The standing of the United States: how criminal prosecutions show that standing doctrine is looking for answers in all the wrong places.

• Date: 01 June 1999
• Author: Hartnett, Edward A.
• Published date: 01 June 1999
• Author: Hartnett, Edward A.

1. BACKGROUND TO A PUZZLE

   The Supreme Court insists that Article III of the Constitution requires a litigant to have standing in order for her request for judicial intervention to constitute a "case" or "controversy" within the jurisdiction of a federal court; it also insists that the "irreducible constitutional minimum" of standing requires (1) that the litigant suffer an "injury in fact"; (2) that the person against whom the judicial intervention is sought have caused the injury; and (3) that the requested judicial intervention redress the injury.(1) The requisite injury in fact, the Court repeatedly declares, must be "personal,"(2) "concrete and particularized,"(3) and "actual or imminent, not conjectural or hypothetical."(4)

   In addition, the injury must be more than an "injury to the interest in seeing that the law is obeyed."(5) This requirement has its foundation in the bar against standing to litigate a "`generalized grievance' shared in substantially equal measure by all or a large class of citizens."(6) For a time, the bar on "`generalized grievance[s]'" was viewed as merely a "prudential rule[]," not required by Article III and therefore subject to displacement by Congress.(7) The Supreme Court's 1992 decision in Lujan, however, treated it as a gloss on the injury requirement and rooted in the case or controversy language of Article III.(8) The Court insisted, as an Article III matter, that the injury must be to something more than "every citizen's interest in the proper application of the Constitution and laws," and the litigant must not be "seeking relief that no more directly and tangibly benefits him than it does the public at large."(9)

   Last year, the Court acknowledged that this bar on generalized grievances has been treated sometimes as a constitutional limit and sometimes as a prudential limit on standing.(10) Significantly, it did not choose between characterizations, but instead subdivided the bar on generalized grievances into a prudential rule and a constitutional rule. The prudential rule counsels hesitation before finding standing because "a political forum may be more readily available where an injury is widely shared."(11) The constitutional rule requires that the injury not be "of an abstract and indefinite nature -- for example, harm to the `common concern for obedience to law.'"(12) Later in the same passage, the Court purported to provide another "example" of such an "abstract" harm, but instead simply repeated that the harm cannot be "injury to the interest in seeing that the law is obeyed."(13)

   Numerous scholars have demonstrated that insistence on a personal injury in fact as a requirement of Article III is a relatively recent invention.(14) They point to a long history in English courts, in the courts of the several states, and in the federal courts themselves of judicial proceedings brought by those who have not suffered any such individualized injury in fact. For example, the prerogative writs of mandamus, prohibition, and certiorari, as well as qui tam, relator, and informer actions, could all be brought by litigants who had suffered no injury in fact.(15)

   Most scholars reach the same conclusion from this history as Justice Harlan did in his dissent in Flast v. Cohen:(16) there is nothing in the "judicial power," or "cases" and "controversies" language that requires the person bringing the action to suffer an injury in fact.(17) For better or worse, however, the judges of the "inferior" federal courts do not feel so free to disregard Supreme Court precedent.(18) Their difficulty in following this precedent has been acute in cases where the ancient forms persist, particularly qui tam actions.

   In a qui tam action, an individual who has herself suffered no harm brings an action on her own behalf as well as on behalf of the government. Indeed, the term qui tam is short for "qui tam pro domino rege quam pro se ipso sequitur" -- "who as well for the lord the king as for himself sues."(19) The individual bringing the action is typically called an "informer" or a "relator."(20) As the Supreme Court explained in 1905:

   Statutes providing for actions by a common informer, who himself had no interest whatever in the controversy other than that given by statute, have been in existence for hundreds of years in England, and in this country ever since the foundation of our Government. The right to recover the penalty or forfeiture granted by the statute is frequently given to the first common informer who brings the action, although he has no interest in the matter except as informer.(21) Although qui tam statutes have been part of federal law from the first Congress,(22) the major such statute in current use is the False Claims Act.(23) The False Claims Act permits any person to sue a defendant accused of defrauding the government and, if successful, to keep a percentage of the amount recovered.(24)

