SUPREME COURT OF THE UNITED STATES
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                                   No. 96-1671
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       FREDERICK D. RAINES, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET, ET
                    AL., APPELLANTS v. ROBERT C. BYRD ET AL.
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       ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
                                    COLUMBIA
                                 [June 26, 1997]
  JUSTICE SOUTER, concurring in the judgment, with whom JUSTICE GINSBURG joins,
concurring.
   Appellees claim that the Line Item Veto Act, Pub. L. 104-130, 110 Stat.
1200, codified at 2 U. S. C. A. S691 et seq. (Supp. 1997), is unconstitutional
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because it grants the President power, which Article I vests in Congress, to
repeal a provision of federal law.  As JUSTICE STEVENS points out, appellees
essentially claim that, by granting the President power to repeal statutes, the
Act injures them by depriving them of their official role in voting on the
provisions that become law.  See post, at 2-3.  Under our precedents, it is
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fairly debatable whether this injury is sufficiently "personal" and "concrete"
to satisfy the requirements of Article III. (Ftnote. 1)
                                            (Ftnote. 1)
  There is, first, difficulty in applying the rule that an injury on which
standing is predicated be personal, not official.  If our standing doctrine
recognized this as a distinction with a dispositive effect, the injury claimed
would not qualify: the Court is certainly right in 
                    
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   1)  While Congress may, by authorizing suit for particular parties, remove
   1)  
any prudential standing barriers, as it has in this case, see, ante, at 8, n. 3,
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it may not reduce the Article III minimums.

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2                                RAINES v. BYRD
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concluding that appellees sue not in personal capacities, but as holders of
seats in the Congress.  See ante, at 9.  And yet the significance of this
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distinction is not so straightforward.  In Braxton County Court v. West Virginia
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ex rel. State Tax Comm'rs, 208 U. S. 192 (1908), it is true, we dismissed a
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challenge by a county court to a state tax law for lack of jurisdiction, broadly
stating that "`the interest of a [party seeking relief] in this court should be
a personal and not an official interest,'" id., at 198 (quoting Smith v.
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Indiana, 191 U. S. 138, 149 (1903)); accord, Joint Anti-Fascist Refugee Comm. v.
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McGrath, 341 U. S. 123, 151 (1951) (Frankfurter, J., concurring).  But the Court
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found Braxton County "inapplicable" to a challenge by a group of state
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legislators in Coleman v. Miller, 307 U. S. 433, 438, and  n. 3 (1939), and
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found the legislators had standing even though they claimed no injury but a
deprivation of official voting power, id., at 437-446. (Ftnote. 2)  Thus, it is
                                                       (Ftnote. 2)
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at least arguable that the official nature of the harm here does not preclude
standing.
  Nor is appellees' injury so general that, under our case law, they clearly
cannot satisfy the requirement of concreteness.  On the one hand, appellees are
not simply
                    
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   2)  As appellants note, it is also possible that the impairment of certain
   2)  
official powers may support standing for Congress, or one House thereof, to seek
the aid of the Federal Judiciary.  See Brief for United States 26, n. 14 (citing
McGrain v. Daugherty, 273 U. S. 135, 174 (1927)).  And, as appellants concede,
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see Brief for United States 20-21, 25-28, an injury to official authority may
support standing for a government itself or its duly authorized agents, see,
e.g., Diamond v. Charles, 476 U. S. 54, 62 (1986) (noting that "a State has
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standing to defend the constitutionality of its statute" in federal court); ICC
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v. Oregon-Washington R. & Nav. Co., 288 U. S. 14, 25-27 (1933) (explaining that
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a federal agency had standing to appeal, because an official or an agency could
be designated to defend the interests of the Federal Government in federal
court); Coleman v. Miller, 307 U. S. 433, 441-445 (1939) (discussing cases).
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                                 RAINES v. BYRD                                3
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claiming harm to their interest in having government abide by the Constitution,
which would be shared to the same extent by the public at large and thus provide
no basis for suit, see, e.g., Valley Forge Christian College v. Americans United
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for Separation of Church and State, Inc., 454 U. S. 464, 482-483 (1982);
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Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 217, 220 (1974);
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Fairchild v. Hughes, 258 U. S. 126, 129-130 (1922).  Instead, appellees allege
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that the Act deprives them of an element of their legislative power; as a
factual matter they have a more direct and tangible interest in the preservation
of that power than the general citizenry has.  Cf. Coleman, supra, at 438
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(concluding that state legislators had a "plain" and "direct" interest in the
effectiveness of their votes); see also Hendrick v. Walters, 865 P. 2d 1232,
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1236-1238 (Okla. 1993) (concluding that a legislator had a personal interest in
a suit to determine whether the Governor had lawfully assumed office due to
substantial interaction between the Governor and legislature); Colorado General
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Assembly v. Lamm, 704 P. 2d 1371, 1376-1378 (Colo. 1985) (concluding that the
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legislature had suffered an injury in fact as a result of the Governor's
exercise of his line item veto power).  On the other hand, the alleged,
continuing deprivation of federal legislative power is not as specific or
limited as the nullification of the decisive votes of a group of legislators in
connection with a specific item of legislative consideration in Coleman, being
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instead shared by all the members of the official class who could suffer that
injury, the Members of Congress. (Ftnote. 3)
                                 (Ftnote. 3)
                    
