The case for (and against) congressional standing to sue the president

July 28

This past week, the House Rules Committee approved a resolution authorizing a lawsuit against the executive branch for unlawfully delaying the PPACA’s employer mandate penalty. On July 25, attorney David Rivkin and FIU law professor Elizabeth Price Foley took to the Post‘s pages to outline the reasons they believe the House has standing to pursue this claim in federal court.

Here’s a taste:

Skeptics of the lawsuit, which is expected to be authorized by the full House next week, argue that such congressional lawsuits — to date, mostly initiated by Democrats — usually fail because of a lack of standing.

However, there is a simple reason most of these suits have failed: To assert an institutional injury to the House or Senate, courts want proof that the chamber, as an institution — and not a rump group of legislators — believes it has been injured. . . .

When legislators do represent their institution’s views, however, courts have granted standing. In 1939’s Coleman v. Miller, the Supreme Court granted standing to 21 Kansas senators who had sued the state’s lieutenant governor over his tiebreaking vote in support of a constitutional amendment, which the senators argued nullified the legislative will of the Senate. The court agreed that the Senate had suffered an institutional injury. Significantly, the senators — a majority of the chamber — unequivocally represented their chamber’s institutional position. . . .

In numerous other cases, federal courts have recognized a single chamber’s standing to assert institutional injury caused by the executive’s refusal to comply with congressional subpoenas. In these cases, the chamber passed a resolution authorizing litigation to vindicate its institutional injury, which was described as a nullification of chamber’s investigatory power.

As the Supreme Court made clear in Eastland v. U.S. Servicemen’s Fund in 1975, subpoenas are “inherent in the power to make laws” and an “integral part of the lawmaking process.” A failure to comply with a chamber’s subpoena, in other words, is an injury to the lawmaking power of the chamber itself. The institutional injury caused by executive nullification of a subpoena is far less than that caused by executive nullification of a law. If ignoring a congressional subpoena is sufficient to establish legislative standing, ignoring a law should be more than sufficient as well.

Professor Foley elaborated on these points at a recent congressional hearing. She was not alone, however. GWU law professor Jonathan Turley also testified in support of the suit, while former DOJ official Walter Dellinger and Simon Lazarus testified against it.

Portions of Dellinger’s testimony, in particular, are worth considering:

The House of Representatives lacks authority to bring such a suit. Because neither the Speaker nor even the House of Representatives has a legal concrete, particular and personal stake in the outcome of the proposed lawsuits, federal courts would have no authority to entertain such actions. Passage of the proposed resolution does nothing to change that. If federal judges were to undertake to entertain suits brought by the legislature against the President or other federal officers for failing to administer statutes as the House desires, the result would be an unprecedented aggrandizement of the political power of the judiciary. Such a radical liberalization of the role of unelected judges in matters previously entrusted to the elected branches of government should be rejected. . . .

the central inquiry is whether the Speaker or the House has suffered a personal injury in fact, and the absence of political means for the House to address that disagreement
cannot somehow create that injury. So there is no reason to think that satisfaction of this criterion would justify litigation. But it is not satisfied. Congress has ample political remedies if it disagrees with the President’s implementation of a law. . . .

In addressing the question before the House, history should be your guide. In Raines v. Byrd, the Court emphasized the absence of any history of judicial resolution of disputes between Congress and the Executive Branch brought by one of the branches against the other. See 521 U.S. at 826–28. That historical silence speaks volumes. The legal issue here is nowhere near the magnitude of those that have never been thought proper for triggering litigation by the President against Congress or Congress against the President.

A final note. Lawsuits by legislators against the president are nothing new. Many of the same Democrats attacking Speaker Boehner’s initiative happily joined all sorts of lawsuits challenging prior administrations. Some even sued Vice President Biden for failing to put an end to filibusters. What is potentially different here is that the House is seeking to challenge executive action as an institution. The interesting legal question is whether this is enough to make a difference. I’m skeptical, but it will be interesting to watch.

UPDATE: Speaker John Boehner makes the case in USA Today.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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