Introduction

Everyone in the legal community knows about Lujan v Defenders of Wildlife.1 Indeed, few decisions in Article III standing jurisprudence are as noteworthy (or as notorious) as Justice Antonin Scalia’s opinion for the Court in Lujan, which restricted Congress’s power to confer standing on private individuals.2 The Court held that Article III requires plaintiffs to assert a “concrete injury” and accordingly struck down a citizen-suit provision that permitted “any person” to bring suit to enforce federal environmental law.3

Lujan has provoked significant academic commentary (much of it critical).4 But another line of opinions may prove, in the long run, to be equally significant. Scalia was also (indeed, perhaps more) skeptical of a very different type of litigant: government institutions. Suits brought by, and between, federal and state governments are a growing breed. Just to offer a few examples: In United States v Windsor,5 the federal executive faced off against the House of Representatives over the constitutionality of the Defense of Marriage Act6 (DOMA).7 In Massachusetts v Environmental Protection Agency8 and Texas v United States,9 state governments brought suit to contest the executive branch’s failure to enforce federal environmental and immigration law, respectively.10 And in United States House of Representatives v Burwell,11 one chamber of Congress challenged the federal executive’s implementation of the Patient Protection and Affordable Care Act12 (ACA).13

Scalia objected to this new crop of intergovernmental disputes for many of the same reasons he advocated limits on private party standing. In both lines of cases, the Justice was driven by an overriding concern about restraining federal judicial power. Thus, in Lujan, Scalia urged that standing requirements “identif[y] those ‘Cases’ and ‘Controversies’ that are the business of the courts rather than of the political branches,” and thereby confine “the Third Branch” to its proper sphere.14 He emphasized the same point in government standing cases: “‘[T]he law of Art. III standing is built on a single basic idea—the idea of separation of powers.’ It keeps us minding our own business.”15

This emphasis on judicial overreach drove much of Scalia’s jurisprudential philosophy. He was perplexed by what he saw as the modern Supreme Court’s “Never Say Never Jurisprudence,” that is, the Court’s apparent unwillingness to “admit[ ] that some matters—any matters—are none of its business.”16 But in his effort to rein in the federal judiciary, Scalia may have overlooked a deeper problem. In upholding government standing claims, the federal judiciary has not imposed itself on unwilling participants. On the contrary, in recent decades, federal and state government institutions have invited (indeed, urged) the federal courts to resolve their disputes, rather than settling their issues through the political process.

But therein lies a potentially greater threat to the constitutional separation of powers. Building on prior work,17 this Essay suggests that the rise in “government versus government” lawsuits is a symptom of two related (and, to my mind, troubling) developments in our constitutional separation of powers. First, there has been an ever-increasing reliance on the judiciary to settle controversial issues. Second, there has been a corresponding decline of faith in the political process. To the extent these trends continue—and courts become embroiled in more and more political disputes—that may not bode well for the long-term independence of “the Third Branch.” Standing restrictions, after all, are designed not only to constrain the federal courts but also to protect them.

