Do Seven Members of Congress have Article III Standing to Sue the Executive Branch?: Why the D.C. Circuit’s Divided Decision in Maloney v. Murphy was Wrongly Decided in Light of Two Prior District Court Decisions and Historical Separation of Powers Jurisprudence

The D.C. Circuit’s divided decision in Maloney v. Murphy granting standing to minority party members of the House Oversight Committee appears questionable in light of two prior district court decisions in Waxman and Cummings that had denied standing in similar circumstances. Most importantly, Maloney is inconsistent with Supreme Court precedent regarding standing for individual members of Congress. In Raines v. Byrd, the Supreme Court held that individual members of Congress generally do not have standing to enforce institutional congressional interests such as whether a statute is constitutional, but that one or both Houses of Congress must sue as an institution. The Maloney decision inappropriately applied a cognizable personal standing injury theory to the case to incorrectly find standing when the case should have been governed by Raines’ institutional injury rule allowing only a House or Houses of Congress to sue the Executive Branch, and the court should have denied standing. There are fundamental separation-of-powers concerns about federal courts intervening in disputes brought by legislators against the Executive Branch, and, as a result, courts properly take a narrow view of Article III standing in such cases. However, a House of Congress could sue to enforce a subpoena for such information, or an individual Member of Congress could bring a FOIA request. The Maloney majority opinion is cleverly argued, but it lacks the nuance and attention to historical practice in separation-of-powers cases in District Judge Mehta’s Cummings decision, which Maloney unfortunately reversed. This article seeks to expose the weaknesses in the standing theory in the Maloney decision, and, to prevent a flood of suits by small numbers of congressional members that could lead to excessive judicial involvement in political disputes between the Executive Branch and aggrieved individual members of Congress. Additionally, even if Maloney was correctly decided at the time, the Supreme Court’s subsequent TransUnion LLC v. Ramirez decision, 141 S. Ct. 2190 (2021), raises serious doubts by requiring proof of adverse effects for informational injuries that the Maloney plaintiffs might not have been able to prove