Congress's Inability to Solve Standing Problems

Heather Elliott, University of Alabama School of Law

Abstract

Critics of the Supreme Court’s Article III standing doctrine—“a word game played by secret rules” that restricts access to the federal courts—have fruitlessly suggested a variety of ways that the Court might itself fix the doctrine. Some have instead argued that Congress could solve the standing problem in various ways. No one has undertaken a systematic examination of Congress’s options; this Article fills that gap.

Congress has three main courses of action. First, Congress may find, by statute, that certain classes of individuals have standing, in an effort to force the Court to accept those individuals as plaintiffs. The Court, however, is likely to be reluctant to accept such findings. The Court’s increasing insistence on its role as the sole arbiter of constitutional content suggests it would reject this effort to interfere with standing doctrine.

Second, Congress may provide a bounty to victorious plaintiffs, thus establishing the concrete interest that Article III demands of a plaintiff. While the Court has held that bounties in certain situations do confer Article III standing, it remains unclear whether the Court would find a wholesale expansion of such suits permissible under Article III. 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, regardless of its constitutionality, presents serious practical problems.

Third, Congress may create one or more Article I tribunals to hear certain lawsuits, just as, e.g., the Article I Tax Courts do. Article III standing doctrine by definition does not apply to such bodies. Moreover, located 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 unrecognized.

After analyzing these three options, I conclude that Congress lacks power to undertake many of 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.