Can Congress Create Standing For Member of Congress to Sue Executive For Not Enforcing The Law

February 28th, 2014

Senator Rand Paul has proposed the “Constitutional Check and Balance Act,” which would “authorizes members of Congress to take the administration to federal court if the president, or any other executive branch official, directs federal agencies to not enforce a provision of law.” A similar provision has been introduced in the House.

Here is the text of the act:

8 dent or any other official in the executive branch of the
9 Federal Government issues a memorandum or other writ-
10 ten statement directing any official in the executive branch
11 to not enforce a provision of law, a Member of Congress
12 who meets the requirement described in subsection (b)
13 may bring an action for declaratory or injunctive relief in
14 an appropriate United States district court to compel such
15 official to enforce the provision of law.
17 ment described in this subsection with respect to a provi-
18 sion of law is that the Member of Congress cast a recorded
19 vote on final passage of the version of the bill or joint
20 resolution that enacted the provision into law.

In other words, anyone who voted for the law could sue to make sure that it is enforced.

I wonder whether this may have article III problems if it creates standing in the absence of an injury in fact. This was a similar issue to the one the Court punted when it did not resolve First American Financial v. Edwards (Eugene Volokh has a post on a similar case pending now).