The Supreme Court’s Latest Word on “Legislative Standing” and Lawsuits by Congressional Plaintiffs
Legal Sidebari
The Supreme Court’s Latest Word on
“Legislative Standing” and Lawsuits by
Congressional Plaintiffs
Updated June 27, 2019
On June 17, 2019, the Supreme Court decided Virginia House of Delegates v. Bethune-Hill. The Supreme
Court originally agreed to hear Virginia House of Delegates to determine whether a state legislative map
constituted an unconstitutional racial gerrymander. Instead of deciding that issue, the Court concluded
that the Virginia House of Delegates lacked standing to appeal the case to the Supreme Court, issuing an
opinion that could affect the ability of individual houses of Congress to participate in federal litigation
going forward.
The facts of Virginia House of Delegates were discussed in more detail in a previous CRS Legal Sidebar.
In brief, the case arose out of a lawsuit challenging the 2011 state legislative map in Virginia as an
unconstitutional racial gerrymander. In 2018, a federal district court determined that race was the
dominant motivating factor in drawing eleven Virginia legislative districts, deeming them
unconstitutional. Despite this adverse judgment, the Virginia Attorney General declined to appeal the
ruling. The Virginia House of Delegates, one of two houses of the Virginia General Assembly (the
legislative body of the Commonwealth of Virginia), which had previously intervened in the case, thus
sought to appeal the case to the Supreme Court in the Virginia Attorney General’s absence. After the
Supreme Court agreed to hear the case, plaintiffs and the Virginia Attorney General filed a motion in the
Supreme Court arguing that the Virginia House of Delegates lacked standing to bring the appeal, and
seeking to dismiss the case.
In a 5-4 opinion by Justice Ruth Bader Ginsburg, the Supreme Court granted the motion and dismissed
the House of Delegates’ appeal. According to the Court, the House of Delegates lacked the requisite
standing to maintain the appeal absent the participation of the Attorney General. In its opinion, the Court
addressed several principles of legislative standing that may be relevant in other contexts, including in
litigation involving the federal House of Representatives or the Senate.
This Sidebar provides an overview of the “legislative standing” doctrine, as it has been explained by the
Supreme Court prior to Virginia House of Delegates, before discussing the Court’s decision in Virginia
House of Delegates itself. The Sidebar concludes by discussing how Virginia House of Delegates fits into
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the Court’s prior jurisprudence and how it might affect future litigation involving the House of
Representatives or the Senate.
Overview of Legislative Standing
Whenever a party seeks to invoke the power of the federal courts, it must first show that its dispute
belongs there. This overarching limitation on the courts arises out of Article III of the Constitution, which
limits the federal courts to exercising their judicial power in “cases” and “controversies.” As part of that
limitation, a party seeking to obtain relief from a federal court must show “standing”—that is, that he 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.” Standing requires
showing three elements: (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. Intervenors seeking to appeal a decision that a primary party does not challenge must
independently demonstrate standing.
The standing doctrine applies to legislators and legislatures no less than private parties. However, a
special body of case law has been developed that addresses the question of standing when the party is a
legislator or legislative body seeking relief based on an injury in an official capacity. A CRS report that
predates Virginia House of Delegates discusses this doctrine of legislative standing in greater detail.
The Supreme Court has considered legislative standing on a handful of occasions. Three cases form the
backbone of this area of law. The first significant Supreme Court case to involve legislators filing a
lawsuit challenging a governmental action was the 1939 case Coleman v. Miller. Coleman involved state
Senators from Kansas who claimed that the Kansas Lieutenant Governor unlawfully cast the state’s tie-
breaking vote to ratify the Child Labor Amendment to the U.S. Constitution. The Court concluded that the
Senators had suffered an injury because they had a “plain, direct and adequate interest in maintaining the
effectiveness of their votes.” In reaching that conclusion, the Court emphasized that if not for the
unlawful act of which they complained, the Senators’ votes would have been “sufficient to defeat
ratification,” and as such, their votes had been “held for naught” and “overridden.” This injury was
sufficient to confer standing on the Senators.
