« Cass Sunstein & Adrian Vermeule: On the Plural Aims of Administrative Law
Michael Ramsey
| Main | Harold Anthony Lloyd: Pragmatics and Textualist Error
Michael Ramsey »

09/11/2015

Josh Blackman on House of Representatives v. Burwell and Congressional Standing
Michael Ramsey

Josh Blackman has an extensive analysis of the recent District Court decision in House of Representatives v. Burwell, which found that the House as an institution has standing to sue the President for spending money without an appropriation.

(Plus more from Elizabeth Price Foley at Instapundit here.)

It's not an originalist opinion, although the core conclusion derives some logical force from the Constitution's text and structure:

... [T]he House has suffered a concrete, particularized injury that gives it standing to sue. The Congress (of which the House and Senate are equal) is the only body empowered by the Constitution to adopt laws directing monies to be spent from the U.S. Treasury. See Dep’t of the Navy v. FLRA, 665 F.3d 1339, 1348 (D.C. Cir. 2012) (“Congress’s control over federal expenditures is ‘absolute.’”) (quoting Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 185 (D.C. Cir. 1992)); Nevada v. Dep’t of Energy, 400 F.3d at 13 (“[T]he Appropriations Clause of the U.S. Constitution ‘vests Congress with exclusive power over the federal purse’”) (quoting Rochester, 960 F.2d at 185); Hart’s Adm’r v. United States, 16 Ct. Cl. 459, 484 (1880) (“[A]bsolute control of the moneys of the United States is in Congress, and Congress is responsible for its exercise of this great power only to the people.”), aff’d sub nom. Hart v. United States, 118 U.S. 62 (1886). Yet this constitutional structure would collapse, and the role of the House would be meaningless, if the Executive could circumvent the appropriations process and spend funds however it pleases. If such actions are taken, in contravention of the specific proscription in Article I, § 9, cl. 7, the House as an institution has standing to sue.

Significantly for originalists, the opinion relies to some extent on the Supreme Court's Arizona redistricting case, which found that the Arizona legislature had standing to challenge an Arizona constitutional rule that (according to the legislature) deprived it of its right under the U.S. Constitution to control redistricting.  Justice Scalia, joined by Justice Thomas, dissented as to standing in that case, and it does seem that if the Arizona legislature lacked standing, likewise the House should lack standing.

But I am not sure about Justice Scalia's standing analysis as an originalist matter.  Here is his central contention from the Arizona case:

What those who framed and ratified the Constitution had in mind when they entrusted the “judicial Power” to a separate and coequal branch of the Federal Government was the judicial power they were familiar with—that traditionally exercised by English and American courts. The “cases” and “controversies” that those courts entertained did not include suits between units of government regarding their legitimate powers. The job of the courts was, in Chief Justice Marshall’s words, “solely, to decide on the rights of individuals,” Marbury v. Madison, 1 Cranch 137, 170 (1803).

True, there's likely no precedent for these sorts of suits under eighteenth century English law, giving rise to the question whether they are part of the "judicial Power."  But England didn't have a separation of powers defined by a written constitution and enforceable by judicial review.  So maybe English practice shouldn't be decisive.  And we (and Justice Scalia) readily accept institutional standing for states to sue the federal government and each other, as part of the Constitution's implicit design, even though there was (naturally) no counterpart for such suits in English law, and even though state vs. federal suits are not (directly) brought to "decide on the rights of individuals."  Scalia's opinion actually turns entirely on a distinction between state vs. federal suits and "suits between units of [the same] government regarding their legitimate power." (emphasis added).

I don't see an originalist basis for that distinction.  In a separated power system, the horizontal division of power among constitutionally distinct institutions at the national level is analogous to the vertical division of powers between constitutionally distinct entities at the national and state level.

That doesn't mean that all institutional standing cases should come out in favor of standing.  As to particular claims, the injury, causation or redressibility may be lacking.   In this case, though, the House seems to have a fair claim that, as to appropriations, the President is (arguably) exercising a right reserved exclusively to Congress and that the institution is thereby harmed by the loss of that exclusive right.  Unless there is a blanket rule against institutional standing (as Scalia favors) this seems a strong claim.

(But, as an aside, I don't see how the House hopes to win this case without the votes of Scalia and Thomas).

A further thought: I can't help but object to one aspect of the District Court's opinion, differentiating standing and the political question doctrine.  She writes (quotations and citation omitted, emphases added):

There is a significant difference between determining whether a federal court has jurisdiction of the subject matter and determining whether a cause over which a court has subject matter jurisdiction is justiciable. Jurisdiction governs a court’s authority to hear a case; justiciability pertains to the advisability of hearing the case.

Justiciability counsels the avoidance of political cases or controversies. The term ‘political’ has been used to distinguish questions which are essentially for decision by the political branches from those which are essentially for adjudication by the judicial branch. Hence the “political question” doctrine. That self-imposed limitation [ed.: !] bars our jurisdiction only when the Constitution textually commits the issue to be adjudicated in the case to a coordinate political department, or when there is a lack of judicially discoverable and manageable standards for resolving it.

No, no, no!  (Not as an original matter anyway, and as re-affirmed in Zivotofsky v. Clinton).  Non-justiciability is a constitutional command: the matter is textually committed to another branch by the Constitution or there are no judicially manageable standards and thus the issue is beyond the judicial power to resolve.  This is not about the "advisability" of hearing the case; it's about whether the Constitution allows the court to hear the case.  The political question doctrine is jurisdictional, as much as standing is.  (And the supposed "prudential" parts of it, traceable to the profoundly non-originalist opinion in Baker v. Carr, are as suspect as the supposed prudential parts of standing doctrine.)

But I agree with the District Court that the political question doctrine doesn't bar this suit: it's a pure question of constitutional interpretation, exactly in line with Zivotofsky.