There is a new plaintiff in town In cases involving the Affordable Care Act the Defense of Marriage Act and partisan gerrymandering government institutions have gone to federal court to redress "institutional injuries" "” that is claims of harm to their official powers or duties Jurists and scholars are increasingly enthusiastic about these lawsuits arguing for example that the Senate should have standing to protect its power to ratify treaties that the House of Representatives may sue to preserve its role in the appropriations process and that the President may go to court to vindicate his Article II prerogatives This Article contends however that government standing to assert "institutional injuries" rests on a fundamental misunderstanding of our constitutional scheme The provisions of our structural Constitution are not designed for the benefit of institutions Instead the Constitution divides power between the federal government and the States and among the branches of the federal government for the benefit of the entire public Government institutions have no greater interest in their official powers than any other member of society Moreover as this Article demonstrates denying government standing to assert "institutional injuries" is not only consistent with constitutional structure history and precedent but also reminds us of a basic principle Individuals not institutions are the rightsholders in our constitutional system
Tara L. Grove,
Government Standing and the Fallacy of Institutional Injury,
U. Pa. L. Rev.
Available at: https://scholarship.law.ua.edu/fac_articles/350