Congressional Participation in Litigation:
March 26, 2019
Article III and Legislative Standing
Wilson C. Freeman
Houses, committees, and Members of Congress periodically seek to initiate or participate in
Legislative Attorney
litigation to, among other purposes, advance their legislative objectives, argue that the Executive

is violating their legislative prerogatives, or defend core institutional interests. However, the
Kevin M. Lewis
constitutionally based doctrine of “standing”—which requires a litigant seeking federal judicial
Legislative Attorney
relief to demonstrate (1) a concrete and particularized and actual or imminent injury-in-fact

(2) that is traceable to the allegedly unlawful actions of the opposing party and (3) that is
redressable by a favorable judicial decision—may prevent legislators from pursuing litigation in

federal court. The U.S. Supreme Court and the lower federal courts have issued several important
opinions analyzing whether—and under what circumstances—a legislative entity has standing to seek relief.
Although legislative standing jurisprudence defies easy characterization, it is possible to distill several principles from
existing precedent. For example, whereas courts commonly allow individual legislators to assert injuries to their own
personal interests, following the Supreme Court’s seminal opinion in Raines v. Byrd, 521 U.S. 811 (1997), courts have
generally (though not universally) been less willing to permit individual legislators to seek redress for injuries to a house of
Congress as a whole, at least in the absence of explicit authorization to do so from the legislative body itself. The Supreme
Court’s case Coleman v. Miller, 307 U.S. 433 (1939), is generally understood as setting forth the lone exception, allowing
individual legislators to sue when their vote has been “nullified” by some claimed illegal action. In addition, generally
speaking, a congressional plaintiff cannot predicate a federal lawsuit solely on a complaint that the executive branch is
misapplying or misinterpreting a statute, as litigants must demonstrate concrete and particularized injury to themselves.
In addition to initiating litigation, Congress also occasionally seeks to intervene in preexisting litigation. In cases in which the
executive branch has declined to defend a federal statute from a constitutional challenge, for example, congressional entities
have attempted to intervene as defendants in support of the law. The Supreme Court, in INS v. Chadha, 462 U.S. 919 (1983)
and United States v. Windsor, 570 U.S. 744 (2013), has allowed Congress to intervene to defend a law that the executive
branch has declined to defend but still enforces. Nonetheless, neither case resolved whether significant exceptions to this rule
exist, let alone explored what rules are in place when the President both declines to defend and enforce a federal law.
Moreover, in cases that do not involve the executive branch’s refusal to defend a federal statute, Congress’s ability to
intervene as a full party to the case may be more circumscribed.
Even when Congress lacks standing to initiate or intervene in a federal lawsuit as a full-fledged party, Congress may still play
a role in litigation by participating as an amicus curiae, or “friend of the court.” Courts frequently allow Members, houses,
and committees of Congress to file amicus briefs in support of (or opposition to) particular parties or positions.

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Introduction
Since the founding, the federal courts have played a critical role in adjudicating legal disputes,
including ones involving executive action. As the Supreme Court stated in Marbury v. Madison,
“where a specific duty is assigned by law . . . the individual who considers himself injured[] has a
right to resort to the laws of his country for a remedy.”1 Naturally, Congress and its Members
have an interest in litigating in federal court, for example, to vindicate their institutional
priorities,2 to argue that the Executive is violating their legislative prerogatives, or to advance
their legislative policy interests. During the Obama Administration, for instance, legislative
entities brought or joined litigation in federal court for a host of reasons, such as to challenge the
Executive’s decision to allegedly expend money without a congressional appropriation,3 to
defend the Defense of Marriage Act from constitutional challenge in lieu of the Executive,4 and to
challenge the Executive’s decision to engage in military action in Libya.5 Likewise, during the
Trump Administration, legislators have become involved in lawsuits that challenge the
President’s alleged unconstitutional acceptance of emoluments,6 suits demanding the production
of documents from the Administration,7 and, in an amicus capacity, challenges to legality of the
so-called travel ban.8 Congressional interest in litigation may increase in salience under the
current divided government, as illustrated by the House of Representatives’ resolution to
authorize the House to participate in ongoing litigation in Texas involving the Affordable Care
Act9 and a recent lawsuit brought by several Members of Congress challenging the President’s
appointment of an acting attorney general.10
However, whenever any party seeks to invoke the power of the federal courts, it must first show
that its dispute belongs there. For nearly its entire history, the Supreme Court has emphasized that
the role of courts is in “decid[ing] on the rights of individuals.”11 By contrast, “[v]indicating the
public interest (including the public interest in Government observance of the Constitution and
laws) is the function of Congress and the Chief Executive.”12 The federal courts apply a number
of doctrines, known as justiciability doctrines, to ensure that they do not step beyond their bounds
and decide issues more properly reserved for the other branches.13 Foremost among these

1 5 U.S. 137, 166 (1803).
2 Congress does not always have to directly participate in the litigation for it to affect Congress’s institutional priorities.
For example, in a lawsuit over the extent of the President’s authority under the Recess Appointments Clause, the
plaintiff was private Pepsi-Cola distributor, even though dispute directly implicated authority of President in relation to
the authority of the Senate. See, e.g., NLRB v. Noel Canning, 134 S. Ct. 2550, 2557 (2014).
3 U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 57 (D.D.C. 2015).
4 United States v. Windsor, 570 U.S. 744, 754 (2013).
5 Kucinich v. Obama, 821 F. Supp. 2d 110, 113-14 (D.D.C. 2011).
6 Blumenthal v. Trump, 335 F. Supp. 3d 45, 49-50 (D.D.C. 2018).
7 Cummings v. Murphy, 321 F. Supp. 3d 92, 112 (D.D.C. 2018).
8 See Brief of Members of Congress as Amici Curiae in Support of Respondents, Trump v. State of Hawaii, No. 17-
965, 2018 WL 1586437 (March 30, 2018).
9 H. Res. 6, 116th Cong. (2018).
10 Complaint for Declaratory and Injunctive Relief, Blumenthal v. Whitaker, No. 1:18-cv-02664-RDM (D.D.C. Nov.
19, 2018). The plaintiffs in Blumenthal v. Whitaker voluntarily dismissed their complaint on February 19, 2019. See
Notice of Voluntary Dismissal Pursuant to FED. R. CIV. P. 41(a)(1)(A)(i), Blumenthal v. Whitaker, No. 1:18-cv-02664-
RDM (D.D.C. Feb. 19, 2018).
11 Lujan v. Defs. of Wildlife, 504 U.S. 555, 576 (1992) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170
(1803)).
12 Id. at 576-77.
13 See infra text accompanying note 41.
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doctrines is the requirement that a party seeking judicial relief from a federal court demonstrate
“standing.”
This report provides an overview of the standing doctrine as it applies to lawsuits involving
legislators, committees, and houses of Congress. First, the report lays out the general rules of
standing as they apply in every case in the federal courts and the main purpose behind the
doctrine. One central purpose of the standing doctrine—protecting the court’s role in the
constitutional balance of powers—is a theme that underlies this report, as many of these cases
involve courts deciding whether they have the power to adjudicate high-profile political disputes
between the other two branches of the federal government. Next, the report considers the
relatively few Supreme Court cases to discuss legislator standing, explaining the general
principles that courts have drawn from those cases. The report then analyzes how lower courts
have interpreted the limited Supreme Court case law on the issue, beginning with cases involving
individual legislators, and following with cases brought by entire institutions, such as committees
or houses of a legislature. The report then considers other issues relating to legislator participation
in litigation, such as intervention under the Federal Rules of Civil Procedure or participation
purely as an “amicus curiae,” or a “friend of the court.” The report concludes by identifying
unresolved doctrinal questions and offering takeaways for prospective congressional litigants.
Legal Background of Article III Standing
Article III of the Constitution limits the exercise of the federal courts’ judicial power to “cases”
and “controversies.”14 The Supreme Court has interpreted this “case or controversy” language to
impose various restrictions on the “justiciability” of disputes in the federal courts—that is,
constraints on the federal courts’ power to adjudicate and resolve disagreements between
parties.15 One aspect of justiciability requires a party seeking judicial relief from a federal court to
have “standing,” such that the party has “a personal stake in the outcome of the controversy as to
warrant [the] invocation of federal-court jurisdiction and to justify exercise of the court’s
remedial powers on his behalf.”16 Further, a litigant must demonstrate standing for each claim he
seeks to press and each form of relief that he seeks to obtain.17
The Supreme Court articulated a three-part test for standing in its seminal 1992 decision Lujan v.
Defenders of Wildlife.18 To establish standing under that test, a party must show that it has a
genuine stake in the relief sought because it has personally suffered (or will suffer) (1) a concrete

14 U.S. CONST. art. III, § 2 (“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, or which shall be made, under their Authority;—to all
Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime
Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more
States;—between a State and Citizens of another State;--between Citizens of different States;—between Citizens of the
same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign
States, Citizens or Subjects.”). See also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998) (“Article III,
§ 2, of the Constitution extends the ‘judicial Power’ of the United States only to ‘Cases’ and “Controversies.’ We have
always taken this to mean cases and controversies of the sort traditionally amenable to and resolved by the judicial
process.”).
15 ALAN WRIGHT & ARTHUR R. MILLER, ET AL., 13 FEDERAL PRACTICE AND PROCEDURE § 3529 (3d ed. 2018) (describing
the categories of justiciability as “advisory opinions, feigned and collusive cases, standing, ripeness, mootness, political
questions, and administrative questions.”)
16 Warth v. Seldin, 422 U.S. 490, 498-99 (1975).
17 Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017).
18 504 U.S. 555, 560-61 (1992).
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and particularized and actual or imminent injury-in-fact (2) that is traceable to the allegedly
unlawful actions of the opposing party and (3) that is redressable by a favorable judicial
decision.19 While each of these requirements is complex and can blend into each other, courts
generally regard the injury-in-fact requirement to be the “central focus” of the inquiry.20
A party that seeks to demonstrate standing must show that his injury is “concrete”—meaning an
injury that is “real” and not “abstract.”21 Nonetheless, an injury can be intangible in nature, as the
deprivation of a constitutional right, like freedom of speech or the free exercise of one’s religion,
constitutes an injury-in-fact absent any tangible economic loss.22 While it may sometimes be
difficult to draw a distinction between an “intangible” injury and an “abstract” injury,23 the Court
has provided some guidance. For example, the Court has held that an alleged injury sufficient for
standing may be one similar to those that have “traditionally been regarded as providing a basis
for a lawsuit in English or American courts,” such as the interest of a qui tam relator in the
outcome of his suit.24 The Court has also stated that Congress can build on common law
conceptions of injury, as Congress is “well positioned” to “identify intangible harms that meet
minimum Article III requirements” and establish new causes of action to remedy such harms.25
Finally, the Court has explicitly considered and rejected several types of abstract injuries in
previous cases. For instance, in Valley Forge Christian College v. Americans United for
Separation of Church and State, the Supreme Court held that a public interest organization lacked
standing to challenge the transfer of federal land to a religiously affiliated school, as the only
injuries identified by the plaintiffs were the “psychological consequence[s] presumably produced

19 Id.
20 WRIGHT & MILLER, supra note 15, § 3531.4 (“Even as the concepts blend together, however, the central focus is fixed
on the injury requirement. The very notion of injury implies a causal connection to the challenged activity; an injury
caused by other events is irrelevant to any purpose of standing doctrine. Causation in turn bears on remedial benefit,
since a remedy addressed to actions that have not caused the injury will not alleviate the injury. It remains useful
nonetheless to separate the three elements, both for purposes of exposition and for purposes of decision.”).
21 See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548-49 (2016).
22 See id. at 1549 (citing cases involving free speech and free exercise injuries). The Court has identified in many cases
the sort of “intangible” harm that qualifies as justiciable injury. See, e.g., Dep’t of Commerce v. U.S. House of
Representatives, 525 U.S. 316, 331-32 (1999) (stating that a plaintiff’s “expected loss of a Representative to the United
States Congress undoubtedly satisfies the injury-in-fact requirement of Article III standing” and that “voters have
standing to challenge an apportionment statute because they are asserting a plain, direct and adequate interest in
maintaining the effectiveness of their votes.”); Lujan, 504 U.S. at 562-63 (“Of course, the desire to use or observe an
animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for purposes of standing.”);
Allen v. Wright, 468 U.S. 737, 755 (1984) (“There can be no doubt that [stigmatization as a result of racial
discrimination] is one of the most serious consequences of discriminatory government action and is sufficient in some
circumstances to support standing.”).
23 WRIGHT & MILLER, supra note 15, § 3531.4 (“One common practice is to distinguish between the mere ‘abstract
injury’ that is not sufficient to confer standing and the ‘concrete injury’ that is sufficient. Application of this distinction
or parallel phrases cannot be explained in the terms of effective advocacy. Standing is regularly recognized for litigants
who have suffered only the slightest—the most abstract—of injuries.”).
24 Spokeo, 136 S. Ct. at 1549 (citing Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 774-78
(2000)). A qui tam action is an “action brought under a statute that allows a private person to sue for a penalty, part of
which the government or some specified public institution will receive.” BLACK’S LAW DICTIONARY 1262 (7th ed.
1999). Qui tam actions have a “long tradition” in England and the American colonies, dating back to the 13th century.
See Vt. Agency of Nat. Resources, 529 U.S. at 774.
25 Spokeo, 136 S. Ct. at 1549. See also Lujan, 504 U.S. at 578 (citing Trafficante v. Metropolitan Life Ins. Co, 409 U.S.
205, 208-12 (1972) (discussing individual’s personal interest in living in racially integrated community)).
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by observation of conduct with which one disagrees.”26 A claim based only on this sort of
psychological discomfort will generally not support an injury-in-fact.27
Along with the requirement of concreteness, a plaintiff’s alleged injury must be
“particularized.”28 This requirement focuses on whether the alleged injury affects the plaintiff in a
“personal and individual way.”29 Significantly, the need for particularization bars plaintiffs from
seeking redress for so-called “generalized grievances.”30 Under this doctrine, a plaintiff “claiming
only harm to his and every citizen’s interest in proper application of the Constitution and laws”31
does not state a sufficiently particularized injury. This principle does not mean, however, that
injuries suffered by many are not justiciable. Rather, particularization only requires plaintiffs to
connect to the injury they allege in some particular way, even if that injury is widely shared.32 For
instance, in Federal Election Commission v. Akins, the Supreme Court recognized that individual
voters had suffered a justiciable injury based on the Federal Election Commission’s allegedly
unlawful decision to not obtain and disclose certain information about a political organization.33
The Court concluded that even though that injury was “widely shared,” the deprivation of a
statutory right granting access to information “directly related to voting” was sufficiently
“specific” to allow Congress to authorize individuals to vindicate that right.34
These limitations on the courts, as they are rooted in the Constitution, are not easily
circumvented. For example, subject to “limited exceptions,” a litigant must assert “his or her own
legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third
parties.”35 To illustrate, in Hollingsworth v. Perry, the Court held that the proponents of a
California voter initiative lacked standing to defend that initiative from constitutional challenge
when the California Attorney General declined to do so.36 In that case, the Court agreed that a

26 454 U.S. 464, 485 (1982).
27 Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 39-40 (1976) (“We note at the outset that the five respondent
organizations, which described themselves as dedicated to promoting access of the poor to health services, could not
establish their standing on the basis of that goal. Our decisions make clear that an organization’s abstract concern with
a subject that could be affected by an adjudication does not substitute for the concrete injury required by [Article III].”)
See also Spokeo, 136 S. Ct. at 1549 (holding that “bare procedural violation” of a statute, even where Congress had
created a cause of action for such violation, would not amount to “concrete” injury sufficient for standing).
28 Spokeo, 136 S. Ct. at 1550 (drawing distinction between “concreteness and particularization” and requiring that
litigants show both in order to demonstrate standing).
29 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 n.1 (1992).
30 Id. at 573-74.
31 Id. See also Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[W]hen the asserted harm is a ‘generalized grievance’
shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant
exercise of jurisdiction.”).
32 Spokeo, 136 S. Ct. at 1548 n.7 (“The fact that an injury may be suffered by a large number of people does not of
itself make that injury a nonjusticiable generalized grievance. The victims’ injuries from a mass tort, for example, are
widely shared, to be sure, but each individual suffers a particularized harm.”). See also Gill v. Whitford, 138 S. Ct.
1916, 1931-32 (2018) (in gerrymandering case, comparing particularized injury of “vote dilution” with
nonparticularized injury of a “shared interest in the composition of ‘the legislature as a whole.’”).
33 524 U.S. 11, 23 (1998).
34 Id. at 24-25.
35 Hollingsworth v. Perry, 570 U.S. 693, 708 (2013). See also Tileston v. Ullman, 318 U.S. 44, 46 (1943) (rejecting
claim of standing by doctor challenging Connecticut statutes prohibiting him from prescribing contraceptives where
doctor alleged no injury to himself and there was no “basis on which we can say he has standing to secure an
adjudication of his patients’ constitutional right to life”).
36 570 U.S. at 702-03. For more on this topic, see infra “Congressional Intervention to Defend a Statute’s
Constitutionality: Adversity and Standing Issues.”
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“political corporate body” can designate an agent to proceed in court on its behalf, but held that
the proponents could not simply assert to be acting in such a capacity.37 Rather, some evidence of
actual agency, such as the principal’s right to control the agent, must be present.38 Because this
control was lacking in Hollingsworth—the State of California had no power to control or
authority over the proponents of the initiative—the proponents could not claim to be proceeding
on behalf of the State, and had to rely upon their own interests, which were not sufficiently
concrete or particularized to amount to an injury-in-fact.39
The requirement of concrete and particular injury is essential in every case, but it is especially
significant in cases involving the constitutionality of government action because of the important
role that the standing doctrine plays in preserving the separation of powers. As one prominent
treatise explains, difficult standing decisions often depend on “the importance of having the
issues decided by the courts” versus “the importance of leaving the issues for resolution by other
means.”40 In other words, “[s]eparation of powers concerns” often “control the seemingly precise
concept of injury.”41 Accordingly, the Supreme Court has long recognized that the separation of
powers is the driving force behind the standing doctrine. As the Court explained in Lujan, “the
Constitution’s central mechanism of separation-of-powers depends largely upon common
understanding of what activities are appropriate to legislatures, to executives, and to courts.”42
The doctrine of standing, the Court explained, serves to identify those disputes that are
“appropriately resolved in the judicial process.”43 Thus, while the formal standing doctrine has
some requirements that express “merely prudential considerations,” its “core” is in ensuring that
the courts do not stray beyond their essential role.44
The doctrine of standing, therefore, forces the courts to police their own jurisdiction,45 preventing
individuals from enlisting the courts in fights that should be resolved through the political
process.46 This conception of standing helps explain why the Court has said that the standing
inquiry is “especially rigorous” in cases involving the constitutionality of government action.47 In

