The standing doctrine's dirty little secret

Northwestern University Law Review

Volumn 107, Issue 1, 2012, Pages 169-236

  Lee, Evan Tsen ^a   Ellis, Josephine Mason ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84870815551     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (420)

1. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
2. Id. at 565 n.2 (finding insufficient imminence); Allen v. Wright, 468 U.S. 737, 757 (1984) (finding an insufficient likelihood that the requested remedy would redress the claimed injury); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (holding that a private citizen does not have 'a judicially cognizable interest in the prosecution' of another).
3. U.S. CONST. art. III, § 2, cl. 1.
4. 549 U.S. 497, 526 (2007).
5. Id. at 520 ("Given... Massachusetts' stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.").
6. Id. at 517-18 (citing Lujan, 504 U.S. at 560-61, 572 n.7; Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94-95 (D.C. Cir. 2002)).
7. Id. at 518.
8. Justice Stephen Breyer is the other.
9. Thomas O. Sargentich, Justice Stephen Breyer's Contribution to Administrative Law, 8 ADMIN. L.J. AM. U. 713, 713 (1995).
10. Lujan, 504 U.S. at 572 n.7.
11. Id. Justice Scalia explained: There is this much truth to the assertion that 'procedural rights' are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.... [O]ne living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years. Id.
12. Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 100 (1979) ('In no event... may Congress abrogate the Art. III minima: A plaintiff must always have suffered 'a distinct and palpable injury to himself' that is likely to be redressed if the requested relief is granted.' (citation omitted)).
13. Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967) (noting that courts are traditionally reluctant to grant certain remedies until a controversy is "ripe' for judicial resolution').
14. 5 U.S.C. § 552(a)(6)(E)(iii) (2006).
15. The statute allows any curious party to gain access to information about government activity. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 137 & n.2 (1975) (citing § 552(a)(3)(A)) (describing the FOIA requirement that records be made available 'to any person'). But see § 552(b) (listing the FOIA statutory exceptions to required disclosure).
16. W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 2011) ('Plaintiffs also bring a procedural claim under NEPA. To satisfy the injury in fact requirement, and thereby meet the first prong of Article III standing, a plaintiff asserting a procedural injury must show that the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.... Once a plaintiff has established an injury in fact under NEPA the causation and redressability requirements are relaxed.
17. The members must show only that they have a procedural right that, if exercised, could protect their concrete interests.' (alteration in original) (citations and internal quotation marks omitted)). Thus, when plaintiffs sue to vindicate most procedural rights, they must establish an injury-in-fact that is particularized to them, even if they cannot satisfy the usual imminence or redressability standards.
18. Compare, e.g., Allen v. Wright, 468 U.S. 737, 754 (1984) (a litigant's 'asserted right to have the Government act in accordance with law is not sufficient,' by itself, to confer standing and therefore federal jurisdiction), with Lujan v. Defenders of Wildlife, 504 U.S. 555, 578 (1992) ('[T]he injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.' (emphasis added) (alterations and citations omitted)).
19. Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432, 1451 (1988).
20. By no means do we mean to suggest that FOIA is just about satisfying people's idle curiosity. We believe it is a highly positive step in helping to assure transparency and accountability in government. We merely mean to point out that high-minded motives are not required to get a FOIA request enforced. One can do it out of sheer curiosity and need not show any personal nexus to the subject matter of the request whatsoever.
21. Raines v. Byrd, 521 U.S. 811, 830 (1997) (rejecting a challenge to the Line Item Veto Act by individual members of Congress for lack of standing).
22. United States v. Richardson, 418 U.S. 166, 176-77 (1974) (holding that a taxpayer lacked standing to challenge the reporting of government expenditures under the Central Intelligence Agency Act because his claim amounted to a generalized grievance).
23. By 'procedural rights,' we refer (as Justice Scalia did in his Lujan footnote seven) to those rights affirmatively conferred by statute or regulation. Procedural rights are entitlements to process that may be divorced from any underlying 'real-world' desiderata, such as a right to have governmental officials consult with environmental experts before moving forward with a construction project, or, most typically, a right to obtain judicial review of an agency ruling.
24. The procedural right is divorced from the underlying matter in the sense that the plaintiff is entitled to the process whether or not it will make any difference in the real world. One can make a more than plausible argument that process can never be divorced from the real world because there is no Platonic line between the two, but mercy to our readers requires us to forbear from such discussion.
25. Infra Part III.B. As we explain in that Part, there is support for this proposition in National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949).
26. The concept of special standing rules in procedural rights cases is similar to what some call 'statutory standing,' though we avoid the phrase since 'statutory standing' can have a very different meaning from the concept we put forward in this Article.
27. Radha A. Pathak, Statutory Standing and the Tyranny of Labels, 62 OKLA. L. REV. 89 (2009)
28. Examining different conceptions of the phrase "statutory standing".
29. 426 U.S. 26, 39-44 (1976).
30. 422 U.S. 490, 499-504 (1975).
31. 410 U.S. 614, 616-18 (1973).
32. Camreta v. Greene, 131 S. Ct. 2020, 2028 (2011); Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).
33. Evan Tsen Lee, Judicial Restraint In America: How The Ageless Wisdom Of The Federal Courts Was Invented 83 (2011)
34. Hereinafter LEE, JUDICIAL RESTRAINT IN AMERICA (finding no linkage of standing doctrine to the Constitution until the 1920s)
35. William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 223 (1988).
36. Standing should be viewed as nothing more than whether the plaintiff has a cause of action on the merits.
37. Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 HARV. L. REV. 603, 608 (1992).
38. Hereinafter Lee, Deconstitutionalizing Justiciability] (doubting that the 'case or controversy' language in Article III was meant to require doctrines like mootness or standing); see also infra Part IV.A, notes 260-68.
39. Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118, 137-38 (1939) (where private power companies sought to enjoin TVA from operating, claiming that the statutory plan under which it was created was unconstitutional, the Court denied the competitors standing, holding that they did not have that status 'unless the right invaded is a legal right,-one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege').
40. 397 U.S. 150 (1970). The companion case was Barlow v. Collins, 397 U.S. 159 (1970).
41. Camp, 397 U.S. at 152-54. The Court also instituted a 'zone of interests' requirement in cases brought under the judicial review provisions of certain federal statutes. See id. at 153; see also, e.g., Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 870 (2011) (plaintiff could sue under 42 U.S.C. § 2000e-3 of Title VII because he was within the 'zone of interests' of the statute).
42. Camp, 397 U.S. at 151.
43. Id. at 155.
44. Id. at 152-153.
45. Ass'n of Data Processing Serv. Orgs. v. Camp, 406 F.2d 837, 839 (8th Cir. 1969) ('[T]he courts uniformly have denied standing to competitors who otherwise possess no legal right to be free from competition.'), rev'd, 397 U.S. 150 (1970).
