Standing for (and Up to) Separation of Powers

54 Pages Posted: 5 Mar 2015 Last revised: 3 Jun 2016

See all articles by Kent H. Barnett

Kent H. Barnett

University of Georgia School of Law

Date Written: March 3, 2015


The U.S. Constitution requires federal agencies to comply with separation-of-powers (or structural) safeguards, such as by obtaining valid appointments, exercising certain limited powers, and being sufficiently subject to the President’s control. Who can best protect these safeguards? A growing number of scholars call for allowing only the political branches — Congress and the President — to defend them. These scholars would limit or end judicial review because private judicial challenges are aberrant to justiciability doctrine and lead courts to meddle in minor matters that rarely effect regulatory outcomes.

This Article defends the right of private parties to assert justiciable structural causes of action, arguing that institutional, constitutional, and doctrinal limitations preclude the branches from serving as structural protectors. Indeed, this Article concludes, contrary to recent scholarship, that private claims fit easily within established justiciability doctrines. To address legitimate concerns over utility and judicial intermeddling, this Article argues that courts should confront the underlying doctrine directly by adopting a functional separation-of-powers doctrine with meaningful remedies. Doing so will limit successful claims to only the most important and thereby appropriately balance the political branches’ discretion under the Constitution to design the administrative state with useful judicial oversight.

Suggested Citation

Barnett, Kent Harris, Standing for (and Up to) Separation of Powers (March 3, 2015). 91 Ind. L.J. 665, 2016, UGA Legal Studies Research Paper No. 2015-7, Available at SSRN:

Kent Harris Barnett (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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