37 570 U.S. at 710.
38 Id.
39 Id.
40 WRIGHT & MILLER, supra note 15, § 3531.
41 Id. See also Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17
SUFFOLK L. REV. 881, 881-82 (1983) (arguing that the doctrine of standing is “a crucial and inseparable element” of the
separation-of-powers principle, necessary to avoid “an overjudicialization of the processes of self-governance.”).
42 504 U.S. 555, 559-60 (1992).
43 Id. at 560.
44 Id.
45 See, e.g., Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001) (“We are obliged to examine standing sua
sponte . . . .”). See also, e.g., Gonzalez v. Thaler, 565 U.S. 134 (2012) (“When a requirement goes to subject-matter
jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.”).
46 Some scholars have argued that the Supreme Court’s approach in limiting the courts to deciding on the rights of
individuals is unjustified and forgoes the judiciary’s role in ensuring that governmental actors adhere to the
Constitution. See, e.g., ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 2.3.5 (6th ed. 2012) (“Ultimately, two
competing visions of the role of the federal judiciary are at stake. Under one, the role of the federal courts is limited to
remedying specific injuries suffered by individuals . . . . An alternative view sees the federal judiciary as existing to
ensure government compliance with the Constitution . . . . This dispute is a fundamental disagreement over the role of
the federal courts in American society.”).
47 See Raines v. Byrd, 521 U.S. 811, 819-20 (1997) (“[O]ur standing inquiry has been especially rigorous when
reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of
the Federal Government was unconstitutional.”). See also WRIGHT & MILLER, supra note 15, § 3531.11.2 (“The
difficulties [when a public official sues another part of government] continue to be those of separation-of-powers—and
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such cases, the courts are being asked to participate in a dispute that may particularly involve the
constitutional balance of power, placing the court’s role in resolving that dispute under significant
scrutiny.
Legislative Standing at the Supreme Court
Separation of powers is logically the central focus when the plaintiff is a branch of government,
such as a legislature. Although the Supreme Court has decided relatively few cases involving
legislative standing, in those cases it articulated several principles that apply specifically when the
plaintiff is a legislative entity.48
The first significant Supreme Court case to involve legislators filing a lawsuit challenging a
governmental action was the 1939 case Coleman v. Miller.49 Coleman involved the Kansas
legislature’s then-recent approval of the proposed Child Labor Amendment to the U.S.
Constitution, which Congress had submitted to the states for ratification 15 years prior.50 A bare
majority of the Kansas legislature voted to ratify the amendment, with the Kansas lieutenant
governor casting the tie-breaking vote in favor of ratification in the Kansas Senate.51 Seeking to
undo this ratification, the plaintiffs, individual members of the Kansas legislature who had voted
against the amendment, challenged the lieutenant governor’s right to cast his tie-breaking vote.52
The plaintiffs argued that the lieutenant governor was not a part of the “legislature” and so his
vote could not be counted to ratify the amendment under Article V of the Constitution.53 The
Coleman plaintiffs also argued that the passage of time had sapped the amendment of its vitality.54
They sued to compel the Kansas secretary of state to annul the ratification.55
The Supreme Court splintered and issued three opinions, none of which obtained five votes.56
However, a majority of the Court concluded that the plaintiff legislators had standing.57 Chief
Justice Charles Evans Hughes, writing the “opinion of the Court” for himself and two other
justices, concluded that the petitioners had an “adequate interest to invoke [the Court’s]
jurisdiction” because the senators’ votes “would have been sufficient to defeat ratification” if they
had been right that the lieutenant governor’s vote was invalid.58 As a result, their votes had been
“held for naught” and “overridden,” which ran contrary to the senators’ “plain, direct and
adequate interest in maintaining the effectiveness of their votes.”59 Justices Butler and

when state officials are involved—federalism.”).
48 Raines, 521 U.S. at 820.
49 307 U.S. 433.
50 Id. at 435-36.
51 Id. at 436.
52 Id.
53 Id. at 446-47 (citing U.S. CONST. art. V (stating that amendments must be ratified by “the Legislatures of three
fourths of the several States”)).
54 Id. at 436.
55 Id.
56 See Raines v. Byrd, 521 U.S. 811, 822 n.5 (1997) (discussing the splintered opinions in Coleman as it relates to
standing).
57 See id. (“Even though there were only two Justices who joined Chief Justice Hughes’ opinion on the merits [in
Coleman], it is apparent that the two dissenting Justices joined his opinion as to the standing discussion. Otherwise,
Justice Frankfurter’s opinion denying standing would have been the controlling opinion.”).
58 Coleman, 307 U.S. at 438.
59 Id.
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McReynolds dissented from the majority’s disposition of the case on the merits, but implicitly
agreed with its conclusion that the plaintiffs had standing.60 Justice Frankfurter, writing for four
Justices, would have held that the legislators lacked standing.61 He argued that so-called “intra-
parliamentary disputes” should be left to parliaments, and that the injuries suffered here
“pertain[ed] to legislators not as individuals but as political representatives executing the
legislative process.”62 If these interests were recognized, Frankfurter feared that the courts would
end up “sit[ting] in judgment on the manifold disputes engendered by procedures for voting in
legislative assemblies.”63 Despite these arguments, Justice Frankfurter’s view did not control, and
Coleman is recognized as the first case in which the Supreme Court acknowledged that
legislators’ interest in their votes may constitute an injury that could be vindicated in federal
court.
The Court returned to the issue of legislator standing 30 years later in Powell v. McCormack.64 In
that case, the House Special Subcommittee on Contracts concluded that Congressman Adam
Clayton Powell Jr., the chairman of the Committee on Education and Labor, had deceived House
authorities as to travel expenses.65 After voters nonetheless reelected Representative Powell to the
House of Representatives in 1966, the House adopted a resolution excluding him from taking his
seat, and the House Sergeant at Arms refused to pay Representative Powell his salary.66
Representative Powell sued the Speaker of the House in his official capacity, seeking a
declaratory judgment that his exclusion was unconstitutional, an injunction restraining
respondents from excluding him from the House, and an injunction commanding the Sergeant at
Arms to pay Representative Powell his salary.67 After the Supreme Court elected to take review of
the case, the Congress that had excluded Powell terminated, and Representative Powell was
seated in the House in January 1969.68
The Court concluded that Representative Powell’s case was justiciable.69 In particular, the Court
looked to see if Representative Powell had a “legally cognizable interest” in the outcome of the
case.70 The Court concluded that Representative Powell’s claim for back salary was itself
sufficient to “supply the constitutional requirement of a case or controversy.”71 Powell thus stands
for the proposition that legislators—no less than other individuals—have a personal pecuniary
interest in their salary (and other personal prerogatives of office) that can amount to an injury to
support standing when a defendant threatens that interest.72

60 Id. at 470 (Butler, J., dissenting).
61 Id. at 460 (Frankfurter, J., concurring in the judgment).
62 Id. at 469-70.
63 Id. at 470.
64 395 U.S. 486 (1969).
65 Id. at 489-90.
66 Id. at 490-93.
67 Id. at 494.
68 Id. at 495.
69 Although the Court framed the question as one of mootness—holding that the seating of Representative Powell in the
House in January 1969 did not moot his claim—the Court’s treatment of the issue shows how these justiciability
doctrines can blur together. See, e.g., Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975) (“The standing question . . . bears
close affinity to questions of . . . mootness—whether the occasion for judicial intervention persists.”).
70 Powell, 395 U.S. at 496.
71 Id. at 496-97.
72 The Court also extensively discussed the separation-of-powers issues raised by Powell’s claim under the ambit of
another justiciability doctrine—the political question doctrine. Id. at 518-48. The political question doctrine limits the
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The next case73 concerning legislative standing to come before the Court was 1997’s Raines v.
Byrd.74 Raines concerned a constitutional challenge to the Line Item Veto Act of 1996, which
purported to authorize the President to “cancel” certain spending and tax benefit measures after
they were signed into law.75 The statute provided that “[a]ny Member of Congress or any
individual adversely affected by [the Line Item Veto Act] may bring an action . . . for declaratory
judgment and injunctive relief on the ground that any provision of this part violates the
Constitution.”76 Accordingly, the day after the statute was signed into law, four Senators and two
Members of the House, including Senator Robert Byrd, all of whom had voted against the act,
sued under this provision alleging that the act was unconstitutional.77 Senator Byrd alleged that
the act injured him in his official capacity in three ways: (1) by “alter[ing] the legal and practical
effect of all votes” cast in the future on bills that would be subject to the “line item” veto; (2) by
divesting him of his constitutional role in the repeal of legislation; and (3) by altering the
constitutional balance of powers between the legislative and executive branch.78
The Supreme Court held that Senator Byrd and the other legislators lacked standing to bring their
claims.79 Chief Justice Rehnquist’s opinion for the Court emphasized that the standing inquiry
turns, in part, on “whether the plaintiff is the proper party to bring this suit” and the requirement
that the alleged injury be “particularized.”80 The Court’s opinion also restated the standing
doctrine’s important role in “keeping the Judiciary’s power within its proper constitutional
sphere” and the need to “carefully inquire” as to whether the plaintiffs had a sufficiently personal,
particular, and concrete interest so as to justify a court’s involvement.81 Chief Justice Rehnquist
observed that, in contrast to the plaintiff in Powell, Senator Byrd was not asserting that he was
deprived of anything to which he was personally entitled, such as a salary. Instead, Senator Byrd
was asserting that he had lost power as a result of the statute because it altered the balance of

ability of the federal courts to hear constitutional questions even where other justiciability requirements, such as
standing, ripeness, and mootness, would otherwise be met. See Zivotofsky v. Clinton, 566 U.S. 189, 194-95 (2012) (“In
general, the Judiciary has a responsibility to decide cases properly before it . . . . Our precedents have identified a
narrow exception to that rule, known as the ‘political question’ doctrine.”). The political question doctrine is driven
explicitly by separation-of-powers concerns—in one example, courts generally will find a political question where
there has been a “textually demonstrable constitutional commitment” of a question to another branch. See Baker v.
Carr, 369 U.S. 186, 210 (1962). In Powell, the Court found there was no political question because Article I, Section
5’s statement that “Each House shall be the Judge of the . . . Qualifications of its own Members” only gave Congress
the power to apply the criteria set out in the Constitution, not to invent new criteria—meaning there was no separation-
of-powers concern in overriding the House in this respect. Powell, 395 U.S. at 547-48.
73 In between these cases, the court decided Bowsher v. Synar, 478 U.S. 714 (1986), a case challenging the
constitutionality of the Balanced Budget and Emergency Deficit Control Act brought by Members of Congress as well
as by members of the National Treasury Employees Union. Id. at 720-21. The Court concluded that it did not need to
decide whether the Members independently possessed standing to bring the suit because the members of the union had
standing, which was sufficient to satisfy the standing requirement regardless of whether the Members of Congress
would have had standing to bring the suit by themselves. Id. at 721.
74 521 U.S. 811.
75 Id. at 814-15.
76 Id. at 815-16 (quoting 2 U.S.C. § 692(a)(1) (1996)).
77 Id. at 814-16. The Court considered the standing question, in spite of the statute purporting to give Members a right
to bring the suit in question. As the Court explained, “[i]t is settled that Congress cannot erase Article III’s standing
requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Id. at 820
n.3.
78 Id. at 816.
79 Id. at 818.
80 Id. at 818-19.
81 Id. at 820.
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power between Congress and the President.82 Thus, the individual legislators were, in the
majority’s view, impermissibly attempting to assert an “institutional injury” that they shared in
common with the entire Congress.83 Such injuries, in the form of the dilution of the power of the
legislative body, could not give rise to standing because they were neither concrete—they were
“wholly abstract”—nor were they particularized—they were “widely dispersed.”84
The Court acknowledged that, in Coleman, it had upheld standing for legislators claiming a
similar institutional injury—an interest in the effectiveness of their votes.85 However, unlike the
plaintiffs in Coleman, Senator Byrd was not complaining that some illegal action had prevented
his vote from counting, causing the bill to be passed in spite of his vote.86 Rather, Senator Byrd
had voted, and he had “simply lost that vote.”87 In other words, as the Chief Justice explained,
individual legislators could validly assert the institutional injury in Coleman only because the
Kansas senators’ votes would have actually been enough to defeat the measure at issue, but were
“completely nullified” by the allegedly illegal action.88 Senator Byrd, in contrast, alleged “wholly
abstract and widely dispersed” diminution of his future voting power.89 The Court went on to
explain that Members of Congress had an alternative remedy to their judicial challenge—they
could repeal the Line Item Veto Act.90 Further, the Court noted that the statute was not immune
from other judicial challenges—an individual with a cognizable injury could still bring suit.91
Raines thus greatly limited the ability of individual legislators to sue on behalf of their
institutions. Nevertheless, the 1997 decision reaffirmed Coleman, thereby not completely closing
off the possibility that an individual legislator could assert an institutional injury.92
In Raines, the Court found it “of some importance” that the various houses of Congress did not
authorize Byrd and the other plaintiffs to bring the suit.93 Although Congress had created a right
to challenge the statute’s constitutionality in the Line Item Veto Act itself, the plaintiffs had
brought their suit only on their own behalf, and the plaintiffs’ respective houses of Congress as a
whole had opposed it on the merits.94 This factor would turn out to be decisive in the next
legislative standing case to come before the Court,95 Arizona State Legislature v. Arizona

82 Id. at 820-21.
83 Id. at 821.
84 Id. at 829.
85 Id. at 821-22.
86 Id. at 824.
87 Id.
88 Id. at 824-25.
89 Id. at 829.
90 Id.
91 Id. The Court would go on to strike down the Line Item Veto Act in Clinton v. City of New York, 524 U.S. 417
(1998). In that case, the Court held that the City of New York, among others, had standing to challenge a particular
cancellation under the Act. Id. at 425.
92 See Raines, 521 U.S. at 823-24 & n.8.
93 Id. at 829.
94 Id.
95 In 2013, the Supreme Court decided United States v. Windsor, 570 U.S. 744 (2013), in which the Court permitted the
Bipartisan Legal Advisory Group to intervene on behalf of the House of Representatives and defend the
constitutionality of the Defense of Marriage Act in lieu of the executive branch. In that case, discussed in greater detail
infra, the majority sidestepped the standing question but several dissenting Justices adopted competing conceptions of
legislative standing to assert an institutional injury. Justice Scalia, joined in relevant part by Chief Justice Roberts and
Justice Thomas, contended that Congress cannot “pop immediately into court, in [its] institutional capacity, whenever
the President . . . implements a law in a manner that is not to Congress’s liking.” Id. at 789 (Scalia, J., dissenting).
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Independent Redistricting Commission.96 In that case, the Arizona state legislature—as a whole—
sued the Arizona Redistricting Commission (Commission), an independent commission vested by
popular initiative with the authority to draw redistricting maps for congressional districts.97 The
Arizona legislature sought to challenge the map adopted by the Commission for the 2012
elections as unconstitutional. 98 The Arizona legislature argued that, under the Elections Clause of
the Constitution, the “Legislature” of a state had to have “primary responsibility” to set the
manner of elections, and the Commission did not qualify as a legislature.99
The Court concluded that, in contrast with the individual Member plaintiffs in Raines, the
Arizona legislature had standing. The Court found that the key difference between the Arizona
legislature and the plaintiffs in Raines was that the former was “an institutional plaintiff asserting
an institutional injury [that had] commenced this action after authorizing votes in both of its
chambers.”100 The problem with the individual Members asserting institutional injury in Raines,
as the Arizona State Legislature Court saw it, was that the injury was “widely dispersed,” and no
plaintiff in the 1997 case could “tenably claim a personal stake in the suit.”101 In contrast with
Raines, the Court concluded, Arizona State Legislature was closer to the Coleman facts, in that
the Commission’s authority “completely nullif[ied]” any vote by the legislature purporting to
adopt a redistricting plan—and that injury was adequately particularized to the plaintiff that was
bringing the suit.102 Importantly, however, the Court stated in a footnote that the standing inquiry
might have been different had the suit involved Congress mounting a legal challenge to the
President, which would have raised “separation-of-powers concerns absent here.”103
A few key principles can be drawn from this line of Supreme Court cases. With respect to cases
brought by individual legislators, Raines drew a fundamental distinction between so-called
“institutional injury” and the sort of personal injury that was at issue with the plaintiff’s lost
salary in Powell.104 As the Court would go on to explain in Arizona State Legislature, an
“institutional injury” is an injury that “scarcely zeroe[s] in on any individual member,” but rather
“impact[s] all Members of Congress and both Houses . . . equally.”105 The Arizona State
Legislature court, interpreting Raines, explained that individual legislators generally cannot assert
institutional injuries: “[h]aving failed to prevail in their own Houses, the suitors [in Raines] could
not repair to the Judiciary to complain.”106 However, Raines also determined that there was an

