Congressional Participation in
Article III Courts: Standing to Sue
Alissa M. Dolan
Legislative Attorney
Todd Garvey
Legislative Attorney
March 30, 2012
Congressional Research Service
7-5700
www.crs.gov
R42454
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Congressional Participation in Article III Courts: Standing to Sue
Summary
As disputes between Congress and the executive become more prevalent, questions 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, begin to arise.
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.
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.
This report will be updated only as case law developments warrant.
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Congressional Participation in Article III Courts: Standing to Sue
Contents
Introduction...................................................................................................................................... 1
Article III Standing .......................................................................................................................... 1
Constitutional Requirements ..................................................................................................... 2
Prudential Requirements ........................................................................................................... 2
Individual Members of Congress as Plaintiffs................................................................................. 2
Individual Member Standing Prior to Raines v. Byrd ................................................................ 3
Raines v. Byrd ............................................................................................................................ 7
Individual Member Standing After Raines v. Byrd.................................................................... 9
Congressional Institutions as Plaintiffs.......................................................................................... 11
Congressional Authorization for Suits Alleging Institutional Injuries..................................... 11
What Qualifies as Congressional Authorization?.............................................................. 11
Unauthorized Institutions Will Likely Lack Standing....................................................... 13
Effect of Raines v. Byrd on Institutional Plaintiff Standing..................................................... 16
Conclusion ..................................................................................................................................... 17
Contacts
Author Contact Information........................................................................................................... 17
Acknowledgments ......................................................................................................................... 17
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Congressional Participation in Article III Courts: Standing to Sue
Introduction
As disputes between Congress and the executive become more prevalent, questions 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, begin to arise. 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, 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
institutional harms.
Recent case law in this area suggests that suits brought by Congress in an institutional capacity
have a far greater chance of satisfying standing requirements than do cases where individual
Members attempt to assert personal or political 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
1 See Flast v. Cohen, 392 U.S. 83, 99 (1968).
2 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.
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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
3 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).
4 Raines, 521 U.S. at 819 (quoting Muskrat v. United States, 219 U.S. 346, 355 (1911)).
5 Id. at 820 (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)).
6 Dep’t of Commerce, 525 U.S. at 329 (internal quotations omitted).
7 Id. See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
8 Bennett v. Spear, 520 U.S. 154, 162 (1997).
9 Id.
10 Id.
11 Valley Forge Christian Coll. v. Ams. United for the Separation of Church and State, 454 U.S. 464, 474 (1982)
(internal quotations omitted).
12 521 U.S. 811 (1997).
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Congress had been largely, though not exclusively, developed by decisions of the United States
Court of Appeals for the District of Columbia 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
13 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.
1975); Drummond v. Bunker, 560 F.2d 625 (5th Cir. 1977); Dole v. Carter, 569 F.2d 1109 (10th Cir. 1977). In addition,
there have been several cases that did not rise to the circuit court level. See, e.g., Gravel v. Laird, 347 F. Supp 7
(D.D.C. 1972); Drinan v. Nixon, 364 F. Supp 854 (D. Mass. 1973); Shaffer v. Clinton, 54 F. Supp. 2d 1014 (D. Colo.
1999). Finally, there was one case decided by a three-judge court, McClure v. Carter, 513 F. Supp. 265 (D. Idaho
1981), that was appealed directly to the Supreme Court, who affirmed the decision of the lower court to dismiss with no
opinion. See McClure v. Reagan, 454 U.S. 1025 (1981) (mem.).
14 307 U.S. 433 (1939).
15 See id. at 436.
16 See id. at 437.
17 Id. at 437-38.
18 Id. at 438.
19 Coleman, 307 U.S. at 446.
20 See id. at 450.
21 395 U.S. 486 (1969).
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federal salary. The Court held that Representative Powell had standing because he was able to
demonstrate a private, personal injury not merely an institutionally related one. As the Supreme
Court would later note in Raines v. Byrd, Powell’s injury really involved the “loss of [a] private
right”—his right to his congressional seat and salary—and not an institutional injury, like the
“loss of political power.”22
Given the Supreme Court’s limited precedent, D.C. Circuit decisions have been the principal
source of jurisprudence regarding the standing of individual Members of Congress to bring civil
suits in federal court. The D.C. Circuit has developed several different approaches to the standing
question since the 1970s. The first approach arose in Mitchell v. Laird,23 a suit brought by 12
Members of the House of Representatives against President Richard Nixon and the Secretaries of
State, Defense, and the military branches, alleging that they were conducting an unconstitutional
military operation in Southeast Asia since Congress never expressly declared war.24 In granting
the Members standing, the D.C. Circuit adopted a broad theory, best described as the “bears
upon” test.25
The court concluded that the Members had sufficient interest to have standing because a judicial
declaration that the defendants were operating beyond the scope of their constitutional duties
“would bear upon the duties of the [Members] to consider whether to impeach defendants and
upon [the Members] quite distinct and different duties to make appropriations... or to take other
actions to support the hostilities....”26 Although the court ultimately dismissed the case on political
question grounds without deciding the merits, the rationale for legislator standing remained the
law of the circuit and arguably provided fodder for additional lawsuits by Members against other
government officials.27
Beginning in 1974, the D.C. Circuit issued a series of opinions that rejected the “bears upon” test
and changed the standard for legislator standing. The first of these cases, Kennedy v. Sampson,28
involved a suit by Senator Edward M. Kennedy against the General Services Administration
(GSA), seeking a GSA certification stating that the Family Practice Medicine Act had become
federal law. Although the bill had passed both houses of Congress and was presented to the
President, Congress recessed before the 10 days that the President had to sign or veto the bill had
elapsed. President Nixon refused to sign the bill into law and argued that because Congress was
not in session, the bill failed to become law by virtue of a “pocket veto.”29 Senator Kennedy
22 Raines, 521 U.S. at 820-21.
23 488 F.2d 611 (D.C. Cir. 1973).
