The standing of the United States: How criminal prosecutions show that standing doctrine is looking for answers in all the wrong places

Michigan Law Review

Volumn 97, Issue 7, 1997, Pages 2239-2263

  Hartnett, Edward A ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0345941755     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290185     Document Type: Article

References (145)

1. See, e.g., Department of Commerce v. United States House of Representatives, 119 S. Ct. 765, 772 (1999); Federal Election Commn. v. Akins, 118 S. Ct. 1777, 1784-87 (1998); Steel Co. v. Citizens for a Better Envt., 118 S. Ct. 1003, 1008 (1998); Bennett v. Spear, 520 U.S. 154, 160-62 (1997); United Food & Commercial Workers Union Local 751 v. Brown Group, 517 U.S. 544, 551 (1996); Northeastern Florida Chapter of the Associated General Contractors v. City of Jacksonville, 508 U.S. 656, 663-64 (1993); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Bender v. Williamsport Area School Dist., 475 U.S. 534, 542 (1986); Allen v. Wright, 468 U.S. 737, 751 (1984); Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471-72 (1982) (citations omitted for all sources).
2. See, e.g., Department of Commerce, 119 S. Ct. at 772; Clinton v. City of New York, 118 S. Ct. 2091, 2099 (1998); Raines v. Byrd, 117 S. Ct. 2312, 2317 (1997); Lujan, 504 U.S. at 560 & n.1; Allen, 468 U.S. at 751; see also Baker v. Carr, 369 U.S. 186, 204 (1962) (noting that the "gist of the question of standing" is whether the litigant has "a personal stake in the outcome") (citations omitted for all sources).
3. See, e.g., Raines, 117 S. Ct. at 2317; United States v. Hays, 515 U.S. 737, 742 (1995); Associated Gen. Contractors, 508 U.S. at 663; Lujan, 504 U.S. at 560 (citations omitted for all sources).
4. See, e.g., Hays, 515 U.S. at 743; Associated Gen. Contractors, 508 U.S. at 663; Lujan, 504 U.S. at 560 (citations omitted for all sources).
5. Akins, 118 S. Ct. at 1786.
6. Warth v. Seldin, 422 U.S. 490, 499-500 (1975) (describing bar on standing "when the asserted harm is a 'generalized grievance' shared in substantially equal measure by all or a large class of citizens" as a "prudential rule[ ]") (citations omitted); see also Allen, 468 U.S. at 751.
7. Warth, 422 U.S. at 499-500; Allen, 468 U.S. at 751.
8. Lujan, 504 U.S. at 573-74 ("We have consistently held that a plaintiff . . . 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."). Justice Kennedy's concurrence specifically noted: The Court's holding . . . is a direct and necessary consequence of the case and controversy limitations found in Article III. [I]t would exceed those limitations if . . . 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. Lujan, 504 U.S. at 580-81 (Kennedy, J., concurring).
9. Lujan, 504 U.S. at 573-74.
10. See Akins, 118 S. Ct. at 1785 ("Whether styled as a constitutional or prudential limit on standing, the Court has sometimes determined that where large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy for a widely shared grievance.").
11. Akins, 118 S. Ct. at 1786 (noting that the availability of a political forum to redress widely shared injuries "counsel[s] against, say, interpreting a statute as conferring standing"').
12. Akins, 118 S. Ct. at 1785 (internal quotation marks and citation omitted). See also Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613, 617 (1999) (noting that the Court in Akins "made clear, for the first time, that Congress can grant standing to someone who suffers a quite generalized injury"); id. at 636 (describing the Court's "key step" as distinguishing between injuries that are "widely shared" and "injuries that are 'abstract and indefinite.' . . . such as an injury 'to the interest in seeing that the law is obeyed"'); The Supreme Court 1997 Term, Leading Cases, Federal Jurisdiction & Procedure, 112 HARV. L. REV. 253, 260 (1998) [hereinafter Leading Cases] (suggesting that Akins can be read "as embracing a definition of injury distinctly broader and more accommodating than that in Lujan - a definition that distinguishes between widely shared 'concrete' injuries . . . that are sufficient to confer standing and widely shared 'abstract' injuries that are not").
13. Akins, 118 S. Ct. at 1785 (internal quotation marks and citation omitted). See also Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613, 617 (1999) (noting that the Court in Akins "made clear, for the first time, that Congress can grant standing to someone who suffers a quite generalized injury"); id. at 636 (describing the Court's "key step" as distinguishing between injuries that are "widely shared" and "injuries that are 'abstract and indefinite.' . . . such as an injury 'to the interest in seeing that the law is obeyed"'); The Supreme Court 1997 Term, Leading Cases, Federal Jurisdiction & Procedure, 112 HARV. L. REV. 253, 260 (1998) [hereinafter Leading Cases] (suggesting that Akins can be read "as embracing a definition of injury distinctly broader and more accommodating than that in Lujan - a definition that distinguishes between widely shared 'concrete' injuries . . . that are sufficient to confer standing and widely shared 'abstract' injuries that are not").
14. Akins, 118 S. Ct. at 1786.
15. See, e.g., Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement?, 78 YALE L.J. 816 (1969); William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 224-25 (1988); Louis L. Jaffe, The Citizen As Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968); Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432 (1988) [hereinafter Sunstein Public Law]; Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 166 (1992) [hereinafter Sunstein, What's Standing] (standing doctrine is "essentially an invention of federal judges, and recent ones at that"); Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371 (1988).
16. See, e.g., Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement?, 78 YALE L.J. 816 (1969); William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 224-25 (1988); Louis L. Jaffe, The Citizen As Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968); Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432 (1988) [hereinafter Sunstein Public Law]; Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 166 (1992) [hereinafter Sunstein, What's Standing] (standing doctrine is "essentially an invention of federal judges, and recent ones at that"); Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371 (1988).
17. See, e.g., Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement?, 78 YALE L.J. 816 (1969); William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 224-25 (1988); Louis L. Jaffe, The Citizen As Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968); Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432 (1988) [hereinafter Sunstein Public Law]; Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 166 (1992) [hereinafter Sunstein, What's Standing] (standing doctrine is "essentially an invention of federal judges, and recent ones at that"); Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371 (1988).
18. See, e.g., Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement?, 78 YALE L.J. 816 (1969); William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 224-25 (1988); Louis L. Jaffe, The Citizen As Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968); Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432 (1988) [hereinafter Sunstein Public Law]; Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 166 (1992) [hereinafter Sunstein, What's Standing] (standing doctrine is "essentially an invention of federal judges, and recent ones at that"); Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371 (1988).
19. See, e.g., Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement?, 78 YALE L.J. 816 (1969); William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 224-25 (1988); Louis L. Jaffe, The Citizen As Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968); Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432 (1988) [hereinafter Sunstein Public Law]; Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 166 (1992) [hereinafter Sunstein, What's Standing] (standing doctrine is "essentially an invention of federal judges, and recent ones at that"); Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371 (1988).
20. See, e.g., Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement?, 78 YALE L.J. 816 (1969); William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 224-25 (1988); Louis L. Jaffe, The Citizen As Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968); Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432 (1988) [hereinafter Sunstein Public Law]; Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 166 (1992) [hereinafter Sunstein, What's Standing] (standing doctrine is "essentially an invention of federal judges, and recent ones at that"); Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371 (1988).
21. See, e.g., Berger, supra note 14, at 819 (prohibition), 820 (certiorari), 823 (quo warranto), 825-26 (informers or qui tam); Jaffe, supra note 14, at 1035 (prohibition, certiorari, mandamus); Sunstein, What's Standing, supra note 14, at 170-79; Winter, supra note 14, at 1396 (mandamus, prohibition, certiorari), 1404 (mandamus in federal court), 1406-09 (informer or qui tam).
22. But see Bradley S. Clanton, Standing and the English Prerogative Writs: The Original Understanding, 63 BROOK. L. REV. 1001, 1008 (1997) (arguing that "a 'personal stake' or standing was indeed necessary to invoke the power of English courts in prerogative proceedings during the eighteenth century"). In reaching this conclusion, however, Clanton frequently observes that such actions "were brought by a relator in the name of the king" and were "understood to be the king's suit." Id. at 1033; see also id. at 1037 (contending that "fatal flaw" in Berger's argument is that quo warranto information, as a relator action, "was understood to be the suit of the king"); id. at 1041 (noting that "relator actions . . . were understood to be the king's actions"). In such circumstances, Clanton simply deems the relator's standing to be "irrelevant." Id. at 1037-38; 1042. This declaration does nothing to undermine the idea that the relators could initiate such actions without themselves having suffered an injury.
23. 392 U.S. 83, 120 (1968) (Harlan, J., dissenting) (pointing, in part, to the history of qui tam actions, and noting that "[t]his and other federal courts have repeatedly held that individual litigants, acting as private attorneys-general, may have standing as 'representatives of the public interest'" and that it is "clear that non-Hohfeldian plaintiffs . . . are not constitutionally excluded from the federal courts" (quoting Scripps-Howard Radio v. Commn., 316 U.S. 4. 14 (1942))). See also Flast, 392 U.S. at 130 (concluding that public actions are "within the jurisdiction conferred upon the federal courts by Article III . . .").
24. See, e.g., Berger, supra note 14, at 840 ("In sum, the notion that the constitution demands injury to a personal interest as a prerequisite to attacks on allegedly unconstitutional action is historically unfounded. . . . There may well be policy arguments in favor of a 'personal interest' limitation on standing, but they cannot rest on historically-derived constitutional compulsions."); Jaffe, supra note 14, at 1043 ("The burden of my argument . . . has been that there are no compelling constitutional reasons for denying jurisdiction of citizen and taxpayer actions. It is almost impossible any longer to contend that a Hohfeldian plaintiff is a necessary element of a case or controversy."); Sunstein, Public Law, supra note 14, at 1478-79 (presenting view that Article III requires an injury in fact is "misguided");
25. Winter, supra note 14, at 1374 ("A fuller account of our history shows that article III was not limited to the kinds of private disputes characterized by standing."). See also Richard H. Fallon, Jr., Individual Rights and the Powers of Government, 27 GA. L. REV. 343, 385 (1993) (noting that "a standing doctrine that is rooted in the requirement of injury in fact lacks intellectual coherence").
26. See generally Evan Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817 (1994).
27. OXFORD ENGLISH DICTIONARY (2d ed. 1989); see also 3 BLACKSTONE'S COMMENTARIES 160 (facsimile of first edition 1768) (U. Chi. Press 1979) (giving full Latin as "qui tam pro domino rege, & c., pro seipso in hac parte sequitur," thus indicating that the action was brought only "in part" ("in hac parte") for himself but also for the king and the rest ("&c.") - presumably the rest of the community); cf. Evan Caminker, Comment, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341, 341 n.1 (1989) (providing a slightly different version).
28. OXFORD ENGLISH DICTIONARY (2d ed. 1989); see also 3 BLACKSTONE'S COMMENTARIES 160 (facsimile of first edition 1768) (U. Chi. Press 1979) (giving full Latin as "qui tam pro domino rege, & c., pro seipso in hac parte sequitur," thus indicating that the action was brought only "in part" ("in hac parte") for himself but also for the king and the rest ("&c.") - presumably the rest of the community); cf. Evan Caminker, Comment, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341, 341 n.1 (1989) (providing a slightly different version).
