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- Title
A Zone for Nonstatutory Review of Constitutional Claims.
- Authors
MURPHY, RICHARD
- Abstract
Suppose a hotelier competes with the President of the United States, who has a side job in the hospitality business. The hotelier is upset because foreign governments are booking stays at the President's hotels. Might the hotelier successfully sue to enjoin this competition because the President's conduct violates the Foreign Emoluments Clause of the Constitution? To do so, the hotelier will need to run a gauntlet of threshold requirements, including demonstrating that they have a "cause of action." Congress has not created a statutory cause of action that our hotelier could invoke. In such cases, a plaintiff commonly can seek equitable relief for a constitutional claim via a nonstatutory cause of action-as Ex parte Young f1amously demonstrates. Recent judicial clashes in highprofile litigation involving the Emoluments Clauses, Appropriations Clause, and Congress's subpoena power have, however, highlighted that the doctrine governing whether structural constitutional provisions grant legal rights that can support nonstatutory review has become surprisingly unclear. This Article defends a simple resolution to this problem: Courts should use the same "zone-of-interests" test that they have developed to determine whether a plaintiff can invoke the Administrative Procedure Act's statutory cause of action to determine whether a plaintiff can invoke a nonstatutory cause of action for injunctive relief to enforce a constitutional provision. Adoption of this standard would cohere with the Supreme Court's past practice of generously allowing this form of review, respect the policy judgments underlying this practice, and clarify a difficult and under-examined corner of the law.
- Subjects
UNITED States; CAUSES of action; ADMINISTRATIVE procedure
- Publication
Ohio State Law Journal, 2023, Vol 84, Issue 2, p303
- ISSN
0048-1572
- Publication type
Article