According to this view, Congress may not “hale the Executive before the courts” merely “to correct a perceived
inadequacy in the execution of its laws;” instead, a legislative plaintiff possesses standing only to vindicate interests
that are unique to Congress. Id. Justice Alito, by contrast, took the slightly broader view that Congress potentially
possesses standing to participate in federal litigation whenever it faces “impairment” of its “central [legislative]
function,” as may occur if the executive branch opts not to defend a federal statute from a constitutional challenge. Id.
at 805 (Alito, J., dissenting). This report analyzes these competing positions in greater detail infra at “Congressional
Intervention to Defend a Statute’s Constitutionality: Adversity and Standing Issues.”
96 135 S. Ct. 2652 (2015).
97 Id. at 2658.
98 Id. at 2658-59 (citing U.S. CONST. art. I, § 4, cl. 1).
99 Id. at 2663.
100 Id. at 2664.
101 Id. (internal quotation marks omitted).
102 Id. at 2665.
103 Id. at 2665 n.12.
104 Raines v. Byrd, 521 U.S. 811, 820-21 (1997).
105 Arizona State Legislature, 135 S. Ct. at 2664.
106 Id.
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exception to this general rule based on the Court’s holding in Coleman v. Miller, “[t]he one case
in which [the Court] upheld standing for legislators . . . claiming an institutional injury.”107 The
Court justified this exception because the plaintiffs in Coleman, if they had been correct on the
merits of their claim, would have been in a situation where “their votes not to ratify the
amendment were deprived of all validity.”108 The challenge, then, for any individual legislator
asserting an institutional injury is to show that the asserted injury is analogous to the “vote
nullification” that took place in Coleman.109 These principles will be discussed in the next section.
Individual Legislators and Standing in the
Lower Courts
Institutional Injury
Much of the lower court case law on legislative standing has focused on when an individual can
assert an institutional injury akin to the injury asserted by the plaintiffs in Coleman. The courts
inside and outside the D.C. Circuit110 have taken slightly different approaches to analyzing this
question.
The District of Columbia Circuit
Because Members of Congress serve in the federal government in Washington, D.C., and because
the District is also the site of executive branch actions that could be the subject of a congressional
lawsuit, such cases are often initiated in D.C. federal court. As a result, the federal appellate body
in D.C., the D.C. Circuit—often referred to as the second most important court in the
country111—has a significant influence over the case law concerning congressional standing.112
In a pair of cases following Raines, the D.C. Circuit considered when individual Member
plaintiffs can assert institutional injuries: the 1999 case Chenoweth v. Clinton,113 and the 2000
case Campbell v. Clinton.114 In Chenoweth, three Members of the House sued to enjoin the
American Heritage Rivers Initiative (AHRI), a program promulgated by executive order that
required certain federal agencies to support local efforts to preserve certain historically significant
rivers and riverside communities.115 The Member plaintiffs argued that the AHRI violated the
Constitution by depriving them of their constitutional role in the passage of legislation by creating

107 521 U.S. at 821.
108 Id. at 822.
109 Id. at 826 (“There is a vast difference between the level of vote nullification at issue in Coleman and the abstract
dilution of institutional legislative power that is alleged here.”).
110 This report references a significant number of decisions by federal appellate courts of various regional circuits. For
purposes of brevity, references to a particular circuit in the body of this report (e.g., the D.C. Circuit) refer to the U.S.
Court of Appeals for that particular circuit.
111 See, e.g., Richard J. Pierce, Jr., The Special Contributions of the D.C. Circuit to Administrative Law, 90 GEO. L.J.
779, 779 (2002).
112 See infra.
113 181 F.3d 112 (D.C. Cir. 1999).
114 203 F.3d 19 (D.C. Cir. 2000).
115 181 F.3d at 112-13.
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the AHRI via executive order.116 The Members argued that their injury was more severe than the
injury at stake in Raines because the President’s action had “denied Members of Congress any
opportunity to vote for or against the AHRI.”117 The D.C. Circuit disagreed, concluding instead
that the injury asserted by the plaintiffs in Chenoweth was fundamentally the same as that
asserted in Raines—that their injury was an “alter[ation] [in] the constitutional balance of powers
between the Legislative and Executive Branches.”118 Further, the court observed that here, as in
Raines, it was “uncontested that the Congress could terminate the AHRI were a sufficient number
in each House so inclined,” meaning that, as in Raines, Congress had a legislative remedy.119 The
Chenoweth court acknowledged that, following Coleman, it might be a different case if the
Representatives alleged that the necessary majorities in Congress had voted to block the AHRI.120
In such a case, legislators could argue that their votes had been “effectively nullified,” but
because plaintiffs in Chenoweth made no such allegations, the court dismissed the case for want
of standing.121
The second of the influential post-Raines D.C. Circuit decisions is Campbell v. Clinton, decided
the year after Chenoweth.122 That case challenged the legality of the United States’ involvement
in NATO air and cruise missile attacks in Yugoslavia.123 Prior to the lawsuit, Congress had voted
on four resolutions related to the conflict, including an “authorization” of the air strikes that failed
by a tie vote, 213-213, and a declaration of war that failed 427-2.124 Congress also voted against
requiring the President to immediately end U.S. participation in the conflict and voted to fund the
involvement.125 After these votes, the plaintiffs, 31 Members of Congress who were opposed to
U.S. military involvement filed suit, alleging that the President’s use of American forces violated
the Constitution’s War Powers Clause and the War Powers Resolution.126 Representative Tom
Campbell and the other Member plaintiffs argued that the Executive’s action had “completely
nullified” the tie vote against the airstrikes and the vote against the declaration of war, equating
themselves to the Kansas senators in Coleman.127
The D.C. Circuit disagreed, concluding that the reason the Coleman plaintiffs’ votes had been
“nullified” was because of the unique context of a vote against a constitutional amendment,

116 Id. at 113.
117 Id. at 116.
118 Id.
119 Id.
120 Id. at 117.
121 Id. at 116-17. Prior to Raines, the D.C. Circuit had developed a complex edifice of case law surrounding legislative
standing, essentially separating standing analysis from a doctrine of “equitable discretion,” which allows a court to
decline to hear a case when necessary to avoid an “intrusion by the judiciary into the legislative arena.” See id. at 114
(citing Riegle v. Fed. Open Mkt. Comm., 656 F.2d 873, 881 (D.C. Cir. 1981)). In Chenoweth, the D.C. Circuit
recognized that significant portions of these cases were “untenable” after Raines, which left “no room” for the “broad
theory of legislative standing” adopted in previous cases and likely required the court to merge its standing and
equitable discretion doctrines. See id. at 115-16 (citing Moore v. U.S. House of Representatives, 733 F.2d 946 (D.C.
Cir. 1984) and Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974)). But see Blumenthal v. Trump, 335 F. Supp. 3d
45, 59 (D.D.C. 2018) (suggesting that Kennedy remains “good law”).
122 203 F.3d 19 (D.C. Cir. 2000).
123 Id. at 20.
124 Id.
125 Id.
126 Id. (citing U.S. CONST. art. I, § 8, cl. 11 and 50 U.S.C. §§ 1541 et seq.).
127 Id. at 22.
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which left them without any alternative remedy.128 The appellate court argued that, in Coleman,
the Kansas senators were in a unique position because they were “powerless” to rescind the
ratification by legislative action—according to the court, it was “not at all clear” whether the
ratification could have been rescinded once it was deemed ratified.129 The court saw Raines as
having attached critical importance to this absence of legislative remedy; this fact is what
“nullified” the Kansas senators’ votes and supplied the necessary concrete injury.130 In contrast,
the Campbell plaintiffs had several legislative remedies, including the power to withdraw
appropriations and impeachment.131 As a result, the court concluded that their vote had not been
“nullified” in the same manner as the Coleman plaintiffs. Rather, the court viewed the Campbell
plaintiffs’ argument to essentially be that the President acted illegally in excess of his
constitutional authority and in violation of a statute.132 As a result, the circuit court determined
that the case was indistinguishable from Raines, and the plaintiffs had not suffered a concrete and
particularized injury.
Following these precedents, the trial courts in the D.C. Circuit have generally been hesitant to
find concrete and particularized injury in cases involving individual legislators asserting
institutional injuries, especially where the legislature as a whole possessed other potential
avenues for relief through the legislative process. For example, in 2002, the court concluded that
32 Members of the House of Representatives lacked standing to challenge President George W.
Bush’s unilateral withdrawal from 1972’s Anti-Ballistic Missile Treaty.133 As in Campbell, the
court emphasized the “widely dispersed” nature of the injury and the “extensive self-help”
remedies available to Congress that could be used to remedy the President’s allegedly illegal
actions, such as the appropriations power, or, as a last resort, impeachment.134 The court
concluded that the availability of these alternate remedies, combined with the fact that Congress
as a whole had not authorized these individual Members to represent its interests in federal
litigation, demonstrated that the plaintiffs could not assert the institutional injury alleged.135
Similarly, in a 2011 case, a D.C. district court determined that 10 Members of the House lacked
standing to challenge President Obama’s alleged violation of the War Powers Clause of the
Constitution and the War Powers Resolution.136 In that case, the plaintiffs alleged that the
President had pursued military action in Libya without seeking any approval from Congress and
had spent funds on an “unauthorized war.”137 The court, again following Campbell, emphasized
that “nullification necessitates the absence of a legislative remedy” and found that the plaintiffs
had “voted on essentially what the plaintiffs now ask this Court to award . . . . Thus, the plaintiffs’
votes were given full effect. They simply lost that vote.”138

128 Id. at 23-24.
129 Id. at 23.
130 Id.
131 Id.
132 Id. at 22.
133 Kucinich v. Bush, 236 F. Supp. 2d 1, 2 (D.D.C. 2002).
134 Id. at 10-11.
135 Id. at 12. The court also concluded that the case presented a nonjusticiable political question. Id. at 14-18
(concluding that judicial action would “simply encourage congressmen to run to court any time they disagreed with
Presidential action”).
136 Kucinich v. Obama, 821 F. Supp. 2d 110, 112 (D.D.C. 2011).
137 Id. at 113-14.
138 Id. at 120 (quoting Raines v. Byrd, 521 U.S. 811, 824 (1997)) (internal quotation marks omitted).
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The one post-Raines ruling from a D.C. district court to reach a contrary conclusion and find
legislative standing was the 2018 case Blumenthal v. Trump.139 The plaintiffs in Blumenthal—
approximately 201 minority Members of the Senate and House—alleged that President Donald
Trump, by receiving benefits from his business entities’ dealings with foreign governments, had
violated the Foreign Emoluments Clause of the Constitution, which prohibits persons holding
certain offices from receiving any “present, Emolument, Office, or Title, of any kind whatever,
from any King, Prince, or foreign State.”140 Plaintiffs sought declaratory as well as injunctive
relief preventing the President from accepting any further emoluments without the consent of
Congress.141 The plaintiffs argued that they had suffered injury because the President’s conduct,
in allegedly accepting emoluments and failing to submit those emoluments to Congress, had
nullified their votes by “den[ying] them a voting opportunity to which the Constitution entitles
them.”142
The district court reasoned that, although this injury was an institutional injury dispersed among
all Members of Congress, it nonetheless was comparable to the injury upheld in Coleman because
the plaintiffs in Blumenthal, like the plaintiffs in Coleman, were not complaining about dilution
of legislative power, but rather about the complete nullification of their votes.143 This distinction
turned decisively on the plaintiffs’ lack of a legislative remedy.144 The Blumenthal court
contrasted the case with Raines and Chenoweth, in which the plaintiffs “either lost the vote in
Congress or did not have the political influence to bring their bill to a vote.”145 By contrast, in the
view of the district court, Senator Blumenthal and the other Member plaintiffs lacked any
legislative means to remedy their complaints because the President never provided them with the
opportunity to approve the emoluments in the first place.146 Although the defendants suggested
several potential nonjudicial remedies, such as a vote by Congress rejecting specific supposed
emoluments, or a bill defining emoluments and prohibiting the receipt of them, the court went on
to reject all of these proposed possible legislative remedies as inadequate, asserting that none
would require the President to submit his emoluments for congressional consent for prior
approval or even force him to provide information about future emoluments to Congress.147
Further, the court determined that appropriations remedies that the D.C. Circuit saw as adequate
in Campbell and Chenoweth would not work in this case, as there are no federal appropriations

139 335 F. Supp. 3d 45 (D.D.C. 2018). For more details on the merits of this case, see CRS In Focus IF11086, The
Emoluments Clauses of the U.S. Constitution, by Kevin J. Hickey and Michael A. Foster. The government has asked
the district court for permission to immediately appeal its ruling that the plaintiffs have standing to sue. See
Defendant’s Motion for Certification of the Court’s Sept. 28, 2018 Order Pursuant to 28 U.S.C. § 1292(b), Blumenthal
v. Trump, 335 F. Supp. 3d 45 (D.D.C. 2018) (No. 1:17-CV-01154). As of the date of this report, the court has not yet
ruled on the government’s request.
140 Blumenthal, 335 F. Supp. 3d at 50 (quoting U.S. CONST. art. I, § 9, cl. 8 (“No Title of Nobility shall be granted by
the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the
Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign
State.”)).
141 Id.
142 Id. at 54.
143 Id. at 63-64.
144 Id. at 66.
145 Id.
146 Id.
147 Id. at 67-68.
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associated with the President’s alleged receipt of emoluments.148 Finally, the court concluded that
impeachment was too “extreme” to be considered an adequate remedy.149
Institutional Injury to Individual Legislators Outside the D.C. Circuit
Whereas the D.C. Circuit and the U.S. District Court for the District of Columbia have generally
concluded that whether individual legislators possess standing largely turns on the availability of
alternative legislative remedies,150 other circuits considering the question have not arrived at the
same consensus. These courts have generally viewed the Coleman exception even more narrowly
than the D.C. Circuit, further limiting the availability of legislative standing.151
In Baird v. Norton, for example, the Sixth Circuit ruled that Members of the Michigan state
legislature lacked standing to challenge the procedures followed by their legislature in approving
certain gaming compacts between the State of Michigan and Indian tribes.152 The plaintiffs
alleged that the legislature had unlawfully approved the gaming compacts without complying
with certain procedural safeguards required by the Michigan Constitution.153 First, the court held
that the procedural harm inflicted by this neglect of constitutional procedures was only a
“generalized grievance shared by all Michigan residents” and could not give rise to standing.154
Second, in response to the argument that the use of these procedures had “nullified” the plaintiffs’
votes in the legislature, the court, analyzing Raines and Coleman, concluded that “[f]or legislators
to have standing as legislators, then, they must possess votes sufficient to have either defeated or
approved the measure at issue.”155 As this court read Coleman, standing required that the lawsuit
be joined by sufficient members of their respective houses to defeat the legislation in order to

148 Id. at 68.
149 Id. The court acknowledged that its holding was at least somewhat in tension with a previous D.C. District Court
case, Kucinich v. Bush, 236 F. Supp. 2d 1 (2002), which, as explained above, had concluded that Members of Congress
did not have standing to sue the President about the President’s unilateral withdrawal from a treaty. See Blumenthal,
335 F. Supp. 3d at 61 n.7. The Blumenthal court justified this by arguing that Kucinich “did not discuss whether the
plaintiffs’ votes had been nullified.” Id. While the Kucinich case did not discuss ‘nullification’ explicitly in those terms,
the case did discuss Campbell and concluded that Representative Dennis Kucinich and the other Members plaintiffs
had “extensive” self-help remedies available. Kucinich, 236 F. Supp. 2d at 10. The court argued, for example, that
though the appropriations power or legislation could not be used directly to affect the President’s withdrawal from the
treaty, it could be used to “influence the President’s actions.” Id. at 10-11. The difference between Kucinich and
Blumenthal appears to be driven, at least in part, by the judges’ differing views on the effectiveness of such indirect
legislative remedies in these different contexts.
150 See, e.g., Campbell v. Clinton, 203 F.3d 19, 23 (D.C. Cir. 2000) (characterizing Coleman as “narrow . . . exception”
to Raines that applies only when votes are “nullified” but does not apply to situations where Congress “enjoy[s] ample
legislative power”). But see Cummings v. Murphy, 321 F. Supp. 3d 92, 112 (D.D.C. 2018) (arguing that “[t]his court is
not of the view that complete vote nullification is the only instance in which an individual legislator can assert
institutional injury” and analyzing historical practice, congressional authorization, and alternative remedies in
determining whether institutional injury is sufficiently concrete and particularized).
151 The Third Circuit has seemingly, albeit in a different context, adopted the view of the D.C. Circuit that the
availability of an alternative legislative remedy is the key factor in considering legislative standing. In Russel v.
DeJongh, 491 F.3d 130, 135-36 (3d Cir. 2007), a Virgin Islands senator sought to sue the governor over his alleged
failure to timely submit nominations to the Islands’ Supreme Court. Id. The court held that there was no standing
because the Virgin Islands’ legislature “was free to confirm, reject, or defer voting on the Governor’s nominees.” Id. at
136. The court concluded that this alternative legislative option took the plaintiffs’ injury out of the category of “vote
nullification.” Id.
152 266 F.3d 408, 409-10 (6th Cir. 2001).
153 Id. at 411.
154 Id.
155 Id. at 412.
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show that actual nullification occurred.156 Because the legislators in Baird could not make that
showing, the court concluded that they lacked standing without examining the availability of
alternative legislative remedies.157
Reading Raines even more narrowly, the Tenth Circuit has concluded that individual legislators
can never bring suit to assert institutional injuries.158 In Kerr v. Hickenlooper, on remand to the
Tenth Circuit after the Supreme Court’s decision in Arizona State Legislature,159 the court
considered whether then-current Colorado state legislators could have standing to challenge an
amendment to the Colorado Constitution that required voter approval in advance for new taxes.160
The Tenth Circuit had previously concluded that the legislators had standing because this
amendment “deprive[d] them of their ability to perform the legislative core functions of taxation
and appropriation,” rendering their votes “advisory.”161 On remand, however, the court changed
its view, and read Raines and Arizona State Legislature together to conclude that “individual
legislators may not support standing by alleging only an institutional injury,” which only
institutional plaintiffs like the Arizona state legislature could assert.162 Arizona State Legislature,
the court determined, had changed the law such that the nature of the injury—whether it was
personal or institutional—was the determinative factor.163 The Tenth Circuit concluded that
Coleman, which Raines had characterized as an institutional injury case, was in fact a case
involving a “personal” injury to the senators whose votes were allegedly nullified.164 This injury
was not, in the Tenth Circuit’s view, “institutional” as the Supreme Court used that term in
Arizona State Legislature because institutional injuries necessarily affect all members of a
legislature in equal measure, and in Coleman, the only injured legislators were those who had
their votes nullified.165 As a result, the court concluded that the plaintiffs in Kerr had asserted
only institutional injuries to the power of the legislature, and they accordingly lacked standing.166
The views on institutional injuries announced in Baird and Kerr appear to contrast with the
somewhat more receptive standard that has developed in the D.C. Circuit. In both Baird and Kerr,
the court interpreted the standing upheld in Coleman, the so-called vote nullification injury, as
being about the deprivation inflicted on individual legislators by virtue of their vote being
defeated by the allegedly unlawful action.167 In contrast, after Campbell, the D.C. Circuit has