29. OXFORD ENGLISH DICTIONARY (2d ed. 1989); see also 3 BLACKSTONE'S COMMENTARIES 160 (facsimile of first edition 1768) (U. Chi. Press 1979) (giving full Latin as "qui tam pro domino rege, & c., pro seipso in hac parte sequitur," thus indicating that the action was brought only "in part" ("in hac parte") for himself but also for the king and the rest ("&c.") - presumably the rest of the community); cf. Evan Caminker, Comment, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341, 341 n.1 (1989) (providing a slightly different version).
30. See Caminker, supra note 19, at 341-42 n.1.
31. See Marvin v. Trout, 199 U.S. 212, 225 (1905) (rejecting a constitutional attack on a state statute because to accept it "would be in effect to hold invalid all legislation providing for proceedings in the nature of qui tam actions"); see also United States ex rel. Marcus v. Hess, 317 U.S. 537, 541 n.4 (1943) (rejecting an argument that qui tam statutes are judicially disfavored and should be strictly construed, and noting that "[q]ui tam suits have been frequently permitted by legislative action, and have not been without defense by the courts" (footnotes omitted)).
32. See Caminker, supra note 19, at 342-43.
33. 31 U.S.C. §§ 3729-3733 (1994).
34. See 31 U.S.C. § 3730(b)(1) ("A person may bring a civil action for a violation of section 3729 for the person and for the United States Government."). In general, if the executive branch of the United States intervenes in the action, the relator's recovery ranges from 15 to 25 percent; if it does not intervene, the range is 25 to 30 percent. See 31 U.S.C. § 3730(d).
35. See, e.g., United States ex rel. Milam v. University of Texas, 961 F.2d 46, 49 (4th Cir. 1992); see also United States ex rel. Hall v. Tribal Development Corp., 49 F.3d 1208, 1212-13 (7th Cir. 1995) (upholding standing to bring a qui tam action under 25 U.S.C. §§ 81 & 201).
36. United States ex rel. Rudd v. Gen. Contractors, No. C-89- 397-RJM, at 4 (E.D. Wash. Dec. 4, 1990), quoted in United States ex rel. Burch v. Piqua Engineering, 803 F. Supp. 115, 117 n.2 (S.D. Ohio 1992).
37. See United States ex rel. Riley v. St. Luke's Episcopal Hosp., 982 F. Supp. 1261, 1267 (S.D. Tex. 1997) ("The Court's modern conception of standing, as an Article III requirement, did not come into being until relatively recently." (citing James T. Blanch, Note, The Constitutionally of the False Claims Act's Qui Tam Provision, 16 HARV. J.L. & PUB. POL. 701, 721-22 (1993)));
38. see also Blanch, supra, at 723 ("To point at history and argue that standing doctrine cannot screen out qui tam actions is to ignore the fact that at one time Article III had an entirely different screening mechanism than it has now."); Thomas R. Lee, Comment, The Standing of Qui Tam Realtors Under the False Claims Act, 57 U. CHI. L. REV. 543, 549 (1990) ("Standing is a modern game, and courts that uphold qui tam on historical grounds are playing by archaic rules.").
39. See, e.g., United States ex rel. Stillwell v. Hughes Helicopters, Inc, 714 F. Supp. 1084, 1098-99 (C.D. Cal. 1989) (concluding that the bounty is enough to create an injury in fact); Public Interest Bounty Hunters v. Board of Governors, 548 F. Supp. 157, 161 (N.D. Ga. 1982) (concluding that because of bounty, qui tam plaintiff "has suffered 'injury' of the constitutional magnitude required").
40. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 572-73 (1992) (distinguishing from citizen suits "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").
41. Burch, 803 F. Supp. at 118. Such a legislatively-created bounty can be (and may have been) understood to give the informer a property interest, see Clanton, supra note 15, at 1040, but it is circular to count such a bounty as itself an "injury."
42. See, e.g., Burch, 803 F. Supp. at 119 (finding standing based on "potential ramifications to their employment status by initiating an action under the FCA").
43. See, e.g., United States ex rel. Hall v. Tribal Development Corp., 49 F.3d 1208, 1213 (1995) (noting "that the United States is the real plaintiff in qui tam actions" and treating the relator as the government's representative); United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 748 (9th Cir. 1993) ("[T]he FCA effectively assigns the government's claims to qui tam plaintiffs . . . ."); Stillwell, 714 F. Supp. at 1097 (observing that the "private plaintiff" is "in effect, suing on the injury to the United States"); United States ex rel. Amin v. George Washington University, 26 F. Supp. 2d 162, 168 n.1 (D.D.C. 1998) ("The relator merely acts as the United States' agent in pursuing the claim."). See generally Caminker, supra note 19, at 381-83 (treating qui tam relator as representative of United States and analogous to a partial assignment); Lee, supra note 27, at 563-68 (treating qui tam relator as government's assignee). One result of this approach is that it seems to authorize qui tam actions against states, despite the Eleventh Amendment. See, e.g., United States ex rel. Stevens v. State of Vermont Agency of Natural Resources, 162 F.3d 195 (2d Cir. 1998) (holding that qui tam suit is not barred by Eleventh Amendment), cert. granted, 119 S.Ct. 2391 (1999). But see United States ex rel. Foulds v. Texas Tech. Univ., 171 F.3d 279 (5th Cir. 1999) (holding that state retained Eleventh Amendment immunity against qui tam relator); Stevens, 162 F.3d at 224 (Weinstein, J., dissenting) (arguing that "[w]hile the notion of a qui tam relator 'standing in the shoes of the United States may be sufficient to confer standing, it is not sufficient to effect a transfer of the federal government's exemption from state sovereign immunity"). Cf. United States ex rel. Long v. SCS Business & Tech. Inst., 173 F.3d 870 (D.C. Cir. 1999) (holding that states are not "persons" within meaning of the False Claims Act). See generally Jonathan R. Siegel, The Hidden Source of Congress's Power to Abrogate State Sovereign Immunity, 73 TEXAS L. REV. 539 (1995) (relying on qui tam history to argue that Congress can abrogate state sovereign immunity by authorizing private persons to bring suit in the name of the United States). The Court's recent decision in Alden v. Maine, 119 S. Ct. 2240 (1999), suggests that it is not likely to regard qui tam suits as sufficient to abrogate a state's sovereign immunity for reasons rooted in Article II. See Alden, 119 S. Ct. at 2267 (distinguishing individual action from one "commenced and prosecuted against a State in the name of the United States by those who are entrusted with the constitutional duty to 'take Care that the Laws be faithfully executed,' U.S. CONST, art. II § 3").
44. For a discussion of the Article II implications of treating the relator as a representative of the United States, see infra text accompanying notes 92-97.
45. See, e.g., Hall, 49 F.3d at 1213 ("[I]t is enough that the United States, as the represented party, has been injured."); Kelly, 9 F.3d at 748 ([Q]ui tam plaintiffs "may sue based upon an injury to the federal treasury."); United States ex rel. Kreindler v. United Technologies, 985 F.2d 1148, 1154 (2nd Cir. 1993) (plaintiff in qui tam action "invokes the standing of the government resulting from the fraud injury"); United States ex rel. Milam v. University of Texas, 961 F.2d 46, 49 (4th Cir. 1992) ("The government, and not the relator, must have suffered the 'injury in fact' reqmred for Article III standing."); Amin, 26 F. Supp. at 168 n.1 ("In a qui tam action, the United States suffers the injury and remains the true plaintiff, the party whose standing is at issue . . . ."). But see Lee, supra note 27, at 570 (claiming that standing doctrine makes an "exception" to the injury requirement "where the government itself acts as plaintiff").
46. For examples, see the cases cited supra in notes 1-3.
47. Federal Election Commn. v. Akins, 118 S. Ct. 1777, 1786 (1998).
48. AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE 115 (1997).
49. Cf. Maxwell Stearns, Standing and Social Choice: Historical Evidence, 144 U. PENN. L. REV. 309, 446 (1995) (treating standing of criminal defendants as "core" example of cases in which litigants are "interested in seeking relief on their own with no larger agenda").
50. The Bail Reform Act of 1984 provides for the temporary detention of anyone "not a citizen of the United States or lawfully admitted for permanent residence" who "may flee," 18 U.S.C. § 3142(d) (1994), so there was little hope of success with more conventional arguments at this first judicial appearance.
51. See 18 U.S.C. § 641 ("Whoever . . . steals . . . any record, voucher, money, or thing of value of the United States" shall be fined and imprisoned.).
52. See 18 U.S.C. § 1201 ("Whoever unlawfully . . . kidnaps . . . any person . . . when the person is willfully transported in interstate or foreign commerce" shall he punished by imprisonment.).
53. See 18 U.S.C. § 1341 ("Whoever, having devised . . . a scheme or artifice to defraud for the purpose of executing such scheme . . . places in any post office or authorized depository for mail matter, any matter or thing whatever" shall be fined and imprisoned.).
54. See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275, 293 (noting that Judiciary Act of 1789 "implicitly vested the district attorneys with exclusive authority to prosecute all federal crimes within their jurisdiction"); id. at 292, 296 (noting that "Congress never vested victims with a general right to prosecute defendants under federal criminal provisions" and that although "citizens in the first years under the Constitution evidently presented evidence of crimes directly to the grand jury," even if the grand jury indicted, the district attorney retained control and could drop the prosecution). Krent also argues that qui tam actions were considered "quasi-criminal." Id. at 296-303.
55. Cf. Steel Co. v. Citizens for a Better Envt., 118 S. Ct. 1003, 1019 (1998) ("[A]lthough a suitor may derive great comfort and joy from the fact that the United States Treasury is not cheated, that a wrongdoer gets his just deserts, or that the nation's laws are faithfully enforced that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury."). But see Steel Co., 118 S. Ct. at 1029 (Stevens, J., dissenting) (arguing that "imposing a sanction on the wrongdoer . . . minimize[s] the risk that harm-causing conduct will be repeated").
56. See 21 U.S.C. § 841. "Drug cases . . . now occupy one-third of the federal court caseload" of crimes. TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, AMERICAN BAR ASSOCIATION, THE FEDERALIZATION OF CRIMINAL LAW 20 (1998). In the federal criminal cases closed in 1997, more than 35% of defendants were charged with drug offenses, double the next highest category. Id. at 89 (table indicating 35.3% for drug laws and 17.1% for fraud).
57. Cf. Stearns, supra note 38, at 441-42 (noting that a criminal defendant has standing to challenge his conviction and that "[u]nless the courts address the claims on the merits, the convicted criminal will incur the most severe consequences that the state or federal government can impose").
58. See Lee, supra note 27, at 569 ("The government certainly has standing in criminal cases . . . ."); Siegel, supra note 32, at 554 ("The United States is generally a proper party to bring suit to enforce federal law . . . ."); cf. Ann Woolhandler & Michael G. Collins, State Standing, 81 VA. L. REV. 387, 392 (1995) (noting that when a state "prosecutes criminal and civil actions under its own laws in its own courts, no issue ordinarily arises as to its standing"). A closely related argument would posit certain "personal" interests unique to the sovereign. While perhaps this might have some force in a monarchy in which sovereignty is personified in the king, cf. Clanton, supra note 15, at 1038 ("[T]he king was clearly the most interested party in executing the criminal laws."), it is not persuasive in a nation established on the principle that governments "deriv[e] their just power from the consent of the governed," DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776), and whose constitution is made in the name of "We the People." U.S. CONST, preamble.
