When the House of Representatives seeks to initiate a lawsuit, it must first formally vote to authorize that lawsuit. The House can authorize litigation through a vote of the full House, but in recent years has also delegated authority over litigation decisions to a group of congressional leaders.
In his 2021 University of Illinois Law Review article, How the House Sues, Ben Miller-Gootnick examines that delegation. His analysis considers whether the House may constitutionally authorize a subset of members to initiate litigation on its behalf under Article III, and how that decision relates to other justiciability requirements.
The Bipartisan Legal Advisory Group
The Bipartisan Legal Advisory Group, or BLAG, consists of the Speaker of the House and the majority and minority leaders and whips. The House’s Office of General Counsel consults with the group on litigation matters, and under the House’s standing rules, BLAG speaks for the House in litigation unless the House says otherwise.
When the House created BLAG in 1993, members considered a different structure. A minority proposal would have expanded the group to nine members and required a full House vote to authorize a court appearance unless the group agreed unanimously. The proposal was not adopted and the five-member structure remains through today.
As Ben Miller-Gootnick explains, that five-member group makes decisions based on a simple majority vote. And because the majority party ordinarily holds three of the five seats, its leaders can act over the minority’s objection. That happened in 2011, when BLAG voted 3-2 along party lines to defend the Defense of Marriage Act after the Justice Department stopped doing so, in the litigation that became United States v. Windsor.
The group’s role has also expanded over time. Ben Miller-Gootnick discusses BLAG’s original role, stating the House’s position in cases already in progress, and charts that through to its newer power to start lawsuits. He traces that shift to 2015 changes to the House rules and a 2019 resolution reaffirming BLAG’s authority to authorize litigation. Under that resolution, a BLAG vote to authorize a suit and articulate the House’s position carries the same weight as a vote of the full House.
The House’s Rulemaking Power
Article I of the Constitution gives each chamber the power to “determine the Rules of its Proceedings.” The House uses rules to organize its work and assign responsibilities to committees, officers and other bodies. Viewed that way, sending litigation decisions to BLAG arguably is just another instance of the House deciding who does what.
Ben Miller-Gootnick examines whether the Rulemaking Clause permits the House to assign the authority to initiate litigation to a group of five leaders. He concludes that the delegation is likely constitutional, while recognizing that the question has produced competing arguments.
One objection is that a House-initiated lawsuit, often against the executive branch, reaches beyond the House’s internal affairs. A rule about how the House runs itself looks different when it results in the House suing someone external to the chamber.
But the House already lets smaller bodies act for it in many ways: committees, and often their chairs alone, issue subpoenas without a floor vote. The article compares BLAG with delegations like those. Although those comparisons do not settle the question, Ben Miller-Gootnick uses them as evidence of how broadly the House has historically deployed its rulemaking power.
That power has limits, though; a House rule cannot override another part of the Constitution. So the article also asks how the House’s Article I authority fits with the separate requirements a case must meet in federal court.
Authorization and Standing
An authorized lawsuit still has to meet other constitutional requirements. Article III limits federal courts to deciding “cases” and “controversies,” and standing doctrine requires an injury that is concrete, particularized and actual or imminent. The plaintiff must also show that the injury is fairly traceable to the challenged conduct and likely to be redressed by a favorable court decision.
When legislators sue, courts look closely at whose injury is at stake. An individual member may assert an injury affecting that member personally, while a chamber may claim an injury to the institution. Which kind of injury is alleged can determine who is entitled to sue.
Ben Miller-Gootnick’s research on congressional authority explains why authorization is so important here. If a claim belongs to the House as an institution, a court may need to decide whether whoever filed the suit can act for the House. The Supreme Court discussed that issue in Raines v. Byrd (1997), noting that the members of Congress who challenged the Line Item Veto Act had not been authorized to represent their chambers.
That inquiry is connected to standing, but a vote authorizing litigation does not by itself establish every element of standing. The plaintiff must still demonstrate an injury and satisfy the other requirements applicable to the case.
Ben Miller-Gootnick argues that Article III generally requires the House to authorize a suit over an institutional injury, but it does not require a separate floor vote for each one. That leaves open the possibility that the House can make the decision through BLAG.
Can Courts Review the Delegation?
Ben Miller-Gootnick’s constitutional scholarship also examines whether courts can review the House’s decision to delegate litigation authority to BLAG at all. In How the House Sues, he takes up that question under the rubric of the political question doctrine, which holds that some issues are not for courts to decide. The Rulemaking Clause is central here because it arguably constitutes a textual commitment of the relevant decision directly to the House itself, rather than to courts.
The Supreme Court identified factors for applying the political question doctrine in Baker v. Carr, including whether judicially manageable standards exist to resolve an issue. Ben Miller-Gootnick applies those Baker factors to the House’s rulemaking power. He also discusses United States v. Ballin, an 1892 decision upholding a House rule for counting a quorum. The Court deferred to the House on its procedures but warned that the House “may not by its rules ignore constitutional restraints or violate fundamental rights.”
The article separates two kinds of challenges. Ben Miller-Gootnick concludes that the political question doctrine may keep courts from reviewing how the House divides up authority internally, but that a court could still hear an objection grounded in Article III. A litigant may be unable to challenge the House’s reliance on BLAG as such, but could still argue that a particular suit falls short of what Article III demands.
About Ben Miller-Gootnick
Ben Miller-Gootnick is a lawyer in Washington, D.C., who has worked in all three branches of the federal government. He was a Bristow Fellow in the Office of the Solicitor General at the U.S. Department of Justice and served as a law clerk in the federal courts.
In private practice, he focused on federal appellate litigation and congressional investigations, and he later served as counsel on the Democratic staff of the House Judiciary Committee.
His published scholarship includes How the House Sues and Boundaries of the Federal Vacancies Reform Act. More information is available on Ben Miller-Gootnick’s personal website.