46. Camp, 397 U.S. at 153.
47. Id. at 152-153.
48. Id. at 152.
49. Sunstein, supra note 17, at 1447.
50. This is otherwise known as damnum absque injuria-"damage without legal wrong.".
51. F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 CORNELL L. REV. 275, 280-281 & n.22 (2008).
52. Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975, 1025-1035.
53. Surveying jurisprudence on damnum absque injuria.
54. Michael C. Jensen et al., Analysis of Alternative Standing Doctrines, 6 INT'L REV. L. & ECON. 205, 209 (1986).
55. We would like to emphasize that this is a description of the Court's jurisprudence; we do not endorse this statement normatively. It would be perfectly coherent to have a regime under which the plaintiff is asked a single question: 'What legal right of yours did the defendant violate?' It would be perfectly coherent to not require a court to ask, 'Were you harmed in some social, moral, philosophical, or political sense?,' which is what the injury-in-fact doctrine effectively asks. In other words, 'harm' is an inevitably value-laden concept. This point is hammered home not only by Sunstein, but also by William Fletcher in The Structure of Standing, supra note 28, at 225 n.27.
56. Except as permitted by the Court in the cases we identify as defying this orthodoxy-the very cases that give rise to the standing doctrine's "dirty little secret." See infra Part II.
57. Compare, e.g., Camp, 397 U.S. at 153-54 (discussing wallet injury, as well as certain noneconomic injuries such as aesthetic, conservational, recreational, and spiritual injuries and collecting cases); United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 687-90 (1973) (same), with, e.g., Sierra Club v. Morton, 405 U.S. 727, 739 (1972) (mere harm to an ideological interest will not suffice). The Court remains opposed to permitting standing in purely ideological cases.
58. Nike, Inc. v. Kasky, 539 U.S. 654, 662 n.4 (2003) (Stevens, J., concurring in dismissal of certiorari); Lujan v. Defenders of Wildlife, 504 U.S. 555, 581 (1992) (Kennedy, J., concurring in part and concurring in the judgment) (federal courts may not 'entertain citizen suits to vindicate the public's nonconcrete interest in the proper administration of the laws'); United States v. Richardson, 418 U.S. 166, 192 (1974) (Powell, J., concurring) (court may not take on 'ideological disputes about the performance of government').
59. The Court uses the terms 'concrete' and 'cognizable' as interchangeable. See, e.g., Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2752, 2754 (2010) (using 'concrete' and 'cognizable' as interchangeable adjectives describing what suffices as 'injury'); Salazar v. Buono, 130 S. Ct. 1803, 1815 (2010) (same); Sprint Commc'ns Co. v. APCC Servs., Inc., 554 U.S. 269, 300, 301 (2008) (Roberts, C.J., dissenting) (same).
60. Sunstein, supra note 17, at 1436 n.18.
61. Allen v. Wright, 468 U.S. 737, 755 (1984).
62. Sierra Club, 405 U.S. at 734.
63. Infra Part I.D.
64. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
65. Id. at 559-560.
66. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983).
67. United Pub. Workers v. Mitchell, 330 U.S. 75, 90 (1947) ('We can only speculate as to the kinds of political activity the appellants desire to engage in or as to the contents of their proposed public statements or the circumstances of their publication.').
68. v. Cohen, 392 U.S. 83, 99 (1968) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
69. Allen v. Wright, 468 U.S. 737, 756-57 (1984).
70. 426 U.S. 26, 28-32 (1976).
71. Id. at 33.
72. Whether they actually will give more money is an empirical question on which we have no data. But the assumption that they would give more money was central to the plaintiff's case. See id. at 28-29.
73. Id. at 41-42.
74. Id. at 42-43.
75. 468 U.S. 737 (1984).
76. Id. at 739-748.
77. Id.
78. Id.
79. Id. at 753.
80. Id. at 752.
81. Id.
82. Id. at 759.
83. Id.
84. Id. at 760 & n.24; Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 44 (1976).
85. Contrast the Court's treatment of redressability with that of Justice Stevens: 'The purpose of this scheme, like the purpose of any subsidy, is to promote the activity subsidized; the statutes 'seek to achieve the same basic goal of encouraging the development of certain organizations through the grant of tax benefits.' If the granting of preferential tax treatment would 'encourage' private segregated schools to conduct their 'charitable' activities, it must follow that the withdrawal of the treatment would 'discourage' them, and hence promote the process of desegregation.' Allen, 468 U.S. at 785 (Stevens, J., dissenting) (citation omitted).
86. 410 U.S. 614 (1973).
87. Id. at 614-616.
88. Id.
89. Id. at 616.
90. Id. at 617-618.
91. Id. at 619.
92. Id. at 618.
93. 258 U.S. 126 (1922).
94. Id. at 128-129.
95. Id. at 127.
96. Id.
97. Id. at 128.
98. Id. at 129.
99. Id. (second alteration in original).
100. 262 U.S. 447, 479 (1923).
101. Id. at 486.
102. Id. at 479-480.
103. Id. at 487 (plaintiff's tax contribution to program under challenge was "comparatively minute and indeterminable").
104. Id. at 484 (quoting Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 75 (1831)).
105. Id. at 488.
106. Lee, Judicial Restraint In America, supra note 28, at 73-78.
107. Tracing the personal stake requirement and, eventually, the injury-in-fact, causation, and redressability requirements, from the generalized grievances cases of the 1920s and 1930s.
108. John A. Ferejohn & Larry D. Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, 77 N.Y.U. L. REV. 962, 1009 (2002).
109. Asserting that the Supreme Court "fabricat[ed] the doctrine[] of standing" in the mid-twentieth century).
110. Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 MICH. L. REV. 689, 691 (2004).
111. Arguing that the standing doctrine or a reasonable facsimile goes back to the Founding.
112. 5 U.S. (1 Cranch) 137 (1803).
113. Alexander M. Bickel, The Supreme Court 1960 Term-Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 42 (1961).
114. Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 n.† (1792) ('[B]y the Constitution of the United States, the government thereof is divided into three distinct and independent branches, and... it is the duty of each to abstain from, and to oppose, encroachments on either.'); Letter from Chief Justice Jay and Associate Justices to President Washington (Aug. 8, 1793), in 3 THE CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 1782-1793, at 488-89 (Henry P. Johnston ed., 1891) (Justices of the Supreme Court refused to render an advisory opinion requested by the President and Secretary of State, holding that such an opinion would be 'extra-judicial[]' and thus would violate the 'lines of separation drawn by the Constitution between the three departments of the government').
