Justice Thomas Questions Deputizing Private Parties to Wield Federal Powers

There is a longstanding debate over the wisdom of allowing governmental powers to be exercised by private parties. But is there also a constitutional problem?

For decades, liberals and progressives agitated for the expansion of “private attorney general” provisions in both federal and state law under which a private plaintiff — sometimes, a person who was not injured at all by the defendant’s conduct — could nonetheless bring suit to enforce the public interest protected by the law in question. There was always serious legal tension between such provisions and the rules of standing to sue. Article III standing requires that the plaintiff assert some personal injury. (Some state courts enforce similar limitations on their jurisdiction). Thus, a person who had a legal right to sue might not be able to do so in federal court, or possibly, any court.

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

Featured Tags

Manage following

Clarence Thomas

Supreme Court

There is a longstanding debate over the wisdom of allowing governmental powers to be exercised by private parties. But is there also a constitutional problem?

For decades, liberals and progressives agitated for the expansion of “private attorney general” provisions in both federal and state law under which a private plaintiff — sometimes, a person who was not injured at all by the defendant’s conduct — could nonetheless bring suit to enforce the public interest protected by the law in question. There was always serious legal tension between such provisions and the rules of standing to sue. Article III standing requires that the plaintiff assert some personal injury. (Some state courts enforce similar limitations on their jurisdiction). Thus, a person who had a legal right to sue might not be able to do so in federal court, or possibly, any court.