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1/ Belated thread on Virginia House of Delegates v. Bethune-Hill, which suddenly took on new relevance in light of 5th Circuit's ACA supplemental briefing order: #SCOTUS
2/ This case concerns whether a state legislature has "standing to appeal" *after* the district court issued a ruling. The newly-elected Democratic AG "would not pursue an appeal to" #SCOTUS However, the GOP-controlled House filed a notice of appeal. 
3/ #SCOTUS held that the House "lacks authority to displace VA Attorney General as representative of the State" and "single chamber of a bicameral legislature, has no standing to appeal the invalidation of the redistricting plan separately from the State of which it is a part"
4/ So long as the Attorney General represented the Commonwealth's interests, the House could participate, bc it did not invoke the Court's jurisdiction. Therefore it did not have to demonstrate standing. "An intervenor must independently demonstrate standing"
5/ The majority agrees that if the state (really Commonwealth) authorized the House to represent its interests in court, then the House would have standing. But Virginia did not provide such legislative authorization here. That authority rests exclusively with AG
6/ RBG notes that VA "could have authorized the House to litigate on the State’s behalf, either generally or in a defined class of cases."See Hollingsworth "To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court."
7/ Ginsburg notes that other states, like Indiana, have authorized such legislation.
8/ This observation is *very* important. It has become increasingly common for AGs of both parties to decline to defend legislation. Unless a state enacts this sort of legislation, the elected branches will lack standing to defend the law in court.
9/ One of the lame duck laws passed in Wisconsin expressly authorized the state legislature to defend laws that the AG declines to defend. As of now, the Wisconsin Supreme Court has allowed that law to remain in effect. docs.legis.wisconsin.gov/2017/related/a…
10/ Because of Bethune-Hill, states that fail to enact laws like Indiana and Wisconsin did are in a tough spot: AGs can decline to defend all sorts of laws (maps, abortion, voter ID, etc.) and the legislatures are helpless to intervene.
11/ RBG also stresses that an intervenor must assert in the trial court what its interest is; "a party may not wear on appeal a hat different from the one it wore at trial."
12/ Next, the Court rejects the idea that the House has standing in its own right, "resting solely on its role in the legislative process"
13/ RBG reaffirmed the holding of Raines: "individual members lack standing to assert the institutional interests of a legislature" and added " single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole"
14/ In Blumenthal v. Trump (Emoluments Clause litigation), DOJ informed DDC about Bethune-Hill. This case casts serious doubt on the holding that individual members of Congress can sue for purported Foreign Emoluments Clause violations.
15/ Under the rule in Bethune Hill, if a single house of a "bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole," then certainly individual members lack such a capacity.
16/ Yet, Judge Sullivan (DDC) declined to certify the appeal. He didn't even cite Bethune-Hill. Expect the DC Circuit to mandamus that decision soon.
17/ Bethune-Hill casts legislative standing in serious doubt, unless the legislature is authorized by state law to intervene. Given the growing trend of State AGs declining to defend laws, states should enact such legislation.
18/ In due time, I will write about Bethune-Hill's effect on the ACA litigation.
19/ @threadreaderapp unroll
20/ Here is the unrolled thread: threadreaderapp.com/thread/1143981…
