The Origination Clause and Why House Democrats May Have Standing to Challenge the Recent Executive Order on Payroll Taxes
With COVID-19 cases still common throughout the United States and unemployment around 10 percent, many Americans are in a dire economic situation. As the COVID-19 economic stimulus recently expired, and President Trump and Congress have been unable to reach any agreement on an extension, President Trump unilaterally issued four executive orders for economic relief. Many Democrats have opposed the executive orders as executive overreach and have discussed whether the U.S. House of Representatives should sue the administration to enjoin the executive orders. Unlike previous cases where a court has found the House did not have standing, the House may have standing to challenge at least one of the executive orders (on deferring payroll taxes).
Generally, individual houses of Congress do not have standing to bring a lawsuit. Specifically, the Supreme Court has held that even though a legislative body may have standing, “a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole.”
As such, the House generally does not have standing to challenge any presidential action because any violation of law would be an injury upon Congress as a whole and require the House and Senate to jointly bring a lawsuit, which is unlikely given that Republicans control the Senate.
However, the recent en banc D.C. Circuit decision finding standing for the House to subpoena administration witnesses provides a roadmap to how the House could have standing. The D.C. Circuit held that “[t]he Senate naturally need not sign off on the House’s subpoenas; so it need not join efforts to vindicate them in the courts. . . . The House of Representatives has a unique interest under the Constitution in vindicating this injury. The Constitution places in the House sole responsibility to determine whether to file articles of impeachment against the President.”
Thus, if a lawsuit initiated by the House were to arise from a right it solely had (as compared to Congress in general), then it would have standing. The Origination Clause in the Constitution likely provides such standing to challenge one of the executive orders.
The Origination Clause specifies that “[a]ll Bills for raising Revenue shall originate in the House of Representatives.” Although the Supreme Court has never addressed whether bills lowering and/or deferring revenue would also fall under the clause, lower courts have held that the clause “does not refer only to laws increasing taxes, but instead refers in general to all laws relating to taxes.”
Thus, the House could argue that it was specifically injured by the executive order: The executive order to defer Social Security payroll taxes relates to a change of tax laws. Therefore, the executive order prevented the House from having the opportunity to originate the revenue change.
I will note that this argument for potential standing is likely academic. In addition to the political optics of challenging the executive order, any court case would likely be ineffective: As the deferment of payroll taxes will end at the end of this year, the deferment would likely end far before any final judicial decision is ordered.
However, the House could still bring a lawsuit to establish a legal precedent for standing, potentially curtailing any future presidential action to unilaterally adjust tax revenue.