Article by: Nat Stern

43 PEPP. L. REV. 1 (2015)

Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non- enforcement of federal law. Leading scholars in the field of congressional standing immediately expressed doubt that courts would entertain a suit seeking to compel enforcement of these provisions. This Article argues that the premise that suits of this sort can be maintained rests on a tenuous understanding of the Supreme Court’s fitful treatment of standing by Congress or its members to sue the Executive.

The Court has never issued a definitive pronouncement on the viability of such suits, but its rulings have displayed a distinct pattern. Without expressly repudiating such suits, the Court has repeatedly passed on opportunities to affirm their validity. Based upon this pattern, it appears that a viable suit remains theoretically possible but apparently practically unattainable. Thus, this Article concludes that the Court consciously avoids recognizing legislative standing, but has left the door very slightly ajar in the event that an unanticipated case arises.


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