|
Article Excerpt
INTRODUCTION
I. THE FUNCTIONS OF STANDING A. The Concrete-Adversity Function 1. The doctrine of standing is said to restrict the courts to cases in which they act qua courts 2. It is plausible, but not particularly useful, to use standing to ensure concrete adversity B. The Pro-democracy Function 1. The standing doctrine is used to reject not only cases involving generalized grievances, but also those involving concrete yet widely shared injuries 2. The doctrine does not reliably identify such situations and may even reject the very cases most appropriate for the courts to resolve 3. The Court's approach to these cases may actually undermine democratic values C. The Anticonscription Function 1. Standing doctrine is used to beat back congressional efforts to use the courts against the executive branch 2. The doctrine fails reliably to identify and exclude cases of congressional conscription II. THE PATHOLOGIES OF STANDING III. NARROWING THE FUNCTIONS OF STANDING A. A Return to Prudential Consideration of Factors Giving Rise to a "Judicial Case" Would Better Serve the Concrete-Adversity Function B. Explicit Consideration of the Political Issues Involved in Each Case Would Better Serve the Pro-democracy Function C. The Court Should Address the Anticonscription Problem Under Article II, Not Article III D. An Abstention Doctrine Bests Current Standing Doctrine CONCLUSION
INTRODUCTION
The Supreme Court has stated that standing "is built on a single basic idea--the idea of separation of powers." (1) But, of course, there is no single "idea" of separation of powers, and the Court has used standing doctrine to pursue several different such ideas. (2) In this Article, I seek to understand what separation-of-powers functions (3) are served by standing doctrine, what tensions exist within the Court over the meaning of "separation of powers," and how well standing doctrine performs these functions, given the tensions I identify.
The Court seems to mean at least three different things when it uses standing to promote separation of powers. First, and most familiarly, the doctrine helps restrict the cases heard in the federal courts to those that are properly "cases" and "controversies" under Article III. (4) As the Court noted in Flast v. Cohen, Article III 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." (5) To satisfy such criteria is to make the court's involvement as a court proper. (6) The adversity demanded under this view of standing also "sharpens the presentation of issues upon which the court so largely depends for illumination." (7) As I show below, even this seemingly straightforward separation-of-powers purpose--keeping courts to their role qua courts--has generated significant disagreement among the members of the Court.
Second, the Court has said, standing doctrine allows the courts to refuse cases better suited to the political process, thus (along with other justiciability doctrines) permitting Article III to "assure that the federal courts will not intrude into areas committed to the other branches of government." (8) Cases are sorted on a rough democratic theory: if an injury is shared by a large group of people, some cases suggest, such a group can and should take its problem to the legislature or the executive branch, not the courts. (9) Thus, the Court frequently "has refrained from adjudicating 'abstract questions of wide public significance' which amount to 'generalized grievances,' pervasively shared and most appropriately addressed in the representative branches." (10) Recent cases indicate a struggle within the Court over the propriety of adjudication when injuries are particularized and yet widely shared. (11) More fundamentally, the cases reveal an ongoing debate within the Court over what it means to facilitate democratic politics.
Third, the Court (and particularly Justice Scalia) has suggested that standing acts as a bulwark against congressional overreaching, preventing Congress from conscripting the courts in its battles with the executive branch. (12) On this view, when Congress creates citizen-suit provisions that permit individual citizens to sue to enforce federal law, the federal courts can be forced into the role of "virtually continuing monitors of the wisdom and soundness of Executive action." (13) Such a role "inevitably produce[s] ... an overjudicialization of the processes of self-governance." (14) When standing serves to deny access to some fraction of citizen suitors, it thereby limits Congress's ability to conscript the courts in its battles with the executive. (15) This function, in particular, is the subject of profound disagreement within the Court.
The "single idea ... of separation of powers" thus turns out to be at least three ideas, each of which is contested. In other words, standing doctrine serves at least three masters. (16) How well does it serve these multiple functions?