24 Id. at 613.
25 See Anthony Clark Arend & Catherine B. Lotrionte, Congress Goes to Court: The Past, Present, and Future of
Legislator Standing, 25 HARV. J.L. & PUB. POL’Y 209, 223 (2002).
26 Mitchell, 488 F.2d at 614.
27 It should be noted that after Mitchell, both the Second and Fourth Circuits declined to follow the “bears upon” test in
similar cases involving legislator standing. See Holtzman, 484 F.2d 207 (suit brought by Representative Holtzman
against the Secretary of Defense seeking an injunction against the use of force in Cambodia); Harrington, 528 F.2d 455
(suit brought by Members of Congress, taxpayers, and citizens challenging expenditure of monies in support of military
operations in Southeast Asia).
28 511 F.2d 430 (D.C. Cir. 1974).
29 Id. at 436.
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asserted that the language in the Constitution authorizing a “pocket veto” only applied to end-of-
session adjournments, and not intra-session recesses of the Congress.30
Prior to reaching the merits,31 the court addressed Senator Kennedy’s Article III standing. The
court put forth two approaches to adjudicating such claims, neither of which was the “bears upon”
test. The court’s first approach asked “whether a ‘logical nexus’ exists between the status asserted
by a litigant and the claim sought to be adjudicated.”32 The court found that such a “logical
nexus” existed, concluding that Members of Congress can challenge “the validity of executive
action which purports to have disapproved of an Act of Congress by means of a constitutional
procedure which does not permit Congress to override the disapproval.”33 The court’s second
approach asked whether the plaintiff alleged that the action caused him “‘injury in fact,’ economic
or otherwise” and whether “the interest sought to be protected [is] ‘arguably within the zone of
interests to be protected or regulated by the statute or constitutional guarantee in question.’”34 The
court concluded that Senator Kennedy’s injury denied him the effectiveness of his vote as a U.S.
Senator. Furthermore, this interest was within the “zone of interest” protected by Article I,
Section 7 of the Constitution.35 Finally, the court addressed a question unsettled after the Supreme
Court’s decision in Coleman: can only one or several legislators have standing, or must the entire
legislature be before the court? The Nixon Administration had argued that “only the interests of
the Congress or one of its Houses as a body are protected by this provision.” The court rejected
the Administration’s reading of Coleman, holding that “the better reasoned view of both Coleman
and the present case is that an individual legislator has standing to protect the effectiveness of his
vote with or without the concurrence of other members of the majority.”36
The D.C. Circuit further refined its approach to legislative standing cases in Harrington v. Bush37
and Goldwater v. Carter.38 Harrington involved a suit by Congressman Michael Harrington
seeking a declaratory judgment that the Central Intelligence Agency was engaging in illegal
activities. In deciding that Congressman Harrington did not have standing, the court clearly stated
that “[t]he most basic point to consider is that there are no special standards for determining
Congressional standing questions.”39 Although congressional plaintiffs may have unique issues
and concerns, the legal approach for examining those issues is the same, requiring the party to
allege “a distinct and palpable injury to himself.”40 In determining whether Congressman
Harrington met this standard, the court adopted the Kennedy approach, which “relies on
nullification of a specific vote as the requisite injury in fact.”41 Using this standard, the court
30 Id. at 433.
31 On the merits, the court concluded that the intrasession congressional recess did not prevent the President from
returning the bill to Congress after his veto. As the constitutionally required 10-day period had elapsed without
Presidential action, the bill was not considered to have been vetoed, but rather became law consistent with Article 1,
§7. See id. at 442.
32 Id at 433.
33 Id.
34 Kennedy, 511 F.2d at 434 (quoting Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)).
35 Id.
36 Id. at 435.
37 553 F.2d 190 (D.C. Cir. 1977).
38 617 F.2d 697 (D.C. Cir. 1979), vacated and remanded, Goldwater v. Carter, 444 U.S. 996 (1979).
39 Harrington, 553 F.2d at 204.
40 Id. at 208 (internal quotation marks omitted).
41 Id. at 211.
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found that Harrington had no injury because neither his future votes on matters related to funding
the CIA were impaired, nor was his effectiveness as a legislator objectively diminished.42
The D.C. Circuit continued this line of reasoning in Goldwater v. Carter,43 focusing on how to
interpret disenfranchisement of a Member’s right to vote. Senator Barry Goldwater brought suit
against President Carter over the unilateral termination of the Mutual Defense Treaty with the
Republic of China (Taiwan). According to Senator Goldwater, the President’s action was
unconstitutional because he did not submit the treaty to the Senate for a vote on its termination.
Thus, the Senator argued he suffered an “injury in fact” because he was completely denied the
right to vote on the treaty’s termination. The court agreed, noting that “to be cognizable for
standing purposes the alleged diminution in congressional influence must amount to a
disenfranchisement, a complete nullification or withdrawal of a voting opportunity.”44
Furthermore, “the plaintiff must point to an objective standard in the Constitution, statutes, or
congressional house rules, by which disenfranchisement can be shown.”45 In concluding that
Senator Goldwater had been so disenfranchised, the court set forth the standard for determining
when a nullification occurs. According to the court, “[w]hether the President’s action amounts to
a complete disenfranchisement depends on whether [the Members] have left to them any
legislative means to vote in the way they claim is their right.”46
After the court’s decision in Goldwater, it appeared that the law of legislator standing was settled.
Legislators seeking to bring suit in federal court had to demonstrate a concrete injury in fact
resulting in the complete disenfranchisement of their right to vote. In addition, a Member had to
show that no other legislative remedies were available. The mere fact that the executive had
violated the law arguably was no longer sufficient, nor was mere diminution in effectiveness as a
Member of Congress. Further, the court established that it did not matter whether one or several
legislators brought suit, as the entire Congress or even a single house was not required to be a
party.
