Standing up for Legislators: Reevaluating Legislator Standing in the Wake of Kerr v. Hickenlooper

Open Access

Abstract

Hornbook constitutional law establishes that Congress and state legislatures are bodies of limited, enumerated powers, and common sense suggests they should get their act together and exercise them more often. But should legislators be permitted to sue in order to exercise their powers when another branch of government infringes on them unconstitutionally, or the body they represent unconstitutionally limits them? This Note argues that, at least in certain circumstances, they should. Following on the heels of the Tenth Circuit's recent treatment of the issue in its Kerr v. Hickenlooper decisions, this Note proposes a redefinition of the legislator standing doctrine under which legislators can sue to remedy unconstitutional infringement of specific, enumerated powers. In doing so, this Note argues that prudential concerns that have historically barred legislators from suing should be disregarded, not only because the Supreme Court signaled as much in Lexmark International, Inc. v. Static Control Components, Inc., but also because these concerns are normatively ill considered. Rather, tying legislators' injuries in fact to enumerated powers better aligns standing for legislators with standing for everyone else, while helping ensure courts are not stuck hearing suits they cannot and should not hear.