NOTES
Down With Legislative-Standing Myopia: Why
Congressional Suits to Police the Separation of
Powers Fail Under Article I
RYAN COOKE*
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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I. THE CURRENT LANDSCAPE AND A CALL TO RETURN TO FIRST
PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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A.
DIAGNOSING THE STATUS QUO: A FLAWED ARTICLE III STANDING
..........................................
1059
..................
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1.
Swapping Standing For Implied Causes of Action . . . . .
1061
2.
A Look to Constitutional Norms . . . . . . . . . . . . . . . . . .
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LENS
B.
C.
THE BEGINNINGS OF A PARADIGM SHIFT
FIRST PRINCIPLES: COUNTING BACK TO ARTICLE I
............
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II. THE POWER TO SUE THE EXECUTIVE IS NOT INHERENT IN LEGISLATIVE
POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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A.
THE METES AND BOUNDS OF INHERENT LEGISLATIVE POWER
.....
1066
B.
THERE IS NOTHING INHERENT ABOUT THE POWER OF
..............................
1067
III. THE POWER TO SUE THE EXECUTIVE IS UNNECESSARY AND
IMPROPER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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CONGRESSIONAL SUIT
A.
CONGRESSIONAL SUIT AS A “GREAT SUBSTANTIVE AND
INDEPENDENT POWER”
1.
..............................
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The Power to Sue a Coordinate Branch is a Great
Substantive Power . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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* Georgetown University Law Center, J.D. 2016; University of Richmond, B.A. 2013. © 2017, Ryan
Cooke. Many thanks to Paul Clement for his sage feedback on an earlier version of this Note, and to the
editors and staff of The Georgetown Law Journal for their thoughtful advice. But above all else, I want
to thank my partner, Meghan, for her support in this endeavor as in all.
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2.
B.
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The Power to Sue a Coordinate Branch is a Great
Independent Power . . . . . . . . . . . . . . . . . . . . . . . . . . .
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CONGRESSIONAL SUIT IS INCONSISTENT WITH THE SPIRIT AND
......................
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Separation of Powers Principles, Like Principles of
Federalism and State Sovereignty, Limit Incidental
Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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The Power of Congressional Suit is Inconsistent with
Fundamental Principles of the Separation of Powers and
Checks and Balances . . . . . . . . . . . . . . . . . . . . . . . . . .
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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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STRUCTURE OF THE CONSTITUTION
1.
2.
INTRODUCTION
On November 21, 2014, the U.S. House of Representatives did something it
had never done before—it filed, as plaintiff, a lawsuit against a coordinate
branch of the federal government.1 In doing so, the House chose to stage its
separation of powers battle in the courthouse rather than the public square. In its
simplest form, the House’s suit charged the Obama Administration with spending money that Congress had not yet appropriated, which, if true, is almost
surely a violation of the Constitution’s Appropriations Clause.2 The stakes of
the suit, captioned House v. Burwell,3 are as high as the suit is novel. Indeed, in
the first paragraph of its complaint, the House even warns that the controversy
implicates “fundamental issues regarding the limits of Executive power under
our constitutional form of government, and the continued viability of the
separation of powers doctrine upon which ‘the whole American fabric has been
erected.’”4 The House is correct to an extent; the suit does strike at the heart of
separation of powers norms. But if the merits of the underlying allegations
speak to limits on executive power, the notion of Congress bringing a lawsuit to
police those limits implicates far more fundamental issues regarding the limits
of congressional power and the interbranch power hydraulics of our constitutional structure.
1. See U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 53 (D.D.C. 2015). At the time
of publication, the D.C. Circuit was holding the Obama Administration’s appeal in abeyance pending
expected legislative changes in the health care field. See Abeyance Order, U.S. House of Representatives v. Price, No. 16-5202, 2016 WL 8292200, at *1 (D.C. Cir. Dec. 5, 2016).
2. Id. at 57; see U.S. CONST. art. 1, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law . . . .”).
3. In February 2017, the appeal was recaptioned House v. Price to reflect the confirmation of Dr.
Thomas Price as the new Secretary of Health and Human Services. Because the D.C. Circuit has not
issued an opinion, this Note will refer to the case as House v. Burwell throughout.
4. Complaint at 2, Burwell, 130 F. Supp. 3d 53 (No. 14-cv-01967) (quoting Marbury v. Madison, 5
U.S. (1 Cranch) 137, 176 (1803)).
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Two wrongs do not make a right. Thus, no matter which branch is correct
about the underlying merits of the suit, the much larger threat to the continued
viability of the separation of powers doctrine is the suit itself. Alleged usurpations of constitutional power by one branch or another are not a new occurrence. That is not to say that constitutional power grabs are always—or maybe
ever—a good thing, but rather to say that our constitutional system has given
each branch the necessary tools to check that sort of overstepping. What is new
is Congress, or as here a constituent House, bringing a federal lawsuit against a
coordinate branch to do that checking, commandeering the Judiciary to police
the contours of constitutional powers between the branches.
I think it is safe to say that many people agree that something about our
notions of the separation of powers makes us uncomfortable with this kind of
lawsuit. And yet, no one—until now—quite seems to know how to account for,
or articulate, this discomfort. Instead, courts and commentators have come to
articulate and debate those concerns using the vocabulary and legal schema of
Article III standing norms, which is unfit to capture the real gist of why these
suits give pause. And as a result, these important separation of powers questions
have become muddled in a proxy war over technical points of standing.5 Rather
than question directly the role, if any, that congressional suits properly play in
our constitutional structure, courts and commentators argue over things like
institutional injury-in-fact and prudential jurisdiction—vehicles that do not fully
articulate the fundamental separation of powers dynamics at play. Such a
blinkered focus on Article III standing betrays an inappropriately judiciarycentric view of the core question: does Congress have the power to sue the
Executive to police the bounds of governmental power in response to an alleged
usurpation of its powers?
That answer must depend primarily not on Article III, but on Article I—the
font of all congressional power.6 Put differently, whether the Judiciary can hear
this sort of case (that is, whether the parties have standing) is at most a
secondary question, implicated only if Congress possesses the power to sue the
Executive in the first place. Though no one seems to be asking this basic Article
I question, the means of answering it are well known. Absent constitutional
enumeration, congressional power exists only as an inherent power of the
legislative function or as an incidental power appropriately implied under the
Necessary and Proper Clause.
This Note will argue that Article I does not vest Congress with an inherent or
incidental power to sue the Executive in retaliation for a breach of its sphere of
constitutional powers. And this result makes good intuitive sense: it would be
strange indeed if a congressional power to sue the Executive existed despite no
5. Answer at 15, Burwell, 130 F. Supp. 3d 53 (No. 14-cv-01967) (“The plaintiff lacks standing under
Article III of the United States Constitution and the doctrine of the separation of powers.”).
6. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819) (“This government is
acknowledged by all to be one of enumerated powers.”).
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mention of it during ratification, nor any use of it during the first two-hundredplus years of our nation’s history—like the veritable dog that did not bark.
