Legislative exhaustion.

Author:Sant Ambrogio, Michael
 
FREE EXCERPT

ABSTRACT

Legislative lawsuits are a recurring by-product of divided government. Yet the Supreme Court has never definitively resolved whether Congress may sue the executive branch over its execution of the law. Some scholars argue that Congress should be able to establish Article III standing when its interests are harmed by executive action or inaction just like private parties. Others, including most prominently the late Justice Antonin Scalia, argue that intergovernmental disputes do not constitute Article III "cases"or "controversies" at all. Rather, the Framers envisioned the political branches resolving their differences through nonjudicial means.

This Article proposes a different approach to congressional lawsuits loosely derived from Justice Ruth Bader Ginsburg's majority opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission and the "equitable discretion"doctrine once utilized in the D.C. Circuit. Under what this Article terms the "Legislative Exhaustion"principle, Congress would be barred from federal court whenever it has nonjudicial means to obtain the remedy it seeks against the Executive. Conversely, when Congress has no way to directly overrule the Executive, such as when the Executive refuses to enforce a law based on constitutional objections, federal courts

TABLE OF CONTENTS INTRODUCTION I. LEGISLATIVE STANDING A. Article III Standing and Injuries in Fact B. INS v. Chadha and Legislative Standing to Defend C. Legislative Injuries D. Is Congress Injured by Executive Enforcement Decisions? 1. Nonenforcement Based on Constitutional Objections 2. Enforcement Discretion E. Arizona v. Arizona and Equitable Discretion II. INTERBRANCH CONFLICT IN THE DELIBERATIVE REPUBLIC A. The Framers' Conception of Republican Government 1. A Representative Republic 2. The Nature of Political Deliberation 3. Deliberation-Forcing Design 4. Separation of Parties, Not Powers B. Deliberation and Interbranch Conflict 1. Legislative Action 2. The Power of the Purse 3. Collateral Political Attacks 4. Impeachment and Censure 5. Judicial Review and Standing in Private Parties 6. Creating an Independent Agency 7. Legislative Standing III. A DELIBERATION-ENHANCING APPROACH TO LEGISLATIVE STANDING A. The Legislative Exhaustion Principle B. Legislative Exhaustion and Unicameral Suits C. Institutional Realism and Responses D. U.S. House of Representatives v. Burwell E. Raines, Coleman, and Legislative Lawsuits F. Chadha, Windsor, and Congressional Defense CONCLUSION INTRODUCTION

May Congress sue the executive branch over its execution of the law? This thorny question has long bedeviled scholars and courts. Much of the debate has revolved around whether Congress can establish Article III standing when the Executive acts in a way that Congress claims violates the Constitution or is contrary to federal law, including executive choices not to enforce the law, either categorically or in specific cases. (1) Some argue that Congress may avail itself of the federal courts when its interests are harmed just like private parties. (2) Others, including most prominently the late Justice Antonin Scalia, have argued that intergovernmental disputes do not constitute Article III "cases" or "controversies" at all and that the Framers envisioned the political branches resolving their differences through nonjudicial means. (3) Meanwhile, the federal courts are once again faced with the question in a lawsuit brought by the House of Representatives over the implementation of the Affordable Care Act. (4)

Enter Justice Ruth Bader Ginsburg's majority opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission (Arizona v. Arizona), issued on the last day of the 2014-2015 Term. (5) The case required the Court to decide whether the Arizona State Legislature had standing to sue an independent state agency that the voters of Arizona created using a ballot initiative. (6) In resolving this question, the Court asked whether the legislature had any nonjudicial means of regaining its redistricting authority. (7) Because the Court believed any action by the legislature would have been futile under the Arizona Constitution, the Court held that the suit was ripe for adjudication on the merits. (8)

Although Justice Ginsburg cast her opinion within the traditional framework for analyzing Article III standing and disclaimed any implications for interbranch disputes at the federal level, (9) her opinion points toward a different approach to legislative standing. Under what this Article terms the "Legislative Exhaustion" principle, federal courts faced with complaints by Congress challenging executive action would ask whether Congress had any nonjudicial means of remedying its alleged harm. (10) If so, Congress would be precluded from availing itself of federal court jurisdiction. Not only is such an exhaustion principle supported by prudential doctrines preserving judicial resources for cases that demand adjudication, (11) it is also consistent with the normative benefits the Framers hoped to achieve from interbranch conflict in a presidential system.

