Conservatives Challenge Private Lawsuits on Environmental and Civil Rights

Donald Trump and allied legal activists have recently advanced a sweeping constitutional argument aimed at curtailing — and potentially eliminating — private lawsuits brought under major federal statutes such as the National Environmental Policy Act (EPA‑related citizen‑suit provisions) and Title IX. These important challenges claim that Congress improperly delegated executive enforcement power to private citizens, advocacy groups, and local governments, violating separation‑of‑powers principles. The challenges are corollaries to the “unitary executive theory” that the Trump Administration is also using to attack so-called independent federal agencies, such as the Federal Reserve, Federal Trade Commission, NLRB, or FERC.

If this trend in cases being argued before the federal courts succeeds, much of what is currently taught at Cornell as well-accepted law will be drastically changed.

Since the New Deal, Congress has recognized the need for regulation that is far more complex and detailed than can be written into the laws it drafts. So, Congress has tended to write high-level, general laws and then delegate to the Executive Branch or to independent agencies to enforce them. In many situations, Congress vested enforcement powers in agencies rather than solely in the President. It also expressly authorized private citizens and groups to file lawsuits as “private attorneys general.” The courts would decide appeals from the agencies or adjudicate cases filed by private citizens, even if a President personally held an opposing view. The result was a balance of power between the three branches of government.