The settled nature of the law, however, did not last long. In 1979, Senator Donald Riegle brought
suit against the Federal Open Market Committee, arguing that it was unconstitutionally
constituted because its appointees were not submitted to the Senate for its “advice and consent.”
In Riegle v. Federal Open Market Committee,47 the D.C. Circuit concluded that, once a Member
of Congress can establish standing under the rules applied in non-congressional plaintiff cases,
the separation of powers issues raised by the Member’s suit should be addressed by applying the
“doctrine of circumscribed equitable discretion.”48 As explained by the court, this doctrine is a
prudential principle that requires suits brought by Members of Congress, who have demonstrated
standing, to be dismissed if the Member has a legislative remedy and a similar action could be
brought by a private plaintiff.49 The “legislative remedy” aspect of this doctrine seems to reflect a
judicial reluctance to provide a forum to a Member who has failed to exhaust possible legislative
42 Id. at 213 (stating that “[t]o constitute injury in fact, the alleged harm must be ‘specific … and objective’; appellant’s
claims regarding effectiveness are neither.”) (quoting Laird v. Tatum, 408 U.S. 1, 14 (1972)).
43 617 F.2d 697 (D.C. Cir. 1979), vacated and remanded, 444 U.S. 996.
44 Id. at 702 (citations omitted).
45 Id.
46 Id.
47 656 F.2d 873 (D.C. Cir. 1981), cert. denied, 454 U.S. 1082 (1981).
48 See id. at 881.
49 See id.
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avenues of relief, or who has done so unsuccessfully.50 Therefore, the Riegle court created a
distinct division between the standing and separation of powers analyses, placing existence of a
legislative remedy under the latter inquiry.
After Riegle, it appears that Members had some success in establishing standing, but such suits
were frequently dismissed on the basis of the equitable discretion doctrine.51 The problems
presented by congressional plaintiff suits were explained by the D.C. Circuit in an important post-
Riegle ruling, Moore v. U.S. House of Representatives:
Suits against coordinate branches of government by congressional plaintiffs pose separation-
of-powers concerns which may affect a complainant’s standing to invoke the jurisdiction of
the federal courts. To the extent that the Constitution envisions limited federal court
jurisdiction out of respect for the coordinate branches of government, we have been reluctant
to grant standing to members of Congress alleging generalized, amorphous injuries due to
either the actions of their colleagues in Congress or the conduct of the Executive.... [W]here
separation-of-powers concerns are present, the plaintiff’s alleged injury must be specific and
cognizable in order to give rise to standing.... Deprivation of a constitutionally mandated
process of enacting law may inflict a more specific injury on a member of Congress than
would be presented by a generalized complaint that a legislator’s effectiveness is diminished
by allegedly illegal activities taking place outside the legislative forum.52
Raines v. Byrd
In 1997, the Supreme Court decided Raines v. Byrd,53 which presented a constitutional challenge
to the Line Item Veto Act of 1996.54 The Court, in an opinion by Chief Justice Rehnquist, held
that the plaintiffs, Members of Congress who had voted against the act, lacked standing because
their complaint did not establish that they had suffered a personal, particularized, and concrete
50 Id. at 881; see also Moore v. House of Representatives, 733 F.2d 946, 956 (D.C. Cir. 1984) (stating that
“Congressional actions pose a real danger of misuse of the courts by members of Congress whose actual dispute is with
their fellow legislators.”), cert. denied, 469 U.S. 1106 (1985).
51 See, e.g., Moore, 733 F.2d at 956. Compare Am. Fed'n of Gov't Emps. v. Pierce, 697 F.2d 303 (D.C. Cir. 1982)
(granting standing to Member of Congress based on Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974)); Vander Jagt
v. O'Neill, 699 F.2d 1166 (D.C. Cir. 1982) (granting standing, but dismissing based on remedial discretion); Moore,
733 F.2d 946 (granting standing, but dismissing based on remedial discretion); Barnes v. Kline, 759 F.2d 21 (D.C. Cir.
1984) (granting Representative standing, not dismissing due to lack of legislative remedies, and reaching the merits);
Synar v. United States, 626 F. Supp 1374 (D.D.C. 1986) (three-judge court) (granting standing to Members of
Congress, not dismissing based on equitable discretion because act in question authorized suit); Boehner v. Anderson,
30 F.3d 156 (D.C. Cir. 1994) (granting standing) with Crockett v. Reagan, 720 F.2d 1355 (D.C. Cir. 1983) (affirming
dismissal of Representative’s claim based on equitable discretion); United Presbyterian Church v. Reagan, 738 F.2d
1375 (D.C. Cir. 1984) (dismissing for lack of standing); S. Christian Leadership Conference v. Kelley, 747 F.2d 777
(D.C. Cir. 1984) (denying standing to Senator); Gregg v. Barrett, 771 F.2d 539 (D.C. Cir. 1985) (dismissing
Representative’s claim based on equitable discretion); Melcher v. Fed. Open Mkt. Comm., 836 F.2d 561 (D.C. Cir.
1987) (dismissing based on equitable discretion); Humphrey v. Baker, 848 F.2d 211 (D.C. Cir. 1988) (dismissing based
on equitable discretion); Doman v. Sec’y of Def., 851 F.2d 450 (D.C. Cir. 1988) (dismissing based on equitable
discretion or lack of standing); Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994) (not fully exploring legislator
standing and equitable discretion because of the presence of private plaintiffs); Skaggs v. Carle, 110 F.3d 831 (D.C.
Cir. 1997) (concluding plaintiffs lack standing because injury is “hypothetical”).
52 733 F.2d at 951.
53 521 U.S. 811 (1997).
