Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The Supreme Court has also created specific standing rules for federal courts to apply when members of a legislative body seek to uphold the effectiveness of their votes or vindicate their institution’s powers and prerogatives by suing (or defending) another unit of the same government in federal court.1 The Court has held that legislators may have standing to sue in order to maintain the effectiveness of votes that they have cast in their capacity as legislators if their votes ultimately did not prevail. In Coleman v. Miller, twenty-four members of the Kansas state legislature sought a writ of mandamus compelling state officials to recognize that Kansas had not ratified an amendment to the Federal Constitution, the Child Labor Amendment,2 challenging the way that the vote had been taken.3 Twenty of the members, who were senators, had voted to reject the amendment, but the measure ratifying the amendment nevertheless passed the state senate.4 The plaintiffs alleged that an illegal tie-breaking vote for ratification by the Lieutenant Governor had deprived their votes of effectiveness.5 Relying on several precedents, the Court held that the petitioners had “claimed a right and privilege under the Constitution . . . to have their votes given effect and the state court has denied that right and privilege.” 6 Because the state legislators alleged that their votes had been voided by the improper procedure that led to the approval of the amendment, and those votes would have been sufficient to defeat the proposal, the legislators had a sufficient stake in the outcome that supported their standing to sue.7

Decades later, the Supreme Court took a more narrow view of individual legislator standing in Raines v. Byrd.8 In that 1997 case, six Members of Congress challenged the Line Item Veto Act of 1996 (LIVA), a statute that authorized the President to cancel certain spending and tax benefit measures after signing them into law, as contrary to the bicameralism and presentment requirements of the Constitution.9 The Members argued that they had suffered injury because LIVA altered the effect of the votes they would cast in the future and divested them of their constitutional role in the repeal of legislation.10

The Supreme Court, in an opinion written by Chief Justice William Rehnquist, found that the Members lacked standing to challenge LIVA because they had not suffered an injury different from that suffered by Congress as a whole.11 Citing separation of powers concerns about resolving a dispute implicating the constitutional authority of Congress and the Executive in a lawsuit brought by legislators, the Court, in refusing to proceed to the merits, noted that the Member-plaintiffs had not suffered the concrete deprivation of a private right, like the loss of their seats in Congress, but instead alleged a general diminution of their political power.12 The Court thus distinguished Raines from its earlier decision in Coleman on the grounds that the latter case had involved legislators who alleged that their votes had been nullified, whereas the LIVA challenged in Raines did not significantly impact the power of the Members’ votes because they could vote to exempt future appropriations bills from LIVA or repeal LIVA if necessary.13 Although the Court determined that it lacked jurisdiction over the Members’ claims, it left open the possibility that one or both houses of Congress—or perhaps a committee—would have standing to sue for redress of alleged institutional injuries to Congress if authorized by at least one of the Houses, provided that another legislative remedy was not available to them.14

In two state legislator standing cases that did not raise similar separation of powers concerns, the Supreme Court rested its standing analysis on the specific features of the state governments at issue. In the first case, Arizona State Legislature v. Arizona Independent Redistricting Comm’n, the Court considered a state ballot initiative that would vest the authority to draw legislative districts in an independent commission. The Arizona State Legislature, acting pursuant to an authorizing resolution, challenged that ballot initiative, claiming that it had suffered injured by a diminution in its legislative authority.15 Noting that the case did not raise separation of powers concerns that might arise if Congress sued the President, the Court held that the Arizona legislature was a proper party to sue because, like the plaintiffs in Coleman, it had lost the opportunity to adopt a redistricting plan (i.e., its members’ votes were nullified).16 Moreover, such an institutional injury to the legislature could serve as the basis for a lawsuit, at least when the legislature authorized suit by enacting a resolution in each chamber.17

