Abstract
Looking back at the federal courts over the last generation, commentators will likely focus on their role in undermining the functioning of the regulatory state. Well-acknowledged in this story are Supreme Court decisions that have constrained administrative agencies under the newly minted “major questions” doctrine, as well as the Court’s blockbuster decision overruling the longstanding Chevron doctrine. The Court also has made it increasingly difficult for individuals—often workers and consumers, people of color, women, and those who live from paycheck to paycheck—to seek federal judicial redress for regulatory violations as private enforcers. And the Court has questioned whether certain private enforcement actions, even when authorized by Congress, unconstitutionally usurp Article II power. These trends have heightened the importance of well-resourced and conscientious government lawyers filing federal lawsuits to enforce statutory and regulatory protections—precisely the kinds of actions that the Court’s “Take Care” rhetoric valorizes. Yet, as this Essay shows, there is a developing story of constraint there, as well. This Essay describes a nascent but overlooked trend of Article III courts cabining government lawyers as they seek to enforce regulatory protections. Federal courts are raising procedural and jurisdictional roadblocks in lawsuits filed by government lawyers that narrow the government’s Article III standing, the scope of its litigation interests, and its opportunities to intervene in suits, and that, at times, result in dismissal of the government’s suits. The trend is still developing, and we are hesitant to prognosticate how much public enforcement the Article III courts eventually will block. Nevertheless, in the instances we explore, all prior to the second Trump Administration, the Executive Branch has been increasingly beleaguered as it seeks to enforce various regulatory protections in the federal courts. The world of public enforcement is complex and judicial constraint is not always unjustified. However, the cutbacks we identify run counter to foundational notions of sovereignty and federalism, upend long-accepted procedural and jurisdictional practice, and threaten to further hamstring the regulatory state’s ability to deal with urgent problems.
Document Type
Article
Publication Date
2025
Recommended Citation
Helen Hershkoff & Luke P. Norris, The Beleaguered Sovereign: Judicial Restraints on Public Enforcement, 103 Tex. L. Rev. 1073 (2025).
Included in
Civil Procedure Commons, Constitutional Law Commons, Supreme Court of the United States Commons
