In Transunion v. Ramirez, the Supreme Court illustrated the limits on Congress’s authority to establish an Article III “injury in fact.” Though the case involved a lawsuit by private plaintiffs against a private company, the Court’s decision will likely affect standing doctrine in other contexts. As discussed here, the Transunion case may negatively affect congressional lawsuits — that is, the standing of the House, Senate, or individual federal legislators to present claims in federal court.

1. Background. The statutory scheme in Transunion required that credit reporting agencies maintain accurate information in consumer credit reports. See 15 U.S.C. § 1681e(b) (credit reporting agencies must “follow reasonable procedures to assure maximum possible accuracy” of credit reports). A class of plaintiffs argued that Transunion violated the Section 1681e(b) accuracy requirement. For some plaintiffs, Transunion maintained and later distributed inaccurate information about them. For other plaintiffs, Transunion maintained but did not distribute the inaccurate information. Congress purportedly established the plaintiffs’ right to sue over either violation. See § 1681n(a) (creating consumer cause of action for the violation of “any requirement” under the statutory scheme).

But the Court held that the plaintiffs enjoyed Article III standing only when Transunion maintained and distributed inaccurate information about them. In that context, the plaintiffs suffered a judicially cognizable harm. The plaintiffs could not satisfy standing requirements when they alleged only that Transunion maintained inaccurate information about them. That alleged harm, though recognized by statute, was not sufficiently “concrete” to satisfy constitutional requirements.  It lacked a “‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” Transunion, Slip. Op. at 9 (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)). The Court “rejected the proposition that ‘a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.’” Id. at 10 (quoting Spokeo, 578 U.S. at 341). Thus, some claims in Transunion could not proceed.

2. Statutorily Authorized Congressional Lawsuits. The holding of Transunion will be relevant in congressional lawsuits like the one in Maloney v. Murphy, 984 F.3d 50 (D.C. Cir. 2020). In Maloney, the court held that individual legislators had standing to sue the executive branch over its refusal to comply with a statutorily authorized information request. Under the “seven-member rule” found in 5 U.S.C. § 2954, any seven members of the House Oversight Committee can demand information from an executive branch agency. However, in Maloney v. Murphy, the recipient agency, the General Services Administration, rebuffed a request from 7+ members. When the members sued, the executive branch argued that the members lacked standing because they asserted no judicially cognizable harm. According to the DOJ, injuries to legislators in their official capacities were not personal, as required by Raines v. Byrd, 521 U.S. 811, 818 (1997).

But the D.C. Circuit rejected that argument: “Section 2954 vested [the legislators] specifically and particularly with the right to obtain information.” Maloney v. Murphy, 984 F.3d at 64. Additionally, “the agency’s deprivation of the information to which requesters are statutorily entitled creates an Article III injury.” Id. at 61.

To the extent that Maloney v. Murphy relied on a right created solely by statute, Transunion creates a significant question about the court’s holding. Congress cannot create judicially cognizable harms out of thin air. See Transunion, Slip. Op. at 10 (Congress “‘may not simply enact an injury into existence’”) (quoting Hagy v. Demers & Adams, 882 F. 3d 616, 622 (6^th Cir. 2018)). Nor can it eliminate the principles established in Raines, under which plaintiffs must establish their personal stake in a controversy. (For more on those issues, see Grewal, Congressional Subpoenas in Court, 98 N.C. L. Rev. 1043 (2020)). The D.C. Circuit should keep Transunion in mind as it considers the DOJ’s petition for a rehearing en banc in Maloney.

Aside from issues related to the seven-member rule, Transunion raises questions over 28 U.S.C. § 1365. That statute establishes federal court jurisdiction for Senate-initiated subpoena enforcement lawsuits. Section 1365 might imply that the Senate suffers a judicially cognizable harm when the recipient of a subpoena rebuffs the Senate’s request. Once again, in any litigation that implicates § 1365(a), courts should keep Transunion in mind.

3. Congressional Lawsuits Grounded in Inherent Authority. Though Transunion principally addresses issues related to statutorily created harms, the opinion also articulates general standing principles that should make a court cautious before it exercises jurisdiction over any federal interbranch controversy. Transunion warns that the “[f]ederal courts do not possess a roving commission to publicly opine on every legal question,” nor do they “exercise general legal oversight of the Legislative and Executive Branches.” Slip. Op. at 8. Additionally, the Court emphasized that “‘history and tradition offer a meaningful guide to the types of cases’” over which courts may exercise jurisdiction. Id. (quoting Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269, 274 (2008)).

The DOJ has repeatedly emphasized those principles in arguing that courts lack jurisdiction over congressional lawsuits against the executive branch. Though it lost that argument in House Committee on the Judiciary v. McGahn, 968 F.3d 755 (D.C. Cir. 2020) (en banc), the DOJ might press that argument in front of the Supreme Court. See Maloney, Appellee’s Petition for Rehearing En Banc (Mar. 15, 2021) (The DOJ “maintains its longstanding position that legislative suits to compel disclosure of Executive Branch information do not constitute Article III ‘Cases’ or ‘Controversies,’” and that to the extent McGahn held otherwise, the DOJ “reserves its arguments for any Supreme Court review.”). Transunion suggests that the DOJ might find a more receptive audience at the high court.

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Transunion reflects a significant development in standing doctrine. Though the decision was reached by a narrow majority, every Justice (except Justice Thomas) agreed that Congress lacks the power to invent injuries. Justice Kagan, joined in dissent by Justices Breyer and Sotomayor, expressly acknowledged that “‘Article III requires a concrete injury even in the context of a statutory violation.’” (quoting Spokeo, 578 U.S. at 341). Thus, as Congress fashions potential remedies under new regulatory regimes, it should observe Article III limits.

Though not directly discussed in Transunion, those limits apply in the context of congressionally initiated lawsuits against the executive branch. Numerous such lawsuits were initiated during the Trump Administration, but the 2020 election has not rendered those lawsuits moot. The Biden DOJ has followed the Trump DOJ and maintains that courts cannot adjudicate interbranch lawsuits. Transunion puts another arrow in the executive branch’s quiver.

Comments appreciated via Twitter: @AndyGrewal