Congress\u27s (Less) Limited Power to Represent Itself in Court: A Comment on Grove and Devins

In their recent article, Congress’s (Limited) Power to Represent Itself in Court, 99 Cornell L. Rev. 571 (2014) Tara Leigh Grove and Neal Devins make the case against congressional litigation in defense of the constitutionality of federal statutes. They conclude that Congress, or a single House of Congress, may not defend the constitutionality of federal statutes in court even when the Executive Branch has decided not to do so but may litigate only in furtherance of Congress’s investigatory and disciplinary powers. Grove and Devins claim that congressional litigation in support of the constitutionality of federal statutes violates two separate but related features of the Constitution. “First, the Constitution precludes Congress from having a direct role in the implementation of federal law, providing instead that the executive branch ‘shall take Care that the Laws be faithfully executed.’” Second, “defense of federal statutes by the House or the Senate violates an additional constitutional norm: bicameralism.” Grove and Devins argue that bicameralism does not apply to litigation in support of congressional investigations, such as enforcement of subpoenas and punishment of contempt, because of the Constitution’s provision in Article I, section 5, clause 2, granting each House of Congress the power to determine its own rules and punish its members. Although I admire Grove and Devins’s article very much, I find the constitutional analysis that led to their conclusion against congressional litigation in support of the constitutionality of federal statutes unconvincing. In my view, the Take Care Clause imposes a duty on the President, and as such does not impinge on any of Congress’s power. Further, bicameralism does not prevent Congress from litigating in defense of federal statutes because the bicameralism requirement does not apply to litigation. Bicameralism applies only to legislation, and litigation is not legislation. Finally, Congress’s power to litigate to support its information gathering derives from its general legislative power and not from its power to make internal procedural rules