Standing, Politics, and Exhaustion: A Response to Legislative Exhaustion

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 by noting that the exhaustion principle, while helpful in the fraught context of legislative standing, should not be expanded to standing more generally (as a few courts appear to have suggested).