Standing outside of Article III.

AuthorGrove, Tara Leigh
PositionAbstract through II. Article II and Executive Nondefense B. Standing (Only

The U.S. Supreme Court has insisted that standing doctrine is a "bedrock" requirement only of Article III. Accordingly, both jurists and scholars have assumed that the standing of the executive branch and the legislature, like that of other parties, depends solely on Article III. But I argue that these commentators have overlooked a basic constitutional principle: federal institutions must have affirmative authority for their actions, including the power to bring suit or appeal in federal court. Article III defines the federal "judicial Power" and does not purport to confer any authority on the executive branch or the legislature. Executive and legislative standing instead depend in large part on the provisions conferring power on those institutions--principally, Article II and Article I. This basic insight has important implications. I argue that the Take Care Clause of Article II helps both to explain the breadth and to define the limits of executive standing. The executive branch has standing only insofar as it has an Article II power and duty to enforce and defend federal law on behalf of the federal government. The Take Care Clause does not, however, confer standing when the executive no longer asserts that law-enforcement interest--when it declines to defend a federal law. Article I, for its part, does not confer any power on Congress to enforce or defend federal laws in court. Accordingly, contrary to the assumption of many scholars, Congress lacks standing to represent the United States in place of the executive. The Supreme Court has entirely overlooked these questions of institutional power in considering issues of executive or legislative standing, including, most recently, in the litigation over the Defense of Marriage Act. Article III cannot confer power on the executive or the legislature that Article II or Article I denies.

INTRODUCTION I. Executive Standing Under Article II. A. The Article II Foundations of Executive Standing B. Standing to Enforce Federal Law C. Standing to Defend Federal Law II. Article II and Executive Nondefense A. Article II Power as a Preliminary Question B. Standing (Only) to Defend Federal Law 1. Executive Standing and the "Duty to Defend" 2. No Standing to Seek a Supreme Court Settlement C. The Normative Case for Limiting Executive Standing III. Congress's (Lack of) Standing Under Article I A. The Structural Case Against Legislative Standing B. The Normative Case Against Legislative Standing IV. Implications of the Limits on Executive and Legislative Standing A. The (Overlooked) Connection Between Defense and Execution B. Practical Implications: Standing for the United States CONCLUSION INTRODUCTION

Standing doctrine is often described as a "bedrock" requirement of Article III. (1) Accordingly, jurists and scholars have repeatedly asserted (or assumed) that the standing of Congress and the executive branch, like other actors before the court, depends only on Article III. (2) For example, in United States v. Windsor, the Supreme Court held that the executive had "Article III standing" to appeal a lower court decision invalidating the Defense of Marriage Act (DOMA), even though the executive declined to defend DOMA and, in fact, had sought the lower court ruling striking down the law. (3) Although the dissenting opinions sharply disagreed with that conclusion, no Justice doubted that the jurisdictional issue was governed entirely by Article III. (4) Likewise, while the Court did not formally rule on the House of Representatives' standing to appeal in Windsor, the Justices assumed that the House's standing would depend only on an analysis of Article III. (5)

I argue, however, that the standing of the executive branch and the legislature cannot be determined solely by Article III. This assertion rests on a basic constitutional principle: federal institutions must have affirmative authority for their actions. That is no less true with respect to the power to file suit or appeal in federal court. Article III defines the federal "judicial Power" and does not purport to confer any power on the executive or the legislature. (6) Executive and legislative standing must instead stem from the provisions conferring power on those institutions--principally, Article II and Article I.

This insight has important implications. First, Article II helps both to explain the breadth and to define the limits of executive standing. In sharp contrast to private parties, (7) the executive may bring suit to enforce or defend federal law, absent a showing of concrete injury. (8) The executive's broad standing arises out of its duty to "take Care that the Laws be faithfully executed." (9) The Take Care Clause generally requires the executive to protect the federal government's interests in the enforcement and continued enforceability of its laws--in part by bringing suit and defending federal laws in court. To accommodate the executive's Article II duties, the federal courts treat such executive actions as Article III "cases" and "controversies." Executive standing thus depends on a contextual reading of Article II and Article III.

But I argue that the Take Care Clause does not confer on the executive branch unlimited power to invoke federal jurisdiction. The executive has standing only when it asserts the federal government's interests in the enforcement and continued enforceability of federal law. Accordingly, when the executive no longer seeks to protect that law-enforcement interest--when (as in Windsor) the executive refuses to defend a federal law--it no longer has an Article II power to invoke federal jurisdiction. (10) In such nondefense cases, the executive seeks further review simply to obtain a higher court resolution of a constitutional question. Although the executive may have strong political and institutional reasons to seek such a judicial decision, no provision of Article II (or any other part of the Constitution) gives the executive branch standing to obtain a judicial settlement of a constitutional question. (11) Absent such affirmative power, the executive lacks standing.

Likewise, the power of the federal legislature to bring suit cannot be determined by reference to Article III alone but depends on the constitutional provisions conferring power on Congress--primarily, those found in Article I. Building on prior work, (12) I argue that the Constitution does not give Congress the power to assert in court the federal government's interests in the enforcement or defense of federal law. Absent such affirmative power, Congress also lacks standing. Article III cannot confer on the executive or the legislature a power that Article II or Article I denies.

My arguments as to the scope and limits of executive and legislative standing rest primarily on the constitutional text and structure as well as Supreme Court precedent. (13) However, I also believe that the restrictions on executive and legislative standing have strong normative underpinnings. As political scientists have demonstrated, both the executive branch and Congress have considerable incentives to refer controversial constitutional questions to the judiciary. (14) Constraining the standing of the political branches helps protect the courts from becoming substitute for a for matters that could have been, but were not, resolved through the political process. At the same time, these standing restrictions help protect individual liberty. Neither the executive nor the legislature should be permitted to subject an individual to suit or to further rounds of appeals simply because it may be politically convenient to obtain a judicial resolution of a legal question.

These non-Article III principles have significant implications for legal scholarship and federal litigation. First, this analysis undermines the assumption of jurists, scholars, and the executive branch itself that the executive has complete discretion to enforce a law and then refuse to defend it--thereby teeing up the issue for Supreme Court review. (15) I demonstrate that the executive lacks standing to seek Supreme Court (or other appellate) review when it declines to defend a law. This analysis also shows that, contrary to the assumption of many scholars, (16) Congress lacks standing to...

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