Sunday, February 15, 2015
Jonathan Remy Nash (Emory) has posted A Functional Theory of Congressional Standing to SSRN.
The Supreme Court has offered scarce, and inconsistent, guidance on congressional 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 also has invited the Department of Justice to argue that Congress lacks standing to enforce subpoenas against executive branch actors.
Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions extend to gathering relevant information, casting votes, and (even where 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 where (i) congressional plaintiffs validly seek information from the executive branch and (ii) in the limited circumstance where the executive branch has acted so as to threaten permanent and substantial diminution in congressional bargaining power, provided that enough legislators join the suit so as to be able to lay claim to the relevant institutional bargaining power.