William & Mary Law Review

Article Title

Legislative Exhaustion


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 congressional lawsuits loosely derived from Justice Ruth Bader Ginsburg’s majority opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission and the “equitable discretion” doctrine once utilized in the D.C. Circuit. Under what this Article terms the “Legislative Exhaustion” principle, Congress would be barred from federal court whenever it has nonjudicial means to obtain the remedy it seeks against the Executive. Conversely, when Congress has no way to directly overrule the Executive, such as when the Executive refuses to enforce a law based on constitutional objections, federal courts could resolve the constitutional dispute. Not only is such an exhaustion principle consistent with prudential doctrines, preserving judicial resources for cases that demand adjudication, but it also encourages the most important normative benefit the Framers hoped to achieve from interbranch disputes—namely, enhanced legislative deliberation concerning the merits of government policy. Thus, there is no single answer to whether Congress may sue the Executive. Rather, it depends on the nature of the claim and the nonjudicial remedies available to Congress.