The Volokh Conspiracy

In this week’s oral arguments in the two gay marriage cases before the Supreme Court, right and left-wing litigants continued to take unaccustomed positions on standing: the technical legal doctrine that determines whether would-parties to a lawsuit have enough of an interest at stake to be allowed to participate in the case. Historically, conservatives have tended to advocate restrictive standing doctrines, while liberals have been more permissive. Yet, in the gay marriage cases, it was conservatives who argued that the proponents of California’s Proposition 8 had the right to defend it in court, even though they are not government officials and do not suffer any concrete injury if California is forced to permit gay marriage. In the DOMA case, conservative members of Congress have claimed that they have standing to defend the Defense of Marriage Act in court, even though they wouldn’t suffer any clear injury if it were struck down.

During the oral argument in the Proposition 8 case, conservative justices tended to support the Prop 8 proponents’ right standing, while liberal ones were more hostile, an unusual stance for both groups. Matters are less clear in the DOMA case, where positions on standing among the justices did not as clearly break down along ideological lines. But they still don’t seem to be following the traditional pattern of liberals favoring broad standing rules, and conservatives narrow ones.

The standing issues in these cases arise from an unusual situation in which the liberal Democratic governor of California and the Obama administration chose not to defend the state and federal laws being challenged. As a result, outside conservative groups stepped in to do so. Even so, as I pointed out three years ago, these cases are part of a broader pattern in which standing issues no longer break down along predictable right-left lines:

[I]t is... likely that views on standing will no longer closely track ideological divisions. Nothing about conservative ideology as such necessarily requires narrow standing rules, and nothing about liberal ideology necessarily requires broad ones. The ideological split over the issue dates back to the 1970s and 80s, when broad theories of standing mostly favored liberal litigants (especially environmentalists) challenging policies adopted by Republican-controlled administrative agencies. At that time, many believed that Republicans had a lock on the presidency, and that conservatives had little to gain and much to lose from strategic constitutional litigation.

Neither assumption is valid today. Democrats are once again competitive in presidential politics. And the rise of conservative and libertarian public interest law groups combined with a more conservative Supreme Court, ensure that the right can play offense as well as defense in constitutional litigation. For these reasons, narrow standing rules no longer consistently tilt the playing field in favor of conservatives. But neither do they uniformly advance liberal interests. Over time, therefore, neither group is likely to advance a consistent position on the issue. Standing arguments will increasingly become a tactical gambit used whenever convenient, rather than a matter of principle.

This doesn’t mean that positions on standing will become purely opportunistic. Some judges and legal scholars will continue to be principled advocates of either narrow or broad approaches to the issue. I myself have argued against restrictive standing rules, while others, such as co-blogger Jonathan Adler, have defended them. But such disagreements will now be less likely to break down along right-left ideological lines.

Today, in Clapper v. Amnesty International USA, the U.S. Supreme Court held that petitioners Amnesty International, et al., lacked standing to challenge surveillance of international communications under the Foreign Intelligence Surveillance Act.  The Court split 5-4 along traditional right-left lines.  Justice Alito wrote for the majority opinion.  Justice Breyer dissented.  Here is the introduction from Justice Alito’s opinion:

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a (2006 ed., Supp. V), allows the Attorney General  and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons”1 and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under §1881a. Respondents seek a declaration that §1881a is unconstitutional, as well as an injunction against §1881a-authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief.

Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future. But respondents’ theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be “certainly impending.” E.g., Whitmore v. Arkansas, 495 U. S. 149, 158 (1990). And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a. As an alternative argument, respondents contend that they are suffering present injury because the risk of §1881a-authorized surveillance already has forced them to take costly and burdensome measures to protect the confidentiality of their international communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. We therefore hold that respondents lack Article III standing.

For background on the case from the VC, here are some posts by Orin on the Second Circuit’s opinion below, the court’s 6-6 split en banc, and the oral argument, and posts by me on the Sixth Circuit’s opinion addressing this issue and the cert grant.  Several posts from the Lawfare Blog providing additional background are linked here.

In light of the Court’s decision to ask for jurisdictional arguments in both cases, Art Leonard considers some intriguing possibilities.  They go well beyond a simple 5-4, up-or-down vote on the recognition of gay marriage.

Yesterday, Judge Emmet Sullivan dismissed Common Cause’s suit attempting to have the use of the filibuster declared unconstitutional. As I explained here, this was always a futile suit. Even if one thinks the substance of the suit has merit, standing and the political quesiton doctrine are major obstacles to getting such claims heard. Sure enough, in yesterday’s decision, Judge Sullivan found that none of the plaintiffs, which included members of Congress and individuals claiming they would benefit from the passage of filibustered legislation, have standing to bring the suit. He further found that the case presents a nonjusticiable political question.

The plaintiffs may well appeal, but I’m willing to bet they will not fare any better in front of the U.S. Court of Appeals for the D.C. Circuit. This is the last court in which to press an aggressive standing claim. This lawsuit may generate good press for filibuster opponents, but it’s a legal nonstarter.

P.S. I can’t help but note that it was not that long ago that Common Cause vehemently opposed any effort to eliminate the filibuster, particularly when used to block judicial confirmations. Now, however, Common Cause not only supports filibuster reform, but it also thinks the filibuster is unconstitutional.

