Balancing as Well as Separating Power: Congress's Authority to Recognize New Legal Rights

Abstract

In Spokeo, Inc. v. Robins, the Supreme Court faced the question “[w]hether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.” Put more simply, can Congress recognize legal injuries that are not predicated on injuries in fact? As this Essay demonstrates, the Court would abuse the language of Article III, would transgress on congressional authority, and would exceed its own role in the constitutional structure by holding that Congress lacks the authority to create such legal injuries. In addition to historical reasons given by other scholars, there are strong separation-of-powers reasons to respect congressional enactments conferring legal injury.

Keywords: federal courts, jurisdiction, constitutional law, standing, Article III, separation of powers