I blogged about this case a few days ago, and also asked Prof. Jonathan Nash, the author of a recent Michigan Law Review article on Congressional standing whether he could offer a more expert judgment. He very kindly agreed, and passes along this:

Two questions are present here: First, does Congress in the ordinary course have standing to assert the constitutionality of a federal statute when the executive branch has decided to abandon that argument? Second, even if it does, does Congress have standing to do this in a criminal case?

Matters took an unusual turn when the House of Representatives filed a motion to intervene in the case in order to argue on appeal in favor of the statute's constitutionality. Prof. Eugene Volokh has previously posted on the dubious nature of the House's motion on separation-of-powers grounds . I am grateful for the invitation to add some thoughts on the House's standing to pursue this course, which I believe is highly problematic.

The criminal prosecution in United States v. Nagarwala began traditionally enough, with the federal government, acting through the Department of Justice ("DOJ"), bringing criminal charges. Specifically, the defendants were charged with implementing female genital mutilation in violation of 18 U.S.C. § 116(a). The district court dismissed most charges in the indictment on the ground that section 116(a) exceeded the federal government's enumerated powers and was therefore unconstitutional. DOJ initially filed a notice of appeal, but then withdraw that notice; DOJ notified Congress pursuant to 28 U.S.C. § 530D of its "reluctant[]" decision to concede the statute's unconstitutionality.

[1.] On the first question, I have argued in favor of a functional approach to congressional standing. On that understanding, Congress has standing to pursue its interest in information and oversight. While this is an interest Congress has lately been advancing on numerous fronts with respect to the Trump administration, it has no application here.

A functional approach to congressional standing also recognizes the standing of Congress to challenge vote nullification and process-based changes in institutional bargaining power, i.e., settings where the executive has acted in a way that alters the constitutional balance of lawmaking power between the branches of government. While this might seem facially to provide a basis for congressional standing here—one might frame DOJ's action as a unilateral decision to nullify a statute duly enacted by Congress—there are several problems with this argument.

First, I have posited that the argument for congressional standing is stronger where the executive branch acts (i) in a way that results in a substantial change in the balance of power between the branches, and (ii) more unilaterally. Here, however, the executive branch has simply declared its acquiescence in a court determination that a statute is unconstitutional. As such, any long-term effect on the constitutional balance of power is low, and the action is hardly unilateral. Moreover, any concern that DOJ's action effects a blanket exercise of prosecutorial discretion (thus frustrating Congress's implicit intent in delegating such discretion on DOJ) is cabined by the fact that future administrations would be free to seek prosecutions under the statute; no reliance rights are conferred on private actors by virtue of DOJ's action (except to whatever extent the district court decision remains binding authority in that district; and, indeed, it is unlikely that the decision would preclude relitigation of the issue in the same district by a future administration seeking prosecution).

Second, the congressional standing for which I advocate is standing for Congress to challenge the executive branch's action (or inaction) directly. Here, Congress does not seek to sue some part of the executive branch, but rather to carry on a criminal prosecution against private individuals in the stead of the executive branch.

One case that provides some basis for Congress's standing to step into the shoes of the executive branch to defend a statute's constitutionality is United States v. Windsor. There, the Supreme Court relied upon the House of Representative's efforts to defend on appeal the constitutionality of the Defense of Marriage Act (DOMA) after the Obama administration had conceded the statute's unconstitutionality. But there the Court understood that a fundamental disagreement remained between the plaintiffs and the executive branch: While the executive branch agreed with the plaintiffs that DOMA was unconstitutional, it refused to pay the tax refund that the plaintiffs sought. Thus, Article III standing rested on the ongoing dispute between the plaintiffs and the executive branch. The Court relied upon the House's argument in favor of constitutionality in order to overcome prudential objections to hearing the case; indeed, the House made its argument solely in an amicus capacity, not as an intervener (as would be the case here).

