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III. STANDING AND JUSTICIABILITY PART A. STANDING Requirements of Standing According to Lujan, the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact"---an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be causal connection between the injury and the conduct complained of---the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be "likely" as opposed to merely "speculative" that the injury will be redressed by a favorable decision. Injury-In-Fact: Purpose of the Inquiry The Court has justified the inquiry-in-fact inquiry as (1) ensuring that controversies will be concrete and the facts are sufficiently developed; (2) ensuring that litigants will be energetic adversaries; (3) ensuring that only those most immediately affected by a government policy will have the right to sue; (4) protecting democratic prerogatives; and (5) preserving the constitutional prerogatives of the executive. What Injuries Are Sufficient?
GOVERNMENT'S VIOLATION OF LAW. "An asserted right to have the government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court" (Allen v. Wright; Fairchild). The Court's reluctance to hear cases challenging the legality of general government programs is rooted in separation-of-powers concerns. In Allen v. Wright, the Court wrote: "a federal court is not the proper forum to press general complaints about the way in which the government goes about its business." These complaints are best addressed to Congress or the executive (to whom the Constitution entrusts the duty to "take care that the Laws be faithfully executed"). See also United States v. Richardson (holding that a taxpayer had no standing to challenge the CIA's failure to comply with the Accounts Clause). Query whether Richardson and similar cases might instead be understood as holding that the relevant constitutional or statutory provision provides no cause of action. (Judge Fletcher has argued that the standing inquiry should focus on whether the disputed constitutional or statutory provision confers a right to sue). STIGMATIC INJURY. Stigmatic injury is sufficient in some circumstances to support standing, but only to those persons who are personally denied equal treatment by the challenged discriminatory conduct (Allen v. Wright). But see Heckler v. Mathews (holding that "discrimination itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of the disfavored group ... can cause serious noneconomic injuries" that are cognizable for standing purposes). AESTHETIC AND ENVIRONMENTAL INJURIES. An aesthetic injury is sufficient to establish injury-in-fact (Sierra Club v. Morton). In an environmental injury case, the relevant injury for Article III purposes "is not injury to the environment but injury to the plaintiff," which exists wherever there is "reasonable concern" about the possibility of environmental harm (Laidlaw). The injury-in-fact requirement is only satisfied if the plaintiff is "himself among the injured" (Sierra Club v. Morton). PROBABILISTIC HARM. The casebook suggests the possibility that "the Court makes case-bycase determinations about probabilistic standing that are not generalizable." In Summers, the Court found that a significant statistical probability that one of an organization's members would suffer harm by virtue of an environmental policy was not sufficient for standing purposes (Summers). However, five justices hinted that the case would have come out differently if Congress had created a right of action for such probabilistic harm. In Geertson Seed Farm, the Court recognized standing to challenge an agency regulation that would with "reasonable probability" result in ross-contamination of conventional and organic alfalfa. In Clapper, the Court found no injury sufficient for standing purposes based on allegations that it was likely that a
particular organization would be subject to surveillance. The Court emphasized that injury must be "certainly impending," and that there was no demonstration of this---only a "speculative chain of possibilities." CITIZEN SUIT PROVISIONS. Lujan suggested that there might be constitutional limits on Congress's ability to authorize citizen suits. However, Justice Kennedy's concurrence (which was dispositive of the case) stated that "Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before," as long as Congress does not attempt to create a cause of action for "the public's nonconcrete interest in the proper administration of the laws." Legislative Standing Coleman v. Miller held that Kansas state legislators who had voted against ratification of the Child Labor Amendment had standing to seek review of a state court's refusal to enjoin state officials from certifying that Kansas had ratified the amendment, because they alleged that their vote had been effectively nullified. In Raines v. Byrd, the Court held that six congresspersons lacked standing to challenge the constitutionality of the Line Item Veto Act. The Court noted that there would likely be standing if the congress persons alleged that they had been denied something they were personally entitled too (i.e., their seat). It distinguished Coleman as standing for the proposition that Coleman, unlike the case at hand, involved an assertion that the legislator's votes had been completely nullified with regard to a particular piece of legislation. Might there also have been a ripeness issue in Raines, cf. Goldwater v. Carter (Powell, J., concurring), not present in Coleman?
In Windsor, the Court did not address the question of congressional standing, because it found that the United States faced real injury as the result of the decision below (the requirement that it refund taxes to gay couples) that it could continue to litigate, despite its decision not to defend DOMA. Justice Alito, dissenting, argued that the BLAG had standing because the House, which authorized the BLAG to represent it, suffered a concrete, justiciable injury as the result of the United States' refusal to defend DOMA. Justice Alito analogized the case to Chadha, where the Houses of Congress were permitted to defend a statute authorizing a legislative veto. Justice Scalia, in an opinion joined by the Chief and Justice Thomas, rejected Justice Alito's analysis. Because DOMA did not regulate Congress's institutional authority, he argued that Justice Alito's position would permit Congress to hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of the laws. In Justice Scalia's view, the adequacy of the Executive's enforcement of an act of Congress was a matter for political, not judicial, resolution. Causation and Redressability Linda R.S. found no standing in a class action to challenge a state policy of brining non-support prosecutions against only fathers of children born in wedlock. The Court found no standing for lack of "a sufficient nexus between the plaintiff's injury and the government action" which she seeks to attack. The opinion also noted that "in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another." Thus, the opinion might be viewed as not resting on standing, but on a judgment that the Equal Protection Clause did not provide an individually enforceable right to have public authorities prosecute actions against third parties. Eastern Kentucky Welfare Rights Org. held that plaintiffs lacked standing to challenge the IRS's alleged violation of a federal statue by eliminating a requirement that nonprofit hospitals provide care for indigents in order to qualify for favorable tax treatment. The Court deemed it "purely speculative:" that the requested relief would remedy the plaintiff's injury (the inability to obtain hospital service). In Bakke, however, the Court held that the denial of the right to compete on equal footing with other candidates for a medical school position was a cognizable injury under the equal protection clause. Professor Sunstein has argued that "the central problem is how to characterize the relevant injury." If, in Bakke, the Court had characterized the injury as the inability to enter medical school, there would have been no standing, because it would not have been "likely" that the requested relief would remedy the injury. But, by characterizing the relevant injury in terms congruent to the relief sought---denial of opportunity to compete on equal footing---the Court guaranteed that relief would remedy the injury. The Court could have done the same thing in Eastern Kentucky or Allen v. Wright, as Professor Sunstein notes. REDRESSABILITY MUST BE SHOWN FOR EACH FORM OF RELIEF SOUGHT. The Court
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