Civil servant suits.

• Author: Hemmer, Alex

NOTE CONTENTS INTRODUCTION I. STANDING AND THE SEPARATION OF POWERS A. A Brief History of Standing B. Citizen Suits and the Separation of Powers C. Civil Servant Suits II. CIVIL SERVANT STANDING A. Constitutional Standing 1. Injury in Fact 2. Causation B. "Generalized Grievances" III. THE RIGHT TO RESIST IV. CIVIL SERVANTS AND THE SEPARATION OF POWERS A. The Rule of Law B. "Garden-Variety Employment Disputes" C. The Political Alternatives CONCLUSION INTRODUCTION

Debates raged in the 1980s and 1990s over whether the federal courts could hear citizen suits: lawsuits brought by members of the public to challenge the legality of official action. (1) Citizen suits, argued their proponents, were needed in order to ensure that the executive branch complied with congressional or constitutional commands; without the checks imposed by these private attorneys general, the executive could under-enforce statutory or constitutional rights for ideological reasons. But in a series of controversial decisions, the Supreme Court largely turned this effort back. Citizen suits, explained the Court, present only "generalized grievances about the conduct of government," (2) not the kinds of "Cases" and "Controversies" that the federal courts are permitted to hear. The resulting doctrine--then and now--precludes many disputes about the legality of official action from being heard by the federal courts.

But there is one set of plaintiffs who can disrupt this state of affairs, or so this Note will suggest: the civil servants who are charged with enforcing the statute, regulation, or command subject to challenge. Consider the following examples:

* A state passes a new statute restricting the rights of gun owners. A group of elected sheriffs sues on the ground that the sheriffs "cannot enforce a statute that violates the fundamental constitutional rights" of their constituents. (3)

* The Chair of the U.S. Equal Employment Opportunity Commission (EEOC) instructs her employees to begin investigating and prosecuting claims of discrimination based on sexual orientation. An EEOC investigator sues on the ground that Title VII does not permit such claims and that he cannot enforce an ultra vires command. (4)

* The President of the United States announces that he will refrain from enforcing the immigration laws against certain undocumented immigrants brought to the United States as children. Ten Immigration and Customs Enforcement (ICE) agents sue on the ground that they are required by law to deport such immigrants, commanded by their superiors not to, and "risk adverse employment action if they disobey." (5)

These suits are predicated on a common theory: when a legislature passes an unconstitutional statute or the executive unlawfully declines to enforce a valid one, the executive-branch employee who must enforce the statute or implement the command may suffer a legally cognizable injury, even if no one else does. Such a civil servant--or so the argument goes--does not possess the kind of "generalized grievance" the federal courts have no power to hear, for a single reason: he or she may be fired, disciplined, or otherwise penalized for disobeying. This theory is not merely an academic one--civil servants have brought suit in exactly the situations described above, and others--but it has received virtually no academic attention, (6) and courts appear adrift in their consideration of such claims.

This Note remedies that gap by introducing, describing, and critically examining the theory behind what I call civil servant suits. It proceeds in four Parts. Part I introduces the problem, describing the separation-of-powers disputes that are the subject of these lawsuits; it traces the history of citizen suits and their rejection by the Court; and it introduces the civil servant suit by describing Crane v. Napolitano, the lawsuit brought by ICE agents to challenge President Obama's policy permitting certain undocumented immigrants to remain in the United States. (7)

The key question for the federal courts and their academic interlocutors is whether civil servant suits should be permitted, and this Note offers both doctrinal and normative answers to that question. Part II examines the question from a doctrinal perspective: do civil servants have standing to challenge the statutes, regulations, and commands that they are charged with enforcing as unlawful? I argue that the Court's standing doctrine alone cannot furnish an answer. Echoing the doctrine's critics, I contend that we cannot determine whether civil servants have standing without a better understanding of the rights and duties of civil servants and their role in our system of separation of powers. Do civil servants have the right to resist orders they believe to be unlawful? Could our system even tolerate the expansion of judicial review that would result?

