I just reviewed a draft copy of my friend and colleague, Dru Stevenson’s, new co-authored article with Sonny Eckhart, titled “Standing as Channeling in the Administrative Age.” Here is the abstract:

For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing.

This Article takes the suggestion a step further, and argues that Congress has implicitly delegated the matter to the administrative agencies with primary enforcement authority over the subject matter. Courts regularly allow agencies to fill gaps in their respective statutes, meaning congressional silence on a point often constitutes discretionary leeway for the agency charged with implementation of the statute. Agencies already have explicit statutory authority to preempt citizen suits or define violations for which parties may sue. The existing statutory framework therefore suggests agencies could promulgate rules for the injury-in-fact and causation prongs of standing in citizen suits. Moreover, agencies have an advantage over courts in terms of expertise about the harms involved and which suits best represent the public interest. On the more delicate question of citizen suits against agencies themselves, agencies could default to the “special solicitude for states” rule illustrated in Massachusetts v. EPA. Finally, this Article explains how standing can function as a beneficial channeling tool rather than an awkward screening device, by allowing agencies to align citizen suits more closely with the larger public interest and established policy goals.

Here are my comments, which may be of general interest to jurisdiction wonks:

Do you see Article III standing as jurisdictional? I saw a few footnotes (e.g., 219) in your article that alluded to that issue, and it is something I have considered myself for some time.

If you consider Article III standing as jurisdictional (a colorable argument), then Congress’s power to limit the court’s standing is subject to the “regulations” and “exceptions” language of Article III. I think it would be worthwhile to discuss his aspect. Have there been any cases on Congress’s power to delegate its Article III powers? Would it be the same intelligible principles standard as Article I? Did Mistretta mention anything about this, as this is somewhat related to the power delegate to the Sentencing Commission (though it is not jurisdictional). And, I gather, the Courts may take a different stance about delegating powers pertaining to Article I rather than delegating powers pertaining to Article III. Is there something unique or special about Article III limitations and jurisdiction limitations (think of Ex Parte McCardle and other jurisdiction stripping cases).

If Article III standing is not jurisdictional, then from what enumerated power would Congress be able to limit standing in the federal courts. I suppose one answer is that standing rule could be based on, for example, the commerce clause power. But that would give Congress the power to enact the law, not the power to create the citizen’s suit. It seems some other power must give Congress the ability to do stuff in the courts. I think (and I haven’t fully fleshed this out) this power must come from its Article III power to set jurisdiction. (This may be discussed in questions concerning Congress’s power to create statutes with federal question jurisdiction, maybe Merrell Dow or Grable v. Darue).