Clifford Schomburg has posted The Citizen Derivative Suit: Enforcing the Constitutional Charter When Internal Checks Fail; A Theory of Popular Sovereign Standing in Federal Equity on SSRN. Here is the abstract:
The Constitution of the United States is the foundational charter of a republic whose sovereign citizens are its owners. Like any charter, it creates an entity—the United States of America—defines its structure, allocates powers among its agents, and limits their authority. Yet unlike every other chartered entity in American law—corporations, nonprofits, partnerships, trusts—the citizen-owners of the United States have no recognized procedural mechanism to enforce their charter when their agents exceed the authority it grants. The Supreme Court has acknowledged this enforcement gap repeatedly. In Schlesinger v. Reservists Committee to Stop the War, the Court stated that “[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing”—explicitly accepting that structural constitutional provisions may be unenforceable by anyone through the courts. Justices across the ideological spectrum have identified the problem. The most prominent constitutional law scholars in the country have documented it. What has been missing for fifty years is not a diagnosis, but a remedy. This Article proposes the remedy: the citizen derivative suit, grounded in the inherent equitable jurisdiction of the federal courts. When executive officers act beyond the constitutional charter’s grant of authority and the designated internal check—Congress—demonstrably refuses to enforce the charter’s limits, citizens may bring a derivative action in equity on behalf of the United States to restrain ultra vires executive action. The analogy is precise: citizens stand in relation to the United States as shareholders stand in relation to a corporation; the Constitution is the charter; Congress is the board of directors; executive officers are the officers who have exceeded their authority; and the derivative suit is the equitable mechanism by which owners enforce the charter when internal governance fails. This theory does not depend on statute. It does not depend on contract. It depends on the same equitable principles that courts of chancery have applied to enforce constitutive charters against faithless agents for centuries—principles the Supreme Court recognized in the derivative suit context as early as Dodge v. Woolsey in 1856, in a case that itself involved a constitutional claim.
Fascinating and worth reading. Recommended.
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