Today’s oral argument in Fisher v. University of Texas largely bears out what most observers expected. As Amy Howe explained on SCOTUSblog, the five conservative justices seem inclined to strike down the University of Texas’ affirmative action program, though not to completely overrule Grutter v. Bollinger, which allows the use of racial preferences to promote educational “diversity.” As I feared, it seems very possible that Justice Anthony Kennedy will conclude that the University of Texas cannot use explicit racial preferences because it has already achieved a “critical mass” of minorities by virtue of Texas’ Ten Percent Plan, which requires the university to admit anyone who is in the top ten percent of their high school class. This would be a very unfortunate outcome for reasons I discussed here. However, some of the conservative justices seemed skeptical of the very notion of a “critical mass,” as is evident from the following exchange with University of Texas lawyer Gregory Garre:

CHIEF JUSTICE ROBERTS: What is that number? What is the critical mass of African Americans and Hispanics at the university that you are working toward?

MR. GARRE: Your Honor, we don’t have one. And this Court in Grutter -

CHIEF JUSTICE ROBERTS: So how are we supposed to tell whether this plan is narrowly tailored to that goal?

MR. GARRE: To look to the same criteria of this Court in Grutter. This Court in Grutter specifically rejected the notion that you could come up with a fixed percentage. Now -

JUSTICE ALITO: Does critical mass vary from group to group? Does it vary from State to State?

MR. GARRE: It certainly is contextual. I think it could vary, Your Honor...

Later in the oral argument, Chief Justice Roberts complained that it was impossible to tell whether an affirmative program is narrowly tailored to the goal of promoting educationally beneficial racial diversity if that goal depends on achieving a “critical mass” and the University “won’t tell me what the critical mass is.”

Solicitor General Donald Verrilli (who appeared in defense of the program) even seemed to disavow the whole idea of “critical mass” in an exchange with Justice Scalia, claiming that the concept was overblown and had unfortunately taken on a “life of its own in a way that’s not helpful.”

In fairness, to Garre and Verrilli, Grutter created a difficult dilemma for them by, on the one hand, endorsing the idea of “critical mass” but on the other forbidding schools to pursue any numerical goals. But, as Justice Scalia points out, “mass assumes numbers.” The “critical mass” idea also has other flaws, such as the fact that it could justify racial and ethnic preferences for a nearly infinite range of groups, including Russians, Swedes, and sometimes even white males.

It remains to be seen whether key swing voter Justice Kennedy is also willing to dump the “critical mass” idea, and if so what he would replace it with.

A final interesting aspect of the oral argument is that some of the liberal justices seem interested in dismissing the case because the plaintiff, Abigail Fisher, lacks standing due to the fact that she has already graduated from another university and might not have gotten into the University of Texas even if it did not have any racial preferences. The conservative justices, for their part, were hostile to this standing argument.

This continues what I have previously described as a breakdown of traditional ideological positions on standing issues. It used to be that conservative jurists tended to favor restrictive standing rules, while liberal ones took the opposite view. But both sides seem to be changing where they stand on standing:

Traditionally, conservative scholars and judges have advocated narrow views of constitutional “standing”: the level of “interest” litigants must have at stake in the outcome of a case in order to give them a legal right to sue. For their part, liberals have usually promoted the opposite view....

This ideological division has been turned on its head in the current gay marriage and health care litigation. In the former, liberal litigants and interest groups have argued that the proponents of California’s anti-gay marriage Proposition 8 lack standing to appeal the district court ruling striking it down. For their part, conservatives have claimed that they do have “standing,” applying a broad definition of what counts as “material injury...” In the health care case, district judge Henry Hudson (a George W. Bush appointee) has ruled that the state of Virginia has standing to challenge the Obama bill’s “individual mandate” even though the mandate actually applies only to individuals and not state government. The liberal Obama administration and many liberal commentators such as Jack Balkin decried this ruling and argued that Virginia doesn’t have standing. This, despite the fact that Virginia’s standing could be defended under the broad interpretation of state government standing approved by the Supreme Court in Massachusetts v. EPA, the global warming case (much to the delight of most liberals).

Does this mean that liberals and conservatives are about to switch sides on standing? Possibly. But it is more likely that views on standing will no longer closely track ideological divisions. Nothing about conservative ideology as such necessarily requires narrow standing rules, and nothing about liberal ideology necessarily requires broad ones....

Over time, therefore, neither group is likely to advance a consistent position on the issue. Standing arguments will increasingly become a tactical gambit used whenever convenient, rather than a matter of principle.

The Fisher case is further proof of my thesis. If, as expected, the Court concludes that Fisher does have standing, that would be a good result. For reasons I discussed in this post, restrictive standing requirements are not mandated by the Constitution.

Earlier this month, several of the parties challenging the Environmental Protection Agency’s decision to regulate greenhouse gases under the Clean Air Act filed petitions for panel rehearing or rehearing en banc in Coalition for Responsible Regulation v. EPA, in which the U.S. Court of Appeals for the D.C. Circuit turned away all of the state and industry challenges to the EPA’s rules. I summarized the court’s decision here, and provide greater background on the EPA’s regulations and associated policy issues here.

The en banc petitions stress the unusual magnitude and importance of the regulations at issue, as well they should, but that’s often not enough for en banc review. Nor are protestations that that the original panel muffed the merits (case in point), particularly where (as here) most of the issues could be resolved on traditional administrative law grounds. The industry argument that the panel erred in refusing to force the EPA to consider potential adaptation to climate change, for example, is a non-starter. Even if the panel got this question wrong (and I don’t believe it did), that’s not the sort of question that is worthy of en banc review.

