Solving the Constitutional Crisis Part II

My last post proposed amending FISA to permit a specified class of persons to challenge the legality of the recently disclosed surveilance program on grounds that it chills their speech.  I proposed limiting that class to persons who regularly communicate with certain listed nations in the course of their employment as jounralists or academics wroking on the war on terror.  Some coments suggested the statute would not do very much, in part because Congress cannot overcome Article III limits on standing.

First, the proposed statute would certainly remeove the very formidable standing bars that the current FISA now imposes.  Unless Congress does something to lift them, I worry that it's game over. But what about the article III issue? I think that is much less of a problem than people seem to think. Here's why (Warning: the answer is long and technical, but, hey, you asked for it!): 

1. The big obstacle would seem to be the Supreme Court's decision in Lujan, in which Scalia writes that: "Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." He adds that:

"Over the years, our cases have established that 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 a causal connection between the injury and the conduct complained of-the injury has to be “fairly ··· trace[able] to the challenged action of the defendant, and not ··· th[e] 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.”

He also says that demonstrating standing is particularly difficult when a claim challenges, (as in our case) the government's "regulation of someone else."  Finally, and most importantly, he rejected the view that a so-called citizen suit provision in a congressional statute obviates these traditional Article III limits on standing. In explaining why the lower court erred in concluding otherwise, Scalia wrote:

"This is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs ( e.g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them). Nor is it simply a case where concrete injury has been *suffered by many persons, as in mass fraud or mass tort situations. Nor, finally, is it the unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the government's benefit, by providing a cash bounty for the victorious plaintiff. Rather, the court held that the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, self-contained, noninstrumental “right” to have the Executive observe the procedures required by law. We reject this view." 

In explaining why, Scalia emphasized that: "We have consistently held that a plaintiff raising only a generally available grievance about government-claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large-does not state an Article III case or controversy." And, for good measure, he made clear that Congress could not get around this limitation on standing for generalized grievances by legislating: "To be sure, our generalized-grievance cases have typically involved Government violation of procedures assertedly ordained by the Constitution rather than the Congress. But there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right. Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch-one of the essential elements that identifies those “Cases” and “Controversies” that are the business of the courts rather than of the political branches."  As he concludes: "To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an “individual right” vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to “take Care that the Laws be faithfully executed,”Art. II, § 3. It would enable the courts, with the permission of Congress, “to assume a position of authority over the governmental acts of another and co-equal department,” Massachusetts v. Mellon, 262 U.S., at 489, 43 S.Ct., at 601, and to become “ ‘virtually continuing monitors of the wisdom and soundness of Executive action.’ ” Allen, supra,

468 U.S., at 760, 104 S.Ct., at 3329 (quoting Laird v. Tatum,

408 U.S. 1, 15, 92 S.Ct. 2318, 2326, 33 L.Ed.2d 154 (1972))."

Sounds pretty bad.  Given all of this, isn't the kind of chill that Congress would be recognizing in the proposed statute just the kind of speculative and generalized harm that Scalia thinks Article III does not countenance and that Congress cannot legislate around?  Perhaps, but even if that's what he thinks, it does not matter.  That's  because the crucial opinion in that case is the concurrence by Justice Kennedy, which Justice Souter joined.  And remember, Kennedy is the most likely candidate to be the fifth vote on both standing and the merits. Here's the critical passage from his concurrence:

I also join Part IV of the Court's opinion with the following observations. As Government programs and policies become more complex and farreaching, we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition. Modern litigation has progressed far from the paradigm of Marbury suing Madison to get his commission, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), or Ogden seeking an injunction to halt Gibbons' steamboat operations, Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824). In my view, 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, and I do not read the Court's opinion to suggest a contrary view. See Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); ante, at 2145-2146. In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit. The citizen-suit provision of the Endangered Species Act does not meet these minimal requirements, because while the statute purports to confer a right on “any person ··· to enjoin ··· the United States and any other governmental instrumentality or agency ··· who is alleged to be in violation of any provision of this chapter,” it does not of its own force establish that there is an injury in “any person” by virtue of any “violation.” 16 U.S.C. § 1540(g)(1)(A).

The Court's holding that there is an outer limit to the power of Congress to confer rights of action is a direct and necessary consequence of the case and controversy limitations found in Article III. I agree that it would exceed those limitations if, at the behest of Congress and in the absence of any showing of concrete injury, we were to entertain citizen suits to vindicate the public's nonconcrete interest in the proper administration of the laws. While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way. This requirement is not just an empty formality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome, and that “the legal questions presented ··· will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). In addition, the requirement of concrete injury confines the Judicial Branch to its proper, limited role in the constitutional framework of Government.

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.

With these observations, I concur in Parts I, II, III-A, and IV of the Court's opinion and in the judgment of the Court.

This language is extremely encouraging, though it's by no means dispositive.  I think it defintiely indicates a willingness to entertain the type of claim the statute would be recognizing.   Here, Congress would have "identifi[ed] the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit."  And it seems to take Kennedy at his word when he writes that: "As Government programs and policies become more complex and farreaching, we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition" Moreover, I think in the absence of the statute, Kennedy may be very reluctant to be the fifth to find standing.  In short, the statue substantially increases -- though it does not guarantee -- the likelihood that the suit could go forward.

