The phenomenon of litigation directly between Congress and the President concerning their respective constitutional powers and prerogatives is a recent one. It was unknown through more than a century and three quarters of our jurisprudence....
-- Judge Robert Bork (1)
On March 24, 1999, the United States and other members of the North Atlantic Treaty Organization (NATO) began air strikes against selected targets in Yugoslavia. (2) In an address that evening, President Clinton told the American people that the United States was undertaking these actions "to protect thousands of innocent people in Kosovo from a mounting military offensive, ... to prevent a wider war, to diffuse a powder keg at the heart of Europe that has exploded twice before in this century with catastrophic results ... [a]nd ... to stand united with our allies for peace." (3) Given the recent tragedies in Bosnia, the President contended that the U.S. and its allies were seeking to act decisively before the Milosevic regime could perpetrate "ethnic cleansing" against the ethnic Albanians living in the Province of Kosovo. (4)
While the Kosovo conflict may have had support from many members of Congress, it was authorized by neither a declaration of war nor other specific statutory authorization. In a letter provided to Congress on March 26, 1999, the President explained that he had "taken these actions pursuant to [the President's] authority ... as Commander in Chief and Chief Executive." (5) During the course of the conflict, Congress considered several legislative actions related to the conflict (6)--some aimed at authorizing the use of force, others seeking to circumscribe the actions of the President. The only such legislative measure to be adopted by Congress and signed into law was an emergency supplemental appropriations bill. This appropriations bill merely provided additional funds necessary for the continuing prosecution of the conflict and did not "contain a statement that it [was] intended to constitute specific statutory authorization within the meaning of the War Powers Resolution." (7) Consequently, Congress had provided no explicit authorization for President Clinton's actions by the time the military actions ended.
In the wake of this congressional inaction, Congressman Tom Campbell of California and other members of the House of Representatives brought suit against President Clinton seeking a declaratory judgment that the President's actions in the Kosovo crisis were unlawful because they violated both the War Powers Clause of the Constitution (8) and applicable provisions of the War Powers Resolution. (9) In Campbell v. Clinton, both the District Court for the District of Columbia (10) and the D.C. Circuit Court of Appeals (11) found that the plaintiffs lacked standing to bring this suit and, thus, never reached the merits of the case. (12)
Campbell v. Clinton is but one of the most recent in a long line of cases dealing with the issue of legislator standing. (13) Ever since the Vietnam War, federal legislators have been emboldened to bring suit against the President, other Executive Branch officials and agencies, and even their own House of Congress. (14) Most of these cases have been filed in the D.C. Circuit. (15) The Supreme Court has merely touched on the concept of legislator standing in a very small number of cases, the most recent being Raines v. Byrd, (16) which involved a challenge to the Line Item Veto Act. As a consequence, it has been left to the D.C. Circuit to develop a jurisprudence on legislator standing. By the 1990s, the Circuit had developed at least three distinct approaches to the question, with the last approach predominating for almost twenty years. The Supreme Court's decision in Raines, however, required the D.C. Circuit to reconsider its approaches. Campbell v. Clinton and Chenoweth v. Clinton, (17) both decided shortly after Raines, gave the appellate court the opportunity to begin this reconceptualization. …