There is one issue, however, that could well be en banc-worthy: the panel’s conclusion that industry petitioners lacked standing to challenge the EPA’s so-called “tailoring rule.” While the strict application of Article III standing requirements is nothing new on the D.C. Circuit, here the panel applied the standing rules to prevent the object of a government action from challenging the lawfulness of that action, on the grounds that the harm would not be redressable by a favorable ruling on the merits. Though a plausible reading of the relevant standing precedents, this is a holding that could insulate all manner of regulatory action from judicial review, and expand the already troubling, de facto agency authority to issue “waivers” or otherwise disregard applicable legal requirements.

A bit of background: The Clean Air Act requires the EPA to impose various regulatory requirements on stationary sources that have the potential to emit more than 100 or 250 tons per year of regulated pollutants. (The specific threshold depends on the type of facility.) As applied to traditional pollutants, these thresholds catch thousands of facilities. But applied to greenhouse gases — carbon dioxide in particular — they catch millions. This, the EPA claims, would be an “absurd” result because it would impose an insuperable burden on the EPA and cooperating state agencies. To remedy this, the EPA sought to “tailor” the Act’s requirements by substituting numerical thresholds of its own devising for those contained in the statute itself. So with a wave of its administrative hand, the EPA substituted 75,000 and 100,000 for 100 and 250, and reserved the right to lower the threshold at its discretion in the future.

Industry and state petitioners challenged the Tailoring Rule on the grounds that the EPA has no authority to rewrite the statute by administrative fiat. Applying the plain text of the statute, however, would result in more stringent regulation, not less. Larger facilities subject to the Tailoring Rule would not be guaranteed any direct relief from the rule’s requirements — save whatever relief would come from delay caused by the litigation — and therein lied the problem. If being subject to an illegal regulation were not itself sufficient for standing, all the companies could claim was that subjecting some portions of industry to stringent greenhouse gas permitting rules while exempting others would produce a competitive harm in the form of an unlevel playing field. Exempting some companies from the requirements could give exempted parties a competitive advantage against those who emit enough to still be regulated under the “tailored” rule. Yet unless Congress were to amend the Act (or the EPA were forced to adopt an alternative statutory construction), the larger facilities would be regulated no matter what.

Because the industry petitioners could not claim their suit would necessarily relieve them of any regulatory burdens, the panel concluded, industry petitioners lacked standing to sue. (Indeed, the panel went further and said there was no injury because the regulation of stationary sources was an inevitable consequence of the endangerment finding.) There is a logic to the D.C. Circuit’s reasoning — after all, if winning won’t relieve someone of any regulatory burdens, how could their claim be redressable? One possible response is that rejecting the “Tailoring Rule” could force the EPA to consider alternative ways to avoid the “absurd results” it fears from applying the Act as written to greenhouse gases — alternatives that might well exempt some of the industry petitioners from regulation — but the court closed that door by accepting the EPA’s interpretation of the Act in other portions of the opinion (and then conveniently ducking whether the EPA’s Tailoring Rule is itself permissible under the Act).

A consequence of this decision is that no party subject to the Tailoring Rule has standing to challenge its legality. Thousands of companies are forced to comply with the regulation, and none can have their day in court. Applied more broadly, this decision could have substantial implications, effectively giving agencies like the EPA carte blanche to issue rules selectively exempting politically favored constituencies from statutorily mandated rules. (Indeed, that’s exactly what happened here, as the EPA was well aware that trying to impose the Clean Air Act to stationary source emissions of greenhouse gases would produce a substantial political backlash.) That doesn’t mean the decision is wrong — the rule against taxpayer standing insulates many allegedly illegal government actions from judicial review — but it should raise some questions.

The decision also rests uneasily with the Supreme Court’s treatment of procedural rights in standing cases, which hold that requiring the government to observe such procedural rights is sufficient to satisfy the redressability requirement, even if the ultimate government action will be unchanged. So, for instance, if a plaintiff alleges a federal agency failed to conduct an Environmental Impact Statement under the National Environmental Policy Act, she does not need to allege that the agency would have made a different decision had the EIS been completed. The mere fact that she is injured as a consequence of the agency’s procedurally deficient action is enough. Yet under the D.C. Circuit’s reasoning, there is sufficient redressability for standing when an agency causes injury by failing to follow statutorily prescribed procedures, but not sufficient redressability for standing when an agency causes injury by adopting a regulation that violates the statute’s plain text. [Note: For purposes of standing, such allegations must be accepted as true, so the standing claim does not turn on whether the industry petitioners are correct on the merits on this point -- though, as it happens, they are.]

This aspect of the D.C. Circuit’s standing holding are also at odds with Massachuetts v. EPA. While not all would read the Clean Air Act to provide procedural rights, the Mass v. EPA majority did. Specifically, they held that Section 307(b)(1) of the Clean Air Act provides a “procedural right to challenge” an unlawful EPA action “as arbitrary and capricious,” so there was no need to show that allowing the EPA to regulate greenhouse gases would halt global warming. As the Mass v. EPA majority explained, “When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” This case, too, is a challenge to an unlawful EPA action under Section 307(b)(1), and the industry petitioners are unquestionably injured by being forced to comply with the relevant permitting rules — and yet the D.C. Circuit held they did not have standing.

In Lujan v. Defenders of Wildlife, Justice Scalia explained “there is ordinarily little question” that one who is the object of government action has standing to challenge that action. Yet under the D.C. Circuit’s decision, no entity subject to the Tailoring Rule has standing to challenge it — and that might be enough to make the issue en banc-worthy.

UPDATE: Nathan Richardson comments at Common Resources here.