59. Cf. Lee, supra note 27, at 570 (contending that the government has "special constitutional status as plaintiff . . . and it need not show a particularized injury as a predicate to sue."); Larry W. Yackle, Worthy Champions of Fourteenth Amendment Rights: The United States As Parens Patriae, 92 Nw. L. REV. 111, 135-37 (1997) (suggesting that since modern standing doctrine was created to protect the executive, it "makes little sense, then, to turn standing doctrine against the Executive . . .").
60. Federal Election Commn. v. Akins, 118 S. Ct. 1777, 1785 (1998) (internal quotation marks and citation omitted).
61. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803).
62. Lujan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992).
63. Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 894 (1983).
64. See Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1005 (1965) (noting that "government cannot be run without the use of courts for the enforcement of coercive sanctions").
65. U.S. CONST art. III, § 2 ("The judicial power shall extend to all cases . . . arising under this Constitution, the Law of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction.").
66. U.S. CONST. art. III, § 2 ("The judicial power shall extend to . . . Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or Citizens thereof, and foreign States, Citizens or Subject.").
67. See, e.g., William A. Fletcher, The "Case or Controversy" Requirement in State Court Adjudication of Federal Questions, 78 CAL. L. REV. 263, 266 (1990) (suggesting that this explanation of the difference between "cases" and "controversies" "seems conclusive"): John Harrison The Power of Congress to Limit the Jurisdiction of the Federal Courts and the Text of Article III, 64 U. CHI. L. REV. 203, 210, 220-47 (1997) ("Cases include all legal actions, civil and criminal while controversies include only civil proceedings."); Daniel J. Meltzer, The History and Structure of Article III, 138 U. PA. L. REV. 1569, 1575-76 (1990) (supporting this distinction and noting its consistency with the Judiciary Act of 1789); James E. Pfander, Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases, 82 CAL. L. REV. 555, 605 (1994) (noting that "the term 'cases' includes both criminal and civil proceedings, whereas the term 'controversies' embraces only matters of a civil nature"); Sunstein, What's Standing, supra note 14, at 168.
68. See, e.g., William A. Fletcher, The "Case or Controversy" Requirement in State Court Adjudication of Federal Questions, 78 CAL. L. REV. 263, 266 (1990) (suggesting that this explanation of the difference between "cases" and "controversies" "seems conclusive"): John Harrison The Power of Congress to Limit the Jurisdiction of the Federal Courts and the Text of Article III, 64 U. CHI. L. REV. 203, 210, 220-47 (1997) ("Cases include all legal actions, civil and criminal while controversies include only civil proceedings."); Daniel J. Meltzer, The History and Structure of Article III, 138 U. PA. L. REV. 1569, 1575-76 (1990) (supporting this distinction and noting its consistency with the Judiciary Act of 1789); James E. Pfander, Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases, 82 CAL. L. REV. 555, 605 (1994) (noting that "the term 'cases' includes both criminal and civil proceedings, whereas the term 'controversies' embraces only matters of a civil nature"); Sunstein, What's Standing, supra note 14, at 168.
69. See, e.g., William A. Fletcher, The "Case or Controversy" Requirement in State Court Adjudication of Federal Questions, 78 CAL. L. REV. 263, 266 (1990) (suggesting that this explanation of the difference between "cases" and "controversies" "seems conclusive"): John Harrison The Power of Congress to Limit the Jurisdiction of the Federal Courts and the Text of Article III, 64 U. CHI. L. REV. 203, 210, 220-47 (1997) ("Cases include all legal actions, civil and criminal while controversies include only civil proceedings."); Daniel J. Meltzer, The History and Structure of Article III, 138 U. PA. L. REV. 1569, 1575-76 (1990) (supporting this distinction and noting its consistency with the Judiciary Act of 1789); James E. Pfander, Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases, 82 CAL. L. REV. 555, 605 (1994) (noting that "the term 'cases' includes both criminal and civil proceedings, whereas the term 'controversies' embraces only matters of a civil nature"); Sunstein, What's Standing, supra note 14, at 168.
70. See, e.g., William A. Fletcher, The "Case or Controversy" Requirement in State Court Adjudication of Federal Questions, 78 CAL. L. REV. 263, 266 (1990) (suggesting that this explanation of the difference between "cases" and "controversies" "seems conclusive"): John Harrison The Power of Congress to Limit the Jurisdiction of the Federal Courts and the Text of Article III, 64 U. CHI. L. REV. 203, 210, 220-47 (1997) ("Cases include all legal actions, civil and criminal while controversies include only civil proceedings."); Daniel J. Meltzer, The History and Structure of Article III, 138 U. PA. L. REV. 1569, 1575-76 (1990) (supporting this distinction and noting its consistency with the Judiciary Act of 1789); James E. Pfander, Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases, 82 CAL. L. REV. 555, 605 (1994) (noting that "the term 'cases' includes both criminal and civil proceedings, whereas the term 'controversies' embraces only matters of a civil nature"); Sunstein, What's Standing, supra note 14, at 168.
71. See, e.g., William A. Fletcher, The "Case or Controversy" Requirement in State Court Adjudication of Federal Questions, 78 CAL. L. REV. 263, 266 (1990) (suggesting that this explanation of the difference between "cases" and "controversies" "seems conclusive"): John Harrison The Power of Congress to Limit the Jurisdiction of the Federal Courts and the Text of Article III, 64 U. CHI. L. REV. 203, 210, 220-47 (1997) ("Cases include all legal actions, civil and criminal while controversies include only civil proceedings."); Daniel J. Meltzer, The History and Structure of Article III, 138 U. PA. L. REV. 1569, 1575-76 (1990) (supporting this distinction and noting its consistency with the Judiciary Act of 1789); James E. Pfander, Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases, 82 CAL. L. REV. 555, 605 (1994) (noting that "the term 'cases' includes both criminal and civil proceedings, whereas the term 'controversies' embraces only matters of a civil nature"); Sunstein, What's Standing, supra note 14, at 168.
72. See Robert J. Pushaw, Article III's Case/Controversy Distinction and the Dual Function of Federal Courts, 69 NOTRE DAME L. REV. 447, 494 (1994) ("[T]he federal judiciary's primary role was to be exposition in 'Cases,' with a lesser function of resolving disputes in 'Controversies.'"). This distinction may be helpful in understanding why some heads of federal jurisdiction are defined by legal subject and some are defined by party status. In Pushaw's view, current standing doctrine takes concepts that make some sense as applied to "controversies" and erroneously applies them in "cases" as well. Id. at 519 ("The Court's basic problem lies in applying [justiciability doctrines such as standing] - and their underlying dispute resolution model of adjudication - exclusively to 'Cases' . . . which primarily involve federal law declaration. Conversely, justiciability doctrines are not used where they would make the most sense: to limit the 'Controversies' (i.e., disputes) federal courts must resolve.").
73. See, e.g., Robert Pushaw, Congressional Power Over Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III, 1997 BYU L. REV. 847, 851 (parenthetically denning exposition to be "interpret[ing] and apply[ing]" the law) [hereinafter Pushaw, Congressional Power]; Pushaw, supra note 57, at 474 (defining exposition as "the process of determining, construing, and applying legal rules"); cf. Robert Pushaw, Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORN. L. REV. 393, 399 (1996) (parenthetically defining "judicial power" as "the interpretation and application of pre-existing legal rules to particular facts"). Pushaw treats "exposition" and "expound" as cognates: definition 3 of the word "expound" in THE OXFORD ENGLISH DICTIONARY (2d ed. 1989), is "to give a particular interpretation to," a usage it describes as "now chiefly in law." Pushaw might be read, however, to suggest that the judicial role in cases is not so much the enforcement of law through the issuance of judgments, but the explanation and elaboration of legal norms, ideally in published opinions. See, e.g., Pushaw, supra note 57, at 449 (claiming that a judge's "primary role" in a "case" is to "answer the legal question presented" and that a court's "main function" in "cases" is "to declare the law in matters of national and international importance"); id. at 517 ("The expository function could be exercised solely in a public judicial proceeding, culminating in a published opinion."). Such a view of the judicial role would be wrong, see Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. REV. 123, 126 (1999) ("The operative legal act performed by a court is the entry of a judgment; an opinion is simply an explanation of reasons for that judgment."), and in a letter commenting on a prior draft of this article, Pushaw has stated that the interpretation of "exposition" contained in the text is the one he intended. Letter from Robert Pushaw to author, March 25, 1999, at 4; see also Pushaw, Congressional Power, supra, at 860 (parenthetically defining "judicial power" as "the authority to render a final judgment after applying the law to particular facts"). Moreover, treating the judicial role in cases as enforcement of law rather than explanation of law permits the analysis to extend readily to federal trial courts. As criminal prosecutions illustrate, federal trial courts have a major role in applying the law to particular facts in order to secure the enforcement of the law. Cf. Pushaw, supra note 57, at 527 n.377 (conceding that "federal district courts probably have at least as important a role in settling disputes as they do in interpreting federal law" and concluding that "my analysis principally applies to federal appellate courts").
74. See, e.g., Robert Pushaw, Congressional Power Over Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III, 1997 BYU L. REV. 847, 851 (parenthetically denning exposition to be "interpret[ing] and apply[ing]" the law) [hereinafter Pushaw, Congressional Power]; Pushaw, supra note 57, at 474 (defining exposition as "the process of determining, construing, and applying legal rules"); cf. Robert Pushaw, Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORN. L. REV. 393, 399 (1996) (parenthetically defining "judicial power" as "the interpretation and application of pre-existing legal rules to particular facts"). Pushaw treats "exposition" and "expound" as cognates: definition 3 of the word "expound" in THE OXFORD ENGLISH DICTIONARY (2d ed. 1989), is "to give a particular interpretation to," a usage it describes as "now chiefly in law." Pushaw might be read, however, to suggest that the judicial role in cases is not so much the enforcement of law through the issuance of judgments, but the explanation and elaboration of legal norms, ideally in published opinions. See, e.g., Pushaw, supra note 57, at 449 (claiming that a judge's "primary role" in a "case" is to "answer the legal question presented" and that a court's "main function" in "cases" is "to declare the law in matters of national and international importance"); id. at 517 ("The expository function could be exercised solely in a public judicial proceeding, culminating in a published opinion."). Such a view of the judicial role would be wrong, see Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. REV. 123, 126 (1999) ("The operative legal act performed by a court is the entry of a judgment; an opinion is simply an explanation of reasons for that judgment."), and in a letter commenting on a prior draft of this article, Pushaw has stated that the interpretation of "exposition" contained in the text is the one he intended. Letter from Robert Pushaw to author, March 25, 1999, at 4; see also Pushaw, Congressional Power, supra, at 860 (parenthetically defining "judicial power" as "the authority to render a final judgment after applying the law to particular facts"). Moreover, treating the judicial role in cases as enforcement of law rather than explanation of law permits the analysis to extend readily to federal trial courts. As criminal prosecutions illustrate, federal trial courts have a major role in applying the law to particular facts in order to secure the enforcement of the law. Cf. Pushaw, supra note 57, at 527 n.377 (conceding that "federal district courts probably have at least as important a role in settling disputes as they do in interpreting federal law" and concluding that "my analysis principally applies to federal appellate courts").
