Making Sense of Legislative Standing
Originally uploaded in SSRN.
Abstract
Legislative standing doctrine is neglected and under-theorized. There has always been a wide range of opinions on the Supreme Court about the proper contours of legislative standing doctrine and even about whether the Court should adjudicate disputes between the other two branches at all. Perhaps owing to these disagreements, the full Court has never articulated a clear vision of the doctrine. While the Court has managed to resolve some cases, it has not achieved the consensus necessary to provide a comprehensive and coherent account of critical doctrinal issues such as what type of injury can give rise to legislative standing and which legislative injuries may support litigation by legislators, as opposed to by a legislative institution. Thus, the so-called “legislative standing doctrine” is less a doctrine than a loosely organized collection of ad hoc results in cases.
For many years, these deficiencies hardly mattered. Legislative standing cases were so rare that the lack of a clear approach to identifying which litigants could assert which legislative injuries caused no great embarrassment. But there has been a dramatic uptick during the Obama administration in the frequency of litigation between Congress and the President. In just the past four terms, the Court has decided three cases raising legislative standing issues, and another one is undoubtedly on the way: in September 2015, the District Court for the District of Columbia granted standing to the House of Representatives to sue over the President’s implementation of the Affordable Care Act (“ACA”). The uncertainty in the doctrine is thus long overdue for correction.
This Article provides that correction. First, it develops an original typology of legislative injury, detailing all the varieties of “injury” that might afflict legislators, legislatures, and other legislative litigants, and illustrating each with examples from past legislative standing cases. Second, it articulates a method for determining which legislative injuries may be asserted by individual legislators, and which require the participation of a full chamber, or both chambers acting bicamerally. Finally, it illustrates this model by applying it to the Court’s recent forays into legislative standing and the pending ACA litigation.