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Justiciability – Part III (Special Problems in Standing) Jan. 27, 2006. Standing Elements. Discrete and Palpable Injury Caused by Defendant's (alleged) Action Remediable by Court Plaintiff's personal rights at stake. 1. Injury in Fact. General Rule:

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justiciability part iii special problems in standing jan 27 2006
Justiciability – Part III

(Special Problems in Standing)

Jan. 27, 2006

standing elements
Standing Elements
  • Discrete and Palpable Injury
  • Caused by Defendant's (alleged) Action
  • Remediable by Court
  • Plaintiff's personal rights at stake

Con Law I - Manheim

1 injury in fact
1. Injury in Fact
  • General Rule:
    • Plaintiff must allege a discrete & palpable injury
      • differentiated, unique
        • no generalized grievances
        • class actions ok
      • legally cognizable
        • breach of Hohfeldian rights
          • personal & proprietary interests (positive or common law)
          • contrast: public rights & ideological interests (Sierra Club)
        • Non de-minimus (rules out taxpayer standing)
    • Injury must be existent or imminent
      • speculative future injuries not included

Con Law I - Manheim

taxpayer standing
Taxpayer Standing
  • General Rule:
    • Taxpayer injury (higher taxes) is both
      • de minimus, and
      • not “caused” by illegal expenditures
  • Flast v. Cohen (1968)
    • Exception for “establishment clause” claims
      • Clause intended specifically to preclude religious tax
    • Dual nexus test
      • between injury and defendant’s action (causation)
      • between injury and constitutional claim
        • this 2nd element never followed; Flast limited to its facts

Con Law I - Manheim

2 causation
2. Causation
  • General Rule:
    • D’s illegal action is legal cause of P’s injury
      • “But for” test (need not be “proximate” cause)
  • Linda R.S. v. Richard D. (1973)
    • Was state’s failure to enforce child support decree the reason father stopped paying?
      • If he wouldn’t pay despite enforcement (e.g., jail), then lack of enforcement is not a “but for” cause
      • See also Simon v. EKWRO; Allen v. Wright
    • Note: relation between causation and remedy elements of standing
    • Similar relation between injury & causation

Con Law I - Manheim

duke power v cesg 1978
Duke Power v. CESG (1978)
  • Facts:
    • Neighbors of nuclear power plant challenge Price-Anderson Act, which limits liability ($640M)
      • Claim: limits violate due process
  • Injury:
    • Inadequate compensation for nuclear accident
      • Speculative, future injury
    • Depressed property values near power plant
      • Current injury
  • Causation
    • Federal Act causes this specific injury

Con Law I - Manheim

3 redressability
3. Redressability
  • Court must be able to fashion a remedy that will alleviate plaintiff’s injury
    • Often the flip side of causation inquiry
    • Sometimes due to nature of requested relief
      • Example: Linda R.S. v. Richard D. (1973)
        • Jailing father for non-support doesn't get mother more $$
      • Example: Warth v. Seldin (1975)
        • Invalidating exclusionary housing ord. does not necessarily result in more affordable housing
  • Inability to alleviate the injury is tanta-mount to rendering an "advisory opinion"

Con Law I - Manheim

standing elements8
Standing Elements
  • Discrete and Palpable Injury
  • Caused by Defendant
  • Remediable by Court
  • Plaintiff's personal rights at stake

Irreducible minimums of Article III

Con Law I - Manheim

4 personal rights
4. Personal Rights
  • Jus Tertii Standing
    • Ordinarily, plaintiff must allege the violation of a right that is personal to her
      • More vigorous proponent of right – better advocate
  • "Prudential" element
    • To avoid needless friction with other branches
      • If right holder not sufficiently interested, why decide?
    • Court can craft exceptions
      • For countervailing policy reasons
      • Not so with Art. III restrictions

Con Law I - Manheim

jus tertii standing
Jus Tertii standing
  • General rule:
    • Must assert own rights, not those of 3rd parties
    • This is a prudential rule of self-restraint
      • Designed to avoid needless friction w/ other branches
      • Rights holder is generally best advocate
        • Why adjudicate the issue if absent from proceeding?
  • Exceptions:
    • Right holder not available to vindicate right
    • Special relationship between P and right holder
    • Overriding policy desire to vindicate right

Con Law I - Manheim

craig v boren 1976
Craig v. Boren (1976)

Curtis Craig (on right) and his lawyers

Con Law I - Manheim

craig v boren 197612
Craig v. Boren (1976)
  • General rule:
    • Each P must establish standing (on each claim)
    • Craig: mooted (NB he sought prospective relief)
    • Whitener: Meets first 3 standing elements; not 4th
  • Exceptions:
    • Special relationship
      • Doctor-patient; parent-child; bartender-patron?
    • Rights holders not readily available
      • Chilling effect of laws burdening 1st amd rights
    • Waiver?

Con Law I - Manheim

citizen standing
Citizen Standing
  • General rule:
    • No “citizen” standing (generalized grievance)
  • Assuring Exec. Branch compliance with law
    • Congress has few oversight mechanisms
    • Exec. Branch violations that do not readily create discrete and palpable injury
      • Actions occurring overseas
        • Pres. Reagan’s violation of Bolton Act
        • Pres. Bush’s policies re. war on terrorism
      • Actions with broad-based impact
    • Private attorney general theory

Con Law I - Manheim

congress control over standing
Congress’ control over standing
  • Injury-in-fact (element #1)
    • Hohfeldian rights (including statutory rights)
      • Congress may create rights in large groups of people
        • E.g., FEC v. Akins (1998) (any aggrieved voter could sue to enforce FECA - standing upheld)
      • Statute is not dispositive; S.Ct. retains ultimate authority to determine if this is a cognizable injury
  • Personal rights (element #4)
    • Where injury-in-fact arises from breach of statutory right, congress fixes “zone of interest”
      • Statute is dispositive
      • Compare “zone of interest” for constitutional rights

Con Law I - Manheim

slide15

v.