Over the last forty years, the Supreme Court has worked out a series of principles for when a defendant has standing to object to the Fourth Amendment search of someone else’s property. According to the those cases, the key issue is whether the government violated the defendant’s own reasonable expectation of privacy under the framework introduced by Justice Harlan’s concurring opinion in Katz v. United States. The owner, legitimate renter, or legitimate repeated borrower of a car generally has standing to object to a search of it. A person who steals a car or drives it in violation of a rental contract does not.

In the recent GPS decision of United States v. Jones, however, the Supreme Court introduced — or, depending on how you look at it, reintroduced — two new kinds of Fourth Amendment searches. First, the majority opinion introduced a trespass test for what is a search that supplements the Katz expectation-of-privacy test. Second, to the extent you think it proper to combine the votes of the concurring opinions and consider that an alternative holding, five Justices thought that the cumulative effect of 30 days of monitoring of the car also amounted to a search of the car because it revealed such invasive information about its public location over time.

So here’s the question: Does the standing inquiry developed over the last forty years for Katz expectation–of-privacy searches apply in the same way for Jones trespass searches and Jones long-term expectation of privacy searches? Or is the standing test different?

That isssue arose in a case handed down just a week after Jones: United States v. Hanna, 2012 WL 279435, *1+ (S.D.Fla. Jan 30, 2012) (NO. 11-20678-CR). The police suspected that four men — Hanna, Ransfer, Middleton, and Davis — were involved in a conspiracy to commmit a series of robberies.  Hanna was known to often drive the car of his co-conspirator Middleton. The police installed a GPS device without a warrant and monitored the location of the car. The combination of GPS and visual monitoring showed that Hanna and Ransfer drove together in Middleton’s car (with the GPS on it) to meet up with Middleton and Davis. This particular case involves a prosecution against Hanna and Ransfer.  The government wants to admit the GPS evidence at trial to help show the meeting occurred.

Defendants Hanna and Ransfer moved to suppress that evidence, but Magistrate Judge Edwin Torres denied the motion for lack of standing:

In United States v. Jones, the Supreme Court concluded that a “search” under the Fourth Amendment is triggered when law enforcement attaches a GPS tracking device to a vehicle and uses that device to track the vehicle’s movements. 565 U.S. ––––, No. 10–2159, 2012 WL 171117 (Jan. 23, 2012). The Government invaded a person’s effects when “[t]he Government physically occupied private property for the purpose of obtaining information.” Slip Op. at 4. Justice Scalia’s majority opinion expressly noted that Jones “was ‘the exclusive driver’ “ of the vehicle, and that if he “was not the owner he had at least the property rights of a bailee.” Id. at 3 n. 2. Jones—as the effective property owner or bailee of the vehicle—had standing to challenge an infringement on his property. Indeed, Justice Scalia emphasized that Jones “possessed the Jeep at the time the Government trespassorily inserted the information-gathering device,” id. at 9, contrasting Jones’s situation from earlier cases in which the Court had blessed the use of electronic beepers that had been placed inside packages before they were transferred to the defendant challenging their use. Id. at 9 (distinguishing Karo v. United States, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), because “Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location”).

Indeed, the point of disagreement with the concurring opinion in Jones was the re-emergence of a trespass theory for Fourth Amendment searches rather than application of existing reasonable expectation of privacy doctrine. Id. at 4–6 (Alito, J., concurring). But the result of the case under the concurring opinion would have been that surreptitious long-term monitoring of the Defendant through the GPS device constituted a search because it “impinges on expectations of privacy.” Id. at 13. In that case, the driver of the vehicle had an expectation of privacy that he would not be monitored for four weeks with agents “track[ing] every movement that respondent made in the vehicle he was driving.” Id.

Under either approach recognized by Jones, an essential component of the Fourth Amendment claim requires that one’s own personal “effects” have been trespassed (e.g., one’s automobile when a GPS tracking device was secretly installed), or that one’s own expectation of privacy was impinged (e.g., one’s own movements were continuously monitored and tracked for a material period of time). That is principally where these Defendants’ attempt to benefit from the Supreme Court’s decision in Jones fails. Neither Ransfer nor Hanna was either the owner or exclusive user of the Ford Expedition. To the contrary, the record shows that members of the robbery crew consistently referred to the Expedition as co-Defendant Middleton’s truck. It is undisputed, and the Court has found, that neither Ransfer nor Hanna was in possession of the Expedition at the time that the alleged trespass (the installation and subsequent use of the tracker) occurred. It is also undisputed that Middleton owned that vehicle at all relevant times. Thus, to the extent that Jones relies upon a theory of trespass upon private property, neither Ransfer nor Hanna has standing to challenge a trespass upon property as to which they had no rights. Continue reading ‘Does Fourth Amendment Standing Work Differently for Jones Trespass Searches, Traditional Katz Searches, and Long-term Katz Searches?’ »

Filed earlier this week by Stephen Halbrook, in the case of Williams v. Maryland. In short, Maryland bans all handgun transportation or carry without a permit, and has a permitting process which formally declares that it will deny permits to almost everyone. As the petition explains, “the Maryland State Police, the Maryland Handgun Permit Review Board, and the Maryland courts have consistently interpreted these provisions [state regulations] to require the applicant to document, typically with police reports, that he or she has been the victim of assaults, threats, or robberies, except for applications involving certain occupations.”

Williams was peaceably transporting his handgun from his girlfriend’s home to his own home. He has been convicted, and sentenced to a year in prison. The state’s highest court, the Maryland Court of Appeals, rejected Williams’ Second Amendment challenge, because, supposedly, the Heller and McDonald affirmations of a general right to carry handguns (except in “sensitive places”) is mere dicta which the Maryland court will not follow unless a future U.S. Supreme Court cases formally announces “we meant what we already said.”