[2.] Even if Congress somehow enjoys standing in the ordinary course to step into the shoes of the executive to defend the constitutionality of a statute, the question remains whether that standing extends to the setting of criminal prosecutions. It is often said that standing is not an issue in a federal criminal prosecution, but Professor Michael Collins and I have argued that is only the case where the executive branch, i.e., DOJ, pursues the prosecution. Thus, we have argued, state prosecutors might face standing hurdles to pursuing prosecutions under the federal criminal law; and, indeed, the Take Care and Appointments Clauses would pose analogous hurdles. There is every reason to think that the legislative branch would face similar obstacles in pursuing a federal criminal prosecution. It is the federal executive branch—not state executive branch actors, and not the federal legislative branch—that executes the federal criminal laws and thus enjoys presumptive standing in federal criminal prosecutions. And, while Congress has an interest in defending the constitutionality of its laws, that would not seem to rise to the level of interest necessary to sustain the sovereign's interest in prosecuting a particular criminal matter.

The highly circumscribed scope of congressional standing in the criminal context is evident from the limits on congressional informational and oversight standing. While Congress can issue subpoenas and hold individuals in contempt for failure to abide by those subpoenas, any power to hold such individuals in criminal contempt lies with DOJ, not Congress.

Perhaps the strongest case supporting congressional standing to appeal the district court's Nagarwala decision is the Supreme Court's decision in Maine v. Taylor. There, the defendant was charged with violating a federal statute that criminalizes the importation of fish in violation of governing state importation statutory restrictions. The defendant moved to dismiss the indictment on the ground that the federal criminal statute here purported to criminalize a state statute that was unconstitutional under the Commerce Clause; with the constitutionality of a state statute now at issue, the state of Maine intervened pursuant to 28 U.S.C. § 2403. After the district court denied the defendant's motion, the defendant entered into a guilty plea conditional on the possibility that he might win an appeal contesting the constitutionality of the underlying state statute. After the United States Court of Appeals for the First Circuit reversed—finding the Maine statute unconstitutional—Maine, as intervener, sought review in the Supreme Court, and the Court upheld Maine's standing to pursue the appeal.

But Maine v. Taylor offers little support for the House's standing to pursue the Nagarwala appeal. For one thing, the opinion includes language indicating that the case should not be read to recognize broad federal criminal standing outside of DOJ ("[P]rivate parties, and perhaps even separate sovereigns, have no legally cognizable interest in the prosecutorial decisions of the Federal Government ….").

More importantly, there are strong reasons to think that the claim to standing of a state to challenge on appeal a decision in a federal criminal case holding a state statute unconstitutional is far stronger than the analogous claim to standing of Congress to appeal a decision in a federal criminal case holding a federal statute unconstitutional. After all, in a setting like Maine v. Taylor itself, the entity seeking to intervene and appeal the constitutionality of the statute—the state—is precisely the entity that would be precluded from enforcing the statute in question if the case were to go unappealed.

In contrast, in the Nagarwala setting, the House faces no prospect in the future of enforcing the federal criminal statute even if the district court decision is reversed. While the state in Maine v. Taylor faced future enforcement decisions regarding the state statute at issue, the House's interest in Nagarwala extends solely to the constitutionality of the statute. Put another way, the affront in the vertical separation-of-powers context—visited upon the state executive branch by the federal executive branch declining to defend on appeal a state statute against constitutional challenge—is greater than the affront in the horizontal separation-of-powers context—visited upon the federal legislature by the federal executive branch declining to defend on appeal a federal criminal statute against constitutional challenge.

It is hardly surprising that the state in Maine v. Taylor was represented by the state's Attorney General's office, not the state legislature. Indeed, Congress itself seems to have recognized this logic when it drafted section 2403 (the provision that allowed Maine to intervene). In any case that draws in question the constitutionality of a state statute that addresses the public interest where the state is not already a party, the statute calls for a federal court to notify the state's Attorney General, not the state legislature, of that fact. Analogously, notification of a challenge to a federal statute's constitutionality is to go to the U.S. Attorney General, not the Congress.

That the House likely lacks standing here does not necessarily preclude congressional action to address female genital mutilation. Congress could try to craft legislation—whether criminal or civil—that passes constitutional muster. Indeed, DOJ's "reluctan[ce]" to abide by the district court's decision suggests a willingness to enforce laws on the subject that are constitutional. What Congress likely cannot do is pursue an appeal in this federal criminal matter.