Scholarship on congressional standing (and a prediction)

|The Volokh Conspiracy |

Yesterday's decision by a federal district court in House v. Burwell concluding that the House of Representatives has standing to pursue some of its claims against the Obama Administration for its allegedly illegal implementation of the Affordable Care Act (ACA) was a surprise to most observers. It has generally been assumed that Congress lacks standing to sue the executive branch, largely due to decisions such as Raines v. Byrd in which the Supreme Court held that individual members lack standing. Although some federal courts have found that congressional bodies (such as committees) have standing to enforce subpoenas against the executive branch, the Supreme Court has never so held, and the executive branch continues to take the opposite view. On the other hand, the Supreme Court's 1939 decision in Coleman v. Miller offers some (albeit not conclusive) support for the notion that a congressional body could sue where individual members could not.

That Congress lacks standing to sue on its own behalf may be the prevailing view among commentators (myself included), but it's hardly established. As the Congressional Research Service concluded in this 2014 report, there are reasons to think that institutional suits—where one house or Congress as a whole sues—could succeed where suits by individual members failed. As Professor Nat Stern argues in this forthcoming paper, the Supreme Court has never closed the door on such suits, deflecting the question of when, if ever, a legislative body could sue on its own behalf. Justice Ruth Bader Ginsburg implicitly recognized this point in her opinion for the Court in Arizona State Legislature v. Arizona Independent Redistricting Commission, in which she went out of her way to caution that the Court's conclusion that the Arizona legislature had standing to sue did not necessarily mean that Congress could sue the President.

Should Congress ever have standing to defend its constitutional prerogatives? Professor Jonathan Nash has a paper (forthcoming in the Michigan Law Review) arguing the answer could be yes, at least in some circumstances. Here's the abstract:

The Supreme Court has offered scarce, and inconsistent, guidance on congressional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court's most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of-powers concerns in order to erect a high standard for congressional standing. It also has invited the Department of Justice to argue that Congress lacks standing to enforce subpoenas against executive branch actors.

Injury to congressional litigants should be defined by reference to Congress's constitutional functions. Those functions extend to gathering relevant information, casting votes, and (even where no vote is ever cast) exercising bargaining power over the scope of legislation. Accordingly, congressional standing can extend not only to cases of actual vote nullification (as extant Supreme Court precedent suggests), but also to cases where (i) congressional plaintiffs validly seek information from the executive branch and (ii) in the limited circumstance where the executive branch has acted so as to threaten permanent and substantial diminution in congressional bargaining power, provided that enough legislators join the suit so as to be able to lay claim to the relevant institutional bargaining power.

Professors Tara Leigh Grove and Neal Devins also authored an article in the Cornell Law Review defending congressional standing for some purposes—such as enforcing subpoenas for information from the executive branch—but not for others. In particular, Grove and Devins argue that the separate houses of Congress should not have standing to defend federal law.

Speaking of efforts by one chamber of Congress to defend federal law, we should not forget about Windsor v. United States, in which the Supreme Court allowed the House of Representatives to defend the constitutionality of the Defense of Marriage Act (DOMA). The precise standing claim there was quite different from that at issue in House v. Burwell, as the case involved a constitutional challenge to a statute that the executive branch refused to defend, but it is still worth considering. Professors Bradford Mank and Abner Greene each have papers discussing how Windsor should influence our understanding of congressional standing.

Academic discussions of whether Congress does (or should) have standing to sue the executive branch may, in the end, be quite moot. Should House v. Burwell reach the Supreme Court, I would be surprised if the standing claim prevailed (even though I think the House's claims are quite strong on the merits). Justice Antonin Scalia is the least likely justice to find congressional standing in a case such as this, and it's hard to see how Congress could prevail without his vote. Chief Justice John Roberts is also quite the standing hawk, and I suspect he'd vote the same way. So if I had to make a prediction, the House would ultimately lose this suit on standing grounds, 7-2. Of course, that prediction is worth less than you paid for it, and if we knew for sure how cases would come out, there would be less reason to litigate them in the first place.