75. See, e.g., Robert Pushaw, Congressional Power Over Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III, 1997 BYU L. REV. 847, 851 (parenthetically denning exposition to be "interpret[ing] and apply[ing]" the law) [hereinafter Pushaw, Congressional Power]; Pushaw, supra note 57, at 474 (defining exposition as "the process of determining, construing, and applying legal rules"); cf. Robert Pushaw, Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORN. L. REV. 393, 399 (1996) (parenthetically defining "judicial power" as "the interpretation and application of pre-existing legal rules to particular facts"). Pushaw treats "exposition" and "expound" as cognates: definition 3 of the word "expound" in THE OXFORD ENGLISH DICTIONARY (2d ed. 1989), is "to give a particular interpretation to," a usage it describes as "now chiefly in law." Pushaw might be read, however, to suggest that the judicial role in cases is not so much the enforcement of law through the issuance of judgments, but the explanation and elaboration of legal norms, ideally in published opinions. See, e.g., Pushaw, supra note 57, at 449 (claiming that a judge's "primary role" in a "case" is to "answer the legal question presented" and that a court's "main function" in "cases" is "to declare the law in matters of national and international importance"); id. at 517 ("The expository function could be exercised solely in a public judicial proceeding, culminating in a published opinion."). Such a view of the judicial role would be wrong, see Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. REV. 123, 126 (1999) ("The operative legal act performed by a court is the entry of a judgment; an opinion is simply an explanation of reasons for that judgment."), and in a letter commenting on a prior draft of this article, Pushaw has stated that the interpretation of "exposition" contained in the text is the one he intended. Letter from Robert Pushaw to author, March 25, 1999, at 4; see also Pushaw, Congressional Power, supra, at 860 (parenthetically defining "judicial power" as "the authority to render a final judgment after applying the law to particular facts"). Moreover, treating the judicial role in cases as enforcement of law rather than explanation of law permits the analysis to extend readily to federal trial courts. As criminal prosecutions illustrate, federal trial courts have a major role in applying the law to particular facts in order to secure the enforcement of the law. Cf. Pushaw, supra note 57, at 527 n.377 (conceding that "federal district courts probably have at least as important a role in settling disputes as they do in interpreting federal law" and concluding that "my analysis principally applies to federal appellate courts").
76. See, e.g., Robert Pushaw, Congressional Power Over Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III, 1997 BYU L. REV. 847, 851 (parenthetically denning exposition to be "interpret[ing] and apply[ing]" the law) [hereinafter Pushaw, Congressional Power]; Pushaw, supra note 57, at 474 (defining exposition as "the process of determining, construing, and applying legal rules"); cf. Robert Pushaw, Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORN. L. REV. 393, 399 (1996) (parenthetically defining "judicial power" as "the interpretation and application of pre-existing legal rules to particular facts"). Pushaw treats "exposition" and "expound" as cognates: definition 3 of the word "expound" in THE OXFORD ENGLISH DICTIONARY (2d ed. 1989), is "to give a particular interpretation to," a usage it describes as "now chiefly in law." Pushaw might be read, however, to suggest that the judicial role in cases is not so much the enforcement of law through the issuance of judgments, but the explanation and elaboration of legal norms, ideally in published opinions. See, e.g., Pushaw, supra note 57, at 449 (claiming that a judge's "primary role" in a "case" is to "answer the legal question presented" and that a court's "main function" in "cases" is "to declare the law in matters of national and international importance"); id. at 517 ("The expository function could be exercised solely in a public judicial proceeding, culminating in a published opinion."). Such a view of the judicial role would be wrong, see Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. REV. 123, 126 (1999) ("The operative legal act performed by a court is the entry of a judgment; an opinion is simply an explanation of reasons for that judgment."), and in a letter commenting on a prior draft of this article, Pushaw has stated that the interpretation of "exposition" contained in the text is the one he intended. Letter from Robert Pushaw to author, March 25, 1999, at 4; see also Pushaw, Congressional Power, supra, at 860 (parenthetically defining "judicial power" as "the authority to render a final judgment after applying the law to particular facts"). Moreover, treating the judicial role in cases as enforcement of law rather than explanation of law permits the analysis to extend readily to federal trial courts. As criminal prosecutions illustrate, federal trial courts have a major role in applying the law to particular facts in order to secure the enforcement of the law. Cf. Pushaw, supra note 57, at 527 n.377 (conceding that "federal district courts probably have at least as important a role in settling disputes as they do in interpreting federal law" and concluding that "my analysis principally applies to federal appellate courts").
77. See, e.g., Robert Pushaw, Congressional Power Over Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III, 1997 BYU L. REV. 847, 851 (parenthetically denning exposition to be "interpret[ing] and apply[ing]" the law) [hereinafter Pushaw, Congressional Power]; Pushaw, supra note 57, at 474 (defining exposition as
78. See Pfander, supra note 56, at 616 (noting that a clause that "refers to 'cases' . . . thus deals primarily with the enforcement of federal law"); cf. Harrison, supra note 56, at 231-32 (noting that "cases" include criminal prosecutions under federal statutes, state prosecutions met by federal defenses, and criminal prosecutions of foreign diplomatic or consular officers, while most "controversies" would be between individuals, so the term underlines the private nature of such disputes).
79. Federal Election Commn. v. Akins, 118 S. Ct. 1777, 1785 (1998) (internal quotation marks and citation omitted).
80. Akins, 118 S. Ct. at 1786. I do not mean to attack all Article III justiciability doctrines; my criticism is limited to current standing doctrine. In particular, I have no quarrel with the ban on advisory opinion or the finality doctrine. See Hartnett, supra note 58, at 145-46 (supporting these doctrines and noting that the "central feature that constitutes a 'case' or 'controversy' is that it results in a judgment").
81. See, e.g., Fletcher, supra note 14, at 233 (injury-in-fact requirement "impedes rather than assists analysis" because question regarding injury "must be seen as part of the question of the nature and scope of the substantive legal right on which the plaintiff relies"); id. at 291 (standing "is a question of substantive law").
82. See, e.g., Lee A. Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 YALE L.J. 425, 450-56 (1974) (standing question is whether there is private right of action); Fletcher, supra note 14, at 239 ("The essence of a standing inquiry is the meaning of the specific statute or constitutional provision upon which the plaintiff relies . . . ."); Sunstein, Public Law, supra note 14, at 1475 ("[T]he existence of standing and the existence of a cause of action present the same basic question."); Sunstein, What's Standing, supra note 14, at 166 ("The relevant question is instead whether the law - governing statutes, the Constitution, or federal common law - has conferred on the plaintiffs a cause of action."); Winter, supra note 14, at 1451 ("For over a hundred years, the metaphor of 'standing' was shorthand for the question of whether a plaintiff had asserted claims that a court of equity would enforce."); id. at 1470 ("'Standing' is and can only be a question about the legal rights at stake."). Cf. Maxwell L. Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 CAL. L. REV. 1309, 1382-83 (1995) (agreeing that standing is "inevitably substantive, rather than procedural," while contending that standing doctrine, by presumptively finding "no right to enforce the rights of others," "no right to prevent diffuse harms," and "no right to an undistorted market" works to prevent litigants from manipulating the path of the legal decisions).
83. See, e.g., Lee A. Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 YALE L.J. 425, 450-56 (1974) (standing question is whether there is private right of action); Fletcher, supra note 14, at 239 ("The essence of a standing inquiry is the meaning of the specific statute or constitutional provision upon which the plaintiff relies . . . ."); Sunstein, Public Law, supra note 14, at 1475 ("[T]he existence of standing and the existence of a cause of action present the same basic question."); Sunstein, What's Standing, supra note 14, at 166 ("The relevant question is instead whether the law - governing statutes, the Constitution, or federal common law - has conferred on the plaintiffs a cause of action."); Winter, supra note 14, at 1451 ("For over a hundred years, the metaphor of 'standing' was shorthand for the question of whether a plaintiff had asserted claims that a court of equity would enforce."); id. at 1470 ("'Standing' is and can only be a question about the legal rights at stake."). Cf. Maxwell L. Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 CAL. L. REV. 1309, 1382-83 (1995) (agreeing that standing is "inevitably substantive, rather than procedural," while contending that standing doctrine, by presumptively finding "no right to enforce the rights of others," "no right to prevent diffuse harms," and "no right to an undistorted market" works to prevent litigants from manipulating the path of the legal decisions).
84. See, e.g., Lee A. Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 YALE L.J. 425, 450-56 (1974) (standing question is whether there is private right of action); Fletcher, supra note 14, at 239 ("The essence of a standing inquiry is the meaning of the specific statute or constitutional provision upon which the plaintiff relies . . . ."); Sunstein, Public Law, supra note 14, at 1475 ("[T]he existence of standing and the existence of a cause of action present the same basic question."); Sunstein, What's Standing, supra note 14, at 166 ("The relevant question is instead whether the law - governing statutes, the Constitution, or federal common law - has conferred on the plaintiffs a cause of action."); Winter, supra note 14, at 1451 ("For over a hundred years, the metaphor of 'standing' was shorthand for the question of whether a plaintiff had asserted claims that a court of equity would enforce."); id. at 1470 ("'Standing' is and can only be a question about the legal rights at stake."). Cf. Maxwell L. Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 CAL. L. REV. 1309, 1382-83 (1995) (agreeing that standing is "inevitably substantive, rather than procedural," while contending that standing doctrine, by presumptively finding "no right to enforce the rights of others," "no right to prevent diffuse harms," and "no right to an undistorted market" works to prevent litigants from manipulating the path of the legal decisions).
85. See, e.g., Lee A. Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 YALE L.J. 425, 450-56 (1974) (standing question is whether there is private right of action); Fletcher, supra note 14, at 239 ("The essence of a standing inquiry is the meaning of the specific statute or constitutional provision upon which the plaintiff relies . . . ."); Sunstein, Public Law, supra note 14, at 1475 ("[T]he existence of standing and the existence of a cause of action present the same basic question."); Sunstein, What's Standing, supra note 14, at 166 ("The relevant question is instead whether the law - governing statutes, the Constitution, or federal common law - has conferred on the plaintiffs a cause of action."); Winter, supra note 14, at 1451 ("For over a hundred years, the metaphor of 'standing' was shorthand for the question of whether a plaintiff had asserted claims that a court of equity would enforce."); id. at 1470 ("'Standing' is and can only be a question about the legal rights at stake."). Cf. Maxwell L. Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 CAL. L. REV. 1309, 1382-83 (1995) (agreeing that standing is "inevitably substantive, rather than procedural," while contending that standing doctrine, by presumptively finding "no right to enforce the rights of others," "no right to prevent diffuse harms," and "no right to an undistorted market" works to prevent litigants from manipulating the path of the legal decisions).
