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In the Complaint filed today Blumenthal v. Trump (for text see [https://www.law.com/nationallawjournal/2018/11/19/senate-democrats-sue-trump-challenging-whitakers-appointment-at-main-justice/?slreturn=20181019194158 ] ), three US Senators , members of the judiciary committee allege that the Presidential appointment of Whittaker violates the Appointments Clause of the US Constitution.

Some 'TV Lawyers' have opined that the compliant will not be argued on it's merits because the Court will rule that the Senators have no standing to bring the action.

Rather than getting into the discussion about Mr. Whittaker's past statements and involvements, let me pose a hypothetical:

If the President were to fire the Secretary of the Treasury and appoint Oprah to exercise that role without the benefit of Senate confirmation,

Who would have standing to present a complaint?

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Maybe, probably not. The leading case would appear to be Raines v. Byrd, 521 US 811, where 6 congressmen sued over a line-item veto law (later held to be unconstitutional). The court notes the established legal fact that

To meet the standing requirements of Article III, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief".

where that court added the italics; and

the alleged injury must be legally and judicially cognizable. This requires, among other things, that the plaintiff have suffered "an invasion of a legally protected interest which is . . . concrete and particularized"

In this case, the court find that "appellees have not been singled out for specially unfavorable treatment as opposed to other Members of their respective bodies", and they are claiming institutional injury, arising "solely because they are Members of Congress...If one of the Members were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead". The court did, however, uphold standing in one legislative case, Coleman v. Miller, 307 U.S. 433, where there was an issue over whether the legislature had ratified a constitutional amendment when the Lt. Governor of Kansas cast a tie-breaking vote on the question (the allegation was that this was improper). The court held that the legislators "have a plain, direct and adequate interest in maintaining the effectiveness of their votes", finding that their

votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to de- feat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes.

The Raines court finds that legislators "have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified" – but that was not the case in Raines (the line-item veto act had clearly passed).

Applied to the Oprah hypothetical, senatorial vote would arguably have been completely nullified by the proposed process: that is the argument made in the present complaint, para 33-34. The end of sect. III of the Raines opinion gives extensive historical analysis of the fact that branches of government do not generally have standing to sue each other, closing with the note that

Our regime contemplates a more restricted role for Article III courts, well expressed by Justice Powell in his concurring opinion in United States v. Richardson, 418 U. S. 166 (1974):

"The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury v. Madison, 1 Cranch 137 (1803),] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.

There is a very narrow window through which the Senate might have standing to sue POTUS and otherwise, the answer is "no". The Oprah case is distinguished from Raines in that there is no political recourse to simply ignoring the appointments clause, except impeachment, and the courts might see such an action as equivalent to vote-nullification.

  • So,in the hypothetical I suggested, who would have standing? It is hard to imagine any entity that could claim "personal injury". If that were the case, then doesn't follow that the president is free to violate the appointments clause? – BobE Nov 20 '18 at 3:20
  • I can't comment on whether or not the answer is correct, but it is true that in many cases, the courts offer no remedy for a constitutional wrong. The president is not really "free to violate the appointments clause," as he remains subject to impeachment or replacement by the voters. – bdb484 Nov 20 '18 at 3:49
  • @bdb484 impeachment seems like a draconian remedy, when the appropriate remedy might be to insist that the cabinet member must be confirmed before that person is authorized (by the Senate) to exercise the authorities of the office. – BobE Nov 20 '18 at 4:27
  • It may be worth noting that some Senators are also suing over the emoluments clause, stating that the (alleged) reception of emoluments by Trump deprives them of their constitutionally guaranteed say and vote in the matter. The judge has thus far accepted this argument to my knowledge, but things might change as the case progresses and possibly reaches appeals. – zibadawa timmy Nov 20 '18 at 10:32
  • @BobE but if the person purports to exercise the authority of the office despite not being confirmed by the senate, who is to stop him or her? If the senate can't sue, what can they do? – phoog Nov 20 '18 at 14:18

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