Congressional Standing to Sue: The Role of Courts and Congress in U.S. Constitutional Democracy

In recent years, legislatures and their members have increasingly asserted standing to sue other branches of government, in controversies involving state legislators or legislatures as party litigants and in controversies involving members of or parts of the U.S. Congress. These cases present challenging questions for the federal Article III courts, whose jurisdiction has been interpreted to be bounded by “justiciability” doctrines, including that the party invoking federal court jurisdiction must have standing to do so. This Essay will focus on congressional standing, discussing case law involving claims by state legislatures or legislators to the extent they are relevant.1 It will examine congressional standing—including standing of individual Members of Congress, standing of parts of Congress, and standing for the whole body—within the context of U.S. commitments to democratic constitutionalism, offering a framework for analysis that is intended more to suggest ways of thinking about congressional standing than to prescribe a set of answers