Michigan Law Review Volume 114 Issue 3 2015 A Functional Theory of Congressional Standing Jonathan Remy Nash Emory University School of Law Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Courts Commons, and the President/Executive Department Commons Recommended Citation Jonathan R. Nash, A Functional Theory of Congressional Standing, 114 MICH. L. REV. 339 (2015). Available at: https://repository.law.umich.edu/mlr/vol114/iss3/1 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. A FUNCTIONAL THEORY OF CONGRESSIONAL STANDING Jonathan Remy Nash* The Supreme Court has offered scarce and inconsistent guidance on congres- sional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of- powers concerns in order to erect a high standard for congressional standing. It has also invited the Department of Justice to argue that Congress lacks stand- ing to enforce subpoenas against executive branch actors. Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions include gathering relevant informa- tion, casting votes, and (even when no vote is ever cast) exercising bargaining power over the scope of legislation. Accordingly, congressional standing can extend not only to cases of actual vote nullification (as extant Supreme Court precedent suggests), but also to cases in which (1) congressional plaintiffs val- idly seek information from the executive branch, and (2) the limited circum- stance in which the executive branch has acted so as to threaten permanent and substantial diminution in congressional bargaining power—provided that enough legislators join the suit to lay claim to the relevant institutional bar- gaining power. Introduction ..................................................... 340 I. The Existing Doctrinal State of Congressional Standing...................................................345 A. Overview of Traditional Standing Jurisprudence ............346 B. The Supreme Court’s (Limited) Forays into Congressional Standing ................................................348 C. The Lower Courts and Congressional Standing .............358 II. The Functions of Congress ...............................363 III. Defending the Functional Approach to Congressional Standing...................................................367 A. The Normative Underpinnings of the Functional Approach to Congressional Standing ..................................368 B. The Benefits of the Functional Approach to Congressional Standing ................................................369 IV. Defining the Contours of Congressional Standing ......373 A. Information-Based Standing ..............................373 * Professor of Law and David J. Bederman Research Professor (2014–2015), Emory University School of Law. I am grateful to Eric Claeys, Michael Collins, Heather Elliott, Tara Leigh Grove, Aziz Huq, Gillian Metzger, Ashley Moraguez, Lori Nash, Rafael Pardo, and Alexander Volokh for helpful comments on prior drafts. Jameson Bilsborrow provided excellent research assistance. 339 340 Michigan Law Review [Vol. 114:339 B. Voting-Based Standing ...................................375 1. Vote Nullification ...................................375 2. Standing Based on Process-Bargaining Power Reduction ..........................................378 C. Standing for Members of Congress Beyond Functional-Based Congressional Standing ..................................386 D. The Interplay Between Constitutional Congressional Standing and Other Standing Doctrines ............................387 Conclusion ....................................................... 388 Introduction The House of Representatives’ recent decision to authorize filing a law- suit against President Barack Obama and his administration1 with respect to the President’s implementation of the Patient Protection and Affordable Care Act2—and the filing of a suit a few months later3—has focused atten- tion on the House’s standing to bring such a lawsuit in federal court.4 Com- mentators—including many who are sympathetic to the arguments that the lawsuit advanced on the merits—have questioned whether the House can claim proper federal court standing.5 The controversy over the possibility of the House suing President Obama is not the only recent example of congressional standing emerging from the theoretical shadows. Under both President George W. Bush and President Obama, the Department of Justice invoked the Supreme Court’s 1. See H.R. 676, 113th Cong. (2014). 2. Pub. L. No. 111-148, 124 Stat. 119 (2010). 