115. Sources cited supra note 94.
116. Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 611 (2007) ('The constitutional requirements for federal-court jurisdiction-including the standing requirements and Article III-'are an essential ingredient of separation and equilibration of powers." (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998))).
117. Bennett v. Spear, 520 U.S. 154, 162 (1997).
118. Id.; Warth v. Seldin, 422 U.S. 490, 501 (1975) ('Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules.'); id. at 500-01 (the requirements for injury and causation are constitutionally required; the ban on third-party standing and the prohibition against federal courts deciding generalized grievances are merely prudential).
119. Bennett, 520 U.S. at 162 (citing Warth, 422 U.S. at 498, 501).
120. Warth, 422 U.S. at 500-501.
121. 131 S. Ct. 2020 (2011).
122. Id. at 2028 (citations omitted).
123. 131 S. Ct. 1436, 1442 (2011).
124. 504 U.S. 555 (1992).
125. 16 U.S.C. § 1536(a)(2) (2006).
126. Lujan, 504 U.S. at 558.
127. Id. at 558-559.
128. Id. at 559.
129. Id.
130. Id.
131. 405 U.S. 727, 734-735 (1972).
132. Id. at 729+734.
133. Id. at 734.
134. Id. at 734-735.
135. Defenders of Wildlife v. Lujan, 911 F.2d 117, 120 (8th Cir. 1990), rev'd, 504 U.S. 555 (1992).
136. Lujan, 504 U.S. at 563-664 (alterations omitted).
137. Id. at 562-564.
138. Id. at 564 (second alteration in original).
139. Id.
140. Id. at 568-569.
141. Id. at 580 (Kennedy, J., concurring in part and concurring in the judgment).
142. Id. at 580 (emphases added) (citations omitted). The two decisions alluded to are, of course, Chief Justice John Marshall's magisterial opinions in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
143. Lujan, 504 U.S. at 580-81 (Kennedy, J., concurring in part and concurring in the judgment) (emphasis added).
144. Infra Part IV.C.
145. Lujan, 504 U.S. at 572 n.7 (majority opinion).
146. Id. (emphasis added).
147. 549 U.S. 497 (2007).
148. Id. at 510.
149. Id. at 511-514.
150. Id. at 514.
151. Id. at 517.
152. Id. at 518-523.
153. Id. at 542-546 (Roberts, C.J., dissenting).
154. Id.
155. Id. at 545.
156. Id. at 545-546.
157. Id. at 525-526 (majority opinion).
158. Id. at 526.
159. Id.
160. Id. at 517-518 (citations omitted) (emphasis added).
161. Infra Part II.B (describing a provision granting review to any person).
162. Lujan v. Defenders of Wildlife, 504 U.S. 555, 581 (1992) (Kennedy, J., concurring in part and concurring in the judgment); see also infra Part IV.C (discussing whether FOIA violates the standing doctrine under Justice Kennedy's theory).
163. Of course, this is not to denigrate the importance of transparency in government or to impugn the motives of most FOIA requesters. The point is simply that the statute makes no distinction between someone who wants documents relating to something directly affecting her and someone who simply is curious.
164. 5 U.S.C. § 552(a)(3)(A) (2006) (emphasis added).
165. 437 U.S. 214 (1978).
166. Id. at 220-21 (emphasis added) (citation and internal quotation marks omitted).
167. U.S. 73, 80 (1973). The quoted language is repeated in multiple Supreme Court decisions, including Department of the Air Force v. Rose, 425 U.S. 352, 361 (1976).
168. City of Rome v. United States, 446 U.S. 156, 182 n.17 (1980) (Guaranty Clause not justiciable); see also Baker v. Carr, 369 U.S. 186, 209-10 (1962) (explaining the Guaranty cases as they bear upon the political question doctrine).
169. Erwin Chemerinsky, Cases Under the guarantee Clause Should Be Justiciable, 65 U. COLO. L. REV. 849 (1994) (arguing that the Court should do an about-face on the Guarantee Clause justiciability question).
170. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217 (1974).
171. 392 U.S. 83 (1968).
172. Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 603-09 (2007) (plaintiff lacked standing under Flast to challenge the President's appropriation of monies to faith-based community groups because Congress did not specifically allocate the funds to the Executive Branch for that purpose; the President exercised his discretion to use them in that manner); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 476-82 (1982) (plaintiff lacked standing under Flast to challenge transfer of federally-owned land to the Northeast Bible College because it was accomplished under the Property Clause rather than under the Taxing and Spending Clause).
173. 5 U.S.C. § 552(a)(4)(B) (2006).
174. Taitz v. Ruemmler, No. 11-1421, 2011 WL 4916936, at *1 (D.D.C. Oct. 17, 2011), aff'd, No. 11- 5306, 2012 WL 1922284 (D.C. Cir. 2012) (per curiam).
175. Id. (citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980)).
176. Id.
177. Strunk v. U.S. Dep't of State, 770 F. Supp. 2d 10, 17 (D.D.C. 2011) (in FOIA suit seeking access to documents regarding President Obama's deceased mother, the court held, inter alia, that a genuine issue of material fact remained as to the sufficiency of the Department of Homeland Security's search for the documents, precluding summary judgment).
178. 574 F. Supp. 2d 509, 512 (E.D. Pa. 2008) (citing U.S. CONST. art. II, § 1, cl. 4), aff'd, 586 F.3d 234 (3d Cir. 2009).
179. Id. at 512, 514 (citing U.S. CONST. art. II, § 1, cl. 4).
180. Id. at 519 (footnote omitted) (citation omitted).
181. This is more than a pattern: significantly, it occurs with procedural regularity. 'As Chief Justice Marshall explained in an early decision of the United States Supreme Court, the existence of numerous decisions that have permitted a judicial procedure without explicitly discussing the procedure's validity are properly viewed to 'have much weight, as they show that [the asserted flaw in the procedure] neither occurred to the bar or the bench." Perry v. Brown, 265 P.3d 1002, 1019 (Cal. 2011) (alteration in original) (quoting Bank of the U.S. v. Deveaux, 9 U.S. (5 Cranch) 61, 88 (1809)) (citing Brown Shoe Co. v. United States, 370 U.S. 294, 307 (1962)).
182. This is not to say that such plaintiffs could never assert a valid injury-in-fact-merely that they have not been required to do so in FOIA cases, yet they have been required to do so in traditional review cases. Nor is this unique to birthers. We simply have not come across any FOIA cases requiring the plaintiff to demonstrate injury-in-fact beyond the invasion of a statutory right. See, e.g., Feinman v. FBI, 680 F. Supp. 2d 169, 173 (D.D.C. 2010) ('The denial of this right to request 'specific information [under FOIA] constitutes an injury-in-fact for standing purposes, 'because the requester did not get what the statute entitled him to receive." (alterations omitted) (quoting Zivotofsky ex rel. Ari Z. v. Sec'y of State, 444 F.3d 614, 617-18 (D.C. Cir. 2006)).
