Section 10(e) of the National Labor Relations Act1 (NLRA) requires that the National Labor Relations Board (NLRB or Board) petition a court of appeals if it seeks enforcement of its orders,2 which include “consent orders” reflecting settlement agreements.3 Recently, in NLRB v. Constellium Rolled Products Ravenswood, LLC,4 the Fourth Circuit held that it did not have jurisdiction to enforce a Board consent order because the parties lacked “adverse interests.”5 An adverseness requirement — as one consideration of a litigant’s standing to proceed in federal court — is grounded in separation of powers.6 But in suits against private parties “arising under . . . the Laws of the United States,”7 including Constellium, those separation of powers concerns are inverted. By refusing to exercise its statutorily granted authority to enforce the Board order, the Fourth Circuit interfered with Congress’s ability to determine the contours of the labor law regime, paradoxically engaging in the very judicial overreach that standing is meant to protect against.
In early 2020, United Steelworkers, Local 5668 (the Union) submitted four charges against Constellium Rolled Products (Constellium) to the NLRB.8 In each, the Union alleged that Constellium violated the NLRA by withholding requested documentation that was necessary for bargaining.9 The NLRB’s General Counsel found merit in the charges and issued a complaint against Constellium.10 After Constellium filed an answer, it reached a formal settlement with the Union in which Constellium agreed to furnish the requested information.11 The Board approved the settlement, ordered Constellium to fulfill the agreement, and petitioned the Fourth Circuit to enforce its order through a consent judgment pursuant to section 10(e) of the NLRA.12
The Fourth Circuit dismissed the Board’s petition.13 Writing for the majority, Judge Richardson14 began by explaining the well-established rule that a finding of “sufficient adverseness” between the parties is necessary “to confer an ‘adequate basis for jurisdiction’” under Article III.15 Interpreting United States v. Windsor16 and other Supreme Court precedents,17 the majority concluded that, though Article III does not require the parties to make adverse arguments, it does require them to have adverse interests “when federal jurisdiction [is] invoked.”18 And these interests have to have “real-world consequences.”19 Since the court’s judgment “would merely reiterate Constellium’s obligations under the Board’s order,” there was insufficient adverseness to hear the case.20
The majority addressed three objections. First, it responded to the dissent’s position that enforcing the order would have real-world consequences given that under section 10(e), Board orders are not self-executing and require a court judgment to give them meaning.21 If Board orders were “meaningless,” Judge Richardson countered, they would not create “the kind of injury that confers standing” for appellate review — yet the courts of appeals regularly review such challenges.22 Second, the majority rejected the contention that the longstanding “practice of courts blessing consent decrees” called its determination into question23: whereas consent decrees end an ongoing dispute in the federal courts, the controversy in Constellium ended before any litigation commenced.24 Third, the majority addressed the fact that the Supreme Court has exercised jurisdiction and approved Board orders without raising the adverseness issue.25 Judge Richardson reasoned that, because the Supreme Court has not addressed the question of adverseness in these cases head-on, its “‘[d]rive-by jurisdictional rulings’ are not precedential.”26
Judge Harris dissented.27 She observed that the “paradigm concerns animating” any Article III adverseness requirement — such as avoiding friendly suits — were not present in this case.28 Moreover, Judge Harris argued, “Article III does not require adverseness.”29 Rather, after Windsor, adverseness is merely a prudential concern — not a limit on the court’s “power.”30 Further, Judge Harris contended that the court’s “adverse interest” requirement is as much about mootness as it is about standing.31 And because an NLRB order has no binding legal effect without a federal court judgment, the NLRB maintained a live interest in the enforcement of its order to prevent further labor law violations.32 Judge Harris also rejected the majority’s argument that consent decrees are different because they end an ongoing controversy, noting that they are sometimes sought without any remaining dispute.33 Finally, Judge Harris criticized the majority for “creating costly doubt about the permissibility of a whole swath of long-accepted judicial practices” and for failing to articulate the limits of its holding.34
“[T]hough one might not know it”35 after reading both opinions in Constellium, the Supreme Court has emphasized that separation of powers is the chief concern underlying the doctrine of standing.36 Usually, more stringent standing requirements “prevent the judicial process from being used to usurp the powers of the political branches,”37 as they limit the occasions for judicial review to “the determination of real, earnest and vital controversy between individuals.”38 But this is not always so. Rather, this comment proposes that a determination of “sufficient adverseness” grounded in separation of powers considerations should depend on which of the following five categories the lawsuit falls into: (1) lawsuits arising under state law; (2) lawsuits arising under the Constitution; (3) administrative lawsuits challenging the Executive; (4) lawsuits against state and local governments arising under federal law; and (5) lawsuits against private parties arising under federal law (as in Constellium). While a stringent adverseness requirement might be justified by separation of powers principles in the first four categories, the application of those same principles leads to the opposite conclusion in the fifth. In these category-five lawsuits, far from promoting judicial restraint, an adverseness requirement creates a separation of powers paradox by “do[ing] violence to the scheme Congress chose to put into place.”39
Diversity cases are the one realm in which the requirement of adverseness has been least questioned40 — for good reason. As Justice Story explained in Martin v. Hunter’s Lessee,41 the Constitution’s grant of power to federal courts to hear diversity cases was based on a presumption that, in contentious litigation between two opposing parties, the partiality of the forum state could “obstruct, or control, or be supposed to obstruct or control, the regular administration of justice.”42 In noncontentious litigation, this concern is absent, and the constitutional scheme thus requires that such cases be litigated in state court.
