When Congress enacts a federal statute, it may consider whether and how the statute should be enforced. Different enforcement mechanisms may be available depending on the specific statute and the legal consequences that Congress chooses to impose for violations. One such option is a private right of action, which allows non-government entities to bring civil lawsuits to enforce the law. When Congress creates a private right of action, it may consider who can sue to enforce the law; who can be named as a defendant; where the suit should proceed; and what remedy should be available to a prevailing plaintiff, including options such as money damages, an injunction, or attorney's fees.
Federal statutes may be enforced via civil or criminal proceedings, and sometimes both. If Congress seeks to make a violation of a statute punishable by imprisonment, it may provide for enforcement via criminal proceedings. Crimes may also be punished with fines, restitution, or forfeiture of property and may carry other collateral consequences. Federal crimes can only be prosecuted by the federal government, not by state authorities or private individuals, though individuals may report suspected criminal violations for possible investigation and prosecution. Criminal proceedings are subject to constitutional limits designed to protect the rights of suspects and defendants.
With respect to civil enforcement, Congress sometimes authorizes federal government officials to bring administrative enforcement proceedings against a regulated entity (subject to constitutional limits) or to sue in court to enforce the law. In addition or in the alternative, Congress sometimes empowers state attorneys general to sue to enforce federal laws. Congress can also create private rights of action, allowing private individuals or other non-government entities to sue public or private parties to vindicate legal interests. Congress may create private rights of action for suits involving individuals' personal interests, such as tort cases, or when Congress views private parties as better situated or more likely than government actors to sue to vindicate broader public interests.
Congress sometimes creates multiple enforcement mechanisms for the same statute. For instance, a provision of the Controlled Substances Act, 21 U.S.C. § 843, imposes criminal penalties for certain violations and also authorizes the Attorney General to bring a civil action seeking to enjoin unlawful activity. Chapter 77 of Title 18 of the U.S. Code imposes criminal penalties for offenses related to slavery and human trafficking and authorizes civil suits by victims of offenses and state attorneys general. By contrast, Congress may also enact legislation that imposes legal obligations but contains no express provision for enforcement.
Some private rights of action authorize suits against the federal government where the government is alleged to have violated a law or failed to take required action. If a statute authorizes or directs a federal agency to act and does not contain an express enforcement provision, private parties may be able to seek judicial review under the Administrative Procedure Act (APA), which authorizes court review of certain agency actions. The APA is distinct from stand-alone private rights of action. APA cases may challenge the lawfulness of an agency action on specified grounds or seek to compel an agency to take a required action that has been improperly withheld or delayed.
The APA authorizes judicial review of an agency action either when another statute expressly authorizes APA review of the action or when the action is final and "there is no other adequate remedy in a court" with respect to that action. Courts may not review challenges to an agency action under the APA if another statute precludes judicial review or the action is committed to agency discretion by law. When legislating to establish the powers or obligations of federal agencies, Congress may thus consider whether to expressly allow or prohibit APA challenges, or to remain silent and allow APA suits to the extent actions are reviewable under the existing APA regime. CRS Report R44699 provides more information on judicial review under the APA.
In the past, courts interpreting federal statutes that did not expressly authorize enforcement suits sometimes construed those statutes to contain implied private rights of action, allowing people to sue to enforce those laws without explicit authorization from Congress. More recent caselaw has instructed courts to "interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy." Accordingly, if a bill does not expressly authorize private parties to sue to enforce its provisions, a court is unlikely to conclude that the bill implicitly creates a private cause of action. Given courts' reluctance to recognize implied private rights of action, a federal statute may be effectively unenforceable if an enforcement mechanism is not expressly provided for within the statute itself or available under a generally applicable regime such as the APA.
If Congress wants to allow suits to enforce a law, it can reduce uncertainty and effectuate its policy goals by expressly authorizing them, including by creating an express private right of action. When Congress creates an express private right of action, there are several questions it may consider.
