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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. 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

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  1. Justiciability – Part III (Special Problems in Standing) Jan. 27, 2006

  2. 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

  3. 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

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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

  9. 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

  10. 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

  11. Craig v. Boren (1976) Curtis Craig (on right) and his lawyers Con Law I - Manheim

  12. 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

  13. 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

  14. 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

  15. v. Secretary of the Interior, Manuel Lujan Con Law I - Manheim

  16. 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

  17. Con Law I - Manheim

  18. Con Law I - Manheim

  19. “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

  20. 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

  21. 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

  22. 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

  23. 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

  24. 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

  25. 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

  26. 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

  27. 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

  28. 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

  29. 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

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