Law Commons^™

Standing, Politics, And Exhaustion: A Response To Legislative Exhaustion, Heather Elliott

William & Mary Law Review Online

Professor Michael Sant’Ambrogio’s article, Legislative Exhaustion, usefully approaches the problem of “legislative standing” by abandoning the typical Article III standing analysis and making instead a separation-of-powers argument. His theory—that Congress may sue the President only when it has no legislative avenue for addressing its problems—provides both a workable account of and a limiting principle for suits by the legislative branch against the executive. His analysis, however, raises questions regarding the effect of legislative lawsuits on the constitutional balance of powers. This Essay suggests that these questions should be more fully explored before Professor Sant’Ambrogio’s approach can be adopted. It concludes …

Legislative Exhaustion, Michael Sant’Ambrogio

William & Mary Law Review

Legislative lawsuits are a recurring by-product of divided government. Yet the Supreme Court has never definitively resolved whether Congress may sue the executive branch over its execution of the law. Some scholars argue that Congress should be able to establish Article III standing when its interests are harmed by executive action or inaction just like private parties. Others, including most prominently the late Justice Antonin Scalia, argue that intergovernmental disputes do not constitute Article III “cases” or “controversies” at all. Rather, the Framers envisioned the political branches resolving their differences through nonjudicial means.

This Article proposes a different approach to …