3. See U.S. House of Reps. v. Burwell, No. 14-1967(RMC), 2015 WL 5294762 (D.D.C. Sept. 9, 2015) (recognizing standing of the House of Representatives to raise claim challenging the executive branch’s actions with respect to the Affordable Care Act). Members of Congress joined a second suit challenging President Obama’s executive action with respect to immigration in 2015. See Mike Lillis, 113 Republicans Back Lawsuit Against Obama’s Immigration Actions, The Hill (May 11, 2015, 5:23 PM), http://thehill.com/ homenews/house/241668-113-republicans-back-lawsuit-against-obamas-immigration-actions; see also Karoun Demirjian & Kelsey Snell, House Conservatives May End Up in Court to Kill Iran Deal, Wash. Post. (Sept. 10, 2015), http://www.washingtonpost.com/news/powerpost/ wp/2015/09/10/house-conservatives-may-end-up-in-court-to-kill-iran-deal/?wpmm=1&wpi src=nl_evening (describing how some House members were considering, upon the failure of Congress to stop the Obama administration’s nuclear deal with Iran, resort to a lawsuit to keep the President from enforcing the agreement on the ground that relevant documentation was withheld from Congress). 4. See, e.g., Sam Baker, Will Boehner’s Obamacare Lawsuit Work? Legal Experts Question Whether the House Has Standing to Sue the President, Nat’l J. (July 14, 2014), http://www .nationaljournal.com/health-care/will-boehner-s-obamacare-lawsuit-work-20140714. 5. See, e.g., Stephanie Condon, John Boehner’s Obamacare Lawsuit Isn’t Really About Obamacare, CBS News (July 16, 2014, 5:58 AM), http://www.cbsnews.com/news/john- boehners-obamacare-lawsuit-isnt-really-about-obamacare/ (noting that while Professor Jonathan Turley “and some other legal scholars say the executive branch has assumed so much power, a lawsuit is necessary to recalibrate the balance between the three branches of govern- ment,” Turley still states that, “[i]t is the threshold question of standing that is the most difficult step for a lawsuit of this kind”). December 2015] A Functional Theory of Congressional Standing 341 decision in Raines v. Byrd6—the Court’s last direct foray into congressional standing—to support the argument that a House committee investigating the executive branch lacked standing to raise a judicial challenge to claims of executive privilege.7 And, when the executive branch declined to defend the constitutionality of the Defense of Marriage Act8 (“DOMA”) in United States v. Windsor,9 the House of Representatives argued that its “Bipartisan Legal Advisory Group”—which articulates the House’s legal arguments in courts10—had standing as an intervenor to defend the law in the executive’s 6. 521 U.S. 811 (1997). 7. See Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 12–13 (D.D.C. 2013) (noting that, “while th[e government’s] position was adamantly advanced, there was a notable absence of support for it set forth in the defendant’s pleadings, and oral argument revealed that the executive’s contention rests almost entirely on one case: Raines v. Byrd”); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 66 (D.D.C. 2008) (“[T]he Com- mittee’s injury is ‘governmental’ rather than ‘personal,’ the argument goes. That, the Executive says, is the upshot of the Supreme Court’s decision in Raines, which jettisoned the concept of so-called ‘legislative’ standing.” (quoting Raines, 521 U.S. at 820, 829)). The congressional investigations out of which these cases grew—one by a Democratic House of a Republican administration and the other by a Republican House of a Democratic administration—both focused on politically charged issues. The investigation that prompted the Miers decision involved allegations that the President had improperly dismissed several U.S. Attorneys. See 558 F. Supp. 2d at 57–58. For discussion of the underlying legal dispute, see Josh Chafetz, Executive Branch Contempt of Congress, 76 U. Chi. L. Rev. 1083, 1086–89 (2009). And the underlying congressional investigation in Holder involved the “Fast and Furi- ous” program, pursuant to which the Bureau of Alcohol Tobacco and Firearms “knowingly allowed firearms purchased illegally in the United States to be unlawfully transferred to third- parties and transported into Mexico,” with the goal of “enabl[ing] ATF to follow the flow of the firearms to the Mexican drug cartels that purchased them.” 979 F. Supp. 2d at 5. District courts in both cases rejected the Department of Justice’s arguments. See id. at 13–14 (noting that “[a] reading