As Halbrook points out, “When the Framers intended that a provision of the Bill of Rights related to a house, they said so. [3d and 4th amendments.] They did not recognize a limited right to keep and bear arms only in one’s house. Despite this plain textual reference prohibiting infringement on the right to ‘bear arms,’ the Maryland court argued that the right need not be recognized at all because this Court has not decided cases directly on point. ‘But general statements of the law are not inherently incapable of giving fair and clear warning .. . .’ United States v. Lanier, 520 U.S. 259, 271 (1997).2 [note 2:] ‘The easiest cases don’t even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal]
liability.’ Id.”

Further, Heller’s right to carry language is not dicta, according to McDonald: “our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” As Halbrook points out, this inescapably “implies a right to bear arms outside the home (even if not quite as ‘notably’ as in the home).”

Williams had not applied for a permit, which would have been futile in light of Maryland’s established policy of permit denials. The Maryland Court of Appeals held the Williams therefore lacked standing to challenge the statute. Halbrook responds:

This is completely unfounded given Petitioner’s criminal conviction. Under this Court’s precedents, it is not a requirement for standing to challenge an allegedly unconstitutional permit requirement that one must apply for the permit and be denied. A long line of cases have invalidated permit requirements to exercise First Amendment rights in which the defendants who were convicted did not apply for permits. One of the more recent cases is Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 156 (2002) (invalidating permit requirement even though “Petitioners did not apply fora permit.”).

...

even if there were some general requirement for Petitioner to submit an application in order to challenge the permit statute, that requirement would be eliminated here under the doctrine of futility. This court has made it clear in various contexts that litigants are not required to perform a futile act. See,
e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 625-26 (2001) (where limitations imposed by wetland regulations were clear, and there was no indication
that kind of use sought by landowner would have been allowed, court did not require submission of “futile applications” with other agencies);

 Eugene Volokh’s analysis of the Maryland ruling is here.

One of the issues in American Electric Power v. Connecticut is whether the state and environmentalist group plaintiffs can satisfy the requirements of Article III standing. One might have thought this issue was settled in Massachusetts v. EPA, at least with regard to the state litigants, but it was not. Although both cases concern injuries arising from global climate change, and both cases feature state litigants entitled to “special solicitude” under Mass. v. EPA, the standing requirements to challenge a federal agency action may be easier to meet than standing requirements generally.

This issue arose in the oral argument when AEP’s attorney, Sidley Austin’s Peter Keisler, was asked whether Mass v. EPA was sufficient to establish Connecticut’s standing. No, Keisler explained, because the Court in Mass was very careful to note that the standing inquiry was different, and easier to satisfy, given the statutory context of the suit, prompting a response from Justice Kagan.

MR. KEISLER: Justice Ginsburg, we believe that Massachusetts was very carefully qualified to focus on the particular regulatory context of that opinion. The Court said that it was addressing standing to challenge the denial of a petition for rulemaking, when the agency would be proceeding incrementally to address a broader problem, and a statute specifically gave the
petitioners the right to seek that kind of incremental protection. The Court was very specific about that. The statutory right was of critical importance, it said, to the standing inquiry.

JUSTICE KAGAN: Mr. Keisler, the Court did say that, but it’s cut off from the Court’s actual analysis in the case. When the Court goes through injury and causation and redressability, the Court never refers to the statutory cause of action.

MR. KEISLER: But it does, Justice Kagan, specifically refer to the regulatory context in which the case is taking place. The Court said that if the EPA’s arguments there about traceability and
redressability were adopted, it would doom most challenges to agency action because agencies proceed incrementally.

Here we have no statute, we have no agency proceeding incrementally, and we believe there is no basis for the plaintiffs to seek that kind of incremental relief when they’ve acknowledged that will
have no material effect on their injury; and they acknowledged that in the State’s complaint when they specifically said that the relief they seek here would only constitute these defendants’ share of the larger overall emissions reductions that would be necessary in order to have any material effect on climate change or the injuries that they assert. That is an acknowledgment that the relief they seek here would not provide them any redress except in connection with other reductions that would be obtained elsewhere, and that we think means that this is a classic case in which the injuries are not the product of the defendants’ conduct but of the collective independent actions of numerous third parties not before the Court.

JUSTICE KAGAN: But the Court clearly understood that in Massachusetts v. EPA and said that it was enough, and I would think under traditional standing principles the standing there was actually harder to find because one had to go through the EPA first. One had to say the EPA should regulate, and then the EPA would regulate, and then the question was would that reduce emissions levels? Here the EPA is out of the picture. The action is much more direct.

MR. KEISLER: But there, Your Honor, they were suing a defendant, the EPA, that had regulatory authority over the entire country. Here they’re suing five separate defendants, each of whom has to be evaluated individually, and there is not a single one of them against whom the relief sought would have any tangible effect on the injuries that the plaintiffs claim here. But we also think that Massachusetts is relevant in a completely different respect, which is the Court was very specific in Massachusetts about what its role was and what it wasn’t. The Court said: We lack the expertise or the authority to second-guess the policy choices of the EPA, but its role there was to compel the agency to adhere to the statute as the Court interpreted it.

In this case, the States are asking the courts to play exactly the role that this Court disclaimed in Massachusetts v. EPA, which is to make those policy choices in the first instance, and they say that the courts can do this because the courts have done this in prior nuisance cases, but this case is nothing like any of the prior nuisance cases this Court has held. It’s nothing like an instance in which one State is complaining that another State has dumped sewage into a body of water that’s crossed the border.