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   3)  As the Court explains, Coleman may well be distinguishable on the
   3)                         _______
further ground that it involved a suit by state legislators that did not
implicate either the separation-of-powers concerns raised in this case or
corresponding federalism concerns (since the Kansas Supreme Court had exercised
jurisdiction to decide a federal issue).  See ante, at 13, n. 8. 
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                                96-1671 - CONCUR
4                                RAINES v. BYRD
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  Because it is fairly debatable whether appellees' injury is sufficiently
personal and concrete to give them standing, it behooves us to resolve the
question under more general separation-of-powers principles underlying our
standing requirements.  See Allen v. Wright, 468 U. S. 737, 752 (1984); United
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States v. Richardson, 418 U. S. 166, 188-197 (1974) (Powell, J., concurring). 
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While "our constitutional structure [does not] require . . . that the Judicial
Branch shrink from a confrontation with the other two coequal branches,"  Valley
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Forge Christian College, supra, at 474, we have cautioned that respect for the
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separation of powers requires the Judicial Branch to exercise restraint in
deciding constitutional issues by resolving those implicating the powers of the
three branches of Government as a "last resort," see ibid.  The counsel of
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restraint in this case begins with the fact that a dispute involving only
officials, and the official interests of those, who serve in the branches of the
National Government lies far from the model of the traditional common-law cause
of action at the conceptual core of the case-or-controversy requirement, see
Joint Anti-Fascist Refugee Comm., supra, at 150, 152 (Frankfurter, J.,
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concurring).  Although the contest here is not formally between the political
branches (since Congress passed the bill augmenting Presidential power and the
President signed it), it is in substance an interbranch controversy about
calibrating the legislative and executive powers, as well as an intrabranch
dispute between segments of Congress itself.  Intervention in such a controversy
would risk damaging the public confidence that is vital to the functioning of
the Judicial Branch, cf. Valley Forge Christian College, supra, at 474 (quoting
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Richardson, supra, at 188 (Powell, J., concurring)), by embroiling the federal
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courts in a power contest nearly

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                                 RAINES v. BYRD                                5
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at the height of its political tension.
  While it is true that a suit challenging the constitutionality of this Act
brought by a party from outside the Federal Government would also involve the
Court in resolving the dispute over the allocation of power between the
political branches, it would expose the Judicial Branch to a lesser risk. 
Deciding a suit to vindicate an interest outside the Government raises no
specter of judicial readiness to enlist on one side of a political tug-of-war,
since "the propriety of such action by a federal court has been recognized since
Marbury v. Madison, 1 Cranch 137 (1803)."   Valley Forge Christian College,
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supra, at 473-474.  And just as the presence of a party beyond the Government
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places the Judiciary at some remove from the political forces, the need to await
injury to such a plaintiff allows the courts some greater separation in the time
between the political resolution and the judicial review.
   "[B]y connecting the censureship of the laws with the private interests of
   members of the community, . . . the legislation is protected from wanton
   assailants, and from the daily aggressions of party-spirit." 1 A. de
   Tocqueville, Democracy in America 105 (Schoken ed. 1961).
  The virtue of waiting for a private suit is only confirmed by the certainty
that another suit can come to us.  The parties agree, and I see no reason to
question, that if the President "cancels" a conventional spending or tax
provision pursuant to the Act, the putative beneficiaries of that provision will
likely suffer a cognizable injury and thereby have standing under Article III. 
See Brief for United States 19-20, and n. 10; Brief for Appellees 32-33.  By
depriving beneficiaries of the money to which they would otherwise be entitled,
a cancellation would produce an injury that is "actual," "personal and individ-
ual," and involve harm to

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6                                RAINES v. BYRD
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a "legally protected interest," Lujan v. Defenders of Wildlife, 504 U. S. 555,
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560, and n. 1 (1992) (internal quotation marks omitted); assuming the canceled
provision would not apply equally to the entire public, the injury would be
"concrete," id., at 560, 573-574; and it would be "fairly trace[able] to the
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challenged action of the" executive officials involved in the cancellation, id.,
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at 560 (internal quotation marks omitted), as well as probably "redress[able] by
a favorable decision," id., at 561 (internal quotation marks and citation
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omitted).  See, e.g., Train v. City of New York, 420 U. S. 35, 40 (1975) (suit
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by City of New York seeking proper allotment of federal funds).  While the Court
has declined to lower standing requirements simply because no one would
otherwise be able to litigate a claim, see Valley Forge Christian College, 454
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U. S., at 489; Schlesinger, 418 U. S., at 227; United States v. Richardson,
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supra, at 179, the certainty of a plaintiff who obviously would have standing to
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bring a suit to court after the politics had at least subsided from a full boil
is a good reason to resolve doubts about standing against the plaintiff invoking
an official interest, cf. Joint Anti-Fascist Refugee Comm., 341 U. S., at
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153-154 (Frankfurter, J., concurring) (explaining that the availability of
another person to bring suit may affect the standing calculus).  
  I therefore conclude that appellees' alleged injuries are insufficiently
personal and concrete to satisfy Article III standing requirements of personal
and concrete harm.  Since this would be so in any suit under the conditions
here, I accordingly find no cognizable injury to appellees.