Nat Stern

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Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non-enforcement of federal law. While scholars divide over the normative propriety of such suits, the Court has never issued a definitive pronouncement on their viability. Nevertheless, the Court’s rulings when the issue has arisen have displayed a distinct pattern. While the Court has not formally repudiated suits of this nature, neither has it issued a decision that hinges on the presence of congressional standing. On the contrary, the Court has repeatedly passed on opportunities to affirm its validity. This Article concludes that the Court consciously avoids recognizing legislative standing, but has left the door very slightly ajar in the event that an unanticipated case arises.