Justiciability, Federalism, and the Administrative State

39 Pages Posted: 15 Jun 2017 Last revised: 29 Nov 2018

Date Written: June 15, 2017

Abstract

Article III provides that the judicial power of the United States extends to certain justiciable cases and controversies. So if a plaintiff bringing a federal claim lacks constitutional standing or her dispute is moot under Article III, then a federal court should dismiss. But this dismissal need not end the story. This Article suggests a simple, forward-looking reading of case-or-controversy dismissals: they should be understood as invitations to legislators to consider other pathways for adjudication. A case dismissed for lack of standing, for mootness, or for requesting an advisory opinion might be a candidate for resolution in a state court or administrative agency. And although the Supreme Court has frequently policed the delegation of the “judicial power of the United States,” legislative delegations of non-justiciable claims should not transgress those limits. Instead, case-or-controversy dismissals imply that non-Article III options are permissible.

This formulation is more than a doctrinal trick. It has normative consequences across a range of dimensions. For one thing, this approach reinvigorates the separation-of-powers purposes of justiciability doctrine by turning our attention from judges to legislators. When courts seemingly use justiciability to curtail private enforcement or access to justice, we could re-interpret the results as revealing a legislative failure to authorize non-Article III options. More affirmatively, case-or controversy dismissals could be focal points for political pressure in favor of more rigorous enforcement of important laws that the federal executive may be shirking. Further, consistent with “new new federalist” accounts, this Article suggests another avenue for federal–state interactivity in the development and enforcement of federal law. This too is of added salience given that private and state enforcement may become even more significant in light of the current occupants of the federal executive branch.

Keywords: Federalism, Administrative Law, Courts, Legislation, Judicial Power, Article III, Supreme Court, Separation of Powers, Judges, Legislators, Federal Law, Constitution, Congress, Statutes

Suggested Citation

Clopton, Zachary D., Justiciability, Federalism, and the Administrative State (June 15, 2017). 103 Cornell Law Review 1431 (2018), Cornell Legal Studies Research Paper No. 17-29, Available at SSRN: https://ssrn.com/abstract=2986905

Zachary D. Clopton (Contact Author)

Northwestern University - Northwestern Pritzker School of Law ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
104
Abstract Views
751
rank
290,192
PlumX Metrics