In this Article, I argue that standing is ill-suited to most of the functions it is asked to serve, and that forcing standing into this variety of roles contributes to the scathing critiques leveled against the doctrine. (17) Even if standing is properly used for some subset of these functions--for example, in assuring the concrete adversity that enables a court qua court to do its job--the doctrine's broader failings do the Court no favors. Ironically, concepts of separation of powers that were originally introduced into the standing context to "make[] possible the gradual clarification of the law" of standing (18) have instead themselves been muddied.
In Part I below, I delineate the various separation-of-powers functions assigned by the Court to the standing doctrine, demonstrate the conflicts within the cases over the meaning of each function, and then assess the success of the doctrine at performing those functions. I conclude that the doctrine has been asked to serve several functions for which it is profoundly ill-suited, and in so doing has helped generate confusion over the proper role of the federal courts in the constitutional structure.
I demonstrate in Part II that these flaws are not innocuous: using standing in these improper ways causes far more trouble than good. Not only does the inconsistency generated by the doctrine expose the Court to heated criticism, this inconsistency also generates serious difficulties for the lower courts, who have increasingly found refuge in an empty formalism. These separation-of-powers functions embody tensions that should be addressed head-on, and the current problems with standing doctrine obscure rather than clarify those tensions.
Finally, in Part III, I suggest that the Court recognize the multiple functions it has assigned to the standing doctrine, acknowledge that the doctrine serves only one of those functions even minimally, abandon the standing doctrine in most of its current applications, and directly face the separation-of-powers issues now clouded by the vagaries of standing doctrine. Instead of using a constitutional doctrine so plainly flawed, it should develop a vibrant abstention doctrine that permits it to pursue separation-of-powers goals without the obfuscation caused by standing doctrine. (19) In so doing, the Court can cut short accusations that its doctrine of standing is merely a devious method to hidden ends, provide more useful guidance to the lower courts, and achieve the separation-of-powers functions it ultimately decides to promote in ways that are more intelligible. (20)
I. THE FUNCTIONS OF STANDING
The Court has said that standing is "perhaps the most important" of the justiciability doctrines, (21) which also include ripeness, mootness, political question, and abstention. (22) These doctrines "relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government." (23) That the Court's power is constrained by such a variety of doctrines reveals the intense attention paid to the limits imposed by the Constitution, both regarding the judicial power and the powers of the federal government more generally. (24)
The requirements of the doctrine may be stated simply (and have been described as "numbingly familiar" (25)): (1) the plaintiff must have suffered an injury in fact; (2) the plaintiff's injury must be fairly traceable to the actions of the defendant; and (3) the relief requested in the suit must redress the plaintiff's injury. (26) Despite the concision of the three-part test, the Court has recognized that the standing requirement "incorporates concepts concededly not susceptible of precise definition." (27) Indeed, the Allen Court hoped that grounding the doctrine in separation of powers would aid the lower courts:
The absence of precise definitions ... hardly leaves courts at sea .... [T]he law of Art. III standing is built on a single basic idea--the idea of separation of powers. It is this fact which makes possible the gradual clarification of the law through judicial application.... [B]oth federal and state courts have long experience in applying and elaborating in numerous contexts the pervasive and fundamental notion of separation of powers. (28)