Rather than some secret power of congressional suit, “the great security against
a gradual concentration of the several powers in the same department consists in
giving to those who administer each department the necessary constitutional
means and personal motives to resist encroachments of the others.”7 The notion
of silently adding to Congress’s already formidable arsenal of interbranch
weaponry is at odds with the Framers’ fear of a legislature “everywhere
extending the sphere of its activity and drawing all power into its impetuous
vortex.”8
The argument proceeds as follows. Part I surveys the predominant but
myopic tendency to view the separation of powers issues embedded in congressional suits through an Article III standing lens that is unfit for the task. It then
assesses the laudable attempts by commentators to break free from the standing
straitjacket that continues to encumber the debate. Ultimately, however, these
attempts prove flawed and incomplete, emphasizing the need for a return to the
fundamental Article I principles governing congressional power. Part II juxtaposes the nature of—and the historical context surrounding—the putative power
to sue the Executive with Congress’s inherent power to inform itself to show
that the former is neither inherent in the process of lawmaking nor a necessary
derivative of any power that is. And finally, Part III argues that a power of
congressional suit is both a great and substantive power and one that is
inconsistent with the spirit and structure of the Constitution; it cannot be valid
as incidental to an enumerated power under the Necessary and Proper Clause.
I. THE CURRENT LANDSCAPE AND A CALL TO RETURN TO FIRST PRINCIPLES
To be clear, this Note is not only about House v. Burwell—it is about the
power of Congress (or lack thereof) to sue the Executive writ large, and more
broadly still, about establishing a framework to analyze the legitimacy of all
types of legislative attempts to enlist the Judiciary in resolving interbranch
separation of powers disputes. The basic question in each instance is whether
our constitutional system allows for these varying types of legislative lawsuits
as proper means for coordinate branches to sort out their differences. These
disputes come in many shapes and sizes, and the resulting separation of powers
litigation they spur can take many forms.9 This Note focuses on just one of
7. THE FEDERALIST NO. 51, at 321–22 (James Madison) (Clinton Rossiter ed., 1961).
8. THE FEDERALIST NO. 48, at 309 (James Madison) (Clinton Rossiter ed., 1961).
9. From the Supreme Court alone, there are examples of several such iterations. See, e.g., United
States v. Windsor, 133 S. Ct. 2675, 2684 (2013) (House intervening to defend constitutionality of
DOMA); Raines v. Byrd, 521 U.S. 811, 814 (1997) (group of senators and congressmen bringing suit
against executive department officials challenging constitutionality of Line Item Veto Act); INS v.
Chadha, 462 U.S. 919, 928 (1983) (Congress intervening to defend suit in face of executive failure to
do so); Coleman v. Miller, 307 U.S. 433, 434–35 (1939) (state senators bringing suit for mandamus to
compel State Secretary of the Senate to disregard vote of Lieutenant Governor).
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those forms—the House v. Burwell-style congressional suit against the Executive, but uses a framework that can, in turn, be applied to assess other types of
congressional suits. Before turning to that framework, we should first diagnose
the problems with the consensus approach to analyze these suits through an
Article III standing lens.
A. DIAGNOSING THE STATUS QUO: A FLAWED ARTICLE III STANDING LENS
To this point, Article III standing doctrine has been the prism through which
courts and commentators have debated whether legislative lawsuits are proper
within our separation of powers doctrine. That is, in each of their different
flavors, the legitimacy of these suits has been determined by asking whether the
legislative party (a house of Congress, individual congressman, state legislative
participant, etc.) has standing to bring or participate in a suit. Rather than
tackling the separation of powers question head on, courts have chosen—if
subconsciously—to wrestle with the familiar standing requirement of injury in
fact as a proxy for the more fundamental questions about the legitimacy of these
suits within the larger fabric of our notions of the separation of powers.10
Whatever this Article III standing lens provides by way of general familiarity,
it has proven ill-suited and unpredictable in the context of legislative lawsuits.
Not only has the Supreme Court never decided “whether Congress has standing
to bring a suit against the President,”11 but depending on subjective interpretation of the cases, it is not altogether clear how close the Court has even come.
Though some of this unpredictability is no doubt due to the relatively few
instances in which the Court has had to grapple with legislative standing, much
of it derives from the fact that using standing to do this work is the equivalent of
trying to fit square pegs into round holes. And so, the resulting precedents have
not been read with much consensus. Take, for instance, Coleman v. Miller,
which involved a suit by the Kansas State Legislature against the State’s
Secretary of State.12 Whereas proponents of congressional standing often cite
Coleman as leaving the door ajar for a federal suit alleging executive intrusion
on the lawmaking process,13 others read Coleman to mean only that “when state
law gives state legislators a cause of action against state officials with respect to
the state’s law-making process, the interest protected by that [state law] cause of
10. See, e.g., Windsor, 133 S. Ct. at 2685–86 (alteration in original) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992)) (“First, the plaintiff must have suffered an ‘injury in fact’—an
invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or
imminent, not “conjectural or hypothetical.”’ Second, there must be a causal connection between the
injury and the conduct complained of—the injury has to be ‘fairly . . . trace[able] to the challenged
action of the defendant, and not . . . th[e] result [of] the independent action of some third party not
before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be
‘redressed by a favorable decision.’”); supra note 9 (collecting cases).
11. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2665 n.12 (2015).
12. 307 U.S. 433 (1939).
13. Id.
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action is adequate” for federal appellate jurisdiction.14 Whichever reading you
prefer, the result is the same: “no precedent dictates”15 whether the legislature
can bring suit against a coordinate branch. And yet, in urging the Burwell court
to “stay out of [its] quintessentially political fight”16 with the House, the Obama
Administration was forced to couch its argument in terms of standing, for no
other framework yet exists to fully articulate the separation of powers concerns
implicated by suits of this kind.
It is perhaps forgivable that Article III standing doctrine has come to dominate the consensus approach to legislative lawsuits, for standing is, after all,
rooted in “a single basic idea—the idea of separation of powers.”17 At least
theoretically, the “barrier of standing . . . serves to restrain the judiciary from
invading the prerogatives of other branches and reflects the philosophy that
federal courts should rule on constitutional matters ‘only in the last resort.’”18
Superficially, then, standing principles appear to map onto the separation of
powers concerns implicated by legislative suits. But this approach gets the
separation of powers questions involved in legislative suits exactly backwards—it stresses the Judiciary’s proper role in hearing them, rather than the
Legislature’s proper role in bringing them.
This skewed perspective forces courts and commentators to act as contortionists, determining whether the Legislature can bring a lawsuit to police the
boundaries of its power by asking a different question entirely: whether
the Judiciary can hear the suit. The two issues are close enough to give the
appearance that asking the second is tantamount to answering the first, but that
appearance is a false one. Standing doctrine betrays a judiciary-centric approach
to an issue that is first and foremost about the constitutional relationship
between Congress and the Executive. Although a court must always satisfy
itself that Article III standing exists to entertain a case, whether congressional
suit is a proper check within our separation of powers scheme must depend on
more than a blinkered focus on judicial standing.19
14. John Harrison, Legislative Power, Executive Duty, and Legislative Lawsuits, 31 J.L. & POL. 103,
121–22 (2015). The holding in INS v. Chadha, 462 U.S. 919 (1983), another case touted for its implicit
approval of “congressional access to the courts,” is similarly cabined by context. See Nat Stern, The
Indefinite Deflection of Congressional Standing, 43 PEPP. L. REV. 1, 20–21 (2015). There, the Court
“held that Congress is the proper party to defend the validity of a statute when an agency of
government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is
inapplicable or unconstitutional.” Chadha, 492 U.S. at 940.