183. 418 U.S. 166 (1974).
184. Id. at 167-69 (quoting U.S. CONST. art. I, § 9, cl. 7).
185. Id. at 175.
186. 524 U.S. 11, 13-15 (1998).
187. Id. at 15-16.
188. 2 U.S.C. § 431(4) (2006).
189. Akins, 524 U.S. at 13-15 (citing inter alia, §§ 432-434).
190. Id. at 18.
191. Id.
192. Id. at 19 (citing § 437(a)(8)(A), (g)(a)(1) (1998)) (alterations omitted).
193. Id. at 20.
194. Id. at 22.
195. 574 F. Supp. 2d 509, 512 (E.D. Pa. 2008) (citing U.S. CONST. art. II, § 1, cl. 4), aff'd, 586 F.3d 234 (3d Cir. 2009).
196. No. 11-1421, 2011 WL 4916936, at *1 (D.D.C. Oct. 17, 2011), aff'd, No. 11-5306, 2012 WL 1922284 (D.C. Cir. 2012) (per curiam).
197. 418 U.S. 166, 167-68, 170 (1974).
198. Akins, 524 U.S. at 13-15+20-21.
199. Sunstein, supra note 17, at 1436 n.18.
200. Supra Part I.A; notes 31-35 and accompanying text.
201. For this reason, we decline to conclude that litigants have a right to review in procedural rights cases because of some 'due process' right. We do not see how there would be a due process right to review in FOIA and other procedural rights cases but no due process right to review in any other case where the plaintiff files suit out of mere curiosity or a desire to make sure the government is doing its job. If there is no principled way to distinguish between the types of injury, then there is no principled way to distinguish between the types of injuries that would trigger a due process right to review and those that would not.
202. The Chenery litigation actually went to the Supreme Court twice; we currently refer to the holding of Chenery I. See SEC v. Chenery Corp. (Chenery I), 318 U.S. 80 (1943).
203. Gary Lawson, Federal Administrative Law 362 (5th ed. 2009).
204. Id. at 364.
205. Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992).
206. INS v. Ventura, 537 U.S. 12 (2002) (per curiam).
207. Id. at 16 (alteration in original) (citing, inter alia, SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 196 (1947); Chenery I, 318 U.S. at 88).
208. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962).
209. Graceba Total Commc'ns, Inc. v. FCC, 115 F.3d 1038, 1041 (D.C. Cir. 1997) ('As the Supreme Court has made clear [in Chenery II], we 'may not accept appellate counsel's post hoc rationalizations for agency action' and are 'powerless to affirm' agency action on 'grounds [that] are inadequate or improper." (alteration in original) (citation omitted)).
210. 5 U.S.C. § 706 (2006).
211. 410 U.S. 614 (1973).
212. 468 U.S. 737 (1984).
213. Louis L. Jaffe, The Right to Judicial Review I, 71 HARV. L. REV. 401, 401-06 (1958).
214. See § 702 (2006) (judicial review).
215. 337 U.S. 582 (1949).
216. 130 S. Ct. 1949 (2010).
217. U.S. CONST. art. I, § 8, cl. 18.
218. In re Neagle, 135 U.S. 1, 83 (1890) (Lamar, J., dissenting).
219. Infra notes 204-206.
220. 17 U.S. (4 Wheat.) 316 (1819).
221. Id. at 354-355.
222. Id. at 387-388.
223. Id. at 421.
224. Id. at 325-326.
225. In McCulloch, the only question was whether the act of Congress exceeded its Article I power even though it concededly did not violate any explicit constitutional prohibition. See id. at 421 (noting that an act of Congress must not be prohibited by the Constitution).
226. United States v. Darby, 312 U.S. 100 (1941); see also Printz v. United States, 521 U.S. 898, 923-24 (1997) (striking down the Brady Act and holding that although the law carried into execution the Commerce Clause, it violated the principle of state sovereignty and was therefore not enforceable under the Necessary and Proper Clause); Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 572-73 (1997).
227. Holding that an exemption statute singling out institutions that served mostly state residents for beneficial tax treatment and penalized those institutions that did principally interstate business was barred by the dormant implications of the Commerce Clause. But see Camps Newfound/Owatonna, 520 U.S. at 609 (Thomas, J., dissenting) (arguing that the majority impermissibly created a 'dormant' Necessary and Proper Clause to supplement the 'dormant' Commerce Clause).
228. Gonzales v. Raich, 545 U.S. 1, 5 (2005) (Commerce Clause); Wickard v. Filburn, 317 U.S. 111, 118 (1942) (same); Houston, E. & W. Tex. Ry. Co. v. United States (The Shreveport Case), 234 U.S. 342, 353-54 (1914) (same); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 507 (1870) (upholding a federal tolling statute as to causes of action accrued during the Civil War on the basis of Congress's war powers); United States v. Coombs, 37 U.S. (12 Pet.) 72, 78 (1838) (holding that the Commerce Clause allowed Congress to pass federal law making it a felony to steal from stranded vessels).
229. But see, e.g., Greenwood v. United States, 350 U.S. 366, 375 (1956) (holding that a statute authorizing commitment of an accused who is found temporarily mentally incompetent or mentally disabled to stand trial is within congressional power to prosecute federal offenses under the Necessary and Proper Clause); United States v. Barnow, 239 U.S. 74, 78 (1915) (noting that the federal law prohibiting the fraudulent impersonation of a federal official was within the general power of Congress); see also Buckley v. Valeo, 424 U.S. 1, 90 (1976) (per curiam) (holding that the General Welfare Clause is not 'a limitation upon congressional power,' but 'rather a grant of power, the scope of which is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause').
230. 130 S. Ct. 1949 (2010).
231. 18 U.S.C. § 4248 (2006).
232. Comstock, 130 S. Ct. at 1954.
233. Id. at 1956-57 (citing Sabri v. United States, 541 U.S. 600, 605 (2004)) (describing Sabri as 'using term 'means-ends rationality' to describe the necessary relationship' and 'upholding Congress's 'authority under the Necessary and Proper Clause' to enact a criminal statute in furtherance of the federal power granted by the Spending Clause'); cf. id. at 1967 (Kennedy, J., concurring) (arguing that the Court in Sabri did not intend to import a Due Process analysis by using the phrase 'means-ends rationality').
234. Id. at 1965 (majority opinion).
235. Namely, what enumerated power does the law carry into execution, and second, are the means 'appropriate' and 'plainly adapted' to the legitimate end? See supra notes 202-04 and accompanying text.
