A functional theory of congressional standing.

Author:Nash, Jonathan Remy
Position::II. The Functions of Congress through Conclusion, with footnotes, p. 363-389

    In this Part, I explore the various functions of Congress and its members. It is surely true that the foundational action that a member of Congress can take is to vote on pending legislation. But it is also true that casting votes is not the sum total of what Congress does. Undertaking legislation requires Congress to not only cast votes, but also to craft bills and conduct negotiations over their structure and content--both internally and externally with the executive branch. Moreover, in order to legislate effectively--and to gauge the need for new legislation and the effectiveness of existing legislation--it falls within Congress's purview to gather information. Indeed, the Supreme Court has long recognized the importance of Congress as a gatherer of information. (155) Beyond that, confining one's understanding of Congress's role to actual voting masks the power that inures to Congress by virtue of the requirement that votes be taken in the first place. That power--which we refer to as "process bargaining power"--may manifest itself even when no vote is actually taken.

    First, the restriction in Raines of institutional injury to cases that implicate voting (let alone the narrow context of actual vote nullification) erroneously presupposes that Congress's only institutional role is to collect votes, and therefore that injury occurs only when voting is impaired. Consider the well-accepted constitutional role of Congress in conducting hearings. While the Constitution does not expressly identify this as a core congressional function, (156) the Court nonetheless has readily recognized that "[i]n actual legislative practice power to secure needed information by ... means [of compelling testimony of witnesses before investigative committees] has long been treated as an attribute of the power to legislate." (157) Indeed, "the power of inquiry--with process to enforce it--is an essential and appropriate auxiliary to the legislative function." (158)

    Congress's power to hold hearings and gather information is effectively a subset of its oversight power. (159) The practice dates back to the early days of the Republic. (160) More recent decades have seen it soundly ensconced in statutory law. (161) Like the general power to hold hearings, overseeing the executive improves Congress's ability to legislative effectively. (162) It thus is not uncommon to see Congress enact legislation that directs the executive branch to provide information to Congress on some regular basis, (163) or to hold hearings at which executive branch officials testify or hearings in response to which the executive branch provides information--sometimes subject to congressional subpoenas. (164)

    Second, while the Court's framework in Raines did acknowledge voting as a central congressional function, its understanding of the importance of voting was far too limited. The Court recognized, properly, that Congress votes for bills which, on the President's signature (or an override of the President's veto), become law; and that a congressional vote against a bill prevents that bill from becoming law. At the same time, the Court failed to recognize how Congress's role in the constitutional lawmaking scheme is itself a pivotal congressional function.

    The Constitution assigns Congress specific roles in the lawmaking process. Most prominent are the requirements for a bill to become a law: bicameralism (both houses of Congress vote for the bill) and presentment (the approved bill must be sent to the President for either signature or veto). The Supreme Court has explained that the "clear [ ] ... prescription for legislative action" in the Constitution means that federal legislative power must be "exercised in accord with a single, finely wrought and exhaustively considered, procedure." (165)

    While bicameralism is the norm for federal legislative function, some constitutional provisions for the exercise of legislative power do not involve bicameralism. For example, Senate approval alone is required for appointment of federal judges and officers. (166) Other provisions do not require presentment--for example, approval of a constitutional amendment entails approval by two-thirds of each house of Congress but no presidential involvement. (167) Still, the fact remains that these requirements, like the requirements for making a bill into a law, provide a "single" path for reaching the result in question. And each of these single paths provides for a particular, and mandatory, legislative role.

    That Congress has a mandatory role in a path to a particular result clearly makes it important how Congress (or the relevant house of Congress, as the case may be) votes on a proposal properly before it. What is less obvious is that that mandatory role affects the process even when no vote is taken. That a particular congressional vote is a prerequisite under a path to a particular result means that the other actors empowered along that path should, if they act rationally, take into account the need for that vote in structuring their own strategies. The ability of a group of legislators to allow or prevent a result, based on how it votes, affords that group "process bargaining power." That power may affect the proposal that comes before the house of Congress for a vote before any vote is actually taken. The mere threat of a vote casts a shadow that affects the very structure of the legal proposal that comes before Congress in the first place. (168) Put another way, if congressional passage were optional, the casting of votes would mean little as a core function; thus, the necessity of casting votes becomes a core function in and of itself. Congress exerts power even when a bill is voted down, or indeed even when no vote is ever taken.

    Having now elucidated the various functions of Congress within the U.S. constitutional system, I turn in Part III to extracting valid bases for congressional standing from these functions.


    In the next Part, I describe various functional bases for congressional standing. But before I do that, I undertake here to defend a functional approach to congressional standing in the first place. I first defend the normative underpinnings of a functional approach. Then, I highlight the benefits that a functional approach to congressional standing offers.

    1. The Normative Underpinnings of the Functional Approach to Congressional Standing

      There are three normative assumptions on which a functional approach to congressional standing implicitly rests. First, standing turns on whether a plaintiff has suffered an injury. Since the Constitution created Congress and its members, it is logical that an imposition on Congress's constitutionally designed function constitutes an injury.

      Second, as intuition suggests, a functional approach to congressional standing is much more at home with a functionalist, rather than a formalist, understanding of separation of powers. (169) A formalist approach to standing argues in favor of having standing restrict judicial power to cases that to some degree at least meet the paradigm of common-law adjudication. (170) As I noted above (and as I and others have argued), Article III does not call for so narrow a view of standing. (171) In contrast, a functional approach to congressional standing is consistent with a functionalist understanding of separation of powers. It allows for the vindication of the political branches' core functions in the courts.

      Third, a functional approach to congressional standing rests on the notion that the various functions that the Constitution assigns to the branches of the federal government are, out of separation-of-powers and structural concerns, worthy of protection. It is for this reason that interference with a branch's core function might be seen as an "injury in fact" for standing purposes.

      Some disagree with the idea that separation of powers requires that particular branches' claims to particular functions be vindicated. Perhaps most prominently, Dean Elizabeth Magill argues that separation of powers requires only that government power be diffuse across the branches, not that particular branches enjoy particular checks over other branches. (172)

      There are a few responses to this argument. One is that, doctrinally, the Court has not subscribed to this view. (173) That being the case, even if one might believe that one should not in theory find injury when a branch finds interference with one of its core functions, the Constitution--at least as it has been interpreted--does indicate that there has been an injury.

      A second response is that experience has proven Magill's thesis--that an inherent diffusion of power among the branches suffices to quell concerns over dangerous concentrations of power--to be in error or at least overstated. Professor Neal Katyal describes how severely divided government in recent years (and in particular the years since Magill advanced her thesis) have led to "a massive increase in executive power." (174)

      A third response is that considerable political science literature suggests that changes to a branch's particular function and the division of power among the branches will have an effect--indeed, often a fairly predictable effect--on outcomes. (175) Thus, generic diffusion of powers

      does not ensure that the government will function according to the constitutional design; outcomes are endogenous to the particular allocation of powers among the branches. A functional approach to congressional standing recognizes this and allows the legislature to vindicate its ability to shape outcomes.

    2. The Benefits of the Functional Approach to Congressional Standing

      The previous Section discussed the normative underpinnings of the functional approach to congressional standing. In this Section, I highlight the benefits the judicial system, and our federal system of government, gain by turning to a functional approach...

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