86. Professor Sunstein attempts to maintain a link with Article III, contending that if there is no cause of action, there is no "case" or "controversy." Sunstein, What's Standing, supra note 14, at 222. If a plaintiff fails to state a cause of action (or, under the Federal Rules of Civil Procedure, a claim upon which relief can be granted), the dismissal is on the merits, not for lack of jurisdiction. See Bell v. Hood, 327 U.S. 678, 682 (1946) (noting that it is "well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction").
87. See Fletcher, supra note 14, at 233 ("In significant part, a debate over what constitutes 'injury in fact' sufficient for Article III is thus a debate about separation of powers and the respective responsibilities of Congress and the Court.").
88. Individuals seeking to protect their own life and liberty have at least one constitutionally required right of action and remedy: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. CONST. art. I, § 9, cl. 2. It has been held that the Fifth Amendment's just compensation clause, U.S. CONST. amend. 5, protects a constitutionally required right of action and remedy for the protection of property, First English Evangelical Lutheran Church v. County of L.A., 482 U.S. 304, 321 (1987), but the historical accuracy of this description has recently been called into question. See Robert Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 VAND. L. REV. 57 (1999). The extent to which the constitution requires the creation of additional rights of action and remedies is uncertain. See generally Richard H. Fallon & Daniel J. Meltzer, New Law, Non-Retroactivity and Constitutional Remedies, 104 HARV. L. REV. 1733 (1991); John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. (forthcoming 1999). See also Sunstein, What's Standing, supra note 14, at 210 (arguing that it is "implausible to say that constitutional provisions create [private rights of action] when the relevant duty runs to the public as a whole rather than to affected individuals").
89. Individuals seeking to protect their own life and liberty have at least one constitutionally required right of action and remedy: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. CONST. art. I, § 9, cl. 2. It has been held that the Fifth Amendment's just compensation clause, U.S. CONST. amend. 5, protects a constitutionally required right of action and remedy for the protection of property, First English Evangelical Lutheran Church v. County of L.A., 482 U.S. 304, 321 (1987), but the historical accuracy of this description has recently been called into question. See Robert Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 VAND. L. REV. 57 (1999). The extent to which the constitution requires the creation of additional rights of action and remedies is uncertain. See generally Richard H. Fallon & Daniel J. Meltzer, New Law, Non-Retroactivity and Constitutional Remedies, 104 HARV. L. REV. 1733 (1991); John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. (forthcoming 1999). See also Sunstein, What's Standing, supra note 14, at 210 (arguing that it is "implausible to say that constitutional provisions create [private rights of action] when the relevant duty runs to the public as a whole rather than to affected individuals").
90. Individuals seeking to protect their own life and liberty have at least one constitutionally required right of action and remedy: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. CONST. art. I, § 9, cl. 2. It has been held that the Fifth Amendment's just compensation clause, U.S. CONST. amend. 5, protects a constitutionally required right of action and remedy for the protection of property, First English Evangelical Lutheran Church v. County of L.A., 482 U.S. 304, 321 (1987), but the historical accuracy of this description has recently been called into question. See Robert Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 VAND. L. REV. 57 (1999). The extent to which the constitution requires the creation of additional rights of action and remedies is uncertain. See generally Richard H. Fallon & Daniel J. Meltzer, New Law, Non-Retroactivity and Constitutional Remedies, 104 HARV. L. REV. 1733 (1991); John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. (forthcoming 1999). See also Sunstein, What's Standing, supra note 14, at 210 (arguing that it is "implausible to say that constitutional provisions create [private rights of action] when the relevant duty runs to the public as a whole rather than to affected individuals").
91. Individuals seeking to protect their own life and liberty have at least one constitutionally required right of action and remedy: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. CONST. art. I, § 9, cl. 2. It has been held that the Fifth Amendment's just compensation clause, U.S. CONST. amend. 5, protects a constitutionally required right of action and remedy for the protection of property, First English Evangelical Lutheran Church v. County of L.A., 482 U.S. 304, 321 (1987), but the historical accuracy of this description has recently been called into question. See Robert Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 VAND. L. REV. 57 (1999). The extent to which the constitution requires the creation of additional rights of action and remedies is uncertain. See generally Richard H. Fallon & Daniel J. Meltzer, New Law, Non-Retroactivity and Constitutional Remedies, 104 HARV. L. REV. 1733 (1991); John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. (forthcoming 1999). See also Sunstein, What's Standing, supra note 14, at 210 (arguing that it is "implausible to say that constitutional provisions create [private rights of action] when the relevant duty runs to the public as a whole rather than to affected individuals").
92. See, e.g., Cannon v. University of Chicago, 441 U.S. 677, 730-31 (1979) (Powell, J., dissenting) ("As the Legislative Branch, Congress . . . should determine when private parties are to be given causes of action under legislation it adopts. . . . When Congress chooses not to provide a private civil remedy, federal courts should not assume the legislative role of creating such a remedy."); Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 427-30 (1971) (Black, J., dissenting) (stating that, while Congress could create right of action for damages against federal officials for violating the fourth amendment, the Court may not do so); Bivens, 403 U.S. at 412 (Burger, C.J., dissenting) (arguing that the creation of right of action for damages is exercise of legislative power and "[l]egislation is the business of Congress"); cf. Karahalios v. National Fedn. of Fed. Employees, 489 U.S. 527, 536 (1989) (refusing to recognize a private right of action and noting that "Congress undoubtedly was aware . . . that the Court had departed from its prior standard for resolving a claim urging that an implied statutory cause of action should be recognized, and that such issues were being resolved by a straightforward inquiry into whether Congress intended to provide a private cause of action"); Morse v. Republican Party of Va., 517 U.S. 186, 230 (1996) (Stevens, J., announcing the judgment of the Court) (implying a right of action under § 10 of the Voting Rights Act because Supreme Court precedent at the time the statute was enacted was much more receptive to such inferences than current precedent). See also Sunstein, Public Law, supra note 14, at 1475 ("[L]itigants do not have standing unless Congress or the Constitution has granted them a right to bring suit."); Winter, supra note 14, at 1513 ("If standing is really about the right to be recognized and its concomitant remedies, then Congress, and not the Court, should have the ultimate power to define standing.").
93. See, e.g., Cort v. Ash, 422 U.S. 66, 78 (1975) (establishing four part test for implying right of action); Bivens, 403 U.S. at 396-97 (implying private right of action for damages for violation of fourth amendment in absence of "explicit congressional declaration" to the contrary or "special factors counselling hesitation"); J.I. Case v. Borak, 377 U.S. 426, 432 (1964) (implying private right of action for damages as a "necessary supplement" to Securities & Exchange Commission enforcement); see also Henry Monaghan, Constitutional Common Law, 89 HARV. L. REV. 1, 24 (1975) (treating Bivens as a form of constitutional common law, inspired by the constitution but changeable by Congress): cf. Flast v. Cohen, 392 U.S. 83, 111-12 (1968) (Douglas, J., concurring) ("I would not be niggardly . . . in giving private attorneys general standing to sue. I would certainly not wait for Congress to give its blessing to our deciding cases clearly within our Article III jurisdiction."); United States ex rel. Marcus v. Hess, 317 U.S. 537, 541 n.4 (1943) ("Statutes providing for a reward to informers which do not specifically either authorize or forbid the informer to institute the action are construed to authorize him to sue.") (citation omitted).
94. See Fletcher, supra note 14, at 239 (suggesting that standing precedents "are useful as presumptions aids for construction"); see also id. at 252 (arguing that dismissals for lack of prudential standing are better described and understood as refusals to "infer a cause of action absent a clear statutory directive"); cf. Richard J. Pierce, Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed Limit on Legislative Power, 42 DUKE L.J. 1170, 1198-99 (1993) (arguing that all of the Court's opinions prior to Lujan were "consistent with the principle of legislative supremacy"). Such a demotion of the injury-in-fact requirement would be especially appropriate since the injury-in-fact requirement was born in an interpretation of the Administrative Procedure Act. See Sunstein, What's Standing, supra note 14, at 185-86 (discussing ADP v. Camp, 397 U.S. 150 (1970)).
95. See Fletcher, supra note 14, at 239 (suggesting that standing precedents "are useful as presumptions aids for construction"); see also id. at 252 (arguing that dismissals for lack of prudential standing are better described and understood as refusals to "infer a cause of action absent a clear statutory directive"); cf. Richard J. Pierce, Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed Limit on Legislative Power, 42 DUKE L.J. 1170, 1198-99 (1993) (arguing that all of the Court's opinions prior to Lujan were "consistent with the principle of legislative supremacy"). Such a demotion of the injury-in-fact requirement would be especially appropriate since the injury-in-fact requirement was born in an interpretation of the Administrative Procedure Act. See Sunstein, What's Standing, supra note 14, at 185-86 (discussing ADP v. Camp, 397 U.S. 150 (1970)).
96. Sunstein, supra note 12, at 672 ("Denials of standing in cases involving novel interests foreign to the existing legal culture are therefore best understood as interpretations of the underlying statute."). Under this approach, Federal Election Commn. v. Akins, 118 S. Ct. 1777 (1998) is readily reconcilable with United States v. Richardson, 418 U.S. 166 (1974) (rejecting taxpayer standing to litigate demand for regular statement and account from CIA): in Akins, but not in Richardson, there was a Congressionally created right of action. See Sunstein, supra note 12, at 642 (distinguishing Richardson from Akins and noting that if Richardson was decided correctly it was because "no source of law created a right to bring suit"); Leading Cases, supra note 12, at 261 (making this point). Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (noting that the Court must be "sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition" but that "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") (Kennedy, J., concurring).
97. Flast, 392 U.S. at 130 (Harlan, J., dissenting).
98. Flast, 392 U.S. at 131 (Harlan, J., dissenting) ("This Court has previously held that individual litigants have standing to represent the public interest, despite their lack of economic or other personal interests, if Congress has appropriately authorized such suits."). Concededly, Justice Harlan's Flast opinion speaks in terms of "standing" rather than "rights of action."
99. Bivens, 403 U.S. at 408 n.8 (Harlan, J., concurring) ("[A] court of law vested with jurisdiction over the subject matter of a suit has the power - and therefore the duty - to make principled choices among traditional judicial remedies."). Justice Harlan's emphasis on the personal interests involved in Bivens appears throughout the opinion. See Bivens, 403 U.S. at 399 ("[A] traditional judicial remedy such as damages is appropriate to the vindication of the personal interests [involved]."); 403 U.S. at 408 (noting "personal interests" protected by fourth amendment); 403 U.S. at 409 (relying in part on "experience of judges in dealing with private trespass and false imprisonment claims"). It might be thought that a similar rule should apply to civil litigation brought by the United States. See United States v. San Jacinto Tin Co., 125 U.S. 273, 285 (1888) (suggesting that, in the absence of a Congressionally created right of action, the United States could only "institute such a suit . . . upon the same general principles which authorize a private citizen to apply to a court of justice for relief"). Justice Field advocated even further restriction, refusing to "recognize the doctrine that the Attorney General takes any power by virtue of his office except what the Constitution and the laws confer." San Jacinto, 125 U.S. at 307 (Field, J., concurring in the judgment). The most prominent case rejecting this limitation should give one pause before endorsing judicially-created rights of action to vindicate the public interest. See In re Debs, 158 U.S. 564 (1895) (upholding injunction against Pullman strike of 1894 without need for Congressionally created right of action). In Debs, the Supreme Court explicitly declined to rely on any Act of Congress, 158 U.S. at 600, or to place its decision solely on the property interest of the United States in the mail carried on the railways, preferring to rest its decision on broader grounds. 158 U.S. at 583-84. It reasoned that the "obligations which [the executive branch of the United States] is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is of itself sufficient to give it a standing in court." Debs, 158 U.S. at 584. Compare CHARLES BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 24 (1969) (approving Debs by analogy to McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)) with RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 816 n.3 (4th ed. 1996) (suggesting that there is a difference between affirmative rights of action, as in Debs, and defenses, as in McCulloch). See also FALLON ET AL., supra, at 817 (suggesting that the New York Times in the Pentagon Papers case, New York Times v. United States, 403 U.S. 713 (1971), perhaps should have argued that the United States needed a Congressionally created right of action before it could bring suit); Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 65-66 (1993) (suggesting that Debs can be "at least understood," if not defended, as an example of the protective power of the executive, without statutory authority, "to make contracts and, more importantly, to sue to protect the personnel and property interests of the United States, and when necessary to use force and other resources to protect them").