Secretary of the Interior, Manuel Lujan

Con Law I - Manheim

lujan v defenders of wildlife 1992
Lujan v. Defenders of Wildlife(1992)
  • 1. Injury in Fact:
    • AID-funded projects threaten habitat of endan-gered species (crocodile, elephant & leopard)
      • Do endangered animals have standing?
      • Do humans if they study/recreate with endangered species? [vocational or professional injury]

Con Law I - Manheim

slide19

“Teldeniya, a village once renowned for producing cotton, tobacco, coconuts and vegetables, now lies buried under several hundred tons of water of the [Mahaweli] reservoir.”

Con Law I - Manheim

lujan v defenders of wildlife 199220
Lujan v. Defenders of Wildlife(1992)
  • 1. Injury in Fact:
    • Is the injury discrete & palpable to plaintiff?
      • Specific or conjectural?
        • Some certainty required – injury must be “imminent”
        • Undifferentiated “some day” intent insufficient
    • How proximate must the injury be?
      • Scalia: “Person claiming injury from environmental damage must use the [specific] area affected by the challenged action”
        • rejects ecosystem and animal nexii
    • How much proof req’d at summary judgment?
      • See Blackmun/O’Connor dissent

Con Law I - Manheim

lujan v defenders of wildlife 199221
Lujan v. Defenders of Wildlife(1992)
  • 2. Causation:
    • Did (or will) Secretary of Interior, by failing to require AID to consult on dam building project, cause plaintiff’s object of study to disappear?
      • Does lack of consultation inevitably mean funding of projects?
    • NB: the right asserted (consultation) is a procedural one, not a substantive one
      • What if congress actually prohibited projects causing env. damage?

Con Law I - Manheim

lujan v defenders of wildlife 199222
Lujan v. Defenders of Wildlife(1992)
  • 3. Redressability:
    • Pl’s don’t seek to bar project, or funding, but to require promulgation of rules requiring consultation
      • Would the regulations be binding on “Action Agencies” (project sponsors)?
      • Even if they were, is that enough to interrupt project?
        • Is this a matter for the jury?

Con Law I - Manheim

lujan v defenders of wildlife 199223
Lujan v. Defenders of Wildlife(1992)
  • Procedural vs. Substantive Rights
    • No injury to substantive right (observe animals)
    • But clear injury to procedural right – gov’t must follow the law
      • Citizen-suit provision in Endangered Species Act
      • Is this an “injury in fact”?
  • 4. Personal Rights:
    • General rule: plaintiffs can only sue to protect their own rights, not those of 3rd parties.
      • Example: police conduct warrantless search of my neighbor’s house and find contraband belonging to me
      • Examine right to see if pl. is within the “zone of interest”

Con Law I - Manheim

lujan v defenders of wildlife 199224
Lujan v. Defenders of Wildlife(1992)
  • Can Congress create personal rights that satisfy Art. III injury injury requirement?
    • Violating substantive statutory right = injury-in-fact
    • Same for non-instrumental (procedural) rights?
      • Congress can decide whether plaintiff is within zone of interest of statutory right (jus tertii issue), but
      • Cannot decide whether that satisfies “injury in fact” requirement

Con Law I - Manheim

lujan v defenders of wildlife 199225
Lujan v. Defenders of Wildlife(1992)
  • Non-instrumental (procedural) rights
    • Most procedural rights are designed to protect substantive rights
      • E.g., hearings on gov’t benefits
    • Some procedural rights are designed to promote “good government” processes
      • E.g., Env’l Impact Statements (“non-instrumental” rights)
        • These rights are “cheap to confer;” conferred on everyone
      • Right to information is instrumental. FEC v. Atkins
    • The violation of a non-instrumental right does not create a “cognizable injury”
      • Is this an outgrowth of SoP?
      • Which branch loses? Which branch gains?

Con Law I - Manheim

standing and article iii
Standing and Article III
  • How can Congress fix lack of standing to enforce procedural rights?
    • Create more substantive rights
      • I.e., impose substantive restrictions on Executive
    • Does this solution promote SoP?

Con Law I - Manheim

legislative standing
Legislative Standing
  • General rule:
    • C-members must satisfy all standing elements
      • Vigorously enforced; entails Ct. in inter-branch spat
        • Should Ct. be more/less willing to intervene in SoP struggles?
  • Injury in fact
    • Personal (unique to P)
      • See Powell v. McCormack (1969) (Rep. Powell had standing to challenge his exclusion from the House)
    • Official (common to all members)
      • But unique to P’s representational status
        • Usually when President violates SoP by usurping or interfering with congressional power

See Souter

concurrence

Con Law I - Manheim

raines v byrd 1997
Raines v. Byrd (1997)
  • Claim:
    • Line Item Veto Act violates “presentment clause” (SoP)
  • Injury:
    • Institutional injury - loss of congress’ power
      • See Goldwater v. Carter (Pres. Carter’s refusal to submit cancellation of treaty to Senate)
      • Difference between negation of legislators’ vote (not getting to vote) and dilution (lesser effect) of vote
        • Byrd not complaining that he won’t get to vote on appropriations but that vote won’t be given full effect
        • Should that make any difference, as Rehnquist says?

Con Law I - Manheim

raines v byrd 199729
Raines v. Byrd (1997)
  • Injury:
    • Byrd’s injury is common to all reps, yet they haven’t joined the lawsuit
      • Looks like these Ps are challenging the acts of fellow congress members, not the president.
      • Perhaps, where a rep’s injury is undifferentiated, the Court should stay out unless a majority agree

Con Law I - Manheim