That is one of the questions Georgetown’s Steve Vladeck raises in today’s edition of his One First newsletter. Some background: the Department of Justice has made various arguments in an environmental case against the lawfulness of citizen suits to enforce environmental laws. Some of the arguments are not relevant to private claims to enforce consumer laws and the statutes authorizing citizen suits differ from the statutes authorizing private claims for, say, a FCRA violation. But at least one of the arguments is based on Article II of the Constitution and argues that the executive’s power to enforce the law gives it the power to intervene in and then dismiss private claims to enforce federal law. Valdeck writes “The Article II theory at the heart of the DOJ’s motion does not, by its own logic, stop at citizen-suit provisions in pollution statutes. If the executive’s constitutional primacy over enforcement means it can intervene to kill a private suit Congress expressly authorized, the same reasoning threatens every statutory scheme in which Congress gave private parties an independent right to enforce federal law: * * * If Article II now means the executive can veto those private actions at will, what Congress built as a system of redundant safeguards becomes a system of executive permission slips.”
In other words, Russell Vought wouldn’t have only the power to shut down the CFPB (assuming he does); he would also have the power to shut down every private claim based on federal consumer financial protection laws. The case in question and DOJ’s motion were filed in a district court in the Fifth Circuit, which is not good news. And there are reasons to think that even courts unhappy with private enforcement would not go so far as Vladeck fears, including that that the case could be decided on other grounds. In addition, the government’s brief distinguishes conventional private claims from claims to enforce the environmental law at issue in the case (footnote omitted):
The United States does not dispute that Congress has the power to authorize private parties who have suffered Article III injury to sue to enforce certain federal statutes. See, e.g., Cummings v. Premier Rehab Keller, PLLC, 596 U.S. 212, 218 (2022) (“‘[P]rivate individuals may sue to enforce’ . . . antidiscrimination statutes[.]”). Private suits under such provisions, like Title VII of the Civil Rights Act and the antitrust laws, generally do not raise Article II concerns even if Congress created the private right of action for the purpose of supplementing government enforcement actions. See, e.g., 42 U.S.C. § 2000e-5(f); 15 U.S.C. § 15. But traditional private rights of action ordinarily provide some form of highly personalized relief, like a mechanism to compensate monetary harms that the plaintiff personally suffered. See, e.g., 42 U.S.C. § 2000e 5(g)(1) (Civil Rights Act, providing for reinstatement and backpay); 15 U.S.C. § 15(a) (Clayton Act, providing that “person[s] who shall be injured in his business or property” can recover treble “damages by him sustained”).
The differences between other statutes’ private rights of action (for more individualized relief) and Clean Air Act citizen suits that do not compensate any specific injury to the citizen plaintiff heighten the Article II concerns as to citizen suits. Unlike private rights of action in statutes like the Civil Rights Act and the Clayton Act, the Clean Air Act does not provide for compensatory monetary relief. See 42 U.S.C. § 7604(g). It instead authorizes private citizens to pursue monetary penalties generally payable only to the Treasury—again, a quintessentially executive power that “vindicat[es] the rule of law” rather than compensating any personal monetary harm. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 106 (1998); see also Seila Law, 591 U.S. at 219.
That makes me think (hope) Vladeck’s fears are overblown. But Vladeck is a very smart and knowledgeable guy and I know next to nothing about environmental law or the case Vladeck is talking about. That this is even a possibility is alarming for American’s consumers. It means favored businesses could violate federal consumer protection laws with impunity.
