In Federalist No. 22, Alexander Hamilton observed, “Laws are a dead letter without the courts to expound and define their true meaning and operation.” In constitutional controversies, the judiciary’s role is even more profound. Last week, the Supreme Court heard arguments in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case that will signal how willing the Court is to prevent separation of powers from becoming a dead letter.
Separation of powers protects individual liberty by preventing any one branch of government from amassing too much power. It also ensures that government functions effectively, by assigning to each branch those powers that are most appropriate to its nature. For example, legislating is best accomplished by a multi-member body that engages in extended debate and deliberation. By contrast, waging war requires timeliness, and is thus best given to a unitary executive.
The Arizona case involves a turf dispute between Arizona’s legislative and executive branches, but it’s unclear if the Court is amenable to refereeing this constitutional conflict. The case is therefore a canary in the coalmine for “legislative standing,” which means a legislature’s ability to defend, in court, its lawmaking prerogative against executive assault. This is important not only to Arizona’s legislature, but any legislature, including the U.S. Congress.
At issue in the case is the constitutionality of Proposition 106, a referendum passed by Arizona voters that divested the legislature of drawing the state’s congressional districts and gave that power to an independent commission. When the commission redrew the districts in 2012, the Arizona legislature filed suit, asserting that the commission had violated Article I, section 4, of the U.S. Constitution, stating, “the Times, Places and Manner of holding elections for … Representatives [in the House] shall be prescribed in each State by the Legislature thereof .”
Before the meaning of this language can be resolved by the Court, it must first find that the Arizona legislature has standing to sue. In over 225 years of constitutional history, the Court hasn’t definitely articulated when legislative standing is proper.
The closest case is Coleman v. Miller (1939), where a majority of Kansas state senators were granted standing to assert their constitutional claim against the state’s Lieutenant Governor. His tie-breaking vote had effectively nullified the senate’s vote against a piece of legislation, so the Court concluded the senators had adequately asserted an institutional injury. By contrast, a later decision, Byrd v. Raines (1997), denied legislative standing to six congressmen, who sued the executive branch over the Line Item Veto Act’s constitutionality. The Court concluded these legislators were a disgruntled group that “simply lost [the] vote” on the Act and their claim did not represent the legislature’s institutional interests.
However, the Supreme Court has made it clear that the constitutional requirements for standing are the same for all litigants. All branches of government are capable of suffering an institutional injury — of having their constitutional prerogatives trenched upon—and all branches should have standing to vindicate those interests. State executives have standing to challenge federal intrusions on their state’s constitutionally-reserved powers, and have successfully done so in a series of Supreme Court cases such as New York v. United States and the 26-state lawsuit challenging the constitutionality of Obamacare’s mandatory Medicaid expansion.
Likewise, the federal executive branch has standing to bring lawsuits seeking to preserve its institutional prerogatives. In Arizona v. United States (2012), for example, the Obama administration sued Arizona, seeking to stop implementation of a state law that conflicted with federal immigration law. Moreover, state and federal executive agencies such as the FDA, EPA and FCC have standing to litigate against individuals and entities that don’t comply with their lawful orders, because these violations harm their institutional interest in executing laws that they administer.
Legislatures are not institutional orphans, incapable of vindicating their constitutional prerogatives. When legislatures bring suit as legislatures, there should be no doubt that they possess sufficient institutional interests to sue. Indeed, when the legislature’s constitutional authority has been invaded, courts have a solemn duty to resolve the dispute and preserve our separation of powers architecture.
Elizabeth Price Foley is professor of constitutional law at Florida International University College of Law. David B. Rivkin, Jr. served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. He practices appellate litigation with particular focus on constitutional law at BakerHostetler, LLP.