Standing outside of Article III.

• Author: Grove, Tara Leigh
• Position: II. Article II and Executive Nondefense B. Standing (Only

2. No Standing to Seek a Supreme Court Settlement

The above analysis suggests why the executive lacks standing to appeal in nondefense cases. In each of the cases discussed below, the lower court (at the executive's behest) struck down the relevant federal law or otherwise ruled in favor of the plaintiff. On appeal, the executive asserted that it was "aggrieved" because the lower court decision prevented it from enforcing a federal law. Accordingly, the executive alleged that it had standing to assert the federal government's interest in the continued enforceability of the law. But that is not the interest that the executive sought to protect on appeal. The executive did not ask the appellate courts to uphold the law but instead urged them to strike it down. It appears that the executive's primary goal was not to protect the government's interests, but instead to obtain a higher court resolution of a contentious constitutional question.

United States v. Lovett (118) involved an appropriations rider that barred the executive branch from paying (and thus effectively fired) three named federal officials who were believed to have ties to communist organizations. (119) When the employees filed suit in the Court of Claims to challenge their termination and recover their unpaid salaries, the Roosevelt Administration joined them in arguing that the rider was unconstitutional. (120) The executive asserted that the measure was not only a bill of attainder but also an infringement of the President's Article II removal power because Congress had itself terminated three executive officials without impeaching them. (121) A Special Counsel appointed by the House of Representatives appeared as amicus curiae to defend the law. (122) The Court of Claims later issued a judgment in favor of the plaintiffs but did so without clearly ruling on the constitutional issues. (123)

The Solicitor General then filed a certiorari petition, asserting that the Court should grant review to determine the "liability of the United States" to the three employees. (124) But the Solicitor General also informed the Justices that the executive was "still of the view that the [rider] is unconstitutional" and urged the Court to strike it down. (125) Accordingly, the executive's goal in seeking Supreme Court review was not to enforce the rider and avoid paying the employees (who, in the executive's view, deserved their salaries). (126) Instead, as John Hart Ely suggested, the executive likely "wanted Supreme Court review" to secure "a judicial halt ... to legislative tampering with the removal power." (127) If so, the Supreme Court ultimately gave the executive only a partial victory. The Court granted review and held the rider unconstitutional but did so on bill of attainder grounds without commenting on the removal question. (128)

INS v. Chadha (129) grew out of a long-running dispute between the executive and legislative branches over the legislative veto. (130) Although Congress began adding such provisions to legislation in the 1930s, the number of legislative vetoes skyrocketed in the 1970s. (131) Presidents Jimmy Carter and Ronald Reagan repeatedly objected to the provisions and even threatened to disregard some legislative vetoes of administrative action. (132) But the Presidents found that they could not get many bills through Congress without acquiescing in at least some legislative vetoes. (133) Therefore, the executive opted to fight the veto in the courts. (134)

According to political scientist Barbara Craig, the Department of Justice (DOJ) "viewed Chadha as a promising case for attacking the legislative veto." (135) Thus, when the Ninth Circuit struck down the measure as applied in deportation cases, (136) the executive sought further review in the Supreme Court. Both the Senate and the House of Representatives, who had appeared as amici curiae in the Ninth Circuit (and later intervened), (137) challenged the executive's standing to appeal a lower court decision with which it agreed. (138) The Solicitor General responded that the executive was sufficiently "aggrieved" for purposes of appeal, because the lower court had "order[ed] the Attorney General to 'cease and desist from taking any steps to deport'" Chadha. (139) The Solicitor General further stated:

