The legal doctrine of standing is enjoying its moment in the sun in the wake of the Biden Administration’s student loan cancellation plan. The doctrine requires someone to suffer “concrete and particularized” harm—and not just a “generalized grievance”—before filing suit. It will be the Administration’s chief weapon in blocking legal challenges to the loan forgiveness plan, and, in fact, the administration has already changed cancellation eligibility multiple times in order to sidestep challenges. But, as anyone who has tried to vindicate their rights in court will tell you, the government using standing to avoid the merits of a dispute is nothing new.
A case currently before the Fifth Circuit illustrates this well. In Consumers’ Research v. Consumer Product Safety Commission, two consumer educational organizations are suing the Consumer Product Safety Commission over a dispute regarding information they requested through the Freedom of Information Act. Organizations frequently request information from the Commission and are subject to the Commission’s rules regarding Freedom of Information Act requests, which govern the procedures and costs for obtaining information.
There’s just one problem: the Commission’s structure is likely unconstitutional.
The Constitution vests executive power in the President, and, in most cases, the executive agencies of our federal government—such as the Commission—are accountable to the President. The federal government is obviously too large for one person to manage alone, so the President delegates his power to other officials with the understanding that he can remove those officials if they don’t act consistent with his will. This makes sense. It ensures that the officials who wield the power of the federal government are accountable to a democratically elected official. And, make no mistake, the Commission wields substantial power. It has the ability to ban products, file lawsuits, and obtain millions of dollars in penalties. When Congress created the Commission, however, they made it impossible for the President to remove Commissioners except for “neglect of duty or malfeasance.”
This restriction on the President’s ability to remove officials—who exercise the executive power of the federal government—is the heart of the Consumers’ Research case. Accordingly, a reasonable person would assume that the Commission’s argument in the case would focus on why such an arrangement does not violate the Constitution. But that person would be disappointed. Instead, the Commission would rather the court not pass judgment on its constitutionality at all, arguing that the challengers don’t have standing to challenge it. Their position is that being subject to rules promulgated by an unconstitutional agency is no injury at all to the consumer education organizations. This despite the fact that everyone agrees that the organizations were subject to the Commission’s Freedom of Information Act rule and will almost certainly be subject to it again in the future.
There are, of course, good reasons for the Constitution’s standing requirement. We don’t want courts in the position of weighing in on hypothetical questions with litigants who may not actually have an interest the outcome of the case. The Commission’s view, however, goes far beyond these concerns. Its assertion that organizations subject to its unconstitutional structure are not harmed by it is breathtakingly broad and inconsistent with our constitutional order. In fact, our framers viewed structural rules—such as the President’s removal power—as critical to preserving liberty and preventing government from being unaccountable to the people. Without structural constraints on the Commission, it is free to wield the considerable power of the federal government without any consideration about whether the people it governs will ever be able to hold it to account for its actions.
The Commission’s view of what constitutes an injury to these organizations is far too narrow. The Fifth Circuit shouldn’t stand for it.