Coleman went largely unexplored by the Supreme Court until the 1997 case Raines v. Byrd. In that case,
Senator Robert Byrd and other Members of Congress who had voted against the Line Item Veto Act
challenged its constitutionality. Like the Kansas Senators in Coleman, the Members of Congress argued
that they had standing because the Line Item Veto Act threatened the “effectiveness” of their votes on
budget matters, by giving the President new authority to “veto” line items in federal budgets. The Court
disagreed. Writing on behalf of the Court, Chief Justice Rehnquist concluded that Coleman was limited to
the proposition that “legislators whose votes would have been sufficient to defeat . . . a specific
legislative Act have standing to sue . . . on the ground that their votes have been completely nullified.” By
contrast, the Raines Court concluded that the plaintiffs had only alleged an “abstract dilution of
institutional legislative power” that they, as individual legislators, had no power to assert.
The last Supreme Court case prior to Virginia House of Delegates to speak directly to this question of
legislative standing was the 2015 case Arizona State Legislature v. Arizona Independent Redistricting
Commission. There, the entire legislature of the State of Arizona sued to challenge the authority of an
Independent Commission vested by popular initiative with the authority to draw the redistricting maps for
Arizona’s congressional districts. The Arizona Legislature argued that this authority violated the Elections
Clause of the Constitution. Unlike in Raines, the Court found the Arizona Legislature had standing. For
the Court, 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.” Furthermore, the Arizona Legislature was not alleging a
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mere “dilution” of its power; the Arizona Legislature’s injury, according to the Court, was similar to the
injury in Coleman because the Commission’s authority “completely nullif[ied]” any vote of the
legislature purporting to adopt a redistricting plan.
The Decision in Virginia House of Delegates v. Bethune-Hill
Virginia House of Delegates expanded on the principles from the previous case law, and further specified
what sorts of “legislative injuries” might give rise to Article III standing. The appellees and the Virginia
Attorney General argued in Virginia House of Delegates that the House of Delegates had not suffered any
concrete and particular injury as a result of the district court striking down the districting plan. In
response, the House of Delegates made three arguments for standing. In an opinion by Justice Ginsburg
for five justices, the Court rejected all three of these arguments.
First, the House of Delegates argued that it could proceed on behalf of the Commonwealth itself, in the
stead of the Virginia Attorney General. The Court examined Virginia law and concluded that certain
Virginia statutory provisions granted the Virginia Attorney General exclusive “[a]uthority and
responsibility for representing the State’s interests in civil litigation.” Accordingly, the Court determined
that the House of Delegates could not attempt to vindicate injuries to the Commonwealth generally.
Second, the House of Delegates asserted that it had a concrete and particularized interest in its own
composition, and the district court’s order threatened that interest by changing the way in which its
members were elected. In response, the Court reasoned that a legislative chamber “as an institution” has
no cognizable interest in the identity of its members. As the Court explained, because voters—rather than
the House of Delegates itself—select the House’s members, changes to membership brought about by the
voting public could not inflict an “injury” on the House of Delegates.
Finally, the House of Delegates argued that Coleman and Arizona State Legislature supported its standing
because the district court, in striking down the redistricting scheme, threatened its power in drawing
district lines, much like the Redistricting Commission’s authority had allegedly undermined the Arizona
State Legislature’s interest in defending its exclusive authority under the Elections Clause. In rejecting
this argument, Justice Ginsburg’s opinion distinguished Arizona State Legislature because there it was the
entire legislature that had brought the suit. Here, by contrast, the House of Delegates stood alone, but the
authority to draw district lines rested with both houses of the Virginia legislature. As the Court explained,
“a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as
a whole.” This perceived “mismatch between the body seeking to litigate and the body to which the
relevant constitutional provision allegedly assigned exclusive . . . authority” doomed the suit.
