The new law of legislative standing.

• Author: Weiner, David J.

In the Supreme Court's 1997 decision in Raines v. Byrd, (1) a seven justice majority held that members of Congress lacked standing to challenge the constitutionality of the Line Item Veto Act of 1996. (2) In the majority opinion, Chief Justice Rehnquist wrote that the plaintiffs lacked "a sufficient `personal stake'" in the dispute and had not "alleged a sufficiently concrete injury" (3) to demonstrate that they had standing to sue in federal court. The decision followed the traditional form of the modern standing inquiry; (4) it required the plaintiffs to "`show that [they] personally ... suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant' and that the injury `fairly can be traced to the challenged action' and `is likely to be redressed by a favorable decision.'" (5) But closer inspection reveals something altogether different: Raines only permits legislative or congressional standing under the more rigorous common law test requiring a legal interest rather than the more liberal modern injury standard. (6) This makes Raines exceptional, even in the context of the Court's confusing standing jurisprudence, (7) because it breaks from the case law of the past thirty years that left the integrity of the injury test largely unchallenged. Indeed, the Raines majority all but abandoned the injury standard, a standard adopted primarily to facilitate lawsuits by plaintiffs who hoped to clarify governmental obligations to citizens and the limits of constitutional rights. (8) In this Note, I seek to explain how and why the Court adopted this approach to congressional standing in Raines.

That Raines reverted to this traditional standing jurisprudence is surprising. More extreme positions on legislative standing were rejected by the Court. (9) At one extreme, some judges have advocated a no-standing rule for legislators unless they satisfy the traditional standing requirements, irrespective of their status as legislators. (10) At the other end of the spectrum, some judges have argued for a more lenient position that would recognize standing whenever a matter bears on a plaintiff's interests as a legislator. (11) But the Raines majority dismissed these positions in favor of a rule that prohibits standing unless a specific congressional vote is completely nullified. (12) The meaning of "complete nullification" (13) is not obvious. At the very least, the complete nullification rule treats legislative plaintiffs like common law plaintiffs who could only sue if they possessed a legal interest--making standing a difficult barrier to overcome. (14) Raines, therefore, creates two systems of standing, one for non-legislative plaintiffs and a stricter one for members of Congress who are precluded from establishing standing on the basis of the more lenient injury test.

Why did the Court adopt a rule that holds congressional plaintiffs to a higher standard than their non-legislative counterparts? Further, why did it establish the threshold at the high level of the common law legal-interest test? The most compelling explanation for these questions is that the decision meant to advance a particular understanding of the separation of powers. (15) Standing and the separation of powers doctrine have long been wedded together; a robust standing doctrine makes it more difficult for litigants to use the federal courts and therefore precludes their seizure of political power. Yet the complete nullification standard adopted in Raines goes a step further. Specifically, the Supreme Court viewed complete nullification as a shield to protect courts from deciding the types of cases most likely to threaten their legitimacy. Moreover, concern about judicial legitimacy and the separation of powers explains the return of the legal-interest test, since this test limits courts to resolving private disputes involving discrete wrongs and discrete persons, (16) rather than the more controversial public suits that seek to define the constitutional duties of government. (17)

A separation of powers explanation of Raines raises several problems, however. There are several circumstances in which the recognition or denial of congressional standing under Raines will actually undermine the separation of powers. First, because the complete-nullification test permits courts to hear cases that involve the greatest inter-branch conflict, it fails to screen issues most likely to threaten the judiciary's legitimacy. Second, Raines limits congressional standing to such an extreme that it prevents the adjudication of a category of cases that--for purposes of preserving the separation of powers doctrine--ought to be heard. Finally, because a private plaintiff can generally establish standing when a congressional plaintiff cannot, Raines is difficult to defend unless there is unique value to delay or unless members of Congress present special harms as plaintiffs.

It is not the purpose of this note to simply point out that Raines may have been decided incorrectly either as a matter of doctrine or from the perspective of the separation of powers. Instead, a detailed exploration of the issues involved in Raines will expose an underlying problem with the law of standing. The Court's resurrection of the common law test for standing demonstrates the absence of a method for guiding judges as they decide how to characterize injuries in standing cases. The failure of the Supreme Court to elucidate such a formula is just one reason why the injury test cannot be applied objectively as its creators had hoped. This problem may seem insubstantial at first, but it seriously erodes the basic purpose of the injury requirement and casts some doubt on the ability of the courts to engage in a wholly objective standing inquiry.

Part I provides some background information on the law of standing and how it has been applied to congressional plaintiffs. Part II explains Raines and how it resurrected the legal-interest test for members of Congress. Part III argues that Raines is best understood as a decision about the separation of powers, even though the effect of the decision is to undermine this doctrine. Finally, Part IV discusses the shortcomings of the injury test revealed in Raines.

1. STANDING AND LEGISLATIVE SUITS

   1. Injury in Fact

      The Supreme Court's much criticized (18) decision in Association of Data Processing Service Organizations v. Camp ushered in the modern era of standing law when it abandoned the common law's legal-interest test in favor of the injury-in-fact requirement. (19) The injury standard was later refined so that, as a matter of constitutional law, (20) "a litigant `[had to] allege [a] personal injury fairly traceable to the ... allegedly unlawful conduct and likely to be redressed by the requested relief." (21) Although these post-Data Processing changes made it more difficult for some plaintiffs to obtain standing, the purpose for the transition to the injury test remained intact: The law of standing was liberalized to facilitate public suits that were brought solely to clarify the government's administrative and constitutional obligations vis-a-vis citizens and not to protect an identifiable, common law legal interest. (22)

      The increase in public suits in the mid-twentieth century prompted courts to rethink standing and to lessen the common law requirement that plaintiffs could only sue if they possessed a "legal right--one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege." (23) This standard preserved the courts as a forum for private dispute resolution, (24) and it permitted courts to resolve constitutional disputes only as a by-product of deciding pre-existing private

      legal controversies. (25) A good example of the common law style of constitutional adjudication was Marbury v. Madison. (26) The core common law legal interest was William Marbury's desire to protect his job and to receive his salary. The Supreme Court only ruled on the important constitutional issue that the case is known for today as a consequence of its decision about whether to grant a writ to protect Marbury's legal rights. If constitutional claims could always be attached to private legal rights, as in Marbury, then the common law test for standing would be adequate to redress public law or constitutional claims. This, however, was not always the case. The legal-interest test precluded plaintiffs from using the courts to force the government to adhere to its administrative and constitutional burdens. Ultimately the common law "framework proved far too constrictive to deal with the growing problems of individual rights and governmental accountability in an administrative state whose activities extend far beyond a Lockean concern with protection of person and property." (27) As a result, in Data Processing, the Court substantially liberalized standing by divorcing a plaintiff's ability to sue from possession of a pre-existing, private right. (28) Instead, standing in federal courts could be predicated on the existence of a more nebulous "injury-in-fact."

   2. Rise of Congressional Suits

      Members of Congress seeking to use the courts to protect the constitutional powers of their office benefited from the doctrinal shift to injury-in-fact. Lacking a private legal interest in the powers of their office, legislators depended on Data Processing to establish standing. (29) In fact, the formal change in standing doctrine coincided with several institutional changes in Congress that led to a steady increase in congressional suits in the 1970s. (30) In virtually every legislative suit, the congressional plaintiff alleged one of two types of injuries: that executive action deprived Congress of a constitutionally mandated opportunity to vote; (31) or that executive action diminished the constitutional effectiveness of a prescribed right to vote. (32) Thus...