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«Congressional Research Service 7-5700 R42454 Congressional Participation in Article III Courts: Standing to Sue Summary In disputes ...»

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Congressional Participation in

Article III Courts: Standing to Sue

Alissa M. Dolan

Legislative Attorney

Todd Garvey

Legislative Attorney

September 4, 2014

Congressional Research Service

7-5700

www.crs.gov

R42454

Congressional Participation in Article III Courts: Standing to Sue

Summary

In disputes between Congress and the executive, questions arise about Congress’s ability to turn

to the federal courts for vindication of its powers and prerogatives, or for declarations that the executive is in violation of the law or the Constitution. This report seeks to provide an overview of Congress’s ability to participate in litigation before Article III courts. The report is limited to a discussion of Congress’s participation in litigation as either a plaintiff (e.g., the party initiating the suit alleging some sort of harm or violation of law) or as a third-party intervener (e.g., a party who is seeking to join litigation already initiated by another plaintiff). The report does not address situations where Congress or individual Members appear as a defendant, or congressional participation in court cases as amicus curiae (“friend of the court”), as those situations do not raise the same legal and constitutional questions as does the involvement of Congress or its Members as a party plaintiff.

Generally, to participate as party litigants, congressional plaintiffs, whether they be individual Members, committees, houses of Congress (i.e., the House or Senate), or legislative branch entities, must demonstrate that they meet the requirements of the standing doctrine, derived from Article III of the Constitution. The failure to satisfy the standing requirements is fatal to the litigation and will result in its dismissal without a decision by the court on the merits of the presented claims.

With respect to the ability of Congress and Members to demonstrate Article III standing, the Supreme Court’s 1997 decision in Raines v. Byrd has had a chilling effect on the ability of individual Members of Congress to adjudicate claims before federal courts. Despite the Court’s holding in Raines, in 2008 the House Judiciary Committee, acting on a resolution from the full House of Representatives, was able to convince the U.S. District Court for the District of Columbia that it had standing to sue the White House for its failure to make subpoenaed witnesses and documents available. In its decision, the court emphasized the distinction between suits brought by individual congressional plaintiffs asserting

Abstract

and diffuse injuries and suits brought by organs of Congress alleging institutional harms. In 2013, the House Committee on Oversight and Government Reform was similarly successful, with a different judge for the District Court for the District of Columbia adopting the same reasoning as the 2008 case, holding that the Committee had standing to sue to enforce a congressional subpoena, in part because the suit was authorized by the House.

Recent case law in this area suggests that suits brought by Congress in an institutional capacity have a far greater chance of being decided on their merits than do cases where individual Members attempt to assert personal or political injuries based on executive action. Through the years, Congress has had a fair amount of success bringing suits to enforce subpoenas and intervening as a third party in ongoing litigation when it is specifically authorized to seek judicial recourse. However, outside the subpoena and intervenor contexts, it remains unclear whether a house of Congress could satisfy the requirements of standing as a plaintiff in an authorized lawsuit against the executive branch. In July 2014, the House authorized the Speaker to institute a lawsuit against the executive branch regarding its implementation of the Affordable Care Act, which may lead to the development of case law in this area of congressional standing.

Congressional Research Service Congressional Participation in Article III Courts: Standing to Sue Contents Introduction

Article III Standing

Constitutional Requirements

Prudential Requirements

Individual Members of Congress as Plaintiffs

Individual Member Standing Prior to Raines v. Byrd

Raines v. Byrd

Individual Member Standing After Raines v. Byrd

Congressional Institutions as Plaintiffs

Congressional Authorization for Suits Alleging Institutional Injuries

What Qualifies as Congressional Authorization?

Unauthorized Institutions Will Likely Lack Standing

Effect of Raines v. Byrd on Institutional Plaintiff Standing

Conclusion

Contacts Author Contact Information

Acknowledgments

Congressional Research Service Congressional Participation in Article III Courts: Standing to Sue Introduction In disputes between Congress and the executive, questions arise about Congress’s ability to turn to the federal courts to vindicate its powers and prerogatives or for declarations that the executive is in violation of the law or the Constitution. This report seeks to provide an overview of Congress’s ability to participate in litigation before Article III courts. The report is limited to a discussion of Congress’s participation in litigation as either a plaintiff (e.g., the party initiating the suit alleging some sort of harm or violation of law) or as a third-party intervener (e.g., a party who is seeking to join litigation already initiated by another plaintiff). The report does not address situations where Congress or individual Members appear as a defendant, or congressional participation in court cases as amicus curiae (“friend of the court”), as those situations do not raise the same legal and constitutional questions at issue when Congress or a Member is the party plaintiff.





Congressional plaintiffs, whether they be individual Members, committees, houses of Congress (i.e., the House or Senate), or legislative branch entities, must demonstrate that they meet the requirements established by Article III of the Constitution in order to participate as party litigants.

Specifically, a prospective congressional plaintiff must show that he has standing to sue. The failure to establish standing is fatal to the litigation and will result in its dismissal without the court addressing the merits of the presented claims.

The Supreme Court’s 1997 decision in Raines v. Byrd has had a chilling effect on the ability of individual Members of Congress to demonstrate Article III standing and thereby have their claims adjudicated in federal court. However, Members or committees who are authorized to sue and act on behalf of a whole house have been able to establish standing under certain circumstances, even after the Raines decision. Courts have emphasized the distinction between suits brought by individual congressional plaintiffs asserting abstract and diffuse injuries and suits brought by organs of Congress alleging concrete institutional harms.

Recent case law in this area suggests that suits brought by Congress in an institutional capacity have a greater chance of satisfying standing requirements than do cases where individual Members attempt to assert political or institutional injuries based on executive action.

