There are a number of reasons why the proposed lawsuit by the House against President Obama is likely to be futile (or worse). Andrew McCarthy does an admirable job of laying many of them out here and here. Today I will address only one issue, the question of the House’s standing, from what may be a unique perspective.
This post is not about whether the House “ought” to be found to have standing as a matter of legal theory. I have no strong views on how much of modern standing doctrine can properly be derived from the Constitution’s “case or controversy” language and how much is an ahistorical judicial invention. On these questions see Professor Ramsey here and Professor Epstein here.
Nor would I argue that the House’s standing is foreclosed by controlling Supreme Court precedent. The Court has left the door open to institutional lawsuits by the House or Senate under certain circumstances and I assume that it could, if it wished, open that door wide enough to allow the House’s suit here. As discussed below, the reasoning of Raines v. Byrd, 521 U.S. 811 (1997), cuts against the standing theory offered by David Rivkin and Professor Foley in support of the House’s suit, but that is not my primary point.
The main point of this post is to explain why, IMHO, the courts will not in fact recognize the House’s standing to bring suit “to compel the president to follow his oath of office and faithfully execute the laws of our country,” as the Speaker’s June 25 memo puts it. Whether this result is best explained by a coherent theory of standing, sound constitutional policy, or naked judicial self-interest, I leave to the reader to decide.
Raines v. Byrd
Any analysis of the House’s standing to sue the president must begin with the Supreme Court’s seminal legislative standing decision in the 1997 Raines case. Raines involved a challenge to the Line Item Veto Act brought by several senators and representatives who claimed injury based on the fact that the Act would “nullify” their votes under certain circumstances (i.e., if they voted for an appropriations bill and the president eliminated particular line items that were essential to their support).
In an opinion by Chief Justice Rehnquist, the Supreme Court held that the Raines plaintiffs lacked standing. The plaintiffs, the Court found, had failed to demonstrate that “their claimed injury [was] personal, particularized, concrete, and otherwise judicially cognizable.” 521 U.S. at 820. The injury alleged was “wholly abstract and widely disbursed;” rather than being personal or particularized to the plaintiffs, it was shared equally by all Members and both Houses of Congress. Id. at 821, 829. The Court also emphasized that the plaintiffs were trying to re-litigate a legislative battle they had already lost (the passage of the Line Item Veto Act) and that they still had legislative remedies available (e.g., passing appropriations bills with riders prohibiting use of a line item veto). Id. at 824.
The Raines Court did not shut the door to all lawsuits which might seek to vindicate institutional legislative interests. It noted that the plaintiffs were individual legislators who were not authorized to represent their respective Houses and left open the question of whether such authorization might change the standing analysis. Id. at 829-39. Thus, it cannot be said that Raines by its terms forecloses a suit by the House against the president.
Nevertheless, Rehnquist’s opinion reflects deep skepticism about the prospect of the judiciary serving as referee for institutional disputes between the legislative and executive branches. He points to a number of historical inter-branch conflicts in which “no suit was brought on the basis of claimed injury to official authority or power.” Id. at 826.
Rehnquist points particularly to the controversy between the branches over the constitutionality of the Tenure in Office Act’s restrictions on the presidential removal authority. No one believed that this controversy, which lay at the heart of President Andrew Johnson’s impeachment, could have been presented to the courts for resolution. Id. at 826-28. Such action would have “improperly and unnecessarily plunged [the courts] into the bitter political battle being waged between the President and Congress.” Id. at 827.
Thus, notwithstanding the limited holding of Raines, it is apparent the Court saw standing doctrine not merely as preventing individual legislators from vindicating injuries suffered by the legislative body as a whole, but as a means of limiting judicial involvement in contentious executive-legislative disputes. Avoiding such disputes, and abjuring “’some amorphous general supervision of the operations of government,’” was seen as critical to “’maintain[ing] public esteem for the federal courts.’” Id. at 829 (quoting United States v. Richardson, 418 U.S. 166, 192 (1974) (Stevens, J., concurring)).
Furthermore, Rehnquist’s focus on the Johnson impeachment (citing his own book on impeachment, Grand Inquests) has a clear subtext: the Constitution already gives Congress a remedy for institutional injuries caused by executive lawbreaking.
The Census Litigation
Around the time Raines was decided in the summer of 1997, the House leadership was facing another problem. The decennial census was fast approaching, and the Clinton Administration had signaled its intent to use statistical sampling as part of the methodology for determining the constitutionally mandated population counts. Republicans feared that this methodology would be used to manipulate the census results for political gain.
Moreover, the census design would make it impossible to opt for an unadjusted headcount after the census was conducted. Thus, if the use of statistical sampling to derive population totals was illegal and/or unconstitutional, as the House Republican leaders believed it was, there would be no lawful “actual enumeration” that could be used to re-apportion House seats after 2000.