15. U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 57 (D.D.C. 2015).
16. Id.
17. See Allen v. Wright, 468 U.S. 737, 752 (1984).
18. Stern, supra note 14, at 8 & nn.27–28 (footnote omitted) (quoting Allen, 468 U.S. at 738).
19. None of this is to suggest that courts, faced with future legislative suits, can ignore standing
altogether—for standing is a constitutional requirement, rooted in the text’s “case or controversy”
language. See U.S. CONST. art. III, § 2. Rather, the force of this argument is to suggest that standing is
not the proper way to address whether these suits are constitutionally proper in the first instance. At
most, standing is only implicated if a court first finds that our constitutional system allows for the suit,
by analyzing the powers Article I vests in Congress.
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B. THE BEGINNINGS OF A PARADIGM SHIFT
This Note is not the first to advocate a break from the standing mold in favor
of a debate more explicitly grounded in first-order separation of powers principles. Others too have suggested that “[t]hinking about legislative lawsuits in
terms of judicial power, cases and controversies, and judicial role, is a distraction from the real issues.”20 The complaint stems from the fact that standing
“applies only to the federal judicial power and the federal courts.”21 And so, by
its very terms, it flips the constitutional analysis on its head—determining only
the courts’ proper role in separation of powers disputes that primarily involve
the political branches. At best, standing acts as an obstacle that postpones
resolution of the primary constitutional issues involved; at worst, it means
eliding the constitutional issues altogether.22
At least three commentators similarly dissatisfied with this standing myopia
have proposed alternative ways of framing these dilemmas. That said, none
have focused clearly enough on the central, or at least primary, question that
must be addressed: whether Article I empowers Congress to bring suit against
the Executive. As a result, their proposed paradigm shifts remain flawed and
underdeterminant, notwithstanding any improvements they do make on the
status quo. Despite their limitations, the works of these commentators embody
the first moves away from a standing-centric approach and thus are worthy of
review as further indictments of a standing-based model and as further confirmation of a need to return to first principles.
1. Swapping Standing For Implied Causes of Action
For much the same reasons, John Harrison agrees that Article III standing
doctrine is a “distraction from the real issues” at play in legislative suits, which,
properly understood, “concern[] the relationship between the legislature and the
executive, not the role of the federal courts in the constitutional system.”23 And
yet, rather than advocate a truly significant departure from the flawed doctrine,
Harrison’s remedy of choice is a similarly narrow, court-centric approach,
which ultimately succumbs to many of the same malignancies. For Harrison, the
legitimacy of legislative suits should depend not on the presence of standing,
but on the existence of an implied cause of action under the Constitution.24 That
is to say, whether Congress can sue the Executive in any circumstance should
turn on whether the Constitution creates an implied cause of action for the
particular suit. Though it marks a slight departure from the standing approach,
hinging the legitimacy of legislative lawsuits on such a fine and technical point
20. Harrison, supra note 14, at 105; see generally Tara Leigh Grove, Standing Outside of Article III,
162 U. PA. L. REV. 1311 (2014).
21. Harrison, supra note 14, at 133.
22. See id. at 134; see also Goldwater v. Carter, 444 U.S. 996, 996 (1979) (evading the separation of
powers issues by dismissing the complaint altogether).
23. Harrison, supra note 14, at 103, 105.
24. Id. at 104–05.
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as the presence or absence of an implied cause of action is really no better an
alternative.
To demonstrate his cause-of-action framework, Harrison examines congressional suits to compel proper enforcement of the law.25 Using traditional, private
law cause-of-action principles as a guide, Harrison starts with the notion that for
an implied constitutional cause of action to exist, there must be “a duty, and an
interest that can be harmed by a breach of the duty.”26 Thus, whether a
qualifying legislative interest exists in any given case depends on one’s definition of the legislative power and role. Harrison defines that power as “the
capacity to create valid, legally effective norms,”27 and in so doing differentiates a law’s validity from its enforcement. If that differentiation holds, it follows
that “[e]xecutive failure to properly carry out the law does not harm the
legislative power as such, because legislative power is fully effective when it
issues a valid law, and executive default does not impair validity.”28 That is to
say that no implied cause of action exists and that “legislators or legislative
chambers are not entitled to judicial relief for executive default as a purely
constitutional matter.”29 At least, this is how Harrison sees it.
Harrison’s cause-of-action analysis is for all intents and purposes an injury in
fact conclusion by a different name—and if a “rose / By any other name would
smell as sweet,”30 then his cause-of-action analysis must smell as rotten. Like
standing’s injury in fact requirement, Harrison’s cause-of-action test turns on
there being (or not being) harm to a legislative interest, which depends entirely
on a preordained definition of the legislative power. By cabining his conception
of the legislative power to the issuance of valid laws, Harrison begs the
fundamental separation of powers question lying at the heart of the dispute: if
and where a line exists separating legislative from executive power.31 Whether
Harrison is right or wrong about his definition of legislative power, cloaking the
question of legislative harm in cause-of-action vernacular comes with all the
same flaws as does framing it in terms of standing and injury in fact. Indeed, his
model even draws the same battle lines as does the standing approach: those
who define legislative power as he does are the same ones who would find an
injury in fact, and vice versa. In effect, then, Harrison’s model only swaps out
25. Admittedly, this is a different type of legislative suit than the one with which this Note is
primarily concerned. Harrison does not address whether the Constitution implies a cause of action
authorizing Congress to sue the Executive following an alleged usurpation of its power, such as in
Burwell. But for purposes of assessing the merit of his proposed framework, this difference need not
matter much—just as my framework is applicable to all varieties of legislative suits as well.
26. Harrison, supra note 14, at 106.
27. Id. at 105.
28. Id.
29. Id.
30. WILLIAM SHAKESPEARE, ROMEO AND JULIET act 2, sc. 2.
31. Though Harrison’s model would have us change the vocabulary of the dispute, the fault lines
would continue to fall in the same places: those who argue that the Legislature does have standing to
compel executive enforcement inherently reject his understanding of legislative power, for a showing of
injury in fact turns on the same question of harm.
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one poorly equipped proxy for another, neither of which is a suitable vehicle for
determining the legitimacy of the suits under examination.
2. A Look to Constitutional Norms
In a more satisfactory move away from standing, Tara Grove and Neal
Devins argue that the questions surrounding the legitimacy of legislative lawsuits must “focus . . . on the powers that the Constitution grants to and the
constraints that it places on Congress.”32 Applying that focus, they conclude
that Congress lacks the power to defend federal statutes when the Executive
declines (a variation on a congressional suit); in a separate work, Grove adds
that Congress also lacks the power to enforce federal statutes by suit following
executive default.33 They base their conclusions primarily on a structural distinction between the powers of enactment and enforcement, which they glean by
juxtaposing Articles I and II.34
Specifically, Grove and Devins read “the Constitution [as] preclud[ing] 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.’”35 Insofar as they look to the words and structure of the Constitution,
their approach attunes to the separation of powers concerns at play better than
either of the previously mentioned models. However, rather than look first to
Article I and the powers it grants to Congress directly, Grove and Devins skip to
Article II, arguing by negative implication that because the Executive is empowered to enforce the law by suit, Congress must not be. That juxtaposition only
follows if there is a clear constitutional distinction between legislative and
executive power with respect to the enactment and implementation of law.
