Honoring Dan Meltzer - congressional standing and the institutional framework of Article III: a comparative perspective.

• Author: Jackson, Vicki C.
• Position: Special Issue on the Federal Courts

Dan Meltzer was a superb federal courts scholar, an enormously generous colleague, a truly inspiring teacher, and a dear friend. His untimely death was a huge loss, in all of these respects. His first published paper, on jus tertii standing, in the Harvard Law Review of 1974, argued for the widening of standing in some cases. (1) This was a theme to which he returned, for example, in his 1988 Columbia Law Review piece on civil rights plaintiffs as private Attorneys General in seeking deterrent remedies. (2)

One of Dan's last published papers considered executive branch responsibilities to execute and defend Acts of Congress, especially those whose constitutionality the Administration deemed reasonably open to doubt. (3) In that paper he noted, in a typically careful long footnote, the issue of standing of the House of Representatives in the then-pending Windsor litigation; (4) Dan addressed more generally the issue of congressional standing, pointing out in his inimitably careful, fair, and clear fashion how much was unresolved, or in doubt, about the possibility. (5) And I recently learned from Irv Nathan that Dan had been helpful to him as an academic when Irv, as Counsel to the U.S. House of Representatives, was involved in litigation to compel Harriet Miers, as White House Counsel, to provide information to the House--issues on which, Irv told me, Dan then recused himself when he became White House principal deputy counsel. (6)

What Dan would have written on, had he not been deprived of the opportunity by the fates, is unknown. I would not presume even to speculate. But the topic of government standing is one that, based on his past work, I believe would have engaged his interest. And as we shall see, analysis can be well informed by Dan's work on the role of courts and constitutional remedies.

Apart from Dan's interests, my second set of reasons for addressing issues relating to congressional standing in this Essay is that government standing, writ large, is, for our times, something like what "public interest" standing was in the 1970s for my generation in law school--a set of cutting edge issues about who could invoke the judicial power of the United States. (7) Consider the number of significant cases in just the last decade that have turned on some aspect of government standing. In addition to Windsor, that same Term the Court decided Hollingsworth v. Perry, (8) finding that proponents of a proposition to amend the state constitution of California lacked standing to defend the constitutionality of the amendment that they had sought when the attorney general of the state refused to defend the law or to appeal from a lower court ruling finding the provision unconstitutional. Distinguishing permanent government officeholders from private citizens who played a temporary role in initiating the process of amending the state constitution by initiative, the Court found that the latter lacked any particular stake in the controversy different from that of other citizens (9)--and did so notwithstanding that the California Supreme Court found that the proposition initiators were proper parties to defend the constitutionality of the amendment that resulted even when the state attorney general declined to do so. (10)

In Massachusetts v. EPA, (11) the Court upheld the standing of the State of Massachusetts to challenge the Environmental Protection Agency's (EPA) failure to consider issuing regulations relating to the reduction of greenhouse gases from new motor vehicles to combat global warming and climate change. The Court upheld standing notwithstanding scientific and empirical uncertainty about the likelihood of global warming and about the degree of causation and traceability--typical elements of standing analysis--that the plaintiff could show on the facts. Even though in arguably analogous cases involving private plaintiffs the Court had rejected standing, (12) the Court emphasized that the state's character as a state had special significance for the standing inquiry, warranting "special solicitude" for its "stake in protecting quasi-sovereign interests." (13)

More recently, in Arizona State Legislature v. Arizona Independent Redistricting Commission, (14) the Court upheld the standing of a state legislature to challenge a state constitutional amendment that provided for the use of a nonpartisan commission to draw district lines in the state. The Arizona Legislature advanced a claim that such a law deprived it of the power granted it under the U.S. Constitution to decide on the time, place, and manner of elections to the Congress. (15) The Court agreed that the legislature had standing, since the allegation, if accepted, was that the special prerogative of the state legislature under the U.S. Constitution had been, in effect, "completely nullified" by the state law. (16)

In this short Essay, I focus on only one aspect of the broader question of government standing to sue: congressional standing. For one thing, separation of powers problems are more acutely presented in federal level disputes. In its decision on the state legislature's standing in the Arizona nonpartisan electoral commission case, the Court specifically distinguished the issue of congressional standing from that of state legislative standing:

The case before us does not touch or concern the question whether Congress has standing to bring a suit against the President. There is no federal analogue to Arizona's initiative power, and a suit between Congress and the President would raise separation-of-powers concerns absent here. The Court's standing analysis, we have noted, has been "especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." (17) Moreover, the governmental standing decisions in the Court's recent cases attracted considerable and sharp dissents. In Windsor, although a majority found the issue justiciable, several Justices argued in dissent that the issue was not a justiciable controversy because the government appealed from a judgment with which it agreed and that it defended. (18) Moreover, there was vigorous disagreement between Justices Scalia and Alito (both dissenting) about congressional standing in Windsor, (19) an issue the majority did not reach, having found the government itself to be a proper party. But Justice Alito argued that, where the President refuses to defend the constitutionality of a law enacted by Congress, Congress or its parts should have standing to defend the constitutionality of laws, (20) and Justice Scalia argued that such a congressional role is inconsistent with the properly limited powers of federal courts and that Congress has other means by which to confront a President with whose constitutional positions it disagrees. (21)

Given an increased interest by parts of the Congress, especially the House of Representatives, in seeking to intervene in ongoing litigation, there are pressing new issues in the lower federal courts: U.S. District Court Judge Rosemary Collyer recently upheld congressional standing to challenge an asserted violation of the Appropriations Clause in connection with spending under the Affordable Care Act, while rejecting the House's standing on a claim that the Secretary of the Treasury essentially misinterpreted the statute. (22) And House leadership had threatened to bring an action challenging the President's executive orders on immigration. (23) A large number of state governments, however, brought an action challenging those executive orders, in which more than eighty House members appeared on an amicus brief. (24) The Court has recently granted certiorari to the Fifth Circuit's decision in that case, which upheld the state governments' standing to sue. (25)

So these are pressing issues, and difficult ones, and ones which, I think, will tend to cut across traditional divides of federal courts law.

1. HOW TO DEVELOP AN ANALYTIC FRAMEWORK

   In thinking about the body of Dan Meltzer's work, it seemed to me it advances at least three themes important to successful analysis of problems of government standing: sensitivity to context, to a range of interpretive sources, and to remedial issues.

   First, Dan's scholarly work and his conversations were always exquisitely sensitive to how differences in context might affect legal analysis. (26) It might thus be important to consider the many very different contexts in which issues of government standing at the federal level can arise. (27) Analyzing the House's standing to seek judicial enforcement of a subpoena, as in the Harriet Miers case, (28) may raise quite different problems or concerns than the House's standing to sue executive branch officials for failing to defend the constitutionality of a federal statute. (29) Analyzing a challenge by the Senate to the constitutionality of particular recess appointments, or to the failure to obtain ratification of international agreements, may raise different concerns than analyzing congressional standing to sue the executive branch for failing to "take care" that a law be faithfully executed, as when the dispute arises out of an interpretive disagreement. There are a wide array of distinctive kinds of disputes that can arise between Congress, or its parts, and the executive branch. Consider the Appropriations Clause, (30) or the Declare War Clause, (31) or any of the specifically enumerated powers of the Congress in Article I--are those different from or similar to challenges to asserted violations of the President's Article II "Take Care" Clause obligations? (32) In another paper I hope to lay out a more detailed typology and analysis, (33) but these will provide some indication of the range. And one of Dan Meltzer's great intellectual strengths was his ability to help us see how what seems like a single question is actually many...