91 Indiana Law Journal 665 (2016)
The U.S. Constitution requires federal agencies to comply with separation-of-powers (or structural) safeguards, such as by obtaining valid appointments, exercising certain limited powers, and being sufficiently subject to the President’s control. Who can best protect these safeguards? A growing number of scholars would allow only the political branches—Congress and the President—to defend them. These scholars would limit or end judicial review because private judicial challenges are aberrant to justiciability doctrine and lead courts to meddle in minor matters that rarely affect regulatory outcomes.
This Article defends the right of private parties to assert justiciable structural causes of action, arguing that institutional, constitutional, and doctrinal limitations preclude the branches from serving as structural protectors. Indeed, this Article concludes, contrary to recent scholarship, that private claims fit easily within established justiciability doctrines. To address legitimate concerns over utility and judicial intermeddling, this Article argues that courts should confront the underlying doctrine directly by adopting, where appropriate, a functional separation-of-powers doctrine with meaningful remedies. Doing so will limit successful claims to only the most important and thereby properly balance the political branches’ discretion under the Constitution to design the administrative state with useful judicial oversight.
Barnett, Kent H.
"Standing for (and up to) Separation of Powers,"
Indiana Law Journal: Vol. 91
, Article 2.
Available at: http://www.repository.law.indiana.edu/ilj/vol91/iss3/2