Although that distinction may well exist, merely arguing by negative implication begs the question—much like the cause-of-action and standing models beg
definitions of legislative power and harm. In doing so, Grove and Devins’
analysis assumes the basic issues at the heart of our collective concern with
legislative lawsuits: do clear boundaries separate the powers of each branch,
32. Tara Leigh Grove & Neal Devins, Congress’s (Limited) Power to Represent Itself in Court, 99
CORNELL L. REV. 571, 578 (2014).
33. See id. at 571; see also Grove, supra note 20, at 1353–54. This Note does not seek to answer
whether Congress has the power to defend federal statutes in place of the Executive. This Note does,
however, provide a framework for how to go about answering that question—for Congress may only
defend statutes if it has the power to do so, inherently or by implication. I will note that it is possible
that a power of defense is an appropriate incidental power, whereas the power to sue the Executive
directly is not.
34. Interestingly, they also argue that unilateral suit “by the House or the Senate violates an
additional constitutional norm: bicameralism.” Grove & Devins, supra note 32, at 574. According to
Grove and Devins, the “Constitution divides the legislature into two separate and distinct chambers, so
that each chamber can serve as a ‘check’ on the other, and thus largely prohibits unilateral action by
either chamber.” Id. (citing U.S. CONST. art. I, § 1). If correct, this principle would block the House from
bringing its suit in Burwell. Ultimately, however, the argument is nullified whenever the full Congress
brings a suit; thus, it does not provide as complete an answer as my Article I rubric.
35. Id. (quoting U.S. CONST. art. II, § 3).
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and are congressional lawsuits a proper means for surveying just where they
lie?
There must be a coherent model for assessing whether, or in what circumstances, Congress has the power to bring suit against the Executive. Although
no one has addressed the question until now, the answer must come from Article
I, for Congress has only the powers vested in it and no more. Structural
constitutional principles, like the ones Grove and Devins rely on, do play a role
in analyzing this Article I question. With the proper framing, these principles
are useful in interpreting the powers that Article I confers in Congress to police
the bounds of its power. Yet, lacking the proper framing, Grove and Devins’
argument by mere negative implication has an unfortunate air of ipse dixit.36
C. FIRST PRINCIPLES: COUNTING BACK TO ARTICLE I
So far we have articulated the current standing-dominated landscape of
legislative suits, adding two attempts to buck that narrative in favor of different
modes of analysis. That landscape illustrates just how ill-suited these mostly
judiciary-centric doctrines are to cope with the complex separation of powers
issues that legislative suits present. All things considered, this normative case
against a standing-based approach to legislative suits is a strong one; and yet, it
is not a necessary piece of the argument. Ultimately, whether standing is
ill-suited to answer these questions or not, Congress’s hypothetical legal standing is irrelevant absent an Article I power to bring suit in the first place. That is
to say, even if you disagree that talking about these issues in terms of standing
is a mistake, you must still satisfy yourself of the Article I question.
Before proceeding to the crux of the Article I analysis, it is worth noting one
additional advantage of framing these issues properly using an Article I rubric.
Cornered to analyze the propriety of legislative suits using only standing norms,
state legislative suits and federal congressional suits arbitrarily stand or fall
together. For if a state legislature suffers a cognizable injury in fact under a
certain set of circumstances, such as in Coleman, then consistency requires that
in a factually identical set of circumstances the federal legislature would also
satisfy standing requirements. Yet, from a separation of powers standpoint, it
makes little to no sense that the two suits stand or fall together—constitutional
concerns in a suit between Congress and the Executive are wholly lacking in a
suit between two state departments, the relationship of which is not governed by
federal separation of powers principles. An Article I approach, on the other
hand, recognizes that a state legislature with plenary power may be authorized
to sue a state governmental department. In contrast, Congress, which lacks
plenary power, may not be authorized to bring suit consistently with separation
of powers principles. For our purposes, however, whether Coleman or any other
36. Even if Grove and Devins’ implication—that the Executive enforces so Congress must not—
holds up to prevent congressional suits in response to Executive default, their ipse dixit cannot hope to
answer the paradigm case of congressional suit for Executive usurpation.
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state legislative standing case was rightly decided is irrelevant; what matters is
that only an Article I powers framework is able to coherently treat them
differently.
Consider, too, another oddity of relying on standing doctrine to keep improper federal legislative lawsuits out of court: because Article III binds only
federal courts, state courts would hypothetically remain free to hear suits
between Congress and the Executive over the proper bounds of federal power.
Such a result would be peculiar—to allow state courts, but not federal courts, to
decide such inherently federal questions. And yet, relying on standing norms as
the only means to keep these suits out of court would lead to this very result.
Only by focusing on the primary concerns of legislative powers head-on can we
avoid the sort of puzzling results to which a standing approach inevitably leads.
Absent enumeration, congressional power exists only as an inherent power of
the legislative function or as an incidental power appropriately implied under
the Necessary and Proper Clause. Thus, whether congressional suits, like House
v. Burwell, are proper is primarily a matter of constitutional interpretation. The
next two Parts aim to do that interpretive work, concluding that the putative
power to sue the Executive to police the separation of powers is not a power
that Congress wields.
II. THE POWER TO SUE THE EXECUTIVE IS NOT INHERENT IN LEGISLATIVE POWER
Unlike Article II, which vests in the President “[t]he executive Power,”37
Article I vests in Congress only those “legislative Powers herein granted.”38
This distinction is one with a mighty difference: Congress, a species of enumeration, has only those powers affirmatively granted to it, whereas the Executive
maintains a more amorphous set of powers understood to be executive in
nature.39 Thus, although the lack of an enumerated power to bring suit is not
dispositive, it does evince a presumption that such a power does not exist—a
presumption strengthened by the notable lack of historical use or assertion of
any such power. However, the “concept of inherent power is a familiar one in
American constitutional discourse.”40 And so, the “Supreme Court has occasionally held that Congress possesses unenumerated, and therefore [] inherent,
37. U.S. CONST. art. II, §1.
38. U.S. CONST. art. I, § 1.
39. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) (“The powers of the legislature are
defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is
written.”); see also Kilbourn v. Thompson, 103 U.S. 168, 182 (1880) (“The powers of Congress itself,
when acting through the concurrence of both branches, are dependent solely on the Constitution. Such
as are not conferred by that instrument, either expressly or by fair implication from what is granted, are
‘reserved to the States respectively, or to the people.’”).
40. James A. Gardner, The Uses and Abuses of Incumbency: People v. Ohrenstein and the Limits of
Inherent Legislative Power, 60 FORDHAM L. REV. 217, 231 (1991).
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powers by virtue of the grant to it of legislative authority in the first instance.”41
Though a more contemporaneous and precise reading might ground even these
“inherent powers” in the Necessary and Proper Clause, for our purposes, it is
useful to maintain the analytical distinction between powers inherent in the
legislative power and those implied as incidental under that clause.
A. THE METES AND BOUNDS OF INHERENT LEGISLATIVE POWER
Inherent legislative powers exist only as “an essential and appropriate auxiliary to the legislative function” as a whole.42 These powers are only those
deemed truly essential to the legislative function, by definition a circumscribed
set. Any broader an understanding of inherent legislative powers would be
inconsistent with a Congress of limited, enumerated powers. Indeed, Madison’s
warning that “it is against the enterprising ambition of [the legislative] department that the people ought to indulge all their jealousy and exhaust all their
precautions”43 belies the notion of a legislature with a wide-ranging set of
nebulous inherent powers. For these reasons, few unenumerated powers can be
reasonably characterized as inherent in the legislative role.
