Justiciability – Part III (Special Problems in Standing) Jan. 27, 2006

1. Justiciability – Part III (Special Problems in Standing) Jan. 27, 2006

2. Standing Elements • Discrete and Palpable Injury • Caused by Defendant's (alleged) Action • Remediable by Court • Plaintiff's personal rights at stake Con Law I - Manheim

3. 1. Injury in Fact • General Rule: • Plaintiff must allege a discrete & palpable injury • differentiated, unique • no generalized grievances • class actions ok • legally cognizable • breach of Hohfeldian rights • personal & proprietary interests (positive or common law) • contrast: public rights & ideological interests (Sierra Club) • Non de-minimus (rules out taxpayer standing) • Injury must be existent or imminent • speculative future injuries not included Con Law I - Manheim

4. Taxpayer Standing • General Rule: • Taxpayer injury (higher taxes) is both • de minimus, and • not “caused” by illegal expenditures • Flast v. Cohen (1968) • Exception for “establishment clause” claims • Clause intended specifically to preclude religious tax • Dual nexus test • between injury and defendant’s action (causation) • between injury and constitutional claim • this 2nd element never followed; Flast limited to its facts Con Law I - Manheim

5. 2. Causation • General Rule: • D’s illegal action is legal cause of P’s injury • “But for” test (need not be “proximate” cause) • Linda R.S. v. Richard D. (1973) • Was state’s failure to enforce child support decree the reason father stopped paying? • If he wouldn’t pay despite enforcement (e.g., jail), then lack of enforcement is not a “but for” cause • See also Simon v. EKWRO; Allen v. Wright • Note: relation between causation and remedy elements of standing • Similar relation between injury & causation Con Law I - Manheim

6. Duke Power v. CESG (1978) • Facts: • Neighbors of nuclear power plant challenge Price-Anderson Act, which limits liability ($640M) • Claim: limits violate due process • Injury: • Inadequate compensation for nuclear accident • Speculative, future injury • Depressed property values near power plant • Current injury • Causation • Federal Act causes this specific injury Con Law I - Manheim

7. 3. Redressability • Court must be able to fashion a remedy that will alleviate plaintiff’s injury • Often the flip side of causation inquiry • Sometimes due to nature of requested relief • Example: Linda R.S. v. Richard D. (1973) • Jailing father for non-support doesn't get mother more $$ • Example: Warth v. Seldin (1975) • Invalidating exclusionary housing ord. does not necessarily result in more affordable housing • Inability to alleviate the injury is tanta-mount to rendering an "advisory opinion" Con Law I - Manheim

8. Standing Elements • Discrete and Palpable Injury • Caused by Defendant • Remediable by Court • Plaintiff's personal rights at stake Irreducible minimums of Article III Con Law I - Manheim

9. 4. Personal Rights • Jus Tertii Standing • Ordinarily, plaintiff must allege the violation of a right that is personal to her • More vigorous proponent of right – better advocate • "Prudential" element • To avoid needless friction with other branches • If right holder not sufficiently interested, why decide? • Court can craft exceptions • For countervailing policy reasons • Not so with Art. III restrictions Con Law I - Manheim

10. Jus Tertii standing • General rule: • Must assert own rights, not those of 3rd parties • This is a prudential rule of self-restraint • Designed to avoid needless friction w/ other branches • Rights holder is generally best advocate • Why adjudicate the issue if absent from proceeding? • Exceptions: • Right holder not available to vindicate right • Special relationship between P and right holder • Overriding policy desire to vindicate right Con Law I - Manheim

11. Craig v. Boren (1976) Curtis Craig (on right) and his lawyers Con Law I - Manheim

12. Craig v. Boren (1976) • General rule: • Each P must establish standing (on each claim) • Craig: mooted (NB he sought prospective relief) • Whitener: Meets first 3 standing elements; not 4th • Exceptions: • Special relationship • Doctor-patient; parent-child; bartender-patron? • Rights holders not readily available • Chilling effect of laws burdening 1st amd rights • Waiver? Con Law I - Manheim

13. Citizen Standing • General rule: • No “citizen” standing (generalized grievance) • Assuring Exec. Branch compliance with law • Congress has few oversight mechanisms • Exec. Branch violations that do not readily create discrete and palpable injury • Actions occurring overseas • Pres. Reagan’s violation of Bolton Act • Pres. Bush’s policies re. war on terrorism • Actions with broad-based impact • Private attorney general theory Con Law I - Manheim

14. Congress’ control over standing • Injury-in-fact (element #1) • Hohfeldian rights (including statutory rights) • Congress may create rights in large groups of people • E.g., FEC v. Akins (1998) (any aggrieved voter could sue to enforce FECA - standing upheld) • Statute is not dispositive; S.Ct. retains ultimate authority to determine if this is a cognizable injury • Personal rights (element #4) • Where injury-in-fact arises from breach of statutory right, congress fixes “zone of interest” • Statute is dispositive • Compare “zone of interest” for constitutional rights Con Law I - Manheim