236. Comstock, 130 S. Ct. at 1956-1963.
237. Id. at 1975 (Thomas, J., dissenting).
238. Geoffrey P. Miller, The Corporate Law Background of the Necessary and Proper Clause, 79 GEO. WASH. L. REV. 1, 31 (2010).
239. Noting that Comstock reflects the Court's recognition that Congress may desire increased power over such 'troubling matters' as, inter alia, the financial crisis, terrorism, healthcare, drug addiction, domestic abuse, energy policy, and environmental threats.
240. Ilya Somin, Taking Stock of Comstock: The Necessary and Proper Clause and the Limits of Federal Power, 2010 CATO SUP. CT. REV. 239, 239+241.
241. Contending that Comstock foreshadows the Court's giving Congress a 'virtual blank check... to regulate almost any activity it wants,' and mentioning the Health Care litigation as one such example then on the horizon.
242. This jurisdictional body of law differs from the main corpus of Necessary and Proper cases in at least one important respect: rather than addressing the proper division of state and federal law, the procedural law cases tend to turn on the proper separation of powers within the federal government. To be sure, many of the cases carry on the theme of state sovereignty, see, e.g., Alden v. Maine, 527 U.S. 706, 754 (1999) (holding that the powers delegated to Congress under Article I and the Necessary and Proper Clause do not include the power to subject nonconsenting states to private suits for damages in state courts), but by and large the cases bear upon procedural issues internal to the federal government.
243. Supra note 96 and accompanying text.
244. Seminole Tribe v. Florida, 517 U.S. 44, 65 (1996) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)).
245. 337 U.S. 582 (1949).
246. Id. at 583 (Jackson, J.).
247. Id.
248. Id.
249. Id.
250. 28 U.S.C. § 41(1) (1940) (footnote omitted). Today, the diversity statute can be found at 28 U.S.C. § 1332 (2006).
251. U.S. CONST. art. III, § 2, cl. 1.
252. Hepburn & Dundas v. Ellzey, 6 U.S. (2 Cranch) 445, 452-53 (1805).
253. Tidewater, 337 U.S. at 583 (Jackson, J.)
254. Id. at 583-584 nn.4-5 (citing cases).
255. Id. at 591-592, 600.
256. Id. at 588.
257. Id. (emphasis added).
258. Id. at 600.
259. U.S. CONST. art. I, § 8, cl. 17; Tidewater, 337 U.S. at 589 (Jackson, J.).
260. Tidewater, 337 U.S. at 591-592 (citing O'Donoghue v. United States, 289 U.S. 516 (1933)).
261. Id. at 592 (emphasis added).
262. Id. at 588-589.
263. Id. at 592.
264. Id. at 592-94 (citing Williams v. United States, 289 U.S. 553 (1933), overruled on other grounds by Glidden Co. v. Zdanok, 370 U.S. 530 (1962); United States v. Sherwood, 312 U.S. 584, 591 (1941); Pope v. United States, 323 U.S. 1, 14 (1944)).
265. Id. at 593-594 (citing Brooks v. United States, 337 U.S. 49 (1949)).
266. Id. at 594-600 (citing, e.g., Cont'l Ill. Nat'l Bank & Trust Co. v. Chi., Rock Island & Pac. Ry. Co., 294 U.S. 648 (1935); Schumacher v. Beeler, 293 U.S. 367 (1934); Williams v. Austrian, 331 U.S. 642, 657 (1947)).
267. Id. at 604 (Rutledge, J., concurring).
268. Id. at 607.
269. Id. at 608-611 (citing, e.g., O'Donoghue v. United States, 289 U.S. 516 (1933); Williams, 289 U.S. 553; Schumacher, 293 U.S. 367).
270. Id. at 625.
271. Id. at 646 (Frankfurter, J., dissenting).
272. Id. at 648.
273. Id. at 626 (Vinson, C.J., dissenting).
274. Id. at 642-645.
275. Id.; see also N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87 (1982) (plurality opinion) (holding that Article III jurisdiction could not be conferred on non-Article III courts, and holding unconstitutional 28 U.S.C. § 1471(c), which granted near-plenary jurisdiction to bankruptcy courts over matters related to the bankruptcy), superseded by 28 U.S.C. § 152 (2006); cf. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 851-52 (1986) (upholding a similar grant of authority to the CFTC against a challenge that it violated Article III).
276. Tidewater, 337 U.S. at 644-45 (Vinson, C.J., dissenting). On Hayburn's Case, see supra note 94.
277. It is not clear which of the Tidewater opinions is to be considered the holding of the case, but it is most probably the principal opinion. 'When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.' Marks v. United States, 430 U.S.188, 193 (1977) (internal quotation mark omitted). The Tidewater concurring opinion is not obviously narrower than the principal opinion, and, as one court noted of Tidewater, 'the result is binding even when the Court fails to agree on reasoning.' King v. Palmer, 950 F.2d 771, 784 (D.C. Cir. 1991) (citing Tidewater, 337 U.S. at 655 (Frankfurter, J., dissenting)).
278. Supra note 248.
279. Indeed, Justice Jackson characterized the rise of the administrative state as "probably... the most significant legal trend of the last century."
280. Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 CORNELL L. REV. 1, 1 & n.1 (1994).
281. Quoting FTC v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J., dissenting).
282. Tidewater, 337 U.S. at 585-86 (Jackson, J.).
283. Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring in part and concurring in the judgment). But see Tidewater, 337 U.S. at 644-45 (Vinson, J., dissenting) (arguing that 'expediency' should not be the test of federal jurisdiction).
284. That is, the power of Congress and the Executive to legislate for and administer federal agencies. The question of whether the administrative state is a legitimate exercise of federal power has been exhaustively treated elsewhere, and we do not revisit it here other than to observe that it is in this day and age considered a well-established power of the federal government. But for a contrary view, see McCutchen, supra note 253, at 1-2 ('Current approaches to separation of powers problems [are] inadequate to the task of coping with the administrative state.... There is no room for a fourth branch within th[e] tripartite scheme of governance. In exercising executive, legislative, and judicial power, administrative agencies combine powers that the Constitution separates.... In short, the administrative state is unconstitutional.').
285. James E. Pfander, Protective Jurisdiction, Aggregate Litigation, and the Limits of Article III, 95 CALIF. L. REV. 1423, 1423-1424 & n.7 (2007).