In comparison, the quintessential inherent power is Congress’s power “to
inform itself” through investigation.44 Quite intuitively, “[a] legislative body
cannot legislate wisely or effectively in the absence of information respecting
the conditions which the legislation is intended to affect or change.”45 And yet
there is no enumerated power that enables Congress to obtain this necessary
information; thus, it “is justified solely as an adjunct to the legislative process,”
or as a “part of lawmaking” itself.46 In essence, it is justified as an inherent
power.
Thus, for good reason, the “power to secure needed information by such
means has long been treated as an attribute of the power to legislate.”47 In fact,
powers of investigation and oversight “had historically been exercised by
parliaments and legislatures on both sides of the Atlantic” as inherent, unenumerated powers even before the Constitution.48 This history of usage is more than a
nice piece of trivia; it amply demonstrates that the power of investigation is
essential to the legislative task. It also provides a reasonable justification for the
Framers’ otherwise nonsensical decision not to enumerate a power so crucial to
the legislature’s operation—it was a power readily understood to vest inherently
in any legislature worthy of the name.
41. Id. at 233–34 (note that I removed “implied” from the quote in order to preserve the semantic
distinction this paper draws between powers inherent in the legislative power and those implied as
incidental under the Necessary and Proper Clause).
42. See McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
43. THE FEDERALIST NO. 48, supra note 8, at 309.
44. United States v. Rumely, 345 U.S. 41, 46 (1953).
45. McGrain, 273 U.S. at 175.
46. Watkins v. United States, 354 U.S. 178, 197 (1957).
47. McGrain, 273 U.S. at 161.
48. AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 111 n.* (2005).
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In turn, this inherent congressional power to inform itself has given rise to a
host of other powers, notably the powers to investigate,49 exact testimony,50 and
punish for contempt those who disobey its lawful subpoenas.51 These powers
are best understood as derivative of the inherent power to gather information,
which would mean little if not for these adjuncts. In the same manner, the Court
has acknowledged congressional power to hire aides and create committees,
recognizing that “it is literally impossible, in view of the complexities of the
modern legislative process . . . for Members of Congress to perform their legislative tasks without the help of aides and assistants.”52 Each of these powers is, if
derivatively, essential to the act of legislating and as such is rightly understood
as inherent in the legislative power of Congress. They are the watermark of
essentiality, albeit derivatively, which any putative power must satisfy to be
considered as inherent.
B. THERE IS NOTHING INHERENT ABOUT THE POWER OF CONGRESSIONAL SUIT
In stark contrast with these paradigmatic inherent powers, a power of congressional suit finds no shelter in our “notions of what it means in our constitutional
system for an entity to be a legislature and to wield legislative power.”53 A
congressional power to sue is neither essential to our understanding of the
legislative function nor compatible with the constitutional constraints limiting
inherent powers. Thus it cannot exist inherently.
In our constitutional system, the legislature “is meant to be the eyes and the
voice” of the people, “look[ing] diligently into every affair of government
and . . . talk[ing] much about what it sees.”54 It does so by gathering information, investigating wrongdoing, publishing its findings, and enacting legislation.
Nowhere is the power to sue the Executive essential to these tasks, which form
the core role of the legislature in our constitutional scheme. If there were any
doubt on this point, surely it would be resolved by the notable historical absence
of Congress ever invoking such a mighty power. Said differently, “[a] long line
of Supreme Court precedent tells us that history and tradition are important
guides in separation of powers cases that . . . are not resolved by the constitu-
49. See, e.g., Watkins, 354 U.S. at 187 (“The power of Congress to conduct investigations is inherent
in the legislative process.”).
50. See McGrain, 273 U.S. at 161.
51. It is worth noting, “the House and the Senate have long asserted the power to conduct
investigations and handle any litigation arising out of those investigations.” Grove & Devins, supra
note 32, at 597 (citing Allen B. Moreland, Congressional Investigations and Private Persons, 40 S.
CAL. L. REV. 189, 225–30 (1967)) (emphasis added). The power to litigate claims arising out of
inherently authorized investigations—that is, to enforce subpoenas—is perfectly consistent with the
lack of a power to litigate separation of powers claims against the Executive. As the juxtaposition of
these two types of suits shows, these questions are properly viewed through an Article I powers lens.
52. Gravel v. United States, 408 U.S. 606, 616 (1972).
53. See Gardner, supra note 40, at 232.
54. United States v. Rumely, 345 U.S. 41, 43 (1953).
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tional text alone.”55 Just as “longstanding practice of the government can
inform our determination of what the law is,” so too can longstanding absence
of practice.56
As “a page of history is worth a volume of logic,”57 it truly is beyond the pale
to claim that a power that sat unused for more than 200 years is somehow
essential to the legislative function, for surely that disuse is not for lack of
interbranch strife over that period. On the contrary, “[i]t is evident from several
episodes in our history that in . . . confrontations between one or both Houses of
Congress and the Executive Branch, no suit was brought on the basis of claimed
injury to official authority or power.”58 All told, the failure of Congress to
invoke its putative power to sue the Executive in any of its countless skirmishes
with the latter is strong evidence that such a power is not properly understood as
inherent in the legislative function. Rather, “historical practice appears to cut
against” the notion that Congress enjoys such a power at all.59
This disuse is particularly telling because it is in stark contrast with the long
history of resort to congressional investigations, a paradigmatic inherent power,
in the face of alleged Executive misbehaving.60 “Use of the power to investigate
dates back to the birth of the Nation: the House’s first investigation was in 1792
and the Senate’s in 1818.”61 In response to the House’s 1792 investigation into
Major-General Arthur St. Clair’s failed raid against Native Americans, “President George Washington and his advisors—Thomas Jefferson, Alexander Hamilton, Edmund Randolph, and [Henry] Knox—concluded that ‘the House could
conduct an inquest, institute inquiries, and call for papers’” from the Executive.62 Indeed, the legislative contempt power, an inherent adjunct to the
investigatory power, “has been labeled a ‘constitutional backdrop,’ for it was
exercised by both the English Parliament and the American colonial assemblies.”63 The same cannot be said of a legislative power to bring suit against the
Executive. The historical examination shows that Congress has consistently
chosen to respond to executive usurpation with investigation, not litigation.64
55. PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 15 (D.C. Cir. 2016).
56. See id. (quoting NLRB v. Canning, 134 S. Ct. 2550, 2560 (2014)). This notion is in no way new
or startling. Even James Madison admitted that “it might require a regular course of practice to
liquidate & settle the meaning of some [constitutional terms and phrases].” Id.
57. N.Y. Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).
58. Raines v. Byrd, 521 U.S. 811, 826 (1997).
59. Id.
60. Grove & Devins, supra note 32, at 597 (noting “the House and the Senate have long asserted the
power to conduct investigations and handle any litigation arising out of those investigations. Notably,
such proceedings have at times involved significant institutional battles with the executive branch.”).
61. Id. at 598 (citing Michael A. Zuckerman, The Court of Congressional Contempt, 25 J.L. & POL.
41, 46 (2009)).