By contrast, in Virginia House of Delegates v. Bethune-Hill, the Supreme Court held that a single house of the bicameral Virginia state legislature lacked standing to appeal a federal district court order requiring the redrawing of a 2011 legislative redistricting map.18 The Virginia House of Delegates (House) had previously intervened to defend the constitutionality of the legislative redistricting plan against a voter-led Fourteenth Amendment Equal Protection Clause challenge, but the Virginia Attorney General, who was the primary defending party, had decided not to appeal an unfavorable ruling.19 As discussed, in determining that the House lacked standing to appeal on behalf of the state, the Court noted that Virginia law assigned the Virginia Attorney General the task of representing the state in appeals like the one before the Court.20 Moreover, the Attorney General had not delegated such litigation authority to the House of Delegates.21 Unlike in Arizona State Legislature, the House lacked standing to appeal in its own right because it was a single component of the bicameral state legislature responsible for redistricting and could thus not assert the interests of the legislature as a whole.22 Moreover, the House’s alleged injury (i.e., invalidation of a state redistricting law) was not cognizable for standing purposes as it did not permanently deprive the House of its role in redistricting and the House did not suffer a cognizable injury merely because its composition (and, therefore, the content of legislation) could be altered by the electorate as a result of a redrawn redistricting map.23 In this regard, the Court noted that the invalidation of the redistricting law did not infringe upon the unique legislative powers of the Virginia House by altering the manner in which it conducted its day-to-day-operation (e.g., by altering its committee structure).24

Footnotes

1

E.g., Raines v. Byrd, 521 U.S. 811, 826 (1997).

2

The proposed Amendment provided in part that “Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.” Coleman v. Miller, 307 U.S. 433, 435 n.1 (1939) (internal quotation marks omitted).

3

Id. at 436–37.

4

Id. at 435–36.

5

Id. at 435–38.

6

Id. at 438, 446 ( “We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes.” ). See also Raines v. Byrd, 521 U.S. 811, 822 (1997) (discussing the votes that comprised a majority of the Court for this rule).

7

Coleman, 307 U.S. at 438, 446.

8

521 U.S. 811 (1997).

9

Id. at 814, 816. For more on the bicameralism and presentment requirements, see ArtI.S1.2.2 Origin of a Bicameral Congress and Amdt20.S3.1 Presidential Succession.

10

Raines, 521 U.S. at 816.

11

Id. at 820–21 (citing Powell v. McCormack, 395 U.S. 486, 496, 512–14 (1969)).

12

Raines, 521 U.S. at 820–21 ( “The claimed injury thus runs (in a sense) with the Member’s seat, a seat which the Member holds . . . as trustee for his constituents, not as a prerogative of personal power.” ). The Court distinguished this type of grievance from Powell v. McCormack, 395 U.S. 486, 512–17 (1969), in which the Court allowed a Member of Congress to challenge his exclusion from the House of Representatives. In Raines, the Court wrote that the Member of Congress in Powell had standing to sue because he alleged injury to a personal, private right (i.e., his right to his congressional seat and federal salary) rather than injury to Congress as an institution. Raines, 521 U.S. at 820–21.

13

Id. at 824 ( “In the vote on the [LIVA], their votes were given full effect. They simply lost that vote.” ). The Court also found a lack of historical practice involving suits maintained to redress injury to institutional power. Id. at 826–28.

14

Id. at 829.

15

576 U.S. 787, 788 (2015).

16

Id. at 795–99 & n.12.

17

Id. The Court did not specifically state that the legislature was required to enact an authorizing resolution in order to establish standing.

18

No. 18-281, slip op. at 1–2 (U.S. June 17, 2019). The district court had held that the redistricting plan unconstitutionally sorted voters based on race in several districts. Id.

19

Id. at 1–4. As the Court noted, “[b]ecause [the House of Delegate’s participation in prior proceedings did not entail] invoking a court’s jurisdiction, it was not previously incumbent on the House to demonstrate its standing.” In Bethune-Hill, the House sought to appeal the district court’s ruling when the Virginia Attorney General had decided not to appeal on behalf of the state defendants; therefore, the House had to establish standing independently. Id.

20

Id.

21

Id. at 4–5.

22

Id. at 7–8.

23

Id. at 8–12. The House had pursued the appeal based solely on its role in the legislative process.

24

Id. at 10–11.