286. Citing Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480 (1983); Mesa v. California, 489 U.S. 121 (1989).
287. James E. Pfander, The Tidewater Problem: Article III and Constitutional Change, 79 NOTRE DAME L. REV. 1925, 1927 (2004)
288. Sescribing and discussing the problem of protective jurisdiction.
289. Sources cited supra note 257.
290. But see supra note 247 and accompanying text.
291. Joseph Vining, Legal Identity: The Coming Of Age Of Public Law 1 (1978).
292. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 475 (1982).
293. Lee A. Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 YALE L.J. 425 (1974).
294. Gene R. Nichol, Jr., Abusing Standing: A Comment on Allen v. Wright, 133 U. PA. L. REV. 635 (1985).
295. Gene R. Nichol, Jr., Rethinking Standing, 72 CALIF. L. REV. 68, 68 (1984).
296. Fletcher, supra note 28.
297. Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227 (1990).
298. Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613 (1999).
299. Sunstein, supra note 17.
300. Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163 (1992).
301. Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371 (1988).
302. Richard H. Fallon, Jr. Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1 (1984).
303. Myriam E. Gilles, Representational Standing: U.S. ex rel. Stevens and the Future of Public Law Litigation, 89 CALIF. L. REV. 315 (2001).
304. Gerald Gunther, The Subtle Vices of the "Passive Virtues"-A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1 (1964).
305. Hessick, supra note 40.
306. Eugene Kontorovich, What Standing Is Good For, 93 VA. L. REV. 1663 (2007).
307. Mark V. Tushnet, The New Law of Standing: A Plea for Abandonment, 62 CORNELL L. REV. 663 (1977).
308. However, Judge Posner very recently acknowledged that the Court's asserted grounds for the standing doctrine are 'tenuous' and have been subject to 'strong criticisms by reputable scholars.' Am. Bottom Conservancy v. U.S. Army Corps of Eng'rs, 650 F.3d 652, 655-56 (7th Cir. 2011) (recognizing, however, that the standing doctrine has undeniable prudential benefits).
309. Cf. Lee, Deconstitutionalizing Justiciability, supra note 28 passim (arguing that the mootness doctrine should be seen as entirely prudential).
310. 549 U.S. 497 (2007). That is, unless the Court were willing to retrospectively rest its decision in Massachusetts v. EPA entirely on Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907), in which Justice Holmes opined that a state 'has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.'.
311. Cf. 5 U.S.C. § 552(a)(3)(A) (2006).
312. 437 U.S. 214, 220-21 (1978) (making clear that in FOIA, "any person" really means "any person").
313. 410 U.S. 73, 80 (1973) ('[FOIA] create[s] a judicially enforceable public right to secure such information from possibly unwilling official hands.'); see also, e.g., Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (same).
314. Taitz v. Ruemmler, No. 11-1421, 2011 WL 4916936 (D.D.C. Oct. 17, 2011), aff'd, No. 11-5306, 2012 WL 1922284 (D.C. Cir. 2012) (per curiam); Strunk v. U.S. Dep't of State, 770 F. Supp. 2d 10 (D.D.C. 2011).
315. Supra Part II.C.
316. Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 642-45 (1949) (Vinson, C.J., dissenting).
317. Id. See generally Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 915 (1988) (discussing the role of legislative courts in the Article III scheme).
318. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87 (1982) (plurality opinion) (holding that Article III jurisdiction could not be conferred on non-Article III courts, and holding unconstitutional 28 U.S.C. § 1471(c), which granted near-plenary jurisdiction to bankruptcy courts over matters related to the bankruptcy), superseded on other grounds by 28 U.S.C. § 152 (2006); see also Stern v. Marshall, 131 S. Ct. 2594, 2608 (2011) (holding that the bankruptcy court lacked authority under Article III to enter final judgment on a widow's counterclaim).
319. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 851-52 (1986). Congress may now delegate judicial authority so long as it does not delegate the 'essential attributes of judicial power' reserved to Article III courts, the origins and importance of the right to be adjudicated make them conducive to adjudication by a non-Article III court, the concerns that drove Congress to depart from the requirements of Article III are significant, and the parties have had a chance to consent to a non-Article III decision-maker. Id. at 847-59.
320. Heather Elliott, Congress's Inability to Solve Standing Problems, 91 B.U. L. REV. 159, 205-25 (2011).
321. James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 HARV. L. REV. 643, 739 (2004).
322. Schor, 478 U.S. at 852-53 (holding that an Article I tribunal's work must be reviewable by an Article III tribunal to pass constitutional muster); N. Pipeline, 458 U.S. at 85-86 (same). See generally Pfander, supra note 281, at 689-97 (doubting that Article I courts should be able to exercise power exceeding the scope of Article III, because, among other reasons, Article I tribunals are subject to the supervision of the Article III judiciary).
323. U.S. CONST. art. III, § 2, cl. 1 ('The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority....').
324. Lujan v. Defenders of Wildlife, 504 U.S. 555, 580-81 (1992) (Kennedy, J., concurring in part and concurring in the judgment) (citation omitted) (quoting 16 U.S.C. § 1540(g)(1)(A)).
325. 555 U.S. 488 (2009).
326. Id. at 497.
327. 409 U.S. 205, 211-12 (1972).
328. 390 U.S. 1, 8-10 (1968).
329. Although it should be noted that in Hardin, which predated the Camp decision, the plaintiff presumably had standing simply by virtue of the fact that it satisfied the 'legal right' test later replaced by the Camp 'injury-in-fact' test.
330. Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring in part and concurring in the judgment).
331. 5 U.S.C. § 552(a)(3)(A), (4)(B) (2006) (emphasis added).
332. Cf. Lujan, 504 U.S. at 578 ("Individual rights,' within the meaning of this [ESA] passage, do not mean public rights that have been legislatively pronounced to belong to each individual who forms part of the public.').
333. 549 U.S. 497, 505 (2007).
334. Clean Air Act, 42 U.S.C. § 7521(a)(1) (2006) (sometimes referred to by its public law section number, § 202(a)(1)).
335. Id. § 7607(b)(1).
336. Georgia v. Tenn. Copper Co., 206 U.S. 230, 237-39 (1907); see also Massachusetts v. EPA, 549 U.S. at 518-20 & n.17 (citing Tennessee Copper).
337. § 4321.
338. 5 U.S.C. § 702 (2006).
339. 'This case would present different considerations if Congress had sought to provide redress for a concrete injury 'giv[ing] rise to a case or controversy where none existed before." Summers v. Earth Island Inst., 555 U.S. 488, 501 (2009) (Kennedy, J. concurring) (alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring in part and concurring in the judgment)).
340. 405 U.S. 727, 734-35, 738 (1972).
341. 131 S. Ct. 2020, 2029 n.4 (2011).
342. The phrase 'directly affected' is how the Lujan Court characterized this phrase from Sierra Club. See Lujan, 504 U.S. at 563; see also Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 345 (1977) ('[W]e note that the interests of the Commission itself may be adversely affected by the outcome of this litigation.').
