Congressional Participation in Litigation: Article III and Legislative Standing (CRS Report for Congress)
Premium Purchase PDF for $24.95 (51 pages)
add to cart or
subscribe for unlimited access
Pro Premium subscribers have free access to our full library of CRS reports.
Subscribe today, or
request a demo to learn more.
| Release Date |
Revised Nov. 8, 2019 |
| Report Number |
R45636 |
| Report Type |
Report |
| Authors |
Freeman, Wilson C.;Lewis, Kevin M. |
| Source Agency |
Congressional Research Service |
| Older Revisions |
-
Premium Revised March 28, 2019 (46 pages, $24.95)
add
-
Premium March 26, 2019 (46 pages, $24.95)
add
|
Summary:
Houses, committees, and Members of Congress periodically seek to initiate or participate in litigation for various purposes, such as advancing their legislative objectives, challenging alleged transgressions of their legislative prerogatives, or defending core institutional interests. However, the constitutionally based doctrine of "standing" may prevent legislators from pursuing litigation in federal court. The standing doctrine requires a litigant seeking federal judicial 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. The U.S. Supreme Court and the lower federal courts have issued several important opinions analyzing whetherâand under what circumstancesâa legislative entity has standing to seek judicial 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, lower 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 is generally understood as setting forth the lone exception, allowing legislators to sue when their vote has been "nullified" by some claimed illegal action. In addition, a congressional plaintiff generally cannot predicate a federal lawsuit solely on a complaint that the executive branch is misapplying or misinterpreting a statute. Legislative plaintiffs, like all litigants, must demonstrate concrete and particularized injury to themselves, as the Supreme Court explained in its recent decision in Virginia House of Delegates v. Bethune-Hill.
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 and United States v. Windsor, allowed Congress to intervene to defend a law that the executive branch declined to defend but still enforced. 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.