62. Id. at 598–99 (quoting 1 CONGRESS INVESTIGATES: A DOCUMENTED HISTORY: 1792–1974, at 4
(Arthur M. Schlesinger, Jr. & Roger Bruns eds., 1975)).
63. Id. at 598 (quoting Stephen E. Sachs, Constitutional Backdrops, 80 GEO. WASH. L. REV. 1813,
1854–59 (2012)).
64. See, e.g., id. at 600 (“In disputes with the executive branch, the House and the Senate have both
used their authority to investigate alleged wrongdoing by executive officials.”).
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In our constitutional system of enumerated powers, only those powers truly
essential to the making of laws can ever reasonably fall within the small subset
of powers inherent in the legislative power. And now, after more than two
centuries, it borders on disingenuous to claim that the power to sue the
Executive outright is essential to the legislative function, which has survived
without mention—let alone use—for all that time. Thus, the last remaining
avenue for a congressional power to sue the Executive lies in the Necessary and
Proper Clause: “the last, best hope of those who defend ultra vires congressional action.”65
III. THE POWER TO SUE THE EXECUTIVE IS UNNECESSARY AND IMPROPER
From its inception, the Necessary and Proper Clause has been no easy thing
to pin down. At the time of ratification, firebrands warned that the clause “gave
Congress a grant of power so open-ended that it was meaningless to say its
powers were carefully defined and limited.”66 Federalists insisted that the
“clause merely clarified that the rest of Article I, [S]ection 8 should be read at
face value,” unlike the Articles of Confederation, which explicitly limited itself
to only those powers enumerated.67 John Marshall and others even viewed the
clause as a sort of safeguard against pretextual legislation: for “[o]nly laws that
were truly ‘proper’ to permissible federal ends would be allowed.”68 This
historical debate continues to shape our understanding of the clause.
In line with this historical understanding, Chief Justice Marshall’s opinion in
McCulloch v. Maryland has come to represent the lodestar for Necessary and
Proper Clause inquiries.69 His means-end test famously reads: “Let the end be
legitimate, let it be within the scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not prohibited, but
consist with the letter and spirit of the constitution, are constitutional.”70
Despite McCulloch’s firm place in the canon of Supreme Court jurisprudence,71
or perhaps because of its prolific repetition, many have lost an appreciation of
the full meaning of Marshall’s opinion, particularly the limits he reads into the
clause. His logic and these limits guide our analysis here.
Marshall’s interpretation of the clause is predicated on the notion that in a
system of enumerated powers, the Constitution would “partake of the prolixity
of a legal code, and could scarcely be embraced by the human mind” if it
65. See Printz v. United States, 521 U.S. 898, 923 (1997).
66. PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 1787–1788, at 81 (2010).
67. AMAR, supra note 48, at 110.
68. Id. at 112–13.
69. 17 U.S. (4 Wheat.) 316 (1819).
70. Id. at 421.
71. See Richard A. Primus, Essay, Canon, Anti-Canon, and Judicial Dissent, 48 DUKE L.J. 243,
243–44 (1998) (characterizing McCulloch as “the locus classicus of a major doctrine of constitutional
law”).
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included every incidental legislative power.72 Properly understood, the clause is
little more than a practical necessity, facilitating the execution of those powers
affirmatively granted.73 McCulloch’s less famous, but equally powerful, limitation on incidental powers flows naturally from this reading: “a great substantive
and independent power . . . cannot be implied as incidental to other powers.74
This limitation is merely a recognition that incidental powers are to “be deduced
from the nature” of the enumerated powers they are tailored to facilitate, not
made from whole cloth.75
The congressional power to sue the Executive fails both McCulloch tests: it is
a great substantive and independent power, and regardless, is inconsistent “with
the letter and spirit of the constitution.”76 And so, it cannot be reasonably
implied as incidental to any enumerated Article I power.
A. CONGRESSIONAL SUIT AS A “GREAT SUBSTANTIVE AND INDEPENDENT POWER”
Despite McCulloch’s clear direction that no great substantive and independent powers be implied as incidental under the Necessary and Proper Clause,
the great powers doctrine, at least by name, has been largely absent from the
Court’s jurisprudence. That is not to say the Court has been willing to imply
great powers as incidental willy-nilly. But rather that its nearly exclusive focus
on McCulloch’s means-end test had appeared to run the notion of great powers
out of the federal reporters.77 That is, until NFIB v. Sebelius.78
In NFIB, Chief Justice Roberts reaffirmed that the Necessary and Proper
Clause “does not license the exercise of any ‘great substantive and independent
power[s]’ beyond those specifically enumerated.”79 The basic idea of the doctrine is that “some powers are so great, so important, or so substantive, that we
should not assume that they were granted by implication, even if they might
help effectuate an enumerated power.”80 The notion is actually quite intuitive:
72. See McCulloch, 17 U.S. (4 Wheat.) at 407.
73. Cf. id. at 408 (“It can never be their interest, and cannot be presumed to have been their
intention, to clog and embarrass its execution by withholding the most appropriate means.”).
74. Id. at 411.
75. Id. at 407.
76. Id. at 421.
77. Cf. William Baude, Rethinking the Federal Eminent Domain Power, 122 YALE L.J. 1738, 1817
(2013) (noting that “McCulloch’s reference to ‘great substantive and independent powers,’ while rarely
cited, has never been overruled”).
78. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).
79. Id. at 2591; see also Bond v. United States, 134 S. Ct. 2077, 2101 (2014) (Scalia, J., concurring)
(“The Necessary and Proper Clause cannot bear such weight. As Chief Justice Marshall said regarding
it, no ‘great substantive and independent power’ can be ‘implied as incidental to other powers, or used
as a means of executing them.’”) (quoting McCulloch, 17 U.S. at 411); United States v. Kebodeaux,
133 S. Ct. 2496, 2507 (2013) (Roberts, C.J., concurring) (“Thus, while the Necessary and Proper
Clause authorizes congressional action ‘incidental to [an enumerated] power, and conducive to its
beneficial exercise,’ Chief Justice Marshall was emphatic that no ‘great and substantive and independent power’ can be ‘implied as incidental to other powers, or used as a means of executing them.’”)
(quoting McCulloch, 17 U.S. at 418, 411) (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824)).
80. Baude, supra note 77, at 1749.
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“If [a] power was important enough, it was one that the Constitution would be
expected to grant explicitly, if at all.”81 This understanding dovetails seamlessly
with Marshall’s recognition that the clause is really only there to keep the
Constitution’s word count down: it vests Congress with the incidental powers it
needs to carry out its enumerated ones, but it does not serve as a freewheeling
wellspring of its own. The implication is that if a putative power is great and
important, and yet unmentioned, it is only reasonable to presume that it is not a
power authorized by the Constitution.
Presumably in large part due to the doctrine’s long hiatus from the federal
reporters, “we do not have anything approaching a clear test for deciding
whether each particular unenumerated power is incidental or great or somewhere in between.”82 But the great powers notion still “provides a framework—or at the very least, a vocabulary—for articulating a limiting principle
for the Necessary and Proper Clause.”83 Thus when faced with a power so great
as the one under examination here—the power to sue a coordinate branch to
enforce the separation of powers—the concept is quite useful. If nothing else, it
provides a doctrinal grounding for the almost guttural instinct that some powers
are just too something to be read into Article I.