Justice Kagan is correct that, in Mass v. EPA “When the Court goes through injury and causation and redressability, the Court never refers to the statutory cause of action.” But it did not need to, as the Court had already established that Congressional conferral of a procedural right could “give rise to a case or controversy where none existed before.” This is because, as the Court explained in Mass v. EPA (citing Lujan v. Defenders of Wildlife) litigants seeking to vindicate a legislatively conferred procedural right could assert standing “without meeting all the normal standards for redressability and immediacy.” This was relevant in Mass v. EPA because, the Court explained, Congress had accorded states such a right in the Clean Air Act, specifically in 42 U.S.C. § 7607(b)(1).

When the Mass Court went through the various standing requirements, it had already established that the requirements for causation and redressability were relaxed for the state petitioners. Its analysis consisted of applying the more lenient standard it had just described. Although at first blush “traditional standing principles” might suggest that it is more difficult to show redressability when reducing the injury requires a regulatory agency to take action against private parties, as Kagan suggested, the Court’s cases have long made clear that Congress can reduce this hurdle by granting a procedural right, as the Court concluded it had under the Clean Air Act. Perhaps these cases are wrong, but the caselaw is clear on this point.

Keisler’s second point is also significant. Insofar as redressability is dependent upon an actual reduction in greenhouse gas emissions, the plaintiffs in Mass v. EPA had a far stronger claim than do the litigants in AEP v. Connecticut. Imposing economy emission controls will have a far greater (even if still miniscule) effect on overall emissions than court-imposed restrictions on a handful of utilities. So even if one did not believe Court needed to assert the existence of a procedural right to facilitate standing in Mass v. EPA, the case for redressability was still stronger then than now.

My argument here is not that the state plaintiffs don’t have standing (though I certainly subscribe to that view). Rather, the point of this post is the narrower point that standing in Mass. v. EPA does not establish standing here. More is required. The Court must either a) place even greater weight on its newfound “special solicitude” doctrine of state standing, b) further lower the requirements of causation and redressability, c) conclude that in a common law nuisance action the requirements of standing are subsumed into the inquiry as to whether there is a cause of action, or d) do something else to help the state plaintiffs clear the standing bar. However the Court does it, contraMass v. EPA.

UPDATE: Calvin Massey has more thoughts here.

So holds Dearth v. Holder, decided today by the D.C. Circuit:

Plaintiffs Stephen Dearth and the Second Amendment Foundation, Inc. (SAF), seeking declaratory and injunctive relief, claim that portions of 18 U.S.C. § 922 and related regulations are unconstitutional because they prevent Dearth from purchasing a firearm. The district court dismissed the suit for lack of standing. Because we conclude Dearth does have standing, we reverse the judgment of the district court and remand the case to the district court for further proceedings....

The plaintiffs challenge 18 U.S.C. §§ 922(a)(9) and (b)(3) and implementing regulations promulgated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which together make it impossible for a person who lives outside the United States lawfully to purchase a firearm in the United States. Section 922(a)(9) makes it unlawful for “any person ... who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes.” Accord 27 C.F.R. § 478.29a. Section 922(b)(3) prohibits the sale or delivery of a firearm by a licensed dealer to “any person who the licensee knows or has reasonable cause to believe does not reside in ... the State in which the licensee’s place of business is located,” except this prohibition does “not apply to the loan or rental of a firearm ... for temporary use for lawful sporting purposes.” ...

Dearth is an American citizen who resides in Canada and no longer maintains a residence in the United States. In 2006 and again in 2007 Dearth attempted to purchase a firearm in the United States. On both occasions, he “could not provide a response to Question 13” on account of his residing in Canada; therefore “the transaction was terminated.” Dearth alleges he still intends, if he may do so lawfully, to purchase firearms in the United States for the purposes of sporting and self-defense, and to store those firearms with his relatives in Ohio....

The court concluded that the government’s denial of Dearth’s past applications to buy a gun, coupled with his intent to come to the U.S. again soon, means that he has the sufficiently particularized, nonconjectural interest that entitles him to standing to challenge the law. Congratulations to Alan Gura, who won the Heller and McDonald cases, on this latest success.

The Seventh Circuit just vacated the district court decision that held that the federal statute requiring the President to declare a National Day of Prayer violates the Establishment Clause. The Circuit held that plaintiff lacked standing to challenge either the statute or the President’s proclamation. And even “[i]f this means that no one has standing, that does not change the outcome. The Supreme Court has concluded that ‘the abstract injury in nonobservance of the Constitution asserted by ... citizens’ in general is not a species of ‘injury in fact,’ even if the upshot is that no one can sue.”

I should have gotten around to this when it happened. But it’s still worth nothing that a federal district court in California dismissed a lawsuit challenging the Obama health care plan’s individual mandate on the grounds that the plaintiffs lacked standing. The case was brought by former California state legislator Steve Baldwin and the Pacific Justice Institute.

I. The Ruling and Its Likely Impact.

This decision is at odds with rulings by district courts in Virginia, Michigan, and Florida, all of which concluded that a variety of plaintiffs challenging the mandate – state governments, individuals, employers, and the National Federation of Independent Business – do indeed have standing.

Judge Dana Sabraw’s decision relies on the types of standing arguments that I discussed in this post. The key point, as Sabraw sees it, is that the mandate doesn’t go in to effect until 2014, and it is not certain that the plaintiffs won’t obtain the required health insurance before that time. Therefore, he concludes that they haven’t suffered an “injury in fact” of the kind required by the the Supreme Court’s current standing doctrine.

