Over at The New Republic, my colleague Jeffrey Rosen argues that a lawsuit challenging a possible decision by President Obama to unilaterally raise the debt ceiling would fail for lack of Article III standing:
[I]f Obama invoked the Fourteenth Amendment to raise the debt ceiling unilaterally, the most likely outcome is that the Supreme Court would refuse to hear the case. The conservative justices have long required clear evidence of legal “standing” before opening the courthouse door—something they showed in their recent 5-4 decision rejecting a taxpayer’s challenge to an Arizona school vouchers program—and it’s hard to imagine who could establish enough of a legal injury to establish standing in this case. Individual senators and representatives wouldn’t have standing to sue on their own, according to a 1997 Supreme Court precedent, and although the House and Senate could, in theory, pass a joint resolution asserting that the president has injured Congress by usurping its power, they’re unlikely to find the votes to do so. (If the House alone passed a resolution asserting a constitutional injury, its legal status is less certain.)
That’s probably right, but I wonder if the May 2011 Supreme Court decision in Camreta v. Greene might alter the picture. In Camreta, the Supreme Court took the rather novel view that a government official has Article III standing to challenge a lower court ruling to obtain “clearance” from the ruling so long as the official “regularly engages” in the practice that the decision regulates. That is, the possibility that the official will face a penalty for engaging in the practice that the decision regulates itself creates Article III standing to challenge the decision.
If a judicial opinion can create standing, then I’m not sure why an executive order wouldn’t. And I gather there are at least some state or local officials who would be happy to challenge a decision by President Obama to unilaterally raise the debt ceiling. (Think Ken Cucinelli, the Attorney General of Virginia, for example.) Given that the federal government pays for a large chunk of many state budgets, state officials presumably would need to know if any raising of the debt ceiling is constitutional. They would need “clearance” to know if their subsequent conduct is lawful. If I’m right about that, could Camreta be used to argue for Article III standing of state or local officials in a suit challenging the executive order?
I doubt it would work, and I’m not saying I would want it to work: I think Camreta is entirely unpersuasive, so I don’t want its reasoning to spread. But it seems at least an argument worth flagging for those interested in this (hopefully hypothetical) question.
UPDATE: In response to my co-blogger Jonathan’s comments, I’m assuming that there is some way that a state official could face some legal liability for taking the position that raising the debt ceiling is unconstitutional — such as for refusing to disburse federal funds. If that’s not true, then this theory of Article III standing clearly won’t work.