Congress, separation of powers, and standing.

• Author: Solimine, Michael E.
• Position: Law Review Symposium 2009

ABSTRACT

Plaintiffs must satisfy certain standing requirements before they may bring a civil action in federal court. Typically a plaintiff must have been injured in particular way, the injury must have been caused by the defendant's conduct, and it must be capable of being redressed by the relief granted by the court. This Article, a contribution to a symposium on "Access to the Courts in the Roberts Era," revisits these requirements in light of (1) several cases decided in the early years of the Roberts Court, (2) the new members of the Court, and (3) the considerable and continuing scholarly debate over the role of Congress in statutorily providing, for standing. Part H of the Article briefly sets out the standing requirements. Part III addresses the views on standing of the most recent additions to the Court, Chief Justice John Roberts and Associate Justice Samuel Alito, before they joined the Court. Part IV addresses, in three sections, the standing decisions of the initial Terms of the Roberts Court. The first section of that part discusses and dismisses the utility of a purely originalist approach to determining standing. The second section discusses recent cases that have addressed the limitations separation of powers concerns place on standing sought by taxpayers, or by states as plaintiffs. The third section considers from various perspectives Congress's role in providing for standing by statute, and the appropriate response of federal courts in applying those statutes. The article concludes in Part V by addressing the likely future of standing in the Roberts Court and in the Obama Presidency.

CONTENTS I. INTRODUCTION II. STANDING, IN BRIEF III. JOHN ROBERTS AND SAMUEL ALITO ON STANDING, BEFORE ROBERTS COURT IV. ORIGINALISM, SEPARATION OF POWERS, AND JUDICIAL DEFERENCE TO CONGRESSIONAL STANDING JUDGMENTS A. Originalism and Standing B. Beyond Originalism: Taxpayers, States, and Standing C. Congress, the Courts, and the Future of Standing CONCLUSION: THE FUTURE OF STANDING IN THE ROBERTS COURT I. INTRODUCTION

The word "standing" appears nowhere in Article III of the U.S. Constitution, but the Supreme Court has held, in too many cases to cite, that parties (particularly plaintiffs) must satisfy standing requirements in order for their cases to be justiciable in federal court. As then-Professor and later Judge William Fletcher has remarked, the requirements have been the subject of so many cases, not to mention so much academic commentary, that they are "numbingly familiar." (1) The conventional three-part test is that to satisfy the case or controversy requirement of Article III, (2) the plaintiff must have suffered an "injury in fact," one that is "fairly traceable" to the actions of the defendant, and one that can be redressed by the relief requested from the court. (3)

In light of the flood of cases explicating and applying these requirements, and an avalanche of academic commentary addressing their provenance and desirability, what more can be said? Rather than exhaustively address those cases and scholarship, this Article's goal is more modest. It will revisit the standing requirements in their doctrinal and institutional context. The focus will be on three factors: the ascension in 2005 of Chief Justice John Roberts, and in 2006 of Associate Justice Samuel Alito, to the Supreme Court; several standing decisions of the early Terms of the Roberts Court, and the continuing and ongoing scholarly debate over the role of Congress in statutorily providing for standing. The Article begins in Part II by briefly summarizing the evolution and current status of standing requirements. Part III then examines the record of Justices Roberts and Alito on standing before 2005, as revealed in their scholarly writing, their votes as lower court judges, and their testimony in confirmation hearings before Congress.