No matter how difficult it may be to define the precise bounds of the great
power landscape at the margins, an unenumerated power that threatens to alter
the fundamental constitutional relationship of the federal branches must fail as a
great substantive and independent power. And that is precisely what congressional suits threaten to do. Because the next section, employing the more traditional means-end test, will illustrate just how seismic this change to the separation
of powers scheme would be (and thus how great such a power would be), the
remainder of this section aims to demonstrate that the great power of congressional suit is both substantive and independent.
1. The Power to Sue a Coordinate Branch is a Great Substantive Power
The congressional power to sue a coordinate branch is no less substantive
because its most direct effects are felt by government actors rather than citizens.
To be sure, the paradigmatic great powers of “making war, or levying taxes, or
of regulating commerce” each more directly affect citizens in the ways that we
normally think that substantive laws do.84 But not all substantive powers need
take this form; rather, they come in one of two flavors: powers over the people
81. Id. at 1752; see also James Madison, Speech on the Bank of the United States (Feb. 2, 1791), in
LEGISLATIVE AND DOCUMENTARY HISTORY OF THE BANK OF THE UNITED STATES 39, 40 (photo. reprint 2008)
(1832) (“In admitting or rejecting a constructive authority, not only the degree of its incidentality to an
express authority is to be regarded, but the degree of its importance also; since on this will depend the
probability or improbability of its being left to construction.”).
82. Baude, supra note 77, at 1810.
83. Id.
84. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 411 (1819).
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and powers over fellow branches of government.85 To say this last group
(interbranch powers) could not be substantive would be inconsistent with the
crucial role that interbranch powers—think impeachment, veto, etc.—play in
our system of government.
Take the impeachment power: though its primary target is necessarily a
federal actor, its use—even the threat of its use—shapes conduct by governmental actors charged with regulating the general public and thus is best characterized as substantive.86 Had Article I not vested it expressly, it would border on
the absurd to argue that the impeachment power could nonetheless be implied
as an incidental, non-substantive power. Powers such as these, which fundamentally shape how the three federal branches interact with one another, cannot be
read into the Constitution. They must exist by enumeration, if at all. Indeed, the
impeachment power’s enumeration confirms that these sorts of meta-powers are
not immune from the intuitive, doctrinal principle that great substantive powers
must be enumerated.
What’s more, the enumeration of the impeachment power itself implies the
exclusion of the similar congressional suit power.87 Assuming a legitimate
motive, the powers of impeachment and of congressional suit are two modes of
accomplishing the same goal: checking the Executive. The express inclusion of
one, therefore, implies the exclusion of the other.88 Of course, even if one is not
persuaded by this expressio unius, the point holds that, like impeachment, the
power to sue the Executive is best understood as a great substantive power.
2. The Power to Sue a Coordinate Branch is a Great Independent Power
Determining where to place specific powers along the spectrum from incidental to independent can feel a bit like splitting hairs, because at varying degrees
of generality every power is but a means to some other object. With that in
mind, a truly incidental power is one that “is never the end for which other
powers are exercised, but a means by which other objects are accomplished.”89
A prime example is the power to incorporate, which is nothing more than a
business form used to accomplish other ends—say, for instance, a national
bank.90 The power of incorporation has no force in and of itself because the
85. Cf. THE FEDERALIST NO. 51, supra note 7, at 322 (“In framing a government . . . you must first
enable the government to control the governed; and in the next place oblige it to control itself.”).
86. In fact, “America’s Constitution transformed impeachment into a more precise and proportionate
system of political punishment” than existed in England. See AMAR, supra note 48, at 202. And with it
came greater ability to regulate primary conduct through its use.
87. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824) (“The enumeration presupposes
something not enumerated . . . .”); see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 107 (2012) (describing the negative-implication, or expressio unius,
canon of construction).
88. See SCALIA & GARNER, supra note 87.
89. See McCulloch, 17 U.S. (4 Wheat.) at 411 (emphasis added).
90. Cf. id.
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corporate form alone has no independent value. And so the power of incorporation is incidental, not independent.
The power to sue a coordinate branch, on the other hand, is likely to be “used
for its own sake”91—as either a shield from, or a sword against, the Executive.
Of course, it is possible to conceptualize congressional suits as, at some level of
generality, a means to preserve Congress’s other legislative powers. But all
powers are incidental in this overbroad sense—and no less independent as a
result. Take the tax power: by the same token, to raise revenue is at some level
only a means to the end of ultimate appropriation. Yet, Marshall listed “levying
taxes” as a paradigm of a “great substantive and independent power”92 for good
reason: Congress can use the tax power to assert significant control over the
public and its coordinate branches, independent of any subsequent appropriation
that it might contribute to. The same is true of the power to bring suit, which
independently provides Congress the ability to influence or even intrude on the
powers of its coordinate branches.
Thus, even without a formal great powers test, the power of congressional
suit would seem to fall safely within that bucket of great substantive and
independent powers that cannot be implied as incidental under the Necessary
and Proper Clause. That said, I am not indifferent to the potential vulnerabilities
of naming a great power without the benefit of a clear framework for doing so.
But even were I wrong on the great powers score, grappling with the nuances of
that admittedly murky doctrine remains a useful prelude to a more traditional
Necessary and Proper analysis.
At the very least, then, the great powers doctrine should act as a type of
constitutional smell test, sniffing out laws arguably “designed to implement
Congress’s powers that nonetheless seem deeply inconsistent with the structure
of the Constitution.”93 Whether you agree that it is a great power or not, the
power of congressional suit fails that smell test and so at a minimum deserves
serious scrutiny under McCulloch’s traditional means-end test.
B. CONGRESSIONAL SUIT IS INCONSISTENT WITH THE SPIRIT AND STRUCTURE OF THE
CONSTITUTION
Under the traditional McCulloch means-end test, an incidental power must be
consistent with the spirit and structure of the Constitution.94 Here, that limit is
insurmountable. Even hypothesizing circumstances where a congressional suit
against the Executive is plainly adapted to a legitimate end, the power to bring
such a suit is inconsistent with the separation of powers principles embodied in
the spirit and memorialized in the structure of the Constitution. And if for no
91. Id.
92. Id.
93. Baude, supra note 77, at 1810 (adding the example of “a law requiring governors in every state
to be subject to Senate confirmation before taking office, or something even more farfetched. The great
powers idea articulates what is wrong with such laws.”).
94. See McCulloch, 17 U.S. (4 Wheat.) at 421.
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other reason than this, no power to sue the Executive for an alleged usurpation
of power may be implied as incidental under the Necessary and Proper Clause.
1. Separation of Powers Principles, Like Principles of Federalism and State
Sovereignty, Limit Incidental Powers
Just as principles of federalism and state sovereignty limit which powers may
be incidental under the Necessary and Proper Clause, so too do fundamental
separation of powers norms, which are equally embraced by the spirit and
structure of the Constitution. Such is the import of McCulloch’s recognition that
the “Constitution’s express prohibitions” are not “the only, or even the principal,
constraints on the exercise of congressional power.”95
In United States v. Comstock, the Court held that no power that compromises
“essential attributes of state sovereignty” is likely “within the reach of federal
power.”96 In other words, “[n]o law that flattens the principle of state sovereignty, whether or not ‘necessary,’ can be said to be ‘proper,’”97 because those
principles form part of the intellectual bedrock of our constitutional system. The
same is true of separation of powers principles, which equally form part of that
bedrock. It must follow, then, that no putative power inconsistent with fundamental separation of powers principles may be implied as incidental.
