.

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.

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:

[T]he standing of a party need not come into question if a court determines that for other reasons the issue raised before the bench is nonjusticiable.

That court thus held in effect that, if no justiciable question is presented, no one has standing. DaCosta v. Laird, 471 F.2d 1146, 1152 (1973). See also Sierra Club v. Morton, 405 U.S. 727, 731 (1972); Flast v. Cohen, 392 U.S. 83, 100 (1968).

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.

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.

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).

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).

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.

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.

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); Velyel 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.

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 respondent as citizen.

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.

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 Organizations, 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.

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.

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.

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.