54 Line Item Veto Act of 1996, P.L. 104-130, §692(a)(1), 110 Stat. 1200 (1996).
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injury.55 Although the holding was based on the Court’s finding that the plaintiffs did not satisfy
the personal injury requirement of standing, the Court also questioned whether the plaintiffs could
meet the second standing requirement, that the plaintiffs’ injury be “fairly traceable” to unlawful
conduct by the defendants. The plaintiffs’ injury was allegedly caused not by the executive branch
defendants’ exercise of legislative power, but instead by “the actions of their own colleagues in
Congress in passing the act.”56 The majority opinion distinguished between a personal injury to a
private right, such as the loss of salary presented in Powell v. McCormack,57 and an institutional
or official injury.58
The Court held that a congressional plaintiff may have standing in a suit against the executive
branch if the plaintiff(s) alleges either (1) a personal injury (e.g., loss of a Member’s seat) or (2)
an institutional injury59 that is not “abstract and widely dispersed” and amounts to vote
nullification.60 In Raines, the Court concluded that the plaintiffs asserted an institutional injury,
but their votes were not nullified because of the continued existence of other legislative remedies.
As the Court explained,
They have not alleged that they voted for a specific bill, that there were sufficient votes to
pass the bill, and that the bill was nonetheless deemed defeated. In the vote on the Line Item
Veto Act, their votes were given full effect. They simply lost that vote. Nor can they allege
that the Act will nullify their votes in the future in the same way that the votes of the
Coleman legislators had been nullified. In the future, a majority of Senators and
Congressman can pass or reject appropriations bills.... In addition, a majority of Senators and
Congressman can vote to repeal the Act, or to exempt a given appropriations bill (or a given
provision in an appropriations bill) from the Act.... Coleman thus provides little meaningful
precedent for appellees’ argument.61
As a result, under Raines it appears that a congressional plaintiff is more likely to establish
standing where he alleges a particular personal injury, as opposed to an injury related to a
generalized grievance about the conduct of government or an injury amounting to a claim of
diminished effectiveness as a legislator.62 While the Court in Raines seemed prepared to
recognize the standing of a Member based on a personal injury to a private right, it nevertheless
55 Raines, 521 U.S. at 818-20.
56 Id. at 830, n. 11.
57 395 U.S. 486 (1969); see also supra, notes 21 and 22 and accompanying text.
58 Justice Souter’s concurring opinion seemed to attach less importance than the majority to the distinction between
personal and institutional injury, but he nevertheless agreed with the majority that the plaintiffs lacked standing. See
Raines, 521 U.S. at 831. Justice Breyer, however, dissented, arguing that there is no absolute constitutional distinction
between cases involving a “personal” harm and those involving an “official” harm, and would have granted standing.
See id. at 841-43. Unlike the majority, which viewed injury to a legislator’s voting power as an institutional injury,
Justice Stevens, in his dissenting opinion, asserted that a legislator has a personal interest in the ability to vote, and
stated that deprivation of the right to vote would be a sufficient injury to establish standing. See id. at 837, n. 2
59 See Chenoweth v. Clinton, 997 F. Supp. 36, 38-39 (D.D.C. 1998) (holding that personal injury claims are more likely
to result in a grant of standing, but mere institutional injury is sufficient under Raines), aff’d, 181 F.3d 112 (D.C. Cir.
1999); see also Planned Parenthood v. Ehlmann, 137 F.3d 573, 577-78 (8th Cir. 1998) (addressing the standing of state
legislators).
60 See Raines, 521 U.S. at 826. Therefore, Raines did not address the question of whether Coleman would warrant
granting standing in a suit by federal legislators even though such an action raises separation of powers concerns not
present in Coleman. See id. at 824, n. 8.
61 Id. at 824.
62 See id. at 822-24; see also Moore, 733 F.2d at 951-52.
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concluded that the plaintiffs’ injury, affecting their voting power, was an institutional or official
injury that did not confer standing.63
Furthermore, it appears that the limits on Member standing established in Raines will likely
preclude a Member from obtaining standing in a suit to challenge an act of Congress64 because
legislative remedies, such as the repeal or amendment of the act in question,65 would be available,
which would prevent a court from finding vote nullification. In addition, though the Court did not
expressly overrule Coleman, Kennedy, or Riegle, Raines appears to restrict standing to challenge
executive action, as compared to suits challenging acts of Congress. Arguably, a Member plaintiff
that can show the nullification of a vote by the executive’s action could, thus, establish standing
to sue based on an institutional injury.66
Individual Member Standing After Raines v. Byrd
Decisions of the D.C. Circuit involving individual Members of Congress following Raines have
attempted to clarify both the meaning of “vote nullification” and the status of the D.C. Circuit’s
pre-Raines rulings. With respect to the status of its pre-Raines rulings, a majority of the D.C.
Circuit in Chenoweth v. Clinton concluded that the Supreme Court’s decision in Raines limited,
but did not overrule, its precedents.67 Chenoweth involved a dispute between then-President
Clinton and several Members of Congress over the implementation of a historic preservation
program that was established via executive order and without statutory authorization. The
Members brought suit, arguing that “the President’s issuance of the [ ] executive order, without
statutory authority therefore, deprived [the plaintiffs] of their constitutionally guaranteed
responsibility of open debate and vote on issues and legislation involving interstate commerce,
federal lands, the expenditure of federal monies, and implementation of [the National
Environmental Protection Act].”68
The D.C. Circuit denied the Members standing, holding that the alleged injury did not rise to the
level of vote nullification required by the Court’s decision in Raines.69 The case, however,
presented a conflict between the Court’s holding in Raines and the D.C. Circuit’s precedents
established by Kennedy, Goldwater, Moore, and subsequent cases. Rather than expressly
overruling its previous cases, the D.C. Circuit pulled back on its expansive standing
determination in Kennedy and Moore.70 The court also suggested that the two-prong analysis
utilized in Moore, assessing standing and separation of powers concerns separately, be
reincorporated into a more general, unified standing analysis, as seen in Goldwater.71
63 See Raines, 521 U.S. at 820-21.
64 See 13B CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE
§3531.11.2, at 133 (3d ed. 2008) [hereinafter WRIGHT & MILLER].