Suits that turn on the constitutionality of an act by the legislative or executive branch should also require party adverseness. In Raines v. Byrd,43 the Court noted that its “standing inquiry has been especially rigorous” in such cases.44 Why? Because, given the nonreviewability of its constitutional decisions,45 the Court should be especially cautious in taking up a case that could permanently limit the powers of another branch. This logic also extends to constitutional suits against state and local governments where the Court’s determination both irreversibly constrains the powers of the states and forestalls Congress from regulating state activity through its own interpretation of the Constitution.46
In administrative lawsuits seeking review of agency decisions under federal law — such as suits charging that agencies have acted in excess of their statutory authority or that they have violated the Administrative Procedure Act47 — the concerns about judicial reach are more ambiguous. They are not as potent as in constitutional cases because Congress can overrule the courts’ interpretations. Because it is impracticable for Congress to review every agency decision, courts can play a useful role in making reversible determinations that either best match the preferences of the current Congress, match the preferences of the Congress that enacted the legislation, or are most likely to elicit a response from the legislature.48 At the same time, judicial restraint leaves some breathing room for the executive branch to function.49
The concerns are also ambiguous in suits against state and local governments under federal law, where Congress can once again override the court’s determination but where federalism concerns might similarly suggest the need for judicial restraint. Ultimately, an adverseness requirement may be desirable in such cases to prevent friendly suits from setting binding precedents that restrict the powers of other states.50
Finally, we have claims under federal law against private parties. The majority involve adverseness. But some are “noncontentious,” such as those involving naturalization proceedings,51 consent decrees,52 and NLRB consent orders. In such cases, the court is doing a job that Congress is asking it to do: enforcing a federally created right. The usual separation of powers concerns justifying an adverseness requirement53 do not apply. Instead, in these category-five suits, separation of powers counsels against reading an adverseness requirement into Article III.
Section 10(e) of the NLRA specifically calls for petitions to federal courts for enforcement of Board orders. The Seventh Circuit explained that “the denial of teeth to the agency’s orders was a swap for procedural informality,” and “[d]istrust of the [NLRB], or perhaps disagreement with the laws it administers or the substantive positions it takes — or perhaps sheer inertia — has prevented Congress from making the Board’s orders self-executing.”54 To be sure, this comment welcomes statutory reform empowering Board orders, which would make court enforcement unnecessary.55 But where “Congress has carefully set up”56 a statutory scheme and enforcement mechanism that allows for the litigation of nonadversarial claims,57 courts should respect it.58
Even though the Supreme Court rarely cites justifications other than separation of powers as guiding its Article III standing jurisprudence,59 other grounds have been raised. One is the concern that nonadverse litigants may fail to protect the rights of affected third parties. In Constellium, this was not an issue — the NLRB consent order does not, unlike written-opinion rulings that mark changes in the Board’s interpretation of the NLRA, alter the rights of unrepresented parties. And even in matters like settlement class actions, where third-party rights are at issue, the problem may be adequately solved through procedural safeguards and “a more searching form of inquisitorial judging.”60
A freestanding adverseness requirement might also be justified on judicial economy grounds: to “ensur[e] that courts’ limited resources are dedicated to parties that actually require judicial intervention.”61 But if Congress thinks it is worth the judiciary’s time to bless NLRB orders or naturalize new citizens, that is its prerogative. The tradeoff between vindicating statutory rights and husbanding judicial resources is a policy judgment. Once Congress has struck its preferred balance, a court should not turn litigants away because it would have made a different choice.
A final justification for the adverseness requirement is that it improves judicial decisionmaking.62 Nonadverse proceedings might lead to the creation of bad law because “when all litigants desire the same result, they have little incentive to highlight defects in their arguments or present adverse considerations persuasively.”63 Some commentators disagree and point to the many advantages of nonadverse, inquisitorial legal systems.64 But the meta question is not which balance of adversarial and inquisitorial judicial flavors would be preferable, but rather, who should get to decide this question about the power and scope of the federal courts. And if separation of powers and judicial restraint are to mean anything, the answer should not be the federal courts themselves.
When Justice Powell wrote that the “[r]elaxation of standing requirements is directly related to the expansion of judicial power,”65 he was mostly correct. As was Justice Scalia, when he wrote that a diminutive view of standing requirements “envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.”66 But this character of standing is not absolute. In Constellium-type suits — those against private actors under federal law — adverseness should not be a precondition for justiciability. It is neither clearly in the text of the Constitution67 nor required by good reason. Instead, in such lawsuits, the separation of powers principles that undergird the doctrine of standing require that the federal courts respect Congress’s power to prescribe noncontentious litigation.