Article III Standing Generally, the doctrine of standing is a threshold procedural question that does not turn on the merits of a plaintiff’s complaint, but rather on whether the particular plaintiff has a legal right to a judicial determination on the issues before the court.1 The law with respect to standing is a mix of both constitutional requirements and prudential considerations.2 Article III of the Constitution See Flast v. Cohen, 392 U.S. 83, 99 (1968).

See Dep’t of Commerce v. House of Representatives, 525 U.S. 316, 328-29 (1999). By law, Congress can grant a right to sue to a plaintiff who would otherwise lack standing. According to the Court, however, such a law can eliminate only prudential, but not constitutional, standing requirements. See Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997). For example, in the Line Item Veto Act, which was the statute at issue in Raines, Congress had granted standing to sue to “any Member of Congress or any individual adversely affected by” the act. See Line Item Veto Act of 1996, P.L. 104-130, §692(a)(1), 110 Stat. 1200 (1996). Likewise, Congress also statutorily granted standing to challenge the use of statistical sampling methods in the census. See Dep’t of Commerce, 525 U.S. at 328-29.

–  –  –

specifically limits the exercise of federal judicial power to “cases” and “controversies.”3 Accordingly, the courts have “consistently declined to exercise any powers other than those which are strictly judicial in nature.”4 Thus, it has been said that “the law of Article III standing is built on a single basic idea—the idea of separation of powers.”5 Constitutional Requirements To satisfy the constitutional standing requirements in Article III, the Supreme Court imposes three requirements. First, the plaintiff must allege a personal injury-in-fact, which is actual or imminent, concrete, and particularized. Second, the injury must be “fairly traceable to the defendant’s allegedly unlawful conduct.”6 Third, the injury must be “likely to be redressed by the requested relief.”7 Prudential Requirements In addition to the constitutional questions posed by the doctrine of standing, federal courts also follow a well-developed set of prudential principles that are relevant to a standing inquiry.8 Similar to the constitutional requirements, these limits are “founded in concern about the proper—and properly limited—role of the courts in a democratic society,”9 but are judicially created. Unlike their constitutional counterparts, prudential standing requirements “can be modified or abrogated by Congress.”10 These prudential principles require that (1) the plaintiff assert his own legal rights and interests, rather than those of a third party; (2) the plaintiff’s complaint fall within the “zone of interests” protected or regulated by the statute or constitutional guarantee in question; and (3) the plaintiff not assert “abstract questions of wide public significance which amount to generalized grievances pervasively shared and most appropriately addressed in the representative branches.”11 Individual Members of Congress as Plaintiffs As applied to congressional plaintiffs, the doctrine of standing has generally been invoked only in cases involving challenges to executive branch actions or acts of Congress. Prior to the Supreme Court’s 1997 decision in Raines v. Byrd,12 the case law with respect to the standing of Members of U.S. CONST. art. III, §2 (stating that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made … under their Authority... – to Controversies to which the United States shall be a Party;– to Controversies between two or more States;....”)(emphasis added).

Raines, 521 U.S. at 819 (quoting Muskrat v. United States, 219 U.S. 346, 355 (1911)).

Id. at 820 (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)).

Dep’t of Commerce, 525 U.S. at 329 (internal quotations omitted).

Id. See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

Bennett v. Spear, 520 U.S. 154, 162 (1997).

Id.

Id.

Valley Forge Christian Coll. v. Ams. United for the Separation of Church and State, 454 U.S. 464, 474 (1982) (internal quotations omitted).

521 U.S. 811 (1997).

–  –  –

Congress had been largely, though not exclusively, developed by decisions of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit).13 Individual Member Standing Prior to Raines v. Byrd Before Raines v. Byrd was decided in 1997, the D.C. Circuit relied on two Supreme Court decisions in developing the law of legislative standing. The first case, Coleman v. Miller,14 involved the ratification of a constitutional amendment, concerning child labor practices by the Kansas state legislature in 1937.

Coleman was initiated by 24 members of the Kansas legislature, who asserted that the Lieutenant Governor acted beyond the scope of his authority by casting the tie-breaking vote to ratify a proposed amendment to the U.S. Constitution. The Member plaintiffs asked the court to order the Secretary of the State Senate to erase the state’s ratification of the amendment.15 The Kansas Supreme Court rejected the request, holding that the Lieutenant Governor was authorized to cast the tie-breaking vote to ratify the amendment.16 On appeal to the U.S. Supreme Court, the Kansas attorney general argued that the legislators lacked standing to challenge the ratification.

In addressing the standing argument, the Court held that the legislators had a “plain, direct and adequate interest in maintaining the effectiveness of their votes[,]” and thus, had standing under Article III.17 In addition, the Court reasoned that these legislators claimed a right and privilege under the Constitution to have their votes against ratification be given full effect, and that the state court denied them that right and privilege.18 Therefore, the Court declared that the legislators, if their contentions proved true, had a sufficient interest in the controversy.19 Despite holding that the legislators had standing, the Court affirmed the holding of the Kansas Supreme Court. According to the Court, because Article V of the Constitution grants Congress undivided power to control the amendment process, questions regarding ratification of constitutional amendments are “political questions” and, therefore, non-justiciable.20 The second major case relied upon by the D.C. Circuit was Powell v. McCormack.21 Powell involved a challenge by Representative Adam Clayton Powell, Jr., who alleged that he was unconstitutionally excluded from the House of Representatives and, therefore, deprived of his For cases heard outside the D.C. Circuit, see, e.g., Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973); Ameron, Inc. v. U.S Army Corps of Eng’rs, 787 F.2d 875 (3d Cir. 1986); Harrington v. Schlesinger, 528 F.2d 455 (4th Cir.



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