A Functional Theory of Congressional Standing

Jonathan Remy Nash*

The Supreme Court has offered scarce and inconsistent guidance on congressional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of-powers concerns in order to erect a high standard for congressional standing. It has also invited the Department of Justice to argue that Congress lacks standing to enforce subpoenas against executive branch actors.

Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions include gathering relevant information, casting votes, and (even when no vote is ever cast) exercising bargaining power over the scope of legislation. Accordingly, congressional standing can extend not only to cases of actual vote nullification (as extant Supreme Court precedent suggests), but also to cases in which (1) congressional plaintiffs validly seek information from the executive branch, and (2) the limited circumstance in which the executive branch has acted so as to threaten permanent and substantial diminution in congressional bargaining power—provided that enough legislators join the suit to lay claim to the relevant institutional bargaining power.

* Professor of Law and David J. Bederman Research Professor (2014–2015), Emory University School of Law. I am grateful to Eric Claeys, Michael Collins, Heather Elliott, Tara Leigh Grove, Aziz Huq, Gillian Metzger, Ashley Moraguez, Lori Nash, Rafael Pardo, and Alexander Volokh for helpful comments on prior drafts. Jameson Bilsborrow provided excellent research assistance.

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