Thus the link to separation of powers emerged primarily as an interpretive tool: courts evaluating a tricky standing question would be guided by considerations of separation of powers in answering that question, resulting in more consistent decisions over time. (29)
Despite the Court's hopes, the doctrine has proven notoriously difficult to apply. As Professor Pierce has demonstrated empirically, lower courts resolving standing questions have produced contradictory results: cases with essentially the same facts come out in wildly different ways, and the reasons invoked to support those outcomes vary dramatically in their invocation of the Court's separation-of-powers reasoning. (30)
Such unpredictability has generated extensive controversy. Critics have argued that the doctrine is "incoherent," (31) is "manipulable" and permeated with "doctrinal confusion," (32) lacks a historical basis, (33) amounts to a decision on the merits in the guise of a threshold jurisdictional inquiry, (34) is akin to substantive due process, (35) "act[s] as a[].., pointless constraint on courts," (36) and cloaks in technical doctrine what are actually normative decisions about the proper scope of government action. (37) Indeed, dissenting members of the Court have accused majorities of using standing as a "cover" for improper analysis, (38) and have described the extremes of standing analysis as a "word game played by secret rules." (39) The Court itself has even stated that "[s]tanding has been called one of the most amorphous [concepts] in the entire domain of public law," (40) in part because the words "cases" and "controversies" "have an iceberg, quality, containing beneath their surface simplicity submerged complexities." (41)
Whatever the validity of these criticisms, I want to ask a simple question: does the doctrine perform well or even adequately the jobs the Court assigns to it? (42) If standing is "built on a single basic idea--the idea of separation of powers," does it serve that idea? (43)
As I demonstrate below, it does not. To begin with, there is no single "idea" of separation of powers. Instead, to use the term "separation of powers" is to paper over a variety of principled disagreements about the proper balance of the powers of the three branches. Standing is not built on a single idea, but on several ideas of separation of powers, each of which is internally contested.
At least three such ideas are visible in the cases. First, standing doctrine is used to ensure that a particular plaintiff has a sufficient stake in the controversy he brings before the court to justify the court's action; I will call this the "concrete-adversity" function. (44) Second, standing doctrine is used to prevent the federal courts from engaging in decisions that are better made by the political branches, which I will call the "pro-democracy" function. (45) Third, the doctrine works to prevent Congress from conscripting the courts to fight its battles against the executive branch--the "anticonscription" function. (46)
That standing serves several functions would not be fatal, of course, if it served those functions well. But, as I show below, standing does only a minimally adequate job in promoting concrete adversity (47) and an abysmal job in promoting democracy (48) and preventing conscription. (49) As it turns out, injury in fact, causation, and redressability do not identify plaintiffs in a way helpful to the Court's separation-of-powers goals.
In the rest of this Part, I discuss each function of standing in turn, assessing how useful standing doctrine is in each context. I demonstrate that the doctrine has been stretched to serve separation-of-powers functions for which it is ill-designed, and thus fails in many contexts to promote the very principles that are said to justify its existence.
A. The Concrete-Adversity Function
"[T]he question of standing in the federal courts is to be considered in the framework of Article III[,] which restricts judicial power to 'cases' and 'controversies."' (50) In its most familiar manifestation--and its only plausible function--standing doctrine ensures that the federal courts hear only those disputes characterized by the kind of adversary relationship that makes a legal "case" or a "controversy."