15. v. Secretary of the Interior, Manuel Lujan Con Law I - Manheim

16. Lujan v. Defenders of Wildlife(1992) • 1. Injury in Fact: • AID-funded projects threaten habitat of endan-gered species (crocodile, elephant & leopard) • Do endangered animals have standing? • Do humans if they study/recreate with endangered species? [vocational or professional injury] Con Law I - Manheim

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19. “Teldeniya, a village once renowned for producing cotton, tobacco, coconuts and vegetables, now lies buried under several hundred tons of water of the [Mahaweli] reservoir.” Con Law I - Manheim

20. Lujan v. Defenders of Wildlife(1992) • 1. Injury in Fact: • Is the injury discrete & palpable to plaintiff? • Specific or conjectural? • Some certainty required – injury must be “imminent” • Undifferentiated “some day” intent insufficient • How proximate must the injury be? • Scalia: “Person claiming injury from environmental damage must use the [specific] area affected by the challenged action” • rejects ecosystem and animal nexii • How much proof req’d at summary judgment? • See Blackmun/O’Connor dissent Con Law I - Manheim

21. Lujan v. Defenders of Wildlife(1992) • 2. Causation: • Did (or will) Secretary of Interior, by failing to require AID to consult on dam building project, cause plaintiff’s object of study to disappear? • Does lack of consultation inevitably mean funding of projects? • NB: the right asserted (consultation) is a procedural one, not a substantive one • What if congress actually prohibited projects causing env. damage? Con Law I - Manheim

22. Lujan v. Defenders of Wildlife(1992) • 3. Redressability: • Pl’s don’t seek to bar project, or funding, but to require promulgation of rules requiring consultation • Would the regulations be binding on “Action Agencies” (project sponsors)? • Even if they were, is that enough to interrupt project? • Is this a matter for the jury? Con Law I - Manheim

23. Lujan v. Defenders of Wildlife(1992) • Procedural vs. Substantive Rights • No injury to substantive right (observe animals) • But clear injury to procedural right – gov’t must follow the law • Citizen-suit provision in Endangered Species Act • Is this an “injury in fact”? • 4. Personal Rights: • General rule: plaintiffs can only sue to protect their own rights, not those of 3rd parties. • Example: police conduct warrantless search of my neighbor’s house and find contraband belonging to me • Examine right to see if pl. is within the “zone of interest” Con Law I - Manheim

24. Lujan v. Defenders of Wildlife(1992) • Can Congress create personal rights that satisfy Art. III injury injury requirement? • Violating substantive statutory right = injury-in-fact • Same for non-instrumental (procedural) rights? • Congress can decide whether plaintiff is within zone of interest of statutory right (jus tertii issue), but • Cannot decide whether that satisfies “injury in fact” requirement Con Law I - Manheim

25. Lujan v. Defenders of Wildlife(1992) • Non-instrumental (procedural) rights • Most procedural rights are designed to protect substantive rights • E.g., hearings on gov’t benefits • Some procedural rights are designed to promote “good government” processes • E.g., Env’l Impact Statements (“non-instrumental” rights) • These rights are “cheap to confer;” conferred on everyone • Right to information is instrumental. FEC v. Atkins • The violation of a non-instrumental right does not create a “cognizable injury” • Is this an outgrowth of SoP? • Which branch loses? Which branch gains? Con Law I - Manheim

26. Standing and Article III • How can Congress fix lack of standing to enforce procedural rights? • Create more substantive rights • I.e., impose substantive restrictions on Executive • Does this solution promote SoP? Con Law I - Manheim

27. Legislative Standing • General rule: • C-members must satisfy all standing elements • Vigorously enforced; entails Ct. in inter-branch spat • Should Ct. be more/less willing to intervene in SoP struggles? • Injury in fact • Personal (unique to P) • See Powell v. McCormack (1969) (Rep. Powell had standing to challenge his exclusion from the House) • Official (common to all members) • But unique to P’s representational status • Usually when President violates SoP by usurping or interfering with congressional power See Souter concurrence Con Law I - Manheim

28. Raines v. Byrd (1997) • Claim: • Line Item Veto Act violates “presentment clause” (SoP) • Injury: • Institutional injury - loss of congress’ power • See Goldwater v. Carter (Pres. Carter’s refusal to submit cancellation of treaty to Senate) • Difference between negation of legislators’ vote (not getting to vote) and dilution (lesser effect) of vote • Byrd not complaining that he won’t get to vote on appropriations but that vote won’t be given full effect • Should that make any difference, as Rehnquist says? Con Law I - Manheim

29. Raines v. Byrd (1997) • Injury: • Byrd’s injury is common to all reps, yet they haven’t joined the lawsuit • Looks like these Ps are challenging the acts of fellow congress members, not the president. • Perhaps, where a rep’s injury is undifferentiated, the Court should stay out unless a majority agree Con Law I - Manheim