Published
January 04, 2024
Litigating standing in federal court can often feel like a frustrating game of whack-a-mole. What good is a winning Article III standing defense if plaintiffs can simply refile their claims in more hostile state courts with looser standing and class-certification requirements? That prospect so frustrates defendants that sometimes they don’t even bother raising standing objections in federal court. It’s not worth the trouble if winning on standing could land you in a worse forum. Indeed, to avoid removal to federal court, some plaintiffs seeking to remain in state court even affirmatively disclaim suffering any concrete injury that would establish standing.1 But is suing in state court really such an easy end run around the U.S. Constitution’s standing rules? Maybe not. If you assume those federal rules never apply in state court, think again.
Although Article III does not directly restrict state courts, a partial answer to the standing whack-a-mole problem for federal claims may lie elsewhere in the Constitution—in Article II. “The executive Power,” Article II provides, “shall be vested in a President of the United States of America” who “shall take Care that the Laws be faithfully executed.”2 The Supreme Court has often explained that standing doctrine preserves this exclusive delegation of federal law-enforcement power to the Executive. Until recently, however, the Court has been unclear and arguably inconsistent about the precise link between standing and Article II. Despite repeatedly emphasizing standing’s important “impact on Presidential powers,” the Court has stated in dicta that “standing jurisprudence . . . derives from Article III and not Article II.”3
But the Supreme Court now appears to take a different view. TransUnion LLC v. Ramirez recently clarified that a federal statute empowering “unharmed plaintiffs to sue defendants who violate federal law not only would violate Article III, but also would infringe on the Executive Branch’s Article II authority.”4 For purposes of standing, the Court seems to consider Article III and Article II opposite sides of the same separation-of-powers coin. TransUnion suggests that standing doctrine comes from both, at least for federal claims. But if that is so, standing doctrine—let’s call it “constitutional” or “federal” standing rather than “Article III” standing to avoid confusion—should symmetrically restrict both the type of private civil actions that the federal judiciary may hear and those that Congress may grant. Indeed, such symmetry is essential for standing to function as a coherent safeguard of the Constitution’s separation of powers. Under this Article II nondelegation theory of standing, the Constitution prohibits private plaintiffs without standing from bringing federal claims in state court, even if such claims would otherwise satisfy the forum state’s less restrictive standing requirements for jurisdiction. After TransUnion, Article II may thus offer a valuable tool for defeating federal claims in state court, especially no-injury class actions.
I. Standing doctrine preserves federal Executive power.
The constitutional law of standing “is built on a single basic idea—the idea of separation of powers.”5 The Supreme Court has thus repeatedly emphasized that Article III’s standing requirement restricts federal judicial power at least in part (if not primarily) to preserve Article II’s exclusive delegation of federal law-enforcement power to the Executive.6 For this reason, the Court in 1793 politely refused President George Washington’s request for an “extrajudicial[]” advisory opinion out of respect for “[t]he Lines of Separation drawn by the Constitution between the three Departments of Government”—in particular, the Executive’s exclusive authority to discern the law with advice from the various “Heads of Departments.”7 As Chief Justice John Roberts wrote while still in private practice, standing doctrine “ensures that the court is carrying out its function of deciding a case or controversy, rather than fulfilling the executive’s responsibility of taking care that the laws be faithfully executed.”8 Without constitutional standing, uninjured private plaintiffs asserting federal claims seek only to vindicate “the undifferentiated public interest” in compliance with federal law.9 But Article II empowers the Executive to vindicate that generalized law-enforcement interest.10 The “common concern for obedience to law,” the Supreme Court has explained, “finds protection in the permission to sue granted to public authorities”—that is, the Executive.11 A suit to enforce federal law thus “cannot be instituted by an individual unless he possesses something more than” such generalized concern with legal compliance.12
TransUnion suggests that private suits asserting solely the public’s general interest in compliance with federal law not only fall beyond the judicial power under Article III, they also unconstitutionally infringe the Executive’s enforcement discretion under Article II. Uninjured private plaintiffs, TransUnion held, may not sue to vindicate consumers’ general interest in accurate credit reports complying with the federal Fair Credit Reporting Act.13 A mere violation of the statute does not confer standing, the Supreme Court reasoned, because “the choice of how to prioritize and how aggressively to pursue legal actions against defendants who violate the law falls within the discretion of the Executive Branch, not within the purview of private plaintiffs (and their attorneys).”14 Unlike the Executive, “[p]rivate plaintiffs are not accountable to the people and are not charged with pursuing the public interest in enforcing a defendant’s general compliance with regulatory law.”15 Standing’s concrete-harm requirement preserves the Executive’s discretion to pursue that public interest and is thus “essential to the Constitution’s separation of powers.”16
II. As an Article II nondelegation doctrine, standing necessarily limits Congress’s power to grant federal private rights of action.