156 Id. at 412-13.
157 Id. at 413. The Sixth Circuit reaffirmed Baird’s holding in its 2017 decision in Crawford v. United States Dep’t of
the Treasury, 868 F.3d 438, 453-54 (6th Cir. 2017). There, Senator Rand Paul sought to sue the Executive to enjoin the
implementation of the Foreign Account Tax Compliance Act by way of intergovernmental agreements, which he
alleged the Executive should have submitted to the Congress for approval, thus depriving him of his constitutional right
to vote for or against the agreements. Id. at 444. Relying on Baird, the Court held that Senator Paul lacked standing
because he lacked the votes sufficient to repeal the Act in question. Id. at 454.
158 Kerr v. Hickenhooper, 824 F.3d 1207, 1216-17 (10th Cir. 2016).
159 Id. at 1213 (citing Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015)).
160 Id. at 1211.
161 Id. at 1212 (quoting Kerr v. Hickenlooper, 744 F.3d 1156 (10th Cir. 2014), vacated sub nom., 135 S. Ct. 2927
(2015)).
162 Id. at 1214.
163 Id. at 1217.
164 Id. at 1215.
165 Id.
166 Id. at 1217.
167 See id. at 1216-17 (“[T]he legislator-plaintiffs allege . . . that they have been individually disempowered only
concomitantly as a result of [the Amendment’s] diminution of the General Assembly’s authority as an institution.”);
Baird v. Norton, 266 F.3d 408, 413 (6th Cir. 2001) (“Under Raines and Coleman, the issue is whether Baird can
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focused on the lack of a legislative remedy and whether the legislature as a whole continues to
enjoy “ample legislative power” to remedy the alleged wrong.168
Personal Injury
As the Supreme Court explained in Raines, there may be fewer obstacles for legislators to sue for
“something to which they are personally” entitled, such as the loss of salary claimed by
Representative Powell in Powell v. McCormack.169 This section examines how lower courts have
distinguished between “personal” and “institutional” injuries and the other justiciability
considerations that have been applied to injuries that were undoubtedly personal.
Distinguishing Personal from Institutional Injuries
In Raines and Arizona State Legislature, the alleged injuries were clearly institutional because the
alleged wrongful conduct represented diminution in the power of the legislature as a whole,
affecting “all Members of Congress and both Houses . . . equally.”170 However, it is possible for
an injury to have apparently unequal effects within the legislature but nonetheless be
“institutional.” Best illustrating this principle is a pair of cases from different districts considering
claims brought under 5 U.S.C. § 2954—which provides that executive agencies, on request of the
House Committee on Oversight and Reform or the Senate Homeland Security and Governmental
Affairs Committee, or “any seven members thereof,” “shall submit any information requested of
it relating to any matter within the jurisdiction of the committee.”171 Known as the “Seven-
Member Rule,”172 this statute authorizes Members of the minority party to obtain information
from the administration, but does not provide explicitly for judicial enforcement.173
In Waxman v. Thompson, a 2006 case out of the Central District of California, 18 Members of the
House sued under Section 2954 after they had received an allegedly incomplete response from the
Executive to their demand for documents relating to the anticipated cost of the Medicare
Prescription Drug and Modernization Act of 2003.174 The court determined that the plaintiffs had
not shown that their vote had been nullified within the meaning of Coleman—plaintiffs had

demonstrate that her vote was sufficient to defeat the compacts had the constitutionally required procedure been
followed. Because Baird cannot do so, she lacks standing.”). See also Corman v. Torres, 287 F. Supp. 3d 558, 568
(M.D. Pa. 2018) (holding that state legislative leaders had no standing to challenge state supreme court’s redrawing of
election districts as usurpation of authority under Elections Clause; observing important fact that legislative leaders
could not command two-thirds majority necessary in both chambers to override a gubernatorial veto, and that “[t]wo
votes could not on their own have defeated or enacted any proposed remedial redistricting legislation”).
168 Campbell v. Clinton, 203 F.3d 19, 22-23 (D.C. Cir. 2000).
169 Raines v. Byrd, 521 U.S. 811, 820-21 (1997) (citing Powell v. McCormack, 395 U.S. 486, 496 (1969)).
170 Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2664 (2015) (quoting Raines, 521
U.S. at 829).
171 5 U.S.C. § 2954.
172 See, e.g., Nolan D. McCaskill, House Democrats File Lawsuit over Access to Trump Hotel Documents, POLITICO
(Nov. 2, 2017), https://www.politico.com/story/2017/11/02/trump-hotel-documents-lawsuit-244455.
173 5 U.S.C. § 2954.
174 No. CV 04-3467 MMM (MANx), 2006 WL 8432224, at *12 (C.D. Cal. July 24, 2006). In Waxman v. Evans, No.
CV014530LGB(AJWX), 2002 WL 32377615, at *1(C.D. Cal. Jan. 18, 2002), a different judge in the Central District
of California granted summary judgment in favor of similar legislative plaintiffs on a similar claim brought under the
Seven-Member Rule. However, the court did not discuss standing in its opinion. See id. at *1-10. The Ninth Circuit
later vacated this decision on other grounds. See Waxman v. Evans, 52 F. App’x 84 (9th Cir. 2002) (holding that action
was moot in light of Carter v. United States Department of Commerce, 307 F.3d 1084 (9th Cir. 2002)).
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alleged only that they “ha[d] been required to vote and legislate without full access to
information.”175 The plaintiffs, however, argued that their injury was personal, not institutional,
because they had a “distinct legal entitlement not shared by all Members of Congress.”176 The
court disagreed. Rather, the court explained, the right the plaintiffs asserted “runs with their
congressional and committee seats.”177 Their injury, in the view of the court, was not an injury to
themselves personally, but an injury to “Congress, on whose behalf they acted,” and it was the
same type of institutional injury that the Supreme Court deemed insufficient to confer standing in
Raines.178
This same issue arose again in 2018, in the case Cummings v. Murphy in the U.S. District Court
for the District of Columbia.179 As in Waxman, the Cummings plaintiffs were minority Members
of the House Oversight Committee who sought documents from an executive agency under
Section 2954.180 The court observed that the “Plaintiffs tie[d] their injury directly to their
constitutional duties as legislators, claiming their alleged harm to be impedance of the oversight
and legislative responsibilities that have been delegated to them by Congress” and that the injury
alleged ran “in a sense with the Plaintiff’s seat.”181 Despite these facts, the plaintiffs argued, as in
Waxman, that because their injury was not shared by all Members of Congress equally, their
injury was not institutional in nature.182 The court disagreed. Relying on Raines, the court
concluded that the plaintiffs’ injury was institutional because it was “rooted in a right granted to
them as Members of Congress.”183 Further, because any violation of the “Seven-Member Rule”
was an institutional injury, the court determined that, although the Member plaintiffs had a
“stronger case” for standing than the plaintiffs had in Raines, historical practice, a lack of
congressional authorization, and the availability of alternative remedies demonstrated that the
injury was too “wholly abstract” and “widely dispersed” to confer standing on an individual
Member.184
These cases make clear that the difference between a “personal” and an “institutional injury” does
not hinge on the issue of particularization. Rather, the difference is the source of the right that has
been violated. The Seven-Member Rule cases demonstrate that, even where an injury has a
particular effect on certain Members, it can nonetheless be insufficiently “concrete” under Raines
if the Member’s injury does not deprive him of something to which he is personally entitled.185 In
other words, where the right alleged to have been violated is tied to a right granted to a plaintiff

175 2006 WL 8432224, at *7.
176 Id. at *8 (internal quotation marks omitted).
177 Id. at *11.
178 Id. at *12.
179 321 F. Supp. 3d 92 (D.D.C. 2018). Notably, the plaintiffs in Cummings have appealed the district court’s order
dismissing their claims on standing grounds to the D.C. Circuit. Notice of Appeal, Cummings v. Murphy, No. 18-5305
(D.C. Cir. Oct. 16, 2018). As of the date of this report, the D.C. Circuit has not yet ruled on the Members’ appeal. The
parties’ final briefs are due on May 22, 2019.
180 321 F. Supp. 3d at 95-96.
181 Id. at 108 (internal quotation marks omitted).
182 Id. at 109.
183 Id.
184 Id. at 112-17. Unlike the cases discussed above, which generally treat Coleman as the sole exception to Raines, the
court in Cummings read Raines differently to determine that “complete nullification is [not] the only instance in which
an individual legislator can assert institutional injury.” Id. at 112. Despite this, the court still concluded that the
plaintiffs had fallen short of showing standing based on the factors listed above. Id. at 112-17.
185 Id. at 109-110.
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“as [a] Member[] of Congress,” all of Congress is harmed equally, as a diminution of that right
affects the institution as a whole, even if it is only a single Member who is asserting that right at a
given moment.
Personal Injury Must Comply with Traditional Standing Requirements
Even if a legislator alleges an injury that seems to be genuinely “personal” rather than
“institutional,” that injury must nonetheless meet the typical standing requirements of
particularization and concreteness.186 Further, that injury must be likely and imminent as opposed
to merely speculative, causally connected to the challenged action, and redressable by the
court.187 A number of cases illustrate how an alleged injury to legislators can fail to meet these
requirements.
For example, post-Raines, federal courts of appeals have generally concluded that a mere
possibility of electoral or reputational harm to a legislator is too speculative to support Article III
standing.188 In Schaffer v. Clinton, the Tenth Circuit dismissed a claim brought by Representative
Bob Schaffer, a Member of Congress who alleged that the cost of living adjustment (COLA) in
the Ethics Reform Act of 1989 violated the 27th Amendment to the Constitution.189
Representative Schaffer, who received an increase in pay based on the COLAs, argued that they
were “damaging to his political position and his credibility among his constituency” because the
COLAs involved paying him with monies allegedly “appropriated unconstitutionally.”190 This
argument relied heavily on a pre-Raines D.C. Circuit case, Boehner v. Anderson.191 In Boehner,
the D.C. Circuit had concluded that Congressman John Boehner had standing to challenge the
COLAs based on his claim that it undermined his “political position.”192 However, as the Tenth
Circuit observed, this case predated Raines, and its analysis was “cursory.”193 Rejecting Boehner,
the Tenth Circuit concluded that Congressman Schaffer’s asserted injury was supported by no
concrete evidence of reputational injury and was much like the injury rejected in Raines—an

186 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
187 Id.
188 At least one court has concluded that legislators attempting to assert injuries as a representative of their constituents
lack a sufficiently concrete injury. In the 2002 case Kucinich v. Defense Finance & Accounting Service, 183 F. Supp.
2d 1005 (N.D. Ohio 2002), Congressman Kucinich sued an agency of the Department of the Defense, alleging that it
had violated federal law and the Constitution by awarding a contract that would have caused displacement of workers
and job losses in his district. Id. at 1006. The court concluded that because allowing Representatives to challenge
executive action on behalf of their constituents would raise “grave separation-of-powers dangers,” Congressman
Kucinich’s remedy resided with Congress. Id. at 1011-12.
189 Schaffer v. Clinton, 240 F.3d 878, 880 (10th Cir. 2001). The 27th Amendment states that “No law, varying the
compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives
shall have intervened.” U.S. CONST. amend. XXVII.
190 Schaffer, 240 F.3d at 885. Congressman Schaffer also raised two other arguments, neither of which was sufficient to
give rise to standing. First, he argued that he was harmed by “personal offense,” but generally speaking, the
“psychological consequence presumably produced by observation of conduct with which one disagrees” is not a
sufficient injury to convey Article III standing. Id. at 884. Second, he argued that the COLAs harmed him
“professionally” because they affected his pay. Id. However, the court held that this alleged injury did not suffice
because the COLAs increased his pay, not decreased it. Id. at 884-85.
191 30 F.3d 156 (D.C. Cir. 1994).
192 Id. at 160.
193 Schaffer, 240 F.3d at 886.
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abstract claim that applied to every Member of Congress.194 As a result, the injury alleged was
insufficiently concrete and particularized to give rise to standing.195
Another pair of cases illustrates how alleged injuries to legislators can fail to meet standing
requirements on causation and redressability, even if the injuries alleged are seemingly
sufficiently concrete and particular. The first of these cases is a 2018 case from the Middle
District of Pennsylvania, Corman v. Torres.196 Corman involved a challenge brought by several
parties to the Pennsylvania Supreme Court’s 2018 decision to strike the 2011 redistricting map
and issue its own replacement map.197 Among the challengers were eight Republican Members of
Pennsylvania’s delegation to the U.S. House of Representatives, who challenged the
Pennsylvania Supreme Court’s decision as a violation of the Elections Clause of the
Constitution.198 The Members argued that they were injured by the alterations to their districts,
thereby reducing their incumbency advantage, and by wasting time, energy, and resources
expended in their former districts.199 The court set aside the question of whether these injuries
were sufficiently concrete and particular, but nonetheless observed that no case supported “the
proposition that an elected representative has a legally cognizable interest in the composition of
his or her electoral district.”200 Irrespective of this question, the court concluded that the
Members’ claim failed on the causation prong of standing. Because the plaintiff Members
conceded that the state supreme court had the authority to order the redrawing of the redistricting
map, they could not trace their injuries to the substantive decisions that actually led to the court-
drawn map:
Even if the Pennsylvania Supreme Court had simply ordered that a new redistricting map
be drawn, but had given the General Assembly free substantive rein . . . to accomplish that
objective, the . . . injury would persist. In that circumstance, the court would not have
committed any of the improprieties alleged in the verified complaint, but district
boundaries would still have changed.201
The court concluded that the plaintiffs could not bridge this “gap” in the causal chain and
dismissed the Members’ claims.202
Another case in which a legislator’s purported claims could not overcome the second two
elements of the standing inquiry is Rangel v. Boehner, a 2013 case out of the District Court for

194 Id. at 885-86.
195 Id. The Seventh Circuit explicitly joined this analysis, and rejected Boehner, in Johnson v. United States Office of
Personnel Management, 783 F.3d 655, 666-69 (7th Cir. 2015). In Johnson, Senator Ron Johnson sought to challenge
an OPM rule allowing members of Congress and their staffs to take advantage of an Affordable Care Act insurance
exchange reserved for small businesses. Id. at 658. The court concluded that “[t]he possibility of electoral or
reputational harm, therefore, is much too ‘conjectural or hypothetical’ to establish Article III standing.” Id. at 669
(quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).
196 287 F. Supp. 3d 558 (M.D. Pa. 2018).
197 Id. at 561.
198 Id. See also supra text accompanying note 167 (discussing the standing of the state legislators who brought the
challenge).
199 Corman, 287 F. Supp. 3d at 569. The Supreme Court “assum[ed], without deciding” that a similar injury was legally
cognizable in Wittman v. Personhuballah, 136 S. Ct. 1732, 1737 (2016). However, the Court in that case dismissed the
Members’ claim because they submitted no evidence establishing their alleged harm. Id.
200 287 F. Supp. 3d at 570.
201 Id. at 571.
202 Id.
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the District of Columbia.203 Rangel arose out of disciplinary proceedings and a vote of censure
against Congressman Charles Rangel.204 Representative Rangel alleged that certain improprieties
had colored the proceedings of the Ethics Committee that had investigated him. He sued officials
of the House, but not the House itself, seeking declaratory relief and an injunction requiring the
defendants to “remove the recording of censure.”205 Representative Rangel claimed four separate
injuries that he argued gave rise to standing: damage to his reputation,206 the loss of his status on
the House Ways and Means Committee,207 “political injury,”208 and a violation of his due process
rights.209 On these alleged injuries, the court generally concluded that Representative Rangel’s
claims failed on grounds of lack of causation and redressability. For example, although the court
had no doubt that alleged injury to Representative Rangel’s reputation was sufficiently concrete
and particularized, the plaintiff’s failure to sue the House itself doomed his ability to show
causation. After all, the actions of the individual defendant House Members did not cause his
injury—it was, as the court noted, the House that censured him, not the individual Member
defendants.210 Similarly, Representative Rangel was unable to demonstrate redressability because
the court determined that it had no authority to order the House to rescind his censure, as
authority over the House’s Journal was constitutionally vested in the House itself.211 As a
consequence, a legislator plaintiff having a concrete and particularized injury is not alone
sufficient to establish Article III standing, especially when the plaintiff seeks to involve the court
in the internal affairs of the other branches of government.
Institutional Standing
The Supreme Court’s decision in Arizona State Legislature v. Arizona Independent Redistricting
Commission reinforces that an institutional plaintiff, like the Arizona state legislature, will
typically have standing to assert an “institutional injury.”212 In that case, discussed above, the
Court determined that the Arizona state legislature had standing based on the Redistricting
Commission’s usurpation of its “primary responsibility” for redistricting under the Constitution’s
Elections Clause.213 Although the Court concluded that the legislature did not, in fact, have the
exclusive authority it alleged, the Court nonetheless determined that this merits determination did
not undercut the legislature’s claim of injury for the purposes of justiciability.214 This analysis
indicates that an institution, such as a legislature as a whole, may potentially assert an
institutional injury and obtain standing in federal court. The Court left open, however, the

203 20 F. Supp. 3d 148 (D.D.C. 2013), aff’d on other grounds, 785 F.3d 19 (D.C. Cir. 2015).
204 Id. at 156-58.
205 Id. at 157.
206 Id. at 160.
207 Id. at 162.
208 Id. at 164.
209 Id. at 165.
210 Id. at 160-61.
211 Id. at 175-76. In concluding that it could not grant the requested relief, the court relied on the political question
doctrine, determining that it was constitutionally forbidden from injecting itself into review of the House’s internal
disciplinary process. Id.
212 135 S. Ct. 2652, 2664-65 (2015).
213 Id. at 2663.
214 Id. at 2665 (“one must not ‘confus[e] weakness on the merits with absence of Article III standing.’”) (quoting Davis
v. United States, 564 U.S. 229, 249 n.10 (2011)).
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possibility that separation-of-powers considerations could lead to a different result if the case
instead involved Congress suing the President.215
In addition to the separation-of-powers concerns that might arise, Arizona State Legislature raises
questions regarding who constitutes an institutional plaintiff and which institutional injuries are
sufficiently concrete and particularized to give rise to standing.216 These questions are the focus of
the following sections.
The Significance of Explicit Congressional Authorization
Courts have routinely concluded that congressional plaintiffs who obtain authorization to sue
before initiating litigation217 are significantly more likely to have standing.218 As one court has
explained, the presence of authorization is the “key factor” when determining whether a
congressional plaintiff possesses standing to vindicate an institutional injury on behalf of the
authorizing institution.219 When a legislative plaintiff possesses authorization to pursue litigation
from its respective institution, it decreases the likelihood that the plaintiff is impermissibly
attempting to assert the rights of a third party instead of proceeding on the institution’s behalf.220
Although the Arizona State Legislature Court deemed it important that the legislative plaintiffs
commenced the lawsuit after “authorizing votes in both of its chambers,”221 that does not mean
that a congressional plaintiff must always obtain the imprimatur of both the Senate and the House
of Representatives in order to bring suit. Rather, courts have held that a plaintiff may sue on
behalf of a single house of Congress to vindicate that particular chamber’s unique institutional
interests.222

