A FUNCTIONAL THEORY OF CONGRESSIONAL STANDING

• Author: nash, jonathan remy

Introduction

The House of Representatives' recent decision to authorize filing a lawsuit against President Barack Obama and his administration1 with respect to the President's implementation of the Patient Protection and Affordable Care Act2-and the filing of a suit a few months later3-has focused attention on the House's standing to bring such a lawsuit in federal court.4 Commentators-including many who are sympathetic to the arguments that the lawsuit advanced on the merits-have questioned whether the House can claim proper federal court standing.5

The controversy over the possibility of the House suing President Obama is not the only recent example of congressional standing emerging from the theoretical shadows. Under both President George W. Bush and President Obama, the Department of Justice invoked the Supreme Court's decision in Raines v. Byrd6-the Court's last direct foray into congressional standing-to support the argument that a House committee investigating the executive branch lacked standing to raise a judicial challenge to claims of executive privilege.7 And, when the executive branch declined to defend the constitutionality of the Defense of Marriage Act8 ("DOMA") in United States v. Windsor,9 the House of Representatives argued that its "Bipartisan Legal Advisory Group"-which articulates the House's legal arguments in courts10-had standing as an intervenor to defend the law in the executive's stead (a claim the Supreme Court left undecided in that case).11 Indeed, at least one commentator has suggested that the Court should recognize Congress's standing in general to defend laws against constitutional challenge when the executive branch has declined to do so.12

These disputes over the ability of a house of Congress to file suit form part of a larger debate over "congressional standing" to participate in litigation before the federal courts. Congressional standing also encompasses whether a house of Congress can act as a defendant in a lawsuit-for example, defending a challenge to a law's constitutionality when the executive branch has conceded the challenge-and suits brought by individual federal legislators and blocs of legislators.

In fact, the Supreme Court's guidance on congressional standing has been both scarce and inconsistent. The Supreme Court has directly confronted congressional standing in only two cases, accepting it in Powell v. McCormack,13 and more recently rejecting it in Raines v. Byrd,14 in which the Court suggested more broadly-but in dicta-that congressional standing may be quite constrained.15 In a case from this past June, Arizona State Legislature v. Arizona Independent Redistricting Commission,16 the Court endorsed the standing of a state legislature in a way that could be read to support congressional standing,17 but cited the language from Raines to specifically state that its holding did not extend to the question of congressional standing.18

The lower courts have had greater experience with, and generally have been more open to, claims of congressional standing. The U.S. Court of Appeals for the District of Columbia Circuit-which has, not surprisingly, seen the bulk of congressional standing cases-has favored assertions of congressional standing, to the vocal displeasure of then-D.C. Circuit Judges Bork and Scalia.19 Still, the D.C. Circuit has relied on "equitable discretion" to allow itself, and the district court below it, to pick and choose the congressional standing cases to hear.20 Neither the lower courts nor scholarly commentators, however, have provided an overarching theory to justify this approach.

This Article offers what Supreme Court cases, lower court cases, and commentary have failed to provide-a coherent theory of congressional standing. In particular, the Article argues that the Constitution supports a robust, but limited, role for congressional standing. The theory links standing to the primary functions of Congress: voting and information gathering. In particular, the theory seeks to define cognizable "injuries"-the central hurdle that plaintiffs face in establishing standing-in terms of congressional functions.21

A functional theory of congressional standing would recognize standing in limited circumstances, such as when a majority of a house of Congress (or enough legislators to effect a particular outcome) challenged executive action that systematically and substantially diminished the majority's bargaining power.22 At the same time, because standing would be limited to those cases, it would not throw open the federal courthouse doors to legislators dissatisfied with particular political outcomes.23 Prudential standing limitations could be harnessed further to ensure that political disputes are not relitigated in the courts.24

This functional approach to congressional standing is logical and productive for several reasons. First, a functional approach more fully appreciates the breadth to which the power to vote-not just the actual casting of votes-is a crucial congressional function. The power to vote can shape the law even when no vote is ever taken.25 The functional approach also acknowledges Congress's important information-gathering functions.

Second, a functional approach vindicates the separation-of-powers values that underlie constitutional standing by limiting standing to cases in which there is an actual injury to congressional function.26 At the same time, it does so without allowing those values to hijack the essential standing analysis, as the approach some courts take today does.

Third, a functional approach also enhances congressional (and presidential) accountability. Ensuring that Congress has the capacity to vindicate its ability to engage in its functions reduces the risk that the public will erroneously assign credit (and blame) to branches of government to which it is not due.27

Fourth, a functional approach to congressional standing vindicates not only Congress, but also indirectly the interests of the states. Professor Herbert Wechsler famously argued that the constitutional structure of the federal government preserves states' interests.28 That is perhaps nowhere more true than in the structure of the U.S. Senate, in which members are elected on a state-by-state basis, and each state elects two senators regardless of population.29 If congressional functions further state interests, then an unnecessarily narrow view of congressional standing that fails to incorporate core congressional functions-such as the view the Supreme Court adopted- also fails to adequately protect state interests.30

This Article proceeds as follows. Part I surveys the landscape of congressional standing, as expounded by both the Supreme Court and the lower federal courts. It reveals how, especially recently, courts have mainly extolled separation of powers as a basis for denying standing, while ignoring the various functions that the Constitution assigns to Congress in assessing injury in fact.

Part II then considers some of these functions in greater detail. These functions include some, like collecting votes, that the Constitution expressly contemplates, and others, like the gathering of information, in which Congress has long engaged and that the Court has recognized as foundational.

Part III defends the functional approach to congressional standing. It shows that a functional approach is broadly consistent with existing standing doctrine and vindicates separation-of-powers concerns. It also identifies and evaluates the benefits of a functional approach to congressional standing, discussing in particular how the functional approach enhances democratic accountability and can aid states in asserting their sovereign interests.

Part IV relies on the functional analysis in Part II to derive the contours of congressional standing. It elucidates the possibilities for congressional standing based on information, voting power, and bargaining power. With respect to congressional standing based on an alleged shift in bargaining power from the legislative branch to the executive, Part IV highlights one factor-the scope of the shift in bargaining power-that will greatly influence whether there is congressional standing, and another factor-the extent to which the shift in power is the result of unilateral executive action-that will have an effect, albeit a lesser effect, on whether there is congressional standing. These factors allow us to rank the settings in which congressional standing is least to most likely to exist: (1) when the shift in power is minor and pursuant to a congressional delegation-for example, Congress delegating minor discretionary powers to an executive agency; (2) when the shift in power is minor but the executive branch acts unilaterally-for example, an executive agency undertaking an internal reorganization; (3) when the shift in power is major and pursuant to a congressional delegation-for example, the congressional enactment of the Line Item Veto Act;31 and (4) when the shift in power is major and the executive branch acts unilaterally-perhaps, for example, Congress alleging that unilateral executive action effectively amends a statute without congressional authorization.

1. The Existing Doctrinal State of Congressional Standing

   In this Part, I present the current state of congressional standing. It is often said that the federal government need not establish compliance with the standard Article III standing requirements (at least in some circumstances).32 In reality, however, it is only executive branch actors who have presumptive standing;33 legislators and legislative bodies must establish standing34 under Article III.35

   In Section I.A, I offer a brief overview of standing in general. Next, in Section I.B, I canvass the Supreme Court's take on congressional standing (based on very few flirtations with it). I conclude with a critique of the Supreme Court's approach. Finally, in Section I.C, I survey the lower...