Article II Revisionism

One of the most striking developments of the last decade has been the new use of Article II in public law adjudication. Article II is a prominent feature not only of cases involving the creation of federal institutions that are independent of the President, but also of new disputes involving reviewability, scope of review, and standing.

Professor Krent and Mr. Shenkman have performed a valuable service in spelling out the argument that Article II, rather than Article III, justifies constitutional limits on legislative grants of standing. Indeed, on several important matters, we are very much in agreement. In this brief space, I will be unable fully to come to terms with their understanding of Article II. I will try, however, to indicate why that understanding seems to be quite adventurous as a matter of constitutional history and structure. In the end, I suggest that their conception of Article II amounts to a form of constitutional revisionism, in the interest of judgments of policy and fact that are plausible but that lack sufficiently clear constitutional roots to be invoked by courts.