343. Lujan, 504 U.S. at 566.
344. We use the term 'tiers' here with apologies to Akhil Amar, who meant something entirely different when he wrote A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205 (1985), in which he argued that 'cases' should be viewed as different from 'controversies' and that Congress is only required to vest subject matter jurisdiction in federal courts over 'cases' at any given time. Our 'two-tier' argument has nothing to do with his other than using the same phraseology and the fact that both arguments have something to do with Article III.
345. It should be noted that what is commonly referred to as the 'Case or Controversy Clause' is not actually a 'clause' at all. The term 'cases' is used in conjunction with the first three heads of the judicial power, and the term 'controversies' is used to describe the remaining six. See U.S. CONST. art. III, § 2, cl. 1.
346. Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 152-53 (1970).
347. Flast v. Cohen, 392 U.S. 83, 99 (1968) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
348. Camp, 397 U.S. at 153.
349. E.g., Bennett v. Spear, 520 U.S. 154, 162 (1997); see also supra note 97.
350. 131 S. Ct. 863, 867 (2011).
351. 42 U.S.C. § 2000e-5(f)(1) (2006).
352. Thompson v. N. Am. Stainless, LP, 567 F.3d 804, 807-08 (6th Cir. 2009), rev'd, 131 S.Ct. 863 (2011).
353. Thompson, 131 S. Ct. at 870 (emphasis added).
354. Id. at 869.
355. A complete study of the origins and purposes of FOIA is beyond the scope of this Article.
356. Supra Parts I.A, II.B.
357. 555 U.S. 488, 497 (2009).
358. Flast v. Cohen, 392 U.S. 83, 99 (1968) ('The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." (quoting Baker v. Carr, 369 U.S. 186, 204 (1962))).
359. Id. at 116-33 (Harlan, J., dissenting). Congress has employed such private attorneys general since at least the end of the Civil War when it enacted the False Claims Act, which offers private individuals a bounty for 'snitching' on those who lodge false claims against the government. See 31 U.S.C. §§ 3729-3733 (2006).
360. For example, when interpreting constitutional jurisdiction and standing issues, it is often urged that the Court look to the 'original intent of the framers,' see, e.g., Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 688 (1838) (argument of Hazard, counsel for Rhode Island) ('[I]t is important for us to inquire, strictly, what was the meaning and intent of the framers of the constitution, [with] respect [to jurisdiction]? And here, fortunately, nothing is left to conjecture or tradition.
361. The explicit, unequivocal intention of the framers of the constitution upon this subject[] is matter of authentic public record.'); Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 645 (1949) (Vinson, C.J., dissenting), as well as traditional English practice, see, e.g., Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 774 (2000) ('[T]he Constitution established that 'judicial power could come into play only in matters that were the traditional concern of the courts at Westminster and only if they arose in ways that to the expert feel of lawyers constituted 'Cases' or 'Controversies." (quoting Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J.) (alteration omitted))).
362. Infra Part V.B.
363. Infra Part V.A.
364. Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement?, 78 YALE L.J. 816, 827 (1969).
365. Louis L. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 HARV. L. REV. 1265, 1269-82 (1961).
366. Cf. Flast, 392 U.S. at 101 ('[T]he question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis... is on... 'a personal stake in the outcome of the controversy...." (emphasis added)).
367. Berger, supra note 323, at 827.
368. Id. at 821 & n.29, 824-25 & nn.44-45, 47, 827 (citing, e.g., Regina v. Surrey, (1870) 5 L.R. 466 (Q.B.) 466, 472-73 (distinguishing between an aggrieved party and 'one who comes merely as a stranger,' and implying that both had some level of entitlement to seek judicial review); Anonymous, (1652) 82 Eng. Rep. 765, 765 (K.B.) (issuing writ of mandamus to parishioners and officers to make those 'elected in that parish to serve the office'); Case of the Borough of Bossiny, (1735) 93 Eng. Rep. 996, 996 (K.B.) (issuing writ requiring local election).
369. Anonymous, (1733) 94 Eng. Rep. 471 (K.B.) (same); and Lidleston v. Mayor of Exeter, (1697) 90 Eng. Rep. 567 (K.B.) (issuing writ providing for certain 'relief of the poor')); see also Berger, supra note 323, at 822 (noting it was 'too clear' that this well-established power of courts to review public action suits brought by parties with no personal stake in the controversy extended to courts' review of administrative action (quoting Church v. Inclosure Comm'rs, (1862) 142 Eng. Rep. 956, 964 (C.P.))).
370. Joshua L. Sohn, The Case for Prudential Standing, 39 U. MEM. L. REV. 727, 735 (2009)
371. Describing legislatively authorized "informer" suits, by which "citizens could sue in order to vindicate the interests of the community at large".
372. Berger, supra note 323, at 821 n.31 (quoting H.W.R. WADE, ADMINISTRATIVE LAW 126 (2d ed. 1967) (referencing the English practice)).
373. Bradley S. Clanton, Standing and the English Prerogative Writs: The Original Understanding, 63 BROOK. L. REV. 1001 (1997).
374. Id. at 1014-1015.
375. Steven L. Winter, What if Justice Scalia Took History and the Rule of Law Seriously?, 12 DUKE ENVTL. L. & POL'Y F. 155, 157 n.13 (2001) (emphasis added).
376. Berger, supra note 323, at 821.
377. Winter, supra note 330, at 157 n.13.
378. Glidden Co. v. Zdanok, 370 U.S. 530, 563 (1962) (Harlan, J.) ('[O]ne touchstone of justiciability to which this Court has frequently had reference is whether the action sought to be maintained is of a sort 'recognized at the time of the Constitution to be traditionally within the power of courts in the English and American judicial systems." (quoting United Steelworkers v. United States, 361 U.S. 39, 60 (1959) (Frankfurter & Harlan, JJ., concurring))); Ex Parte Grossman, 267 U.S. 87, 108-09 (1925) ('The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted.').
379. Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., concurring) (noting that the terms 'case' and 'controversy' and 'judicial power' 'presuppose[] an historical content'); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 150 (1951) (Frankfurter, J., concurring) (noting the meaning of 'case' or 'controversy' must be interpreted with reference to the 'business of the... courts of Westminster when the Constitution was framed'); see also Honig v. Doe, 484 U.S. 305, 339 (1988) (Scalia, J., dissenting) (arguing standing has 'deep roots in the common-law understanding, and hence the constitutional understanding, of what makes a matter appropriate for judicial disposition').
380. Berger, supra note 323, passim.
381. Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992).