65 See Raines, 521 U.S. at 824.
66 See, e.g., Coleman, 307 U.S. 433; see also Kennedy, 511 F.2d 430; Riegle, 656 F.2d at 879, n. 6.
67 Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999).
68 Id. at 113 (internal quotation marks omitted).
69 See id.
70 See id. at 113, 116.
71 Id.
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In 2000, the D.C. Circuit decided Campbell v. Clinton 72 and more directly addressed the meaning
of the term “vote nullification.” Campbell was a suit filed by 31 Members of Congress seeking a
declaration that President Clinton violated the War Powers Clause of the Constitution and the War
Powers Resolution by directing U.S. forces’ participation in North Atlantic Treaty Organization
(NATO) airstrikes against the Federal Republic of Yugoslavia without congressional
authorization.73 In support of their position, the Members attempted to fit the case into the
Coleman exception to Raines, arguing that their votes defeating a War Powers Resolution and
congressional declaration of war were “nullified” by the continued involvement of U.S. troops.74
The court rejected this argument and interpreted Raines vote nullification to require that no other
legislative remedies be available to rectify the executive action. According to the court, Coleman
is distinguishable from Raines because
[t]he Coleman senators, … may well have been powerless to rescind a ratification of a
constitutional amendment that they claimed had been defeated. In other words, they had no
legislative remedy. Under that reading—which we think explains the very narrow possible
Coleman exception to Raines—appellants fail because they continued, after the votes, to
enjoy ample legislative power to have stopped prosecution of the “war.”
In this case, Congress certainly could have passed a law forbidding the use of U.S. forces in
the Yugoslav campaign; indeed, there was a measure—albeit only a concurrent resolution—
introduced to require the President to withdraw U.S. troops.75
Thus, like the Senators in Raines, who could have repealed the Line Item Veto Act or exempted
future appropriations bills from its application, the Members in Campbell had additional
legislative remedies available to them. Therefore, because these legislative remedies existed,
there was no vote nullification and the Members could not have standing.
Most recently, Kucinich v. Obama,76 a suit alleging violations of the War Powers Clause of the
Constitution stemming from U.S. military operations in Libya, was dismissed because the
Member plaintiffs lacked standing. Again, the U.S. District Court for the District of Columbia
concluded that the institutional injury asserted by the Members did not rise to the level of vote
nullification. The Members retained several possible legislative remedies and therefore, did not
satisfy the standing requirements as explained in Raines.77
72 203 F.3d 19 (D.C. Cir. 2000), cert. denied, 531 U.S. 815 (2000).
73 Id. at 19-20.
74 Id. at 22.
75 Id. at 22-23.
76 Kucinich v. Obama, 2011 U.S. Dist. LEXIS 121349, No. 11-1096 (D.D.C. 2011).
77 Id. at *27-28 (finding that the Members could “hold[] votes on defunding military operations or direct[] the
withdrawal of U.S. troops from Libya ... ”).
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Congressional Institutions as Plaintiffs
Congressional Authorization for Suits Alleging Institutional
Injuries
While Members of Congress often have difficulty establishing standing when alleging an
institutional injury, institutional plaintiffs have been more successful at establishing standing
under certain circumstances. It appears that an institutional plaintiff has only been successful in
establishing standing when it has been authorized to seek judicial recourse on behalf of a house of
Congress. Additionally, all of the available cases regarding institutional standing have dealt with
judicial enforcement of a subpoena. It is unclear how or if these precedents would be applied
outside of the subpoena enforcement context. Finally, while the need for authorization to sue
seems clear, there are open questions as to how the Raines vote nullification standard should be
applied in cases involving an institutional plaintiff. It does not appear that any case has directly
addressed this issue.
What Qualifies as Congressional Authorization?
Express Congressional Authorization Is Likely Required
In 1928, the Supreme Court decided Reed v. County Commissioners of Delaware County,
Pennsylvania,78 holding that the Court did not have jurisdiction to decide the case. Although this
case was decided by interpreting a jurisdictional statute, not standing requirements, it appears to
be the first articulation of what it means for a congressional body to be authorized to sue. Reed
involved a U.S. Senate special committee charged, by Senate resolution, with investigating the
means used to influence the nomination of candidates for the Senate.79 The special committee was
authorized to “require by subpoena or otherwise the attendance of witnesses, the production of
books, papers, and documents, and to do such other acts as may be necessary in the matter of said
investigation.”80 During the course of its investigation into the disputed election of William B.
Wilson to the Senate, the committee sought to obtain the “boxes, ballots, and other things used in
connection with the election.”81 The County Commissioners of Delaware County, who were the
legal custodians of said materials, refused to provide them to the committee, thus leading to
litigation. The Supreme Court, after affirming the Senate’s powers to “obtain evidence relating to
the matters committed to it by the Constitution”82 and having “passed laws calculated to facilitate
such investigations,”83 dismissed the case on jurisdictional grounds.
Citing the existing statute conferring jurisdiction for suits “brought by the United States, or by
any officer thereof authorized by law to sue,” the Court held that the Senate Resolution creating
the special committee did not authorize the Senators to sue. According to the Court, the Senator’s
78 277 U.S. 376 (1928).
79 Id. at 378 (citing S. Res. 195, 69th Cong., 1st Sess. (1926)).
80 Id. at 378-79.
81 Id. at 387.
82 Id. at 388 (citing McGrain v. Daugherty, 273 U.S. 135, 160-174 (1927)).
83 Id. (citing R.S. §§101-104, (codified as amended at 2 U.S.C. §§192, 194 (2006))).
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authority to take “such other acts as may be necessary” could not be interpreted “to include
everything that under any circumstances might be covered by its words.”84 As a result, the Court
held that “the Senate did not intend to authorize the committee, or anticipate that there might be
need, to invoke the power of the Judicial Department. Petitioners are not ‘authorized by law to
sue.’”85 Reed stands for the proposition that Congress must expressly authorize the
commencement of litigation if it wishes to allow individual Senators or a committee to represent
it in the courts. However, Reed did not specify how this authorization should be provided, leaving
open the question or whether a law, passed by both houses and presented to the President, is
required or if a concurrent or one-house resolution is sufficient.
