Good scholarship connects distinct areas and issues, highlighting consistencies and inconsistencies (some might say hypocrisies) across areas. Elizabeth Beske’s Article III’s Constraints on the Legislative Power connects a well-covered area—35 years of SCOTUS narrowing Article III standing, from Lujan through TransUnion—to historic and modern controversies over congressional power and judicial aggrandizement at legislative expense.
Beske places standing in the broader discussion of the imperial Supreme Court and Supreme Court supremacy. Rather than limiting the power of courts to hear and decide cases—the oft-repeated rationale for justiciability doctrines—the Court wields Article III to limit the legislative power. Spokeo v. Robins and TransUnion v. Ramirez narrowed Congress’ power to authorize litigation between private parties for statutory harms and statutory damages, absent a showing of a traditional judicially recognized common law injury.
She highlights six features of these new limitations on congressional power.
First. Beske traces the Court’s evolution on the Commerce Clause and economic substantive due process, from Lochner to decades of deference to legislative policy choice. The “New Federalism” that began during the Rehnquist Court established some uncertain outer boundaries to that deference. But these cases “pointedly left key precedents, like Wickard, alone,” such that the Court’s “respect for the outcome of the legislative process purports to be profound.” Beske proposes a fascinating insight: Through Article III, the Court has limited congressional power in a way it could not through Lochnerian due process or through Lopez. Through Article III it achieves preferred substantive outcomes by disregarding legislative purpose and overriding legislative work product—something the Justices insist they no longer do under Lochner.
Second. In narrowing (to the point of virtual extinction) the Bivens cause of action for damages against federal officers for constitutional violations, the Court identifies the decision to create a cause of action as a legislative choice to which courts must defer. Egbert v. Boule narrowed the Bivens analysis “to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy,” the answer to which always will be “yes.” Courts should not assess the costs and benefits of implying a cause of action; their role is to consider whether Congress is better suited to make that balance, a calibration Courts cannot second-guess. That near-absolute judicial deference to the legislative choice not to create a constitutional cause of action cannot square with TransUnion’s judicial invalidation of the legislative choice to create that statutory cause of action. If Congress possesses sole power to weigh the costs and benefits of allowing private litigation, it should possess that power regardless of which choice it makes. Of course, one might find a different throughline—deference to the choice to decline (or fail) to create a cause of action but not to the choice to create a cause of action. But that reflects anti-litigation principles rather than legislative-supremacy principles.
Third. In 2021, the year of TransUnion, the Court took a “short but critical diversion” in Uzuegbunam v. Preczewski. The Court held that a plaintiff had standing to pursue a First Amendment claim seeking only nominal damages (the government had repealed the challenged policy, mooting a request for prospective relief). Although small, nominal damages are concrete; they remedy (even if non-economically) cognizable past constitutional injury. Critically, Justice Thomas wrote the Uzuegbunam majority, pushing the core of his Spokeo concurrence and TransUnion dissent—private harms to private rights require different, more forgiving standing rules. The plaintiff suffered a legal injury when the government prevented him from speaking; that his injury might be unquantifiable did not mean he did not suffer a particularized violation of his private rights.
Fourth. The disparate outcomes in Uzuegbunam and TransUnion—decided months apart—reflect a bizarre paradox: Statutory rights demand a greater showing of injury than non-statutory rights. “While violations of a private right with a common-law or constitutional pedigree may proceed absent any inquiry into the extent, or even existence, of actual injury, as Uzuegbunam reflects, federal judges must find harm—quantifiable harm that is good-enough harm—to allow suit in federal court upon private rights created by Congress.” Pre-2021 standing doctrine does not establish or support that idea. And the majority did not consider or explain why the private harm was obvious under the Constitution in Uzuegbunam but not under the statute in TransUnion. The Court intuits that actual injury is unnecessary “when the private rights are not creatures of statute,” but “this intuition evidently disappears” when Congress has created the right.
Fifth. The Court has constitutionalized the debate over statutory damages, despite their long pedigree and their availability without proof of actual damage or harm. Statutory damages had been a contentious political and legislative question. Academics and officials debated whether legislation should include statutory-damages provisions as a proxy for difficult-to-quantify statutory harms and to encourage lawsuits or whether they produce excessive litigation and absurd liability exposure. But they were a “humdrum” legal question, requiring statutory interpretation to determine whether Congress chose to allow that remedy. TransUnion changes the question—from one of statutory interpretation to one of Article III. “What had previously been a policy debate playing out in the political arena—is it wise or unwise to allow damage awards in the absence of measurable harm?—is no longer; Article III’s case or controversy requirement has stepped in and now dictates the answer.” Beske shows how lower courts follow TransUnion to reject standing under other consumer-protection statutes, despite an express statutory damages provision that courts had interpreted as not requiring actual harm.
Sixth. Recent standing cases disregard the lessons of decades of statutory and common law understanding of increased risk as a type of harm. The Industrial Revolution and the post-World War II world exposed the insufficiency of a tort system grounded in post-hoc compensation in addressing “ambient dangers” in a complex modern world. Congress responded with statutes regulating “increased risk” as a unique harm, buttressed with private enforcement. The lines to be drawn regarding risk were political and legislative—identify the acceptable level of pollution or toxicity before imposing liability.
No more. “TransUnion holds that, according to Article III, Congress is powerless—ever—to declare that exposure to ‘risk of harm’ is itself a compensable injury.” And it does so through an analogy that misunderstands (or ignores) the problem. The majority offered a hypothetical drunk driver who makes it home without injuring another driver, insisting that driver should be celebrated rather than sued. But in that case, the absence of harm is known and knowable. In the problematic cases—groundwater contaminants, asbestos, or benzene—no one knows who may suffer future harm or when. The Court undercut the legislative power by insisting that Congress cannot authorize such suits absent the old-style tort injuries that do not exist in new contexts.
This review essay’s extensive use of quotations should highlight another quality of Beske’s article—her writing is straight, engaging, and punctuated by sharp turns of phrase. Finding—and promoting—well-written scholarship that offers new ways of examining legal problems—JOTWELL exists for just this article.
