A Functional Theory of Congressional Standing

IntroductionThe House of Representatives' recent decision to authorize filing a lawsuit against President Barack Obama and his administration1 with respect to the President's implementation of the Patient Protection and Affordable Care Act2-and the filing of a suit a few months later3-has focused attention on the House's standing to bring such a lawsuit in federal court.4 Commentators-including many who are sympathetic to the arguments that the lawsuit advanced on the merits-have questioned whether the House can claim proper federal court standing.5The controversy over the possibility of the House suing President Obama is not the only recent example of congressional standing emerging from the theoretical shadows. Under both President George W. Bush and President Obama, the Department of Justice invoked the Supreme Court's decision in Raines v. Byrd6-the Court's last direct foray into congressional standing-to support the argument that a House committee investigating the executive branch lacked standing to raise a judicial challenge to claims of executive privilege.7 And, when the executive branch declined to defend the constitutionality of the Defense of Marriage Act8 ("DOMA") in United States v. Windsor,9 the House of Representatives argued that its "Bipartisan Legal Advisory Group"-which articulates the House's legal arguments in courts10-had standing as an intervenor to defend the law in the executive's stead (a claim the Supreme Court left undecided in that case).11 Indeed, at least one commentator has suggested that the Court should recognize Congress's standing in general to defend laws against constitutional challenge when the executive branch has declined to do so.12These disputes over the ability of a house of Congress to file suit form part of a larger debate over "congressional standing" to participate in litigation before the federal courts. Congressional standing also encompasses whether a house of Congress can act as a defendant in a lawsuit-for example, defending a challenge to a law's constitutionality when the executive branch has conceded the challenge-and suits brought by individual federal legislators and blocs of legislators.In fact, the Supreme Court's guidance on congressional standing has been both scarce and inconsistent. The Supreme Court has directly confronted congressional standing in only two cases, accepting it in Powell v. McCormack,13 and more recently rejecting it in Raines v. Byrd,14 in which the Court suggested more broadly-but in dicta-that congressional standing may be quite constrained.15 In a case from this past June, Arizona State Legislature v. Arizona Independent Redistricting Commission,16 the Court endorsed the standing of a state legislature in a way that could be read to support congressional standing,17 but cited the language from Raines to specifically state that its holding did not extend to the question of congressional standing.18The lower courts have had greater experience with, and generally have been more open to, claims of congressional standing. The U.S. Court of Appeals for the District of Columbia Circuit-which has, not surprisingly, seen the bulk of congressional standing cases-has favored assertions of congressional standing, to the vocal displeasure of then-D.C. Circuit Judges Bork and Scalia.19 Still, the D.C. Circuit has relied on "equitable discretion" to allow itself, and the district court below it, to pick and choose the congressional standing cases to hear.20 Neither the lower courts nor scholarly commentators, however, have provided an overarching theory to justify this approach.This Article offers what Supreme Court cases, lower court cases, and commentary have failed to provide-a coherent theory of congressional standing. In particular, the Article argues that the Constitution supports a robust, but limited, role for congressional standing. The theory links standing to the primary functions of Congress: voting and information gathering. …