1. The doctrine of standing is said to restrict the courts to cases in which they act qua courts
The Court has observed that Article III's "case or controversy" provision 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." (51) A dispute that satisfies Article III thus has at least two sides, each of which has a stake in winning, and the doctrine of standing ensures that the plaintiff has such a stake. (52, 53)
When these criteria are satisfied, the court's involvement as a court is proper, and when they are not, "the courts believe they lack power to entertain the proceeding." (54) So, for example, the Court said more than a century ago that it "has no jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies." (55) So-called "advisory opinions" are forbidden, as are cases where parties collude to manufacture adversity that does not truly exist. (56)
The Court has repeatedly invoked this function of standing. In Baker v. Carr, for example, the Court said that "the gist of the question of standing" is whether "the appellants [have] alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." (57) In that case, the plaintiffs contended that a state voting apportionment statute violated equal protection; they had standing because they "s[ought] relief in order to protect or vindicate an interest of their own, and of those similarly situated.... They are asserting a plain, direct and adequate interest in maintaining the effectiveness of their votes." (58)
As the Baker case makes clear, concrete adversity is valued because it is believed to promote better litigation. The Court echoed this value in Duke Power Co. v. Carolina Environmental Study Group, Inc., emphasizing the role of standing doctrine in "assur[ing] that the most effective advocate of the rights at issue is present to champion them." (59) In Village of Arlington Heights v. Metropolitan Housing Development Corp., the Court emphasized that a plaintiff with standing provided the "essential dimension of specificity" needed to make a case susceptible of judicial resolution. (60) As recently as 2007, in Massachusetts v. EPA, the Court has emphasized the importance of "the proper adversarial presentation." (61)
This function of standing emphasizes the jobs courts do and the tasks courts perform, regardless of whether doing those jobs or performing those tasks interferes with the other constitutional branches. Thus, the injury requirement of the doctrine "tends to assure that the legal questions presented to the court will be resolved, not in the ratified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." (62)
The rhetoric of these cases thus links standing to good judicial decision making. (63) The Court has even noted that standing is useful as a resource allocation tool: "Standing doctrine functions to ensure, among other things, that the scarce resources of the federal courts are devoted to those disputes in which the parties have a concrete stake." (64)
Indeed, in earlier cases, the doctrine of standing is seen, not as a constitutional command, but as a prudential limitation (65)--a court could hear a case that failed to provide concrete adversity, but it would be a bad idea because it would lead the court to do a bad job. On this view, standing is a tool that helps the Court assess whether a particular lawsuit involves the kind of "case" or "controversy" that courts hear, rather than a doctrine commanded by Article III.
It should be no surprise, then, that in cases involving this function of standing, the separation-of-powers rhetoric is sparse. The most stringent analysis is provided by Justice Stevens in his concurring opinion in Duke Power, where he explains why it is so important for courts to keep to cases and controversies:
[M]y view of the proper function of this Court, or of any other federal court, in the structure of our Government is more limited. We are not statesmen; we are judges. When it is necessary to resolve a constitutional issue in the adjudication of an actual case or controversy, it is our duty to do so. But wherever we are persuaded by reasons of expediency to engage in the business of giving legal advice, we chip away a part of the foundation of our independence and our strength. (66)
Justice Kennedy echoes this concern in his concurring opinion in Lujan v. Defenders of Wildlife, where he states:
An independent judiciary is held to account through its open proceedings and its reasoned judgments. In this process it is essential for the public to know what persons or groups are invoking the judicial power, the reasons that they have brought suit, and whether their claims are vindicated or denied. The concrete injury requirement helps assure that there can be an answer to these questions; and, as the Court's opinion is careful to show, that is part of the constitutional design. (67)
The concrete-adversity function thus does serve separation of powers, but it does so by focusing on courts as creatures of Article III, not on how Articles I and II might constrain Article III. Even in such a limited context, however, Justices have managed to disagree over the true separation-of-powers goal to be pursued. Most notably, in City of Los Angeles v. Lyons, Justice Marshall in dissent contended that the majority was taking too impoverished a view of the traditional role of the court. (68) In Lyons, the Court held that the plaintiff--who had previously been the victim of a dangerous chokehold at the hands of the police, and sought damages for himself and an injunction against future use of chokeholds--had to demonstrate standing for each form of relief he sought. (69) Because Lyons could not show a reasonable chance that he would be subject to a chokehold in the future, the Court concluded, he lacked the requisite stake in injunctive relief, particularly because any such injunction would require the federal courts' ongoing oversight of the Los Angeles Police Department: "The individual States may permit their courts to use injunctions to oversee the conduct of law enforcement authorities on a continuing basis. But this is not the role of a federal court, absent far more justification than Lyons has proffered in this case." (70)
But, according to Justice Marshall, this was an unwarranted limitation on the traditional powers of the courts:
Standing has always depended on whether a plaintiff has a personal stake in the outcome of the controversy, not on the precise nature of the relief sought.... ... Moreover, by fragmenting a single claim into multiple claims for particular types of relief and requiring a separate showing of standing for each form of relief, the decision today departs from this Court's traditional conception of standing and of the remedial powers of the federal courts. (71)
Justice Marshall argued that the majority's position was not supported by "the fundamental policy underlying the Art. III standing requirement--the concern that a federal court not decide a legal issue if the plaintiff lacks a sufficient personal stake." (72) Lyons undoubtedly had such a personal stake, having suffered at the hands of the police in the past. Because Lyons's damages claim required resolution of the same constitutional question that would form the predicate for the injunction, there was no reason to preclude injunctive relief, and the determination thereon should be left to the traditional equitable discretion of the court.
