86 Tex. L. Rev. See Also 1 (2007-2008)

handle is hein.journals/seealtex86 and id is 1 raw text is: Form, Function, and Justiciability

Anthony J. Bellia Jr.*
In A Theory of Justiciability,' Professor Jonathan Siegel provides an
insightful functional analysis    of justiciability  doctrines.     He   well
demonstrates that justiciability doctrines are ill suited to serve certain
purposes-for example, ensuring that litigants have adverse interests in
disputes that federal courts hear. Professor Siegel proceeds to identify what
he believes to be one plausible purpose of justiciability doctrines: to enable
Congress to decide when individuals with abstract (or undifferentiated)2
injuries may use federal courts to require that federal law be enforced.
Ultimately, he rejects this justification because (1) congressional power to
create justiciability where it would not otherwise exist proves that
justiciability is not a real limit on federal judicial power, and (2) Congress
should not have authority to determine when constitutional provisions are
judicially enforceable because Congress could thereby control enforcement
of constitutional limitations on its own authority. Thus, he rejects a private
rights model of federal court adjudication and concludes that federal courts
have power to act so long as they are passing on the legality, not the wisdom,
of political decisions.
I am delighted to have the opportunity to comment on this
characteristically thoughtful and insightful article by Professor Siegel. In this
brief Comment, I consider Professor Siegel's argument that congressional
power to generate justiciability demonstrates the purposelessness of
justiciability doctrines. First, I question whether congressional power to
generate justiciability demonstrates that justiciability is an ineffective limit
on federal power. Insofar as lawmaking procedures limit congressional
power to act, congressional rather than judicial power to generate
justiciability where it would not otherwise exist may demonstrate the very
limits of justiciability. If indeed justiciability is an effective limit on federal
power, I question whether Professor Siegel ultimately should dismiss as a
justification for justiciability doctrines the one plausible purpose he
identifies: justiciability doctrines afford Congress control over judicial
enforcement of federal law, the violation of which, absent congressional
action, causes only undifferentiated or abstract injury.
* Professor of Law, Notre Dame Law School.
1. Jonathan R. Siegel, A Theory ofJusticiability, 86 TEXAS L. REv. 73 (2007).
2. In FEC v. Akins, 524 U.S. 11 (1998), the Court described a generalized grievance
insufficient for standing as an abstract as opposed to concrete injury. Id. at 24-25. In dissent,
Justice Scalia argued that this characterization of a generalized grievance overlooked the
requirement that, for standing, a plaintiff must assert a particularized as opposed to
undifferentiated injury. Id. at 35-36 (Scalia, J.. dissenting).

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