Congressional Standing

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Members of Congress occasionally sue in federal court to challenge the constitutionality of executive or legislative action. Although such interbranch litigation is commonplace in some European constitutional systems, the Supreme Court has ruled that members of Congress usually are not the proper people to prosecute these cases. They lack standing to sue.

The leading case in this area is Raines v. Byrd (1997). Members of Congress challenged the constitutionality of legislation giving the President a line-item veto. They claimed that the line-item veto injured them by diminishing the legal and practical effect of their votes on appropriations bills. The Court held that the plaintiffs lacked standing to sue because the legislation injured them only in their institutional, rather than personal, capacities. If the legislation had reduced their salaries or forced them from office, they would have had standing. The Court distinguished the line-item veto case from powell v. mccormack (1969), where the Court upheld Adam Clayton Powell's standing to sue the U.S. house of representatives for wrongful expulsion. Powell had been singled out for expulsion, which caused him personalized injury. The line-item veto injured all members of Congress indiscriminately, and only in an official sense.

The Court's approach to congressional standing is broadly consistent with its general policies governing the occasions on which federal courts may adjudicate constitutional challenges to legislation or other government action. Through the standing, mootness, and ripeness doctrines, the Court has usually barred plaintiffs from federal court unless they hold concrete personal stakes in the controversy. People who sue because government action threatens their personal liberty or property are generally permitted to maintain actions in federal court. People who sue because they are ideologically opposed to the government action in question are usually turned away from federal court. Put another way, the Court grants federal court adjudication to selfishly interested plaintiffs but withholds it from altruistic ones. One of the Court's official explanations for this seeming paradox is that self-interested litigants will bring out the best arguments in favor of their positions. Self-appointed guardians of the public good might lack the litigating initiative so crucial to sharp adversarial presentation.

Another thread running through standing doctrine, especially congressional standing, is the notion that the federal courts must carefully husband their political capital. Members of the public may chafe when they see unelected federal judges undoing the handiwork of the majoritarian branches of government. By restricting constitutional challenges to "proper" plaintiffs, the Court sharply limits the occasions upon which federal courts can exercise judicial review. This idea has particular application in the context of congressional standing, where allowing members of Congress to challenge the constitutionality of legislation or executive action would appear to put the courts smack in the middle of the political battlefield. In these situations, the standing doctrine is thought to preserve the judiciary's credibility with the public.

Evan Tsen Lee


Mc Gowan, Carl 1981 Congressmen in Court: The New Plaintiffs. Georgia Law Review 15:241–267.

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Congressional Standing

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