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Congress's Inability to Solve Standing Problems

69 Pages Posted: 15 Jul 2010 Last revised: 13 Mar 2011

Heather Elliott

University of Alabama - School of Law

Date Written: July 14, 2010


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 recognized.

Congress has three options. First, Congress may enact statutes that define injury-in-fact, 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 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, 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 unnoticed.

After 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.

Keywords: federal courts, jurisdiction, constitutional law, standing, Article III

Suggested Citation

Elliott, Heather, Congress's Inability to Solve Standing Problems (July 14, 2010). Boston University Law Review, Vol. 91, No. 5, 2011; U of Alabama Public Law Research Paper No. 1640157. Available at SSRN:

Heather Elliott (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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