215 See id. at 2665 n.12 (“The case before us does not touch or concern the question whether Congress has standing to
bring a suit against the President. There is no federal analogue to Arizona’s initiative power, and a suit between
Congress and the President would raise separation-of-powers concerns absent here. The Court’s standing analysis, we
have noted, has been ‘especially rigorous when reaching the merits of the dispute would force [the Court] to decide
whether an action taken by one of the other two branches of the Federal Government was unconstitutional.’”) (quoting
Raines v. Byrd, 521 U.S. 811, 819-20 (1997)).
216 Id. at 2665 (holding that the Legislature’s injury was sufficiently concrete because the Redistricting Commission’s
authority “completely nullif[ied]” any vote of the Legislature nor or in the future).
217 The applicable procedure for obtaining congressional authorization to file and pursue a lawsuit varies depending on
the circumstances. See, e.g., 2 U.S.C. § 288b(b) (“[Senate Legal Counsel] shall bring a civil action to enforce a
subp[o]ena of the Senate or a committee or subcommittee of the Senate . . . only when directed to do so by the adoption
of a resolution by the Senate.”).
218 See, e.g., Ariz. State Legislature, 135 S. Ct. at 2664; Comm. on the Judiciary, U.S. House of Representatives v.
Miers, 558 F. Supp. 2d 53, 71 (D.D.C. 2008).
219 See, e.g., Miers, 558 F. Supp. 2d at 71.
220 Compare, e.g., Hollingsworth v. Perry, 570 U.S. 693, 708 (2013) (“[I]n the ordinary course, a litigant must assert his
or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.”)
(quoting Powers v. Ohio, 499 U.S. 400, 410 (1991)), with, e.g., United States v. Am. Tel. & Tel. Co., 551 F.2d 384,
391 (D.C. Cir. 1976) (“The House of Representatives . . . authoriz[ed] Chairman Moss’s intervention on behalf of the
Committee and the House . . . 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.”).
221 135 S. Ct. at 2664.
222 See U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 71 n.21 (D.D.C. 2015) (“It is of course true that
the House is but one chamber of Congress, and the Senate is not a plaintiff in this suit . . . Yet the House remains an
institution claiming an institutional injury . . . The Court finds that the injury, although arguably suffered by the House
and the Senate alike, is sufficiently concentrated on the House to give it independent standing to sue.”). See also, e.g.,
AT&T, 551 F.2d at 391 (determining “that the House [of Representatives] as a whole ha[d] standing to assert its
investigatory power”); U.S. House of Representatives v. U.S. Dep’t of Commerce, 11 F. Supp. 2d 76, 89 (D.D.C. 1998)
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Several courts have considered what sort of authorization, short of authorizing votes in both
chambers leading to a suit being brought by the institution itself, suffices to permit a suit on
behalf of a legislative institution. A number of cases prior to Arizona State Legislature considered
this question. The most common setting for these cases involved legislative demands for
information. The Supreme Court has long recognized “that the power of inquiry—with process to
enforce it—is an essential and appropriate auxiliary to the legislative function.”223 In other words,
Congress has an interest in obtaining information necessary to fulfill its constitutionally
designated role in the tripartite system of American government.224 At the same time, however,
courts have acknowledged a distinction between a chamber of Congress utilizing its own powers
to demand and obtain information and invoking the federal courts’ power to enforce its
demands.225 In order to utilize the judicial process—rather than the political process—to enforce
congressional demands for information, Supreme Court precedent requires the plaintiffs to show
that they are validly acting on behalf of the injured institution.226
In the 1976 case of United States v. AT&T Co., for instance, the D.C. Circuit ruled that the
chairman of the House Subcommittee on Oversight and Investigations had standing to appear in
federal court to challenge the executive branch’s objection to a subpoena that the subcommittee
had issued to a private party.227 The court reasoned “that the House as a whole has standing to
assert its investigatory power, and can designate a member to act on its own behalf.”228 Crucially,
because the House of Representatives had passed a resolution authorizing the chairman to
participate in the case “on behalf of the Committee and the House,” the chairman did not
encounter the standing obstacles that might exist if “a single [M]ember of Congress” attempted
“to advocate his own interest in the congressional subpoena power” without the affirmative
consent of his or her respective chamber229 or if “a wayward committee” were “acting contrary to
the will of the House.”230 Although AT&T predates Raines and the subsequent D.C. Circuit cases
interpreting it, courts have generally concluded that AT&T’s holding—namely, that congressional
plaintiffs usually have standing to assert Congress’s interests in obtaining information so long as
they have congressional authorization to do so—survives Raines.231 AT&T’s holding comports

(concluding that “the House of Representatives” by itself had “pleaded a legally cognizable injury and satisfied Article
III”).
223 See McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
224 See id.
225 See, e.g., Reed v. Cty. Comm’rs of Del. Cty., Pa., 277 U.S. 376, 389 (1928) (“Authority to exert the powers of the
Senate to compel production of evidence differs widely from authority to invoke judicial power for that purpose.”).
226 See, e.g., id. (“[T]he Senate did not intend to authorize the committee . . . to invoke the power of the Judicial
Department. Petitioners are not authorized by law to sue.”).
227 551 F.2d at 385-85, 387, 391. AT&T involved a congressional attempt to intervene in an ongoing lawsuit as a
defendant, rather than an attempt to initiate a lawsuit as a plaintiff. See id. at 387 (“The Justice Department . . . brought
an action in the name of the United States . . . and obtained a temporary restraining order prohibiting AT&T from
complying with the Subcommittee subpoena. Chairman Moss was allowed to intervene as a defendant.”). In line with
the case law on intervention, see infra “Congressional Intervention to Defend a Statute’s Constitutionality: Adversity
and Standing Issues,” courts have relied on AT&T when evaluating whether a congressional plaintiff has standing to
initiate a lawsuit against the executive branch. See, e.g., Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp.
2d 1, 21 (D.D.C. 2013); Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 71
(D.D.C. 2008).
228 551 F.2d at 391.
229 See id.
230 See id. at 393.
231 See, e.g., U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 68 (D.D.C. 2015) (“This Court agrees that
AT & T survives Raines.”); Holder, 979 F. Supp. 2d at 21 (“Raines . . . did not overrule or limit the precedent
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with broader standing principles that a plaintiff may “designate agents to represent it in federal
court” without running afoul of the standing requirement.232
In this vein, courts have held that a house of Congress can authorize a committee to sue on its
behalf. For example, in the District Court for the District of Columbia’s 2008 opinion in
Committee on the Judiciary, U.S. House of Representatives v. Miers,233 the House Committee on
the Judiciary filed suit in federal court to enforce a subpoena it had issued against certain
executive officials.234 Critically, before the committee filed its lawsuit, the full House of
Representatives passed a resolution authorizing the chairman of the committee “to initiate a civil
action in federal court” to enforce the subpoena.235 The court therefore ultimately concluded “that
the Committee ha[d] standing to enforce its duly issued subpoena through a civil suit.”236
According to the court, the fact that the committee had “been expressly authorized by House
Resolution to proceed on behalf of the House of Representatives as an institution” distinguished
Miers from cases like Raines in which individual legislators had invalidly attempted to assert
injuries to their respective institutions as a whole rather than to themselves personally.237 In other
words, “the fact that the House ha[d] issued a subpoena and explicitly authorized th[e] suit” was
“the key factor that move[d Miers] from the impermissible category of an individual plaintiff
asserting an institutional injury . . . to the permissible category of an institutional plaintiff
asserting an institutional injury.”238 Thus, the committee, acting on the full House’s behalf with
the House’s imprimatur, could validly sue “to vindicate both its right to the information that [was]
the subject of the subpoena and its institutional prerogative to compel compliance with its
subpoenas.”239
Where, by contrast, a legislative plaintiff has not obtained congressional authorization to
represent his respective house via an authorizing vote, courts have typically determined that the
plaintiff lacks standing to sue to enforce subpoenas or otherwise assert an informational injury to
Congress as a whole. For instance, in Cummings v. Murphy, the Seven-Member Rule case
discussed above,240 the court concluded that individual Members lacked standing to argue that
they were, in fact, validly proceeding on behalf of the institution. As the court explained,
“[i]ndividual Members of Congress generally do not have standing to vindicate the institutional
interests of the house in which they serve”241 unless they have obtained affirmative authorization

established in AT & T I.”); Miers, 558 F. Supp. 2d at 71 (“The precedential value and force of AT & T I survive
Raines.”). But see infra “When Authorization Is Insufficient for Standing.”
232 Cf. Hollingsworth v. Perry, 570 U.S. 693, 710 (2013).
233 See 558 F. Supp. 2d at 65-78.
234 See id. at 55, 60, 64.
235 Id. at 63.
236 Id. at 68.
237 Id. at 71 (emphasis in original).
238 Id. (emphasis added).
239 Id. at 78. See also Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 2-3, 20-21 (D.D.C. 2013)
(concluding that House committee had standing to sue “to enforce a subpoena it issued to the Attorney General of the
United States” in part because “the House of Representatives ha[d] specifically authorized the initiation of th[e] action
to enforce the subpoena”). Cf. U.S. House of Representatives v. U.S. Dep’t of Commerce, 11 F. Supp. 2d 76, 86
(D.D.C. 1998) (“[T]he House has Article III standing because it alleges that the use of statistical sampling will cause it
to fail to receive census information to which it is entitled as a matter of law.”).
240 See supra “Distinguishing Personal from Institutional Injuries.”
241 321 F. Supp. 3d 92, 105 (D.D.C. 2018). Cf., e.g., Corman v. Torres, 287 F. Supp. 3d 558, 567 (M.D. Pa. 2018) (“We
do not gainsay that these Senate leaders are in some sense aggrieved by the Pennsylvania Supreme Court’s actions. But
that grievance alone does not carry them over the standing bar. United States Supreme Court precedent is clear—a
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from their respective chambers of Congress.242 The court opined that “requiring authorization
protects Congress’ institutional concerns from the caprice of a restless minority of Members.”243
Cummings thus demonstrates that “it is not simply enough” for individual legislators “to point to
an informational injury arising from an unmet statutory demand to demonstrate standing;”244
courts generally also “look to the presence of authorization as a necessary . . . factor in evaluating
standing in cases that pit the Executive and Legislative Branches against each other.”245
Significantly, at least one opinion suggests that to validly authorize a plaintiff to pursue litigation
on an institution’s behalf, that institution must expressly authorize the plaintiff to bring that
specific lawsuit prior to the commencement of that suit; a freestanding authorization to pursue
litigation may not always suffice to confer standing. Namely, in Walker v. Cheney,246 the
Comptroller General247 sought a court order requiring the Vice President to produce certain
documents.248 To support his argument that he possessed congressional authorization—and thus
standing—to pursue this lawsuit on Congress’s behalf, the Comptroller General invoked 31
U.S.C. § 716(b)(2), which purports to authorize the Comptroller General to “bring a civil action
in the district court of the United States for the District of Columbia to require the head of [an
executive] agency to produce a record.”249 The court, however, rejected that argument, concluding
that this “generalized allocation of enforcement power” did not suffice to establish “that the
current Congress ha[d] authorized the Comptroller General to pursue a judicial resolution of the
specific issues” in the case before the court.250 To support that conclusion, the court emphasized
that no committee requested the documents or issued a subpoena requiring the Vice President to
produce them.251 Thus, in spite of the aforementioned statutory language purporting to empower
the Comptroller General to bring suit, the court determined that “neither House of Congress, and
no congressional committee, ha[d] authorized the Comptroller General to pursue the requested
information through [a] judicial proceeding.”252
When Authorization Is Insufficient for Standing
Even where a legislature as a whole has purported to authorize a particular plaintiff to file suit on
its behalf, that plaintiff must still satisfy the various requirements of standing, including the

legislator suffers no Article III injury when alleged harm is borne equally by all members of the legislature.”).
242 See 321 F. Supp. 3d at 105-06 (“[Cases in which courts have permitted individual legislators to sue] have arisen
almost exclusively in the subpoena enforcement context and have involved circumstances in which the plaintiff was a
congressional committee that was duly authorized to bring suit by House resolution. In those cases, courts have found
congressional authorization to be the key distinguishing factor, moving the case from the impermissible category of an
individual plaintiff asserting an institutional injury in Raines to the permissible category of an institutional plaintiff
asserting an institutional injury.”) (internal citations, brackets, and quotation marks omitted).
243 Id. at 115.
244 Id. at 107.
245 Id. at 115.
246 230 F. Supp. 2d 51 (D.D.C. 2002).
247 The Comptroller General, as head of the Government Accountability Office, is generally deemed “an agent of the
Legislative Branch.” Id. at 53.
248 See id. at 58.
249 See id. at 54.
250 Id. at 69 (emphasis added).
251 Id. at 68 (“[T]he record reflects that Congress as a whole has undertaken no effort to obtain the documents at issue,
that no committee has requested the documents, and that no congressional subpoena has been issued.”).
252 Id. at 61-62.
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requirements of concrete and particular injury as to that institution.253 To illustrate, whereas a
legislative plaintiff acting pursuant to the authorization of its respective institution generally
possesses standing to sue to redress concrete and particular informational injuries to that
institution,254 even an entire legislative body proceeding under valid authorization will not have
standing to assert abstract or nonparticular injuries.255 As an example of a putative injury in the
latter category, courts have generally rejected the idea that legislatures have standing based on
their duty to legislate to challenge allegedly illegal acts by the Executive.256 In Alaska Legislative
Council v. Babbitt, for instance, the D.C. Circuit determined that the Alaska Legislative Council
lacked standing to challenge federal management of subsistence taking of fish and wildlife on
federal lands in Alaska.257 The council claimed that it was injured because individual Alaskan
legislators had a “duty to legislate for the management of all the State’s resources” and the federal
program interfered with this duty.258 Although the Alaska legislature had not explicitly voted to
authorize the council to sue, the court assumed the plaintiff possessed such authorization because
of its status as a “permanent interim committee and service agency of the legislature.”259 Despite
this authorization, the court concluded that the committee lacked standing because its injuries did
not belong to it, but rather, belonged to the “State itself,” and only the governor could bring that
suit on behalf of Alaska.260 The legislature had thus failed to identify a “separate [and]
identifiable” injury entitling it to sue.261
Additionally, several courts have concluded that legislative plaintiffs lack standing to assert a
generalized interest in the proper interpretation or application of a statute irrespective of whether
the full legislative body has authorized the plaintiffs to sue. For instance, Newdow v. U.S.
Congress involved a challenge brought by an individual plaintiff to the constitutionality of the
Pledge of Allegiance’s use of the phrase “under God.”262 After the Ninth Circuit had issued a
ruling allowing the case to proceed, the Senate moved to intervene in the case pursuant to a
provision of the U.S. Code giving the Senate Legal Counsel the right to intervene unless the
Senate would lack “standing to intervene under . . . [A]rticle III of the Constitution.”263 The court
concluded that this language required it to examine the Senate’s putative interest in the case at

253 Cf. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2665 (2015) (holding that state
legislature’s alleged injury was not “too ‘conjectural’ or ‘hypothetical’ to establish standing”).
254 See, e.g., Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 71 (D.D.C. 2008)
(“The injury incurred by the Committee, for Article III purposes, is both the loss of information to which it is entitled
and the institutional diminution of its subpoena power.”).
255 See, e.g., Alaska Legislative Council v. Babbitt, 181 F.3d 1333, 1338 (D.C. Cir. 1999) (concluding that individual
legislators’ asserted injury was “nothing more than an ‘abstract dilution of institutional legislative power’” and was
therefore insufficient to confer standing) (quoting Raines v. Byrd, 521 U.S. 811, 826 (1997)).
256 See, e.g., id. at 1337-38 (rejecting argument that state legislators possessed standing in furtherance of their putative
“affirmative duty to legislate for the management of all of the State’s resources”).
257 See id. The court also concluded that individual Alaskan state legislators lacked standing because their injury was
“nothing more than an ‘abstract dilution of institutional legislative power’” that was indistinguishable from the injury
rejected in Raines. Id. at 1338.
258 Id. at 1337.
259 Id. at 1335.
260 Id. at 1338-39.
261 Id. at 1339.
262 313 F.3d 495, 496 (9th Cir. 2002) (challenging 4 U.S.C. § 4).
263 Id. at 497. The problems particular to intervention cases in general are discussed in greater detail below. See
“Congressional Intervention to Defend a Statute’s Constitutionality: Adversity and Standing Issues.” However, the
nature of the statute at issue caused the court to examine injury-in-fact as it would apply in a straightforward standing
case. Newdow, 313 F.3d at 496.
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hand.264 The Ninth Circuit denied the Senate’s motion,265 concluding that the Senate lacked
standing to defend the law’s constitutionality.266 The court explained that a “general desire to see
the law enforced as written” did not suffice to give standing to a house of Congress to defend the
law.267
A more recent consideration of institutional standing occurred in the 2015 case of United States
House of Representatives v. Burwell.268 In that case, the House of Representatives asserted two
claims against various executive branch entities: (1) a constitutional claim that the defendants
“spent billions of unappropriated dollars to support the Patient Protection and Affordable Care
Act” (ACA) in violation of the Appropriations Clause of the U.S. Constitution;269 and (2) a
statutory claim that the Secretary of the Treasury, “under the guise of implementing regulations,”
had “effectively amended” certain aspects of the ACA “by delaying its effect and narrowing its
scope.”270 The court concluded that the House possessed standing to pursue the constitutional
claim but not the statutory claim.271 The court first determined that the House had standing to
pursue its constitutional claim272 because “Congress (of which the House and Senate are equal) is
the only body empowered by the Constitution to adopt laws directing monies to be spent from the
U.S. Treasury,” and the Executive’s alleged circumvention of that structure was a sufficiently
concrete and particularized injury as to the House as a whole.273 However, the district court then
ruled that the House lacked standing to pursue its parallel challenges to the Executive’s alleged
violation of the statutory scheme,274 reasoning that Article III does not create “general legislative
standing” by which the branches of Congress may sue the Executive for any alleged violation of
statutes or the Constitution by the Executive.275 Because the Executive’s alleged violation of the
ACA would cause the House “no particular harm,” the House lacked standing to pursue its
statutory claim.276
Burwell also rejected the argument that separation-of-powers concerns required the dismissal of
the House’s claims.277 In Arizona State Legislature, the Court had noted that such concerns might
be significant in a dispute between Congress and the President,278 but the Burwell court dismissed
such concerns as dicta and did not find them controlling.279 Instead, the court determined that the
case presented a “plain dispute over a constitutional command” that the judiciary was well suited