TransUnion also suggests that Article II’s exclusive delegation of federal law-enforcement power to the Executive restricts both the type of private civil actions that the federal judiciary may hear and those that Congress may grant. “A regime where Congress could freely authorize unharmed plaintiffs to sue defendants who violate federal law,” TransUnion explains, “not only would violate Article III, but also would infringe on the Executive Branch’s Article II authority.”17 After all, “[a] lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.’”18 Congress may not by statute “transfer from the President” that “most important constitutional duty.”19
TransUnion thus seems to understand the Constitution’s standing requirement as both an Article III justiciability doctrine and an “Article II nondelegation doctrine.”20 According to this nondelegation theory of standing, the Constitution not only prohibits the federal courts from exercising jurisdiction over civil actions brought by uninjured private plaintiffs, but also prohibits Congress from granting such uninjured plaintiffs a federal private right of action in the first place. Congress entirely lacks that power because it would violate Article II by transferring to private plaintiffs the Executive’s exclusive federal law-enforcement power.
But does this Article II nondelegation theory prove far too much? Private suits brought by plaintiffs with standing arguably equally infringe on the Executive’s exclusive law-enforcement power and discretion. Does the theory thus imply that Congress also lacks the (well recognized) power to create federal private rights of action “elevating to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law”?21 It does not.
Article II does not exclusively grant the Executive every method of federal law enforcement. It only grants the Executive the exclusive power to enforce federal law on behalf of the public at large—that is, the power to vindicate “the undifferentiated public interest” in compliance with federal law.22 The executive power traditionally includes authority to vindicate the public’s common interest in “general compliance with regulatory law,” but not authority to supervise or block private suits asserting violations of individual rights.23 As a result, creating new federal private rights protecting previously incognizable concrete interests does not interfere with the Executive’s public law-enforcement duties under Article II. Within the scope of its enumerated powers, Congress accordingly retains legislative authority to grant private plaintiffs a cause of action to enforce their own individual rights under federal law so long as a violation causes them concrete and particularized harm sufficient to confer standing. By requiring this showing of individualized harm, constitutional standing ensures that such private actions do not infringe the Executive’s exclusive power to assert the public’s general interest in the enforcement of federal law. The Article II nondelegation theory of standing thus does not conflict with Congress’s recognized power to grant federal rights of action to private plaintiffs with standing.
III. Constitutional standing rules apply in state court for all federal claims.
The Article II nondelegation theory of standing implies that concrete injury is an essential prerequisite for every federal claim brought by a private plaintiff—even in state courts with looser jurisdictional rules of standing. Outside federal court, however, where Article III does not apply, standing doctrine under Article II operates not as a jurisdictional bar but instead as merely a constitutional defense on the merits. Whether a private right of action granted by Congress unconstitutionally infringes the President’s Article II law-enforcement authority is “no[t] . . . a jurisdictional issue.”24 Aside from this difference, however, the standing requirements of Articles II and III are identical. The constitutional standing rules restricting the jurisdiction of federal courts likewise mirror those restricting Congress’s power to grant federal private rights of action.