The plaintiffs have appealed the ruling to the Ninth Circuit Court of Appeals, and (more unusually) have tried to get the Supreme Court to hear the issue even before the Court of Appeals does. For reasons discussed by Brad Joondeph and Lyle Denniston, I think the latter gambit will almost certainly fail.

On the other hand, it is quite possible that the Ninth Circuit will reverse the District Court’s standing ruling. Until recently, liberal judges tended to take a much more permissive approach to standing than conservative ones, and the Ninth Circuit – the most liberal in the country – followed that trend. If judges of differing ideologies found that standing doctrine in the much more conservative Fourth (the Virginia case), Sixth (Michigan), and Eleventh (Florida) circuits gives the plaintiffs standing before 2014, I suspect the same result should hold true in the Ninth.

If the Ninth Circuit does uphold the district court’s standing ruling, that might ironically benefit the anti-mandate cause. As the most liberal circuit court in the country, the Ninth Circuit is the least likely to rule that the mandate is unconstitutional. A victory on standing for the plaintiffs in this case is likely to be followed by defeat on the merits. By contrast, the plaintiffs have a much better chance in the generally conservative Fourth and Eleventh circuits, or even in the closely divided Sixth.

As with most of the other major issues in the case, the standing question is likely to be eventually decided by the Supreme Court. My tentative guess is that the Court will rule that at least some of the plaintiffs do have standing. That is particularly likely in the case of the state government plaintiffs, since the Court recently adopted extremely permissive standing requirements for state plaintiffs in Massachusetts v. EPA.

II. Judge Sabraw’s Analysis of Standing.

Judge Sabraw could have rested his ruling on the ground that it’s not clear from the record whether Baldwin actually has health insurance or not, or whether the Pacific Justice Center provides health insurance to its employees that meet the standards required by the health care bill. I find it remarkable that Baldwin and the PJC didn’t make this clear in their pleadings; but I assume that Judge Sabraw is correct in saying that they didn’t. In any event, the judge concludes that they don’t have standing regardless of this: “even if [Baldwin] does not have insurance at this time, he may well satisfy the minimum coverage provision of the Act by 2014: he may take a job that offers health insurance, or qualify for Medicaid or Medicare, or he may choose to purchase health insurance before the effective date of the Act.”

In effect, Sabraw seems to suggest that the plaintiffs would only have standing if the relevant injury were certain to occur, or almost so. In support of this conclusion, he cites precedent holding that a future injury is enough to satisfy standing requirements if the plaintiff “is immediately in danger of sustaining some direct injury as the result of the challenged official conduct.” But this language says nothing about how certain the injury is, only about when it occurs and how “direct” it is. If there is going to be an injury at all, it will clearly be directly caused by the individual mandate requirement. And as the Florida decision makes clear (pp. 32-38), there is plenty of precedent supporting the notion that a forty month time frame isn’t too long. A Ninth Circuit precedent cited in the opinion says that standing is satisfied by a “threatened or actual injury.” It seems to me that a “threatened” injury need not be certain to occur. The Supreme Court has several times granted standing in cases dealing with merely probablistic injuries, such as Friends of the Earth v. Laidlaw, and Massachusetts v. EPA.

In sum, I think it’s possible that these plaintiffs really don’t have standing under current doctrine, because, according to Judge Sabraw’s opinion, they have not proved that they don’t already have the required insurance. But the judge’s reasons for denying standing go far beyond this narrow conclusion. I’m not an expert on Ninth Circuit standing doctrine by any means. So it’s possible that there is a relevant circuit court decision that I’m missing. If so, Judge Sabraw apparently missed it as well.

Finally, I should note that I am generally skeptical of the view that the Constitution imposes tight standing requirements. Supreme Court precedent has been moving in my direction in recent years, but there is still a substantial gap between my view and the Court’s. Even so, I doubt that the broad standing ruling made by the California district court will survive on appeal.

My comment on today’s decision, granting the motion to dismiss on some counts, and while allowing other counts to proceed. Like Randy’s comment, my comment is posted on the blog of the site Health Care Lawsuits, which is hosted by the Independent Women’s Forum.

The court entirely rejected the administration’s claim that the penalty for disobeying the mandate is justified under the federal tax power. As the court noted, Congress went out of its way to specify that the penalty is not a tax. Second, the court ruled that it is proper for the plaintiffs to be heard in their challenge to the mandate, which goes into effect in 2014. The court cited extensive precedent showing that when a future harm is certain, courts can act in the present to protect citizens from that harm. The court rejected the argument that the various employer mandates violate the constitutional sovereignty of states; as the court noted, the law simply treats states like other large employers, and so making states provide the same health benefits as other large employers must provide is no different from making states pay the same minimum wage as all other employers.

While federal spending programs may set conditions on grants to states, Supreme Court precedent states that the grants must not be coercive. Here, the court agreed that the states had raised a plausible legal argument which should be allowed to go forward:  the health control presents states with the unacceptable choice of massively increasing their own Medicaid spending on millions of more people, or of losing all funding for the traditional Medicaid program. Finally, the court agreed that the challenge to the individual mandate could go forward, because the mandate was “unprecedented.” Never before has Congress attempted to use its power of regulating interstate commerce to force people to buy a particular product. Because there is no judicial precedent in support of such a mandate, the plaintiffs had raised a plausible constitutional challenge which should be allowed to go forward.

The court’s ruling is not a final decision on the constitutional merits, but it is a solid, meticulously researched, and carefully-reasoned decision declaring that the opponents of the health control law have raised legitimate constitutional objections.

Granted this morning, Bond v. United States. Question presented: “Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment.” The circuits are split, and defendant was convicted in the 3d Circuit, which sua sponte used standing as the reason to refuse to consider her the defendant’s constitutional argument.