One-House Resolutions Have Been Accepted as Congressional Authorization
On several occasions the House of Representatives has authorized committee counsel to intervene
in civil litigation by passing a House resolution. For example, in June, 1976, the Subcommittee
on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce
issued subpoenas to the American Telephone and Telegraph Company (AT&T). The
subcommittee sought copies of “all national security request letters sent to AT&T and its
subsidiaries by the FBI as well as records of such taps prior to the time when the practice of
sending such letters was initiated.”86 Before AT&T could comply with the subpoena, the
Department of Justice (DOJ) and the subcommittee’s chairman, Representative John Moss,
entered into negotiations to reach an alternate agreement preventing AT&T from having to submit
all of its records.87 When these negotiations broke down, the DOJ sought an injunction in the U.S.
District Court for the District of Columbia to prohibit AT&T from complying with the
subcommittee’s subpoenas.
The House of Representatives responded to the litigation by passing a House resolution directing
Chairman Moss to represent the committee and the full House in the litigation “to secure
information relating to the privacy of telephone communications now in the possession of
[AT&T].”88 In addition, the resolution authorized Chairman Moss to hire a special counsel, use
not more than $50,000 from the contingent fund of the committee to cover expenses, and to report
to the full House on related matters as soon as practicable.89 The resolution was adopted by the
House by a vote of 180-108 on August 26, 1976.90
The district court noted Chairman Moss’s intervention into the proceedings and seemingly neither
AT&T nor the DOJ contested it.91 Chairman Moss remained an intervener pursuant to the House
84 Id. at 389.
85 Id.
86 United States v. Am. Telephone & Telegraph Co., 551 F.2d 384, 385 (D.C. Cir. 1976) [hereinafter AT&T I]
87 Id. at 386. The precise details of the delicate negotiations between the DOJ and the subcommittee are explained by
the court and, therefore, will not be recounted here. See id. at 386-88.
88 H.Res. 1420, 94th Cong., 2nd Sess. (1976).
89 Id.
90 See 122 CONG. REC. 27,865-866 (August 26, 1976).
91 See United States v. Am. Telephone & Telegraph Co., 419 F. Supp. 454, 458 (D.D.C. 1976) (stating that “[t]he effect
of any injunction entered by this Court enjoining the release of materials by AT&T to the Subcommittee would have
the same effect as if this Court were to quash the Subcommittee’s subpoena. In this sense the action is one against the
power of the Subcommittee and should be treated as such, assuming that Representative Moss has authority to speak
for the Subcommittee.”).
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resolution through the district court proceeding and two appeals to the U.S. Court of Appeals for
the District of Columbia Circuit, at which point an agreement was reached with respect to the
disclosure of the documents sought. During the first appeal, the court recognized Chairman
Moss’s standing, pursuant to the House resolution, by stating: “It is clear that the House as a
whole has standing to assert its investigatory power, and can designate a member to act on its
behalf.”92 Therefore, according to United States v. American Telephone & Telegraph Co., a one-
House resolution appears to be sufficient to authorize a single Member or committee to represent
the full chamber in a suit alleging an institutional injury.93
The House again authorized Chairman Moss to intervene in 1976, in litigation between Ashland
Oil and the Federal Trade Commission (FTC). This case arose when Ashland Oil sought to enjoin
the FTC from transferring its information to the Subcommittee on Oversight and Investigations of
the Committee on Interstate and Foreign Commerce, at the request of subcommittee Chairman
Moss. After Ashland Oil obtained a temporary restraining order preventing disclosure, the
subcommittee issued a subpoena for the documents. Additionally, Chairman Moss filed a
resolution for House authorization to allow him to intervene, with special counsel, in Ashland
Oil’s suit against the FTC.94 The district court granted Chairman Moss’s motion to intervene and
ultimately refused to grant the injunction against the FTC.95 The court of appeals affirmed the
decision on the merits, never addressing any defects in Chairman Moss’s standing to sue.
Finally, Committee on Judiciary, U.S. House of Representatives v. Miers,96 a 2008 case in the U.S.
District Court for the District of Columbia, involved a civil suit brought by the House Judiciary
Committee seeking to enforce subpoenas against former and current White House officials. The
district court held that the Judiciary Committee “had been expressly authorized by the House of
Representatives as an institution” to bring the suit by House resolution.97 According to the court,
Miers existed in “the permissible category of an institutional plaintiff asserting an institutional
injury (AT&T I ... ).”98 Therefore, since the committee was authorized to sue, its Article III
standing was preserved.
Unauthorized Institutions Will Likely Lack Standing
Members Purporting to Represent a Congressional Institution
In Re Beef Industry Antitrust Litigation99 provides an example of what may occur if a house of
Congress does not expressly authorize a committee to represent it in court. In In Re Beef, the
chairmen of two subcommittees of the House of Representatives100 sought to intervene in a
92 AT&T I, 551 F.2d at 391.
93 See id.
94 See generally, Ashland Oil, Inc. v. FTC, 548 F.2d 977 (D.C. Cir. 1976); see also H.R. 899, 94th Cong., 1st Sess.
(1975); 121 CONG. REC. 41,707 (1976).
95 Ashland Oil, Inc. v. FTC, 409 F. Supp. 297, 301 (D.D.C. 1976).
96 558 F. Supp. 2d 53 (D.D.C. 2008).
97 Id. at 71 (emphasis in original). See H.Res. 980, 110th Cong., 2nd Sess. (2008).
98 Miers, 558 F. Supp. 2d at 71.
99 589 F.2d 786 (5th Cir. 1979) [hereinafter In re Beef].