Standing must in this way symmetrically restrict both the federal judiciary and Congress for the doctrine to serve as a coherent safeguard of the constitutional separation of powers. The doctrine would do little to preserve the Executive’s exclusive federal law-enforcement power if Congress could simply grant private plaintiffs without standing a federal right of action to sue in state court. That would be quite a massive loophole, indeed. And why in the world would the Framers have empowered Congress to grant such uninjured private plaintiffs a federal right of action, while prohibiting the federal courts from hearing their claims under Article III—precisely when the interest in federal-court jurisdiction is greatest?25 The Constitution does not require federal-court jurisdiction over every federal claim, but why would it ever completely ban that jurisdiction? Such a backwards anomaly makes absolutely no sense, and we should not accept a doctrine of standing that produces it without a very compelling basis in the Constitution’s text, history, tradition, or judicial precedent.
IV. Supreme Court precedent does not say otherwise.
No Supreme Court holding rejects the Article II nondelegation theory of standing. To be sure, despite multiple cases emphasizing that standing preserves the President’s exclusive law-enforcement powers, the Court 25 years ago downplayed standing’s connection to Article II in brief dicta buried in a footnote: “standing jurisprudence,” the Court stated, “though it may sometimes have an impact on Presidential powers, derives from Article III and not Article II.”26 But TransUnion seemingly contradicts and supersedes that older dicta, explaining that federal claims brought by uninjured private plaintiffs “infringe on the Executive Branch’s Article II authority.”27
Nor does Supreme Court precedent hold, suggest, or imply that constitutional standing requirements do not apply to federal claims asserted in state court. True, the Court has repeatedly stated that “the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law.”28 But context is key. Such statements immediately concern only state declaratory-judgment actions raising embedded federal questions. Read in proper context, these statements merely recognize that constitutional standing requirements do not restrict the state courts’ power to hear state claims merely because such claims implicate federal law. The Supreme Court has apparently never addressed, however, whether constitutional standing restrictions apply to federal claims asserted in state court.
The dissent in TransUnion addressed that question. According to Justice Thomas, TransUnion “does not prohibit Congress from creating statutory rights for consumers; it simply holds that federal courts lack jurisdiction to hear some of these cases. That combination may leave state courts . . . as the sole forum for such cases.”29 The majority did not explicitly disagree with this assertion, but perhaps it felt no need to respond because the dissent hedged a bit (saying “may”). Regardless, the majority’s silence should not be construed to imply tacit agreement with the dissent’s drive-by suggestion (also buried in a footnote) on such a momentous unbriefed constitutional issue—especially given the Supreme Court’s oft and recent emphasis that standing preserves Executive authority, and the nonsensical topsy-turvy anomalies that would result from allowing state courts to hear federal claims not even permitted in federal court. “A dissenting opinion,” the Court recently cautioned, “is generally not the best source of legal advice on how to [read] the majority opinion.”30
V. The Constitution does not require standing in state court for state claims alleging violations of federal law.
If the Article II nondelegation theory of standing is correct, however, why may state courts still entertain state causes of action brought by uninjured private plaintiffs alleging violations of federal law? As discussed, according to the Supreme Court, the Constitution’s standing requirements simply do not apply to state claims litigated in state court.31 Is this a fatal hole in the theory? Without constitutional standing, state claims alleging violations of federal law (such as actions for declaratory judgment or asserting negligence per se) seek to vindicate a similar undifferentiated public interest in compliance with federal law as corresponding federal claims. Regardless of the forum, don’t state claims brought by uninjured private plaintiffs alleging violations of federal law equally infringe the Executive’s exclusive power to enforce such law on behalf of the public at large?