The underlying issue is whether, pursuant to the Chemical Weapons Convention, ratified by the Senate in 1997, Congress can criminalize any non-peacefu use of a toxic substance. Defendant argues that her particular use (to try to injure her husband’s mistress) was not within the reach of any enumerated congressional power.

Former Solicitor General Paul Clement filed the successful petition for a writ of certiorari.

A key issue in the case is this line from Tennessee Electric Power Corp. v. TVA (1939): that legal persons, “absent the states or their officers, have no standing in this suit to raise any question under the amendment.” Some lower courts have treated this as dicta but others have not. Whether or not it’s dicta, the Supreme Court can repudiate or narrow it, and in my view, the Court should. If an individual is going to spend six years in federal prison, that individual should certainly be considered to have standing to challenge the constitutionality of the law under which she is being imprisoned.

In my last post, I explained why conservatives and liberals may be changing their traditional positions on standing. In this one, I briefly explain my view that “constitutional” standing requirements are both a bad idea and not required by the Constitution. Right from the start, I should emphasize that my argument only applies against claims that the Constitution imposes strict standing requirements on litigants who want to file a lawsuit arguing that some government action is unconstitutional. I don’t deny that Congress has the power to impose standing requirements for litigants who want to file suits under a federal statute; Congress can even enact statutes under which no private individuals have any right to sue at all.

I. Text and Original Meaning.

Let’s start with the text of the Constitution. The provision of the Constitution usually cited as the source of standing requirements is Article III’s grant of federal judicial power, which gives federal courts jurisdiction over “all cases... arising under this Constitution and the laws of the United States.” It’s hard to see how this justifies the modern standing requirement that litigants must have suffered a past or imminent material injury caused by the statute they claim is unconstitutional. Nothing about the word “case” suggests that it is limited only to claims involving narrowly defined injuries. Even if you can’t have a “case” without such an injury, you can certainly have a “controversy” without it. And Article III also gives federal courts jurisdiction over “all controversies to which the United States shall be a party,” controversies between a state and citizens of another state, and controversies between citizens of different states. At the very least, therefore, restrictive standing requirements should not be applied to challenges to the constitutionality of federal laws.

Perhaps “case” and “controversy” were eighteenth century terms of art that required a narrowly defined harm as a prerequisite for standing. But the historical evidence doesn’t support any such claim. To the contrary, standing requirements in the early Republic and the 19th century were extremely loose (see pp. 13-15 here for a helpful summary).

Perhaps “case” and “controversy” do require a litigant to prove that he has suffered some kind of harm that can be redressed by a judicial ruling. But even if so, the harm that all citizens suffer when public resources are expended for unconstitutional purposes should be sufficient. For any given individual, that harm may be small. But the same can be said for extremely small direct monetary losses that are enough to justify standing even under the most restrictive interpretations of modern standing doctrine; for example, the imposition of a $1 fine is universally considered sufficient.

II. Pragmatic Considerations.

The main pragmatic argument for modern standing restrictions is that they are supposedly needed to prevent the courts from being drowned in a flood of frivolous lawsuits. But judges have many other tools for disposing of frivolous cases. For example, they can be swiftly dismissed for “failure to state a claim upon which relief can be granted” under Rule 12(b)(6) of the Federal Rules of Civil Procedure. As a practical matter, dismissing a frivolous case under Rule 12(b)(6) is not significantly more difficult and time-consuming than dismissing it for lack of standing. Defendants routinely brief both issues anyway. In extreme cases, attorneys who bring frivolous suits can be sanctioned under Rule 11.

Moreover, if allowing lawsuits for nonmaterial harms will lead to a flood of frivolous litigation, it’s hard to see why we haven’t seen a similar flood as a result of the fact that current standing doctrine allows lawsuits for very small financial harms, such as the loss of even a single dollar. The answer, of course, is that few litigants are willing to pay the cost of filing suits that are doomed to near-certain failure.

The real purpose of “standing” doctrine is not to keep out frivolous cases, but to make it more difficult to bring meritorious ones, and thereby insulate potentially unconstitutional practices from legal challenge. This is the agenda underlying claims that standing doctrine is needed to prevent plaintiffs from bringing cases based on “generalized” grievances that affect a large number of people. But the fact that an unconstitutional law harms many people (even in a diffuse way) makes it all the more urgent that courts be able to strike it down.

A different practical concern is that important constitutional precedents should not be set by plaintiffs who don’t have a stake in the outcome great enough to incentivize them to litigate the issue effectively. But modern standing doctrine does a poor job of sifting out “low-quality” litigants. Many of the most important cases in our constitutional history were brought by organizations whose main motives were moral or ideological. Even if they were able to find clients who met the requirements of standing doctrine, the injuries suffered by those individuals were not the main reason for bringing the case. The civil rights cases litigated by the NAACP are the best-known example. In some instances, such as the important civil rights and property rights case of Buchanan v. Warley, the claimed injury was essentially manufactured for the purpose of bringing the suit. It makes little sense to exclude litigants with strong ideological or moral commitments, but permit those with small financial stakes. The former class are, on average, probably more motivated and capable than the latter. If low-quality litigants are a problem, standing doctrine is a bad solution.

Given the extensive accumulation of precedent, it may be unrealistic or imprudent to simply junk standing doctrine immediately. But courts can certainly move in the direction of gradually loosening its requirements. In recent years, the Supreme Court and many lower courts have already begun to do that, in cases such as Massachusetts v. EPA, and now the Virginia challenge to the health care mandate.