Zoya's standing problem, or, when should the Constitution follow the flag?

Author:Kahn, Jeffrey

Some federal courts have devised a new test of prudential standing that they use to dismiss suits filed by foreign plaintiffs alleging unlawful conduct by American officials abroad, even when these cases involve matters that may have nothing to do with foreign affairs, national security, or terrorism. Rather than decide the case on its merits or dismiss it on any number of legitimate grounds, the complaint is dismissed because the plaintiff lacks a "prior substantial connection" to the United States.

I identify and critique this strange but proliferating test of standing. First, it is inconsistent with any theoretical view of the Constitution's extraterritorial application, including the functional one recently advanced in Boumediene v. Bush, the U.S. Supreme Court's landmark habeas corpus decision. Second, it advances none of the policy interests that prudential standing was created to promote. The test has been wrenched from its origins as an approach to decide the merits of a constitutional question; it is now used to decide jurisdiction. This impedes the development of an important area of case law while abdicating the judicial role in defining the limits of state power.

The Article begins with an in-depth case study (based on interviews and primary sources) of a takings claim that would have been unexceptional but for its foreign location and rather shocking allegations against the United States. I repeatedly reference this case while examining the theoretical and practical inconsistencies of dismissing "Zoya's case" not because the courts found fault with her claim, but because she lacked a prior substantial connection to the United States.

INTRODUCTION I. ZOYA'S STANDING PROBLEM A. Zoya Atamirzayeva and the Feruza Caf B. From the Feruza Cafe to the War on Terror II. STANDING AND THE SUBSTANTIAL-CONNECTIONS TEST A. Creation: United States v. Verdugo-Urquidez B. Transformation: Substantial Connections and Prudential Standing 1. Constitutional Standing and Prudential Standing 2. Legal Injury, Injury in Fact, and Zones of Interests 3. Substantial Connections as a Zone of Interests III. WHEN SHOULD THE CONSTITUTION FOLLOW THE FLAG? A. The Extraterritorial Constitution and Substantial Connections 1. A Test Bound Neither By Territory 2. ... Nor By Functionalism 3. ... Nor By Social Compact B. Two Remaining Concerns 1. The Problem of Court Clog 2. The Problem of "Exceptional" Litigation CONCLUSION "The Constitution begins with 'We, the People.' Where does it end?"

--Gerald L. Neuman (1)


Should foreign plaintiffs in faraway lands at peace with the United States have standing in federal court to pursue constitutional claims against American officials abroad? Consider a concrete example:

Zoya, a citizen of Uzbekistan, owned a caf6 next to the U.S. Embassy in that country. She alleges that American officials conspired with Uzbek authorities to knock down her car6 and build a security checkpoint in its place. Zoya sues the United States in its Court of Federal Claims seeking compensation for the destruction of her property. What should the court hold with respect to whether Zoya has a valid legal claim? This straightforward claim, alleging a violation of the Fifth Amendmeat's Takings Clause, turns out to be a Rorschach test for how one views the extraterritorial reach of the Constitution.

It is easy to conjure alternative holdings based on different views of the Constitution. Where one believes the Constitution "ends" is a function of where one believes the discussion about its limits should start. Some judges, viewing the Constitution as a limit on government power wherever exercised, would permit discovery and decide the factual merits of Zoya's claim. Other judges, believing that the Constitution governs only a certain territory, or establishes a social compact among a particular people, would dismiss Zoya's claim on the pleadings for failure to state a claim upon which relief can be granted (a dismissal on the legal merits). Such judges might be said to ascribe to a territorialist or social compact theory of the Constitution. Some might believe that whether the matter interferes with the foreign affairs interests of the United States is the determinative question on which dismissal rests. Still others, whose constitutional vision we might call functionalist, would ask whether the extension of this part of the Constitution beyond the people within our nation's borders would be impracticable or anomalous. Maybe Zoya's case would survive that inquiry, and maybe not. But regardless of which starting point one selects, they all share a common virtue: each judicial action is consistent with its judge's particular constitutional philosophy.

