DATACENTERS vladeck doj citizen suits xai
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But one district-court ruling will not end this—especially when, as seems inevitable, this case and/or these questions reach the Fifth Circuit. The broader Article II theory—that citizen suits impermissibly vest enforcement power in private hands—has been percolating in academic commentary and amicus briefs for years. This administration has now adopted it as its own. It therefore may be only a matter of time before this argument makes it to the Supreme Court, whether in the xAI case or elsewhere.
That means Congress has a role. It could amend Section 7604(c)(2) to say expressly what its structure already implies: the government’s right to intervene does not include a right to seek dismissal, and a decision not to enforce does not preempt a private action. A parallel fix across the Clean Water Act, RCRA, and every other statute with an identical provision would close the statutory door for good. Of course, that assumes a Congress that … does anything. But if and when such a legislature appears, this would (and should) be an uncontentious fix.
And then there is the argument that is bigger than any statute—bigger, in fact, than environmental law altogether. The Article II theory at the heart of the DOJ’s motion does not, by its own logic, stop at citizen-suit provisions in pollution statutes. If the executive’s constitutional primacy over enforcement means it can intervene to kill a private suit Congress expressly authorized, the same reasoning threatens every statutory scheme in which Congress gave private parties an independent right to enforce federal law: whistleblower protections, civil rights statutes, consumer-safety laws, securities fraud actions. The principle is the same in each—Congress decided that private enforcement was necessary because government enforcement alone would not be enough. If Article II now means the executive can veto those private actions at will, what Congress built as a system of redundant safeguards becomes a system of executive permission slips.
It’s worth thinking about what that would mean in practice. Title VII of the Civil Rights Act lets workers sue employers for discrimination when the EEOC declines to act. The Dodd-Frank Act lets whistleblowers bring retaliation claims when their agencies will not protect them. The Fair Housing Act lets individuals and organizations challenge discriminatory practices whether or not HUD lifts a finger. In each of these regimes, private enforcement exists for the same reason it exists in environmental law: because Congress recognized that the executive branch would not always have the resources, the will, or the political incentive to vindicate the rights it was charged with protecting. If the DOJ’s theory in NAACP v. x.AI Corp. becomes law, every one of those private enforcement mechanisms could be vulnerable to the same move—an administration that disagrees with a statute’s policy goals (or just happens to like the defendant) can simply intervene, assert executive primacy, and shut the case down. The worker suing for race discrimination, the whistleblower exposing fraud, the fair-housing organization challenging redlining—all would hold their rights at the beneficence of the very branch whose failures made private enforcement necessary in the first place.
Even before January 2025, it should’ve been readily apparent why enforcement of our federal rights should not depend upon the permission—or, at least, the acquiescence—of the federal executive branch. If courts eventually hold otherwise in the xAI case, it’s scary to think of where that logic would stop, or what it would empower the executive branch to do (or, in this case, to not do). All of that would be problematic enough with an executive branch that took its obligation to enforce federal law seriously. But that brings us back to the one thing that DOJ’s motion never argues—that what xAI is doing is actually legal (or that DOJ will itself sue xAI if it isn’t).
We talk a lot about the Trump administration’s own lawless behavior; this is a recipe for lawlessness by any private actor the executive branch likes (or can otherwise be persuaded, whether through legal means or otherwise, to leave alone).
SCOTUS Trivia: The First, First “Federal” Court
This week’s trivia was prompted by a weird anachronism in Justice Thomas’s concurrence in the T.M. case—in which he discusses the historical origins of the idea that giving one court the power to revise the judgments of another is necessarily “appellate.” To make a long story short, Thomas suggests that the first court created under the Articles of Confederation was one chartered in 1780. But as my friend and UC-Davis law professor Carlton Larson noted, the Articles of Confederation weren’t ratified until 1781 (when Maryland became the last of the 13 states to accede), so what Congress did in 1780 couldn’t have been pursuant to the Articles.
There are two nerdy pieces of trivia here, and I wanted to briefly flag both of them. The first is that the Second Continental Congress regularly exercised authority prior to 1781 pursuant to what might best be understood as an unwritten constitution—including the 1780 chartering of the court Justice Thomas identified in his T.M. concurrence. There is a rich debate about the exact sources of legal authority on which the Continental Congress was relying when it acted prior to the formal entry into force of the Articles of Confederation; what can’t be denied is that the Articles themselves couldn’t have been it.