100 The Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce, and the
Subcommittee on SBA and SBIC Authority and General Small Business Problems of the Committee on Small
(continued...)
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pending antitrust dispute, to obtain trial documents that were subpoenaed by the subcommittees.
The subpoenaed documents were gathered during discovery and subject to a standing court
protective order. The district court refused to modify its protective order, which would have
allowed the party to comply with the subpoena.101 The subcommittee chairmen appealed to the
U.S. Court of Appeals for the Fifth Circuit.
On appeal, the Fifth Circuit heard a motion to dismiss by a plaintiff who argued that the chairmen
had not obtained House authorization before filing their initial motion to intervene in the district
court. The plaintiff relied on what was then House Rule XI, cl. 2(m)(2)(B), which provided that
“[c]ompliance with any subpena [sic] issued by a committee or subcommittee ... may be enforced
only as authorized or directed by the House.”102 In response, the subcommittee chairmen argued
that the rule did not apply since they sought not to enforce a subpoena, but rather to modify a
protective order. Therefore, the chairmen argued House authorization to appear in court was
unnecessary.103
The Fifth Circuit rejected the chairmen’s arguments, noting specifically that the House Rules
“require[] House authorization not only for direct enforcement of a subpoena but also in any
instance when a House committee seeks to institute or to intervene in litigation and, of course, to
appeal from a court decision, particularly when the purpose is, as here, to obtain the effectuation
of a subpoena.”104 The court pointed to Ashland Oil, noting that, like this case, the chairman in
Ashland Oil was not seeking to enforce a subpoena directly but merely attempting to prevent an
injunction from being issued.105 The subcommittee chairmen’s failure to obtain an authorizing
resolution from the full House, therefore, required the dismissal of the appeal without any
decision on the merits.106
As recently as 2006, the court in Waxman v. Thompson continued this line of argument, stating
that the holdings in Reed and AT&T107 suggested that “legislative branch suits to enforce requests
for information from the executive branch are justiciable if authorized by one or both Houses of
Congress.”108 Waxman was a case brought in the U.S. District Court for the Central District of
California by minority members of the House Government Reform Committee.109 These Member
plaintiffs sought a court order, pursuant to 5 U.S.C. §§2954 and 7211, granting them access to
Department of Health and Human Services records related to the anticipated costs of the
Medicare Prescription Drug Improvement and Modernization Act of 2003.110 The plaintiffs
(...continued)
Business. See id. at 788.
101 See In re Beef Indus. Antitrust Litigation, 457 F. Supp. 210, 212 (N.D. Tex. 1978) (stating that “the persons whom
the Subcommittees have subpoenaed would not have possession of the subpoenaed documents but for the discovery
rules of the Federal Courts. Congress by subpoenaing these documents is interfering with the processes of a Federal
Court in an individual case.”).
102 In Re Beef, 589 F.2d at 789.
103 Id.
104 Id. at 790-91.
105 Id. at 790.
106 Id. at 791.
107 567 F.2d 121.
108 Waxman v. Thompson, No. 04-3467, slip op. at 29 (C.D. Cal. July 24, 2006) (emphasis added).
109 Id.
110 Id. at 2.
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argued that 5 U.S.C. §2954, which requires an executive agency to submit any information
relating to matters within the committee’s jurisdiction when any seven members of the House
Committee on Government Operations request it,111 implicitly delegated to Members the right to
sue to enforce their informational demands.112
The court, in rejecting this argument, relied on the Supreme Court’s holding in Reed.113
Specifically, the court noted that Reed’s holding “put Congress on notice that it was necessary to
make authorization to sue to enforce investigatory demands explicit if it wished to ensure that
such power existed.”114 According to the court, like the Senate resolution at issue in Reed,
because §2954 is silent with respect to civil enforcement, arguably Congress never intended to
provide Members with the power to seek civil judicial orders to enforce their document demands.
Therefore, because the Members were not actually authorized to sue pursuant to §2954, they
could not establish standing, and the suit was dismissed without reaching the merits of the claim.
Legislative Agencies as Institutional Plaintiffs
In Walker v. Cheney,115 a 2002 case in the U.S. District Court for the District of Columbia, the
then General Accounting Office (GAO), pursuant to its authority under 31 U.S.C. §716(b)(2),
filed suit seeking records regarding the National Energy Policy Development Group (NEPDG).116
Representative Henry Waxman and John Dingell, then members of the minority party, asked
GAO to initiate an investigation regarding NEPDG’s activities, based on reports that task force
meetings included “exclusive groups of non-governmental participants.”117 After initiating its
investigation, GAO asked Vice President Cheney for information regarding NEPDG, including
the names and titles of all individuals present at the meetings, the purpose and agenda of the
meetings, the process for determining who would be invited to such meetings, and whether
minutes or notes were kept.118 After several attempts to obtain this information were unsuccessful,
GAO issued a demand letter pursuant to 31 U.S.C. §716(b),119 requesting the aforementioned
records, copies of the minutes or meeting notes, and any information presented by private sector
attendees.120
111 5 U.S.C. §2954 (2000) (emphasis added). This statute is commonly referred to as the “rule of seven.”
112 Waxman v. Thompson, No. 04-3467, slip op. at 21 (C.D. Cal. July 24, 2006).
113 Id. at 21, n. 42.
114 Id.
115 Walker v. Cheney, 230 F. Supp. 2d 51, (D.D.C. 2002).
116 The National Energy Policy Development Group was created by President Bush via presidential memorandum and
tasked with developing a national energy policy “designed to help the private sector, and government at all levels,
promote dependable, affordable, and environmentally sound production and distribution of energy for the future.” The
President’s memorandum directed the Vice President to serve as chair, with membership extended to the Secretary of
the Treasury, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of
Transportation, the Secretary of Energy, as well as several other federal officers. The memorandum also directed the
Department of Energy to make funds available to the NEPDG to cover the costs of support staff.