100. Bivens, 403 U.S. at 408 n.8 (Harlan, J., concurring) ("[A] court of law vested with jurisdiction over the subject matter of a suit has the power - and therefore the duty - to make principled choices among traditional judicial remedies."). Justice Harlan's emphasis on the personal interests involved in Bivens appears throughout the opinion. See Bivens, 403 U.S. at 399 ("[A] traditional judicial remedy such as damages is appropriate to the vindication of the personal interests [involved]."); 403 U.S. at 408 (noting "personal interests" protected by fourth amendment); 403 U.S. at 409 (relying in part on "experience of judges in dealing with private trespass and false imprisonment claims"). It might be thought that a similar rule should apply to civil litigation brought by the United States. See United States v. San Jacinto Tin Co., 125 U.S. 273, 285 (1888) (suggesting that, in the absence of a Congressionally created right of action, the United States could only "institute such a suit . . . upon the same general principles which authorize a private citizen to apply to a court of justice for relief"). Justice Field advocated even further restriction, refusing to "recognize the doctrine that the Attorney General takes any power by virtue of his office except what the Constitution and the laws confer." San Jacinto, 125 U.S. at 307 (Field, J., concurring in the judgment). The most prominent case rejecting this limitation should give one pause before endorsing judicially-created rights of action to vindicate the public interest. See In re Debs, 158 U.S. 564 (1895) (upholding injunction against Pullman strike of 1894 without need for Congressionally created right of action). In Debs, the Supreme Court explicitly declined to rely on any Act of Congress, 158 U.S. at 600, or to place its decision solely on the property interest of the United States in the mail carried on the railways, preferring to rest its decision on broader grounds. 158 U.S. at 583-84. It reasoned that the "obligations which [the executive branch of the United States] is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is of itself sufficient to give it a standing in court." Debs, 158 U.S. at 584. Compare CHARLES BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 24 (1969) (approving Debs by analogy to McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)) with RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 816 n.3 (4th ed. 1996) (suggesting that there is a difference between affirmative rights of action, as in Debs, and defenses, as in McCulloch). See also FALLON ET AL., supra, at 817 (suggesting that the New York Times in the Pentagon Papers case, New York Times v. United States, 403 U.S. 713 (1971), perhaps should have argued that the United States needed a Congressionally created right of action before it could bring suit); Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 65-66 (1993) (suggesting that Debs can be "at least understood," if not defended, as an example of the protective power of the executive, without statutory authority, "to make contracts and, more importantly, to sue to protect the personnel and property interests of the United States, and when necessary to use force and other resources to protect them").
101. Bivens, 403 U.S. at 408 n.8 (Harlan, J., concurring) ("[A] court of law vested with jurisdiction over the subject matter of a suit has the power - and therefore the duty - to make principled choices among traditional judicial remedies."). Justice Harlan's emphasis on the personal interests involved in Bivens appears throughout the opinion. See Bivens, 403 U.S. at 399 ("[A] traditional judicial remedy such as damages is appropriate to the vindication of the personal interests [involved]."); 403 U.S. at 408 (noting "personal interests" protected by fourth amendment); 403 U.S. at 409 (relying in part on "experience of judges in dealing with private trespass and false imprisonment claims"). It might be thought that a similar rule should apply to civil litigation brought by the United States. See United States v. San Jacinto Tin Co., 125 U.S. 273, 285 (1888) (suggesting that, in the absence of a Congressionally created right of action, the United States could only "institute such a suit . . . upon the same general principles which authorize a private citizen to apply to a court of justice for relief"). Justice Field advocated even further restriction, refusing to "recognize the doctrine that the Attorney General takes any power by virtue of his office except what the Constitution and the laws confer." San Jacinto, 125 U.S. at 307 (Field, J., concurring in the judgment). The most prominent case rejecting this limitation should give one pause before endorsing judicially-created rights of action to vindicate the public interest. See In re Debs, 158 U.S. 564 (1895) (upholding injunction against Pullman strike of 1894 without need for Congressionally created right of action). In Debs, the Supreme Court explicitly declined to rely on any Act of Congress, 158 U.S. at 600, or to place its decision solely on the property interest of the United States in the mail carried on the railways, preferring to rest its decision on broader grounds. 158 U.S. at 583-84. It reasoned that the "obligations which [the executive branch of the United States] is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is of itself sufficient to give it a standing in court." Debs, 158 U.S. at 584. Compare CHARLES BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 24 (1969) (approving Debs by analogy to McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)) with RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 816 n.3 (4th ed. 1996) (suggesting that there is a difference between affirmative rights of action, as in Debs, and defenses, as in McCulloch). See also FALLON ET AL., supra, at 817 (suggesting that the New York Times in the Pentagon Papers case, New York Times v. United States, 403 U.S. 713 (1971), perhaps should have argued that the United States needed a Congressionally created right of action before it could bring suit); Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 65-66 (1993) (suggesting that Debs can be "at least understood," if not defended, as an example of the protective power of the executive, without statutory authority, "to make contracts and, more importantly, to sue to protect the personnel and property interests of the United States, and when necessary to use force and other resources to protect them").
102. See, e.g., Fletcher, supra note 14, at 277 (describing Justice Harlan's opinion in Flast as "widely admired").
103. See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812) ("The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare that Court that shall have jurisdiction of the offence."); Hudson & Goodwin, 11 U.S. at 32 ("Although this question is brought up now for the first time to be decided by this Court, we consider it as having been long since settled in public opinion."). Significantly, the Court in Hudson & Goodwin was willing to assume, at least arguendo, an implied power in the United States to "preserve its own existence, and promote the end and object of its creation," but insisted that it did not follow that the courts could act without an act of legislation. 11 U.S. at 33-34. See also United States v. Coolidge, 14 U.S. (1 Wheat.) 415 (1816) (refusing to draw Hudson & Goodwin into doubt).
104. Cf. Stearns, supra note 38, at 456 ("The injury in fact requirement . . . is intended to protect Congress's power to govern. Critical to that power . . . is the power not to make law unless and until an appropriate consensus forms.").
105. See, e.g., Yackle, supra note 48, at 130 (suggesting that the executive should have a right of action to enforce constitutional rights, even if "there are occasions," such as criminal prosecutions, "when we might demand explicit congressional authority for suits to enforce federal statutes").
106. Of course, one might rephrase the question to concern the appropriate scope of "judicial power" under Article III, and thus make it an Article III question. I don't deny that what I describe as an Article I question can be thought of as an Article III question, or (perhaps more precisely) as a question about the relative scope of Articles I and III. My point in labeling it an Article I rather than an Article III question is to highlight the fact that it has everything to do with the scope of the legislative power, and nothing to do with the meaning of the terms "case" and "controversy."
107. See supra Part II.
108. See supra section III. A.
109. See Sunstein, What's Standing, supra note 14, at 213 ("[M]any of the recent standing cases might be thought to be Article II cases masquerading under the guise of Article III.").
110. See Scalia, supra note 52, at 894.
111. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
112. Morrison v. Olson, 487 U.S. 654, 708 (1988).
113. He wrote: Our opinion is not motivated, as Justice Stevens suggests, by the more specific separation-of-powers concern that this citizen's suit "somehow interferes with the Executive's power to 'take Care that the Laws be faithfully executed,' Art. II, § 3 . . . ." The courts must stay within their constitutionally prescribed sphere of action, whether or not exceeding that sphere will harm one of the other two branches. This case calls for nothing more than a straightforward application of our standing jurisprudence, which, though it may sometimes have an impact on presidential powers, derives from Article III, and not Article II. Steel Co. v. Citizens for a Better Envt., 523 U.S. 83, 102 n.4 (1998) (quoting 523 U.S. at 129 (Stevens, J., concurring in the judgment)). Cf. Harold J. Krent & Ethan G. Shenkman, Of Citizen Suits and Citizen Sunstein, 91 MICH. L. REV. 1793, 1806 (1993) (relying on Article II's unitary executive to conclude that "Congress should not be able to confer on private citizens the general power to vindicate rights shared by the public as a whole."). Clanton, supra note 15, at 1040, n.251 (noting that a legislatively-created bounty might be a sufficient personal stake for an informer action, but relying on Article II to conclude that "separation of powers principles in the United States limit Congress' ability to give the public at large penalties to prosecute others for breaches of law").
114. Lujan, 504 U.S. at 577. In his dissent in Akins, Justice Scalia reiterated the same concern. "A system in which the citizenry at large could sue to compel executive compliance with the law would be a system in which the courts, rather than the President, are given the primary responsibility to 'take Care that the Laws be faithfully executed.' Art. II, § 3." Federal Election Commn. v. Akins, 118 S. Ct. 1777, 1791 (1992) (Scalia, J., dissenting). A similar reliance on Article II appears in Justice Kennedy's opinion for the Court in Alden v. Maine, 119 S.Ct. 2240 (1999). There the Court held that Congress lacks the Article I power to authorize private litigants to bring suits for money damages against unconsenting states, but distinguished suits brought "in the name of the United States by those who are entrusted with the constitutional duty to 'take care that the laws be faithfully executed,' U.S. CONST. art. II, § 3." Alden, 119 S.Ct. at 2267.
115. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541 (1994); Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992).
116. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541 (1994); Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992).
117. See, e.g., Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1792 (1996) (arguing that history does not support a formalist interpretation of the separation of powers and that the "Constitution was a sketch that left the future resolution of separation of powers matters mainly to the processes inked in at the highest levels of the three branches").
118. See, e.g., Abner Greene, Checks & Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 128 (1994) ("[E]ven if in the nondelegation doctrine days Congress could not constitutionally regulate presidential control of agency officials . . . in the post-nondelegation doctrine world such congressional actions restore a proper balance of power consonant with the framers' view of checks and balances.").
119. See, e.g., Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 86 (1994) (arguing that the framers distinguished between executive power and administrative power, but suggesting that "[u]nder current circumstances, a strongly unitary executive is the best way of keeping faith with the most fundamental goals of the original scheme").
