Payvand Ahdout (University of Virginia School of Law) has posted Interbranch Litigation on SSRN. Here is the abstract:
Over eight presidential administrations, federal courts at every level have resolved—or declined to resolve—scores of interbranch cases, where one branch of the federal government sues another in federal court. This Article maps that body of law comprehensively. Using an original dataset that includes every instance of interbranch litigation, this Article documents the history of interbranch litigation, identifies its jurisprudence, and traces its consequences for the exercise of political power outside of court.
In interbranch cases, federal courts have developed a distinct set of justiciability rules governing interbranch standing, interbranch ripeness, and equitable restraint. The collective effect of these rules is to make adjudication on the merits difficult. But this Article argues that when courts decline to hear interbranch cases on justiciability grounds, those determinations are not neutral. Instead, they have upstream consequences for the way powers are exercised between the branches.
It is not just the decision not to decide that has consequences. Precisely how courts structure their justiciability rules—the contours of the doctrines they articulate—produces effects that extend beyond the courtroom. Through the rules for interbranch standing, federal courts have empowered congressional majorities and, in particular, have amplified the institutional authority of the Speaker of the House. Through ripeness doctrine, they have given the President structural advantages in negotiations with Congress. Building on the scholarship that shows justiciability rules are not neutral, this research shows that in the context of interbranch litigation, justiciability doctrine is uniquely saturated with power dynamics.
Highly Recommended!
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