Because the constitutional question in this case involves a conflict between the Executive and Legislative Branches, it is particularly important that it be resolved by the Judicial Branch. Accordingly, the course that the INS chose to follow--to enforce the statute, in order to ensure a judicial resolution of the controversy ... was not merely permissible under the circumstances, but was a responsible and wholly appropriate response [to the one-house veto]. (140) As Professor Craig observes, the executive's goal in Chadha was not to protect the continued enforceability of the veto provision. Instead, the executive sought a "Supreme Court 'stamp of approval'" of the Ninth Circuit decision invalidating the veto. (141) Indeed, "[e]ven more important ... was the possibility that the Supreme Court might rule more broadly, thus calling many, if not all, of the other legislative veto provisions in laws into question." (142) Ultimately the Court obliged, permitting the executive's appeal and issuing a sweeping decision that effectively invalidated every legislative veto. (143)

Windsor involved a challenge to the Defense of Marriage Act, which prohibited the federal government from recognizing same-sex marriages for purposes of federal law. (144) President Obama declared his opposition to DOMA during the 2008 campaign and, once in office, urged Congress to repeal the law. (145) But Congress took little action in response to these requests. Finally, in February 2011, Attorney General Eric Holder notified Congress that the executive branch would cease defending DOMA but would continue to enforce it "unless and until Congress repeals [the law] or the judicial branch renders a definitive verdict against the law's constitutionality." (146) "This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised." (147)

Despite the Attorney General's assertion, however, the executive did not enforce DOMA in every case. For example, the executive opted not to apply the law in bankruptcy and some immigration proceedings. (148) But the executive did enforce the law in Edith Windsor's case, requiring her to pay over $360,000 in federal estate taxes that she would not have had to pay if the government had recognized her same-sex marriage. (149) Windsor brought suit in federal district court to challenge DOMA on equal protection grounds, seeking a declaration that DOMA was unconstitutional and a refund of the tax. (150) The executive branch joined Windsor in arguing that the law was unconstitutional and urged the district court to "grant Plaintiff's motion for summary judgment." (151)

After the lower courts ruled in Windsor's favor, (152) the executive sought Supreme Court review. When the Court directed the parties to address the issue of executive standing, (153) the Solicitor General argued that the executive had standing to assert an injury to the government. (154) "The United States may properly invoke this Court's jurisdiction because the judgments of the courts below preclude enforcement of a federal statute and require payment of federal Treasury funds to plaintiff." (155)

The executive did not, however, seek Supreme Court review to protect the continued enforceability of DOMA or to avoid paying Edith Windsor. The Solicitor General said as much in his certiorari petitions, declaring that "[a]lthough the Executive Branch agrees with the court of appeals' determination that Section 3 [of DOMA] is unconstitutional, we respectfully seek ... review so that the question may be authoritatively decided by this Court." (156) As in Lovett and Chadha, the executive wanted a "definitive judicial ruling that [the law was] unconstitutional." (157) The Supreme Court obliged, granting the executive's petition and holding that DOMA violated "basic due process and equal protection principles." (158)

In the above cases, the executive appealed the lower court decisions, not to protect the federal government's interests, but rather to obtain a Supreme Court resolution of a constitutional question. But neither the Take Care Clause nor any other constitutional provision gives the executive the power to ask for the Court's view on a legal question--a point made clear by the Justices' rejection of President George Washington's request for a legal opinion on his Neutrality Proclamation. (159) The executive lacks the Article II power--and thus lacks Article III standing--to invoke federal jurisdiction simply to request "a definitive verdict" (160) on the validity of a federal law.

The Supreme Court has entirely overlooked these Article II principles. The Court in Chadha and Windsor permitted the executive to seek further review because of the federal government's interest in the continued enforceability of its laws. (The Court in Lovett did not even question the executive's authority to appeal.) Thus, the Chadha Court emphasized that the executive planned to "comply with the House action ordering deportation of Chadha" and was "aggrieved" by the lower court decision preventing it from enforcing that order. (161) Likewise, the Windsor Court held that the "United States retains a stake sufficient to support Article III jurisdiction on appeal," because the lower court judgment "orders the United States to pay money that it would not disburse but for the court's order." (162) The Court declared: "That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made...." (163)

But the executive...