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.