Speaker Boehner's proposed constitutional lawsuit against the president doesn't lack critics, including those who doubt that Congress has "standing" to bring such a case in federal court. And it's no surprise to find some conservatives among the critics: Conservative justices and judges were largely responsible for reinvigorating the doctrine of "standing" as a constitutional limit on judicial review of statutes and regulations.
But it is quite another thing to see liberals invoking rules of standing to bar courthouse doors, after spending decades complaining about the Rehnquist Court's invigoration of those very same rules, ever since the Supreme Court's rejection of environmentalists' standing in Lujan v. Defenders of Wildlife (1992). This has been a common tactic throughout the Obama administration's defense of regulatory programs, but perhaps the best example came today, from Harvard's Cass Sunstein.
"It is ironic," he writes, that Boehner’s lawsuit proposal "speaks of separation of powers, the oath of office and constitutional principles," because such a lawsuit would "defy" the Constitution by lacking the requisite standing. "If it is actually brought," he predicts, "the House’s lawsuit, purportedly designed to promote conformity to the Constitution, will almost certainly be promptly dismissed -- on constitutional grounds."
Well, yes, let's talk about irony. Long before President Obama appointed him to direct the White House's review of regulations, Sunstein was a vocal critic of the standing doctrine. Writing in 1988, he urged that new standing doctrines were not truly constitutional, and that the best understanding of the Constitution's requirements—namely, of Article III's provision that federal courts only hear actual "cases" or "controversies," not merely abstract arguments—is that Congress can vest litigants with standing by enacting statutes authorizing judicial review:
The best interpretation of article III would recognize that Congress has the authority to define legal rights and obligations, and that it may therefore, by statute, create an injury in fact where, as far as the legal system was concerned, there had been no injury before. Article III does not require an injury in fact, even if the APA does, and article III certainly does not require a traditional private right. Article III requires a case or controversy, a concept that depends on the acts of Congress.
... Lujan's invalidation of a congressional grant of standing is a misinterpretation of the Constitution. It is now apparently the law that Article III forbids Congress from granting standing to “citizens” to bring suit. But this view, building on an unfortunate innovation in standing law by Justice William O. Douglas, is surprisingly novel. It has no support in the text or history of Article III. It is essentially an invention of federal judges, and recent ones at that. Certainly it should not be accepted by judges who are sincerely committed to the original understanding of the Constitution and to judicial restraint. Nor should it be accepted by judges who have different approaches to constitutional interpretation.
But perhaps Sunstein's most famous writing on standing came a few years later, when he argued that Congress had the power to give standing not just to people, but to animals:
Nothing in the requirement of a “case or controversy” should be read to forbid Congress from treating animals as owners of legal rights. The “case or controversy” requires means that courts may not hear cases in which there is no cause of action, and it imposes other limitations on judicial power, including, under current doctrine, prohibitions on mootness, political questions, and merely ideological claims. To be sure, the framers anticipated that plaintiffs would ordinarily be human beings. But nothing in the Constitution limits Congress’ power to give standing to others. The conclusion is that if Congress wants to give animals standing to bring suit to protect their legal interests, it is permitted to do so.
So the Constitution allows Congress to give animals standing, but it denies Congress standing to bring lawsuits of its own? You do not need a law degree to recognize what's happening here.
It's particularly interesting to see Sunstein use the same basic rhetorical approach on both sides of the argument. Years ago, when liberal groups were the ones bringing lawsuits, Sunstein argued that judges "sincerely committed to the original understanding of the Constitution" must reject modern standing rules. But now, when House Republicans want to bring a lawsuit against President, "fidelity to the Constitution" would deny Congress standing to sue.
Yes, constitutional rules of standing exist for good reason; federal courts are forums for real cases and controversies, not mere political arguments. So it's not unfair to debate whether Congress would have standing to bring this lawsuit against the president. But let's have that debate with at least some measure of seriousness and sincerity.