One key question is which private parties can sue to enforce a statute. Congress may authorize certain parties to sue by statute, subject to constitutional limits. Some statutes creating private rights of action generally allow suits by "any person" or, more narrowly, by "any person injured" by a violation of the statute. Other statutes identify specific types of people who can sue, such as crime victims or incarcerated persons. Congress may authorize qui tam actions, where individuals can sue in the name of the government and receive a share of any recovery or settlement, or citizen suits in which private parties or state or local officials act as "private attorneys general" and sue to enforce statutes such as federal environmental laws.
The Supreme Court has held that any party suing in federal court must have standing to sue, meaning the party must have a concrete and personal interest in the proceeding. Standing is a constitutional requirement that cannot be altered or waived by legislation. While Congress cannot confer standing on parties that lack it, it can sometimes create new substantive or procedural rights that some parties have standing to enforce.
Courts assess standing on a case-by-case basis. If an individual or organizational plaintiff lacks standing to bring a claim, that plaintiff's claim must be dismissed. If Congress enacts legislation authorizing a broad class of people to sue to enforce it, courts might find that some plaintiffs have standing and others do not. It is also possible that Congress could enact a law that no one would have standing to enforce.
Standing requirements also apply when Congress authorizes suits by government actors rather than private entities. The federal executive branch is generally understood to have standing to enforce federal law. Certain types of cases, including suits by legislators or state attorneys general on behalf of citizens of their states, may raise particular standing questions.
Congress may also consider who can be sued to enforce a statute. Congress may allow suits against any person or entity regulated by the relevant substantive law—which might include private individuals, corporations, or government entities—or it may limit the parties that can be sued.
If Congress chooses to allow suits against a government entity, it faces consideration of the doctrine of sovereign immunity. Federal and state governments and their agents are generally immune from suit unless they consent to suit or Congress abrogates immunity. Foreign governments also enjoy immunity from suit unless an exception applies.
Another question when creating an express private right of action is which court or courts should be able to hear suits under the provision. An initial question is whether suits should be able to proceed in federal or state court or both. By statute, federal criminal cases must proceed in federal court. By default, federal civil claims can be heard by either federal or state courts. Congress has the option to instead provide for exclusive federal court jurisdiction over federal civil claims, meaning that those claims must proceed in federal court.
Within the federal judiciary, federal statutes set default rules related to jurisdiction (which courts have the power to hear a case) and venue (where it is appropriate for a case to proceed). Congress can legislate to depart from those default rules and send specific cases to designated courts. Most federal litigation begins in the trial-level district courts, but Congress has provided for some cases, generally involving judicial review of agency actions, to begin in the courts of appeals. Congress can also send cases to a specific district court or appeals court, subject to some constitutional limits.
Plaintiffs may have multiple options for where their suits can proceed, and sometimes choose where to file suit based on courts' interpretations of the applicable law or the plaintiffs' perceptions of how likely it is that the judges or juries in a given court will rule favorably on their claims—a practice sometimes called forum shopping. CRS Legal Sidebar LSB10856 discusses considerations for Congress related to forum shopping.
Courts are not the only bodies that can resolve legal disputes. Some matters may be considered by administrative agencies or in arbitration, and Congress can also legislate with respect to those types of proceedings. For instance, Congress has enacted legislation requiring courts to enforce arbitration agreements, and statutes or agency regulations may require parties seeking judicial review of some agency actions to first exhaust administrative remedies.
Congress may consider what relief should be available to a party who prevails in a suit. The terms judicial relief and judicial remedies refer to anything a court may award to a prevailing party, potentially including the following:
Congress may specify that some or all of the foregoing forms of relief are available to a party who prevails on a particular claim. In APA litigation, courts may also issue stays of federal agency actions or vacate actions found to be unlawful, though there is some debate about whether those are distinct judicial remedies.
CRS Report R46484, on federal legislation, provides in-depth information on key features of federal legislation that may assist congressional clients in drafting legislation or analyzing existing laws or proposals. CRS Report R45153, on statutory interpretation, discusses how courts interpret and apply laws.
The House and Senate Offices of Legislative Counsel can assist congressional clients with drafting legislation, including proposals containing private rights of action. CRS attorneys are also available to advise congressional clients considering legislation in this area, including by providing background on current laws and proposals, discussing goals and approaches for possible legislation, and reviewing draft legislative language.