The House of Representatives is suing, more than ever before. But how does the House actually initiate lawsuits? For decades, the House authorized litigation through full chamber votes. Yet recently the House has delegated to its Bipartisan Legal Advisory Group (“BLAG”)—a five-member body composed of the Speaker, Majority Leader and Whip, and Minority Leader and Whip—authority to initiate suit on the House’s behalf. That delegation raises novel questions at the intersection of Articles I and III, and all of the House’s currently-pending, BLAG-initiated suits rest on its legality. It is also entirely unstudied.
This Article is the first to analyze the history, practice, and lawfulness of the House’s delegation of litigating authority to BLAG. It finds BLAG is likely constitutional under Article I’s Rulemaking Clause. And in any event, it concludes that BLAG’s constitutionality may pose a nonjusticiable political question. In so doing, this Article aims to open a dialogue over this critical, overlooked actor in American public law.
a J.D. Candidate, Harvard Law School. For extraordinarily valuable comments, I am grateful to Richard Fallon, Jack Goldsmith, Richard Lazarus, John Manning, Joshua Matz, Daphna Renan, and Laurence Tribe. For outstanding editorial assistance, I thank the editors of the University of Illinois Law Review.
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