2.  Some may argue in response that this anlaysis fails because the Supreme Court has already conclusively decided in Laird v. Tatum that mere allegations of chill arising from domestic surveillance do not count as an Article III injury.  But that is not quite right.   Laird is distinguishable in two key ways:

First, Congress had not recognized chill as an injury in Laird, whereas it would have here, and so Kennedy's concurrence in Lujan indicates that is an important difference.

Second, Laird was careful to explain that its decision to deny standing in that case rested in significant part on the fact that the palintiffs did not contend that the military lacked the statutory authority to engage in such surveillance.  Instead, they argued that such surveillance, though not in itself unlawful, infringed their First Amendment rights because it was more extensive than military necessity demanded.  The court made clear that there was no specific evidence to support the contention that the military's surveillance was in fact anything more than an examination of publicly available materials. It did say that "subjective chill" does not suffice, but it went on to explain that it would not second guess a military judgment as to whether it's program went too far on the basis of a speculative claim of chill when there was no allegation that the surveillance itself was unlawful. As the court put it: "Stripped to its essentials, what respondents appear to be seeking is a broad-scale investigation, conducted by themselves as private parties armed with the subpoena power of a federal district court and the power of cross-examination, to probe into the Army's intelligence-gathering activities, with the district court determining at the conclusion of that investigation the extent to which those activities may or may not be appropriate to the Army's mission." 

That's not our situation at all.  The claim here would simply seek resolution of whether the surveillance that is concededly occurring is lawful given the seeming statutory ban. The final paragraph of the opinion seems designed to limit the scope of its holding in a way that preserves our situation:

The concerns of the Executive and Legislative Branches in response to disclosure of the Army surveillance activities-and indeed the claims alleged in the complaint-reflect a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history and found early expression, for example, in the Third Amendment's explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military. Those prohibitions are not directly presented by this case, but their philosophical underpinnings explain our traditional insistence on limitations on military operations in peacetime. Indeed, when presented with claims of judicially cognizable injury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation's history or in this Court's decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.

3. Add it all up, and I think the proposed statutory fix does a lot to ensure the court could hear the merits, even though there remains some risk.  I also think that without the proposed fix, things look very bleak for getting a court to reach the merits of the constitutional challenge.  I have one final caveat.  I have not done a thorough lower court review or even a full inspection of how recent supreme court decisions may have expanded upon or limited either Laird or Lujan, but I am not aware of anything that would substantially alter the analysis set forth above.  I trust others will inform me if that's wrong.

Comments

[Sam Bagenstos]

David,

Wouldn't FEC v. Akins also be helpful:

Often the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found “injury in fact.” See Public Citizen, 491 U.S., at 449-450, 109 S.Ct., at 2564-2565 (“The fact that other citizens or groups of citizens might make the same complaint after unsuccessfully demanding disclosure ··· does not lessen [their] asserted injury”). Thus the fact that a political forum may be more readily available where an injury is widely shared (while counseling against, say, interpreting a statute as conferring standing) does not, by itself, automatically disqualify an interest for Article III purposes. Such an interest, where sufficiently concrete, may count as an “injury in fact.” This conclusion seems particularly obvious where (to use a hypothetical example) large numbers of individuals suffer the same common-law injury (say, a widespread mass tort), or where large numbers of voters suffer interference with voting rights conferred by law. Cf. Lujan, supra, at 572, 112 S.Ct., at 2142-2143; Shaw v. Hunt, 517 U.S. 899, 905, 116 S.Ct. 1894, 1900-1901, 135 L.Ed.2d 207 (1996). We conclude that, similarly, the informational injury at issue here, directly*25 related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts.

[LawProf]

I think Sam is exactly right. Justice Breyer's opinion in Akins shows how a statute can easily satisfy the standard that Justice Kennedy set out in his concurring opinion in Lujan. Moreover, Breyer's approach severely limits the reach of Scalia's Lujan plurality opinion. Indeed, Breyer undoes each and every premise of Scalia's opinion: that standing rests in significant part on Article II's Take Care Clause, that widely-shared grievences are not actionable and, most importantly, that standing determinations are to be based solely on the injury that the plaintiff suffered, without any reference to the reelvant statutory or constitutional provision in question. Read for all it is worth, Akins represents a wholly new direction in standing law, giving Congress freedom to create standing, essentially, whenever it wants. Akins was 7-2.

The risk is that Akins -- which involved a suit over the FEC's refusal to disclose information about PAC and campaign donations -- has been read by some lower courts exceedingly narrowly, as about "informational standing" only. David's statutory amendment goes further than that. But I think if you count the votes, David's proposal would pass muster. Breyer, Stevens, Ginsburg, Souter, and Kennedy would buy it; Scalia, Thomas, Roberts, and Alito would reject it and try to reinstate the plurality opinion in Lujan.

[Not convinced at all]

A reasonable fear would be established by evidence that the plaintiff either has regular wire communications from the U.S. to Afghanistan, Iraq or Pakistan, in the course of paid employment involving research pertaining to terrorism or terrorist groups, or commercial transactions with a bank or financial institution in those countries.

So if I send Western Union to my grandmother regularly in Afghanistan, I have standing? Where is the injury, exactly? This reminds me of Justice Douglas' contention that public interest groups can sue on behalf of trees seeking to preserve their aesthetic self-worth.