While standing doctrine has traditionally been rooted in Article III’s Case or Controversy requirement, there is growing support for the view that limits on plaintiffs’ standing stem instead from the President’s Article II duty to “take Care that the Laws be faithfully executed.” Proponents of this theory argue that private enforcement actions unconstitutionally interfere with the Executive Branch’s prosecutorial discretion, an essential component of executive power. The origins of this “Article II theory of standing” date back to the 1980s, but it has gained new traction in recent Supreme Court cases such as TransUnion LLC v. Ramirez and Acheson Hotels, LLC v. Laufer. Eleventh Circuit Judge Kevin Newsom has developed an originalist version of the theory, arguing that Article II’s Vesting Clause and Take Care Clause prevent Congress from empowering private plaintiffs to sue for wrongs done to society in general and to seek remedies that accrue to the public.

This Note argues that originalist attempts to ground restrictions on plaintiffs’ standing in Article II are inconsistent with the understanding of executive power at the time of the founding. Proponents of the Article II theory assume that suits for violations of public rights were originally understood to be exercises of the executive power. They also argue that a core aspect of this power was the exercise of case-by-case enforcement discretion, such as the criminal prosecutor’s decision not to bring charges. Drawing on historical practice in England, the American colonies, and the early United States, this Note demonstrates that private parties routinely conducted criminal prosecutions, often without executive oversight. Where the federal government relied on public prosecution, Congress frequently empowered actors outside of the Executive Branch, such as state officials, to prosecute federal criminal offenses. This evidence suggests that, as an original matter, Article II likely did not limit law enforcement (and case-by-case discretion) to the Executive Branch. If criminal prosecution was routinely delegated to non-executive actors at time of the founding, there is reason to doubt that Article II bars Congress from authorizing suits by unharmed plaintiffs.