Academic

Grove on Standing & Nondelegation

By Lawrence Solum

Tara Leigh Grove (Florida State University - College of Law) has posted Standing as an Article II Nondelegation Doctrine (University of Pennsylvania Journal of Constitutional Law, Vol. 11, No. 4, 2009) on SSRN. Here is the abstract:

In this Article, I consider the following puzzle in standing doctrine: the dichotomy between Executive Branch and private party standing. Although the Executive Branch has standing to assert the interest in ?seeing that the law is obeyed,? private parties may not allege such an abstract grievance. I argue that this apparent contradiction offers a new explanation for Article III standing doctrine: standing enforces an Article II nondelegation principle by curtailing private prosecutorial discretion.

The Executive Branch has an Article II duty to take care that the laws are faithfully executed and, for that reason, has standing to ?see[] that [federal] law is obeyed.? Notably, in carrying out this responsibility, the Executive Branch may pursue any violation of federal law. The Executive Branch thus has the prosecutorial discretion to sue any person, anywhere in the country, for any violation. The Executive Branch has a duty to exercise this discretion in accordance with constitutional requirements and other legal and political constraints. But such discretion does create a serious potential for abuse. Accordingly, I assert that the Executive Branch?s Article II duties to enforce federal law, and to exercise the accompanying prosecutorial discretion, are nondelegable. Given the potential for abuse, such discretion may not be transferred to private parties, who are not subject to the legal and political checks that, to some degree, constrain the Executive Branch.

This Article II nondelegation principle provides a constitutional explanation for much of Article III standing doctrine. Standing enforces the Article II nondelegation doctrine by curtailing private prosecutorial discretion. A private party may not assert an abstract grievance (such as the interest in ?seeing that the law is obeyed?) that would allow her to sue any person for any legal violation. A private party retains the discretion to bring suit only if she has suffered a more concrete injury-in-fact. That injury further curtails her prosecutorial discretion, because she may sue only the person that caused the injury and may seek redress only for that harm. In this Article, I argue that this Article II nondelegation rationale offers both a new normative foundation, and a new scope, for the constitutional dimension of standing doctrine.

Full post as published by Legal Theory Blog on June 11, 2009 (boomark / email).