Constitution Check: Why all the interest in Article III “standing?”
Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, says the Supreme Court has already agreed to review three cases involving significant questions of standing to sue, and more are on the way.
THE STATEMENTS AT ISSUE:
“I find that J.J. Little and his law firm, J.J. Little & Associates, have standing to seek an order enjoining the future collection of their telephone metadata because they have shown a likelihood that the National Security Agency has collected and analyzed their telephone metadata and will continue to do so.”
– Excerpt from a ruling by U.S. District Judge Richard J. Leon in Washington, D.C., on
November 9, clearing the way for the judge to rule that the NSA’s massive telephone data sweeps are unconstitutional under the Fourth Amendment. That decision was blocked on November 16 by a federal appeals court, and the challenger is now seeking to take the case on to the Supreme Court.
“Like a member of the public, a state generally lacks standing to challenge the Executive’s policy choices about how to enforce federal laws, including the immigration laws. Because the [deportation] process is entrusted to the discretion of the federal government to the exclusion of the states, it is not a process in which a state inherently has a sovereign or quasi-sovereign interest. Nor does a state obtain standing to challenge a federal immigration policy by virtue of the collateral consequences for aliens who are the policy’s beneficiaries.”
– Excerpt from an appeal to the Supreme Court filed on November 20 by the Obama administration, challenging a federal appeals court ruling that the state of Texas had a right to file a lawsuit, together with 25 other states, to challenge President Obama’s new policy of deferring deportation of nearly five million undocumented immigrants. The “standing” of Texas to sue is the first issue the new appeal raised in the government’s Supreme Court filing.
WE CHECKED THE CONSTITUTION, AND…
Since 1789, the Constitution’s Article III, creating a system of federal courts, has always limited the power of those courts to deciding “cases or controversies.” That simply means that they are confined to cases involving real-world legal issues, not abstract questions. Unlike some state courts, the federal tribunals cannot issue merely advisory opinions. That has been true since the Justices refused in 1793 to give President George Washington advice about how to interpret treaties with Britain and France.
In modern times, the Supreme Court has grown more strict about who may sue in the federal courts. It has devised a three-part formula for deciding who has “standing” to sue: there must have been a genuine injury to that person or organization, it must have resulted from the government action being challenged in the lawsuit, and the courts must be able to fashion a remedy for the claimed injury. If a lawsuit fails any of those tests, it cannot go forward in a federal court.
For years, Justice Antonin Scalia has been leading a movement within the Supreme Court to tighten this concept of standing. He has insisted that it is essential to maintaining the separation of powers mandated by the Constitution, to keep the judiciary from deciding issues that should be handled by the other branches of government, and to shield the judiciary from efforts by those branches to pass off disputes for the courts to handle.
Critics have argued that this effort results in less access to the courts for people who don’t have money but do have legal grievances, and that one of the results is to shield major business firms from being held accountable for misdeeds. The court no doubt is aware of the criticism, but has not been deterred by it, although there have been dissents from the trend.
It now seems that, at every annual term of the Supreme Court, the Justices take on at least one, and usually more than one, case in which standing is a basic issue. In the current term now unfolding, the court has already agreed to review three cases with significant questions of standing to sue, and more are on the way.
In one case, the court will be deciding whether Congress can give an individual or a group of individuals a right to sue for a violation of a federal law, even though that person or group cannot show they have suffered the kind of personal injury that the court has said Article III requires. The result in that case could affect lawsuits under scores of federal laws.
In another, the court will rule on whether a group of individuals may join together in what is called a “class action” lawsuit, involving perhaps thousands and sometimes millions of individuals, when their own specific claims would not be big enough to justify suing on their own. In the case up for review, the Justices will decide if such a lawsuit can go forward when some of those in the group have not been able to show that they personally would be injured. The outcome could produce a major new limit on “class action” lawsuits – a major blow to consumer advocacy groups.
And in the third case so far granted review, the court will rule on whether members of the House of Representatives have a right to sue over a state’s congressional redistricting map, if the new map is drawn only for a district not represented by any of those who sued. The result will have some potential for limiting challenges to new election maps.
And it is now clear that the Obama administration’s defense of the President’s new immigration policy, to defer deportation of up to five million individuals who are in the country illegally, could depend upon whether the court allows state governments to have filed their lawsuit to overturn that policy. That case just reached the court last week.
That case has a strong chance of being granted review by the court in a matter of weeks.
One other case is due to reach the court -- a challenge by a Washington, D.C., lawyer and former federal prosecutor, who has sued on behalf of users of telephone services to challenge the National Security Agency’s massive telephone surveillance program.
The court itself has been skeptical of claims of a right to sue to stop the NSA program, so the new case appears to be a long shot.
As the “standing” issue continues to gain prominence, it is important for the nation’s people to follow its development, and decide for themselves whether they want to take action to influence the future meaning of Article III.