120. State officials present another possibility, cf. Maine v. Taylor, 477 U.S. 131 (1986) (permitting Maine standing to appeal from a federal court of appeals judgment in a federal prosecution), but from the perspective of federal separation of powers, they can be assimilated to private actors. Cf. Printz v. United States, 117 S. Ct. 2365 (1997) (holding, as a matter of federalism, that federal government cannot command state officers to enforce federal regulatory program).
121. Cf. 28 U.S.C. § 547(1) (1994) (authorizing United States attorneys, not citizens generally, to "prosecute for all offenses against the United States").
122. See, e.g., GEORGE E. HARRIS, A TREATISE ON THE LAW OF CERTIORARI AT COMMON LAW AND UNDER THE STATUTES § 1, at 2 (1893) (noting one definition of a writ of certiorari as "an original writ . . . directed in the king's name" (quoting MATTHEW BACON, A NEW ABRIDGEMENT OF THE LAW 162 (Sir Henry Gwyllin & Charles Edward Dodd eds., 1852) (1768))); JAMES L. HIGH, A TREATISE ON EXTRAORDINARY LEGAL REMEDIES, EMBRACING MANDAMUS, QUO WARRANTO, AND PROHIBITION § 430, at 419 (3d ed. 1896) (explaining that , mandamus proceedings are instituted in the name of the state or sovereign); id. § 697, at 653- 54 (noting the common law rule that quo warranto proceedings be instituted in the name of the state or sovereign power). Such writs also came to be used to protect private interests. See, e.g., HIGH, supra, § 430, at 419 (noting that use of the sovereign's name was treated as "merely nominal"); S.S. MERILL, LAW OF MANDAMUS § 228, at 286 (1892) (recognizing "long-established" rule that a writ of mandamus "runs in the name of the state to protect private interests"). See also Clanton, supra note 15, at 1033-41.
123. See, e.g., GEORGE E. HARRIS, A TREATISE ON THE LAW OF CERTIORARI AT COMMON LAW AND UNDER THE STATUTES § 1, at 2 (1893) (noting one definition of a writ of certiorari as "an original writ . . . directed in the king's name" (quoting MATTHEW BACON, A NEW ABRIDGEMENT OF THE LAW 162 (Sir Henry Gwyllin & Charles Edward Dodd eds., 1852) (1768))); JAMES L. HIGH, A TREATISE ON EXTRAORDINARY LEGAL REMEDIES, EMBRACING MANDAMUS, QUO WARRANTO, AND PROHIBITION § 430, at 419 (3d ed. 1896) (explaining that , mandamus proceedings are instituted in the name of the state or sovereign); id. § 697, at 653- 54 (noting the common law rule that quo warranto proceedings be instituted in the name of the state or sovereign power). Such writs also came to be used to protect private interests. See, e.g., HIGH, supra, § 430, at 419 (noting that use of the sovereign's name was treated as "merely nominal"); S.S. MERILL, LAW OF MANDAMUS § 228, at 286 (1892) (recognizing "long-established" rule that a writ of mandamus "runs in the name of the state to protect private interests"). See also Clanton, supra note 15, at 1033-41.
124. See, e.g., GEORGE E. HARRIS, A TREATISE ON THE LAW OF CERTIORARI AT COMMON LAW AND UNDER THE STATUTES § 1, at 2 (1893) (noting one definition of a writ of certiorari as "an original writ . . . directed in the king's name" (quoting MATTHEW BACON, A NEW ABRIDGEMENT OF THE LAW 162 (Sir Henry Gwyllin & Charles Edward Dodd eds., 1852) (1768))); JAMES L. HIGH, A TREATISE ON EXTRAORDINARY LEGAL REMEDIES, EMBRACING MANDAMUS, QUO WARRANTO, AND PROHIBITION § 430, at 419 (3d ed. 1896) (explaining that , mandamus proceedings are instituted in the name of the state or sovereign); id. § 697, at 653-54 (noting the common law rule that quo warranto proceedings be instituted in the name of the state or sovereign power). Such writs also came to be used to protect private interests. See, e.g., HIGH, supra, § 430, at 419 (noting that use of the sovereign's name was treated as "merely nominal"); S.S. MERILL, LAW OF MANDAMUS § 228, at 286 (1892) (recognizing "long-established" rule that a writ of mandamus "runs in the name of the state to protect private interests"). See also Clanton, supra note 15, at 1033-41.
125. See, e.g., GEORGE E. HARRIS, A TREATISE ON THE LAW OF CERTIORARI AT COMMON LAW AND UNDER THE STATUTES § 1, at 2 (1893) (noting one definition of a writ of certiorari as "an original writ . . . directed in the king's name" (quoting MATTHEW BACON, A NEW ABRIDGEMENT OF THE LAW 162 (Sir Henry Gwyllin & Charles Edward Dodd eds., 1852) (1768))); JAMES L. HIGH, A TREATISE ON EXTRAORDINARY LEGAL REMEDIES, EMBRACING MANDAMUS, QUO WARRANTO, AND PROHIBITION § 430, at 419 (3d ed. 1896) (explaining that , mandamus proceedings are instituted in the name of the state or sovereign); id. § 697, at 653- 54 (noting the common law rule that quo warranto proceedings be instituted in the name of the state or sovereign power). Such writs also came to be used to protect private interests. See, e.g., HIGH, supra, § 430, at 419 (noting that use of the sovereign's name was treated as "merely nominal"); S.S. MERILL, LAW OF MANDAMUS § 228, at 286 (1892) (recognizing "long-established" rule that a writ of mandamus "runs in the name of the state to protect private interests"). See also Clanton, supra note 15, at 1033-41.
126. 424 U.S. 1, 140 (1976) ("[P]rimary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights . . . may be discharged only by persons who are 'Officers of the United States'.").
127. See Caminker, supra note 19, at 374-80 (doubting that Buckley should be understood as "enshrining a public/private interest distinction governing the appointments clause" and suggesting that a one-shot litigant without authority over government employees need not be an "officer"). See also, e.g., Auffmordt v. Hedden, 137 U.S. 310, 327 (1890) (person "without tenure, duration, continuing emolument, or continous duties, and [who] acts only occasionally and temporarily" is not "officer" of United States); United States ex rel. Stillwell v. Hughes Helicopters, 714 F. Supp. 1084, 1095 (C.D. Cal. 1989) (interpreting Buckley as "preventing Congress from attempting to enforce federal law"); United States ex rel. Truong v. Northrop Corp., 728 F. Supp. 615, 623 (C.D. Cal. 1989 (interpreting Court in Buckley as "concerned that Congress was encroaching impermissibly on executive branch functions"). Office of Legal Counsel, The Constitutional Separation of Powers Between the President and Congress, 1996 WL 876050 at § IIB1 & n.66 (preliminary print, May 7, 1996) (concluding that qui tam statute is constitutional under the best reading of Buckley, and explicitly disapproving prior OLC opinion to the contrary).
128. See Morrison v. Olson, 487 U.S. 654 (1988) (upholding independent counsel statute); Bowser v. Syrna, 478 U.S. 714 (1986) (holding that Congress may not place executive power in a person answerable to Congress); INS v. Chadha, 462 U.S. 919 (1983) (permitting delegation of Congressional authority to INS but invalidating legislative veto.) See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991) (holding on basic separation of powers grounds that members of Congress may not sit on board that exercises executive power); Airports Auth., 501 U.S. at 277 n.23 (declining to address incompatibility cause, ineligibility clause, and appointments clause arguments); see generally Greene, supra note 89, at 126 ("Congress may give away legislative power and insulate such delegated power from total presindential control, but Congress may n[ot] draw executive power to itself."); Lessig & Sunstein, supra note 90, at 115-16 (arguing that preventing Congress from having a role in the enforcement of law both preserves liberty and reduces the incentives toward Congressional delegation).
129. U.S. CONST. art. II, §.2 ("[T]he Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."). Such a mechanism would not be valid if the litigant to be appointed were considered a principal officer, who must be appointed by the President, see Edmond v. United States, 520 U.S. 651, 659 (1997), or if inferior officers may only be appointed by their superiors. See Akhil Amar, Intratextualism, 112 HARV. L. REV. 747, 805 (1999) (arguing that inferior officers may only be appointed by their superiors);
130. Akhil Amar, Some Opinions on the Opinions Clause, 82 VA. L. REV. 647, 669 (1996) (arguing that "interbranch appointments are ruled out by the relational word 'inferior;"). But see Morrison v. Olson, 487 U.S. 654, 673-74 (1988) (permitting interbranch appointments); see also Act of June 24, 1898, ch. 495 § 2, 30 Stat. 487, current version at 28 U.S.C. 546(d) (providing for interim appointment of United States Attorney by district court). Yet again, this highlights that the debate is better focused on Article II than on Article III.
131. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 578 (1992) ("[I]n suits against the government, at least, the concrete injury requirement must remain."); Allen v. Wright, 468 U.S. 737, 750-52 (1984) (suit against Secretary of Treasury and Commissioner of Internal Revenue).
132. See Sunstein, What's Standing, supra note 14, at 231 ("[I]f Article III does indeed require a personal stake, the identification of the defendant should not matter."). It might be thought that there is an Article III difference in that "judicial power" does not include the power to command executive discretion. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) ("[T]he province of the courts is . . . not to inquire how the executive, or executive officers, perform duties in which they have a discretion."). But the scope of executive discretion is defined "by the constitution and law." Marbury, 5 U.S. at 170 - that is, by Article II and law enacted pursuant to Article I. Thus Article III is not doing any independent work. There may nonetheless be an Article III issue lurking here: if both sides of the "v." are controlled by the same person, the case may be considered feigned. See generally Michael Herz, United States v. United States: When Can the Federal Government Sue Itself?, 32 WM. & MARY L. REV. 893, 917-18 (1991) (exploring the possibility that intragovernmental disputes are not justiciable but generally rejecting it); William K. Kelley, The Constitutional Dilemma of Litigation Under the Independent Counsel System, 83 MINN. L. REV. 1197, 1255 (1999) (arguing that, for Article III purposes, "the better way to consider whether the parties could properly litigate against one another is . . . whether one of them, or an officer superior to them, has the authority in law to dictate the outcome without resorting to court").
