Let’s stipulate up front we have an Article I problem. The FedSoc’s Article I Initiative lays it out well, with a stated mission to restore Congress to “its rightful place in the Constitutional order” with the founders enshrining it as “the most powerful branch.” You can go from there to any number of additional scholars, pundits, and curious retired staffers enthusiastically echoing that premise.
Not being a licensed law-talking guy, and deferring to my colleague James who is the foremost expert on Congressional procedural arcana, I’ll nonetheless outline here an idea for empowering some basic core strength in the ongoing Congressional/Executive tug-of-war. Congressmaxxing we are not.
Congressional Standing in the Courts
Justice Scalia was fond of pointing out that lots of Congress-President disputes are a political issue, not a strictly legal one. That is, the Constitution lays out a political structure whereby plenty of disagreements should (or will inevitably) be resolved by elections, oversight, nominations, heads-up negotiations, appropriations, and something called “impeachment.”
The implication is the Judiciary would do well not to weigh into policy fights that are after all the whole point of politics. “I don’t care if your sister’s bothering you because she thinks you stole her favorite Labubu” a parent might say, “you two work it out.” The court corollary may be something like: “Congress, you weren’t specific and explicit enough in your bill. But that’s not our problem. Pass another bill that’s clearer. We’ll check back in around October.”
By avoiding weighing in on a whole kind of dispute, it reduces the tendency for the Judiciary to become an entirely distinct policymaking machine. The prudential goal of the courts is to weigh in on legal questions proper, which empower the other branches to do their job of making and executing policy choices, through essentially establishing meta-rules which enhance predictability.
So what’s the problem? Sometimes you gotta get your parents’ attention. Or alternatively a third sibling who’s more chill.1
Name That Landmark
Take the edifying but literally nominal case of the National Cultural Center. In 1964 Congress passed a law establishing a national performing arts center named “John F. Kennedy Center for the Performing Arts.” I put it in quotes because it’s a direct quotation from Pub. L. 88-260. It’s not written as a suggestion, or a placeholder. There’s even some appropriations and governance structure.
Yet there seems to be some dispute about what the text of this bill, excuse me, law means. Pending court cases notwithstanding (back to that momentarily), the name above is not the current name of said performing arts center. Or it wasn’t for a spell? I dunno, I haven’t been invited back to perform there in a minute.2
This isn’t an issue of urgent national importance really. Except that it’s a symptom of a much larger problem that shouldn’t be ignored. Congress did its job, speaking in no uncertain terms about what was to be done. There’s no issues of ambiguity, textual this vs. intent that—no “best available” or “in the judgment of” or “based on a study to be issued within 120 days.” No vagueness from which to induce specificity. This is a glorified postal naming bill.
"All persons having business before this honourable court…"
And yet…who has standing to challenge this non-legislative renaming? As I understand it, standing requires a plausible demonstration of harm: that I, the petitioner, am among those injured by this action.
One supposes the Kennedy family maybe could make this case. But then you’re left with an aesthetic evaluation of whether an elongation and insertion of a conjunction to a name does “harm” to the original namesake. That can’t be it.
Some architects and preservationists sued, but that has to do with potential changes from an ensuing closure. As the kids might say, it’s giving side quest.
Rep. Joyce Beatty gets closest, in her filing which points out the renaming is an obvious violation of the law. But it’s actually her second alleged count, behind an allegation about the duties of the center’s trustees, of which she is one. Putting aside how her brief is written like an elongated press release, with all kinds of irrelevant and refutable verbiage, her argument is premised by her unique position as a board member.
What if the law didn't happen to require the board include a member of Congress?
No, the real harm is to Congress. If Congress can pass a law, about which literally no one argues is unconstitutional or interpretively open-ended, then failure to follow it damages the Article I prerogative. It damages the rule of law.
The thing courts are supposed to be most concerned with.
We can apply the same concern to more significant issues argued in other cases: Nebraska v. Biden, West Virginia v. EPA, Sierra Club v. Trump. More recently, one imagines the January 6 fund could be subject to litigation on these grounds–you’ll notice none of the plaintiffs are Congress.3
Wait, Who’s in Charge Here?
It turns out the legislative prerogative extends to the operations of the judiciary itself.
Therefore: Congress, if courts will not do so for itself, should explicitly impose a more permissive rule for standing to challenge Executive actions. No more courtly handwaving about “political domain” etc. (what, is Congress supposed to withhold appropriations…for a thing they’re trying to undo?).
One framework to do so shows promise but only applies to a specific set of authorities – whatever the mechanism it should apply universally. Broadly it would not need (nor would we want) to empower individual members to vindicate Congress’s prerogatives. But just as articles of impeachment are given privileged status (in the House any individual member can effectively force them to the floor, though the Speaker can intercede with a motion to table) so too should such a critical check on a metastasizing Executive power at the expense of an atrophying Congressional one.
Legal pundits Sarah Isgur and David French recently used this framing to describe the “Political Questions Doctrine.”
This seems to change by the week, now involving implied rights and privileges of an ex officio with respect to Zoom meetings.
Supra, note 1. In the same discussion they conclude that the courts ought to properly recognize that this is another political question, and send Congress back to find its own resolution. Which according to their argument they are doing by withholding DHS funding including immigration enforcement. I’d argue that’s a pretty attenuated connection to the issue at hand, which if applied broadly, would effectively make every Executive overreach a “political issue.” They go on to note that the settlement fund from which this particular use is taken should be held as unconstitutional under non-delegation, but we’re right back to what party merits standing? A non-delegation claim is not self-executing.