The question was whether the House could challenge the proposed census design in court. A provision was added to the FY 1998 Commerce, Justice, State, and Judiciary Appropriations Bill that purported to authorize either House of Congress, or any senator or representative, to bring suit to challenge the use of sampling before a three-judge court. CRS advised, however, that this provision was “likely ineffective” in light of the Raines decision. Cong. Rec. H8220-21 (Sept. 30, 1997) (CRS Memorandum to the Hon. Carolyn B. Maloney). In his signing statement of November 26, 1997, President Clinton also expressed doubt about whether there would be constitutional standing to challenge the census and noted “the Department of Justice is obligated to challenge any suits that fail to meet applicable justiciability requirements.” (One can only admire his commitment to the intricacies of standing doctrine).
But a dashing young lawyer from the House Counsel’s office (hey, its my blog) disagreed with these luminaries. He argued that Raines would not prohibit the House from suing the Clinton Administration over the legality of the census design. The essence of the House’s complaint was an informational injury, i.e., the illegal census design would deprive it of specific information that it needed to perform its constitutionally mandated duty of re-apportioning the House of Representatives. This is quite different than the “wholly abstract” injury involved in Raines. The courts have long recognized informational injuries as being sufficiently concrete and particularized to support standing, even if the plaintiff is seeking to vindicate a right to information available to the general public (such as FOIA).
By law the president is required to report the results of the decennial census to Congress in the first week of the regular session of the following year (see 2 U.S.C. § 2a (a)). If the president failed to provide the legally required census data, not only would Congress be deprived of specific information to which it was entitled, but the composition of the House itself could be affected. These injuries were far more concrete and particularized than the diminution of legislative power alleged in Raines.
So the House proceeded to retain counsel (Maureen Mahoney and Rick Bress of Latham & Watkins, after interviewing a number of the top Supreme Court litigators) and filed suit against the Department of Commerce (in which the Census Bureau resides).
As foreshadowed by Clinton’s signing statement, the Justice Department sought dismissal of the census lawsuit based on the House’s alleged lack of standing (among other things). However, it was difficult for DOJ to maintain that a House of Congress could never suffer an injury sufficiently concrete and particularized to support standing. For one thing, DOJ had acknowledged since the 1980s that the House or Senate could bring a civil suit to enforce a subpoena against an executive official (an acknowledgment it has more recently tried to back out of). See, e.g., 10 OLC 68, 87-88 & n.33 (1986); Raines, 521 U.S. at 831 (Souter, J., concurring) (“As [the United States] note[s], it is also possible that the impairment of certain official powers may support standing for Congress, or one House thereof, to seek the aid of the Federal Judiciary.”). Moreover, it is just hard to explain how failure to comply with a congressional subpoena causes an injury that is less concrete and particularized than failure to comply with a judicial or administrative subpoena.
At oral argument, the three-judge court was skeptical of DOJ’s position on standing. For example, one of the judges (I think it was Douglas Ginsburg) asked DOJ what would happen if executive branch personnel surrounded the Capitol and physically prevented Members of Congress from entering? Would that be a concrete and particularized injury sufficient to support congressional standing? I forget the answer, but it did not assuage the panel’s concerns about the DOJ’s standing argument.
The court ultimately issued a decision finding that the House had standing to sue both because of the informational injury caused by the executive branch’s refusal to provide the lawfully required census information and the injury to the House’s lawful composition that would result from the absence of information needed to conduct a proper re-apportionment. See U.S. House of Representatives v. U.S. Dept. of Commerce, 11 F.Supp.2d 76, 82-90 (D.D.C. 1998).
The court was careful to stress that the House’s standing fell within the “narrow area” left open by Raines and did not raise “the specter of ‘general legislative standing’ based upon claims that the Executive Branch is misinterpreting a statute or the Constitution.” Id. at 89. The court explained:
[T]he vast majority of legislation does not affect a legislature or a legislator in a concrete and particularized manner, and in a manner distinct from the general public. Only in an extremely rare case could a house of Congress claim that existing law, as interpreted and implemented by the Executive Branch, injures that house in a matter that satisfies Article III’s rigorous demands. However, because the Executive’s interpretation of existing law and the Constitution here affects the House’s statutory right to receive information and ultimately will affect its composition, this suit is that extremely rare case.
Id. at 89-90.
The court also found for the House on the merits and, in accordance with the special procedure established by the CJSJ Appropriations Act, the Clinton Administration appealed directly to the Supreme Court.
The Supreme Court Argument
The Supreme Court proved harder to convince that this was the “extremely rare case” in which legislative standing should be approved. While the Court divided along familiar lines with respect to the merits, concerns about the House’s standing knew no such bounds.
Here is a sampling of the chilly reception that the Court gave to the House’s standing theory:
Justice Souter: Ms. Mahoney, what is your response to the… I guess to the objection that if this is a sufficient basis for standing here, the Congress, as a practical matter, can place any obligation on some agency of the executive branch to provide it with information on a concrete subject; and if it ends up not liking the… the information that it gets, in effect, can sue the executive branch on matters that certainly impinge on the respective policy responsibilities of the two branches?
Are we opening up a very large door if we accept your argument?
* * *
Justice Scalia: Ms. Mahoney, in…in what other areas have we stepped in to resolve a dispute between the two political branches rather than letting them duke it out?