As I hope is already clear, the claim that "standing is built on a single basic idea--the idea of separation of powers" (73) hides a multitude of disputes over what that idea is.
2. It is plausible, but not particularly useful, to use standing to ensure concrete adversity
If standing doctrine is good for anything, it is good for assuring concrete adversity. By requiring injury in fact and causation, the doctrine helps to assure that plaintiffs and defendants have rational bases for pursuing lawsuits and thus will be motivated to argue well. There is a plausible connection between the injury-in-fact test and the personal stake it is meant to ferret out.
Standing thus serves this separation-of-powers function, though whether it effectively serves this function is a good question. Professor Driesen, for example, has convincingly argued that the requirement of concrete injury, however much it is invoked to assure the Court that a concrete dispute is before it, rarely ends up informing the Court's merits analysis. (74) In other words, despite the Court's repeated insistence that the plaintiff have a concrete injury because it is essential to the Court's functioning that he have one, the plaintiff's injury is not then used to help the Court do its job. Instead, Driesen contends, the concrete injury requirement serves primarily a formal role: the injury is used to show that the Court's power is properly invoked and is rarely discussed further. (75) Thus, despite the plausible connection between concrete injury and good judging, the connection in reality is far more tenuous.
Similarly, if the concrete-adversity test is meant to guarantee, for example, the best advocacy, as the Court has suggested, (76) standing doctrine does not provide that guarantee. As then-Judge Scalia noted, someone who undoubtedly has standing may well do a poor job of arguing his ease, while a national public interest organization with no concrete stake may provide a court with the most helpful arguments. (77, 78)
Finally, as Professor Hessick has recently argued, the standing doctrine in the concrete-adversity guise has actually been used to narrow the traditional sphere of judicial action in inappropriate ways. (79) A doctrine that evolved to control access to the courts for new "public rights" cases--cases that took the courts beyond their traditional role--is now used to prevent access to the courts even for those who bring traditional "private rights" suits: "[A]lthough the Court has claimed that its standing requirements are necessary to preserve the traditional limits on the judiciary, those requirements have precluded claims that courts historically would have permitted." (80)
In sum, while there is a plausible connection between standing doctrine and the concrete-adversity function, any benefits the doctrine provides in this respect are limited and indeed may be outweighed by its drawbacks.
B. The Pro-democracy Function
The Court has described standing as a doctrine that helps assure the "proper--and properly limited--role of the courts in a democratic society." (81) Here standing plays a role different from the concrete-adversity function: the question is not simply whether a case is susceptible to judicial resolution, but whether, given "the role assigned to the judiciary in a tripartite allocation of power," (82) a plaintiff is bringing an issue to the court that, even if susceptible to judicial resolution, is more properly answered elsewhere. Thus, the question is not what Article III alone requires, but what separation-of-powers limits (mentioned nowhere in the Constitution but inherent in its structure) require of the courts. (83)
In some cases that fall in this category, standing has been distorted to permit courts to avoid cases that they do not want to hear, (84) and especially to avoid issues that are sufficiently controversial that they threaten the courts' position in the constitutional structure. (85) This distortion of standing is rightly criticized. (86) Here, however, I focus instead on the Court's ongoing use of standing as a democracy-promoting mechanism. Thus, plaintiffs who assert only "generalized grievances" must be diverted into the political system, not only to save courts from being overrun, but also to preserve such general questions for the attention of Congress and the President. Similarly, in some cases the parties arguably satisfy the injury-in-fact requirement, but courts have found standing lacking because those injuries were so widely shared among many people that they should be addressed politically, not judicially.