2. The Power of Congressional Suit is Inconsistent with Fundamental
Principles of the Separation of Powers and Checks and Balances
Were it to exist, the power of congressional suit would fundamentally alter
the interbranch separation of powers that form the lynchpin of our constitutional
system of checks and balances. Congressional suits threaten to bolster the
already dominant powers of the Legislature, promote the Judiciary to the role of
governmental overseer, and dilute the popular sovereign’s control over the
proper allocation of constitutional power among the political branches. Quite
simply, “[a] power of that magnitude vested in the Federal Government is not
‘consist[ent] with the letter and spirit of the [C]onstitution,’ and thus not a
‘proper [means] for carrying into Execution’ the enumerated powers of the
Federal Government.”98
“[G]iving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others”99 was
95. See United States v. Comstock, 560 U.S. 126, 154 (2010) (Kennedy, J., concurring).
96. See id. at 153; see also id. at 149 (majority opinion) (including “the statute’s accommodation of
state interests” in the list of considerations guiding the Court’s Necessary and Proper analysis). It is also
worth mentioning that at least three other Comstock considerations cut against an incidental power of
congressional suit: there being no long history of its use at the federal level; the attenuation between
any enumerated power and the power to bring suit; and the fact that the power is not a mere modest
addition to an existing federal scheme. See id.
97. Bond v. United States, 134 S. Ct. 2077, 2101 (2014) (Scalia, J., concurring).
98. United States v. Kebodeaux, 133 S. Ct. 2496, 2507 (2013) (Roberts, J., concurring) (citation
omitted).
99. THE FEDERALIST NO. 51, supra note 7, at 321–22.
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among the chief aims of the written Constitution. Given the scrupulous consideration paid to the subject, it seems only reasonable to set a general presumption
against additional constitutional checks, even as compared to any other type of
incidental power. That presumption must be greater still where, as here, the
implied power would inhere to the Legislature, which “necessarily predominates” its coordinate branches, to which “it is not possible to give . . . an equal
power of self-defense.”100
Even setting presumptions aside, an implied power of congressional suit is at
odds with the principle that each branch is independently empowered with “the
necessary constitutional means and personal motives to resist encroachments of
the others.”101 Rather than contribute to a system of independent checks and
balances, congressional suits encourage the alignment of two branches in
opposition to the third. Under such an arrangement, the Legislature would have
a dangerous incentive to collude with the Judiciary and vice versa, for the
Judiciary “is in continual jeopardy of being overpowered, awed, or influenced
by its co-ordinate branches.”102 Such comingling of powers is antithetical to the
constitutional structure.103
Furthermore, the power of congressional suit would effectively promote the
Judiciary to the position of governmental overseer,104 a role patently inconsistent with the spirit and structure of the Constitution. To be sure, “it is emphatically the province and duty of the judicial department to say what the law is.”105
But that power springs only from the basic implication that “[t]hose who apply
the rule to particular cases, must of necessity expound and interpret that
rule,”106 which provides no support for a right of Congress to initiate such
constitutional courtroom clashes at will. Thus, it is perfectly coherent to argue
that implying a power of congressional suit would inappropriately alter the
judicial function, while conceding that courts are sometimes forced to decide
questions of similar import.107 It is Congress’s ability to ignore its own powers
of self-defense and force the Judiciary to do its bidding that offends the
separation of powers.
100. Id. at 322.
101. Id. at 321–22.
102. THE FEDERALIST NO. 78, at 466 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
103. Id. (noting that “liberty can have nothing to fear from the judiciary alone, but would have
everything to fear from its union with either of the other departments”).
104. See Dames & Moore v. Regan, 453 U.S. 654, 660 (1981) (citing Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring)) (noting that “the Framers ‘did not
make the judiciary the overseer of our government’”).
105. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
106. Id.; see also United States v. Windsor, 133 S. Ct. 2675, 2698 (2013) (Scalia, J., dissenting)
(“That is jaw-dropping . . . . It envisions a Supreme Court standing (or rather enthroned) at the apex of
government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its
role. This image of the Court would have been unrecognizable to those who wrote and ratified our
national charter.”).
107. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594–95 (1952) (Frankfurter, J.,
concurring).
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Finally, this seismic change in the relationship between the federal branches
would dilute the people’s power to determine the proper allocation of constitutional power through popular election. “Sovereignty originate[s] and remain[s]
with the people, who [can] parcel out and reclaim discrete chunks of power as
they [see] fit,”108 not only through constitution-making, but also through the
ballot box. It is no accident that the Constitution does not divide “legislative and
executive [powers] with mathematical precision [or] divide the branches into
watertight compartments.”109 Absent this demarcation, the people retain the
power to allocate power at the margins by affirming or rejecting the conduct of
constitutional actors through the electoral process—a power all but lost if
Congress can reroute those questions through the Judiciary.
History supports the position that direct congressional resort to the courts is
inconsistent with the Constitution’s detailed scheme of checks and balances.
Although “[m]odern Americans associate enforcement of the Constitution with
the doctrine of judicial review[,] . . . the Constitution integrate[s] several enforcement devices in its general system of separated powers.”110 In fact, “Americans
resolved their first constitutional crisis by deploying several of these nonjudicial
enforcement devices.”111 From the time of the Founding, “if the skeptical
branch could voice its resistance [to the acts of another branch] in constitutional
language that resonated with the voters,” then popular elections would provide
the final check on any offending usurpation.112 Such was the case in 1800, when
“opponents of the [Alien and Sedition Acts] sharpened the election of 1800 into
a referendum of sorts on the statute.”113
The Constitution leaves these questions to the people precisely because
interbranch power dynamics are meant to balance based on the sort of circumstantial normative arithmetic that only the sovereign people are rightfully entrusted
to calculate. Implying a power of congressional suit would short circuit this
process of popular constitutional adjudication by allowing Congress to make its
case to the courts rather than to the people.
CONCLUSION
All told, the fundamental reordering of the separation of powers caused by a
power of congressional suit is too much for our notions of inherent and
incidental powers to bear. And thus, Article I does not vest Congress with the
power to sue the Executive in response to an alleged usurpation of its power. By
108. AMAR, supra note 48, at 106.
109. Springer v. Philippine Islands, 277 U.S. 189, 211 (1928) (Holmes, J., dissenting).
110. AMAR, supra note 48, at 60–63 (listing oaths to uphold the Constitution, the president’s veto
power, prosecutorial discretion, and jury nullification as a few of the several “constitutional checks and
choke points”).
111. Id. at 61 n.* (discussing how states, voters, and newly-elected President Jefferson reacted to
defeat the Alien and Sedition Acts using constitutional checks and balances rather than the courts).
112. Id. at 63.
113. Id. at 61.
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cabining its inquiry into these issues to traditional standing principles, the
Burwell court reached the wrong result using the wrong formula. Yet, as
important as an answer to Burwell’s congressional suit question may be, the
broader takeaway still may be the Article I powers rubric itself, which properly
reorients the debate over legislative lawsuits as one about separation of powers,
undiluted by standing proxies.