Article III, Representation, and Remedies
9 ConLawNOW (2018 Forthcoming)
19 Pages Posted: 24 Jan 2018 Last revised: 30 Jan 2018
Date Written: January 22, 2018
As articulated by the United States Supreme Court, the principal purpose of Article III standing is to force decisions affecting large numbers of people into the democratic process where all affected parties are represented. The logical implication of this “representation-centered theory” for the proper scope of injunctive relief is straightforward. That relief must not exceed what is reasonably necessary to remedy the particularized injury that sets the plaintiff or plaintiffs apart from the general population. The Supreme Court has repeatedly reaffirmed this logic. Yet courts and commentators, including the Court itself, routinely ignore it. The most prominent recent examples are the universal injunctions issued by federal district courts against the Obama administration’s DAPA policy and President Trump’s travel ban. If the representation-centered theory of Article III is correct, this disregard for its implications at the remedial stage is alarming and corrosive of democratic self-government. But there is another possibility. Disregard for the representation-centered theory at the remedial stage might reflect well-justified misgivings, ambivalence, or uneasiness about the representation-centered theory, even by the Court itself. In this brief symposium essay, we raise and offer some preliminary reflections on this possibility, with an eye to exploring it more fully in future work.
Keywords: Article III standing, representation-centered theory, universal injunctions, injunctive relief, nationwide injunction, remedies
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