The Framers separated the government of the new Republic into competitive branches not merely to diffuse power, but also to encourage more robust deliberation on the merits of controversial public policies. (12) Although the Framers failed to anticipate the role that political parties would come to play in the new Republic, the democratization of the franchise, or the greater importance of nongovernmental parties in shaping public opinion, legislative deliberation remains a vital normative goal of interbranch conflict. Moreover, this goal is in considerable tension with judicial resolution of interbranch policy disputes. Courts generally review executive action based on their interpretation of what a statute directs the Executive to do, not what they think is the best policy on the merits. (13) The political branches, by contrast, are free to follow their policy preferences when grappling over the details of government programs, subject only to constitutional constraints.

Bringing this deliberation-forcing goal into focus suggests that when Congress can overrule the Executive through legislative acts that enhance deliberation on the merits of government policy--such as when Congress does not like the Executive's use of enforcement discretion or its interpretation of the law--Congress should not have access to the federal courts. Opening the courthouse door to Congress deters and distracts from important legislative work refining statutory regimes and government policy in response to changing circumstances and executive initiatives. It is to this project that Congress can bring the full value of its deliberative processes to bear. Accordingly, there is generally less, not more, reason to allow the legislature to avail itself of the federal courts to resolve what are essentially political disputes between the branches over the merits of government policy.

The question becomes more difficult, however, when Congress has no tools to directly overrule the Executive, such as when the Executive refuses to enforce a statutory provision based on constitutional objections. Although Congress can punish the Executive, such punishment is unlikely to produce deliberation on the merits of the Executive's actions. Moreover, such punitive action may damage collateral policies and personnel for reasons unrelated to the merits of the policy dispute. Therefore, allowing Congress into federal court in such cases does not undermine the deliberation-forcing goals of interbranch conflict.

Thus, the Legislative Exhaustion principle provides a relatively easy way to resolve suits in which the Executive purports to act pursuant to statutory authority. In such cases, Congress has not exhausted its legislative remedies and should look to itself rather than to the federal courts for its salvation. But the Legislative Exhaustion principle would not preclude congressional lawsuits over presidential decisions not to enforce the law based on constitutional objections. When the President refuses to enforce a congressional act based on constitutional objections, Congress has exhausted its legislative remedies, and its weapons for battling the Executive are unlikely to produce deliberation on the merits of the policy in dispute. There may be other reasons to deny Congress standing in such cases, but Legislative Exhaustion does not provide one.

Proposals for legislative standing usually seek to ensure judicial resolution of constitutional questions and prevent executive officials from exercising an "extra-legislative veto" over duly enacted law--in other words, to prevent a unilateral check on statutory mandates that the Executive exercises outside of the legislative process. (14) This Article suggests that both the focus on providing courts with the final word on interbranch disputes and the desire to leave these disputes to the political process ignore a fundamental objective of interbranch competition--forcing enhanced political deliberation over the merits of contested policies. Focusing on this goal illuminates when judicial resolution of interbranch disputes is likely to undermine the deliberative objectives of our Madisonian system.

This Article proceeds in three parts. Part I surveys the doctrinal landscape of legislative sta nding and the difficulties of determining whether Congress suffers an injury sufficient to support Article III standing in disputes with the Executive. It closes with Justice Ginsburg's opinion in Arizona v. Arizona, which may have roots in the D.C. Circuit's "equitable discretion" doctrine, and begins to outline the Legislative Exhaustion principle that might follow from the opinion. Part II then turns to the Framers' view of interbranch conflict and their goal of enhancing political deliberation on the merits of controversial policies. In light of this...

To continue reading

FREE SIGN UP