It is equally easy to identify numerous nonconstitutional grounds for dismissal of the suit. Statutory grounds might have been raised to argue that the court lacked jurisdiction to decide the case. (2) Perhaps the Government could have persuaded the court that Zoya had not alleged sufficient facts to suggest that her allegations were plausible. (3) Or the United States could have moved to dismiss on the grounds that, although plausible, the allegations presented a political question that implicated the delicate conduct of the nation's foreign affairs. (4) Alternatively, the government might have submitted an affidavit from an appropriate high-level official asserting that the complaint must be dismissed to prevent the disclosure of state secrets about the country's diplomatic or military affairs. (5)

None of that happened. Instead, four federal judges on two courts granted the Government's motion to dismiss Zoya's complaint on the ground that she lacked prudential standing to sue. (6) The judges asked: Does Zoya have a prior substantial connection to the United States? Since Zoya's only connection to the United States was as the victim of this allegedly unconstitutional action, her complaint was dismissed for lack of prudential standing and no inquiry was made into the legality of the action itself. (7) These judges simply concluded that it would not be prudent to allow this particular plaintiff access to court. The ultimate question in Zoya's case goes unanswered not because courts are unable or unauthorized to answer it, but because, like Bartleby the Scrivener, judges simply prefer not to. (8)

This decision is (1) inconsistent with any coherent constitutional philosophy and (2) a misapplication of the doctrine of prudential standing. The "prior substantial-connections" test is an example of doctrinal metamorphosis at its worst. The case that created it, United States v. Verdugo-Urquidez, (9) rejected on the merits a criminal defendant's claim that the Fourth Amendment required exclusion of incriminating evidence obtained by American officials acting abroad without a warrant. In less than twenty years that holding has "slipped the surly bonds" of constitutional criminal procedure. (10) In Zoya's case, and increasingly in many others, the test has been transformed into a jurisdictional inquiry into a plaintiff's civil litigation. A starker legal transplant in such a short span of time--or one as dangerous to our system of justice--is hard to find.

This Article criticizes the use of a prior substantial-connections test to deny prudential standing on two separate grounds, one theoretical and one quite practical. First, this standing inquiry is inconsistent with any theoretical view of the Constitution's extraterritoriality. Consider again the range of viewpoints. A true territorialist would not care how substantial a connection Zoya had to the United States if Zoya were not in the United States as those physical boundaries have been variously defined. An advocate of a limited government theory would be equally hard pressed to explain the accordion-like expansion and contraction of de facto government authority that results when standing to sue is based on judgments about the substantiality of a foreign plaintiff's connection to the United States. As to functionalists, reasonable minds may differ about the result to which a judgment of impracticality and anomaly would lead. Where the foreign affairs inquiry would lead is equally uncertain. But those questions cannot be answered by a limited inquiry into the degree of connection that the plaintiff possesses to the United States. Even advocates of a social compact theory of the Constitution ultimately concede that there exists a class of government conduct that the Constitution forbids and that the courts must remedy, no matter where it occurs and no matter who is the victim.

My second criticism is that this theoretical inconsistency has practical consequences. Because the prior substantial-connections test lacks any firm constitutional foundation as part of a standing inquiry, it promotes none of the values that this facet of prudential standing (called zone-of-interests analysis) is supposed to serve. These are not cases in which we would doubt the plaintiff's interest or ability to zealously pursue her case. Zoya, for example, was represented pro bono by the respected international law firm of Shearman and Sterling. Nor do these cases lead to suspicion that the claimants seek to use the courts to make an end run around the democratic process, for these claimants have no political access or interests. That is what makes them so vulnerable to this form of judicial discretion in the first place. Nor does reluctance to determine the rights of conventional, but foreign, litigants who allege unlawful government action further principles of judicial restraint. Rather, it imprudently abdicates an important judicial role in policing the limits of government power. (11) When such discretion is inflicted on litigants so poorly placed to seek redress from the political branches either for their alleged injuries or for access to a judicial remedy, this application of "prudence" is a license to ration justice.

As I...

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