Litigious Legislators: House v. Burwell and the Justiciability of Congressional Suits against the Executive Branch
Volume 89, No. 1, Fall 2016
By Katherine A. Rymal, J.D. Candidate, Temple University Beasley School of Law, 2017 [PDF]

United States House of Representatives v. Burwell is the latest in a litany of legal and political tactics that House Republicans have used to oppose the ACA and to attempt to force its repeal or revision. More broadly, it has the potential to be a landmark case for constitutional standing jurisprudence. Never before has an entire House of Congress brought a suit against the executive branch.

Throughout history, parties, politicians, and others have brought lawsuits against Presidents and executive branch officials. President Obama has been sued particularly frequently, beginning with a number of suits from citizens challenging the legitimacy of his candidacy under the natural born citizen clause and continuing with lawsuits challenging his use of executive power. Unlike suits brought by individuals or state entities—or even suits brought by the United States—suits in which the plaintiffs are legislators, working in their official capacities, present unique legal issues. The D.C. Circuit Court of Appeals has developed a standing doctrine that applies specifically to these cases. The Supreme Court has decided several such cases, but has not developed a clear doctrine.

This Comment argues that the Supreme Court’s piecemeal precedent is ultimately dangerous and that the Court should follow the D.C. Circuit’s lead in articulating a clear framework to address justiciability in suits brought by congressional plaintiffs. In support of that argument, this Comment provides an overview of the development of legislator standing doctrine in the D.C. Circuit and the Supreme Court and analyzes what that doctrine means for the unprecedented Burwell case.