   Current standing doctrine and deeply rooted qui tam practice are on a collision course. It is not surprising that qui tam defendants have argued that current standing doctrine renders the qui tam provision of the False Claims Act unconstitutional. Nor is it surprising that federal courts have almost universally rebuffed the challenges to such a long-standing practice. Indeed, courts frequently use the argument of historical pedigree to uphold the constitutionality of qui tam actions.(25) As one court put it, "The concept of qui tam is so deeply rooted in the nation's history that it is most improbable that any court today could divine some infirmity of constitutional magnitude which would not have been equally apparent many decades, if not centuries, ago."(26)

   One bold district court held the qui tam provision of the False Claims Act unconstitutional, brushing aside its historical roots by candidly noting that the Supreme Court's current standing doctrine is a recent invention.(27) But other courts, seeking to reconcile the history of qui tam actions with current standing doctrine, bend over backwards (indeed, so far as to create a circle) in their eagerness to find an injury in fact. Some conclude that the bounty provided to a qui tam relator somehow constitutes an injury in fact.(28) Although the Supreme Court itself may have encouraged such an approach by distinguishing qui tam actions from "citizen suits" along these lines,(29) it has aptly been described by one district judge as "put[ting] the cart before the horse."(30) Ironically, that same judge traced a different circle to find an injury in fact, reasoning that a qui tam relator is injured because she runs the risk of retaliation for filing the qui tam action itself.(31)

   The most interesting approach taken by some courts (or at least the one of most significance for this article) is not to look for an injury in fact to the qui tam relator, but instead to look for an injury in fact to the United States and treat the relator as either a representative or an assignee of the United States.(32) In the cases covered by the qui tam provisions of the False Claims Act, the injury to the United States is easy to see: if it has been defrauded, it has lost money -- a classic injury in fact.(33)

   Notice the assumption of this approach: the United States, no less than any other litigant, must have suffered an injury in fact in order for litigation brought on its behalf to constitute a case or controversy within the federal judicial power.(34) Of course, this seems a reasonable assumption for a lower federal court to make. After all, the Supreme Court has repeatedly insisted that the words "case" or "controversy" in Article III require an injury in fact.(35) And nothing in Article III remotely suggests that the United States can litigate something other than a "case" or "controversy" in an Article III court.

   Despite its apparent reasonableness under current Supreme Court doctrine, I submit that no federal judge, if pressed, would seriously contend that Article III requires that the United States must suffer an injury in fact that is "personal," "concrete and particularized," and "actual or imminent, not conjectural or hypothetical" before litigation on its behalf can be brought in federal court. And no federal judge would contend that injury to the United States be more than an "abstract ... injury to the interest in seeing that the law is obeyed...."(36) My point of pressure is a federal criminal prosecution. That is, while Akhil Amar has argued that "too few of those who write in criminal procedure do serious, sustained scholarship in constitutional law generally, or in fields like federal jurisdiction and remedies,"(37) I suggest that constitutional law, federal jurisdiction, and remedies might learn something from criminal procedure. By focusing in Part II on criminal prosecutions, a commonplace legal proceeding familiar to today's lawyers and judges, my hope is that those who have been unmoved by the history of prerogative writs and qui tam actions will see that Article III cannot require an injury in fact.(38) Similarly, I use criminal procedure to show in Part III that the separation of powers issues now treated under the rubric of Article III standing are better understood as issues of Article I and Article II.

2. CRIMINAL CASES AND THE NONSENSE OF REQUIRING INJURY IN FACT UNDER ARTICLE III

   Suppose a new assistant federal defender, steeped in the Supreme Court's modern standing doctrine, moves to dismiss each of the prosecutions brought against her clients on the grounds that the United States lacks standing. She argues that the United States lacks a personal, concrete, and particularized injury in fact and therefore there is no case or controversy within the jurisdiction of the federal courts.

   I suppose that the first reaction would be the one I received as a new assistant federal defender when, at my first court appearance, I argued that my client -- a previously deported alien charged with illegal reentry into the United...