117 Letter from Reps. Waxman and Dingell to GAO, April 19, 2001.
118 For detailed chronologies of interactions between the Office of the Vice President and GAO, see Letter from Vice
President Cheney to the House of Representatives, August 2, 2001; see also GAO Report on Vice President Cheney’s
Refusal to Release Records, August 17, 2001.
119 “When an agency record is not made available to the Comptroller General within a reasonable time, the Comptroller
General may make a written request to the head of the agency... The head of the agency has 20 days after receiving the
request to respond.” 31 U.S.C. §716(b)(1).
120 GAO Demand Letter to Vice President Cheney, July 18, 2001.
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After the demand letter yielded no disclosure of documents, the Comptroller General filed suit.
The court in Walker dismissed the suit after conducting an “especially rigorous” standing inquiry
because the case presented “core separation of powers questions at the heart of the relationship
among the three branches of our government.”121 The court held that the Comptroller General’s
alleged injury was not personal, stressing that his interest in the suit was “solely institutional,
relating exclusively to his duties in his official capacity.”122 Rather, the Comptroller General’s
alleged institutional injury—the Vice President’s refusal to provide the information requested
pursuant to GAO’s statutory investigative and access enforcement authority—was insufficient to
establish standing. The court predicated this finding on its conclusion that the Comptroller
General was acting as an agent of Congress in demanding information and bringing suit. He had
no “freestanding institutional injury or personal injury of his own to assert;”123 he only
represented Congress’s alleged institutional injury. The court then reiterated that justiciability
requires that “the plaintiff himself has suffered some threatened or actual injury.”124
Additionally, the court noted that Congress had not expressly authorized GAO’s suit, one factor
that led to the conclusion that the plaintiff lacked standing.125 The court stated that the “highly
generalized allocation of enforcement power to the Comptroller General ... hardly gives this
Court confidence that the current Congress has authorized this Comptroller General to pursue a
judicial resolution of the specific issues affecting the balance of power” between the executive
and legislative branches.126
Effect of Raines v. Byrd on Institutional Plaintiff Standing
It appears that only one case has significantly addressed the relationship between Raines and pre-
Raines precedents regarding congressional institutional plaintiff standing. In Miers, the District
Court for the District of Columbia explicitly applied the reasoning in AT&T and concluded that
the Committee plaintiff had standing to enforce a subpoena because it was authorized to sue via
House resolution.127 The court emphasized that it could not conclude that Raines overruled or
undermined AT&T.128 The reason why Raines did not apply to Miers was the fact that the House
explicitly authorized the Miers plaintiffs to bring suit. That authorization was “the key factor that
moves this case from the impermissible category of an individual plaintiff asserting an
institutional injury (Raines, Walker) to the permissible category of an institutional plaintiff
asserting an institutional injury (AT&T ... ).”
121 Walker, 230 F. Supp. 2d at 65 (quoting Raines, 521 U.S. at 819).
122 Id. at 66.
123 Id.
124 Id. at 67 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).
125 Id. at 68. The court noted several other factors that contributed to its holding. In particular, the court found it
significant that Congress had an “alternate remedy” to cure its alleged injury, in that it could issue a subpoena for the
information. Id. at 30. Also, the court gave some weight to the fact that while its decision prevented the Comptroller
General from gaining access to the NEPDG documents, private parties were seeking similar information in other suits.
See id. at 31 n.14. Finally, the court was further influenced by the fact that there was no precedent for a suit by a
Comptroller General for access to executive branch records. Id. at 32-33.
126 Id. at 69-70.
127 Miers, 558 F. Supp. 2d at 68.
128 Id. at 66-70 (noting that “Raines and subsequent cases have not undercut either the precedential value of AT&T I or
the force of its reasoning” and that “Raines did not overrule or otherwise undermine AT&T I, and neither Raines nor
Walker is inconsistent with AT&T I.”).
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One important question remains unanswered by the courts: does the Raines vote nullification
standard apply at all in cases where an authorized institutional plaintiff alleges an institutional
injury? While it is clear that the Miers plaintiffs were able to establish standing, the court did not
address whether the vote nullification standard should be applied. Even if the standard is applied,
it appears that it may not prohibit an authorized institutional plaintiff from suing to enforce a
subpoena since there is no legislative alternative for direct enforcement. However, outside the
subpoena context, if the vote nullification standard applied, it may prohibit some authorized
institutional plaintiffs from establishing standing where their injury has a legislative remedy.
Conclusion
An individual Member’s ability to bring litigation before an Article III court remains severely
limited by the Supreme Court’s decision in Raines. For Member plaintiffs to successfully
establish standing, they must assert either a personal injury, like the loss of their congressional
seat, or an institutional injury that amounts to vote nullification, which requires that no other
legislative remedy exists to redress the alleged injury. Considering that legislative remedies are
rarely entirely foreclosed, these Member plaintiff suits are unlikely to satisfy the standing
requirements imposed by Raines and Campbell. It appears that more successful suits could be
brought by either Congress as a whole, a house of Congress, or a committee when acting with the
authorization of one or both houses. Institutional plaintiffs with authorization to sue have
established standing in several cases when seeking judicial enforcement of a subpoena. However,
it remains unclear how or if the Raines vote nullification standard is supposed to be applied to an
institutional plaintiff asserting an institutional injury outside of the subpoena enforcement
context.
Author Contact Information
Alissa M. Dolan
Todd Garvey
Legislative Attorney
Legislative Attorney
adolan@crs.loc.gov, 7-8433
tgarvey@crs.loc.gov, 7-0174
Acknowledgments
Over time, authors of various versions of this report include the following Legislative Attorneys: Jay R.
Shampansky, Morton Rosenberg, T.J. Halstead, and Todd B. Tatelman.
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