* * *
Justice Scalia: I don’t like injecting us into… into a battle between the two political branches.
I… I think they may survive.
I’m not sure we will.
* * *
Justice Kennedy: Well, they… they haven’t reached an impasse, because Congress basically has enacted a statute, and then gives its own separate houses the standing to challenge it.
That… that… it seems to me that destroys all discipline that’s required for a separation of powers system.
And I… I don’t know how… how would you confine this?
* * *
Justice Ginsburg: Ms. Mahoney, I know we’re going over to the merits now, but I would like you just to stay with the standing a moment longer.
Because I don’t see a stopping point, other than Congress says, gee, this is really important; we want you to resolve it, Court.
And I also don’t catch what you said about the legislature exhausted its legislative remedies.
Well, it would have… it didn’t… it didn’t pass the first bill over the President’s veto.
So it’s not a question that… it failed in that endeavor.
Could the legislature even now say, well, we don’t like what the President and the Bureau of Census is doing, so we’re going to say no funds for the Census; what about that remedy?
Ms Mahoney: Your Honor, then… then the House will suffer the injury.
The problem here, unlike most circumstances, is the House’s injury cannot be solved through its own unilateral action.
Justice Kennedy: Sure it can.
Justice Scalia: But it could if they had enough votes.
It can… it can refuse to appropriate money for the White House staff.
It can say, we’re not going to give you any money.
There… there are 900 ways that the House can… can stymie the President if it has the political will to do it.
And you’re telling me it doesn’t have the political will, so we should solve the problem for the House.
Ms Mahoney: Your Honor, if I could go first to the example of withholding money for the Census.
If… if the House withholds money for the Census…
Justice Scalia: Well, I wouldn’t do that.
Justice Kennedy: I wouldn’t do that.
Justice Scalia: I’m withholding money for the White House.
Unidentified Justice: [Laughter]
Justice O’Connor: The White House staff.
Ms Mahoney: If I could… if I could answer Justice Ginsburg’s question.
Withholding money for the Census of course will cause the harm.
Because the House will be un… unlawfully composed in 2… in 2002.
Justice Ginsburg: I’ll go with Justice Scalia’s, withhold money from whatever.
Yeah, laugh it up, Unidentified Justice, you aren’t the one who is going to have to go to the Speaker’s office to explain how the Court thinks he has 900 ways to stymie the White House if he just had enough “political will.”
Well, fortunately, it turned out to be unnecessary for the Court to reach the standing question thanks to a companion suit brought by a private party who did have standing. Seven justices therefore found it unnecessary to reach the question of the House’s standing. Two justices, Stevens and Breyer, found that the House did have standing based on the threatened injury to its composition. See U.S. Dept. of Commerce v. U.S. House of Representatives, 525 U.S. 316, 364-65 (1998).
From the above data, I derive the following lessons (again, these are not conclusions about standing doctrine per se, but how federal judges, and Supreme Court justices in particular, will think about a lawsuit the House brings against the president):
- The courts don’t like to get in the middle of a battle between the other two branches if they can possibly avoid it
- They really don’t like it when they are brought political controversies which should have been settled using other remedies, such as impeachment or the power of the purse, which the Constitution explicitly provides
- They really, really don’t want to set any precedent that would encourage the political branches to start suing each other or would seem to open the door to such suits except in truly extraordinary circumstances. Cf. United States v. Windsor, 570 U.S. __ (2013) (“The integrity of the political process would be at risk if difficult constitutional issues were simply referred to the Court as a routine exercise.”)
- Above all, they don’t want to become political targets themselves
Now of course we have only limited information about the lawsuit that the House would consider filing against President Obama, but nothing about that information strikes me as promising with respect to establishing its standing. The gravamen of the Speaker’s memorandum is that Obama is not faithfully executing the law. This charge, while very serious, is about an injury to the body politic, not to some discrete interest of Congress or the House.
Similarly, the areas in which the Speaker says that violations have occurred (heath care, energy, foreign policy and education) hardly seem to point to some unique or particular congressional interest. The breadth of these areas refutes any suggestion that they represent the kind of “extremely rare case” where Congress’s injury is different from that of the general public. Indeed, they would appear to present a rather weaker case for congressional standing than Raines, which after all did involve a question of legislative procedure. See 521 U.S. at 831-32 (Souter, J., concurring) (noting that the congressional plaintiffs “are not simply claiming harm to their interest in having government abide by the Constitution”).
As for use of legislative remedies, the charges set forth in the Speaker’s memorandum sound very much like high crimes and misdemeanors, but has the House impeached any executive branch official, much less the president himself? Has it cut off funding for the agencies involved in the failure to execute the law? Or for the White House staff? Or for whatever, as Justice Ginsberg so helpfully suggested?
In short, to accept the House’s lawsuit would seem to require the courts to adopt a principle of “general legislative standing,” or at least something far closer to that principle than any sitting justice seems likely to endorse. I could go on, but you get the idea, if you haven’t stopped reading long ago.