264 313 F.3d at 498 (“As the intervention statute at hand expressly recognizes, the Senate must show that it does have
constitutional standing to intervene. That means at the very least that it must show that it has ‘suffered an “‘injury in
fact’—an invasion of a legally protected interest which is . . . concrete and particularized.’”).
265 Id. at 500.
266 Id. at 497-98.
267 Id. at 498.
268 130 F. Supp. 3d 53 (D.D.C. 2015).
269 See U.S. CONST. art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law . . . .”).
270 130 F.3d at 57.
271 Id. at 70-72.
272 Id. at 62-63.
273 Id. at 71.
274 Id. at 75-77.
275 Id. at 75.
276 Id. at 74.
277 Id. at 80.
278 Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2665 n.12 (2015).
279 Burwell, 130 F.3d at 69.
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to resolve.280 These separation-of-powers concerns, particularly as they relate to Congress’s
interests with respect to the executive branch’s execution of a statutory scheme, play a
particularly important role in answering the question of when Congress can intervene in litigation,
as discussed below.281
Congressional Intervention to Defend a Statute’s
Constitutionality: Adversity and Standing Issues
Whereas the analysis above focuses mainly on congressional entities filing their own lawsuits as
plaintiffs, legislators or a legislature as a whole may also attempt to participate in ongoing
litigation between nonlegislative parties in a variety of ways. The procedural rules governing the
federal courts contemplate that, subject to specified conditions, a nonparty may “intervene” in an
existing federal case.282 Generally, if a court permits an entity to intervene in a case, that entity
becomes a full party to the litigation and may freely participate in the case to the same extent as
the original parties.283 For instance, subject to certain exceptions and conditions, an intervenor
may generally (among other things) file briefs and motions, participate in discovery, and appeal
adverse judgments.284
As relevant here, congressional litigants periodically attempt to intervene in existing federal cases
initiated by noncongressional parties.285 As explained in the following subsections, whether such
attempts ultimately succeed depends on a variety of factors that to a large degree mirror the
considerations relevant to whether a legislative plaintiff may initiate new litigation in federal
court.286
Justiciability Issues Involved in Intervention
One potentially key—albeit infrequent287—situation in which a congressional entity may attempt
to intervene in an ongoing lawsuit is when the executive branch declines to defend the

280 Id. at 80.
281 See infra “Justiciability Issues Involved in Intervention.”
282 See generally FED. R. CIV. P. 24.
283 See, e.g., United States v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1378 (9th Cir. 1997) (“[I]ntervening
parties have full party status in the litigation commencing with the granting of the motion to intervene.”); Schneider v.
Dumbarton, 767 F.2d 1007, 1017 (D.C. Cir. 1985) (“When a party intervenes, it becomes a full participant in the
lawsuit and is treated just as if it were an original party.”).
284 See, e.g., Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375-76 (1987) (“An intervenor, whether by
right or by permission, normally has the right to appeal an adverse final judgment by a trial court.”); Danielle R.
Holley, Narrative Highground: The Failure of Intervention as a Procedural Device in Affirmative Action Litigation, 54
CASE W. RES. L. REV. 103, 110 (2003) (“Intervenors may file motions, participate in discovery, introduce direct
testimony, conduct cross-examination, and appeal adverse rulings.”).
285 See, e.g., Smith v. Nat’l Provisioner, Inc. (In re Beef Indus. Antitrust Litig.), 589 F.2d 786, 787 (5th Cir. 1979)
(“The chairmen of two subcommittees of the House of Representatives . . . seek to intervene in an antitrust suit pending
in district court among private litigants in order to gain access to documents subpoenaed by the subcommittees from a
party to the litigation.”).
286 Compare, e.g., Paisley v. CIA, 724 F.2d 201, 204 (D.C. Cir. 1984) (“The motion of the Senate Select Committee on
Intelligence to intervene is granted.”), with, e.g., S. Christian Leadership Conference v. Kelley, 747 F.2d 777, 778
(D.C. Cir. 1984) (“We affirm denial of the [Senator’s] motion for intervention because the movant lacks a protectable
interest sufficient to confer standing.”).
287 See Tara Leigh Grove & Neal Devins, Congress’s (Limited) Power to Represent Itself in Court, 99 CORNELL L. REV.
571, 595 (2014) (“From December 1975 to May 2011, the DOJ notified Congress that it would not defend seventy-five
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constitutionality of a federal statute.288 For instance, the U.S. House of Representatives recently
intervened in the case of Texas v. United States to defend the constitutionality of provisions of the
Affordable Care Act after the executive branch declined to defend the law in its entirety.289 As
explained below, at least two questions may arise when Congress (or a Member, committee, or
house thereof) attempts to intervene to defend a statute’s validity: (1) whether the executive
branch’s refusal to defend the statute renders the original parties insufficiently adverse to create a
justiciable controversy; and (2) whether Congress possesses standing to intervene in the case.
With regard to the first question, whenever a plaintiff sues the United States to invalidate a
federal statute, and the United States does not dispute the plaintiff’s assertion that the statute is
unconstitutional, the fact that none of the named litigants wishes to defend the statute’s validity
creates a potential risk that the original parties are not truly adverse to each other.290 The Supreme
Court has ruled that “the business of federal courts” is limited “to questions presented in an
adversary context,” rather than lawsuits between friendly parties.291 Like standing, this
“adversity” requirement is a justiciability doctrine that the Supreme Court has derived (at least in
part) from Article III’s “case or controversy” language.292 The Supreme Court has held that where
“both litigants desire precisely the same result” in a particular case, there is generally “no case or
controversy within the meaning of [Article] III of the Constitution,” and a federal court
accordingly lacks jurisdiction over the case.293 In addition to this constitutional foundation, the
Supreme Court has recognized that the adversity requirement also has a prudential dimension.294
In other words, “even when Article III permits the exercise of federal jurisdiction, prudential
considerations” may sometimes counsel against adjudicating a lawsuit where the parties lack that
“concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.”295
With respect to the second question, while the standing doctrine is generally concerned with
whether a plaintiff is a proper party to a particular lawsuit, other putative parties who are not
plaintiffs, but are seeking distinct judicial relief from a federal court—such as intervenor-

different statutory provisions. In only five of those cases did either chamber step in to defend the federal law
(sometimes as amicus, sometimes as intervenor).”).
288 See, e.g., Windsor v. United States, 797 F. Supp. 2d 320, 321-22, 324 (S.D.N.Y. 2011) (“[BLAG] decided to seek
approval to intervene in this litigation to defend the constitutionality of Section 3 of DOMA . . . BLAG has a
cognizable interest in defending the enforceability of statutes the House has passed when the President declines to
enforce them.”).
289 See Motion of the U.S. House of Representatives to Intervene at 3, Texas v. United States, No. 19-10011 (5th Cir.
Jan. 7, 2019). See also Order, Texas v. United States, No. 19-10011 (5th Cir. Feb. 14, 2019) (“IT IS ORDERED that
the opposed motion to intervene filed by the U.S. House of Representatives is GRANTED.”).
290 See United States v. Windsor, 570 U.S. 744, 761 (2013) (acknowledging the Court’s “concerns . . . against hearing
an appeal from a decision with which the principal parties agree”); id. at 762 (“The Executive’s failure to defend the
constitutionality of an Act of Congress . . . has created a procedural dilemma.”).
291 GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 445 U.S. 375, 382 (1980) (quoting Flast v. Cohen,
392 U.S. 83, 95 (1968)).
292 U.S. CONST. art. III, § 2, cl. 1.
293 Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971).
294 See Windsor, 570 U.S. at 756 (“The amicus submits that once the President agreed with Windsor’s legal position
and the District Court issued its judgment, the parties were no longer adverse . . . This position, however, elides the
distinction between two principles: the jurisdictional requirements of Article III and the prudential limits on its
exercise.”); INS v. Chadha, 462 U.S. 919, 940 (1983) (“Of course, there may be prudential, as opposed to Art. III,
concerns about sanctioning the adjudication of this case in the absence of any participant supporting the validity of
§ 244(c)(2).”).
295 Windsor, 570 U.S. at 760 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
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defendants or defendant-appellants—likewise need to demonstrate that they possess standing in
order to obtain the relief sought.296 For example, in Diamond v. Charles, the Supreme Court
concluded that an intervenor lacked standing to appeal an adverse judgment against the original
defendant after that defendant declined to file an appeal of its own.297 Under Supreme Court
precedent, as long as the existing parties to the case present a justiciable controversy on their
own, an intervenor need not independently possess standing to participate in the lawsuit so long
as the intervenor seeks the same judicial relief as one or more of the existing parties.298 To the
extent an intervenor seeks “relief that is different from that which is sought by a party with
standing,” however, that intervenor must independently “possess Article III standing to intervene”
in the case.299
The Supreme Court has periodically considered how the adversity and standing doctrines apply in
the congressional intervention context and has ultimately concluded that cases in which the
executive branch declines to defend a federal statute and Congress steps in to defend the law may
potentially be justiciable.300 For instance, in Immigration and Naturalization Service (INS) v.
Chadha, an alien challenged the constitutionality of a particular provision of the Immigration and
Nationality Act that had authorized one house of Congress, by resolution, to invalidate the
decisions of the executive branch.301 Because the INS agreed with the alien that this “one-house
veto” provision was unconstitutional,302 the Court needed to examine whether the case presented
“a genuine controversy” rather than a nonjusticiable “non-adversary[] proceeding” between two
friendly parties.303 Crucially, however, both the Senate and the House had intervened in the case
to defend the statute’s constitutionality.304 The Court therefore held that, because Congress was “a
proper party to defend the constitutionality of” this statute, “the concrete adverseness” required
by Article III existed “beyond doubt” “from the time of Congress’ formal intervention” in the
case.305 Going further, the Court also explained in dicta that “there was adequate [Article] III

296 See Matthew L. Hall, Standing of Intervenor-Defendants in Public Law Litigation, 80 FORDHAM L. REV. 1539, 1541
(2012) (“The doctrine of standing is generally understood to limit the ability of plaintiffs to seek relief in federal court
. . . What has gone largely unnoticed . . . is the degree to which Article III restricts who may defend against a claim in
federal court. This aspect of standing doctrine is so under-appreciated that some courts and scholars have even asserted,
incorrectly, that Article III’s standing restrictions apply only to plaintiffs.”). See also Town of Chester, N.Y. v. Laroe
Estates, Inc., 137 S. Ct. 1645, 1651 (2017) (“An intervenor of right must have Article III standing in order to pursue
relief that is different from that which is sought by a party with standing.”); Wittman v. Personhuballah, 136 S. Ct.
1732, 1734-37 (2016) (deciding that intervenor-defendants lacked Article III standing to appeal adverse judgment);
Hollingsworth v. Perry, 570 U.S. 693, 697-715 (2013) (same).
297 476 U.S. 54, 56-70 (1986).
298 See Windsor, 570 U.S. at 761-62 (“The prudential and Article III requirements are met here; and, as a consequence,
the Court need not decide whether BLAG would have standing to challenge the District Court’s ruling and its
affirmance in the Court of Appeals on BLAG’s own authority.”); McConnell v. Fed. Election Comm’n, 540 U.S. 93,
233 (2003) (Rehnquist, C.J., opinion of the Court with respect to BCRA Titles III and IV) (“It is clear, however, that
the Federal Election Commission (FEC) has standing, and therefore we need not address the standing of the intervenor-
defendants, whose position here is identical to the FEC’s.”), overruled on other grounds by Citizens United v. Fed.
Election Comm’n, 558 U.S. 310 (2010).
299 Town of Chester, 137 S. Ct. at 1648, 1651.
300 Brianne J. Gorod, Defending Executive Nondefense and the Principal-Agent Problem, 106 NW. U. L. REV. 1201,
1249 (2012) (“The ability of Congress as an institution to participate in litigation has repeatedly been recognized
especially in cases where the Executive Branch has failed to defend the statute at issue.”).
301 462 U.S. 919, 923 (1983).
302 Id. at 928, 939.
303 Id. at 939.
304 Id. at 930 n.5.
305 Id. at 939.
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adverseness” in the case even “prior to Congress’ intervention” because the “INS would have
deported” the alien against his wishes if the federal courts had rejected the alien’s constitutional
challenge.306 In other words, because the INS would have enforced the challenged statute despite
its unwillingness to defend the statute’s constitutionality in a judicial proceeding, the majority
viewed the case as presenting a justiciable controversy between the INS and the alien even if
Congress had never intervened.307 Although the Chadha Court also acknowledged that “there may
be prudential, as opposed to [Article] III, concerns about sanctioning the adjudication of th[e]
case in the absence of any participant supporting the validity of” the provision’s constitutionality,
the Supreme Court explained that the lower court had “properly dispelled any such concerns by
inviting and accepting briefs from both Houses of Congress.”308 The Court further opined that
“Congress is the proper party to defend the validity of a statute when an agency of government, as
a defendant charged with enforcing the statute, agrees with [the] plaintiffs that the statute is
inapplicable or unconstitutional.”309
Prior to the Supreme Court’s 2013 decision in United States v. Windsor, one might plausibly read
Chadha to stand for the limited proposition that Congress may intervene to defend an undefended
federal law (albeit one that the Executive has continued to enforce) only when the judicial
invalidation of that law would directly affect Congress’s institutional powers, such as by
eliminating Congress’s ability to validly utilize a one-house legislative veto.310 In Windsor,
however, the Court appeared to implicitly adopt a broader conception of Chadha by permitting a
congressional entity to intervene to defend an undefended law even though the statute at issue had
no direct bearing on Congress’s institutional powers.311 The respondents in Windsor challenged
the constitutionality of a provision of the Defense of Marriage Act (DOMA) on equal protection
grounds.312 During the course of the litigation, however, “the Attorney General of the United
States notified the Speaker of the House of Representatives . . . that the Department of Justice
would no longer defend the constitutionality of” the challenged provision.313 Nevertheless, the
Attorney General stated that he would continue to enforce the provision in order to “provid[e]
Congress a full and fair opportunity to participate in the litigation” over the provision’s validity,
and accordingly appealed the lower court’s judgment invalidating the statute to the Supreme
Court.314 After the Attorney General announced that he would not defend the statute, the House’s

306 Id. at 939-40 (emphasis added).
307 Id. See also Michael Sant’Ambrogio, Standing in the Shadow of Popular Sovereignty, 95 B.U. L. REV. 1869, 1911
(2015) (describing “the executive’s actions in Chadha” as “enforcing, but not defending the challenged law, and
appealing adverse judicial decisions”).
308 462 U.S. at 940.
309 Id.
310 See United States v. Windsor, 570 U.S. 744, 783 (2013) (Scalia, J., dissenting) (“Because Chadha concerned the
validity of a mode of congressional action—the one-house legislative veto—the House and Senate were threatened
with destruction of what they claimed to be one of their institutional powers. The Executive choosing not to defend that
power, we permitted the House and Senate to intervene. Nothing like that is present here.”). See also Matthew I. Hall,
Making Sense of Legislative Standing, 90 S. CAL. L. REV. 1, 20 (2016) (“Chadha can be read either broadly—as
permitting legislative standing to defend any of Congress’s ‘legislative handiwork’ against challenge—or narrowly—as
recognizing legislative injury only from potential invalidation of a statute that confers a concrete power on Congress.”).
311 See 570 U.S. at 758-60 (majority opinion). But see Hall, supra note 310, at 20 (arguing that the Court has not yet
explicitly resolved whether Chadha stands for the broader principle that Congress has “standing to defend any of
Congress’s ‘legislative handiwork’ against challenge” or the narrower principle that only “potential invalidation of a
statute that confers a concrete power on Congress” suffices to constitute a “legislative injury”).
312 570 U.S. at 751.
313 Id. at 753.
314 Id. at 754.
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Bipartisan Legal Advisory Group (BLAG)—which is “composed of the Speaker and the majority
and minority leaderships” of the House315—“voted to intervene in the litigation to defend the
constitutionality of” the provision.316 The district court permitted BLAG to intervene.317
Because “the Government largely agree[d] with the opposing part[ies] on the merits of the
controversy,”318 the Supreme Court needed to determine whether the executive branch’s
“concession that [the challenged provision was] unconstitutional” rendered the case
nonjusticiable on adversity grounds.319 The Court first concluded that the case presented “a
justiciable dispute as required by Article III” because (1) the executive branch had announced its
“inten[tion] to enforce the challenged law” if the court ultimately deemed the provision
constitutional;320 and (2) the lower court had “order[ed] the United States to pay money” to the
challengers “that it would not disburse but for the court’s order.”321 The Court accordingly
determined that “the United States retain[ed] a stake sufficient to support Article III jurisdiction
on appeal and in proceedings before th[e] Court.”322
The Court next concluded that the legislative branch’s presence in the case alleviated any purely
prudential concerns posed by the executive branch’s refusal to defend the provision’s validity.323
The Court explained that “BLAG’s sharp adversarial presentation of the issues satisfie[d] the
prudential concerns that otherwise might counsel against hearing an appeal from a decision with
which the principal parties agree.”324 Critically, because Windsor and the United States presented
a justiciable controversy within the meaning of Article III on their own, the Court did not need to
resolve whether BLAG would have independently possessed Article III standing to intervene in
the case and defend the statute on its own authority.325 As explained in greater detail below,
however, the Court also implied that it might have deemed the case nonjusticiable if the
Executive had declined to enforce the challenged statute in addition to merely refusing to defend
its constitutionality.326
Chadha and Windsor thus stand for the propositions that (1) the Executive’s refusal to defend a
statute will not always render the lawsuit challenging that statute nonjusticiable; and
(2) congressional intervention in ongoing federal litigation does not necessarily raise Article III
standing problems327—at least as long as Congress does not pursue additional relief beyond a

