Government Standing and the Fallacy of Institutional Injury

Abstract

A new brand of plaintif has come to federal court. In cases involving the Afordable Care Act, the Defense of Marriage Act, and partisan gerrymandering, government institutions have brought suit to redress “institutional injuries”—that is, claims of harm to their constitutional 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 beneft of institutions. Instead, the Constitution divides power between the federal government and the States and among the branches of the federal government for the beneft of the entire public. Government institutions have no greater interest in their ofcial 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.