Even without constitutional standing, state claims alleging violations of federal law do not infringe the Executive’s exclusive federal law-enforcement power under Article II because such claims ultimately seek to enforce state law that merely incorporates federal law. States may authorize “parallel” civil actions that enforce the same standards as federal law unless Congress provides otherwise or overlapping state enforcement would frustrate Congress’s objectives.32 And state courts may entertain such parallel actions because historically they “applied the law of other sovereigns all the time.”33 Where state law incorporates federal law, the State makes “the national purposes its own purposes.”34 As a result, state claims alleging violations of federal law assert only state law-enforcement power not implicated by Article II. And unlike Congress, States generally may delegate that power to whomever they like, including private plaintiffs if their constitutions allow (subject to due process and other federal constitutional requirements). “The Constitution does not impose on the States any particular plan for the distribution of governmental powers.”35
For these reasons, although state claims by uninjured private plaintiffs without constitutional standing fall beyond the federal judicial power under Article III, they do not infringe the Executive’s law-enforcement powers under Article II. The Article II nondelegation theory of standing thus does not conflict with state courts’ recognized power to entertain such claims alleging violations of federal law.
Conclusion
The Article II nondelegation theory of standing has received little attention outside the academy,36 but its powerful implications for federal claims asserted in state court deserve serious consideration. TransUnion seems to endorse that theory. At the very least, TransUnion raises difficult and close constitutional questions under Article II that state courts should avoid either by aligning state standing requirements with federal standing doctrine or by construing all federal private rights of action to require injury sufficient to confer constitutional standing.37 So even as a less aggressive constitutional-avoidance argument, the Article II nondelegation theory of standing may still offer a valuable tool for defeating federal claims in state court. Defendants stuck in state court thus should not dismiss the Constitution’s standing rules as irrelevant. The key is knowing where in the Constitution to look.
1 See, e.g., Barrientos v. Williams-Sonoma, Inc., No. 21-cv-05160, 2023 WL 5720855, at *3 (N.D. Ill. Sept. 1, 2023) (noting the “strange” but “common” occurrence of plaintiffs disclaiming Article III standing “in FACTA cases removed to federal court”).
2 U.S. Const. Art. II, § 1, cl. 1 (Executive Vesting Clause), § 3, cl. 5 (Take Care Clause).
3 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 n.4 (1998).
4 141 S. Ct. 2190, 2207 (2021).
5 Id. at 2203.
6 See, e.g., United States v. Texas, 143 S. Ct. 1964, 1971 (2023); Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–77 (1992); Allen v. Wright, 468 U.S. 737, 761 (1984).
7 Letter from Supreme Court Justices to George Washington (Aug. 8, 1793) (referencing the Opinion Clause, U.S. Const. Art. II, § 2, cl. 1), available at Founders Online, National Archives, https://founders.archives.gov/documents/Washington/05-13-02-0263.
8 John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke L.J. 1219, 1230 (1993).
9 Lujan, 504 U.S. at 577; see also L. Singer & Sons v. Union Pacific Railroad Co., 311 U.S. 295, 303 (1940) (plaintiff must allege “something more than a common concern for obedience to law”); Perkins v. Lukens Steel Co., 310 U.S. 113, 125 (1940) (“[T]o have standing in court, [plaintiffs] must show an injury or threat to a particular right of their own, as distinguished from the public’s interest in the administration of the law.”); Ex parte Levitt, 302 U.S. 633, 634 (1937) (per curiam) (“[I]t is not sufficient that [a private plaintiff] has merely a general interest” in compliance with the law “common to all members of the public.”).
10 Lujan, 504 U.S. at 577.
11 L. Singer & Sons, 311 U.S. at 303 (emphasis added); see also Newman v. United States ex rel. Frizzell, 238 U.S. 537, 547 (1915) (“[E]very citizen and every taxpayer is interested in the enforcement of law. . . . But that general interest is not a private but a public interest” vindicated by executive officials); In re Debs, 158 U.S. 564, 586 (1895) (government holds the power to vindicate legal wrongs that “affect the public at large”).
12 L. Singer & Sons, 311 U.S. at 304 (internal quotation marks omitted).
13 141 S. Ct. at 2209–10.
