The Beleaguered Sovereign: Judicial Restraints on Public Enforcement

Abstract

Looking back at the federal courts over the last generation, commentators will likely focus on their role in undermining the functioning of the regulatory state. Well acknowledged in this story are Supreme Court decisions that have constrained administrative agencies under the newly-minted “major questions” doctrine, barring them from devising regulations to meet contemporary problems, as well as the Court’s blockbuster decision overruling the longstanding Chevron doctrine that courts accord deference to agency expertise in the face of statutory ambiguity. The Court also has made it increasingly difficult for individuals—often workers and consumers, people of color, women, and those who live from paycheck to paycheck—to seek federal judicial redress for regulatory violations as private enforcers. And the Court has questioned whether certain private enforcement actions, even when authorized by Congress, unconstitutionally usurp Article II power. These trends have heightened the importance of certain kinds of public enforcement—statutory claims-making by government lawyers in court—of the very kind the Court’s rhetoric valorizes. Yet, as this Essay shows, there is a developing story of constraint there, as well. The Essay describes a nascent but overlooked trend of Article III courts cabining government lawyers as they seek to enforce regulatory protections in court. Federal courts are raising procedural and jurisdictional roadblocks in lawsuits filed by government lawyers that narrow the government’s Article III standing, the scope of its litigation interests, and its opportunities to intervene in suits, and that, at times, result in dismissal of the government’s suits. The trend is still developing and we are hesitant to prognosticate about how much public enforcement the Article III courts eventually will block. But in the instances we explore, the Executive Branch is increasingly beleaguered as it seeks to enforce various regulatory protections in the federal courts. The world of public enforcement is complex and judicial constraint is not always unjustified. However, the cutbacks we identify run counter to foundational notions of sovereignty and federalism, upend long-accepted procedural and jurisdictional practice, and threaten to further hamstring the regulatory state’s ability to deal with urgent problems.

Keywords: public enforcement, separation of powers, federalism, civil procedure, regulatory enforcement, federal courts