133. See Sunstein, What's Standing, supra note 14, at 231 ("[I]f Article III does indeed require a personal stake, the identification of the defendant should not matter."). It might be thought that there is an Article III difference in that "judicial power" does not include the power to command executive discretion. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) ("[T]he province of the courts is . . . not to inquire how the executive, or executive officers, perform duties in which they have a discretion."). But the scope of executive discretion is defined "by the constitution and law." Marbury, 5 U.S. at 170 - that is, by Article II and law enacted pursuant to Article I. Thus Article III is not doing any independent work. There may nonetheless be an Article III issue lurking here: if both sides of the "v." are controlled by the same person, the case may be considered feigned. See generally Michael Herz, United States v. United States: When Can the Federal Government Sue Itself?, 32 WM. & MARY L. REV. 893, 917-18 (1991) (exploring the possibility that intragovernmental disputes
134. See Sunstein, What's Standing, supra note 14, at 231 ("[I]f Article III does indeed require a personal stake, the identification of the defendant should not matter."). It might be thought that there is an Article III difference in that "judicial power" does not include the power to command executive discretion. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) ("[T]he province of the courts is . . . not to inquire how the executive, or executive officers, perform duties in which they have a discretion."). But the scope of executive discretion is defined "by the constitution and law." Marbury, 5 U.S. at 170 - that is, by Article II and law enacted pursuant to Article I. Thus Article III is not doing any independent work. There may nonetheless be an Article III issue lurking here: if both sides of the "v." are controlled by the same person, the case may be considered feigned. See generally Michael Herz, United States v. United States: When Can the Federal Government Sue Itself?, 32 WM. & MARY L. REV. 893, 917-18 (1991) (exploring the possibility that intragovernmental disputes are not justiciable but generally rejecting it); William K. Kelley, The Constitutional Dilemma of Litigation Under the Independent Counsel System, 83 MINN. L. REV. 1197, 1255 (1999) (arguing that, for Article III purposes, "the better way to consider whether the parties could properly litigate against one another is . . . whether one of them, or an officer superior to them, has the authority in law to dictate the outcome without resorting to court").
135. See, e.g., Raines v. Byrd, 117 S. Ct. 2312, 2317 (1997) (concluding that members of Congress lacked standing to challenge the line-item veto, despite an Act of Congress providing for such an action, because they lacked a "personal injury"). See The Supreme Court: Leading Cases, 111 HARV. L. REV. 197, 218 (1997) ("[T]he law of legislative standing after Raines is a doctrine fraught with analytical inconsistency and uncertain boundaries."). Despite a clear opportunity to do so this year, the Court did not attempt to clarify Congressional standing in Department of Commerce v. United States House of Representatives, 119 S. Ct. 765 (1999). Instead, the court consolidated two cases involving challenges to the use of sampling in the 2000 census, one brought by the House of Representatives and another brought by various voters. It decided the case brought by the voters on the merits, and, in light of that disposition, dismissed the case brought by the House for want of a "substantial federal question," without addressing the standing of the House. Dept. of Commerce, 119 S. Ct. at 779. Only Justices Stevens and Breyer concluded that the House had standing "to challenge the validity of the process that will determine the size of each State's Congressional delegation." Dept. of Commerce, 119 S. Ct. at 789 (Stevens, J., joined by Breyer, J., dissenting). Although Justices Ginsburg and Souter agreed with Justice Stevens on the merits, they agreed with the majority - but without explanation - that the case filed by the House should be dismissed. Dept. of Commerce, 119 S. Ct. at 789 (Ginsburg, J., joined by Souter, J, dissenting). It appears that, having lost on the merits in the case brought by the various voters, they accepted that decision as precedent in the case brought by the House. For an exploration of when a judge should treat a prior decision in which her position was rejected as a baseline for further decisions, see Suzanna Sherry, Justice O'Connor's Dilemma: The Baseline Question, 39 WM. & MARY L. REV. 865 (1998). Cf. Hartnett, supra note 58, at 141-45 (arguing that judges in a single case should not vote on each issue and accept the majority resolution of each issue, but instead should adhere to the tradition of simply voting on the judgment).
136. See, e.g., Raines v. Byrd, 117 S. Ct. 2312, 2317 (1997) (concluding that members of Congress lacked standing to challenge the line-item veto, despite an Act of Congress providing for such an action, because they lacked a "personal injury"). See The Supreme Court: Leading Cases, 111 HARV. L. REV. 197, 218 (1997) ("[T]he law of legislative standing after Raines is a doctrine fraught with analytical inconsistency and uncertain boundaries."). Despite a clear opportunity to do so this year, the Court did not attempt to clarify Congressional standing in Department of Commerce v. United States House of Representatives, 119 S. Ct. 765 (1999). Instead, the court consolidated two cases involving challenges to the use of sampling in the 2000 census, one brought by the House of Representatives and another brought by various voters. It decided the case brought by the voters on the merits, and, in light of that disposition, dismissed the case brought by the House for want of a "substantial federal question," without addressing the standing of the House. Dept. of Commerce, 119 S. Ct. at 779. Only Justices Stevens and Breyer concluded that the House had standing "to challenge the validity of the process that will determine the size of each State's Congressional delegation." Dept. of Commerce, 119 S. Ct. at 789 (Stevens, J., joined by Breyer, J., dissenting). Although Justices Ginsburg and Souter agreed with Justice Stevens on the merits, they agreed with the majority - but without explanation - that the case filed by the House should be dismissed. Dept. of Commerce, 119 S. Ct. at 789 (Ginsburg, J., joined by Souter, J, dissenting). It appears that, having lost on the merits in the case brought by the various voters, they accepted that decision as precedent in the case brought by the House. For an exploration of when a judge should treat a prior decision in which her position was rejected as a baseline for further decisions, see Suzanna Sherry, Justice O'Connor's Dilemma: The Baseline Question, 39 WM. & MARY L. REV. 865 (1998). Cf. Hartnett, supra note 58, at 141-45 (arguing that judges in a single case should not vote on each issue and accept the majority resolution of each issue, but instead should adhere to the tradition of simply voting on the judgment).
137. This question seems to have been all but ignored in the congressional standing cases in the Court of Appeals for the District of Columbia. See, e.g., Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985) (permitting Senate and members of Congress standing to challenge pocket veto), vacated, 479 U.S. 361 (1987); Barnes, 759 F.2d at 41 (Bork, J., dissenting) (decrying Congressional standing); Moore v. United States House of Rep., 733 F.2d 946 (D.C. Cir. 1984) (permitting members of Congress standing to sue the two Houses and their officers to enforce the origination clause), cert. denied, 469 U.S. 1106 (1985); Moore, 733 F.2d at 956 (Scalia, J., dissenting) (objecting to such standing); Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir 1974) (permitting member of Congress standing to challenge pocket veto); see also Chenoworth v. Clinton, 1999 WL 446007 (D.C. Cir. July 2, 1999) (treating reasoning of Moore and Kennedy as repudiated by Raines). Congress, of course, is not likely to create rights of action against itself, its Houses, or its officers. Nor is the President likely to sign bills creating Congressional rights of action against the executive. The major exception would seem to be if Congress and the President are eager for a judicial resolution of a constitutional question, as they may have been concerning the line-item veto. See 2 U.S.C. § 692(a)(1) (Supp. 1998) (providing that any Member of Congress may sue to challenge line-item veto statute). Such a situation, however, may simply take us out of the standing frying pan into the advisory opinion fire. See Neal Devins & Michael A. Fitts, The Triumph of Timing: Raines v. Byrd and the Modern Supreme Court's Attempt to Control Constitutional Confrontations, 86 GEO. L.J. 351, 351 (1997) (stating that in enacting a statutory grant of standing to members of Congress in the 1996 Line Item Veto Act, "Congress effectively asked the Court . . . to determine whether [the] proposed legislation was constitutional"); Fletcher, supra note 14, at 283-90 (suggesting that when Congress enacts a law providing for Congressional standing, it resembles a request for advisory opinions).
138. Shifting the focus from Article III also offers a way to reconcile the denial of Congressional standing in Raines with the recognition of state legislative standing in Coleman v. Miller, 307 U.S. 433 (1939) (holding that a block of twenty state senators from Kansas had standing to seek to compel a state official to certify that a federal constitutional amendment had not been ratified where the state senate voted twenty to twenty and the Lieutenant Governor cast a deciding vote in favor of the amendment). In Coleman, which involved state legislators, there was no federal separation of powers issue. Cf. Raines, 117 S. Ct. at 2319-20 & n.8 (distinguishing Coleman on the grounds that the voting block in Coleman was sufficient to control the outcome if they were correct that the Lieutenant Governor was not part of the legislature for purposes of ratifying a federal constitutional amendment, and noting that it "need not decide whether Coleman may also be distinguished" on the ground that it "has no applicability to a similar suit brought by federal legislators, since the separation-of-powers concerns present in such a suit were not present in Coleman"). Of course, there is always the question whether any particular Congressionally-created right of action is best understood as an attempt to empower itself or its members to vindicate the public interest. Cf. Raines, 117 S. Ct. at 2323 (Souter, J., concurring in the judgment) (stating that members of Congress are "not simply claiming harm to their interest in having government abide by the Constitution," and that it is "fairly debatable" whether their injury is "sufficiently personal and concrete to give them standing" and therefore "resolv[ing] the question under more general separation-of-power principles").
139. See supra text accompanying notes 94-97.
140. U.S. CONST. art. I, § 6 ("[N]o Person holding Office under the United States, shall be a Member of either House during his Continuance in Office."). For an argument that the incompatibility clause is "the cornerstone of the entire American constitutional structure," see Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel?, 79 CORNELL L. REV. 1045, 1157 (1994). While the Supreme Court has held that citizens and taxpayers lack standing to bring an action challenging Congressional membership in the military reserve based on the incompatibility clause, Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974). this does not mean that a court should ignore the incompatibility clause when adjudicating a claim brought by a member of Congress. Reservists, like other standing decisions, is better understood as a judicial refusal to create a public right of action to enforce the incompatibility clause; it should not bar a defensive challenge to the authority of a member of Congress under that clause. There is a significant difference between creating a right of action and recognizing that a defendant may object to the constitutional authority of the plaintiff to bring the action against him. See FALLON ET AL., supra note 73, at 816 n.3 (suggesting that there is a difference between affirmative rights of action and defenses); Calabresi & Larsen, supra, at n.12 (stating that if a member of Congress was acting as an officer of the United States and "taking government action that bore down on the life, liberty, or property rights of a private individual . . . we would have no doubt that the private individual so affected would have standing to defend against the government action on the ground that it was unconstitutional because of a violation of the Incompatibility Clause.").
141. See supra note 96.
142. See Raines, 117 S. Ct. at 2323 (Souter, J., concurring in the judgment) ("There is, first, difficulty in applying the rule that an injury on which standing is predicated be personal, not official."); Raines, 117 S. Ct. at 2323 n.2 ("[A]n injury to official authority may support standing for a government itself or its duly authorized agents."). The cases which Justice Souter relies upon to support the standing of officials, however, are cases that arose in the context of a state official seeking review in the Supreme Court of the United States, in his official capacity, of a judgment of his own state's court. For a discussion of these cases arguing that the Supreme Court should not have abandoned its earlier doctrine barring such cases from its jurisdiction, see Edward A. Hartnett, Why Is the Supreme Court of the United States Protecting State Judges from Popular Democracy?, 75 TEXAS L. REV. 907, 957-71 (1997).
143. See Steel Co. v. Citizens for a Better Envt., 523 U.S. 83, 129 (1998) (Stevens, J., concurring in the judgment) (suggesting that Justice Scalia's opinion for the Court might be "rooted in another separation of powers concern: that this citizen suit somehow interferes with the Executive's power to 'take Care that the Laws be faithfully executed'").
144. Federal Election Commn. v. Akins, 118 S. Ct. 1777, 1785 (1998) (internal quotation marks and citation omitted).
145. Cf. Leading Cases, supra note 12, at 262-63 (applauding the "subtle move away" from Lujan in Akins, while noting failure to "retreat squarely from it"); Sunstein, supra note 12, at 674 (proclaiming that "the Akins decision deserves a more general celebration").