Part IV of the Article focuses on standing cases in the Roberts Court. The first section considers those requirements in light of the revival of interest in originalist modes of constitutional interpretation in the academy, and on the Court itself. That section concludes that the Court, in light of recent cases, is unlikely to adopt originalism as an exclusive, much less consistent or coherent, guide to applying standing requirements. The second section of Part IV turns to nonorginalist modes of developing and applying standing requirements. Both in the Rehnquist and now Roberts Courts, the Justices have often emphasized that separation of powers concerns, regarding the limited role of federal courts, have animated standing requirements. This has been manifested by the Court's hostility towards taxpayer standing, though the Roberts Court has also expanded the ability of states to satisfy standing. Separation of powers also implicates the application of "citizen suit" provisions in federal statutes. Those provisions on their face often seem to empower citizens or persons to bring suit in federal court, notwithstanding standing requirements. However, the Court has usually required that Article III standing must be satisfied, despite the presence of a broadly worded citizen-suit provision. But the Court's position on that point has not been a model of clarity, seeming to create space for Congress to be more assertive in facilitating standing through carefully drafted statutes. That possibility is the subject of the third section of Part IV, which revisits how often and under what circumstances Congress enacts citizen-suit provisions, and what that portends for judicial application of those provisions.

The article concludes in Part V, by briefly addressing the likely development of standing requirements in the Roberts Court, and Congress's statutory attention to those requirements during the Obama presidency. (4)

2. STANDING, IN BRIEF

   Because reams of paper have been printed on standing requirements in federal courts, (5) only a short review is necessary here. (6)

   The history of the development of standing is a contested one. A useful way to view that complicated history is through the lens of the models of dispute resolution (or private rights) and law declaration (or public rights). (7) Prior to the early decades of the twentieth century, most justiciability issues were resolved by asking whether the plaintiff had suffered an injury that would be recognized at common law. Typically, this would mean that a "defendant's violation of a legal duty to the plaintiff [must have] caused a distinct and palpable injury to a concrete, legally protected interest." (8) This model came under increasing pressure from the development of the regulatory state and the expansion of substantive constitutional rights, which "created diffuse rights shared by large groups and new legal relationships that are hard to capture in traditional, private law terms."9 A newer public rights model permitted holders of such rights to have standing to enforce them. Modern standing doctrine reflects aspects of both models, and the grant or denial of standing in a given case can often be conceptualized or justified under either model. (2)

   Modern cases hold that Article III requires that plaintiffs demonstrate a concrete injury, one caused by and traceable to the actions of the defendant, and likely to be redressed by relief a court can order. (11) Other justiciability requirements are not said to be drawn directly from the Constitution, but rather are followed as a matter of prudence by federal courts. These include that plaintiffs are usually not permitted to raise the rights of persons not parties to the lawsuit, that cases cannot proceed if they are not ripe for decision or, conversely, have become moot, or that courts are reluctant to decide political questions, because they are better resolved by the other branches of government. (12) Sometimes the line between these requirements is not always clear. A good example is generalized grievances. The Court has held that such grievances may not be the basis of an injury to satisfy standing, but has not been clear what such grievances are, (13) or whether the barrier to bring such cases is a (14) constitutional or prudential one.

   During the Warren Court and the early years of the Burger Court, the perception of most observers was that federal judges, for the most part, were making it easier for plaintiffs to satisfy standing requirements. The perception has, for the most part, cut the other way in the last quarter-century. (15) That turn is doctrinally marked by the Court's more recent emphasis on separation of powers as a way to shape, and limit, standing in federal courts. The most notable exemplar of this trend was Allen v. Wright in 1984. There, in the course of holding that plaintiffs lacked standing to challenge certain actions of a federal agency, the majority, in an opinion by Justice Sandra Day O'Connor, emphasized that the case or controversy requirement draws on separation of powers concerns. (16) Those concerns are premised, the Court said, on an understanding of the proper and limited role of unelected courts in government. (17) In other cases, the Court has emphasized that standing requirements appropriately channel and narrow the instances when federal courts are called upon to exercise the power of judicial review. (18)

   A particularly confusing and controversial corollary of these concerns has been the issue of what role Congress may play in statutorily modifying standing requirements. (19) The Court's pronouncements on this topic have not been a model of clarity. Least controversial, it seems, are statutes that authorize private persons to bring suit, in various ways, on behalf or as an agent of the United States. (20) More problematic are "citizen-suit" statutes, which authorize suit by most any citizen or person, seemingly notwithstanding whether that person would otherwise satisfy standing requirements. The Court has strongly suggested that there are limits to...