14 Id. at 2207.
15 Id.
16 Id.; see also Spokeo, Inc. v. Robins, 578 U.S. 330, 347 (2016) (Thomas, J., concurring) (“[B]y limiting Congress’ ability to delegate law enforcement authority to private plaintiffs and the courts, standing doctrine preserves executive discretion.”).
17 141 S. Ct. at 2207.
18 Buckley v. Valeo, 424 U.S. 1, 138 (1976) (quoting U.S. Const. Art. II, § 3, cl. 5).
19 Lujan, 504 U.S. at 577; see also Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 329–30 (1816) (Story, J.) (it “would be utterly inadmissible” to allow Congress to “vest [executive power] in any other person” than the President).
20 Tara Leigh Grove, Standing As an Article II Nondelegation Doctrine, 11 U. Pa. J. Const. L. 781, 783 (2009).
21 Lujan, 504 U.S. at 578; accord Spokeo, 578 U.S. at 341.
22 Lujan, 504 U.S. at 577.
23 See Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689, 693–97 (2004).
24 Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 778 n.8 (2000) (refusing to consider whether qui tam suits violate Article II’s Take Care Clause because petitioner did not raise the argument); see also Freytag v. Commissioner, 501 U.S. 868, 893–900 (1991) (Scalia, J., concurring) (explaining that most structural constitutional defects are not jurisdictional).
25 See U.S. Const. Art. III, § 2, cl. 1 (extending the federal judicial power to all cases arising under federal law).
26 Steel Co., 523 U.S. at 102 n.4.
27 141 S. Ct. at 2207.
28 ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (collecting cases).
29 TransUnion, 141 S. Ct. at 2224 n.9 (dissenting) (citing ASARCO, 490 U.S. at 617).
30 Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181, 230 (2023).
31 See ASARCO, 490 U.S. at 617.
32 See, e.g., Riegel v. Medtronic, Inc., 552 U.S. 312, 330 (2008); Bates v. Dow Agrosciences LLC, 544 U.S. 431, 447 (2005); Medtronic, Inc. v. Lohr, 518 U.S. 470, 495 (1996). Compare Pennsylvania v. Nelson, 350 U.S. 497, 500 (1956) (The Constitution does not “prevent the State from prosecuting where the same act constitutes both a federal offense and a state offense under the police power.”), with Arizona v. United States, 567 U.S. 387 (2012) (striking down certain state statutes enforcing federal immigration law because they intrude on a field Congress made exclusively federal and they frustrate the federal enforcement scheme).
33 Printz v. United States, 521 U.S. 898, 907 (1997).
34 Gilbert v. Minnesota, 254 U.S. 325, 331 (1920); see also California v. Zook, 336 U.S. 725, 735 (1949) (State “makes federal law its own”).
35 Mayor of Philadelphia v. Education Equality League, 415 U.S. 605, 615 n.13 (1974); accord Sweezy v. New Hampshire, 354 U.S. 234, 255 (1957); Dreyer v. Illinois, 187 U.S. 71, 84 (1902).
36 See Laufer v. Arpan LLC, 29 F.4th 1268, 1294–95 (11th Cir. 2022) (Newsom, J., concurring), vacated as moot, 77 F.4th 1366 (11th Cir. 2023); Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1133 (11th Cir. 2021) (Newsom, J., concurring).
37 See, e.g., Saleh v. Miami Gardens Square One, Inc., 353 So. 3d 1253, 1255 (Fla. Ct. App. 2023) (holding that “the federal FACTA statute itself” requires a plaintiff to “allege an actual harm to pursue a claim under the statute”); Smith v. Ohio State University, 2017-Ohio-8836, 2017 WL 6016627, at *3 (Ohio Ct. App. 2017) (dismissing federal claim under the FCRA for lack of concrete injury even though “Ohio and federal law have diverged on the issue of whether a party may have standing to sue in the absence of an injury-in-fact”).
About the authors
Jonathan Urick
Jonathan Urick is associate chief counsel at the U.S. Chamber Litigation Center, the litigation arm of the U.S. Chamber of Commerce. Urick handles a variety of litigation matters for the Chamber.
