Article II of the Constitution vests the “executive power” in the President and directs the President to “take Care that the Laws be faithfully executed.” But do these provisions mean that only the President may execute federal law? Two lines of Supreme Court precedent suggest conflicting answers to that question. In several prominent separation-of-powers cases, the Court has suggested that only the President may execute federal law: “The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws.” Therefore, the Court has reasoned, Congress may not create private rights of action that allow nonexecutive actors to sue and attempt to vindicate the “public interest in . . . compliance with the law.”
Yet in another set of cases, the Court has suggested that the enforcement of federal law should be a shared enterprise not exclusive to the President. Specifically, the Court has gone out of its way to preserve the states’ ability to enforce federal law, repeatedly invoking the presumption “that Congress does not cavalierly pre-empt state-law causes of action.” Indeed, the Court occasionally reasons that state law is not preempted because “state law . . . simply seeks to enforce” federal law. What is striking about these cases is that they do not engage with the potentially troubling separation-of-powers implications that the Court raises in other contexts where Congress permits nonexecutive actors to enforce federal law. More than that, the preemption cases rest on a fundamentally different understanding of what the execution of federal law should look like. The preemption cases are driven by the intuition that the enforcement of federal law should occasionally be a shared enterprise, and that it is sometimes desirable to limit the President’s enforcement discretion. Indeed, the Court has championed the states’ ability to challenge the President’s assessment of what constitutes the “effective enforcement” of federal law.
In light of the disconnect between these two lines of precedent, this Article questions whether Article II should be understood to require the President alone to execute federal law. Specifically, it argues that Article II does not require the President alone to vindicate the public’s shared interest in the enforcement of federal statutes. Many of the cases addressing this issue are concerned with questions of standing, specifically with whether there are limits on Congress’s power to authorize private citizens to sue to enforce federal law. Standing doctrine requires a litigant to show she has suffered an “injury in fact” before a federal court will hear her claim, and while many scholars have analyzed when a statutory violation constitutes an injury in fact for purposes of standing, the relevant literature has failed to appreciate how standing doctrine is derived in part from the Take Care Clause and Article II. This omission has led the existing critiques to overlook cases and statutes where nonexecutive actors routinely execute federal law.
By highlighting the Article II origins of standing doctrine, this Article calls attention to a different set of sources not considered in the literature on standing. And these sources illustrate that one major premise of standing doctrine—that only the President vindicates the public’s shared interest in the enforcement of federal law—is false. In particular, recent preemption cases and several different federal statutes show that nonexecutive actors routinely execute federal law. These sources therefore provide a new and powerful reason to question both the Court’s premise that the President alone must oversee the public’s shared interest in the enforcement of federal statutes, and its subsequent conclusion that a litigant may not have standing to raise a claim for violation of a federal statute based on a congressionally created private right of action. It is not generally a virtue for a constitutional interpretation to stray so far from actual practice. Now is also an ideal time to reexamine whether Article II limits Congress’s power to create private rights of action because the Court has recently shown a renewed interest in the question, and some of the best insights into how that question should be resolved come from recently decided cases.
Unpacking the basis of standing doctrine also reveals curious and thus-far unexplored similarities with the common law doctrine of desuetude, which allowed courts to abrogate outdated statutes. Understanding the similarities between these two doctrines provides both new justifications and new critiques of some aspects of standing doctrine and, more generally, of executive enforcement discretion.
Finally, viewing preemption cases through the lens of when federal law enforcement may be a shared enterprise offers a new perspective on the meaning of these cases. Most writing about the Court’s recent preemption decisions, such as Arizona v. United States, has addressed what the decisions mean for federalism. Scholars have emphasized that Arizona is the exception from the perspective of federalism—the President’s enforcement decisions do not typically preclude states from enforcing overlapping or related state laws in ways that differ from how the President enforces federal law. Yet little attention has been paid to what this understanding of federalism means for separation of powers—to the extent scholars have analyzed Arizona’s separation-of-powers implications, their analyses have only concerned whether the President has the power to decline to enforce federal statutes. The fact that scholars view decisions like Arizona as aberrational suggests the general rule is that nonexecutive actors may enforce federal law and that the execution of federal law is more of a shared enterprise than the Court’s separation-of-powers cases suggest. The preemption cases show that the President does not, and sometimes should not, have unfettered discretion to decide when the public has a shared interest in the enforcement of federal law.
The Article proceeds in four parts. Part I will introduce the principle animating several of the Court’s separation-of-powers cases—namely, that Article II requires the President alone to execute federal law. It will focus on the Court’s claim that because executing federal law includes overseeing the public’s shared interest in federal law enforcement, the President must be the one to initiate suits designed to vindicate that interest. Part II will then highlight how several preemption cases suggest that nonexecutive actors may likewise vindicate the public interest in seeing federal law enforced. In particular, the Court has championed the states’ ability to vindicate this interest, and several statutory schemes expressly permit states to enforce federal law. These cases underscore the benefits that sound in federalism in having the states enforce federal laws in ways that differ from those of the President. Yet the preemption cases make no mention of any troubling separation-of-powers implications, even though the cases simultaneously celebrate the states’ ability to limit the President’s enforcement discretion.
Part III will consider whether states might be permitted to execute federal law even when private litigants are not. The text of Article II does not suggest Congress can authorize this distinction, since both state and private execution of federal law might limit the President’s discretion. Part III will also reject the notion that principles of federalism would justify a bright-line distinction between states and private litigants. Federalism describes the virtues of limiting the ability of the federal government to decide an issue—here, how federal law should be executed—for the entire polity. The very idea that federalism has value in the context of vindicating the public’s shared interest in the enforcement of federal law is at odds with the separation-of-powers cases, which assert that something important is lost when someone other than the President executes federal law. Moreover, once a constitutional principle such as federalism provides a justification for Congress to authorize nonexecutive actors to enforce federal law, other constitutional principles, such as the rule of law, should similarly suffice as a justification for Congress to authorize other nonexecutive actors to enforce federal law.
Finally, Part IV will argue that the Constitution permits Congress to authorize private rights of action allowing private individuals to enforce federal civil statutes. The Court’s rigid interpretation of Article II in separation-of-powers cases has thin constitutional foundations and would undermine myriad arrangements where nonexecutive actors execute federal law. It is also motivated by questionable assumptions about the legislative process and whether the President is actually accountable for enforcement decisions, and it runs counter to commonly held views about how and when presidents may decline to enforce federal statutes. For these reasons, Article II should not be understood to limit Congress’s ability to authorize private individuals to enforce federal civil statutes; independent constitutional provisions, however, may limit whether nonexecutive actors may enforce criminal laws.
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