  • 1. 504 US 555 (1992).
  • 2. See id at 571–78 (holding that private individuals must demonstrate concrete injury and that Congress could not through a citizen-suit provision confer standing on “any person” to enforce the Endangered Species Act). See also James E. Pfander, Scalia’s Legacy: Originalism and Change in the Law of Standing, 6 British J Am Legal Stud 85–107 (2017) (emphasizing the considerable impact of Scalia’s opinion in Lujan).
  • 3. Lujan, 504 US at 571–78.
  • 4. See, for example, Cass R. Sunstein, What’s Standing after Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich L Rev 163, 235 (1992) (arguing that “Congress can create standing as it chooses and, in general, can deny standing when it likes”). See also Heather Elliott, Congress’s Inability to Solve Standing Problems, 91 BU L Rev 159, 174–77 (2011) (discussing aspects of the debate over Lujan). My prior work has defended the Court’s decision. See Tara Leigh Grove, Standing as an Article II Nondelegation Doctrine, 11 U Pa J Const L 781, 831–33 (2009) (arguing that “Congress may not confer standing via citizen-suit provisions that transfer to private parties the Executive Branch’s duty to see that federal law is obeyed”) (quotation marks omitted). But that is not my focus here.
  • 5. 133 S Ct 2675 (2013).
  • 6. Pub L No 104-199, 110 Stat 2419 (1996), codified at 1 USC § 7.
  • 7. Windsor, 133 S Ct at 2683–84. After the executive branch declined to defend DOMA, the House of Representatives intervened to defend the law. Id. The Supreme Court held that the executive had standing to appeal a lower-court decision invalidating DOMA (despite its refusal to defend the law) and did not comment on the House’s standing. See id at 2686, 2888. But Scalia and Justice Samuel Alito separately debated the House’s standing. See id at 2698 (Scalia dissenting); id at 2711 (Alito dissenting). I discuss Windsor in more detail in Part II.A.
  • 8. 549 US 497 (2007).
  • 9. 787 F3d 733 (5th Cir 2015), affd by equally divided court, 136 S Ct 2271 (2016).
  • 10. See Massachusetts, 549 US at 505–06 (upholding state standing in a suit challenging the EPA’s failure to regulate motor vehicle emissions); Texas, 787 F3d at 748–54 (upholding state standing to challenge the federal executive’s Deferred Action for Parents of Americans and Lawful Permanent Residents program).
  • 11. 130 F Supp 3d 53 (DDC 2015).
  • 12. Pub L No 111-148, 124 Stat 119 (2010).
  • 13. See Burwell, 130 F Supp 3d at 57–58 (upholding the House’s standing to challenge the executive branch’s alleged misuse of appropriated funds, but denying standing to challenge the executive’s delays in implementing the ACA).
  • 14. Lujan, 504 US at 576. See also Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U L Rev 881, 881 (1983) (“[T]he judicial doctrine of standing is a crucial and inseparable element of [the separation of powers], whose disregard will inevitably produce . . . an overjudicialization of the processes of self-governance.”).
  • 15. Arizona State Legislature v Arizona Independent Redistricting Commission, 135 S Ct 2652, 2695 (2015) (Scalia dissenting) (citation omitted), quoting Allen v Wright, 468 US 737, 750 (1984). See also Arizona State Legislature, 135 S Ct at 2694 (Scalia dissenting) (“Disputes between governmental branches or departments regarding the allocation of political power do not in my view constitute ‘cases’ or ‘controversies’ committed to our resolution by Art. III, § 2, of the Constitution.”).
  • 16. Sosa v Alvarez-Machain, 542 US 692, 750 (2004) (Scalia concurring) (making this comment in a case allowing the federal judiciary to hold that some customary international-law claims are actionable under the Alien Tort Statute).
  • 17. My earlier articles advocated limits on government standing. The arguments rest primarily on constitutional text, structure, history, and doctrine. But those articles also suggest that there are important prudential reasons to be wary of government standing. This Essay expands on that line of thinking. See Tara Leigh Grove, Standing outside of Article III, 162 U Pa L Rev 1311, 1314–16 (2014) (arguing that Article II and Article I help define the scope and limits of executive and legislative standing to represent the United States); Tara Leigh Grove, When Can a State Sue the United States?, 101 Cornell L Rev 851, 857 (2016) (arguing that states have broad standing to protect state law, including in suits against the federal government, but no “special” power—that is, no greater power than private parties—to challenge the federal executive’s implementation of federal law); Tara Leigh Grove and Neal Devins, Congress’s (Limited) Power to Represent Itself in Court, 99 Cornell L Rev 571, 627–28 (2014) (arguing that structural principles, particularly bicam­eralism and the separation of law enactment from law implementation, “help explain why the House and the Senate have standing to enforce committee subpoenas but lack standing to defend federal laws”).

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