Government Standing and the Fallacy of Institutional Injury
William & Mary Law School Research Paper No. 09-373
54 Pages Posted: 9 Mar 2018 Last revised: 8 Sep 2021
Date Written: March 5, 2018
There is a new plaintiff in town. In cases involving the Affordable Care Act, the Defense of Marriage Act, and partisan gerrymandering, government institutions have gone to federal court to redress “institutional injuries” — that is, claims of harm to their official powers or duties. Jurists and scholars are increasingly enthusiastic about these lawsuits, arguing (for example) that the Senate should have standing to protect its power to ratify treaties; that the House of Representatives may sue to preserve its role in the appropriations process; and that the President may go to court to vindicate his Article II prerogatives. This Article contends, however, that government standing to assert “institutional injuries” rests on a fundamental misunderstanding of our constitutional scheme. The provisions of our structural Constitution are not designed for the benefit of institutions. Instead, the Constitution divides power between the federal government and the States and among the branches of the federal government for the benefit of the entire public. Government institutions have no greater interest in their official powers than any other member of society. Moreover, as this Article demonstrates, denying government standing to assert “institutional injuries” is not only consistent with constitutional structure, history, and precedent, but also reminds us of a basic principle: Individuals, not institutions, are the rightsholders in our constitutional system.
Keywords: standing, separation of powers, federalism, judicial power, jurisdiction
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