I consider these questions in Parts III and IV. Part III examines the statutory regime that sets out the rights and responsibilities of federal employees, including the right--set out in statutes and the common law, but rarely exercised and little understood--to resist unlawful orders. Part IV draws out the implications of a robust understanding of the right to resist. The consequences of allowing cases like Crane to proceed would be significant: doing so could subject every executive order--at least every executive order that requires the participation of civil servants--to judicial review. Many will reject this prospect as dangerous, but I suggest instead that the dangers are overstated; indeed, civil servant suits may represent one tool for ensuring executive compliance with the rule of law. I conclude by evaluating the efficacy of civil servant suits as a mechanism for legal compliance and for securing dissent, and by comparing them to other--less radical--alternatives.

Two clarifying remarks are in order. First, this Note focuses primarily on one form of civil servant suit: the suit brought to challenge executive action, and particularly the legality of executive-branch enforcement policies. This is not because challenges to executive action are the only form of civil servant suit; the lawsuit brought last year by Colorado sheriffs to invalidate the state's restrictive gun control statutes is an example of civil servants' assertion of standing to challenge statutory commands, not executive demurrals. (8) But the standing issues that civil servant suits appear to ameliorate are most acute in the context of challenges to executive action. When the legislature passes a statute, it will often be the case (as it was in Cooke, the case challenging the Colorado gun regulation (9)) that a wide variety of regulated parties have standing to challenge its validity. When the executive interprets, delays, or declines to enforce a statute, no one will (10)--except, perhaps, the civil servant.

Second, the central claim of the Note is not that the federal courts are awash with suits like Crane. Indeed, the unorthodox nature of the immigration agents' standing argument in that case is presumably what made the question so difficult for the court to resolve. But even if claims like Crane's are rare, they are worth taking seriously. For one, if federal courts find that civil servants have standing--as the court did in Crane--then presumably the courts will face increasingly common attempts to use civil servant suits to avoid the strictures of standing doctrine. (11) More importantly, such suits squarely present the question of how we are to understand the right of individual employees to exercise resistance and dissent within the federal bureaucracy, and whether and when we consider such resistance valuable. As I suggest below, even if we conclude that civil servant suits are not a useful way of expressing dissent, it may be worth paying more attention to how we allow civil servants' voices to be expressed.

1. STANDING AND THE SEPARATION OF POWERS

   It is by now well established that many disputes between the executive and legislative branches will never be reviewed by a court. This is for a simple reason: there is no plaintiff who is injured by many claims of executive authority. But this understanding was not always the law. Part I.A provides a brief sketch of the history of standing doctrine and the restrictions imposed, over time, on the citizen suit. Part I.B sets out the key premise behind civil servant standing: that standing doctrine prevents many separation-of-powers disputes from being heard by the courts. Part I.C introduces the question of whether civil servant suits are permitted and examines Crane v. Napolitano, the paradigmatic civil servant suit.

   1. A Brief History of Standing

      The standing inquiry stems from the premise that "Article III of the Constitution confines the federal courts to adjudicating actual 'cases' and 'controversies.'" (12) The Supreme Court has explained that Article III therefore limits "the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." (13) Despite the seeming simplicity of the premise, however, it has generated considerable confusion in practice. In an often-quoted phrase, Justice Douglas once remarked that "[generalizations about standing to sue are largely worthless as such." (14) Standing doctrine, as one prominent account skeptically notes, "has been described as 'permeated with sophistry,' as 'a word game played by secret rules,' and ... as a largely meaningless 'litany' recited before 'the Court ... chooses up sides and decides the case.'" (15)

      The doctrine of standing, in other words, is a contingent one, and a judicially constructed one at that. Indeed, until the mid-twentieth century, as an array of commentators have observed, there was no standing doctrine at all. (16) Instead, the question was whether a potential litigant had a cause of action: a right granted either by the...