By Eric Segall
On Friday, I’m heading to Loyola of Chicago’s excellent annual Constitutional Law Colloquium. I’m looking forward to hearing Professor Pamela Karlan give the keynote speech, Professor Richard Fallon talk about his new book on constitutional interpretation, and attending a bevy of interesting panels. I’ll be talking about justiciability in general, focusing mostly on standing. The current state of the doctrine is incoherent by any standard, and I’m not aware of any academic commentator who thinks the Court’s case law on the subject truly distinguishes proper from improper exercises of judicial authority.
The incoherence of standing doctrine is due to several factors. The Court’s insistence that Article III of the United States Constitution requires every plaintiff in every federal court case to suffer “imminent” and “concrete” personal injury separate from her legal claims is unworkable and leads to conflicting decisions where the Justices notoriously treat similarly situated plaintiffs differently. Additionally, the Court’s insistence on requiring plaintiffs to show as a preliminary jurisdictional matter that their injuries were caused by the defendant makes no sense in most cases because whether the defendant is responsible for the plaintiffs' injuries is by definition a factual question implicating the merits of the case. Finally, the Court steadfastly denies what everyone else knows to be true, which is that in many if not most standing, ripeness, and mootness decisions, the Court is mostly just peeking, or more accurately, staring, at the underlying claims rather than implementing honest jurisdictional analysis.
In Chicago, I'm going to argue that neither the the text nor history of Article III supports the personal injury requirement, that as a constitutional matter the judicial power of the United States may be exercised by federal courts whenever there are two adverse parties arguing over a government practice that is in effect or in some circumstances soon to be in effect, but that the courts may nonetheless refuse to hear constitutional cases based on either their traditional discretion to refuse to exercise equity jurisdiction or a judgment that the political system as a whole would be better off by the court staying out of the dispute. In such cases, judges should explain transparently why they are not resolving the controversy rather than hiding behind an incoherent standing doctrine, to which I'll now turn.
Long ago, then-Professor-now-Judge William Fletcher explained fully why the personal injury requirement makes no sense as a matter of law and fact. Whether or not a plaintiff should be allowed to bring a federal court lawsuit should depend on whether the federal statute or constitutional provision she claims is violated gives her a cause of action, which is of course a merits question. Requiring the plaintiff to establish an objectively identifiable harm separate from the alleged right she has asserted ignores the basis of the plaintiff's legal claims and adds nothing to meaningful jurisdictional analysis. This general critique is well-accepted by commentators and has been borne out by numerous doctrinal deficiencies and inconsistencies.
One issue that has vexed and divided the Court is when, if ever, plaintiffs have standing to challenge federal laws based only on their general view that the government is violating the Constitution. The Court has said that such plaintiffs do not suffer any concrete personal injury sufficient to satisfy the requirements of standing. This rule means that constitutional provisions which protect the citizenry generally but which usually do not cause anyone unique injury will be judicially unenforceable. Some examples include the Court's refusal to grant standing to plaintiffs alleging the government violated its constitutional requirement to disclose its financial expenditures and plaintiffs seeking to enforce the prohibition on members of Congress serving in the Executive Branch.
Many commentators have criticized this rule on the grounds that, as a matter of standing, as opposed to other doctrines such as the political question doctrine, no constitutional provision should be rendered unenforceable by the Court based on a mistaken and judicially created personal injury requirement. As Professor Richard Re has observed, "for every violation of law, there is always someone with standing to obtain relief." As Professor Robert Pushaw, Jr., has argued, constitutional provisions designed to protect the public generally should be enforceable by ...well the general public (assuming true adverse parties of course).
In 1968, in Flast v. Cohen, the Court held, contrary to the normal rules, that federal taxpayers could challenge a federal program assisting private religious schools based on their allegation that the program violated the Constitution's Establishment Clause. They alleged no injury other than their belief that the law violated the Constitution. The Court articulated the infamous Flast nexus test allowing taxpayers to assert such constitutional challenges if they allege that a federal law passed by Congress under its taxing and spending power violates a "specific limitation" on that power. The Flast plaintiffs met both prongs of that test and thus were allowed standing by the Court.
Later decisions demonstrated that taxpayer standing would be limited by the Court to Establishment Clause cases only. But the Establishment Clause is no more a "specific" limitation on the government than other constitutional provisions, such as the requirement that the United States disclose its expenditures. To make matters much worse, the Court has also said that under the Flast test, taxpayers can only challenge direct congressional expenditures and not money spent by the Executive Branch, even though the injury suffered by someone complaining of illegal establishments by the President has exactly the same personal injury as someone arguing that Congress has violated the Establishment Clause.
Judge Frank Easterbrook of the Seventh Circuit, lamenting this sorry state of affairs, voted to deny en banc consideration of a case that directly raised the application of the Flast test to President George W. Bush's creation of the White House Office of Faith-Based and Community Initiatives because the "problem is not of our creation and cannot be resolved locally.
There is no logical way to determine the extent of
an arbitrary rule. Only the rule’s proprietors can bring
harmony—whether by extension or contraction—or decide
to tolerate the existing state of affairs."
The Supreme Court heard the case and not only tolerated but explicitly reaffirmed this "arbitrary [standing] rule" treating plaintiffs who challenge congressional expenditures differently from plaintiffs alleging unlawful executive action. Although he concurred in the result, Justice Scalia harshly criticized the Flast test for creating "utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently." Yet, the Flast test somehow remains the law of the land.
The Court's personal, imminent, and concrete injury requirements have also made a shambles of Congress's efforts to protect the privacy of all Americans. In Spokeo v. Robbins, the Court reversed a lower court decision holding that the mere fact of unlawful mistaken disclosure under federal law by the defendant of the plaintiff's personal information was enough to satisfy standing requirements even if that disclosure didn't cause specific harm. The Court didn't resolve the issue, however, and now lower courts are in disarray over the question, with circuit splits and district courts all over the place. This chaos is completely unnecessary.
In all of these wrongful disclosure cases, there are plaintiffs alleging defendants violated federal law by releasing information illegally. There are two adverse parties arguing over real issues under lawfully enacted federal statutes granting federal rights. There is nothing in the text or history of Article III suggesting such a case is outside the constitutional power of the federal courts. If the Court for some reason believes such cases shouldn't be heard, the Justices should develop prudential doctrines to address their concerns directly, not invent arbitrary and artificial constitutional limits.
Finally, the Court's decisions concerning the circumstances under which legislative bodies, or members of legislative bodies, may bring constitutional cases are truly tortuous for lower court judges to understand and apply. This question is especially important given the challenge by some members of Congress to President Trump's financial dealings under the Constitution's Emolument's Clauses. The Court has allowed individual state legislators to sue their own bodies when their votes have been "completely nullified," whatever that means, or when one or both Houses of a bicameral legislature has authorized a lawsuit on behalf of the entire body, but has disallowed most other challenges. But in none of these cases is the Court's personal injury requirement really doing the work, despite the Court's insistence on that doctrine.
There may well be strong political reasons for the Court to refuse to hear cases brought by legislators challenging the decisions of their own institutions or other parts of government, but we'd all be much better off if the Court transparently wrestled with those hard questions rather than pretending that it can distinguish between and among cases where the personal injuries alleged by the plaintiff legislators are much more similar than different.
In future posts, I will defend my thesis that the Court should discard or at least de-constitutionalize its made up personal injury requirement, which has made a shambles of the standing doctrine. If there are two adverse parties arguing over the legality of real government decisions, there is nothing in Article III that should demand any more as a matter of federal jurisdiction.