In all these categories, the Court is focused not on the judiciary's capacities--what courts can do--but on the judiciary's obligations to its coequal constitutional entities--what courts should do with cases that tread upon the province of the political branches. (87) In trying to craft rules that funnel cases into one category or the other, however, the Court has created a puzzle. In denying standing to those who claim "generalized grievances"--when the plaintiff cannot distinguish himself in any meaningful way from other citizens--the Court has suggested that mere numerosity creates a standing problem. But injuries that are widely shared yet particularized for each plaintiff satisfy any ordinary interpretation of the injury-in-fact test. The doctrine and the function are mismatched.
1. The standing doctrine is said to divert from the courts those cases better heard in the political branches
In cases involving widely shared injuries, the Court invokes our "common understanding of what activities are appropriate to legislatures, to executives, and to courts." (88) The concern is still for the "proper--and properly limited-role of courts in a democratic society," (89) but the inquiry focuses on the proper audience of each branch and thus on the breadth of the class of persons seeking action. The Article Ill judicial power exists, the Warth Court emphasizes,
only to redress or otherwise to protect against injury to the complaining party.... Without such limitations.., the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights. (90)
Standing, which focuses on the "separate and distinct constitutional role of the Third Branch," is thus "one of the essential elements that identifies those 'Cases' and 'Controversies' that are the business of the courts rather than of the political branches." (91) And if a plaintiff suffers an injury that is "'undifferentiated and common to all members of the public,' the plaintiff has a 'generalized grievance' that must be pursued by political, rather than judicial, means." (92) As the second Justice Harlan put it in his Flast dissent, "[t]he interests [such plaintiffs] represent, and the rights they espouse, are bereft of any personal or proprietary coloration. They are, as litigants, indistinguishable from any group selected at random from among the general population, taxpayers and nontaxpayers alike." (93)
The Court has often made it seem as though keeping such would-be plaintiffs out of court is constitutionally required to maintain the proper role of the judiciary:
Were the federal courts merely publicly funded forums for the ventilation of public grievances ... the concept of "standing" would be quite unnecessary. But the "cases and controversies" language of Art. III forecloses the conversion of courts of the United States into judicial versions of college debating forums.... ... Proper regard for the complex nature of our constitutional structure requires neither that the Judicial Branch shrink from a confrontation with the other two coequal branches of the Federal Government, nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury. (94)
There has not been monolithic agreement on that point, however. The second Justice Harlan, for example, concluded that "it is, nonetheless, clear that non-Hohfeldian plaintiffs as such are not constitutionally excluded from the federal courts. The problem ultimately presented.., is... to determine in what circumstances, consonant with the character and proper functioning of the federal courts, such suits should be permitted." (95) Moreover, Justice Harlan believed that the limitations the Court had attempted to impose through the standing doctrine were "wholly untenable." (96) While limitations were needed-if a plaintiff can sue when there is nothing distinctive about him in relation to the lawsuit, then there is literally no limit on the cases that the federal courts could be asked to hear (97)--they could be found in a prudential doctrine of abstention. (98)
The Court took another path, concluding that the standing doctrine was constitutionally required to prevent access to the courts by those raising such generalized grievances. Thus, the Court has generally tightened the requirements of the doctrine in service of this goal.
Some of these restrictions are straightforward. The Court has rejected a general federal concept of a pure "private attorney general," who pursues lawbreakers through the courts solely from an interest in seeing the law obeyed. (99) Such a person is indistinguishable from any of thousands or millions of other people who wish to see the law obeyed; rather...
|