382. Kimberly N. Brown, Justiciable Generalized Grievances, 68 MD. L. REV. 221, 256 (2008)
383. Arguing that after Massachusetts v. EPA, the justiciability of cases involving, among other factors, such 'procedural rights' ought to be treated under different factors than the traditional injury-in-fact, ausation, and redressability analysis.
384. We defer a more thorough discussion of whether they can be considered cognate doctrines, since the issue could very well take up another full article. On this point, however, Fallon's treatment of the public rights doctrine is highly instructive. See Fallon, supra note 278, at 951-70.
385. Because of the notorious difficulty of proving a negative, we trace the drafting history in some detail to bolster our conclusion that it is inconclusive.
386. Max Farrand, The Framing Of The Constitution Of The United States (1913).
387. Julius Goebel, Jr., History Of The Supreme Court Of The United States: Antecedents And Beginnings To 1801, At 196-250 (1971).
388. The Debates In The Several State Conventions, On The Adoption Of The Federal Constitution, As Recommended By The General Convention At Philadelphia, In 1787 (Jonathan Elliot ed., 2d ed. 1836).
389. The Records Of The Federal Convention Of 1787 (Max Farrand Ed., 1911).
390. James Madison, The Debates In The Federal Convention Of 1787 Which Framed The Constitution Of The United States Of America 97 (Gaillard Hunt & James Brown Scott eds., 1920).
391. Id. at 279+336.
392. On the Committee of Detail were Edmund Randolph, James Wilson, John Rutledge, Nathaniel Gorham, and Oliver Ellsworth. Id. at 317-318.
393. Id. at 336.
394. Id. at 344 (Report from the Committee of Detail, art. XI, § 3).
395. William Ewald & Lorianne Updike Toler, Early Drafts of the U.S. Constitution, 135 PA. MAG. HIST. & BIOGRAPHY 227, 233-234 (2011).
396. '[O]f the distinguishing features central to the American system of constitutional governance, many of the most fundamental make their first appearance in the drafts of the Committee of Detail. The first attempt at delineating an explicit enumeration of congressional powers (rather than accepting the amended Virginia Plan's allowance that Congress 'legislate in all cases for the general interests of the Union'); the necessary and proper clause; and much of the structure of the federal judicial power-these central elements were introduced in the committee and not in the convention.'.
397. James Wilson, The Continuation of the Scheme (1787), in Committee of Detail Documents, 135 PA. MAG. HIST. & BIOGRAPHY 239, 290-293 (2011).
398. Hereinafter Committee of Detail Documents.
399. David O. Stewart, The Summer Of 1787: The Men Who Invented The Constitution 168 (2007).
400. Ewald & Toler, supra 345, at 235-236.
401. Edmund Randolph, Sketch of the Constitution ¶ 5, § 7 (1787), in Committee of Detail Documents, supra note 346, at 263+279.
402. James Wilson, Draft of the Constitution (1787), in Committee of Detail Documents, supra note 346, at 296-303+312-319.
403. James Wilson, Final Draft of the Constitution ¶ 14 (1787), in Committee of Detail Documents, supra note 346, at 322+356-359.
404. MADISON, supra note 340, at 475.
405. Id.
406. Id. Some have argued that this exchange forms the basis of the Court's standing jurisprudence.
407. Sen. Orrin G. Hatch, Modern Marbury Myths, 57 U. CIN. L. REV. 891, 894-895 (1989).
408. Regardless of the merits of this assertion, it is not cogent as to our two-tier proposal. Although the delegates' exchange on whether to add the phrase 'cases arising under the Constitution' is relevant to the Framers' consideration of justiciability and the limits of Article III, it does not guide us in assessing whether Article III would support a two-tier interpretation. The question is whether history supports a two-tiered justiciability analysis-not whether the courts can dispense with justiciability requirements altogether in procedural rights cases. Thus, to argue that Madison's comment here forecloses the possibility of a twotiered justiciability analysis would simply beg the question.
409. MADISON, supra note 340, at 545+551 (Report from the Committee of Style, art. III, § 2).
410. Berger, supra note 323, at 828.
411. R.W. EMERSON, Self-Reliance, in ESSAYS: FIRST SERIES 51, 64 (David McKay 1888) (1841).
412. U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 404-05 n.11 (1980).
413. City of Los Angeles v. Lyons, 461 U.S. 95, 97-99 (1983). We do note, however, that our analysis of Congress's power to do so may be of future use on this point. See supra Part IV.D; text accompanying note 317.
414. Edward A. Hartnett, The Standing of the United States: How Criminal Prosecutions Show that Standing Doctrine Is Looking For Answers in All the Wrong Places, 97 MICH. L. REV. 2239, 2246 (1999).
415. Asking why the United States has standing to prosecute even those federal crimes that do not injure the United States. If the asserted justification is that anything that affects an individual citizen affects the government (enough so to create standing in the government), then the justification would run afoul of the Court's 'fairly traceable' jurisprudence; the causal chain would be far too attenuated under the Court's precedents. See supra Part I.B. Nevertheless, federal criminal law is a firmly entrenched feature of the federal government's police power; if there is a standing problem, is the response merely that criminal prosecutions are different?.
416. That is, cases where the United States has suffered injury, but where the United States is not the plaintiff and has assigned its 'injury' to an uninjured plaintiff who recovers some of the bounty. See False Claims Act, 31 U.S.C. § 3730(b)(1) (2006); Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 772-74 (2000) (acknowledging that the bounty cannot confer injury-in-fact, but upholding qui tam actions against a standing challenge on the basis that such actions are well-grounded in history). But as Thomas Lee aptly observed, 'Standing is a modern game, and courts that uphold qui tam on historical grounds are playing by archaic rules.'
417. Thomas R. Lee, Comment, The Standing of Qui Tam Relators Under the False Claims Act, 57 U. CHI. L. REV. 543, 549 (1990).
418. Could qui tam actions be an example of a procedural rights case outside the administrative agency context?
419. Geraghty, 445 U.S. at 390. There, a federal prisoner purported to sue on behalf of a class to challenge the validity of parole release guidelines. Id. The district court refused to certify the class, and he appealed. Id. While the denial of class certification was pending on appeal, the plaintiff was released, thus mooting his personal claim. Id. The U.S. Supreme Court held that he nonetheless had standing to maintain his procedural claim because 'the Federal Rules of Civil Procedure give the proposed class representative the right to have a class certified if the requirements of the Rules are met.' Id. at 403. Although this is not an agency review case, it is an example of the Court permitting Congress to relax the injury requirement by creating a cognizable interest (having the class certified for the benefit of others) out of a noncognizable one.
420. Dylan Thomas, Do Not Go Gentle into That Good Night, in IN COUNTRY SLEEP 18 (1952).