A Functional Theory of Congressional Standing

Authors

Jonathan Remy Nash, Emory University School of LawFollow

Abstract

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-ofpowers concerns in order to erect a high standard for congressional standing. It has also 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 include gathering relevant information, 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 validly seek information from the executive branch, and (2) the limited circumstance 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 bargaining power.

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