315 H.R. RULE II(8)(b) (116th Cong.).
316 570 U.S. at 754.
317 Windsor v. United States, 797 F. Supp. 2d 320, 321-26 (S.D.N.Y. 2011).
318 570 U.S. at 759 (quoting INS v. Chadha, 462 U.S. 919, 940 n.12 (1983)).
319 Id. at 756.
320 Id. at 759.
321 Id. at 758.
322 Id. at 757.
323 See id. at 759-63.
324 Id. at 761. See also id. at 763 (“The capable defense of the law by BLAG ensures that these prudential issues do not
cloud the merits question, which is one of immediate importance to the Federal Government and to hundreds of
thousands of persons.”).
325 See id. at 761-62 (“The prudential and Article III requirements are met here; and, as a consequence, the Court need
not decide whether BLAG would have standing to challenge the District Court’s ruling and its affirmance in the Court
of Appeals on BLAG’s own authority.”).
326 See id. at 758 (“It would be a different case if the Executive had taken the further step of paying Windsor the refund
to which she was entitled under the District Court’s ruling.”).
327 See Grove & Devins, supra note 287, at 623 (emphasizing that, despite the doctrinal disagreements between the
majority and dissenting justices, “no Justice in Windsor challenged the power of the House or the Senate to sometimes
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judgment in the United States’ favor.328 To that end, lower federal courts have frequently
permitted legislative actors to intervene as defendants in cases where the executive branch agreed
with the plaintiff that a challenged statute was unconstitutional.329
Still, the federal courts’ Article III jurisdiction to adjudicate such cases may not be unlimited.
Although Chadha and Windsor suggest that Congress may help alleviate prudential adversity
problems created by the executive branch’s nondefense of a statute by intervening to defend the
challenged law, neither case says anything definitive about whether a congressional intervenor
would have independently possessed Article III standing in those cases, especially in cases where
the Executive refuses to enforce the underlying statute.330 Because the Executive continued to
enforce the challenged statutes in Chadha and Windsor despite its refusal to defend their
constitutionality,331 the Court concluded that the “refusal of the Executive to provide the relief
sought” by the plaintiff “suffice[d] to preserve a justiciable dispute as required by Article III”332
regardless of whether or not Congress had intervened to mitigate any purely prudential obstacles
to justiciability resulting from the Executive’s refusal to defend the law.333 In other words,
because “the United States retains a stake sufficient to support Article III jurisdiction” when it
continues to enforce a statute that it declines to defend in court, the existence of a justiciable
controversy between the plaintiff and the United States relieved the congressional intervenors in
Chadha and Windsor of the burden to independently demonstrate Article III standing of their own

stand in for the executive and defend federal statutes”).
328 See supra notes 298-299 and accompanying text.
329 See, e.g., Adolph Coors Co. v. Brady, 944 F.2d 1543, 1546 (10th Cir. 1991) (“The Treasury admitted in its answer
that [certain challenged statutory provisions] are unconstitutional under the First Amendment . . . The House, however,
moved to intervene in order to defend the constitutionality of the statute.”); Lear Sigler, Inc. v. Lehman, 893 F.2d 205,
206-07 (9th Cir. 1989) (explaining that Senate and House of Representatives were permitted to intervene to defend
constitutionality of statute that “the Navy originally had treated as unconstitutional”); Synar v. United States, 626 F.
Supp. 1374, 1378-1379 (D.D.C. 1986), aff’d, Bowsher v. Synar, 478 U.S. 714 (1986) (permitting the U.S. Senate and
the Speaker and Bipartisan Leadership Group of the House of Representatives to intervene “in support of the
constitutionality of” a statute that, in the executive branch’s view, “violate[d] the principle of separation-of-powers”);
Ameron, Inc. v. U.S. Army Corps. of Eng’rs, 607 F. Supp. 962, 963 (D.N.J. 1985), aff’d as modified, 809 F.2d 979 (3d
Cir. 1986) (granting “motions to intervene . . . from the Speaker and Bipartisan Leadership Group of the House of
Representatives and from the U.S. Senate” on the ground that “Congress is the proper party to defend the validity of a
statute when [the executive branch argues] that the statute is inapplicable or unconstitutional”) (quoting INS v. Chadha,
462 U.S. 919, 940 (1983)). Cf., e.g., Benny v. England (In re Benny), 812 F.2d 1133, 1135 (9th Cir. 1987) (“The
Department of Justice intervened . . . in support of Benny’s position that the sections were unconstitutional. The United
States Senate . . . and the Speaker and Bipartisan Leadership Group of the House of Representatives . . . sought leave to
intervene, which the court granted, and argued that the sections were constitutional.”); Moody v. Empire Life Ins. Co.
(In re Moody), 46 B.R. 231, 232-33 (M.D.N.C. 1985) (granting motion of the “Speaker of the House of
Representatives[] to intervene” to “present the official constitutional defense” to a challenged statute after the United
States intervened to argue that sections of the statute were unconstitutional).
330 See Bradford C. Mank, Does United States v. Windsor (The DOMA Case) Open the Door to Congressional
Standing Rights?, 76 U. PITT. L. REV. 1, 1-2 (2014).
331 Windsor, 570 U.S. at 754-55 (“Although the President instructed the Department [of Justice] not to defend the
statute . . . he also decided that Section 3 will continue to be enforced by the Executive Branch . . . The United States
has not complied with the judgment. Windsor has not received her refund, and the Executive Branch continues to
enforce § 3 of DOMA.”) (internal quotation marks and ellipses omitted); Chadha, 462 U.S. at 939 (“The INS’s
agreement with Chadha’s position does not alter the fact that the INS would have deported Chadha absent the Court of
Appeals’ judgment.”).
332 Windsor, 570 U.S. at 759.
333 See Chadha, 462 U.S. at 939 (concluding that “there was adequate Art[icle] III adverseness” in the case even “prior
to Congress’ intervention”) (emphasis added).
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before participating in the case.334 The Windsor Court expressly declined to decide, however,
“whether BLAG would have standing to” defend DOMA “on BLAG’s own authority” if the
Executive had also refused to enforce the statute in addition to merely refusing to defend it.335
The dissenting Justices in Windsor—who disagreed with the majority on the issue of adversity
and therefore had to reach the standing question—could not agree on whether and when a house
of Congress possesses standing to defend an undefended statute.336 Justice Alito, for instance,
reasoned that “in the narrow category of cases in which a court strikes down an Act of Congress
and the Executive declines to defend the Act, Congress both has standing to defend the
undefended statute and is a proper party to do so.”337 According to Justice Alito, “because
legislating is Congress’ central function,” a judicial decision “striking down an Act of Congress”
injures each chamber of Congress as an institution by “impair[ing] Congress’ legislative
power.”338 By contrast, Justice Scalia, joined by Chief Justice Roberts and Justice Thomas,
instead suggested that the legislative branch possesses standing to intervene in such lawsuits only
when the case implicates “the validity of a mode of congressional action,” such as the one-house
legislative veto challenged in Chadha.339 According to Justice Scalia, Congress may only “hale
the Executive before the courts . . . to vindicate its own institutional powers to act,” not “to
correct a perceived inadequacy in the execution of its laws”—which, in Justice Scalia’s view,
does not constitute an institutional injury to Congress itself.340 As this exchange between the
dissenting Justices in Windsor reflects, the circumstances under which Congress may permissibly
intervene to defend the validity of a statute the Executive refuses to enforce remains an
unanswered question, and the answer to that question will likely implicate the same sorts of
policies and principles that animate the doctrines governing whether and when a plaintiff may sue
to vindicate Congress’s institutional interests.341
Other Relevant Considerations in Intervention
In addition to the adversity and standing doctrines discussed above, other legal principles may
also affect whether a congressional entity may permissibly intervene in a federal case to defend a
statute’s constitutionality or for some other purpose. For one, just as a legislator ordinarily may
not initiate a lawsuit without the affirmative consent of his or her respective house,342 a
congressional entity typically cannot intervene in a preexisting federal case without first obtaining
authorization to do so.343 Where congressional entities have first obtained authorization to

334 Windsor, 570 U.S. at 757.
335 Id. at 761. See also id. at 758 (“It would be a different case if the Executive had taken the further step of paying
Windsor the refund to which she was entitled under the District Court’s ruling.”); Bradford C. Mank, Does a House of
Congress Have Standing Over Appropriations?: The House of Representatives Challenges the Affordable Care Act, 19
U. PA. J. CONST. L. 141, 177 (2016) (“The Court avoided the contentious issue of whether Congress or a house of
Congress would have had standing to appeal if the executive branch had refused to enforce DOMA entirely.”).
336 Compare 570 U.S. at 783 (Scalia, J., dissenting), with id. at 807 (Alito, J., dissenting).
337 Id. at 807 (Alito, J., dissenting).
338 Id. at 805.
339 Id. at 783 (Scalia, J., dissenting).
340 Id. at 788-89.
341 See supra “Institutional Injury.”
342 See supra id.
343 See, e.g., Smith v. Nat’l Provisioner, Inc. (In re Beef Indus. Antitrust Litig.), 589 F.2d 786, 787 (5th Cir. 1979)
(rejecting attempt by “[t]he chairmen of two subcommittees of the House of Representatives” to “intervene in an
antitrust suit . . . among private litigants in order to gain access to documents subpoenaed by the subcommittees”
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participate in an ongoing lawsuit from their respective houses, however, courts have typically
allowed those entities to intervene.344 However, a congressional entity seeking to intervene in
ongoing litigation must comply with all applicable statutory345 and procedural346 rules governing
legislative intervention in federal court.347
Participation as Amicus Curiae
If Congress (or a unit or individual Member thereof) cannot participate as a full party to a
particular lawsuit due to one or more of the constitutional, statutory, procedural, and prudential
obstacles discussed above, it may still be able to participate in the case in a more limited capacity
as an amicus curiae.348 An amicus curiae—a Latin term for “friend of the court”—is an entity
with “a strong interest in the subject matter” of a particular case that may submit legal briefs or
other filings to the court in support of (or against) a particular position,349 but may not otherwise
participate in the suit to the same extent as an original party or an intervenor.350
Members, houses, and committees of Congress have successfully filed amicus briefs in a wide
variety of cases.351 To name just a few salient examples, after the executive branch declined to
defend the validity of the independent counsel provision of the Ethics in Government Act, “both

because the chairmen “failed to obtain a House resolution or any other similar authority before they sought to
intervene”); Ctr. for Biological Diversity v. Brennan, 571 F. Supp. 2d 1105, 1126 (N.D. Cal. 2007) (denying individual
legislators’ attempt to intervene in case without first obtaining “authoriz[ation] to represent their respective Houses of
Congress in th[e] action”).
344 See United States v. AT&T Co., 551 F.2d 384, 391 (D.C. Cir. 1976) (“Congressman Moss was allowed to intervene
as a defendant on his own behalf and on behalf of the Committee and the House . . . [T]he House of Representatives
passed H.Res. 1420, authorizing Chairman Moss’s intervention on behalf of the Committee and the House . . . Thus, we
need not consider the standing of a single [M]ember of Congress to advocate his own interest in the congressional
subpoena power. 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.”). See also Windsor, 570 U.S. at 754 (noting that the district court “grant[ed] intervention
by BLAG as an interested party” after BLAG “voted to intervene in the litigation to defend the constitutionality of § 3
of DOMA”).
345 See, e.g., 2 U.S.C. § 288b(c) (“[Senate Legal Counsel] shall intervene [in a pending federal case] only when directed
to do so by a resolution adopted by the Senate when such intervention . . . is to be made in the name of the Senate or in
the name of an officer, committee, subcommittee, or chairman of a committee or subcommittee of the Senate.”).
346 See, e.g., FED. R. CIV. P. 24 (procedural rules governing intervention in federal district courts).
347 See, e.g., S. Christian Leadership Conference v. Kelley, 747 F.2d 777, 778 (D.C. Cir. 1984) (denying Senator’s
motion to intervene in case because the Senator lacked the requisite “protectable interest” in the case as required by
Federal Rule of Civil Procedure 24(a)); Brennan, 571 F. Supp. 2d at 1128 (denying individual Members’ motion to
intervene because, among other things, the Members had “not demonstrated a legally protectable interest” as required
by Rule 24(a)).
348 See, e.g., Newdow v. U.S. Congress, 313 F.3d 495, 500 (9th Cir. 2002) (“[T]he motion of the Senate to intervene is
DENIED. However, if the Senate wishes to have us deem its proposed brief to be an amicus brief and to consider it on
that basis, we will do that.”).
349 See BLACK’S LAW DICTIONARY (10th ed. 2014). See also, e.g., Animal Prot. Inst. v. Martin, No. CV-06-128 BW,
2007 WL 647567, at *1 (D. Me. Feb. 23, 2007) (“An amicus is not a party and ‘does not represent the parties but
participates only for the benefit of the court.’”) (quoting Resort Timeshare Resales, Inc. v. Stuart, 764 F. Supp. 1495,
1501 (S.D. Fla. 1991)); Gorod, supra note 300, at 1242 (noting that, because amici are not full parties to the case, they
generally may not “develop the factual record before the trial court”).
350 See supra note 284 and accompanying text.
351 See, e.g., Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., No. 11 Civ. 6746(RJH), 2011 WL 5865296, at *1
(S.D.N.Y. Nov. 22, 2011) (allowing individual Member of House of Representatives to file amicus brief); Holtzman v.
Richardson, 361 F. Supp. 544, 553 (E.D.N.Y. 1973) (granting certain “Members of Congress . . . leave to file briefs in
the case as amici curiae”).
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houses [of Congress] filed amicus briefs defending the legislation’s constitutionality.”352
Similarly, two opposing coalitions of individual Members of Congress filed dueling amicus briefs
in a Supreme Court case concerning the continued vitality of Roe v. Wade.353
The procedural rules governing the submission of amicus briefs may vary from court to court.354
Ultimately, however, federal courts possess broad discretion to decide whether to allow a
nonparty to submit an amicus brief in a particular case.355 Thus, on rare occasions, some courts
have exercised that discretion to reject congressional attempts to file amicus briefs.356 For
instance, the U.S. Court of Federal Claims recently prohibited the House of Representatives from
filing an amicus brief in a private party’s lawsuit against the United States.357 The court, noting
that “the sole purpose of the House’s proposed amicus brief [was] to urge a ground for dismissing
[the] plaintiff’s complaint that was not raised by the [Department of Justice] in its motion to
dismiss,” reasoned that allowing the House to participate as an amicus would “improperly
intrud[e] on the DOJ’s ‘exclusive and plenary’ authority to litigate the case on the United States’
behalf.”358
Considerations for Congress
As discussed, courts have identified several considerations that may be relevant when assessing
whether a legislative entity has suffered a justiciable injury-in-fact359 allowing it to seek judicial
relief from a federal court, including
 the presence of congressional authorization;360

352 Gorod, supra note 300, at 1234-35.
353 See, e.g., Lynne N. Henderson, Legality and Empathy, 85 MICH. L. REV. 1574, 1633 n.376 (1987) (“82 [M]embers
of Congress urged the Court to overrule Roe . . . But 81 [M]embers of Congress filed a brief in opposition to the
Reagan administration’s position and urged the upholding of Roe.”).
354 See Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 FLA. ST. U. L. REV. 315, 322 (2008) (noting that
“[i]ndividual circuits can adopt variations to the rules” governing the filing of amicus briefs). See also, e.g., SUP. CT. R.
37 (governing amicus briefs in the Supreme Court); FED. R. APP. P. 29 (governing amicus briefs in the federal courts of
appeals).
355 E.g., Strasser v. Dooley, 432 F.2d 567, 569 (1st Cir. 1970) (“[T]he acceptance of amicus briefs is within the sound
discretion of the court . . . .”).
356 See, e.g., Planned Parenthood of Greater Wash. & N. Idaho v. U.S. Dep’t of Health & Human Servs., 337 F. Supp.
3d 976, 988 (E.D. Wash. 2018) (denying motion by certain Members of Congress to file an amicus brief in a lawsuit
against the Department of Health and Human Services on the ground that the plaintiffs did “not have standing to bring
th[eir] suit,” thereby rendering the Members’ proposed amicus brief in support of those plaintiffs moot). As of the date
of this report, an appeal of the court’s order dismissing this case on standing grounds is presently pending.
357 See Health Republic Ins. Co. v. United States, 129 Fed. Cl. 115, 116 (Fed. Cl. 2016).
358 Id. at 118.
359 E.g., Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (“Our cases have established that the ‘irreducible
constitutional minimum’ of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.”) (internal citations omitted).
360 See, e.g., Raines v. Byrd, 521 U.S. 811, 829 (1997) (“We attach some importance to the fact that appellees have not
been authorized to represent their respective Houses of Congress in this action . . . .”); Comm. on the Judiciary, U.S.
House of Representatives v. Miers, 558 F. Supp. 2d 53, 71 (D.D.C. 2008) (“The fact that the House has . . . explicitly
authorized this suit . . . is the key factor that moves this case from the impermissible category of an individual plaintiff
asserting an institutional injury . . . to the permissible category of an institutional plaintiff asserting an institutional
injury . . . .”).
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 the absence of other legislative or nonlegislative remedies;361
 allegations of vote nullification;362
 historical practice;363
 availability of alternative plaintiffs to bring a judicial challenge;364 and
 whether the lawsuit is an attempt to assert an interest other than the generalized
interest in the proper application and implementation of the law.365
While these considerations provide some guidance with regard to the standing inquiry in lawsuits
involving a legislative entity, they do not comprehensively resolve every question that may arise.
Additionally, the legal principles that courts have articulated in congressional standing cases to
date are not always perfectly consistent with each other, making it difficult to predict whether any
particular legislative attempt to participate in litigation will overcome the standing hurdle.366
Further compounding that difficulty is the fact that there are very few cases analyzing the
legislative standing doctrine and only a handful of rulings on the issue from the Supreme Court
itself. As a consequence, it is important to identify areas of lingering doctrinal uncertainty,367 as
well as measures that Members, committees, and houses of Congress may take to increase the
likelihood that any given lawsuit will surmount the standing barrier.368