Justice Alito dissented and was joined by three other Justices. The main thrust of that dissent was that the
House of Delegates had standing because it had an interest in the identity of its members. The way in
which a legislature is selected, according to the dissenters, has a powerful effect on how it goes about its
business. Because the House’s redistricting plan presumably “embodies the House’s judgment regarding
the method of selecting members that best enables it to serve,” discarding that plan injured the House of
Delegates. Lastly, the dissent argued that the fact that the Virginia Constitution gives the redistricting
authority to the Virginia legislature as a whole should not have precluded the House from also suffering a
concrete injury to its institutional interests when that authority was curtailed. Rather, both the upper and
lower houses, as well as the legislature itself, should, in Justice Alito’s view, have been able to assert an
injury to their institutional authority.
Virginia House of Delegates and the Potential Impact for Congress
Virginia House of Delegates does not speak directly to when a federal house of Congress would have
standing. The case concerns a purely intrastate dispute and involves the authority of the Virginia House of
Delegates, which is governed by a different constitution than a house of Congress and may involve
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different considerations in the standing inquiry. However, it may be possible to draw some broad
principles from the case that could play a role in future litigation involving the House of Representatives
or the Senate.
First, the Court’s conclusion that a legislature has no justiciable interest in its membership may also apply
in the federal context. A “representative body composed of members chosen by the people,” according to
the Court, has no interest in changes to its membership brought about by the voting public. Furthermore,
as the Court explained, it did not matter that the Virginia House of Delegates might produce different
legislation in the future as a result of these changes. By contrast, the Court explained an injury could lie
when a change threatens the manner in which a legislature goes about its business, such as with a law that
dictated legislative procedures, or leadership decisions. However, because the House of Delegates did not
explain how the redrawn districts could affect the manner of its affairs, it could not demonstrate a
cognizable injury. Virginia House of Delegates may therefore clarify that a house of Congress could bring
suit in response to an action which affected its manner of doing business.
Second, and perhaps most importantly, the Court appeared to conclude that a single house could not assert
an injury belonging to an entire legislature. It is evident that this could affect future or ongoing litigation
involving a house of Congress. For example, in an ongoing lawsuit, the Department of Justice has
recently cited Virginia House of Delegates for the proposition that the House of Representatives lacks
standing to intervene in a criminal case to defend the constitutionality of a statute in place of the
Executive. Similarly, on June 26, the Fifth Circuit issued an order requiring that the House of
Representatives brief the question of standing as intervenors, in light of Virginia House of Delegates, in
an appeal involving the constitutionality of the Affordable Care Act. At least one lower court case, along
with language in Raines v. Byrd, had previously suggested that the House and Senate might have an
“equal” interest in certain constitutional powers, such as the appropriations power, which could give rise
to standing for one body without the other. However, the Court’s opinion in Virginia House of Delegates
indicates that there may be some circumstances in which both the House and the Senate must participate
in the litigation in order to vindicate interests possessed by Congress as a whole. The Court’s opinion did
suggest in a footnote that a statute granting a house of Congress a separate, independent interest could
justify a single body participating on its own behalf, but there are many cases in which no such statute
will be at issue.
Which circumstances permit one house of Congress to alone assert an institutional injury may be an
important question for future litigation, particularly in litigation involving a single house and the
executive branch. However, as the Court noted in Arizona State Legislature, “a suit between Congress and
the President would raise separation-of-powers concerns absent here,” and in such a case, an “especially
rigorous” standing analysis would apply. Virginia House of Delegates, like Arizona State Legislature, did
not involve these federal separation-of-powers concerns. These issues ultimately loom over many
legislative standing cases at the federal level, in addition to the principles which can be drawn from the
existing case law. Future litigation may shed more light on this area, as houses of Congress continue to
take their grievances to federal courts.
Former Legislative Attorney Wilson Freeman was the author of this Sidebar. Future inquiries on this issue
can be submitted to Kevin Lewis, who is listed as the coordinator for this product, but is not the author.
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Author Information
Kevin M. Lewis, Coordinator
Legislative Attorney
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