Publication Date

2011

Abstract

Some critics of the Supreme Court's restrictive Article III standing doctrine knowing that the Court is unlikely to change course have argued that Congress could take steps to expand standing to sue Yet no scholar has systematically examined Congress's options in conferring standing This Article fills that gap demonstrating that Congress's power is far more limited than has previously been recognizedCongress has three options First Congress may enact statutes that define injuryinfact causation and redress under Article III establishing standing for certain classes of plaintiffs But this approach will fail if the Court finds such statutes unconstitutional and the Court's increasing insistence on its role as the sole arbiter of constitutional meaning revealed in cases under the Commerce Clause and the Fourteenth Amendment suggests it would reject a congressional effort to create standing through legislative findings Second critics have suggested that Congress provide a bounty to victorious plaintiffs thus giving them the concrete stake in litigation that the Constitution demands The Court has held that bounties in certain situations do satisfy Article III to expand bounties to a wide variety of situations is however unlikely to pass Article III muster Such an expansion may also be found to interfere with the President's Article II power to "take Care that the Laws be faithfully executed" and presents serious practical problemsThird Congress may create one or more Article I tribunals to hear certain lawsuits just as eg the Article I Tax Courts do Article III standing doctrine by definition does not apply to such bodies Moreover locating such tribunals in the Executive Branch would alleviate concerns under the "take Care" clause But this approach may well raise other constitutional problems such as the improper delegation of judicial power and has extensive practical problems that have gone unnoticedAfter analyzing these three options I conclude that Congress is essentially unable to undertake these efforts Where it does have power to solve standing problems the practical problems with exercising that power ensure that Congress is no more likely than the Court to solve standing Even worse it is possible that congressional efforts to expand standing may prompt the Court to impose even stricter standing requirements thus worsening the problem such efforts would intend to ameliorate

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