Ex nihilo - the Supreme Court's invention of constitutional standing.

• Author: Terris, Bruce J.

1. Introduction II. The Language of the Constitution III. The Power of Congress to Determine Federal Court Jurisdiction IV. The History of the Constitution V. The History of Anglo-American Law VI. Separation of Powers VII. The Invention of Standing Doctrine VIII. Purpose of Standing IX. Public Policy X. Conclusion I. INTRODUCTION

   Few principles of constitutional law seem as solidly established as standing. Dozens of decisions on standing have been issued by the Supreme Court in the last ninety years. (1) While it is not difficult to demonstrate substantial inconsistencies in the Court's decisions, the basic doctrine of constitutional standing is unchallenged, even by dissenting opinions. (2) According to the Supreme Court, the doctrine is firmly grounded in the language of the Constitution, the history of Anglo-American law, and sound public policy. (3) As a result, the Court has emphatically held that "[n]either the Administrative Procedure Act, nor any other congressional enactment, can lower the threshold requirements of standing under Art. III." (4)

   A good summary of the current law of standing was set forth by the Supreme Court in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (Laidlaw), a citizen enforcement action brought under the Clean Water Act. (5) There, in finding that the citizen plaintiffs had standing, the Court stated:

   [T]o satisfy Article Ill's standing requirements, a plaintiff must show (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. (6) The Court has severely restricted the kind of interest that will be recognized by requiring that it be "distinct and palpable," (7) "actual or imminent," (8) "personal and individual," (9) and not "abstract," (10) "conjectural or hypothetical," (11) "speculative," (12) or "generalized." (13) This Article will focus on the first requirement set forth in Laidlaw--whether plaintiffs must have suffered injury-in-fact. (14)

2. THE LANGUAGE OF THE CONSTITUTION

   The "[f]ederal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." (15) Citing Article III, Section 2, the Supreme Court has repeatedly stated that "Article III of the Constitution limits the 'judicial power' of the United States to the resolution of 'cases' and 'controversies.'" (16) * As the Court said in Whitmore v. Arkansas, (17) "the requirement of an Art. III 'case or controversy' ... is imposed directly by the Constitution." (18)

   The portion of Section 2 relating to standing provides:

   The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party-to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof;--and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (19) Thus, the Constitution provides that the judicial power is divided into several categories, such as "all cases affecting Ambassadors, other public Ministers and Consuls" and "admiralty and maritime Jurisdiction." The Constitution never provides jurisdiction to the federal courts for "cases or controversies" as to any one of these categories of cases. It provides for jurisdiction based on either "cases" or "controversies."

   By far the broadest category of federal court jurisdiction and the one as to which most of the standing cases relate is the following: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority....," (20) These words are the sole basis for the standing doctrine in the language of the Constitution. Thus, to the extent that standing depends on the language of the Constitution, the issue is whether the litigation is a "case." (21)

   The word "case" provides little, if any, assistance in determining whether the courts have jurisdiction over particular litigation. Today, the word "case" is defined as "a suit or action in law or equity." (22) This definition covers all litigation, whether or not the plaintiffs have standing under Supreme Court case law. Thus, the opinion in Lujan v. Defendeis of Wildlife (Lujan), (23) in which the Supreme Court held that the plaintiffs had no standing to bring the case in federal courts because of their total lack of injury-in-fact, begins with "This case." (24)

   The definition of "cases" in 1789 is of course of more importance in establishing what the word means as embodied in the Constitution. Dictionaries published around 1789 often defined "case" by defining its synonym, "action," as "a legal demand of one's rights" that "implies a recovery of, or restitution to something;" (25) "[t]he form of a suit given by law for recovery of that which is one's due; a legal demand of a man's right.... Actions are either criminal or civil'; (26) and as a

   universal remedy given for all personal wrongs and injuries with force.... [W]here there is no act done, but only a culpable omission, or where the act is not immediately injurious, but only by consequence and collaterally ... an action on the special case [lies], for damages consequent on such omission or act. (27) In 1829, in an opinion by Chief Justice Marshall, the Supreme Court expansively interpreted the word "case" in the Judiciary Act of 1789: (28)

   The term is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice, which the law affords him. The modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit. (29) Thus, Chief Justice Marshall defined "case" much as it would be defined today, as any matter in a court. (30)

   These definitions roughly contemporaneous with the adoption of the Constitution are sufficiently ambiguous that they might have supported an argument that federal courts, have no jurisdiction unless the plaintiff was personally aggrieved. However, while in formulating its standing doctrine, the Supreme Court has often cited Article III, Section 2 and stated that the case before it was or was not a "case or controversy," it has never discussed these definitions. (31) Indeed, it has never explained how this phrase supports the standing doctrine it was applying to the facts before it.

   For example, in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. (Valley Forge), (32) the Court stated that "the 'cases and controversies' language of Art. III forecloses the conversion of courts of the United States into judicial versions of college debating forums," but gave no explanation as to how the language had this meaning. (33) In Allen v. Wright, (34) after citing the "case or controversy" requirement of Article III, the Court stated that "[t]he requirement of standing ... has a core component derived directly from the Constitution," namely injury. (35) The Court then referred to separation of powers, not the wording of Article III, as supporting this conclusion. (36) The Court's failure to explain the connection of standing doctrine to the words of the Constitution strongly suggests that the Court does not believe that these words provide significant support.

   Indeed, the Court itself has implied that the words "case" or "controversy" do not mark the dividing line between cases within the jurisdiction of the federal courts and those without. In Steel Co. v. Citizens for a Better Environment, (37) the Court stated: "Every criminal investigation conducted by the Executive is a 'case,' and every policy issue resolved by congressional legislation involves a 'controversy.' These are not, however, the sort of cases and controversies that Article III, [section] 2, refers to." (38)

   Justice Scalia, the foremost proponent of standing restrictions on the present Court, has essentially admitted that standing cannot be based on the language of Article III. Dissenting in Honig v. Doe, (39) he stated that the lack of citations to Article III in the early standing cases was because "the courts simply chose to refer directly to the traditional, fundamental limitations upon the powers of common-law courts, rather than referring to Art. III which in turn adopts those limitations through terms ('The judicial Power'; 'Cases'; 'Controversies') that have virtually no meaning except by reference to that tradition." (40) He then referred to "[t]he ultimate circularity, coming back in the end to tradition...," (41) Later, in Lujan, now speaking for a majority of the Court, Justice Scalia opined that:

   While the Constitution of the United States divides all power conferred upon the Federal Government into "legislative Powers," Art. I, [section] 1, "[t]he executive Power,"...