Constitution Check: How far can Congress go to override Article III?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a new Supreme Court case that addresses a big question: Can Congress pass a law that bypasses Article III lawsuit requirements?



“Why isn’t the dissemination of false information about you in a credit report…why isn’t it perfectly sufficient if Congress says that’s a concrete injury?…If somebody did it to me, I’d feel harmed. And I think if you went out on the street and you did a survey, most people would feel harmed. Most people would feel as though they had some interest that had been invaded. And Congress recognized that, thought it was a significant problem, passed a statute to deal with that problem.

– A comment by Justice Elena Kagan, during Monday’s Supreme Court hearing on whether Congress has the constitutional power to give private individuals a right to sue because false information about them was distributed over the Internet, even though that might not meet the requirements for lawsuits under the Constitution’s Article III. The case is Spokeo v. Robins, and it will be decided by the court later in the term.


One of the longest-running debates about how the Constitution is to be interpreted by the government is whether each branch has equal power to decide what the basic document means. That is, in political science terms, the theory of “departmentalism,” and it runs strongly against the long-standing claim by the Supreme Court that it is the final arbiter of constitutional meaning – a claim going back to Marbury v. Madison in 1803.

Suppose, though, that Congress decides that there is a problem in society, that the problem needs a legal remedy, and that Congress is entirely within its Article I powers to invite individuals to file lawsuits in federal court to obtain such a remedy. But suppose, on the other hand, that the Supreme Court has spelled out the minimum requirements for filing a federal court lawsuit, under its interpretation of Article III, and yet the law that Congress enacted did not satisfy that test. What happens to the right to sue?

The Supreme Court wrestled with that intriguing question about division of interpretative power at a hearing on Monday that seems perfectly suited for the digital age: if a website puts out information about a private person, to anyone who logs in to get that data, and it turns out that the information is wrong, who gets to sue and why?

If the answer to that were left entirely to the Supreme Court, it would be in three parts: the individual must be able to show a “concrete, particularized” harm from the challenged action, there has to be proof that the challenged action caused that harm, and a remedy for the harm is a kind that can be fashioned by a court.

The question now before the Supreme Court is whether Congress can make up its own mind whether there has been any harm done, whether or not that would satisfy the three-part Article III test long enforced by the Justices. In fact, it appears that Congress thinks that is does have that power under the Constitution to declare something harmful even if the courts would not agree.

The claim before the Justices now, made by an Internet-based “people search engine” named Spokeo, is that Congress cannot simply pass a law creating a right to sue, unless such a legal claim satisfies Article III. A mere violation of a right promised by a federal law, Spokeo contends, is not enough to prove that any harm was done.

It is trying to head off a lawsuit by a California man, Thomas Robins, who has sued Spokeo in federal court for a searchable entry about him on its website, saying that he has more education than he does, that he is married although he remains single, and that he is financially better off than he actually is, because he is unemployed. His claim is based on a provision of the federal Fair Credit Reporting Act, passed in 1970 to provide for federal regulation of information that is sent out by consumer reporting agencies. It gives the right to sue for violations of its protections.

Is this legal fight sure to be a constitutional tug-of-war? Not necessarily.

It is true that a part of Article III, creating the Supreme Court and the federal court system, makes clear that the federal courts may only decide actual “cases or controversies” – that is, live legal disputes with something real at stake. And that is the provision that the Supreme Court has relied upon to create its three-part test on who can sue in those courts.

That is not the end of the matter. Other parts of Article III give Congress the authority to create lower federal courts, and to decide what jurisdiction they will have. Congress even has the additional power to define what kinds of cases the Supreme Court itself can decide, other than the few kinds that the Constitution itself specifically assigns to that tribunal, such as lawsuits between two states.

The court in recent years has been clamping down on who may sue under Article III, and Justice Sonia Sotomayor made a specific complaint against that trend during Monday’s argument. But it was not clear that a majority of the court agrees with her, to the point of relaxing its Article III formula.

From comments made across the bench at the hearing, it appears that several of the Justices – maybe a majority – are worried that if Congress is given too much leeway to create new rights to sue, it will go overboard, and flood the courts with lawsuits in which no one was really harmed, but for whom Congress had lowered the bar for suing to give them access to the courts.

The court has the option of avoiding a major constitutional contest with Congress simply by interpreting the credit reporting law to mimic the Article III requirements for proof of a genuine injury from a flawed credit report. If Congress does not disagree, and chooses not to challenge the court by re-passing the law in a form that would not satisfy Article III, then there would be no confrontation. But if Congress stood its ground, and re-passed the law as is, the court might have to decide whether it will make its own stand, based on Marbury v. Madison.

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