361 See, e.g., Raines, 521 U.S. at 829 (concluding that the individual Members did not lack “an adequate remedy”
because Congress could “repeal the [challenged] Act or exempt appropriations bills from its reach”); Blumenthal v.
Trump, 335 F. Supp. 3d 45, 54 (D.D.C. 2018) (“The Court is persuaded that plaintiffs have sustained their burden to
show that they have standing to bring their claims . . . Plaintiffs have no adequate legislative remedy . . . .”).
362 Raines, 521 U.S. at 823 (“Coleman stands . . . at most . . . for the proposition that legislators whose votes would
have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into
effect (or does not go into effect), on the ground that their votes have been completely nullified.”); Blumenthal, 335 F.
Supp. 3d at 65 (“Although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote
that was nullified.”).
363 Raines, 521 U.S. at 826 (“Not only do appellees lack support from precedent, but historical practice appears to cut
against them as well.”). Compare, e.g., Miers, 558 F. Supp. 2d at 71 (“Courts have entertained subpoena enforcement
actions . . . where the political branches have clashed over congressional subpoenas . . . .”), with, e.g., Walker v.
Cheney, 230 F. Supp. 2d 51, 53 (D.D.C. 2002) (“Historically, the Article III courts have not stepped in to resolve
disputes between the political branches over their respective Article I and Article III powers; this case . . . is not the
setting for such unprecedented judicial action.”).
364 Raines, 521 U.S. at 829-30 (“We note that our conclusion . . . [does not] foreclose[] the Act from constitutional
challenge.”); Blumenthal, 335 F. Supp. 3d at 71 (considering ability of another plaintiff to bring the case in question).
365 See, e.g., Blumenthal, 335 F. Supp. 3d at 69-70 (“This is not a situation in which plaintiffs disagree with the manner
in which the President is administering or enforcing the law.”).
366 See, e.g., Hall, supra note 310, at 4 (arguing that “legislative standing case law has failed to develop a clear doctrine
capable of generating predictable outcomes”); Jonathan Remy Nash, A Functional Theory of Congressional Standing,
114 MICH. L. REV. 339, 342 (2015) (describing existing precedent “on congressional standing” as “both scarce and
inconsistent”). Compare, e.g., Walker, 230 F. Supp. 2d at 75 (stating that “separation-of-powers considerations” are
“incorporated into the standing analysis required under Raines”), with, e.g., U.S. House of Representatives v. Burwell,
130 F. Supp. 3d 53, 71 n.19 (D.D.C. 2015) (“The Secretaries stake a fifth argument, that ‘[t]he separation-of-powers
forecloses the House’s claim of standing,’ which the Court will not consider in its standing analysis . . . [S]eparation-
of-powers concerns are properly accounted for in a justiciability analysis, not a jurisdictional analysis.”) (emphasis
added, internal citations omitted).
367 See infra “Areas of Doctrinal Uncertainty.”
368 See infra “What Can Congress (or a Member or Committee) Do?”
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Areas of Doctrinal Uncertainty
One of the key unanswered questions regarding legislative standing concerns what form of
authorization is necessary to empower a legislative plaintiff to assert an institutional injury on
behalf of his respective institution.369 In Raines v. Byrd, for instance, the Supreme Court
concluded that the individual Member plaintiffs “ha[d] not been authorized to represent their
respective Houses of Congress” for standing purposes370 even though Congress specifically
enacted a statute purporting to authorize “any Member of Congress” to “bring an action . . . for
declaratory judgment and injunctive relief on the ground that any provision of [the Line Item Veto
Act] violates the Constitution.”371 Similarly, in Walker v. Cheney, the court concluded that 31
U.S.C. § 716(b)(2)—which purports to grant the Comptroller General freestanding authority to
“bring a civil action . . . to require the head of [an] agency to produce a record”372—nonetheless
did not authorize the Comptroller General to sue the Vice President.373 While a congressional
litigant that obtains express authorization from a full house of Congress to participate in a
specifically identified lawsuit is more likely to satisfy the standing requirement than a litigant
who does not,374 it remains uncertain whether a general statute or rule purporting to authorize an
entity to proceed on Congress’s behalf would suffice to authorize that entity to proceed in court
on behalf of Congress without a specific vote empowering that individual to represent Congress’s
interests in a particular case. For instance, House Rule II(8)(b), promulgated by the 116th
Congress, states that “unless otherwise provided by the House, [(BLAG)] speaks for, and
articulates the institutional position of, the House in all litigation matters.”375 At least one
Member of the 116th Congress has interpreted this language to mean that “a vote of the BLAG to
authorize litigation . . . is the equivalent of a vote of the full House of Representatives” to initiate
a lawsuit in federal court.376 In light of Walker’s holding that a “generalized allocation of . . .
power” does not necessarily amount to authorization to litigate “specific issues” for the purposes
of the standing doctrine, it is unclear whether (or to what extent) House Rule II(8)(b) supplies the
necessary authorization for BLAG to represent the House’s interests in any particular case
without a specific authorizing vote.377
An additional open question that existing precedent does not conclusively resolve is whether and
under what circumstances the general availability of blunt legislative remedies—such as

369 See supra “Institutional Standing.”
370 521 U.S. 811, 829 (1997).
371 2 U.S.C. § 692(1) (1996).
372 31 U.S.C. § 716(b)(2).
373 See 230 F. Supp. 2d 51, 69-70 (D.D.C. 2002) (“[31 U.S.C. § 716(b)(2)’s] highly generalized allocation of
enforcement power to the Comptroller General twenty-two years ago 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 Article I and Article II Branches that have crystalized during the course of this dispute
and lawsuit.”).
374 The same judge that decided Walker, for instance, concluded in Miers that the House Committee on the Judiciary
possessed standing to assert an institutional injury in part because in contrast to Walker, “the full House ha[d]
specifically authorized filing [the] suit.” See Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F.
Supp. 2d 53, 70-71 (D.D.C. 2008).
375 H.R. RULE II(8)(b) (116th Cong.).
376 165 CONG. REC. H30 (daily ed. Jan. 3, 2019) (statement of Rep. McGovern). See also id. (“If a Committee
determines that one or more of its duly issued subpoenas has not been complied with and that civil enforcement is
necessary, the BLAG, pursuant to House Rule II(8)(b), may authorize the House Office of General Counsel to initiate
civil litigation on behalf of this Committee to enforce the Committee’s subpoena(s) in federal district court.”).
377 See 230 F. Supp. 2d at 69.
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impeachment—will deprive a legislative litigant of standing to seek judicial relief against the
executive branch. In Campbell v. Clinton, for instance, the D.C. Circuit concluded that individual
Members lacked standing to sue the President in part because “there always remains the
possibility of impeachment should a President act in disregard of Congress’ authority.”378 In
Blumenthal v. Trump, by contrast, the court concluded that a group of individual Members did
have standing to sue the President, stating (with little explanation) that “the availability of the
extreme measure of impeachment to enforce the President’s compliance with the [Emoluments]
Clause is not an adequate remedy.”379 Further litigation will likely be necessary to resolve these
conflicting strands of congressional standing precedent.
Perhaps the most difficult open question raised by the legislative standing jurisprudence concerns
what sort of institutional injury is sufficient to afford a legislative entity standing. At one end of
the spectrum, courts have generally recognized that institutional plaintiffs may sue to remedy
discrete injuries, such as informational injuries resulting from an executive branch agency’s
refusal to comply with a subpoena.380 At the other end, courts have typically determined that even
institutional plaintiffs cannot assert a generalized, nonparticularized interest in the proper
application, interpretation, or enforcement of the law.381 Some recent cases from the district
courts, however, appear to envision a broader conception of institutional injury.382 The court in
U.S. House of Representatives v. Burwell, for example, concluded that the House possessed
standing to pursue constitutional claims “that the Executive ha[d] drawn funds from the Treasury
without a congressional appropriation.”383 Critical to the court’s holding was the fact that the
Constitution designated “the Congress (of which the House and Senate are equal)” as “the only
body empowered . . . to adopt laws directing monies to be spent from the U.S. Treasury.”384
According to the court, the “constitutional structure would collapse, and the role of the House
would be meaningless, if the Executive could circumvent the appropriations process and spend
funds however it pleases.”385 Similarly, the Blumenthal v. Trump court concluded that the
individual Member plaintiffs possessed standing in part because they did not merely “disagree
with the manner in which the President [wa]s administering or enforcing the law,” but were
instead wholly prevented from discharging their constitutionally designated role in the
emoluments process.386 Burwell and Blumenthal thus suggest that Congress could have a

378 203 F.3d 19, 23 (D.C. Cir. 2000). See also Kucinich v. Bush, 236 F. Supp. 2d 1, 10 (D.D.C. 2002) (“Plaintiffs here
had extensive ‘self-help’ remedies available to pressure President Bush . . . Congressmen can certainly influence a
President’s actions through the appropriations power, by, for example, attempting to deny funding . . . and as a last
resort, Congress always has the option of impeachment.”).
379 335 F. Supp. 3d 45, 68 (D.D.C. 2018).
380 See Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 71 (D.D.C. 2008) (“The
injury incurred by the Committee, for Article III purposes, is both the loss of information to which it is entitled and the
institutional diminution of its subpoena power.”). See also, e.g., Comm. on Oversight & Gov’t Reform v. Holder, 979
F. Supp. 2d 1, 10-11 (D.D.C. 2013) (following the approach set forth in Miers).
381 See, e.g., U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 76 (D.D.C. 2015) (holding that “the
‘psychic satisfaction’ of knowing ‘that the Nation’s laws are faithfully enforced’ . . . is ‘not an acceptable Article III
remedy because it does not redress a cognizable Article III injury’”) (quoting Steel Co. v. Citizens for Better Env’t, 523
U.S. 83, 107 (1998)).
382 See, e.g., Nicholas Bagley, Oh boy. Here we go again., THE INCIDENTAL ECONOMIST, Sept. 9, 2015 (arguing that
“Judge Collyer’s opinion [in Burwell] can be read to suggest that standing rules should be relaxed when it comes to the
Appropriations Clause”).
383 130 F. Supp. 3d at 70.
384 Id. at 71.
385 Id.
386 335 F. Supp. 3d 45, 69-70 (D.D.C. 2018).
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justiciable injury when the executive branch violates the Constitution in a way that specifically
undermines Congress’s authority in a particular governmental process.387
It is unclear whether the Supreme Court or the federal appellate courts would ultimately endorse
the broad conceptions of congressional standing that the Burwell and Blumenthal courts
adopted.388 Because the parties in Burwell ultimately settled their dispute,389 neither the D.C.
Circuit nor the Supreme Court ever determined whether the district court’s standing conclusions
were correct.390 Nor has the D.C. Circuit resolved whether the district court correctly concluded
that the plaintiffs in Blumenthal possess standing to pursue their Emoluments Clause
challenges.391 Some (though not all)392 academics have argued, however, that the Burwell and
Blumenthal courts’ expanded conception of standing may be unsound,393 As these decisions
would appear to authorize congressional litigants to hale executive branch entities into the federal
courts in a fairly broad array of factual circumstances that implicate separation-of-powers
principles.394 Burwell, for instance, contains language suggesting that at least some congressional
litigants possess standing to sue the executive branch whenever it spends unappropriated funds.395
Blumenthal likewise contains language suggesting that legislative litigants—including individual
Members—could very well possess standing to sue the President in a variety of contexts in which
the Constitution offers Congress (or a house thereof) an opportunity to provide prior approval to a

387 See, e.g., Mank, supra note 335, at 189 (arguing that “U.S. House of Representatives v. Burwell appropriately found
congressional standing to challenge President Obama’s alleged misuse of the appropriations process because a core
institutional power of Congress was at stake”).
388 See Nash, supra note 366, at 342 (stating that “the lower courts have . . . generally been more open to[] claims of
congressional standing” than the Supreme Court).
389 See Settlement Agreement, U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53 (D.D.C. 2015) (No. 1:14-
CV-01967), ECF No. 83-1.
390 McKaye Neumeister, Reviving the Power of the Purse: Appropriations Clause Litigation and National Security
Law, 127 YALE L.J. 2512, 2533 (2018) (“Burwell was not resolved by the D.C. Circuit because the parties reached a
settlement . . . .”). See also Order, Azar v. U.S. House of Representatives, No. 16-5202 (D.C. Cir. May 16, 2018) (“The
appeal is hereby dismissed . . . .”).
391 See Defendant’s Motion for Certification of the Court’s Sept. 28, 2018 Order Pursuant to 28 U.S.C. § 1292(b),
Blumenthal v. Trump, 335 F. Supp. 3d 45 (D.D.C. 2018) (No. 1:17-CV-01154).
392 See, e.g., Mank, supra note 335, at 189 (arguing that “U.S. House of Representatives v. Burwell appropriately found
congressional standing to challenge President Obama’s alleged misuse of the appropriations process because a core
institutional power of Congress was at stake”).
393 See Bagley, supra note 382 (characterizing the district court’s standing determination in Burwell as “incoherent”
and “untenable” and predicting that the D.C. Circuit would not “let the judge’s decision stand”); Hall, supra note 310,
at 44 (criticizing the Burwell “court’s decision to grant standing to the House” as an “unprecedented . . . error,” but
nonetheless describing the court’s supposed “error” as “an understandable” one because “the Supreme Court’s
legislative standing case law is far from crystalline”).
394 See Hall, supra note 310, at 44 (arguing that “the district court’s theory of legislative standing” in Burwell “would
undermine the Framers’ intentions and drag the federal courts into partisan wrangling between elected officials”);
Bagley, supra note 382 (claiming that “accepting Judge Collyer’s order [in Burwell] would mark an unprecedented
expansion of judicial authority into interbranch” disputes).
395 See 130 F. Supp. 3d 53, 72-73 (D.D.C. 2015) (“Because the House occupies a unique role in the appropriations
process prescribed by the Constitution, not held by the ordinary citizen, perversion of that process inflicts on the House
a particular injury quite distinguishable from any suffered by the public generally . . . The House does have a
continuing and direct interest in the appropriation process, for that is its role in our constitutional system and the source
of virtually all of the House’s political power.”).
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particular executive action,396 such as appointments.397 Future judicial decisions may provide
further guidance on whether, how, and under what circumstances this sort of freestanding
congressional authority to summon executive branch entities before a federal judge is consistent
with the Supreme Court’s admonition that the “standing inquiry” is “especially rigorous when
reaching the merits of the dispute would require [a court] to decide whether an action taken by
one of the other two branches of the Federal Government was unconstitutional.”398
What Can Congress (or a Member or Committee) Do?
The fact that standing is a constitutional requirement circumscribes Congress’s ability to alter the
aforementioned standing rules by enacting legislation. The Supreme Court has repeatedly
reaffirmed “that Congress cannot erase Article III’s standing requirements by statutorily granting
the right to sue to a plaintiff who would not otherwise have standing.”399 At the same time,
however, the Court has also recognized “that Congress may ‘elevat[e] to the status of legally
cognizable injuries concrete, de facto injuries that were previously inadequate in law.’”400 It is
therefore possible that, even though Congress may not “abrogate the Art[icle] III minima,”401
Congress may under presently undefined circumstances enact a statute that grants it standing to
pursue a claim in federal court that it could not pursue in that statute’s absence. However,
whether (and to what extent) Congress possesses such power to do so in the context of legislative
standing may need to await further explication from the courts.402
In the absence of such guidance from the judiciary, a congressional litigant’s best strategy may be
to attempt to satisfy as many of the considerations listed above—that is, to
 attempt to obtain authorization to pursue the specific lawsuit in question from
one or both houses of Congress;403
 attempt to persuade the court that all possible legislative remedies would be
futile;404
 argue that the allegedly unlawful action has deprived Members of Congress of
the efficacy of their votes;405

396 See 335 F. Supp. 3d 45, 63 (D.D.C. 2018) (“Plaintiffs’ alleged injury is caused by the President’s alleged refusal to
give them the opportunity to exercise their constitutional right to vote on whether to consent prior to his acceptance of
prohibited foreign emoluments.”).
397 See U.S. CONST. art. II, § 2, cl. 2 (providing that the President “shall appoint Ambassadors, other public Ministers
and Consuls, Judges of the supreme Court, and all other Officers of the United States,” but only “by and with the
Advice and Consent of the Senate”) (emphasis added).
398 Raines v. Byrd, 521 U.S. 811, 819-20 (1997).
399 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547-48 (2016) (quoting Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997)).
400 Id. at 1549.
401 See Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 100 (1979).
402 Cf. Spokeo, 136 S. Ct. at 1550-53 (Thomas, J., concurring) (discussing limitations on Congress’s ability to create
private causes of action to vindicate so-called “public rights”).
403 See, e.g., Raines v. Byrd, 521 U.S. 811, 829 (1997) (“We attach some importance to the fact that appellees have not
been authorized to represent their respective Houses of Congress in this action . . . .”).
404 See, e.g., Raines, 521 U.S. at 829 (concluding that the individual Members did not lack “an adequate remedy”
because Congress could “repeal the [challenged] Act or exempt appropriations bills from its reach”).
405 Raines, 521 U.S. at 823 (“Coleman stands . . . at most . . . for the proposition that legislators whose votes would
have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into
effect (or does not go into effect), on the ground that their votes have been completely nullified.”).
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 analogize to historical precedent in which courts entertained similar challenges
by congressional litigants;406
 demonstrate that no other litigant would possess standing to vindicate the
congressional interest in dispute; and407
 avoid framing the legal theory as a generalized grievance challenging the
opposing party’s implementation or interpretation of a federal statute.408
Nonetheless, as several scholars have emphasized, “not all interbranch disputes—even
constitutional disputes—need to be resolved in the courts.”409 Indeed, the federal judiciary has in
many cases expressed marked hesitance to interpose itself between dueling branches of the U.S.
government.410 The lack of a judicial remedy to a congressional complaint may indicate that
Congress’s most promising means for resolving disputes with the executive branch may be the
political process, where a significant amount of constitutional decisionmaking occurs.411

Author Information

Wilson C. Freeman
Kevin M. Lewis
Legislative Attorney
Legislative Attorney

406 See, e.g., Raines, 521 U.S. at 826 (“Not only do appellees lack support from precedent, but historical practice
appears to cut against them as well.”).
407 See, e.g., Raines, 521 U.S. at 829-30 (“We note that our conclusion . . . [does not] foreclose[] the Act from
constitutional challenge.”);
408 See, e.g., Blumenthal, 335 F. Supp. 3d at 69-70 (“This is not a situation in which plaintiffs disagree with the manner
in which the President is administering or enforcing the law.”). See also Warth v. Seldin, 422 U.S. 490, 499 (1975)
(“[W]hen the asserted harm is a ‘generalized grievance’ shared in substantially equal measure by all or a large class of
citizens, that harm alone normally does not warrant exercise of jurisdiction.”).
409 Vicki C. Jackson, Congressional Standing to Sue: The Role of Courts and Congress in U.S. Constitutional
Democracy, 93 IND. L.J. 845, 892 (2018).
410 See, e.g., Kucinich v. Bush, 236 F. Supp. 2d 1, 11 (D.D.C. 2002) (“It is appropriate to defer to the political branches
of government, out of respect for the traditional restricted role of the judiciary in disputes between the Legislative and
Executive Branches, and in keeping with the Constitution’s separation-of-powers structure.”).
411 See Michael J. Gerhardt, The Constitution Outside the Courts, 51 DRAKE L. REV. 775, 777 (2003) (“It is hard to
overstate the range or significance of constitutional decision making that occurs outside the Court.”). See also Jackson,
supra note 409, at 892 (arguing that, with certain exceptions, it is “ordinarily . . . the better part of wisdom for courts to
presume the good faith of other branches and to continue to structure standing law on the assumption that most
controversies between the branches are best addressed through political mechanisms”).
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