A commentator has observed that “[t]he Supreme Court’s and lower federal courts’ jurisprudence on legislative standing is complicated.” Bradford C. Mank, Does a House of Congress Have Standing Over Appropriations?: The House of Representatives Challenges the Affordable Care Act, 19 U. Pa. J. Const. L. 141, 143 (2016). Generally speaking, this is true. A series of Supreme Court decisions over the past two decades have produced mixed and often inconclusive results, which tell us something about the views of individual justices but provide little in the way of definitive answers from the Court as a whole.
We know, for example, that there are two current justices at the most liberal/permissive end of the spectrum on legislative standing. Justice Breyer would have held that individual federal legislators had standing to challenge the constitutionality of the Line Item Veto Act (he was joined in this view only by the now-retired Justice Stevens). See Raines v. Byrd, 521 U.S. 811, 838 (1997) (Breyer, J., dissenting). In subsequent cases that presented the question whether state or federal legislative bodies had institutional standing, Justice Breyer supported legislative standing in each case. See Va. House of Delegates v. Bethune-Hill, No. 18-281 (June 17, 2019) (Virginia house of delegates); Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. __ (2015) (both houses of Arizona legislature); United States v. Windsor, 570 U.S. 744 (2013) (U.S. House of Representatives); Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999) (U.S. House).
Justice Alito has also staked out what Professor Mank calls a “novel” and “broad” approach to legislative standing. See 19 U. Pa. J. Const. L. at 183, 189. In Windsor, although a majority of the Court found it unnecessary to resolve the question of congressional standing, Justice Alito opined that “in the narrow category of cases in which a court strikes down an Act of Congress and the Executive declines to defend the Act, Congress both has standing to defend the undefended statute and is a proper party to do so.” Similarly, in this term’s Bethune-Hill decision, Alito (writing for himself, the chief justice, and Justices Breyer and Kavanaugh) would have found that the Virginia house of delegates had standing to defend the constitutionality of a redistricting plan passed by the Virginia general assembly. The Bethune-Hill majority, however, held that the Virginia house, “as a single chamber of a bicameral legislature,” lacked standing to assert an injury (invalidation of the redistricting plan) which had been suffered by the legislature as a whole.
Which brings us to the pending motion of the U.S. House of Representatives to intervene in United States v. Nagarwala, No. 19-1015 (6th Cir.). Nagarwala involves a criminal prosecution of individuals in Michigan for practicing female genital mutilation in violation of a federal statute, 18 U.S.C. § 116(a). The district court dismissed these charges on the ground that the statute exceeded Congress’s enumerated powers. The Justice Department initially filed a notice of appeal, but subsequently informed Congress pursuant to 28 U.S.C. § 530D(a)(i)(B)(ii) that it lacked a reasonable basis to defend the constitutionality of the law and therefore would not pursue an appeal. The House, through the Bipartisan Legal Advisory Group (BLAG), moved to intervene in the case to defend the constitutionality of the statute. Unlike other issues of legislative standing that may present themselves in the coming months, this one is fairly straightforward.
Although the House counsel gamely argues otherwise, it seems relatively clear that Bethune-Hill dooms this attempt at intervention. Assuming that the failure of the executive branch to defend the constitutionality of a federal statute gives rise to congressional standing to defend it, Bethune-Hill requires the legislature as a whole to assert this interest. While that case dealt with a state legislative body, there is no reason to believe its decision would not be equally applicable in this respect at the federal level.
There is, moreover, reason to question whether a majority of the Supreme Court is prepared to embrace Justice Alito’s broad theory of congressional standing. Alito’s Windsor opinion was predicated on his reading of INS v. Chadha, 462 U.S. 919 (1983), where the House and Senate were permitted to intervene in support of the constitutionality of the legislative veto. The Bethune-Hill Court, however, questions whether Chadha addressed congressional standing at all and in any event suggests that its import is limited to cases involving powers that can be exercised by each house independently. Bethune-Hill, slip op. at 9 n.5.
Furthermore, Nagarwala presents the unique case of a legislative body attempting to intervene in a criminal case. As Professor Jonathan Nash argues here, “while Congress has an interest in defending the constitutionality of its laws, that would not seem to rise to the level of interest necessary to sustain the sovereign’s interest in prosecuting a particular criminal matter.” Moreover, it is apparent the House cannot prosecute the criminal defendants. Instead, the House argues that if it prevails in the Sixth Circuit with respect to the constitutionality of the statute, this “will make it possible for the Justice Department to exercise its discretion to move forward with the prosecutions it initiated here under Section 116(a), if it wishes to do so.” Motion of the U.S. House of Representatives to Intervene 5 (Apr. 30, 2019). This sounds more like a request for an advisory opinion than an actual case or controversy.
To be sure, the situation when Congress intervenes in civil cases is not necessarily that different. In Windsor, for example, a case or controversy existed only because the Obama administration chose to enforce the Defense of Marriage Act (DOMA) despite claiming to believe the law to be unconstitutional. Even if the courts had upheld the constitutionality of the statute, the administration presumably could have chosen to pay the tax refund demanded by the plaintiff on the ground that it still believed the Constitution so required. In a very real sense, therefore, Windsor resulted from “Executive contrivance,” as Justice Scalia put it in his dissent, and thus itself was arguably an effort to obtain an advisory opinion in the administration’s favor.
Indeed, one could argue that Nagarwala contrasts favorably with Windsor in this respect. It appears the Trump Justice Department actually wishes to prosecute the crimes (allegedly) committed by the defendants, and the only reason it has decided to drop the case is that it has made a professional judgment that the statute cannot reasonably be defended under existing caselaw. Unlike Windsor, where the administration sought a “friendly scrimmage” (again, in Scalia’s words), here the Justice Department is not truly friendly to the other parties. It might be argued, therefore, that Nagarwala would be more of a true case or controversy than Windsor.
An analogy could be made to the procedure followed in Dickerson v. United States, 520 U.S. 428 (2000). This was a criminal case in which the issue was whether the defendant’s incriminating statement could be admitted into evidence. Finding the statement was taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966), the Fourth Circuit nonetheless held the statement admissible under 18 U.S.C. § 3501, a statute passed essentially to overrule the Miranda decision. The Supreme Court granted certiorari to consider the constitutionality of the statute, and the Clinton Justice Department informed Congress it would not defend § 3501 before the Court. (I explain and criticize the Justice Department’s position here.).
One might ask why the Clinton Justice Department simply did not moot the case by agreeing not to offer the incriminating statement in evidence. The answer is that it believed the statement was admissible on other grounds and (I think) still hoped to offer it on those grounds on remand. Thus, it is arguable that the parties were truly adverse on the question of the admissibility of the statement even though they were in agreement on the legal issue before the Court.
Because the parties in Dickerson agreed that the statute was unconstitutional, the Court appointed Paul Cassell as amicus curiae to defend the law. BLAG also filed an amicus brief in support of the constitutionality of § 3501. In Windsor, the majority opinion authored by Justice Kennedy suggested that BLAG, in defending DOMA, was playing a role similar to that of the court-appointed amicus in Dickerson, i.e., ensuring an adversarial presentation of the issues even if it lacked independent Article III standing.
All of which suggest that if the Justice Department were to continue the appeal in Nagarwala, the House could be permitted to participate as an intervenor/amicus or a traditional amicus. The House, however, lacks standing to pursue the appeal on its own authority, nor does it have the power to compel the Justice Department to appeal if it chooses not to do so. This is one legal dispute with Congress that the Trump administration should win.