Taking Care of Federal Law

68 Pages Posted: 21 Dec 2015

See all articles by Leah Litman

Leah Litman

University of Michigan Law School

Date Written: September 2015

Abstract

This Article argues that Article II should not be understood to require the President alone to execute federal law. Specifically, it argues that Article II does not require the President alone to vindicate the public’s shared interest in the enforcement of federal statutes. Many of the cases addressing this issue are concerned with questions of standing, and specifically whether there are limits on Congress’s power to authorize private citizens to sue to enforce federal law. Standing doctrine requires a litigant to show she has suffered an “injury in fact” before a federal court will hear her claim, and it is derived in part from the Take Care Clause and Article II. By highlighting the Article II origins of standing doctrine, this Article calls attention to a different set of sources not considered in the literature on standing. And these sources illustrate that one major premise of standing doctrine — that only the President vindicates the public’s shared interest in the enforcement of federal law — is false. In particular, recent preemption cases and several different federal statutes show that non-executive actors routinely execute federal law. These sources therefore provide a new and powerful reason to question both the Court’s premise that the President alone must oversee the public’s shared interest in the enforcement of federal statutes, and its subsequent conclusion that a litigant may not have standing to raise a claim for violation of a federal statute based on a congressionally created private right of action.

Suggested Citation

Litman, Leah, Taking Care of Federal Law (September 2015). Virginia Law Review, Vol. 101, No. 1289, 2015, Available at SSRN: https://ssrn.com/abstract=2704401

Leah Litman (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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